12 August 2021

Balancing Pride and Prejudice: where does open justice end?

This article was written by Emma Costello, Julius Moller, Priscilla Lal and Morgan Lynch.

On 30 July 2021, Justice Jagot handed down her decision in Porter v Australian Broadcasting Corporation [2021] FCA 863, ruling that the unredacted pleadings in Christian Porter’s defamation case will be removed from the Court file.

Her Honour also took the opportunity to highlight inconsistencies between the Federal Court Rules 2011 (Cth) (the Rules) and the Federal Court of Australia Act 1976 (Cth) (the Court Act) regimes for seeking non-publication, suppression and removal orders, and flagged the need for further reform in this area.

This decision provides a timely analysis of the principle of open justice, the limits on this principle, and the interplay between agreed settlement terms and the administration of justice.

1              A brief recap of the Proceedings

In early March 2021, the then-Attorney-General, Christian Porter, launched a defamation action against the ABC and journalist Louise Milligan (the Respondents) in the Federal Court as a result of publications on the ABC website on 26 February 2021.

On 5 May 2021, Porter asked the Court to strike out and remove Schedules 1, 2 and 3 of the Respondents’ Defence (the Schedules) from the Court’s file, on the basis they contained scandalous, frivolous or vexatious material, were evasive or ambiguous, and/or were otherwise an abuse of process. Porter then obtained an interim suppression order over those parts of the Defence as well as parts of Porter’s Reply, which were intended to stand until a hearing took place on 9 July 2021 into whether permanent suppression and non-publication orders should be made.

Along with the parties to the matter, the Court agreed to hear from several news publishers in respect of the proposed suppression and non-publication orders, pursuant to the entitlement set out in s 37AH(2) of the Court Act. These news publishers were Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd (the Intervening Parties).

Prior to any final hearing, on 31 May 2021, Porter and the Respondents reached a settlement and recorded this in a deed of settlement and release (Deed). One of the terms of this Deed was that the parties file a consent order with the Court seeking, among other things, an order for the permanent removal of the unredacted Defence and Reply from the Court file (the Consent Order).

2              Deciding in chambers or open court?

The parties requested that the orders be made by consent in chambers. However, her Honour commented that the proposed removal order could not be made by consent, as it was her view that the Intervening Parties might have a right to be heard in respect of the order.

Porter argued there was a public interest in parties being encouraged to settle disputes. Since the parties had reached a “lawful compromise” of the entirety of the proceedings – including the dispute about pleadings – and in the absence of some “proper principled basis”, the Court should give effect to their agreement by making the Consent Order. He further submitted that the Intervening Parties did not have a right to be heard on the issue since the parties were no longer technically seeking a suppression or non-publication order.

However, the Intervening Parties contended that the Consent Order would have the effect of a de facto suppression order because it would prevent the public from accessing documents they would normally be entitled to inspect. As a news publisher has a right to be heard about a potential suppression or non-publication order, the Intervening Parties should also be heard about any application to remove a document from a Court file.

Her Honour agreed with the Intervening Parties that it was not appropriate to grant the Consent Order in chambers. The fact the parties had agreed to the making of the order was a relevant consideration, but it was not sufficient. Whether to grant the order engaged considerations about the proper administration of justice which extended beyond the interests of the parties. In particular, her Honour noted:

  1. the Intervening Parties had already been granted leave to be heard in respect of the making any suppression or non-publication order, and a date had been fixed for that hearing; 
  2. there was a legitimate and not “merely prurient public interest” in resolving that dispute, because it involved an issue of whether the unredacted Defence constituted a form of abuse of process of the Court; and
  3. the Consent Order was not sought in circumstances where, for example, the Schedules and unredacted Reply had been filed in error and were to be replaced by amended documents.  Rather, the Consent Order sought the permanent removal of portions of the pleadings, and therefore a permanent exclusion of the public right to inspect them.

Ultimately, it was necessary for the Court to reach its own determination as to whether an order could, and should, be made. Her Honour further noted that these considerations were equally applicable to the making of suppression and non-publication orders.

