The third respondent's interlocutory application
5 Turning first to s 50, the question is whether it appears to the Court to be necessary in order to prevent prejudice to the administration of justice that an order forbidding or restricting the publication of particular evidence be made.
6 I also drew the parties' attention to rule 6.01 of the Federal Court Rules 2011 (Cth) which provides that if a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that the document be removed from the Court file or the matter be struck out of the document.
7 The evidentiary basis, apart from the contents of paragraphs 114 and 116 of the applicant's Outline of Submissions themselves, was slight. The solicitor for the third respondent deposed to his concern that if those paragraphs were published in open court those matters had the capacity to damage the persons referred to "even though:
5.1 there is no basis for the making of those allegations;
5.2 serious questions of procedural fairness arise;
5.3 the Applicant and his legal representatives have not advanced a basis and have elected not to engage in debate in response to correspondence from the Third Respondent about the issue;
5.4 the matters referred to above are otherwise capable of being dealt with in submissions and by any final judgement."
8 Part of the third respondent's application was that the application itself be heard in closed court. I did not accede to this part of the application and, with some circumspection applied to what was said in open court, it became unnecessary further to consider that issue.
9 Another and related part of the third respondent's application was that, under s 50, the affidavits read, the documents tendered or any written outline of submissions relied upon for the purposes of the interlocutory application also be the subject of an order forbidding or restricting publication. As I understood it, no separate submissions were addressed to this aspect of the relief sought. I therefore deal with it as part of the substantive interlocutory application.
10 Turning to the balance of the application to limit or prevent publication, I am not satisfied that an order under s 50 is necessary: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]-[32]. On the present facts I am not satisfied that the matters complained of in relation to paragraphs 114 and 116 of the applicant's Outline of Submissions, even if made out, fall to be dealt with under s 50. Neither am I satisfied that publication should otherwise be restricted or prevented.
11 I turn to consider the submissions put by the third respondent in support of the balance of the relief claimed on the interlocutory application. I have assumed these submissions were referable to paragraph 3 or paragraph 6 of the interlocutory application but reading paragraph 6 as if it did not contain the words "in open court". I have set out above at paragraph 3 of these reasons the terms of those paragraphs of the third respondent's interlocutory application.
12 The submissions were that paragraphs 114 and 116 of the applicant's Outline of Submissions contained very serious allegations against a witness called by the third respondent which paragraphs caused or could cause great damage to the reputation of the witness where the allegations were not put to the witness; the allegations were without foundation; the allegations were at odds with matters put by senior counsel for the applicant; and the applicant had refused in correspondence to identify the evidentiary basis for the submissions complained of.
13 The applicant submitted that the matters complained of by the third respondent could and should be ventilated in the substantive submissions in the proceeding and that the third respondent displayed oversensitivity in its interlocutory application. The applicant also submitted that the matters complained of were squarely put to the witness.
14 The third respondent did not invoke rule 6.01 and correctly so: the material complained of falls short of the language of that rule which refers to material which is "scandalous, vexatious or oppressive".
15 In my view on the present facts the basic question is whether there has been unfairness. For example, the rule in Browne v Dunn (1893) 6 R 67 has been said to be based upon general principles of fairness, designed to achieve not only fairness to a witness, but also a fair trial between the parties: Bale v Mills (2011) 282 ALR 336; [2011] NSWCA 226. So far as concerns a witness a question is whether some kind of imputation is to be made against a witness.
16 I accept for present purposes that if there is unfairness I have a discretion as to how best to remedy it and one remedy is to preclude the party in default from submitting that the evidence of the witness should not be accepted. The Court may, depending on the circumstances, preclude the party in default from addressing on a particular subject on which the relevant witness was not cross-examined.
17 I have considered exhibits 3R3 and 3R4 and the transcript from pages 2433 to 2454. It is largely this material on which paragraphs 114 and 116 of the applicant's Outline of Submission are based. I also note pages 2262 to 2263 of the transcript where I granted leave to the applicant to further cross-examine the witness in relation to what are now exhibits 3R3 and 3R4.
18 I see no unfairness or other vice in the first sentence of paragraph 114. It is not put on behalf of the applicant that the endorsement there referred to was not passed. As to the second sentence of paragraph 114, in my view this issue was sufficiently put to the witness at pages 2442 to 2444 of the transcript and I am not persuaded that there is any relevant unfairness.
19 The third respondent made submissions about the entirety of paragraph 116. As I read it, the paragraph concerns the quality of the decision-making of the body there referred to. In my view the paragraph does not otherwise have the capacity to damage the persons there referred to, including that body.
20 In essence the complaint on the part of the third respondent comes down to the actual or potential difference between the body endorsing the paper which is now exhibit 3R4, on the one hand, and the witness' unwillingness to answer questions "about confidential information discussions we have within the board" see, for example, transcript page 2448. This is because the matters referred to in paragraph 116 so far as they concern numbers and percentages of horses were put to the witness: see transcript pages 2156-2158 and 2452-2453.
21 Thus the complaint is that it is relevantly unfair for the applicant to make a submission about what the witness disclosed or did not disclose to the relevant body on the basis of his paper, exhibit 3R4, where the witness would not answer questions "about confidential information discussions we have within the board".
22 In my view this does not give rise to any relevant unfairness and the merits or otherwise of the submissions put at paragraph 116 can and should be dealt with by submissions in the ordinary way. The matters relied on by the third respondent do not, in my view, require the intervention of the Court so as to prevent the applicant from putting those matters by reason of unfairness to the witness or between the parties. For completeness I should say that I do not regard the language at the end of the first sentence of paragraph 116 as unfair.
23 For these reasons I refuse the relief sought by the third respondent in its interlocutory application and I dismiss that application. There is no reason why costs should not follow the event and I order that the third respondent pay the applicant's costs of the interlocutory application.