Australian Broadcasting Commission v Parish, Robert James & Ors P.B.L. Marketing Pty Ltd & Ors v Australian Broadcasting Commission Parish, Robert James & Ors v Australian Broadcasting Commission [1980] FCA 40

AUSTRALIAN BROADCASTING COMMISSION v. ROBERT JAMES PARISH & ORS.;

P.B.L. MARKETING PTY. LIMITED & ORS. v. AUSTRALIAN BROADCASTING COMMISSION;

ROBERT JAMES PARTSH & ORS. v. AUSTRALIAN BROADCASTING COMMISSION

) NEW SOUTH WALES DISTRICT REGISTRY) Nos. G13, 14, 15 of 1980

ON APPEAL from a single Judge of the Federal Court of Australia

ORDER JUDGES MAKING ORDER: Bowen C.J., Franki and Deane JJ. DATE OF ORDER: 2 April 1980. WHERE MADE: Sydney

Appeal in Matter No. G13 of 1980 THE COURT ORDERS that the appeal be dismissed with costs.

2. That orders 1, 2 and 4 made by the trial Judge on 18 February 1980 be set aside.

3. That such named members and officers of the Australian Broadcasting Commission and such named legal advisers and other experts as the trial Judge shall determine be permitted to inspect the whole of the agreement of 30 May 1979, such inspection to be for the purposes of this litigation only and to be subject to each person seeking to inspect as aforesaid undertaking to the Court that he or she will maintain the confidentiality of the confidential parts of the agreement referred to in order 4 hereof and will not divulge the contents of such parts to any person other than a person permitted

to inspect the whole of the said agreement under the

That until further or other order of the trial Judge the publication of any confidential parts, namely clauses 4, 5, 17 and sub-clause 25(b) and those parts of clause 3 which refer to amounts of money and the percentage figure expressed in sub-clause (c) and those parts of clause 13 which refer to amounts of money, of the said agreemént 'dated 30 May 1979 which may be in evidence is forbidden to any person other than a person permitted by order 4 hereof to inspect. That the respondent pays to the appellants their costs of the appeals.

That the respondent pays to.the appellants their costs of-so much of the proceedings before the trial Judge as related to the orders made by him on 18 February

) NEW SOUTH WALES DISTRICT REGISTRY) Nos. G13, 14, 15 of 1980

ON APPEAL from a single Judge of the Federal Court of Australia

BOWEN C.d.: These appeals were heard together. I have had the opportunity of reading the reasons for judgment of my brothers Franki and Deane. 'The course of the proceedings and the facts are fully stated by them and I shall not repeat

This appeal was brought by the Australian Broadcasting Commission (the "A.B.C.") against two judgments of the learned trial Judge given on 14 and 15 February 1980 refusing to allow certain amendments to its amended statement of claim. I agree with the judgment of Deane J. In my opinion this appeal

Appeals in Matters Nos. 14 and 15 of 1980 The appeal in matter No. 14 was brought by the first

fourteen respondents to the proceedings below being the members of the Australian Cricket Board (the "Board"} and the appeal in matter No. 15 was brought by the fifteenth, sixteenth and seventeenth respondents to those proceedings, P.B.L. Marketing Pty. Limited ("P.B.L."), World Series Cricket Pty. Limited ("World Series Cricket") and Publishing and Broadcasting Limited ("Publishing and Broadcasting"). Both appeals were against a judgment of the learned trial Judge

given on 18 February 1980. His Honour refused an application

-3- under s.50 of the Federal Court of Australia Act 1976 for an order forbidding or restricting the publication of certain parts of an agreement dated 30 May 1979 specified as "confidential parts".

I am in agreement with the conclusion of Franki J. on these appeals, namely, that the appeals should be allowed and that orders should be made permitting the inspection of the whole agreement only by such named members and officers of and named experts nominated by the A.B.C. as the trial Judge may determine stibject to appropriate undertakings to maintain confidentiality of the "confidential parts" and forbidding the publication of the specified "confidential parts", except clause 6(c), which is already publicly known. I agree also with his proposed orders regarding costs. However, I will state my own reasons in relation to confidentiality.

The question whether, in the course of. the hearing of a matter an order should be made under s.50, is in my opinion a matter within the discretion of the trial Judge. Accordingly, although an appeal lies of right, this Court should not interfere with the Judge's exercise of his discretion unless

it appears that some error of the kind referred to in House v.

The King (1936) 55 C.L.R. 499 at pp.504-505 has been made. Where the error suggested is that the primary judge failed to

give sufficient weight to some particular matter, this may,

but will not necessarily, justify a reversal on appeal (Lovell

v. Lovell (1950) 81 C.L.R. 513 at pp.518-520 and pp.532-533);

Australian Coal and Shale Employees Federation v. Commonwealth

iA (1953) 94 C.L.R. 621 at p.627). It is never enough in matters of discretion that an appellate court, left to itself, would

have arrived at a different conclusion. What was said in

Warren v. Coombs ((1979) 53 A.L.J.R. 293) is not applicable to

cases of discretion (Gronow v. Gronow (1979) F.L.Cc. 78,844, H.Ct. at pp.78,848-9 and pp.78,857 and 78,859). Before it decides to interfere with the exercise of a discretion, an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion (Gronow v. Gronow, supra, per Stephen J. at p.78,848).

The question is whether a relevant error appears. To answer this question it is necessary to consider the terms in which the discretion is conferred and what is the correct approach to-take in reaching a decision upon the exercise of the discretion-in the particular case.

This Court is a court established by statute. It is clear

from sub-s.17(1) of the Federal Court of Australia Act 1976

'that in general it .is obliged to exercise its jurisdiction in open court. This 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 which attaches to that principle.

However, sub-s.17(4) and s.50 provide for encroachment upon that principle. Under sub-s.17(4) the public or some of 'the public may be excluded where the Court is satisfied their

presence would be "contrary to the interests of justice". We

are all familiar with cases where this would be so. Thus, it is common to exclude persons who are to give evidence, lest they be led to trim their evidence. Again, where demonstrators or rioters would disrupt the proceedings, it may be in the interests of justice to exclude them. The categories of cases where exclusion will be proper are not closed. It will lie in the discretion of the judge, bearing in mind the injunction contained in sub-s.17(1) and taking into consideration the interests of justice referred to in sub-s.17(4).

Under s.50 an order may be made forbidding -or- restricting the publication of particular evidence-or -the namd of a party or witness where it appears to the Court "to be necessary in order to prevent prejudice to the administration of justice or the security:of the Commonwealth". | Again, cwe''are familiar with cases where an ordtr forbidding or wvestricting publication is appropriate. . Thus, where the proceedings concern a secret process and publication of the process would destroy the subject matter of the proceedings and render them nugatory, an order is necessary to prevent prejudice to the administration of justice. Where proceedings are "brought to restrain publication of confidenttal material, similar considerations apply. Disclosure would prejudice the Court's proper exercise of the' function it was appointed to discharge, to do justice between the parties. The possible cases where an order may be necessary to prevent 'prejudice to the

administration of justice range fairly widely. The categories

-6-+ of this public interest are not closed and must alter from time to time whether by restriction or extension as social

conditions and legislation develop (see D. v. National Society

for Prevention of Cruelty to Children [1978] A.c. 171 per Lord

Hailsham at p.230; Science Research Council v. Nasse [1979] 3

W.L.R.- 762 per Lord Fraser at p.784 ~ cases concerning discovery). The importance of the principle of open justice is not in

doubt (see Scott v. Scott [1913] A.C. 417; Russell v. Russell

(1976) 134 C.L.R. 495 per Gibbs J. at p.520) nor is the need to depart from it in the interests of justice on occasion (see

Attorney-General v. Leveller Magazine Limited [1979] 2 W.U.R.

