Federal Court of Australia

Turner v Price [2025] FCA 1299

ORDERS

THE COURT ORDERS THAT:

1.    The interim suppression or non-publication order made 22 October 2025 is set aside.

2.    Until the completion of the hearing of this proceeding Mr Keith Gregory is prohibited from entering the court room in which the hearing is being conducted.

3.    The respondent’s oral applications for suppression or non-publication orders are dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Ex tempore, revised

WHEELAHAN J:

1    Today is the fourth day of the trial of this defamation proceeding. On Tuesday afternoon, and after the cross-examination of a witness had been completed, senior counsel for Senator Price, Mr Gray SC, stated to the court that he had been informed that a person had been present in court at some time prior to lunch and that he had been instructed that the person in question had been told by the Australian Federal Police (AFP) that he is not to approach Senator Price or to speak to her. Mr Gray stated that the person had approached Senator Price in the sense that he sat within a couple of seats of her in the court room. Mr Gray stated that Senator Price was concerned that this was contrary to what the AFP has required of the person and that it would be of some concern to her if the person were to sit in the court and watch her give her evidence, because it would be intimidating. Mr Gray later clarified that elements of his instructions came from Senator Price’s staff, and not Senator Price directly.

2    When the matter was first raised on Tuesday afternoon, Mr Gray was not in a position to adduce evidence, but he made an application that the court direct that the police proceed to take what action they regard as necessary. The application was made on the premise that the police did not regard themselves as free to act while the authority of the court’s security staff was in place, as to which see the Court Security Act 1993 (Cth). I did not act on that application. Instead, I stood the matter down to enable Mr Gray to take further instructions. Upon resuming, Mr Gray foreshadowed that he would make an application on Wednesday morning after having the opportunity to assemble some evidence.

3    After the court rose on Tuesday, my chambers received an email from the AFP which was then forwarded immediately to the parties’ solicitors. The email stated in part –

We are informed that the Honourable Justice Wheelahan has requested some information from the AFP in relation to a person who was in attendance today at the hearing of Lesley Turner v Jacinta Nampinjinpa [sic] Price. We have received this request via the electoral office of Ms Price.

We understand that his Honour has requested the position of the AFP in relation to a Mr Keith Gregory and his attendance in the public gallery at this trial, and specifically whether the AFP has any concerns in relation to the safety of the parties.

4    There must have been some miscommunication to the AFP because the court did not request the information referred to in the AFP’s email, and nor did the court request the position of the AFP. The email went on to state –

While Mr Gregory is known to the AFP, the AFP does not have any specific concerns about the safety of the parties that would lead to the AFP requesting Mr Gregory to either be removed from Court or to not attend the court proceedings.

If Ms Price has additional information that has not previously been reported to the AFP, we are available to take receipt of that information to assist his Honour and the Court in managing any further issues as required.

5    On Wednesday morning, Mr Gray made two oral applications. The principal application was for an order that the person referred to in the AFP’s email be precluded from being present in court during the course of the hearing or from attending the court building. That order was sought pursuant to s 17(4) of the Federal Court of Australia Act 1976 (Cth). The second application, which was argued together with the first, was for a suppression or non-publication order in relation to some of the evidence that was adduced on the application. That order was sought under Part VAA of the Federal Court of Australia Act.

6    Over the objection of Ms Chrysanthou SC, who appears as senior counsel for the applicant, I made an interim non-publication order in relation to some, but not all the evidence that was adduced. Otherwise, the applications were heard in open court, but without the YouTube livestream facility that had been in use up to that point.

7    The hearing of the two applications occupied the morning. Over the luncheon adjournment there were further developments which resulted in the court giving leave to Mr Gray to reopen the respondent’s application and to tender further documents. Although Mr Gray made an application for an interim suppression or non-publication order in relation to the further documents that were tendered after the luncheon adjournment, the application was pressed only faintly. I declined to make any interim order in relation to the further documents.

8    The evidence which the respondent read or tendered was as follows –

(a)    an affidavit of the respondent sworn 21 October 2025;

(b)    a bundle of documents marked exhibit “R1” for the purpose of the application;

(c)    a letter from Mr Gregory dated 22 October 2025 addressed to the court but which was emailed to the legal practitioners for the parties;

(d)    an email from the AFP that my chambers received on 22 October 2025; and

(e)    a Facebook post by Mr Gregory apparently posted on 22 October 2025.

9    The evidence which the applicant tendered was as follows –

(a)    an online article published by Sky News;

(b)    an online article published by ABC News;

(c)    an online article published by NT News;

(d)    an online article published by The Australian; and

(e)    the email that the AFP sent to my chambers on 21 October 2025.