3              Making the order: ensuring the proper administration of justice

The Intervening Parties submitted that removing the Schedules and the unredacted Reply from the Court’s file would be contrary to the requirement of open justice.  They argued there was no proper justification for breaching this requirement in this case because, among other things:

  1. the material had already been released in another proceeding, consequential upon an injunction;
  2. refusing to make the Consent Order would not compromise the settlement as the Deed merely required the parties to file the proposed Consent Order (which they had done);
  3. it was not for parties to abrogate the Court’s exercise of its powers by pre-determining or regulating the orders made by the Court; and
  4. the possibility the parties could experience embarrassment or reputational damage should the materials be made public was not sufficient to remove materials from the Court’s file. Some degree of embarrassment or distress is an inherent consequence of litigation.

Justice Jagot, however, emphasised that the principle of open justice, while fundamental, was not absolute. It may sometimes be necessary not to disclose or publish certain Court materials in order to preserve public confidence in and access to justice.

While the releases in the Deed were not conditional on the Court making the Consent Order, the Court did not, and could not, know whether the parties would have reached the settlement without the Consent Order.  Therefore, refusing to grant the order would have the effect of re-writing the Deed.  Not only would this be contrary to the parties’ freedom to contract, but it may discourage future parties from settling all elements of their dispute.  This would prejudice the proper administration of justice and ignore one of the primary functions of the Court under the Court Act to “facilitate the just resolution of disputes”.

Accordingly, Justice Jagot concluded that the removal of the unredacted Defence and Reply from the Court file was necessary to prevent prejudice to the proper administration of justice. Her Honour made clear, however, that this decision turned not only on the agreement of the parties but also the particular circumstances of the case, noting that had any of the circumstances not been present, she may have concluded to the contrary.

4              Potential future amendments to the Federal Court Rules

Justice Jagot took the opportunity to comment on the potential for the Court Rules to be amended to address certain anomalies in Federal Court processes:

  • The differing grounds for making suppression or non-publication orders under the Court Act, and removal orders under the Court Rules: Her Honour noted that unless a document has been filed by mistake and is intended to be replaced by a substitute document, there is little practical difference between making an order for removal of a document from a Court file under the Court Rules and making an suppression or non-publication order under the Court Act. As such, the processes and standards applied in granting any of these orders should be the same. The position her Honour considered to be sound in principle, in the circumstances of the case, was that:
    • an application to remove part of a document from the Court file raises the same considerations as an application for a suppression or non-publication order;
    • intervening parties should be heard on any such application; and
    • the Court should only grant an order where doing so is necessary to prevent prejudice to the proper administration of justice.
  • Removing potential anomalies by deleting r 2.32(3)(a) and the reference to an order that a document be “confidential”: Justice Jagot noted that, presently, the Court could prevent a person who is not a party from inspecting a document by ordering that the document be ‘confidential’ under the Rules. However, the Court Act did not contemplate ‘confidential’ documents as a separate class of documents. The anomaly might therefore be remedied by qualifying the power to make an order for removal under the Rules in similar terms to the Court Act.
  • Amending r 2.32(2) to permit inspection as of right only after the first return date of the proceeding: Her Honour noted that when an originating application is filed to start a proceeding, it has a “return date” (this being the date the matter will first come before the Court). The applicant is required to serve the originating application and accompanying documents on the other parties at least five days before the return date.
  • Rules 2.32(2)(a) and (c) give members of the public the right to inspect court documents. Should a member of the public become aware that an originating application has been filed before it’s served on the other parties, they could exercise their right to inspect before the other parties have even become aware of the proceeding.  This could compromise those parties’ ability to seek suppression and non-publication orders. To prevent this, members of the public should require leave from the Court to inspect court documents before the return date.

5              Key Takeaways

Justice Jagot’s judgment provides a helpful exposition of the principles and considerations surrounding open justice and the administration of justice, the qualifications they may be subject to, and their importance to the exercise of judicial power.

Importantly, the case highlights that litigants should not assume, in submitting proposed consent orders for suppression, non-publication or removal of documents, that the Court will automatically make such orders based on their consent alone. It is necessary for the Court to arrive at its own determination regarding the making of an order, and litigants should be prepared to provide evidence and submissions to assist with this determination.   

Looking forward, and with the ongoing commencement of high-profile defamation proceedings in the Federal Court, it will be interesting to see whether Parliament remedies the anomalies between the Court Act and the Rules identified by Justice Jagot – and how this could make it more difficult for parties to keep court documents out of the public eye in the future.

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