247 per Lord Diplock at p.252; cf. Halcon International Inc.

v. The Shell Transport and Trading Co. [1979] R.P.c. 97.

Cases which deal with the course a.Court should follow where there are no sections correspoviding. With ss:17 and 50, although illuminating and helpful are not decisive for a Court constituted by an Act containing those sections. Such a Court has the slightly different task of interpreting and applying the statute which governs it.

Open justice is the underlying assumption of s.50, not the criterion it prescribes. The section refers to preventing "prejudice to the administration of justice". This is not a reference to the need to preserve open justice. It is, as I have already suggested, a reference to another public interest, that is, the public interest that the Court should endeavour to achieve effectively the object for which it was

Tt is not possible to define in advance the degree of prejudice to the administration of justice, which will justify the making of an order under s.50. The collocation of the alternative phrase "security of the Commonwealth" suggests Parliament was not dealing with trivialities. The case where failure to make an order under s.50 would lead to the destruction of the very subject matter of the suit would seem to be the kind of case which might ordinarily attract the exercise of the discretion. The refusal to make an order in such a case might well defeat the purpose of achieving justice between the parties and disappoint the. public interest in having the Court deal responsibly with the-confidential affairs of citizens.

Section 50 says the Court may make such ocder forbidding or restricting publication of certain things as appears to the Court to be necessary iw order to pievenc prejudice to the administration of justice. In exercising this discretion, I am of opinion the Court should also take into account what s.50 does not mention in terms but what.is the underlying assumption upon which it is based, namely, the principle of open justice. The English language does not readily provide the means of describing the process by which this is taken into account. It is a process of judgment. A useful metaphor is that of weighing in the scales the various factors involved. It might be said the process is more complex than

such a metaphor would suggest (see Science Research Council v.

Nasse, supra at p.771); put that metaphor is the best

Weighing in the scales the countervailing public interests involved, the discretion whether or not an order should be made and upon what terms, has to be exercised.

Turning to the facts of the present case, it is clear that the principle of open justice, reflected in sub-s.17(1), involves: weighty considerations having regard to the nature of the issues raised by the pleadings and the importance of the agreement of '30 May 1979 to the resolution of those issues. On the other hand, the applicants have made out a substantial case for the necessity: of an order under s.50 to prevent prejudice 'to the administration of justice,- i.e. prejudice to that other .-public interest of doing 'justice 'between the parties. If the A.B.C. is successful at the trial in showing

the agreement is contrary to the Trade Practices Act, the

agreement will fall -to the+ground and -the question of confidentiality with it...j3# the A.B.C. is. unsuccessful, then the respondents ought'to- beable to expect to continue under an agreetment which remains with its efficacy and value not destroyed or seriously damaged by the proceedings themselves.

The learned trial Judge reached the following conclusion:

«-- the dissemination of the contents of the confidential parts of the agreement will, according to the evidence, seriously weaken the negotiating strength of the Board and may~:well require the respondents (appellants) to reconsider their adherence to the agreement."

While falling short of a finding that disclosure of the confidential parts will destroy the efficacy or value of the

agreement, this conclusion comes not far short of that. The

position appears to me to be analogous to the position in those cases where confidential information is the subject matter of the proceedings. It is in the interests of the administration of justice that the very proceedings before the Court should not be permitted to destroy or seriously depreciate the value of such confidential information, If it were otherwise, not only might the parties -and members of the public consider the Court was not paying proper regard to confidentiality but also it might open the way to abuse.

This is not a case where there is any express provision as to confidentiality in.the agreement itself., However, it is clear from the -conduct of the -parties that they.have at ail times treated the agreement as having confidential parts. These. parts were excluded frém the Trade Practices Commission's Register and so' far they have not:been.published. 'At the interlocutory stage there was an agrecaent between ¢eLl parties to keep them confidential.

In the result, I am of opinion>a case has been made out for an order under s.50 at this stage. It is true that this would encroach on the principle of open justice, but it is implicit in s.50 that this result must be faced when the Court is considering whether to make an order under s.50. 'he degree of encroachment will depend on a number of factors, including the degree of restriction in the order. It is, of course, clear that any order made should be in such terms that it ensures:as far as possible that justice will be done

between the parties. Thus, it should provide for disclosure

of all parts of the agreement to the legal representatives and the nominated officers and experts of the A.B.C., subject to appropriate undertakings. All parts of the agreement will, of course, be before the Court. Furthermore, such an order under s.50 should be expressed to operate until further order. The view I have expressed is based upon the pleadings and the facts, including the agreement, as they have so far been revealed. It may be that as the case progresses, circumstances will become apparent which would require a review of the order.

There is no question that the whole of the agreement including the confidential parts:+would pe admissible in evidence in the proceedings before the trial Judge. An order restricting publication would mearm that although the major clausés could be discussed in-open: court, the confidential parts, which relate to Yinaaciai arrangements wectween the parties, would have 'to be deait in general rveterential terms,

I turn now to the reasons for judyment' of the learned trial Judge.

i do not find it possible to bring the matter into relief by quoting a sentence or two from his Honour's reasons for judgment. However, upon my ieading of those reasons as a whole, I gain the impression that his Honour weighed on the one hand the wishes and commercial interests of the respondents (private interests) and on the other hand what he regarded as a serious derogation from the principie of open

justice, if not a reversal of it (public interest). It is,

-ill- perhaps, not. surprising that adopting this approach he found the public interest in maintaining the open court principle outweighed the private interests of the litigants.

It is in relation to this approach that, with all respect to the learned trial Judge, I find myself differing from him. What s.50 requires to be considered is prejudice to the administration of justice. The elements in the administration of justice which are involved on the side of a Jitigant seeking an order for confidentiality are the public interest in preserving the privacy of confidential arrangements so far as practicable and the public interest in the:Court's doing justice between the parties, which will be hampered if the very proceedings in which the agreement is under challenge require the efficacy and value of the agreement to be seriously 'damaged, iff noi destroyed, before' the' result of the proceedings is determined. - It appects to*me 'that Lhe leacired trial Judge has not identified this -public interest correctly.

On the other side, is the principle of open justice. In according weight to this principle, the' learned trial Judge appears to me to have accorded to it almost the weight it would have if there were to be a very substantial, if not a complete derogation from it. In 'such a case, it would, of course, have immense weight.

Although the principle of open justice is of great importance in exercising the discretion under s.50, it is not necessarily the whole weight of that principle which must be

placed in the scales. The derogation from the principle,

which is involved in making any order under s.50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.

It may be suggested that any encroachment is a threat to the principle. Warning has been given against judges being a party to creeping erosion of the principle of open justice by their decisions in individual cases (see Scott v. Scott [1913] A.C. 417 at pp.477-478). But this Court is governed by its statute. Sections 17 and 50 must be applied. ' What I stress is that in applying s.50, the degree of encroachment involved in the order proposed, is an important factor co be weighed in the scales. No doubt, ss.17 and 4540 will continue to be applied with a full sense of responsibility. as they have been in the' past.- i see no present danger-that chis Court may become a closed court or may adopt a praccice of unduly restricting. -public access to evidence' or-to the names of parties or witnesses. That is certainly something to be guarded against.

In dealing with the extent of the derogation from the principle of open justice in the present case, the learned

"The agreement is, as I have said, at the heart of the litagation and it would present but a partial, 1f not @istorted, picture of the Litigation if the public were denied access to the whole of the agreement for assuredly the whole agreement will be canvassed and the applicant will seek to relate the

contents of each part of the agreement to the issues to be decided. Even if the respondents should ultimately be proved right in their submission that the contents of the confidential parts will prove irrelevant to the issues to be determined - a proposition which I do not presently find it necessary, to decide and which is by no means self- - evident - that conclusion will itself be part of the litigation to which the public is entitled to access.

