Kyle-Sailor v Heinke

Case [2024] FCA 431

FEDERAL COURT OF AUSTRALIA

Kyle-Sailor v Heinke [2024] FCA 431

File number(s): VID 698 of 2021
Judgment of: HORAN J
Date of judgment: 29 April 2024
Catchwords: PRACTICE AND PROCEDURE – representative proceeding – notice of settlement pursuant to s 33X of the Federal Court of Australia Act1976 (Cth) – interlocutory application seeking non-publication order in respect of quantum of settlement sum – where parties agree that the quantum of the settlement sum should remain confidential –group members to be informed orally of settlement sum – whether non-publication order is necessary to prevent prejudice to the proper administration of justice and/or to protect the safety of any person – application dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth) Part IVA

Racial Discrimination Act 1975 (Cth)
Cases cited:

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; 364 ALR 202

Caason Investments Pty Ltd v Cao (No 2) [2018] FCA 527

Clark v National Australia Bank Limited (No 2) [2020] FCA 652

Coatman v Colonial First State Investments Limited [2022] FCA 1611

Foley v Gay [2016] FCA 273

Giddings v Australian Information Commissioner [2017] FCAFC 225

Hogan v Australian Crime Commission (2010) 240 CLR 651

Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Limited [2020] FCA 510

Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465

John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344

Liverpool City Council v McGraw‐Hill Financial Inc(now known as S&P Global Inc) [2018] FCA 1289

Madgwick v Kelly (2013) 212 FCR 1

Petersen Superannuation Fund Pty Ltd v Bank of Queensland Ltd (No 3) [2018] FCA 1842; 132 ACSR 258

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

Porter v Australian Broadcasting Corporation [2021] FCA 863

Russell v Russell (1976) 134 CLR 495

Santa Trade Concerns Pty Limited v Robinson (No 2) [2018] FCA 1491

The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377

Wotton v State of Queensland (No 10) [2018] FCA 915

J Jagot, B Murphy and A Moss, “Open Justice and Class Actions: including a Judicial Perspective” in M Legg and J Metzger (eds), The Australian Class Action: A 30-Year Perspective (Federation Press, 2023)
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 63
Date of hearing: 15 March 2024
Counsel for the Applicant: Mr R Merkel SC
Solicitor for the Applicant: Levitt Robinson Solicitors
Counsel for the Respondents: Mr A Anderson
Solicitor for the Respondents: Thomson Geer Lawyers

ORDERS

VID 698 of 2021
BETWEEN:

ANDREA KYLE-SAILOR

Applicant
AND:

ALEX HEINKE

First Respondent

NINE ENTERTAINMENT CO. PTY LTD

Second Respondent

NINE DIGITAL PTY LIMITED (ACN 077 753 461)

Third Respondent

NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)
Fourth Respondent

ORDER MADE BY:

HORAN J

DATE OF ORDER:

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AGLC
Kyle-Sailor v Heinke [2024] FCA 431
Case
[2024] FCA 431
Decision Date

CaseChat Overview and Summary

In Kyle-Sailor v Heinke, the applicant sought a non-publication order in relation to the quantum of a settlement sum in a representative proceeding. The application arose from publications made by the respondents concerning the spending of monies received under a settlement scheme approved by the Court in earlier representative proceedings. The applicant claimed that the publications gave rise to contraventions of the Racial Discrimination Act 1975 (Cth). The applicant and the respondents agreed that the quantum of the settlement sum should remain confidential, and that group members would be informed orally of the settlement sum. The legal issue for the Court was whether a non-publication order was necessary to prevent prejudice to the proper administration of justice and/or to protect the safety of any person.
The Court found that a non-publication order was not necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person. The Court noted that each group member has their own individual claim for damages for the alleged contravention of the Racial Discrimination Act, and their knowledge of the total settlement sum is not relevant to their decision whether or not to opt out or accept the proposed settlement. The Court also noted that each group member could on request be advised orally of the amount of the settlement sum, and would be permitted to disclose that information to their lawyers or professional advisers. The Court dismissed the application for a non-publication order.