10    Of the above documents, none of the documents referred to in [8](c), (d), (e) or [9] is the subject of any interim non-publication order, and they may be regarded as being in the public domain.

11    The applicant did not oppose Senator Price’s application for an order under s 17(4) of the Act but opposed the application for a suppression or non-publication order. Senior counsel for the applicant sought to cross-examine Senator Price on the application, which was opposed. Upon being informed by senior counsel for the applicant that the cross-examination would be limited (as it turned out to be), I declined to preclude cross-examination: see generally Impiombato v BHP Group Ltd [2025] FCAFC 9; 308 FCR 250 at [317] (Lee J).

12    The application of Senator Price was supported by her affidavit evidence that because of a course of events involving Mr Gregory over some years, she felt harassed by him. Those events included attendances at her electoral office, some email exchanges, and social media posts. Senator Price gave evidence of an incident at a public event where Mr Gregory attempted to hug her against her wishes. A recent social media post included a reference to Senator Price’s sons, and likened Senator Price’s action in seeking the assistance of the AFP to speak to Mr Gregory as the actions of Nazis or the Gestapo. Senator Price deposed that Mr Gregory makes her feel very uncomfortable, that she feels threatened by him, and that she is disturbed by his presence in the court room. She deposed that the presence of Mr Gregory in the court room on Tuesday gave her such anxiety that she was unable to concentrate fully on the trial and is concerned that he will seek to interact with her against her wishes. She deposed that she does not believe that she will be able properly to concentrate on the trial or when giving evidence if he is present in court.

13    As I have mentioned, the interest of the applicant in the applications was to oppose any suppression or non-publication order. The applicant did not wish to be heard in relation to the application under s 17(4). The tenor of the cross-examination of Senator Price was to put to her that her concerns were exaggerated, which she did not accept. It was also put that her characterisation of the communications from Mr Gregory was not true, which she denied, and that Mr Gregory had merely attempted to shake her hand at the public event, which she also denied.

14    For his part, in his letter to the court that was in evidence Mr Gregory apologised for any disruption caused to the court proceeding on Tuesday. He stated that it was never his intention to make Senator Price feel unsafe or threatened by his presence, and that he deeply regretted that his attendance might have caused her any distress. He explained that he attended the hearing in person because online broadcasts often lack clear audio. He said that he sat in the front row because he was having trouble hearing. He explained the nature of his interest in the proceeding. He denied that the AFP had instructed him not to approach Senator Price and gave an account of a conversation with AFP members who visited his home in September 2024 who conveyed a request from Senator Price that he not send emails to her. He said that he had not contacted or approached Senator Price since September 2024. He said that to avoid further disruption to the court or distress to Senator Price, he did not attend the hearing on Wednesday but attempted to view it online. However, the hearing on Wednesday morning was not livestreamed while I dealt with this application. Livestreaming resumed when the evidence on the trial resumed. Mr Gregory stated that he remained committed to respecting the court’s processes and Senator Price’s well-being, “while seeking clarity on this important case”. Mr Gregory did not state in terms that he will not attend further days of the hearing.

15    I observed Mr Gregory in the body of the court room on Tuesday. At one point he was seated a few rows from the front and was wearing headphones, which supports his statement about having hearing difficulties. To my observation, Mr Gregory was not in any way disruptive in the court room. I make no finding that Mr Gregory attended court with any intention to harass Senator Price or to disrupt the proceeding. He attended court as any other member of the public was entitled to.

16    This morning, Mr Gregory delivered to the Registry another version of his letter dated 22 October 2025. The second version contains an additional statement that he desires to attend court to hear the final summing up by the parties. The document also attached some additional information about Mr Gregory’s interactions with Senator Price. My chambers forwarded a copy of the second letter to the parties’ solicitors. I have treated this second letter as a submission by Mr Gregory.

17    It is clear from s 17(1) of the Federal Court of Australia Act that the court, in general, is obliged to exercise its jurisdiction in open court. As Bowen CJ stated in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 (Parish) at 232-233, the provision gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest that attaches to that principle. The open justice principle is recognised in other provisions of the Act, including those in Part VAA concerning suppression and non-publication orders.

18    Subsection 17(4) of the Act provides for an encroachment upon the open justice principle in the following terms –

(4)    The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court where the Court is satisfied that the presence of the public or of those persons, as the case may be, would be contrary to the interests of justice.