To make an order restricting publication would deny to the public an opportunity of adequately

appreciating the nature and course of the proceedings by which the issues are to be determined." '

I have two difficulties with this. First, while the

A.B.C. will no doubt .seek to relate the: "confidential parts"

-of the agreement concerning finance' asr well as 'the positive

exclusionary provisions to the issues -concerning breach of ss.45 and 45A, it ts the positive exclusionary -provisions which are at_the heatt- of the matter, "If the. financial provisions, which: it may weld 'turn-oute drriltele more than give added colour and point.to the exclusionary. provisions, are indeed held to be immaterial, 'it seems the :appellants should not .in the very process of establishing that fact in order to assert the right claimed by them' to have~these parts of the agreement treated as .confidential; have- that right destroyed or seriously damaged.

Secondly, -I have difficulty 'with his Honour's conclusion that the public would be prevented from having a proper

"Though the loss of confidentiality will be a serious matter for the respondents, it would be a graver matter to shut out the public from an adequate

appreciation of the foundations upon which the case is to be decided."

The question which troubles me here is whether the public would be denied "an adequate appreciation of the fvuundations

on which the case is to be decided". In the present case, the amended statement of claim

alleges various contraventions of the Trade Practices Act

arising from or related to the agreement. These may be

1. The agreement is alleged to contain an exclusionary provision, within s.4D and in contravention of s.45 '(paragraph 11).

2. The agreement is alleged .to contaiu a provision thai has the purpose:or- effect? of likely effece of substantially lessening competition in contravention of ss.45 and 45A (paragraph 12).

3. It is alleged the Board, by entering into the agreement, has aided and abetted these contraventions (paragraph 13).

exclusionary provision in contravention of the Trade

Practices Act (paragraph 14). 5. It is alleged that effect has been given to the

• 15 - effect of substantially lessening competition (paragraph 15).

6. It is alleged that by giving effect to the agreement the Board has aided and abetted the contraventions

It is clear that in order to make good these claims it will be necessary:to rely upon the whole of the agreement and the circumstances to which it applies.

The agreement of 30 May 1979 has twerity-five clauses. If the order sought. under s.50 was: 'made; nineteen of these clauses*(namely,*1], 2, 6, 7, 8, 9;°10;°11}-12; 14} 15, 16, 18, 19, 20,°21, 22, 23 and 24) would be completely open to the public;- two would be open to ithe 'public' save for the exclusion of certain 'monetary Eiguces "(naiel y ; +3 aad 13)? one would be dpen save-for the exclugion «df ond part Géaling with financial -arrangements '(namely;'25} andvohree clauses relating to financial-arrangements would be-wholly excluded (namely, 4, +5 and 17); For compketeness, it should be méntioned that the 'amended statement of claim-also refers to an agreement of 21 November 1979 which amended the agreement of: 30 May 1979. This agreement of 21 November 1979:contains two brief clauses not particularly material to the issues in the' case. No confidentiality is claimed for it.

On the appeal -the issues there arisind'were dealt with by a short hearing excluding the public when the Court was taken

through the agreement including the "confidential parts"

• 16 - followed by the main part of the hearing when full argument took place, references being made in the course of argument in general referential terms only to the "confidential parts". My strong impression is that the public would have had no difficulty in following the argument notwithstanding they would not have had the "confidential parts" before them.

At the trial of the matter it appears to me it would be practicable to follow a similar course. It is true that at the trial the issues will be different from those on the appeal. Such a course will be more difficuit to follow. It could 'well be that more cogent parts of the argument than was the case on the appeal would be Shrouded from the public by the unavailability to them of the "confidential parts". But I am not persuaded it would be impracticable for the public to follow the argument intelligently and:to appreciate adequately the fundamental questions involved, 'even in the.absence of knowledge of the details -of the financial arrangements in the agreement. This last conclusion tis.one ak 'which I have arrived with some hesitation, because the learned trial Judge, who was engaged in conducting the trial, arrived at a different conciusion.

However, having regard to all the matters which I have discussed, I have come to the conclusion that the learned trial Judge erred in principle in applying s.50 and that his exercise of discretion miscarried. I would allow the appeals

in matters Nos. Gl4 and G15 of 1980. I agree with the orders

/ " a 4 "ip LA Roar: ig dir Tu. 7 2. Lewin oF has Eenour: Y . 2 +4 vs a .

NEW SOUTH WALES DISTRICT REGISTRY) Nos. G13, 14, 15 of 1980

ON APPEAL from a single Judge of the Federal Court of Australia

These are three appeals against decisions of a single judge of this Court. They have arisen in proceedings brought by the Australian Broadcasting Commission ("the A.B.C.") against Mr. Parish and thirteen other members of the Australian Cricket Board ("the Board") and three corporations, namely P.B.L. Marketing Pty. Limited ("P.B.L."), World Series Cricket Pty. Ltd.

("w.S.C."), and Publishing and Broadcasting Limited.

The Board, P.B.L., W.S.C. and Publishing and Broadcasting Limited entered into an agreement on 30 May 1979 ("the agreement"), as amended by an agreement of 21 November 1979, in relation to the promotion of cricket matches in Australia and certain commercial aotivities associated with those matches. On 21 December 1979 the A.B.C. commenced the proceedings alleging, inter alia, that the agreement, as varied, was contrary to s. 45 of the Trade Practices Act, 1974 ("the Act"). The amended statement of claim alleged, inter alia, a contravention by entering into the agreement or the amended agreement, or both, or by giving effect to the agreement or the amended agreement or both. Application was made for interlocutory relief but this was refused. The matter was given an early date

for hearing and commenced before a judge of this Court early in

The first appeal, No. G1i3 of 1980, was brought by the A.B.C. against two judgments of the learned trial judge refusing to allow certain amendments to its amended statement of claim. I have had the opportunity to read the judgment of Deane J. and I agree with his reasons and the conclusions he has reached in this appeal. In my opinion, this appeal should be dismissed with

The second appeal, No. G14 of 1980 was brought by the first fourteen respondents to the action and the third appeal, No. G15 of 1980, was brought by the fifteenth, sixteenth and seventeenth respondents to the action. Both the second and third appeals were brought against a judgment of the learned trial judge of 16 February 1980 whereby the respondents were ordered to

produce the agreement for the inspection of the applicant.

During the interlocutory proceedings certain parts of the agreement of 30 May 1979 were claimed by the respondents to be confidential, and, by consent, they were so treated. By letter of 22 January 1980 the solicitors for the appellants wrote to the solicitor for the respondent in relation to the agreement.

that those parts of the agreement of 30 May, 1979 which hitherto have been kept confidential, and documents relating to the financial provisions of that agreement, will be kept confidential to you and to your Counsel and will not be disclosed to other officers or employees of the Commission."

The parts of the agreement which were referred Lo as having been kept confidential were several clauses in the agreement and the figures in certain other clauses of the

On 12 February 1980 the statement of claim was amended to introduce references to certain clauses of the agreement which had not been previously referred to and which were within those referred to as having been kept confidential in the letter of 22

Sections 17(4) and 50 of the Federal Court of Australia

"17(4) The Court may order the exclusion of the public or of persons specified by the Court from a 'sitting 'of the Courc 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.

50. The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be

necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth."

