Versace v Monte

Reasons for Judgment on Confidentiality 1 The applicants have sought a confidentiality order against publication in relation to the first respondent's book "The Spying Game" ("the book"), which has been tendered in evidence as exhibit "A" in this proceeding. The details of the claim are itemised in the transcript. The claim for confidentiality covers passages on more than sixty pages of the book and these relate to allegations concerning Gianni Versace and the Versace fashion house and members of the Versace family. It also covers certain passages in the affidavit evidence of the first respondent. 2 When the confidentiality claim was argued, I ruled that the book, as a whole, and certain passages of the 17 October 2001 affidavit of Mr Monte, should be treated as confidential until the ultimate determination of this proceeding. I said that I would give more detailed reasons later. I now give my reasons for reaching the conclusion that this evidence should be treated as confidential until the matter is concluded or until further order. 3 I am satisfied that the allegations and matters in the book which concern the applicant directly or indirectly are an integral part of the book itself and that it is not feasible to segregate out those allegations from the matters which are not so related and make the balance available in any sensible way. Accordingly, the only practicable basis to proceed is to form a conclusion on the book as a whole. The statements in the affidavit material in respect of which the confidentiality is claimed are damaging in character and appear to introduce some new highly prejudicial material not in the book. The confidentiality order does not, of course, mean that, subject to questions of privilege, questions cannot be asked concerning the evidence. The material is in evidence and can be challenged in cross-examination. It is not to be published at this point in time. The areas of confidentiality and privileged material, whilst they intersect to some extent, as in the case of privileged communications, are not co-extensive. 4 Under s 50 of the Federal Court of Australia Act 1976 (Cth) the Court has a broad discretionary power, at any time during or after the hearing of a proceeding in the Court, to make an 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. The touchstone, therefore, is whether the forbidding or restricting of the publication is necessary in the interests of the administration of justice. 5 As pointed out in John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 by McHugh JA, at 476-477: "The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." (Emphasis added) 6 In the later decision of John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131, the President of the Court of Appeal, Kirby P, said, at 141, after referring to exceptions to the principle that there should be public access to evidence and to the identity of witnesses: "The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage its attainment in cases generally … or would derogate from even more urgent considerations of public interest … the rule of openness must be modified to meet the exigencies of the particular case." 7 In the same case, at 161, Mahoney JA said, when considering what was meant by the expression "necessary to secure the proper administration of justice" in the context of the common law: "The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. … The basis of the implication is that if the kind of order proposed is not made, the result will be - or at least will be assumed to be - that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court." 8 Another important consideration in this case is that relief is sought not only in respect of claimed defamation but also pursuant to the provisions of the Trade Practices Act (1974) (Cth) ("the TPA"). The remedies for deceptive and misleading conduct in breach of the TPA are designed to protect the public interest. In this case, that public interest could include the interests of financiers, suppliers, marketing distributors, advertisers, purchasers of Versace products and others who have a legitimate interest in not being misled or deceived as to the conduct or associations of the applicants. 9 In the present case, one principal form of relief sought by the applicants is restraint of the claimed false representations relating to the applicants and Gianni Versace. If the book is made a public exhibit, then the purpose of preventing dissemination of the challenged material will be frustrated because the relevant parts might be published under the privilege which attaches to reports of court proceedings. In order to prevent this undesirable consequence, prior to a final determination of this matter, in my view, it is appropriate having regard to the highly integrated nature of the book for the confidentiality order to include the whole book. Accordingly, in my view, exhibit "A" is properly the subject of an order for confidentiality and restriction on publication. For similar related reasons, the relevant pages in the affidavit material of Mr Monte, identified in the transcript, should also be the subject of a confidentiality order. I certify that the preceding (9) nine numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.