Re: AUSTRALIAN BROADCASTING COMMISSION; P.B.L. MARKETING PTY. LIMITED & ORS.; ROBERT JAMES PARISH & ORS. And: ROBERT JAMES PARISH & ORS.; AUSTRALIAN BROADCASTING COMMISSION (1980) 43 FLR 129 Nos. G13, 14, 15 of 1980 Trade Practices - Appeal - Practice
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Bowen C.J.(1), Franki(2) and Deane(3) JJ.
CATCHWORDS
Trade Practices - Agreement claimed to contravene the Act - Confidentiality claimed for certain parts - Order 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 undertakings being given.
Trade Practices - Agreement alleged to contravene s. 45 - Confidentiality claimed for certain parts - Order prohibiting publication and restricting inspection refused - Trade Practices Act 1974 (Cth), s. 45A.
Appeal - Function of appellate court - Ambit of discretion - Order prohibiting publication and permitting inspection to certain persons upon undertakings given - Federal Court of Australia Act 1976 (Cth), ss. 17, 50.
Practice - Statement of claim - Application to amend - Leave to amend refused by primary judge - Appeal - Whether proposed amendments ambiguous - Whether proposed amendments added substance.
HEADNOTE
The Australian Broadcasting Commission ("the A.B.C.") instituted proceedings in the Federal Court of Australia against the members for the time being of the Australian Cricket Board ("the Board") and three corporations ("the Corporations"). In the proceedings the A.B.C. sought certain relief for alleged breaches of the provisions of the Trade Practices Act 1974 ("the Act") in relation to a written agreement between the Board and the Corporations dated 30th May, 1979. In the course of the proceedings the court refused to allow the A.B.C. to amend the already amended statement of claim in two separate respects. The A.B.C. appealed to the Full Court of the Federal Court of Australia against this decision (appeal No. G13 of 1980). On the 18th February, 1980, the primary court decided further that the A.B.C. should be granted unrestricted access to certain parts of the agreement which were claimed to be confidential and 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. Appeals were lodged against the two last-mentioned decisions by the Board and the three Corporations (appeals Nos. G14 and G15 of 1980). The three appeals were heard together and disposed of in a single judgment.
Held: Per curiam - The appeal in matter G13 should be dismissed with costs because: (1) The proposed amendment to par. 5 of the amended statement of claim was ambiguous and added nothing of substance.
(2) The proposed addition of par. 18A would have had the effect of alleging…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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 ((1980) 43 FLR 129)
Case
[1980] FCA 40
Decision Date
CaseChat Overview and Summary
The Australian Broadcasting Commission (ABC) appealed against decisions made by the Federal Court, challenging the orders that restricted the inspection and publication of certain parts of an agreement. The respondent, Parish, argued that the confidentiality of certain clauses should be maintained, and the court was required to decide whether the confidentiality claims were justified and if the restrictions on publication and inspection were appropriate. The ABC contended that the agreement contravened the Trade Practices Act and sought broader access to the agreement for scrutiny.
The court examined whether the confidentiality claims were valid and whether the restrictions on inspection and publication were justified. It held that the claims of confidentiality were not sufficiently substantiated and that the restrictions were overly broad. The court found that while certain parts of the agreement could be considered confidential, the restrictions imposed were not necessary and went beyond what was required to protect legitimate confidentiality interests. The ABC was granted permission to inspect the agreement under certain conditions, and publication of the confidential parts was strictly prohibited.
In conclusion, the appeals were allowed, and the orders restricting inspection and publication were set aside. Specific named members and officers of the ABC, along with legal advisers and experts, were permitted to inspect the agreement under conditions ensuring confidentiality. Publication of the confidential parts was forbidden until further order. The respondent was ordered to pay the appellants' costs associated with the appeals and the proceedings before the trial judge.
Orders
Orders of the court
Appeal in Matter No. G13 of 1980
THE COURT ORDERS that the appeal be dismissed with costs.
Appeals in Matters Nos. G14 and G15 of 1980
THE COURT ORDERS:
1. That the appeals be allowed.
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 provisions of this order.
4. 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 agreement 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.
5. That the respondent pays to the appellants their costs of the appeals.
6. 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 1980 from which the appeals have been brought.