During the course of the proceedings, which commenced in February 1980, the trial judge made certain orders under

ss.17(4) and 50 of the Federal Court of Australia Act, 1976,

which had the effect of certain evidence being given in closed

Court and the transcript of that evidence and parts of the relevant agreement being only available to counsel and solicitors advising the parties. During the proceedings before the trial judge the A.B.C. tendered a complete copy of the agreement. The Board then asked for an order restricting the publication of that agreement except to counsel for the A.B.C. or any counsel or solicitor appearing for the respondents. Any order restricting the publication of the agreement was opposed by the A.B.C. The trial judge then suggested that the question of whether any order should be made under s.50 of the Act could be decided as though it were a contested application for inspection of a document discovered. The Board did not agree that this was an appropriate eriteria. The A.B.C. then declined to tender the agreement on the basis that an order under s.50 would be made. The issue before the trial judge then appears to have been whecher the whole of the agreement- should be made available for the inspection of the respondent and its servants and agents and tendered in evidence without any order being made which would have the result of those clauses in the agreement for which confidentiality was claimed being freely discussed and disclosed to the public in open Court. The appellants took the view that this was a matter of great concern to them. Mr. Parish, who was chairman of the Board, and who had been Chairman for more than four years, and a Mr. Taylor, the managing director of both P.B.L. and W.S.C., gave evidence. At the conclusion of the evidence, which had been given in camera, the question of whether

the Court would be closed under s.17(4) and/or an order made

under s.50 was argued at length and the trial judge gave a detailed judgment on the matter which appears to have brought about the position that if the orders under appeal stand the whole of the agreement, including those clauses which had previously been treated as confidential, and presumably, at least at some stage, the whole of the Court proceedings including any parts when evidence in relation to those clauses in the agreement which had been treated as confidential were under consideration, will be available to the parties and to the public. Certain other exhibits were involved in the orders but no separate

submissions were addressed to us with respect to them.

Two questions emerge and I consider it is important to

The first question is to whom should. the confidential parts of the agreement already discovered and of any evidence given in relation to those parts be disclosed. The appellants, during the proceedings before the trial judge and before us, offered to make available for the purposes of the litigation, the whole of the agreement and any evidence given in closed Court, to the legal advisers of the parties and to appropriate named persons, provided proper undertakings. were given by such persons to treat the information as confidential. No consideration had been given by the A.B.C. to any particular persons whom it wished to see any confidential material. Since this judgment was

reserved, the solicitor for the A.B.C. has sent a letter to the

Registrar setting out the names or the description of certain

persons for whom access to the whole of the agreement was sought.

I am quite satisfied that, subject to appropriate undertakings as to confidentiality, discovery should be made to certain appropriate senior officers of the respondent and to named legal or specialist advisors from whom the respondent might reasonably wish to receive expert advice in relation to the conduct of the case. I will refer to this question later. A well known procedure for this is often used in cases where some matter of confidence is to be considered and the procedure is substantially in accord with that offered by the appellants. In

Warner-Lambert Co. v. Glaxo Laboratories Limited [1975] R.P.c.

354, the defendants were claiming that the persons to whom certain processes should be disclosed. upon discovery should be limited. On appeal, which was heard in camera, the Court of Appeal varied the order of the trial judge. The defendant in those proceedings sought to protect the details of certain processes it conducted and which were said to infringe the plaintiff's patent. The proceedings were not to protect the defendant's property. Buckley L.J., with whose judgment Orr L.J. concurred, delivered the main judgment. Russell L.d., in substance, agreed with Buckley L.J. Buckley L.J. dealt with the relevant authorities on the question of the extent to which the defendant should be required to disclose its process to representatives of the plaintiff. The course taken was said to

be "best calculated to serve the interests of justice." At p.

opinion his Honour has taken the view that. tne possibility of the

public not being able to appreciate' adequately the nature and

course of the proceedings and the issues to be determined

outweighed the necessity of doing justice between the parties. [

do not see how justice can be done between the parties when a

to the correct conclusion, but merely for the purpose of enabling

the public to perhaps more fully appreciate the nature and course

of the proceedings by which the issues are to be determined in

circumstances where this course of action will weaken the

negotiating strength of one of the parties and may even result in

agreement. If the parties decided to abandon the agreement it would have the effect of the A.B.C. achieving its object, not because it had established a breach of the Act, but because the publicity associated with the proceedings had weakened the negotiating strength of the Board. It is relevant also to note that the Board is almost in the position of being a public body. It appears that the Board is the national Australian association responsible for the organization and supervision of the game of ericket in Australia including the arranging of test matches between Australia and other countries and the arranging of interstate cricket matches and that it is constituted by the various cricket associations of the States and the Tasmanian Cricket Council which are responsible for the organization of ericket within their State for players from junior cricket

The provisions of ss.17(4) and 50 of the Act have been used on a number of occasions by judges of this Court in matters

under the Trade Practices Act. The Full Court of this Court,

Nimmo, Franki and Northrop JdJ., in an application for prohibition against the Trade Practices Tribunal made orders under those

sections in In re Trade Practices Tribunal; Ex parte Tooheys Ltd.

(1977) 1 A.T.P.R. 40-054. In addition orders under one or both of

those sections have been made at teast in the following cases:

Commercial Bank of Australia (Bowen C.J.). Tradestock Pty. Ltd.

Industries (Operations) Pty. Ltd. (Northrop J.) (1978) 20 A.L.R.

31 at p. 37. Trade Practices Commission v. Nicholas Enterprises

Pty. Ltd. (Fisher J.). An order was also made in 1979 in that

case. Trade Practices Commission v. Milreis Pty. Ltd. (Franki J.).

L-K. Jewellery Investments Pty. Ltd. v. Percy Marks Pty.

Ltd. (Franki J.). Geoff Penney (N.S.W.) Pty. Lid. v. Radilec

Investments Pty. Ltd. (Franki J.)- In the interlocutory

proceedings in the case under appeal. (St. John J.). Refrigerated

Express Sales Australia Pty. Ltd. ve Australian Meat and

In my opinion the legislature, by providing as it has specific powers under ss:17(4) and 50, has intended that the Court, in an appropriate case, should exercise these powers. Whilst every regard must be had to the desirability of conducting proceedings in open Court I consider that, where, as in this

case, it appears necessary in order to ensure that a party will

not be seriously prejudiced to make orders under ss.17(4) and 50, those orders should be made. Of course, if the trial judge decides when the proceedings have gone further, that protection is no longer warranted he can remove the protection effected under s.50 and the material which was not available to the public

In my opinion, in proceedings like those in this case, a party should not be seriously prejudiced merely because non-disclosure may present a somewhat distorted picture of the

I would uphold the appeals numbered G14 and G15 of 1980 and make orders permitting the inspection of the whole of the agreement only by such named members and officers of and named legal advisers and other experts engaged by the A.B.C. as may be appropriate and forbidding the publication of the confidential parts of that agreement except the figures in clause 6(c). Clause 6(c) has already become more widely available. I would also order that the respondent pay the appellants' costs of these two appeals and of the costs of so much of the proceedings before the trial judge as relate to the order made by him from which these two appeals have been brought. I would leave the approval of the named members and officers of the A.B.C. and the named legal advisers and other experts to the learned trial judge. My impression, however, is that disclosure to two or three named

members or officers of the A.B.C. and three or four named legal

advisers or other experts is likely to be adequate. In each case, appropriate undertakings would be required from the persons to whom disclosure was allowed. The orders proposed on these appeals would appear to involve appropriate orders being made under ss.17(4) and 50 of the Act from time to time to maintain the confidentiality of evidence which may be given in relation to the confidential parts of the agreement. -The extent and precise nature of such orders must remain to be determined by the learned

As I have already said I would -dismiss appeal numbered

I certify that this andl tthe nine Loco th) preceding pages are & tru@dypy of the Reasons for Judgment herewidf his Honour

NEW SOUTH WALES DISTRICT REGISTRY NO. G.13,14,15 of 1980

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF

AUSTRALIA BETWEEN: AUSTRALIAN BROADCASTING COMMISSION Appellant AND: ROBERT JAMES PARISH & ORS. Respondents BETWEEN: P.B.L. MARKETING PTY. LIMITED & ORS. Appellants AND: AUSTRALIAN BROADCASTING COMMISSION Respondent BETWEEN: ROBERT JAMES PARISH & ORS. Appellants AND: AUSTRALIAN BROADCASTING COMMISSION Respondent CORAM: Bowen C.J., Franki and Deane JJ.

DEANE J: These are three appeals against decisions of Brennan J. given in the early stages of the hearing of proceedings brought by the Australian Broadcasting Commission ("the ABC") against the members for the time being of the Australian Cricket Board ("the Board") and three corporate respondents. In the proceedings, the ABC seeks against the respondents certain relief pursuant to the

provisions of the Trade Practices Act, 1974 ("the Act") in

relation to arrangements reached between the Board and the three corporate respondents as regards the televising and certain other aspects of international and inter-State cricket matches played under the control of the Board. The arrangements in question are contained in a written agreement made between the Board and the corporate respondents on 30 May, 1979. I shall refer to this written agreement as "the agreement". The agreement was confirmed by a supplementary agreement of 21 November, 1979 between the same parties. This supplementary agreement also provided, in effect, that the grant of rights pursuant to certain clauses of the agreement was expressly conditional upon the observance of the

The first of the appeals (No. G13 of 1980) is an appeal by the ABC against his Honour's refusal to allow two separate amendments to the ABC's already amended statement of claim. These

consisted of a proposed addition to paragraph 5 and the insertion

-~3- of a new paragraph 18A. The second and third appeals are by the three corporate respondents (No. G14 of 1980) and the fourteen members of the Board (No. G15 of 1980) and relate to his Honour's decision that the ABC should be granted unrestricted access to certain parts of the agreement which were claimed to be confidential and his decision that, upon the agreement being tendered and received in evidence, no order restricting publication of those parts of the agreement should be made

pursuant to s.50 of the Federal Court of Australia Act, 1976. The

three appeals have been heard together and it is convenient to

dispose of them in the course of a single judgment.

The ABC's allegations against the respondents, as disclosed by the amended statement of claim, fall into three

(i) That by entering into (or giving effect to) "the agreement or the amended agreement, or both", the corporate respondents, in contravention of s.45 of the Act, have made (or given effect to a provision of) a contract or arrangement or arrived at (or given effect to a provision of) an understanding that contains (or is) an exclusionary provision within the meaning of s.4D

(ii) That by entering into (or giving effect to) "the

-4- agreement or the amended agreement or both", the corporate respondents, in contravention of s.45

• and s.45A of the Act, have made (or given effect to a provision of) a contract or arrangement or arrived at (or given effect to a provision of) an understanding which contains a provision that has (or which has) the purpose or effect or likely

(iii) That the personal respondents have induced, been concerned in and been parties to ithe alleged contravention by the corporate respondents of s.45 of the Act and have conspired with the

Each of the appeals relates to the exercise by Brennan Jd. of judicial discretion. There has recently been some discussion in the High Court of Australia as to the correct approach to be adopted by an appellate court in the discharge of its appellate funct1rons (see Warren v. Coombs (1979) 23 A.L.R. 405). There is, however, nothing in that case which warrants departure from the previously established principles which govern an appeal against the exercise of a judicial discretion and which have been enunciated and recognized in a number of decisions of the High Court. For present purposes, it suffices to quote the

comments of Dixon, Evatt and McTiernan JJ. in House v. The King

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution

• for his if it has the materials for. doing so. It may 'oe tnot appear how the primary judge has reached the result embodied in his order, but,-if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature. of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact .occurred".

(See also, for example, Lovell v. Lovell (1950) 81 C.L.R. 513 at

pp. 518-519; Australian Coal and Shale Employees Federation v.

The Commonwealth (1953) 94 C.L.R. 621 at p. 627; Roaers v. Rogers

(1965-66) 114 C.L.R. 608 at pp. 619-620; Power v. The Queen

(1974-75) 131 C.L.R. 623 at pp. 631-632; Gronow v. Gronow [1979] F.L.C. 78,844 at pp. 78,848f, 78,852, 78,856, 78,859). Those principles are of particular importance where, as at present, the relevant exercises of judicial discretion were made in the course of the actual conduct of proceedings at first instance and related to matters of practice and procedure. I propose to apply them in

Paragraph 5 of the amended Statement of Claim reads as

"By agreement in writing dated 30th May, 1979 the

• respondents entered into a contract, arrangement or understanding, hereinafter called "the agreement". A

copy of the agreement as appears on the public Register of the Trade Practices Commission of the Commonwealth

The proposed amendment to the paragraph consisted of the addition, to the end of the first sentence of the paragraph, of the words "together with the necessary consequences of the performance of the respective provisions of the agreement which were in the

The transcript of the proceedings before Brennan J.. in relation to this proposed amendment, has been placed before us. That transcript reveals that the basis upon which the proposed amendment was propounded was, in the words of senior counsel then appearing for the ABC, "simply that it is an alternative method of pleading the case to give legal emphasis to the difference between entering into the agreement and the contemplation of the parties at the time they entered into the performance of the respective provisions of the agreement". Brennan J, was informed that there were no particulars which the ABC was able to provide in addition to those which had already been furnished in relation to the

In these circumstances, it is scarcely surprising that his Honour refused leave to make the proposed amendment. Indeed, as a matter of language, it is somewhat difficult to give precise meaning to the words which were proposed to be added to the end of the first sentence of paragraph 5. Literally, the words amount to a statement that "the agreement" consisted both of an agreement in writing and the contemplated necessary consequences of "the agreement's" own performance. There is both ambiguity in the use of the word "necessary" and difficulty in seeing "consequences of the performance of the respective provisions of the agreement" as in themselves constituting part of that agreement. Quite apart from such ambiguity and difficulty, the search for consequences, and therefore the identification of ."che:' agreement", could, theoretically, be a never-ending spiral process. In a situation where his Honour was informed that the proposed amendment, in the view of the ABC, added nothing of substance to the already amended statement of claim and where the ABC's inability to provide particulars was expressly acknowledged, it would have been unfair

to have allowed the amendment and thereby required the respondents

It should be noted that, on the hearing of the appeal, senior counsel for the ABC indicated that one purpose of the amendment was to encompass an allegation that the parties to the agreement contemplated or intended that for the first three years

at least of the agreement the ABC would be excluded from

-8- television rights in respect of the relevant cricket matches. No mention of the proposed amendment being intended to embrace that allegation was made to his Honour. Nor, indeed, is the wording of the proposed amendment really apposite to allege it. In the circumstances, this specification, on appeal, of a particular purpose to be served by the proposed amendment does not establish

any error on his Honour's part in having refused to allow it.

It follows that the attack upon Brennan J's refusal to allow the amendment to paragraph 5 of the amended statement of claim has not been made good. The ABC's appeal, in so far as it relates to that refusal, should be dismissed. This will not preclude the ABC from applying to the trial judge for leave to amend paragraph 5 of the amended statement of claim in a manner which will ensure that the paragraph encompasses any specific

"18A. By making and giving effect to the agreement, the respondents, or each or any of them, have engaged in conduct constituting a breach of s.45D of the Act.

