Australian Broadcasting Commission v Parish

[1980] FCA 40

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 Act 1974, ss 45 and 45A;

Federal Court of Australia Act 1976, ss.17 and 50.

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 that each or any respondent may or may not have engaged in conduct in breach of s. 45D of the Trade Practices Act 1974.

House v. The King (1936), 55 CLR 499, applied.

Lovell v. Lovell (1950), 81 CLR 513; Australian Coal and Shale Employees' Federation v. Commonwealth (1953), 94 CLR 621; Rodgers v. Rodgers (1964), 114 CLR 608; Power v. The Queen (1974), 131 CLR 623; Gronow v. Gronow (1979), 54 ALJR 243, referred to.

Per Bowen C.J. and Franki J., Deane J. dissenting - that the appeals in matters G14 and G15 of 1980 should be allowed with costs because the primary judge exercised his discretion upon a wrong principle. Whereas every regard must be had to the desirability of conducting proceedings in open court, it appeared necessary to make orders under ss. 17 and 50 of the Federal Court of Australia Act 1976 so as to ensure in the present case that the appellants would not be seriously prejudiced by the disclosure of the "confidential parts" of the agreement.

House v. The King (1936), 55 CLR 499; Gronow v. Gronow (1979), 54 ALJR 243, applied.

Warner-Lambert Co. v. Glaxo Laboratories Ltd., (1975) RPC 354, followed.

Per Deane J. dissenting - that the appeals G14 and G15 of 1980 should be dismissed because it could not be said that the exercise of the discretion entrusted to the primary judge had miscarried by reason either of identifiable error or because the result was unreasonable or so plainly wrong or unjust that it should be inferred there had been a failure properly to exercise it. House v. The King (1936), 55 CLR 499; Gronow v. Gronow (1979), 54 ALJR 243, applied.

Per curiam - Discussion of the ambit of the court's power pursuant to ss. 17 (4) and 50 of the Federal Court of Australia Act 1976 and of the principles upon which orders prohibiting publication and restricting inspection might properly be made.

HEARING

Sydney, 1980, February 21-22; April 2. #DATE 2:4:1980

APPEALS.

The Full Court of the Federal Court of Australia heard appeals G13, G14 and G15 of 1980 together and disposed of them by a single judgment. The appeals were against the decisions of Brennan J. refusing leave to the A.B.C. to amend the amended statement of claim by the addition of certain amendments and refusing to restrict the publication of certain "confidential parts" of the agreement under s. 50 of the Federal Court of Australia Act 1976.

The facts appear from the judgments of Franki and Deane JJ.

D. A. Staff Q.C. and G. de Q. Walker, for the Australian Broadcasting Commission.

T. E. F. Hughes Q.C. and J.D. Heydon, for the Corporations.

K. Mason and P. Jacobson, for the Australian Cricket Broad.

Cur. adv. vult.

Solicitor for the A.B.C.: J.M. McD. Harris.

Solicitors for the Corporations: Allen, Allen & Hemsley.

Solicitors for the Australian Cricket Board: Stephen, Jacques & Stephen.

E. F. FROHLICH

ORDER

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.

Orders accordingly.

JUDGE1

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 them.

Appeal in Matter No. 13 of 1980

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 should be dismissed with costs.

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 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 subject 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 (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.C. 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 name 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, we are familiar with cases where an order forbidding or restricting 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 confidential 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 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.L.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 corresponding 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 appointed: to do justice between the parties.

It 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 order forbidding or restricting publication of certain things as appears to the Court to be necessary in order to prevent 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); but that metaphor is the best available.

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. If the A.B.C. is unsuccessful, then the respondents ought to be able to expect to continue under an agreement 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 all times treated the agreement as having confidential parts. These parts were excluded from the Trade Practices Commission's Register and so far they have not been published. At the interlocutory stage there was an agreement between all 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. The 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 be admissible in evidence in the proceedings before the trial Judge. An order restricting publication would mean that although the major clauses could be discussed in open court, the confidential parts, which relate to financial arrangements between the parties, would have to be dealt in general referential terms.

