In the language of the Deed, the "Nine Parties" were various people connected with Channel Nine, including people whose connection related to the television broadcast in question. The "Agreed Statement" was a statement, the text of which was set out in the Deed, that set out the terms in which the parties to the Deed agreed they would make public disclosure relating to the Deed. The text of the Agreed Statement was:
"The proceedings between the parties have been settled. The terms of the settlement are confidential."
105 The "NRMA Proceedings" was defined as meaning the Supreme Court proceedings from which this present appeal is brought, and these present appeal proceedings.
106 One of the terms of the Settlement Agreement was that Mr Whitlam would file in the District Court proceedings a Notice of Discontinuance in the following terms:
"1 The Plaintiff discontinues these proceedings.
2 Each party on whom the originating process has been served and each party who has been joined in the proceedings consents to the discontinuance.
3 No order as to costs."
107 Another term of the Settlement Deed was for each party to the District Court proceedings to consent to the filing of a Notice of Discontinuance in those terms. The "purpose contemplated in Clause 2.3" is the filing of the Notice of Discontinuance.
108 When the terms of settlement were being negotiated, Mr Whitlam's solicitors disclosed the terms being discussed from time to time to NRMA's solicitors, on the basis of an express undertaking that both NRMA and those solicitors would not disclose the contents, and would use the contents only for the purpose of deciding whether to give a consent under Clause 2.4 of the Deed. Once the Settlement Deed was executed, Mr Whitlam's solicitors offered to disclose it to NRMA upon receipt of a written undertaking, in a form drafted by Channel Nine, that embodied, with appropriate grammatical changes, the five undertakings set out in Clause 4.3(a)(i)-(v) of the Settlement Deed. NRMA was provided with a copy of that Deed when the undertakings were given.
109 A day or two before the appeal was listed, members of the Bench were provided with a written submission by Mr Whitlam's counsel that disclosed that a confidential settlement of the defamation proceedings had been arrived at, that Mr Whitlam, with the consent of NRMA, proposed to adduce evidence of that settlement in the appeal, and that the fact that the settlement had been reached had certain consequences for the appeal, including that some issues raised by the cross-appeal were rendered moot. The evidence relating to the settlement was not filed, nor was it made available to members of the Bench on an informal basis for pre-reading.
110 When the hearing of the appeal began, Mr Gleeson SC requested the Court to make the following orders:
"1 The Court be closed to all but the legal representatives of the parties for argument concerning the confidential exhibits to the affidavit of Timothy Randolph Price sworn 27 February 2007 ( Confidential Exhibits ) and any issues arising from those exhibits.
2 The Confidential Exhibits be marked confidential, and not to be disclosed to any person without the leave of a judge of this Court, other than those persons referred to in Order 1 above.
3 The legal representatives of the Appellant shall:
3.1 not disclose or discuss the contents of the Confidential Exhibits in open Court;
3.2 only use the contents of the Confidential Exhibits for the sole purpose, and only to the extent necessary, for these proceedings or Supreme Court proceedings number 50185 of 2004;
3.3 not disclose the contents of the Confidential Exhibits to any other person or entity."
111 The Confidential Exhibits were the Settlement Deed, and correspondence between solicitors in the course of its negotiation.
112 The members of the Bench retired to consider whether the orders requested by Mr Gleeson would be made. The order the Court made, following that retirement, was:
"1. The Confidential Exhibits be marked "Confidential", and be marked, "not to be disclosed to any person without the leave of a judge of this Court, other than the parties' legal representatives."
2. The legal representatives of the appellant shall:
(i) only use the contents of the Confidential Exhibits for the sole purpose, and only to the extent necessary, for these proceedings, or Supreme Court proceedings 50185 of 2004.
(ii) not disclose the contents of the Confidential Exhibits to any other person or entity
without the leave of a Judge of this Court."
113 The proper construction of the first order the Court made is that it relates to the manner in which the Court's copy of the Confidential Exhibits is kept, and who can inspect them.
114 The rationale for refusing the first order that Mr Gleeson sought was that the Court saw no reason, even on an "until further order" basis, to require the Court to be closed, as it was perfectly possible for counsel to refer to the Deed in terms that did not disclose any aspects that were commercially sensitive. The rationale for refusing order 3.1 sought by Mr Gleeson was that it was not clear what would be involved in "discussing" the contents of the exhibits in open court, and it was at least arguable that an order in those terms might prohibit even the mention of the fact that there had been a settlement - a matter that, in light of the contents of the Agreed Statement, was not intended to be confidential.
115 Both parties were invited to make submissions about whether it was appropriate to maintain the orders that had been made concerning the Confidential Exhibits. A solicitor for Channel Nine attended court during the appeal, and was heard, and invited to make written submissions within 7 days on the topic of whether the orders should be maintained. NRMA made no submissions on that topic. Mr Whitlam submitted that the orders should be maintained. Channel Nine did not avail itself of the opportunity to make written submissions.