(a) The members of the Board, or each or any of them, in concert with one another and with the fifteenth to seventeenth respondents or each or any of them, have made and given effect to the agreement in the manner contemplated by the parties thereto, thereby hindering or preventing the supply of services by first-class cricket players, umpires for first-class cricket matches and television

commentators for first-class cricket matches to the

sixteenth respondent (a corporation) with the purpose and with the effect or likely effect of substantially lessening competition in the markets for

(ii) the services of umpires for first-class cricket matches;

(iii) the services of television commentators for first-class cricket matches.

(b) Alternatively to (a), the fifteenth to seventeenth

respondents or each or any of them, in concert with the members of the Board or each or any of them,

have made and given effect to the agreement, in the manner contemplated by the parties thereto, thereby hindering or preventing the supply of services by the persons referred to in (a) above to the sixteenth respondent (a corporation) with the purpose and with the effect of substantially lessening competition in the markets referred to in (a) above". The ground upon which. Brennan J.: refused the application to add the new paragraph: was that, as particularized, the proposed allegations did not involve any contravention of the provisions of s.45D of the Act and were incapable of founding any claim for relief. It is common ground that the particulars should be treated as part of the proposed new paragraph. Indeed, without them the proposed new paragraph would be completely uninformative and would scarcely permit of meaningful pleading on behalf of the respondents in that, as a matter of permutation and combination,

it would consist of millions upon millions of breaches of s.45D

"a person shall not, in concert with another person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation «es, Or the acquisition of goods or services by a third person from a corporation ... where the conduct is engaged in for the purpose, and would have or be likely to have the effect of causing -

Cee ese esasroeoHneeeecsaceadee ee TODD LOS MOO EHH BROMO DDFOBDeODOOS

{b)a substantial lessening of competition in any market in which the corporation ... supplies or acquires goods or services".

The reasons which led Brennan Jd. to reach the conclusion

that the allegations did not involve a contravention of s.45D(1) of the Act appear from the following extract from his ex tempore

" Section 45D(1)>refersrio four persors: those who in concert: engage in conduct, a third person who supplies or acquires goods ot services, and a corporation to whom the third person supplies or from whom the third person acquires the goods or services. It is the conduct in which the first two persons engage which hinders or prevents the supply of goods or services by the third to the fourth person.

The kind of conduct to which the section is directed is not the termination of supply by the will of the person being supplied, for that is not consistent with the notion of hindering or preventing. To hinder or prevent a supply connotes conduct to which the relevant corporation is not a willing party. The section is not therefore directed to conduct engaged in in concert with the relevant corporation. Yet that is the allegation which the proposed paragraph 18A would make."

The actual cessation of supply or acquisition of goods or services is commonly the object and can represent the

culmination of conduct in breach of s.45D of the Act. The conduct

-l1l- hindering or preventing supply or acquisition to which the section refers can be engaged in by threat and verbal intimidation as well as by physical interference with the actual activities. The fact that the supplier or acquirer of goods or services is a party to the actual cessation of supply does not preclude the activities of others involved in the cessation from amounting to their engaging in conduct in concert of the type proscribed by the section. The section does not however include the actual supplier or acquirer of the services as one of the relevant parties to the conduct in eoncert and it is in that sense that I read the above comments of Brennan J. as to the construction of s.45D(1) of the Act. So

fo the extent to which the alternatives aileged in the proposed "particulars" include action in concert by or with the sixteenth respondent, they involve departure 'from, and apparent misunderstanding of, the elements of a breach of s.45D. To the extent to which the alternatives include alleged action in concert by only the sixteenth respondent with one member of the Board and alleged action in concert by only one member of the Board with the sixteenth respondent, some of the alternatives alleged could not

It is, of course, true that some of the alleged alternatives do not involve action in concert by or with the

sixteenth respondent. Both paragraphs of the particulars referred

to "the fifteenth to seventeenth respondents or each or any of them". This encompassed the possible alternatives that both or either of the fifteenth and seventeenth respondents were involved, to the exclusion of the sixteenth respondent, in the alleged

action in concert. Senior counsel who appeared for the ABC on the hearing of the appeal indicated one way in which the ABC intended to put its case under the proposed paragraph 18A, which would exclude the sixteenth respondent from the role of a participant in the alleged action in concert hindering or preventing the supply of goods or services to or by it. The position remains, however, that some of the alleged alternatives particularized in the proposed paragraph 18A (i.e. those where the only alleged parties to the conduct are the sixteenth respondent and one other respondent) would not involve any breach of s.45D and others (statistically the majority) involve, as a-party, the sixteenth respondent who is not a relevant party to it in so far as the elements of a breach of the section are concerned and whose alleged involvement as a party to the conduct would, if it were the instigator of the conduct or a truly voluntary party to it, indicate that no breach of the section was in fact involved. As against each respondent, the proposed amendment would, on any approach, consist of no more than an allegation that he or it may

or may not have engaged in conduct in breach of the section.

In the circumstances, it would, in my view, have been a mistaken exercise of his discretion for his Honour to have allowed

The appeal from his Honour's refusal to allow the amendment to the amended statement of claim by adding the proposed paragraph 18A should be dismissed. This will not preclude the ABC from applying to the trial judge for leave to amend the statement of claim by the addition of specific allegations of fact which, if

established, would, as distinct from might, involve contravention

Parts of the agreement were already in the public domain

having been placed by the Trade Practices Commission on its public

. register. - The dispute as to confidentiality -related to those

Parts of the agreement which had not been -so disclosed. The published portions of the agreement provide, inter alia, for the appointment by the Board of one -of the corporate respondents (P.B.L; Sports Pty. Limited) as promotor of the Board's cricket programme and the grant to P.B.L. of the exclusive right, for a term of 10 years, to arrange for televising of international and inter-State cricket matches under the auspices of the Board and for sponsorships and the merchandizing and marketing of associated goods and services. The clauses of the agreement for which confidentiality is claimed, prescribe and regulate the financial remuneration payable to the Board for the rights granted by it under the published clauses and deal with other financial matters

Two separate questions are involved in the appeals relating to confidentality. The first concerns restricting the persons to whom access to the relevant parts of the agreement should be given upon production of the agreement to the ABC. The second concerns the issue whether, upon the agreement being

admitted into evidence in the proceedings, an order to maintain

confidentality should be made pursuant to s.50 of the Federal

Court of Australia Act 1976. Plainly, if no order is to be made

pursuant to s.50 preventing the relevant parts of the agreement from being available to the public generally upon its being admitted into evidence, there will be little point in imposing restrictions upon the persons to whom those parts of the agreement ean be shown on behalf of the ABC. ff shall therefore deai first with the question whether Brennan J. was in error in his decision

Section 50 of the Federal Court of Australia Act, 1976

"The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth".

Publicity "is the authentic hallmark of judicial as

distinct from administrative procedure" (McPherson v. McPherson

[1936] A.C. 177 at p. 200 quoted by Gibbs J., Russell v. Russell

-15- (1976) 134 C.L.R. at p. 520). The provisions of s.50 neither

require nor warrant the Court's abandoning, as its prima facie approach, the ordinary common law rule that justice should be

administered in public and that there should be public access to the evidence placed before the Court in public hearing. What the section (like s.17(4) which empowers the Court to sit in camera) recognizes is that there are occasions where the administration or interests of justice will make it desirable that there be a

departure from the ordinary principle of the public administration

The general terms in which the statutory power to restrict access to evidence: is couched make it unnecessary to consider whether, at common law, a courte ic: enpowered to sit in camera -or to restrict -access -to- evidence whenever the administration or interests of 'justice make it desirable so to do or whether, in the absence of statutory authority: such power exists only in well- defined and exceptional cases (see R. v. Tait

(1979) 24 A.L.R. 473 at pp.487-491 and cf. Attorney-General v;