I turn now to the reasons for judgment 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 reading 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 principle of open justice, if not a reversal of it (public interest). It is, 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 litigant 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, if not destroyed, before the result of the proceedings is determined. It appears to me that the learned 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 to be weighed in the scales. No doubt, ss.17 and 50 will continue to be applied with a full sense of responsibility as they have been in the past. I see no present danger that this Court may become a closed court or may adopt a practice 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 trial Judge said:
"The agreement is, as I have said, at the heart of the litigation and it would present but a partial, if not distorted, 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 as well as the positive exclusionary provisions to the issues concerning breach of ss.45 and 45A, it is the positive exclusionary provisions which are at the heart of the matter. If the financial provisions, which it may well turn out do little 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 picture of the litigation. Later his Honour said:
"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 foundations 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 summarised as follows:

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

2. The agreement is alleged to contain a provision that has the purpose or effect or likely effect of substantially lessening competition in contravention of ss.45 and 45A (paragraph 12).

3. It is alleged the Board, by entering into the agreement, has aided and abetted these contraventions (paragraph 13).

4. It is alleged that effect has been given to the exclusionary provision in contravention of the Trade Practices Act (paragraph 14).

5. It is alleged that effect has been given to the provision having the purpose or effect or likely effect of substantially lessening competition (paragraph 15).

6. It is alleged that by giving effect to the agreement the Board has aided and abetted the contraventions (paragraph 16).

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 twenty-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 the public save for the exclusion of certain monetary figures (namely; 3 and 13); one would be open save for the exclusion of one part dealing with financial arrangements (namely, 25) and three clauses relating to financial arrangements would be wholly excluded (namely, 4, 5 and 17). For completeness, it should be mentioned 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 arising were dealt with by a short hearing excluding the public when the Court was taken through the agreement including the "confidential parts" 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 difficult 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 is one at which I have arrived with some hesitation, because the learned trial Judge, who was engaged in conducting the trial, arrived at a different conclusion.

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. G14 and G15 of 1980. I agree with the orders proposed by Franki J.

JUDGE2

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 activities 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 February 1980.

The first appeal, No. G13 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 costs.

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. The last paragraph of that letter reads:
"We note your undertaking this afternoon 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 to as having been kept confidential were several clauses in the agreement and the figures in certain other clauses of the agreement.

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 January 1980.

Sections 17(4) and 50 of the Federal Court of Australia Act provide:
"17(4) The Court may order the exclusion of the public or of persons specified by the Court from a sitting of the Court 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.

50. 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 criteria. 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 whether 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 keep these questions separate.

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.J., 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. 356 he said:
"If the value of the defendant's process did not lie, in part at least, in the secrets associated with it, the plaintiff upon showing that there is a substantial and genuine issue of infringement to be tried would normally be granted as an interlocutory step in the action disclosure by the defendant of its process without the imposition of any terms restricting the use of the information so obtained. In the present case, however, if this course were to be adopted and the plaintiff were to fail in the action, the defendant might be seriously prejudiced. If, on the other hand, there were no disclosure, the plaintiff might be unduly hampered in proving his case. An infringer should not be assisted in protecting himself by non-disclosure of matters which in the normal way would be the subject of pre-trial discovery. In such a case a controlled measure of disclosure seems best calculated to serve the interests of justice. The course which has been taken in a number of such cases has been to direct disclosure to selected individuals upon terms aimed at securing that there will not be either use or further disclosure of the information in ways which might prejudice the defendant."

At p. 360 his Lordship said that the Court should be particularly careful not to expose the defendant to any unnecessary risk of its trade secrets leaking to any competitors. Disclosure had been made to the plaintiff's counsel, solicitor and patent agent and to a scientific expert selected by the plaintiff. The Court limited further disclosure to the principal executive officer of the plaintiff on terms that he would not disclose the information to anyone else without the consent of the defendant or by leave of the Court. Some doubt was expressed in disclosing the information even to the principal executive officer but Buckley L.J. pointed out that strong grounds must be required for excluding the principal from knowledge which his agents properly acquire on his behalf. See also Halcon International Inc. v. The Shell Transport and Trading Co. (1979) R.P.C. 97 at pp. 117-118. Some general principles as to discovery of confidential material are set out in D. v. National Society for the Prevention of Cruelty to Children (1978) A.C. 171; Church of Scientology of California v. The Department of Health and Social Security (1979) 1 W.L.R. 723 at pp.732-734 and pp.746-747; and Science Research Council v. Nasse (1979) 3 W.L.R. 762.

The second question is altogether different and it arises when the parties to the litigation, or their advisers, have had such access to any documents, or evidence as the Court considers necessary for the presentation of their cases.

This second question involves a consideration of what was referred to by the learned trial judge as the principle of "open justice within the Court room". In my opinion the learned trial judge did not approach either the first or the second question in the correct way. There was no doubt that the whole of the document alleged to embody the agreement was admissible in evidence. The learned trial judge said at p.13:
"If an order should now be made for production, the right to a wider inspection than that provided for in the solicitor's arrangement should depend upon the order made under s.50 of the Federal Court of Australia Act 1976 to which I shall come in due course."

I do not see why this is so. In my opinion the question of the right to inspect is an entirely different question to that which arises when the document is tendered in evidence. If the whole of the document is relevant then it must be admitted in evidence without any part being excluded but it does not follow that some order should not be made under s.50 of the Act.

In his judgment the learned trial judge made reference to a great number of cases relating to the principle of "open justice" but all these cases were cases dealing with the position where the Court was not given any powers corresponding to those in ss.17(4) and 50. Even in cases where no such provisions exist it is clear that, in certain cases, it is appropriate to hear matters in camera or at least to restrict the publication of certain parts of the proceedings. The power of a Court to hear a matter in camera was considered by the House of Lords in Scott v. Scott (1913) A.C. 417. It was decided in that case that an order which had been made to hear certain proceedings in a nullity suit in camera was made without jurisdiction. All the members of the House of Lords dealt with the principle that proceedings in Court should be heard in public and Viscount Haldane at p.437 said:
"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done."
A little later after referring to litigation where a secret process was involved the Lord Chancellor said:
"The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration."
At p. 439 the Lord Chancellor continued:
"I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made."

Lord Halsbury at p. 443 said that he hesitated to accede to the width of the language used by the Lord Chancellor. Lord Loreburn said at p. 446:
"It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court.
Applying this principle to proceedings for nullity, if the Court is satisfied that to insist upon publicity would in the circumstances reasonably deter a party from seeking redress, or interfere with the effective trial of the cause, in my opinion an order for hearing or partial hearing in camera may lawfully be made."

In Attorney-General v. Leveller Magazine Ltd. (1979) 2 W.L.R. 247 the House of Lords discussed the question of a court sitting in camera. Lord Diplock at p. 252 referred to Scott v. Scott, supra, and pointed out that at least in criminal cases the general rule required that all evidence communicated to the Court should be communicated publicly. His Lordship proceeded:
"However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice."

At pp.258-259 Viscount Dilhorne said:
"The courts have, however, inherent jurisdiction to sit in camera if that is necessary for the due administration of justice."
Viscount Dilhorne then sets out part of the passage from Lord Loreburn's speech in Scott v. Scott, supra, at p. 446 which I have quoted previously.

Lord Scarman at pp.270-271 referred to the exceptions to the rule of common law that justice must be administered in public and cited with approval that passage from Viscount Haldane's speech from p. 439 which I cited previously.

Whilst the order from which appeals Nos. G14 and G15 of 1980 are brought is one made in the exercise of a discretion of the trial judge, and although in one sense it is not determinative of substantive legal rights, nevertheless I am satisfied that this Court should interfere because I consider that the learned trial judge acted upon a wrong principle and that an injustice will result from his order.

In R. v. Tait and Bartley (1979) 24 A.L.R. 473 the Full Bench of this Court considered the question of a Court sitting in camera in a case where no specific statutory provision existed for it to sit in camera. The Court pointed out that even then there were several established exceptions which justify the closing of a Court. It is to be noted that at p.479 the Court did in fact order that certain documents which were received by it in open Court were not to be published until further order. It does not appear that any further order has been made.

It seems clear that, apart from any statutory power to close a Court or to prohibit the publication of evidence, the Court has an obligation to consider the need to ensure that justice is done.

The learned trial judge, in my opinion, did not pay sufficient regard to the need to do justice between the parties. The legislature has seen fit to include specific powers in ss.17(4) and 50 of the Act. It must have been intended that the Court would exercise those powers where it seemed desirable so to do in the interests of justice. The learned trial judge said at p. 19 of his judgment:
"It is not merely a matter of arranging the procedures of the Court to suit the wishes or convenience of the parties before it. It is not their rights which are liable to be trespassed upon, but the rights of the public - the individual members of the public, the press, and the audience to which the proceedings of the Court may ordinarily be transmitted without let or hindrance."
His Honour at p. 20 continued:
"No doubt when, in the course of proceedings under the Trade Practices Act, some confidential matter of minor importance appears, and the loss of confidentiality is a grave matter with the trader, no harm is done by making an order prohibiting publication. In such a case the principal facts of the case remain exposed to public scrutiny, and the derogation from the principle of open justice is a minor one. But if the matter be of importance to the resolution of the case, then, an order would make substantial inroad upon the rights of the public and would substantially expose the processes of justice to the risks against which publicity is a safeguard."

In my opinion his Honour, in the passage just cited, is not paying due regard to the importance of doing justice between the parties. His Honour also found upon the evidence, after saying that he accepted the evidence of Mr. Parish and Mr. Taylor as entirely truthful and that the concern which they expressed about the effect of confidentiality was honestly held, that the dissemination of the contents of the confidential parts of the agreement would, according to the evidence, seriously weaken the negotiating strength of the Board and may well require the appellants before us to reconsider their adherence to the agreement. His Honour then said at p. 22:
"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. 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."

Before us it was argued that the learned trial judge ought to have given greater regard than he did to whether or not the parts of the agreement, which had been treated as confidential, and had not been claimed to be relevant until the pleadings were amended on 12 February 1980, were relevant. In my opinion his Honour has taken the view that the 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. I do not see how justice can be done between the parties when a document is made public, not for the purpose of the judge coming 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 the parties having to reconsider their adherence to the 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 cricket 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 cricket within their State for players from junior cricket through to selection for State teams.

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 JJ., 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 least in the following cases:

During 1977:

Insurance Brokers Association of Australia v. The Commercial Bank of Australia (Bowen C.J.). Tradestock Pty. Ltd. v. T.N.T. (Management) Pty. Ltd. (Smithers J.).

During 1978:

Trade Practices Commission v. Ansett Transport 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.).

During 1979 or 1980:

L.K. Jewellery Investments Pty. Ltd. v. Percy Marks Pty. Ltd. (Franki J.). Geoff Penney (N.S.W.) Pty. Ltd. v. Radlec Investments Pty. Ltd. (Franki J.). In the interlocutory proceedings in the case under appeal. (St. John J.). Refrigerated Express Sales Australia Pty. Ltd. v. Australian Meat and Livestock Corporation (Deane J.).

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 would then become open 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 litigation to the public.

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 trial judge.

As I have already said I would dismiss appeal numbered G13 of 1980 with costs.

JUDGE3

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 provisions of another clause.

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 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 distinct groups, namely: -
(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 of the Act;

(ii) That by entering into (or giving effect to) "the agreement or the amended agreement or both", the corporate respondents, in contravention of s.45 and s.45A 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 which contains a provision that has (or which has) the purpose or effect or likely effect of substantially lessening competition; and

(iii) That the personal respondents have induced, been concerned in and been parties to the alleged contravention by the corporate respondents of s.45 of the Act and have conspired with the corporate respondents to contravene that section.

Each of the appeals relates to the exercise by Brennan J. of judicial discretion. There has recently been some discussion in the High Court of Australia as to the correct approach to be adopted by an appellate court in the discharge of its appellate functions (see Warren v. Coombs (1979) 23 A.L.R. 405). There is, however, nothing in that case which warrants departure from the previously established principles which govern an appeal against the exercise of a judicial discretion and which have been enunciated and recognized in a number of decisions of the High Court. For present purposes, it suffices to quote the comments of Dixon, Evatt and McTiernan JJ. in House v. The King (1936) 55 C.L.R. 499 at pp. 504-505:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.".

In some cases, the prima facie right of the individual litigant to open justice within the courtroom may be of heightened importance because of the nature of the proceedings. In, for example, proceedings for defamation where the vindication of reputation may be more important to the plaintiff than the solace of pecuniary damages, the plaintiff may have a special interest in ensuring that it is apparent to the public that all the evidence is open to public scrutiny so as to ensure that the proceedings which were legitimately regarded as a vehicle to clear his name cannot be wrongly seen as indicating that there is secret material which might tend to confirm the blackening of it. It is conceivable that in proceedings such as those involved in the present case, where allegations of conduct in contravention of the Trade Practices Act are involved, the party against whom allegations are made, might likewise have a particular interest in ensuring that the whole of the evidence which the applicant is able to lead in support of the allegations is seen to be open to public scrutiny and assessment. In such a case, the opposition of the relevant party to the making of an order for confidentiality will plainly be of added weight in the decision as to whether such an order under s.50 of the Act should be made.

The above are some of the factors which may tend to weigh against the making of an order under s.50 of the Act. Their relative importance in the weighing process will plainly vary from case to case. The same can be said of the factors which are liable to be present and to support the making of such an order. I turn to the consideration of some of those factors.

There lies at the heart of our legal system the ideal of the attainment of justice under the law in the individual case. Justice can be denied as much by effectively closing the doors of the courts to litigants as it can by an unjust or wrong decision. The results of an undue discounting of legitimate claims to confidentiality are likely to be both the deterrence of the subject from having recourse to courts of justice for the vindication of legal rights or the enforcement of criminal law and the discouragement of willing co-operation on the part of witnesses whose evidence is necessary to enable the ascertainment of truth. The interests of the administration of justice plainly make it desirable that obligations of confidence be not lightly overruled and that legitimate expectations of confidentiality as to private and confidential transactions and affairs be not lightly disregarded.

In some cases, where publicity would destroy the subject matter of the litigation, the avoidance of prejudice to the administration of justice may make it imperative that the ordinary prima facie rule of open justice in the courtroom gives way to the overriding need for confidentiality. Even where publicity would not destroy the subject matter of the litigation, the need to respect legitimate claims to confidentiality will be a factor - and in some cases a determining factor - to be placed in the overall balance in considering whether an order under s.50 should be made. Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance of prejudice, to the general administration of justice or by the legitimate claims and expectations of other individuals. When not so warranted, such damage or hardship is to the overall prejudice of the administration of justice.

The decision whether an order under s.50 should be made will be the outcome of a balancing process in respect of which there will commonly be room for differences of opinion as to the weight to be attached to particular factors to be placed in the balance and, in the result, as to the precise outcome of the process itself. It is a decision that will ordinarily need to be made in the course and in the atmosphere of the particular proceedings. It will involve an assessment of a multiplicity of factors including the importance which the relevant evidence will play in the actual conduct of the particular proceedings and, in some cases, an assessment of the degree and nature of the publicity which is likely to follow a refusal to make an order. It is a process which may need to be repeated on a number of occasions in the course of particular proceedings in that the perception of the importance of the particular evidence to the result and understanding of the proceedings may vary, as the case proceeds, to an extent that an order for confidentiality which was justified, on balance, at the time it was made can no longer properly be sustained. The decision whether an order should be made under s.50 is a decision as to practice and procedure entrusted to the discretion of the judge hearing the proceedings. The primary concern of members of an appellate court in reviewing the exercise of that discretion is not whether, if the discretion had been entrusted to them, they would have exercised it in the same way. It is whether the discretion exercised by the judge to whom it was entrusted has miscarried by reason of explicit or implicit error.

It was submitted, on behalf of the appellants in the two appeals on this issue, that his Honour did not, in truth, engage in any weighing process at all but treated the "principle of open justice" as being necessarily paramount and therefore determinative of this issue. In support of that submission, emphasis was placed on a statement in his Honour's judgment to the effect that the principle of open justice was "of the greatest importance", and to a paragraph in which he referred to "no harm being done" if an order under s.50 is made where the confidential matter is "of minor importance" and "the loss of confidentiality is a grave matter for the trader". These indicated, so it was said, that Brennan J. "apotheosized" or "placed on a pinnacle of irrefragable significance" the "notion that judicial proceedings must be in all circumstances conducted in the full gaze of publicity". If this criticism of his Honour's judgment had been made good, it would, in my view, have indicated error on his part. The criticism was not, however, made good.

It is apparent from his Honour's judgment that he fully recognized that he was engaged in a process of weighing conflicting factors to determine whether an order under s.50 was warranted in all the circumstances of the case. The use of the phrase "of the greatest importance", in its context, was plainly intended in the sense of "very great" rather than as indicating a pre-judgment of the relative weight to be attached to the general principle of open justice. The example of a confidential matter of minor importance was proferred as an example of a case where an order under s.50 would "no doubt" be warranted. The care which his Honour devoted to the assessment of the likely importance, to the proceedings, of the relevant parts of the agreement and of the disadvantages which public disclosure would involve for the respondents makes plain that he did, in truth, engage in the overall exercise of determining the weight which, in his opinion, should be given to the various factors and considerations which he thought were relevant to the determination of whether an order for confidentiality was necessary to prevent prejudice to the administration of justice. His ultimate decision that it was not was stated, in clear terms, to be the result of weighing the serious consequences to the respondents which were liable to flow from loss of confidentiality against his assessment of the likely prejudice involved in a departure from the principle of open justice in the courtroom in the particular circumstances of the particular evidence in the particular case.

It is clear that his Honour accepted and appreciated the full effect of the evidence placed before him as to damage to the respondents which was liable to flow from exposing the relevant parts of the agreement to public scrutiny. He summarized the effect of that evidence in the following extract from his judgment:
". . . 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 to reconsider their adherence to the agreement".
He added that "to justify refusing an order, there must be very grave considerations put into the other side of the balance". Implicit in that statement and in the overall weighing process was recognition and acceptance of the fact that particular prejudice or damage to the respondents was a relevant consideration in the determination of the general question whether an order under s.50 was necessary to prevent prejudice to the administration of justice.

It is apparent that Brennan J. treated the prima facie rule that judicial proceedings should be fully open to public scrutiny as being of fundamental importance to the administration of justice under the common law. This view enjoys the support of a great body of judicial opinion and is not excluded by the provisions of s.50 which proceeds on the basis that the prima facie rule shall operate unless the avoidance of prejudice to the administration of justice makes departure from it necessary. I am unpersuaded that in adopting and applying that view his Honour fell into any error which would warrant the interference of an appellate court.

It was also argued that Brennan J's assessment of the prejudice to the administration of justice which would flow from an order for confidentiality was affected by error as to the materiality to the proceedings of the confidential parts of the agreement. Those parts of the agreement were said to be relevant only because they were part of an agreement of which other parts, in respect of which no claim for confidentiality was made, were relevant. In themselves, they were immaterial to the proceedings and the understanding of the issues involved in them. The ABC joined issue on this submission and a considerable part of the argument on the appeal was concerned with the question of the extent to which the confidential parts of the agreement would prove material and important to the understanding of the forensic contest and the ultimate resolution of the issues involved in the proceedings. The resolution of this argument at the present stage must, to no small extent, depend on speculation. Plainly, the argument before Brennan J., proceeded in similar vein and his Honour's assessment of the importance and materiality to the proceedings of the relevant parts of the agreement was, of necessity, marked by a degree of speculation.