116 It is a fundamental principle that the administration of justice takes place in open court: John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465. That rule is not invariable, but it is departed from only for powerful reasons. The Court's protective jurisdiction concerning children and the mentally impaired is frequently exercised in closed court -but the Court's jurisdiction in such cases is not solely, and is sometimes not at all, one involving the more usual role of a court of deciding issues disputed between people with no impairment of legal capacity (cf Scott v Scott [1913] AC 417 at 437. Another departure from the usual rule relates to litigation seeking to protect the confidentiality of confidential information, when there is a threat to that confidentiality - concerning that sort of litigation, justice could not be achieved if it was on terms of destroying the subject matter of the litigation (Scott v Scott ibid, p 451). The present is not such a case, because everyone that has had access to the Settlement Deed, apart from the Court, is bound by an undertaking of confidentiality concerning it, and there is no threat by anyone to breach that confidentiality.
117 The present case involves how the Court should deal with information that is confidential, where one of the people entitled to the benefit of the obligation of confidence is not a party to the litigation. It is common enough for confidential documents to be obtained on subpoena from a non-party. The court's practice in dealing with such confidential documents can provide a guide to the sort of orders it should make concerning the confidentiality of the Confidential Exhibits.
118 Whenever any documents are obtained on subpoena from a non-party, the three steps identified by Moffit P in National Employers' Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at 381 are involved in obtaining and later using the documents:
"The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."
119 When one gets to the second step in this process, Moffit P said, at 383:
"At this point documents are in the control of the court, pursuant to the valid order of the subpoena. As pointed out in Small's case ((1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215) at this time the witness may state he objects to their being handed to the parties for inspection. If he states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other. Indeed, no doubt, he will normally defer inspection by a party who has not issued a subpoena until his opponent has an opportunity to use the documents in cross-examination. There may be good reason why he may, or indeed should, refuse inspection of irrelevant material of a private nature, concerning a party to the litigation, or, concerning some other person who is neither a party nor the witness. It may well be that the documents are the property of some institution, but relate to private matters concerning some person and the officers of the institution do not take objection on the basis that the responsibility for disclosure rests with the court. The documents are in its control and are used on its responsibility so far as properly required for the purpose of the proceedings." (emphasis added)
120 If objection is taken to the documents being inspected, on the ground of confidentiality, and there is a prima facie basis for that objection, it is for the person seeking access to make out a case that access should be granted. In deciding whether to grant access, the Court takes into account both the inherent degree of confidentiality of the documents, and also the importance of the role that they might play in the proceedings.
121 If legitimate objection is taken to inspection of the documents, on the ground that they are confidential, an expedient frequently adopted is to permit inspection by legal advisors on the basis that the contents of the documents are not to be disclosed by them, and are to be used only for the purpose of the proceedings. That permits the hearing to advance, with the confidentiality impinged on only to the minimum extent necessary to enable the hearing to proceed. If in the course of a hearing a question arises of whether such a document that has been permitted to be inspected by legal advisers on confidential terms should be tendered, or should be used in cross-examination of a witness, the court decides at that stage whether any, and if so what, restrictions are imposed on the manner in which the oral evidence is taken, or the access that is granted to the exhibit.
122 In relation to those confidential documents that fit within a recognised category of privilege (other than the special "protected confidential relationships" privilege) the law has already made a judgment that the documents fall within a class whose confidentiality is such that the administration of justice must proceed without them: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 133-135; Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501 at 511, 563. In relation to the category of protected confidences established by section 126A-126E Evidence Act 1995, the Court is required, by section 126B, to form a view, at the time such a confidence is sought to be adduced in evidence, about whether it is more important that the confidence be protected than that the evidence be available. The need to form that view at the time of tender of the evidence can influence a judge's decision about whether at any earlier stage to permit inspection of such a document, and if so on what terms: Urquhart v Lanham [2003] NSWSC 109.
123 For confidential information that is not privileged, and not within section 126A-126E, the usual approach of the Court is that, to the extent to which the confidential information is relevant to the conduct of the proceeding, it is more important that it be used in the administration of justice than that the confidence be protected. It is, of course, a matter for the discretion of the trial judge whether to follow that usual course in any particular case that is before him or her. Following that usual course, however, involves deciding what is the extent to which it is necessary for the confidence to be overridden to enable justice to be properly administered, and seen to be properly administered. It may be, in the circumstances of a particular case, that that objective is achieved by having those clauses or pages of a document that are relevant to the decision of the case admitted as an open exhibit, and the balance of the document admitted as a confidential exhibit.
124 If it were the case that Clause 4 of the Deed, on its proper construction, prevented Mr Whitlam from tendering the Deed in evidence, unless the Court agreed to conditions more restrictive of its use than those that the Court in its own judgment saw fit to impose, a question would arise of whether the clause was, to that extent, unenforceable as being contrary to public policy. However, the solicitor for Channel Nine has informed the Court that Channel Nine does not take the attitude that a disclosure to the Court involved any breach of the clause. Thus, that question does not arise.
125 In the present case, those terms of the Settlement Deed that are relevant to the litigation have been identified in the course of this judgment. As well, there are some provisions of the Deed that are in the nature of mechanical provisions concerning which confidentiality could not possibly exist. What might be called the "commercial bottom line" of the settlement - namely, whether any money changed hands and if so how much, and whether any contractual obligations other than relating to the implementation of the settlement itself were entered and if so in what terms - is not relevant to the disposition of these proceedings. Those matters would be disclosed if there were to be unrestricted access to the Settlement Deed, and the solicitors' correspondence concerning its negotiation.
126 The appropriate way, in my view, of preserving the confidentiality of the Settlement Agreement, to the extent that is consistent with the proper administration of justice in the present case, is by making an order in the following terms: