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

Federal Court of Australia|1980-04-02|Before: Deane JJ, Deane J

Trade Practices - Agreement claimed to contravene the Act -

prohibiting publication and restricting inspection refused. Pleading - Amendment of statement of claim.

Appeal - Function of appeal court - - Ambit of discretion under s.50 considered ~- Order made prohibiting publication

and permitting inspection to certain persons upon appropriate

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.

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

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

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

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).

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).

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.

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

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (345 paragraphs)

Cited By (1)