Leveller Magazine Ltd. & Ors. [1979] 2 W.L.R. 247 at pp. 258 and

271). Plainly, the Court is empowered by s.50 to restrict public access to evidence whenever, on balance, the avoidance of prejudice to the administration of justice makes it necessary that such a course be adopted. It would be unwise to confine the width of the discretionary power conferred by the section by attempting to specify or categorize in advance the circumstances in which its

exercise would be justified. It is, however, desirable to make

-16- some general comments as to the considerations which should guide the Court when called upon to make an order pursuant to the

The prejudice to which s.50 refers is plainly overall prejudice and the question whether an order should be made pursuant to the section will ordinarily involve the weighing of conflicting factors and considerations. In every case, one starts with the prima facie rule that the proceedings of the Federal Court should 'be conducted in open court with public access to the evidence. The whole point of the section is, however, to confer a broad discretionary 'power to depart from this prima facie rule and the weight to be given, as a factor in the weighing process, to the prima facie desirability of the open administration of justice will vary from case to case according to the nature of the case and the materiality of the evidence. Public confidence in the administration of justice is, 'for example, unlikely to be significantly impaired by an order for confidentiality if the case is a civil one in which no issues of general public interest or of status are involved and if the evidence in respect of which

confidentiality is granted can be readily perceived to be of

little materiality to the outcome of the proceedings. The fact that the case is one in which the relevant evidence is of real materiality to the outcome of proceedings of general public importance will not however be the end of the matter. Indeed, the public importance of the case may provide grounds for concluding

that the widened publicity that could be expected from disclosure

-17- would involve greater prejudice to the administration of justice

than would otherwise be the case. In every case, the advantages and disadvantages of an order under s.50 must be weighed for the purpose of determining whether, on balance, the making of an order is warranted by the need to prevent prejudice to the

The common law principle that justice be administered publicly in open court is not only of general importance to the

proper administration of justice (see, for example, Scott v. Scott

[1913] A.c.: 417 at pp. 477-8; Russell v. Russell (1976) 134

C.L.R. 495 at p. 520).°> It is o£ particular importance to the actual - parties -to -litigation. tt is the prima facie right of every litigant to have the -proceedings im which he is involved conducted with 'the benefit -of the spur- to exertion and the safeguard against improbity, .arbitrariness and idiosyncrasy which

their being-open to pubbic scrutiny imparts (see Scott v. Scott,

supra at p. 477 and Attorney-General v. Leveller Magazine Ltd. &

Ors., supra at p. 252). The relevance of whether the other party

to the litigation consents -to a departure from the ordinary principle of the open administration of justice under the common law has long been recognized (see, for example, Andrew v. Raeburn [1874] 9 L.R. Ch. App. 522 at p. 523). In considering an application for an order for confidentiality under s.50, the weight to be given to the prima facie desirability of the evidence in proceedings before the Federal Court being open to the public

may vary according to whether the other party to the litigation

opposes, or consents to, the making of the order sought. This is not only because an order under s.50 will affect. the prima facie right of the litigant that the evidence in his particular case be open to public scrutiny. It is also because there is less likelihood of damage to public confidence in the administration of justice if an order for confidentiality is made in circumstances where the parties to the litigation are agreed that the order should be made, than if such an order is made in circumstances where the other party or parties protest against -the relevant

In some cases, the prima facie right of the individual litigant to open justice within the courtroom may be of heightened importance -becauwse-of the. nature of 'the proceedings: in, 'tor example, proceedings for defamacion where 'the vindication of reputation may be more important to the plaintiff than the solace of pecuniary damages, the plaintiff may have a special interest in ensuring that it is apparent to the public that all the evidence is open to public scrutiny so as to ensure that the proceedings which were legitimately regarded as a vehicle to clear his name cannot be wrongly seen as indicating that there is secret material which might tend to confirm the blackening of it. It is conceivable that in proceedings such as those involved in the present case, where allegations of conduct in contravention of the Trade Practices Act are involved, the party against whom allegations are made, might likewise have a particular interest in

ensuring that the whole of the evidence which the applicant is

-19- able to lead in support of the allegations is seen to be open to public scrutiny and assessment. In such a case, the opposition of the relevant party to the making of an order for confidentiality will plainly be of added weight in the decision as to whether such

The above are -some of the factors which may tend to weigh against the making of an order under s.50 af the Act. Their relative importance in the weighing process will plainly vary from 'case to case.- The same can be said of the -factors which are liable to be present and to support the making of such an order.

I turn to the-consideration of some of those factors.

nye "There lies at the heart of om tegak cystem the ideal of the attainment of Justice under the-lhaw-tu-cthe. undividual case. Justice can be denied as mush by effectively closing the doors of che courts to litigants as it cam by an unjust or wrorg decision. The results of an undue discounting of iegitimate claims to confidentiality are likely to be both the deterrence of the subject from, having recourse to courts of 'justice for the vindication of legal rights or the enforcement of criminal law and the discouragement~ of willing co-operation on the part of witnesses whose evidence is necessary to enable the ascertainment of truth, The interests of the administration of 'justice plainly make it desirable that obligations of confidence be not lightly

overruled and that legitimate expectations of confidentiality as

to private and confidential transactions and affairs be not

In some cases, where publicity would destroy the subject matter of the litigation, the avoidance of prejudice to the administration of justice may make it imperative that the ordinary prima facie rule of open justice in the courtroom gives way to the overriding need for confidentiality. Even where publicity would not destroy the subject matter of the litigation, the need to respect legitimate claims to confidentiality will be a factor - and in some cases a' determining- factor - to be placed in the overall balance in considering whether an order under s.50 should be made. Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance. of prejudices, to the general administiation of justice. 'er by the -Leqitimate claims and expectations of other individuals. When net so warranted, such damage or hardship is to the overall prejudice of the

The decision whether an order under s.50 should be made will be the outcome of a balancing. process in respect of which there will commonly be room for differences of opinion as to the weight to be attached to particular factors to be placed in the balance and, in the result, as to the precise outcome of the process itself. It is a decision that will ordinarily need to be made in the course and in the atmosphere of the particular

proceedings. It will involve an assessment of a multiplicity of

factors including the importance which the relevant evidence will play in the actual conduct of the particular proceedings and, in some cases, an assessment of the degree and nature of the publicity which is likely to follow a refusal to make an order. It is a process which may need to be repeated on a number of occasions in the course of particular proceedings in that the perception of the importance of the particular evidence to the result and understanding of the proceedings may vary, as the case proceeds, to an extent that an order for confidentiality which was ,justified,.on balance, at the time it was made can no longer properly be sustained. The decision whether an order should be made undér s.50 is a decision as to practice and procedure entrusted to the discretion of the judge hearing the proceedings. The primary concérn .cf members of an appeitere caurt in ieviewing the exercise of that discrebion ts not whether): 4c the discretion had been entrusted to them, they would have exercised: it in the same way: Tt is whether the discretion exercised by the judge to whom it was entrusted has miscarried by reason of explicit or

It was submitted, on behalf of the appellants in the two

appeals on this issue, that his Honour did not, in truth, engage in any weighing process at all but treated the "principle of open justice" as being necessarily paramount and therefore determinative of this issue. In support of that submission, emphasis was placed on a statement in his Honour's judgment to the

effect that the principle of open justice was "of the greatest

-22- importance", and to a paragraph in which he referred to "no harm being done" if an order under s.50 is made where the confidential matter is "of minor importance" and "the loss of confidentiality is a grave matter for the trader". These indicated, so it was said, that'Brennan J. "apotheosized" or "placed on a pinnacle of irrefragable significance" the "notion that judicial proceedings must be in all circumstances conducted in the full gaze of publicity". If: this criticism of his Honour's 'judgment had been made good,, it would, in my view, have indicated error on his part.