19    In Parish, Bowen CJ referred at 233 to common instances where it would be contrary to the interests of justice to allow a person to remain in a court room, such as a witness who has yet to give evidence, or persons who would disrupt the proceedings. The categories where exclusion would be proper are not closed and it lies in the discretion of the judge bearing in mind the injunction contained in s 17(1) and taking into consideration the interests of justice referred to in s 17(4). The text of s 17(4), which refers to the presence of a person being “contrary to the interests of justice”, may be compared to the ground for making a suppression or non-publication order under s 37AG(1)(a), where the order must be “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” is a strong word, and the “proper administration of justice” read in the context of the other conditions in s 37AG(1) is not concerned with trivialities: see generally Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). And s 37AG(1)(a) is concerned with the administration of justice generally: Western Australia v Ward (1997) 76 FCR 492 at 500 (Hill and Sundberg JJ). Nonetheless, in assessing the interests of justice for the purposes of s 17(4), weight should usually be given not only to the interests of justice between the parties but also to the public interest in open justice, which is given effect by s 17(1). Whether evidence is required to support the making of an order under s 17(4) depends upon the circumstances in which the order is sought. In some applications, the circumstances justifying an order will be obvious. On this application, the court has evidence.

20    It is not necessary for me to make detailed findings about the past interactions between Senator Price and Mr Gregory. The different perspectives that Senator Price and Mr Gregory may have in relation to the relevant events is not an issue that requires resolution. The immediate issue is Senator Price’s ability to defend the proceeding as a party having regard to her perceptions about which she gave evidence. Those perceptions had a cogent basis. The tenor of Senator Price’s evidence is that because of an accumulation of events over a period of years she feels threatened by Mr Gregory’s presence in court such that her concentration on the trial and her ability to give evidence may be affected. That evidence was not squarely challenged, and I accept it.

21    The order sought by Senator Price under s 17(4) of the Act is not an order seeking to close the court, but an order to exclude one member of the public. The hearing will remain livestreamed, it will remain open to other members of the public, and the court file has been placed online for public inspection. Members of the public, including the media, will continue to be able to publish fair, full, and accurate reports of the proceeding. Mr Gregory is able to inspect at the Registry a transcript of any hearing in the proceeding pursuant to r 2.32(2A)(i) of the Federal Court Rules 2011 (Cth). These considerations mean that the encroachment upon the open justice principle that would result if an order under s 17(4) were made is limited.

22    I am satisfied that it would be contrary to the interests of justice for Mr Gregory to be present in the court room during the course of the hearing. For this and the above reasons, an order under s 17(4) will be made. As to the terms of the order, they will preclude Mr Gregory from attending the court room in which the hearing of the proceeding is being conducted until the conclusion of the hearing.

23    I now turn to the respondent’s application for a suppression or non-publication order over some, but not all the evidence that was given or tendered. The order was sought on two grounds. The first ground was that the order was necessary to prevent prejudice to the administration of justice. The second ground was that the order was necessary to protect the safety of a person, namely Senator Price.

24    The principles that are applicable to an application for a suppression or non-publication order are well known. I referred earlier to the terms of s 37AG(1) and to the fact that the word “necessary” which appears in paragraphs (a) to (d) is a strong word, citing Hogan v Australian Crime Commission at [30]. Section 37AE of the Act makes the public interest in open justice a mandatory consideration in deciding whether to make a suppression or non-publication order. The open justice principle means that the mere embarrassment or sensitivity of parties or what an objective observer thinks might subjectively be fair to an individual litigant are not sufficient to make a suppression or non-publication order. I understood Mr Gray to accept these principles.

25    I am not satisfied that the non-publication orders sought by the respondent are necessary to prevent prejudice to the proper administration of justice, or that they are necessary to protect the safety of the respondent. The affidavit of Senator Price was directed much more to the circumstances that supported her application for an order under s 17(4) of the Act than to facts that made it necessary to make a suppression or non-publication order. The evidence falls short of showing that any suppression or non-publication order is necessary. The AFP has stated that it does not have any specific concerns about safety. The balance of the evidence does not support any different view. Moreover, the media articles, the emails from the AFP, Mr Gregory’s letter to the court that was in evidence, and Mr Gregory’s Facebook post have the consequence that the subject matter and general grounds for the application are already in the public domain. Having regard to the open justice principle, it would not be in the interests of the administration of justice to have some of the evidence and the general subject matter of the application in the public domain, but not the balance of the evidence adduced in support of the application.

26    The application for a suppression or non-publication order is therefore refused.

Associate:

Dated:    23 October 2025