Brennan J's conclusion was that the relevant parts of the agreement were not only material to some of the issues but that "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". Examination of the issues between the parties, particularly the issues involved in the alleged effect or likely effect of the agreement upon competition, would tend to confirm that the relevant parts of the agreement may well prove material to some of the matters which will be in issue upon the hearing. In so far as his Honour's assessment of the applicant's likely use of the relevant parts of the agreement is concerned, senior counsel who appeared for the applicant on the hearing of the appeal assured us that his Honour's assessment was, as he currently saw the position, an accurate statement of the manner in which he anticipated the applicant's case would be presented. It may well be that the relevant parts of the agreement will, in the event, prove to be of markedly less significance than his Honour anticipated. There is not however, at this stage of the proceedings, any ground for holding that, to the extent to which it was necessary to anticipate the future course of the proceedings, his Honour's assessment of the materiality or importance of the relevant parts of the agreement will necessarily, or even probably, prove to be mistaken.

One question which has caused me more than ordinary difficulty in these appeals is the question whether Brennan J. was in error in declining to preserve confidentiality, by an order under s.50, until a later stage of the proceedings when the importance of the confidential parts of the agreement to the overall proceedings could be more clearly perceived. It may be that, for one reason or another, the proceedings will come to a premature end. It may be that, in the event, the detailed financial provisions for which confidentiality is claimed will prove to be of little significance in the presentation or resolution of the case. As his Honour found, maintenance of confidentiality was of great importance to the respondents and there needed to be "very grave considerations" to be put into the opposite side of the balance before a refusal of an order pursuant to s.50 would be justified. To refuse an order under s.50 at this early stage of the proceedings will irrevocably destroy the confidentiality of the agreement and, on his Honour's findings, "may well require the respondents to reconsider their adherance to the agreement". Plainly, there are some grounds for arguing that the administration of justice would be better served by preserving confidentiality on an interim basis, by an order under s.50. On the other hand, it would seem that the course of the argument before Brennan J. was such as to indicate that all parties approached the issue of confidentiality on the basis that it called for final determination at this stage. There are obvious procedural advantages, in so far as the overall proceedings are concerned, in adopting that course. In all the circumstances, I am unconvinced that his Honour's discretion miscarried by reason of his dealing with the matter on the basis upon which all parties were content for it to be determined; that is to say, by attempting in advance to determine the probable materiality and importance of the confidential parts of the agreement to the overall proceedings.

Ultimately, I find myself unable to identify any error of principle or mistake or misapprehension of fact in Brennan J's identification and assessment of the factors which were relevant to be taken into account in determining whether an order should be made pursuant to s.50. It is possible that my own assessment of the relevant importance of those factors may have been different from his Honour's if, left to myself, I were required to assess and weigh them one against another. That is not however the question for us on this appeal (see, Gronow v. Gronow, supra, at pp.78,849f, 78,859). The question for us is whether his Honour's exercise of the discretion entrusted to him has miscarried by reason either of identifiable error or because the result is unreasonable or so plainly wrong or unjust that it should be inferred that there has been a failure properly to exercise it. As I have said I am unable to identify any relevant error on his Honour's part. Nor, in my view, can it properly be said that the result which his Honour reached is unreasonable or wrong or unjust.

I would accordingly dismiss the appeals in so far as they relate to Brennan J's refusal to make an order pursuant to s.50. It was not suggested, on behalf of the appellant, that in the event that no order pursuant to s.50 was to be made, some restriction should be placed on the persons permitted to inspect the confidential parts of the agreement on behalf of the ABC. In a context where the refusal of an order under s.50 will result in the whole agreement being open to public scrutiny, it is obvious that no such restriction should be imposed. It should be noted that an objection to production of the agreement on the ground that such production might tend to render the respondents liable to a penalty, which had been taken before Brennan J., was expressly abandoned on the appeal.

In the result, I would dismiss all three appeals. I would order that the appellant or appellants in each appeal pay the costs of the respondent or respondents of that appeal.