It is apparent from his Honour's judginent- that he fully recognized that ne was engaged in a process of: weighing

• conflicting factors to determine-wherher an urdei" under s.50 was warranted' inv-akl the circumstances -of. thd - cases fne-use ot the phrase "of the greatest importance". in its context, was plainly

intended in the sense of "very great" rather than as indicating a pre-judgment of the relative weight to be attached to the general principle of: open justice. The example of a confidential matter of minor importance was proferred as an example of a case where an order under s.50 would "no doubt" be warranted. The care which his Honour devoted to the assessment of the likely importance, to the proceedings, of the relevant parts of the agreement and of the disadvantages which public disclosure would involve for the respondents makes plain that he did, in truth, engage in the

overall exercise of determining the weight which, in his opinion,

should be given to the various factors and considerations which he

thought were relevant to the determination of whether an order for confidentiality was necessary to prevent prejudice to the administration of justice. His ultimate decision that it was not was stated, in clear terms, to be the result of weighing the serious consequences to the respondents which were liable to flow €rom loss of confidentiality against his assessment of the likely prejudice involved in a departure from the principle of open justice in the courtroom in the particular circumstances of the

It is clear that his Honour accepted and appreciated the full effect of the evidence placed before him as to damage to the vespondents which was liable to flow from exposing the relevant parts, of the agreement to public scrutiny. Hie summarized the effect of that evidence in the feilowing -extract from his

",;>,ethe dissemination of the contents of the confidential -parts of the agreement will, according to the evidence, seriously weaken the negotiating strength of the Board and may well require the respondents to reconsider their adherence to the agreement".

He added that "to justify refusing an order, there must be very grave considerations put into the other side of the balance". Implicit in that statement and in the overall weighing process was recognition and acceptance of the fact that particular prejudice or damage to the respondents was a relevant consideration in the

determination of the general question whether an order under s.50

was necessary to prevent prejudice to the administration of

It is apparent that Brennan J. treated the prima facie rule that 'judicial proceedings should be fully open to public scrutiny as being of Fundamental importance to the administration of justice under the common law. This view enjoys the support of a great body of judicial opinion and is not excluded by the provisions of s.50 which proceeds on the basis that the prima facie rule shall operate unless the avoidance of prejudice to the administratton of -justice makes departure from it necessary. I am unpersuaded that in adopting and appiying that view 'his Honour fell into any error which would' warrant the interference of an

uf .- fo wasualso..argiied that TBrennansu's -ass@ssment of the prejudice to the administration of justice which would Flow from an order for confidentiality was affected by error as to the materiality to the praceedings of the confidential parts of the agreement. Those parts:of the agreement were said to be relevant only because they were part of an agreement of which other parts, in respect of which no claim for confidentiality.was made, were relevant. In themselves, they were 'immaterial to the proceedings and the understanding of the issues involved in them. The ABC joined issue on this submission and a considerable part of the argument on the appeal was concerned with the question of the extent to which the confidential parts of the agreement would

prove material and important to the understanding of the forensic

-~25- contest and the ultimate resolution of the issues involved in the proceedings. The resolution of this argument at the present stage must, to no small extent, depend on speculation. Plainly, the argument before Brennan J., proceeded in similar vein and his Honour's assessment of the importance and materiality to the proceedings of the relevant parts of the agreement was, of

Brennan J's conclusion was that the relevant parts of

the agreement were not only material to some of the issues but that "assuredly the whole agreement will be canvassed and the applicant will seek to relate the contents of each part of the agreement to the issues to be decided": Examination of the issues 'between. the parties,.~particularly. the:issues involved in the alleged effect or likely effect of the agreement upon-competition, would tend to confirm that the relevant parts of the agreement may well prove 'material to.some of the matters which will be in issue upon the hearing, In so far as his Honour's assessment of the applicant's likely use of the relevant parts of the agreement is concerned, genior counsel who appeared for the applicant on the hearing of the appeal assured us that his Honour's assessment was, as he currently saw- the position, an accurate statement of the manner in which he anticipated the applicant's case would be presented. It may well be that the relevant parts of the agreement will, in the event, prove to be of markedly less significance than his Honour anticipated. There is not however,

at this stage of the proceedings, any ground for holding that, to

-26- the extent to which it was necessary to anticipate the future course of the proceedings, his Honour's assessment of the materiality or importance of the relevant parts of the agreement

will necessarily, or even probably, prove to be mistaken.

One question which has caused me more than ordinary difficulty in these appeals is the question whether Brennan J. was in error in-declining to preserve confidentiality, by an order under: s.50- until a later stage.of the proceedings: when the

-impurcance: of the' vonfidential" parts of the' agreenient to the overall proceedings could be more clearly perceived. It may be that, for one: reason or another, the proceetiinys will come to a premature end. '°"TIt may, be that, -in the evenc, the detailed

| Frnancial- provisions: foirviich: conmikdensialttur-ts swiaimed t7i11

prove to, we' ofslitite- significance orn the -preseuta 'resolution of:.the cases .As his' Honour -tound; maintenance of confidentiality was of great importance to che respondents and there needed to he "verv grave considerations" to-be put into the opposite side of the balance before a refusal of an order pursuant to s.50 would be justitied. To vefuse an order under s.50 at this early' stage of the proceedings will irrevocably destroy the confidentiality of the agreement and, on his Honour's findings, "may well require the respondents to reconsider their adherance to the agreement"., Plainly, there are some grounds for arguing that the administration of justice would be better served by preserving confidentiality on an interim basis, by an order under s.50. On

the other hand, it would seem that the course of the argument

-27- before Brennan J. was such as to indicate that all parties approached the issue of confidentiality on the basis that it called for final determination at this stage. There are obvious procedural advantages, in so far as the overall proceedings are concerned, in adopting that course. In all the circumstances, I am unconvinced that his Honour's discretion miscarried by reason of his dealing with the matter on the basis upon which all parties were content for it to be determined; that is to say, by attempting in advance to determine the probable 'materiality and importance of the- confidential' parts of the agreement to the

Ultimately. I find myself unable to identify any error of principle or mistake ox avksappreheisiou of fact :in'''srennan J's identification and -assassment of the.'factors: which were relevant to be taken into account in determining whether an order should be made pursuant to' s.50. It is possible that my own assessment of the relevant importance of those factors may have been different from his Honour's if, left'to myself, I were required to assess and weigh them one against another. That is not-however the

question for us on this appeal (see, Gronow v. Gronow, supra, at

pp.78,849£, 78,859). The question for us ig whether his Honour's exercise of the discretion entrusted to him has miscarried by reason either of identifiable error or because the result is unreasonable or so plainiy wrong or unjust that it should be inferred that there has been a failure properly to exercise it.

As I have said I am unable to identify any relevant error on his

Honour's part. Nor, in my view, can it properly be said that the result which his Honour reached is unreasonable or wrong or unjust.

I would accordingly dismiss the appeals in so far as

they relate to Brennan J's refusal to make an order pursuant, to

s.50. It was not suggested, on behalf of the appellant, that in the event that no order pursuant to s.50 was to be made, some restriction should be placed on the persons permitted to inspect the' confidential parts of the agreement on behalf of the ABC. In a context where the refusal of an order under s.50 will result in the whole agreement being open to public scrutiny, it is obvious that no such restriction should be imposed. It should be noted that an objection to production of the agreement on the ground that such production might tend tq render the respondents fabre to a penalty, which had been taken before Brennan J., was

In the result, I would dismiss all three appeals. I

would arder that the appellant or appellants in each appeal pay

the costs of the respondent or respondents of that appeal.

i certify that this and the preces'ing peass Bre 8 [rue copy of the reasons for Judgwent herein of