Orders

Orders of the court

1. The application for a non-publication order under s 37AF of the FCA Act in relation to the quantum of the Settlement Sum be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, I am not satisfied that the proposed non-publication order in relation to the quantum of the Settlement Sum is necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person within the meaning of s 37AG(1)(a) and (c) of the FCA Act. Accordingly, I decline to make the non-publication order sought and the application for such an order will be dismissed. BACKGROUND The claims advanced in this proceeding arise from certain publications made by the respondents comprising a segment broadcast on Nine News Queensland on 18 May 2021, together with an associated promotional video and online article published on 17 and 18 May 2021 respectively, concerning the spending of monies received under a settlement scheme approved by this Court in earlier representative proceedings (Wotton v State of Queensland (No 10) [2018] FCA 915) (the Wotton class action). The Wotton class action arose from events arising after the death of an Aboriginal man, Cameron Doomadgee, known posthumously as Mulrunji, while he was in police custody on Palm Island on 19 November 2004. The claims in the Wotton class action “broadly concern[ed] the role that race played in the investigation by [Queensland Police Service] officers into Mulrunji’s death in custody, and the QPS’s management of community concerns and protests, tensions and anger in the weeks after Mulrunji’s death and in the police responses to the protests and fires that occurred on Palm Island on 26 November 2004”: Wotton v State of Queensland (No 10) [2018] FCA 915 at [4]-[5] (Murphy J). The Wotton class action settlement involved the payment by the State of Queensland of a settlement sum of $30 million which, after payment of various amounts for legal costs and disbursements and settlement administration costs, was distributed among 447 registered group members (of whom 441 group members were entitled to recover compensation). In the present proceeding, the applicant claims on her own behalf and on behalf of the Group Members that the publications gave rise to contraventions of s 18C of the Racial Discrimination Act 1975 (Cth). The Group Members in the present proceeding are defined in the applicant’s amended Concise Statement dated 26 November 2021 as Aboriginal and Torres Strait Islander people who, as at 17 May 2020, had received or were entitled to receive compensation pursuant to the Wotton class action settlement scheme. There are 437 Group Members who were not deceased at the time of the respondents’ publications, 401 of whom have signed a funding agreement with a litigation funder under which the funder is entitled to a commission of 28% of any sum received by those Group Members from the proposed settlement, net of any sum received pursuant to an order for costs. In very broad terms, it is alleged that the publications gave rise to a number of imputations, including that the Group Members, or a significant number of them, were improper or unworthy recipients of compensation under the Wotton class action settlement, or were wasteful or irresponsible in relation to the manner in which they were spending such compensation monies. The heads of damage claimed include general damages for offence, insult, humiliation or intimidation, as well as shame, embarrassment or distress caused by the publications, together with special damages in respect of past and future medical expenses, out-of-pocket expenses and past economic loss. Additional damages are claimed in respect of those Group Members who were publicly vilified or insulted after and because of the publications. The applicant also sought an injunction to restrain the respondents from publishing or causing to be published statements to the effect of the alleged imputations and orders requiring the respondents to publish an apology and correction.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

However, senior counsel for the applicant submitted that because each of the Group Members has their own individual claim for damages for the alleged contravention of the Racial Discrimination Act, their knowledge of the total Settlement Sum is not relevant to their decision whether or not to opt out or accept the proposed settlement. Rather, the parties submit that it is sufficient that each individual Group Member be informed of the estimated amount that he or she might receive from the settlement, together with the deductions from the Settlement Sum that give rise to that entitlement. In any event, each of the Group Members could on request be advised orally of the amount of the Settlement Sum, and would be permitted to disclose that information to his or her lawyers or professional advisers.Previous decisions There are a number of previous decisions of this Court that have considered applications for a suppression order in relation to the terms of settlement or the settlement sum in a representative proceeding. In Inabu Pty Ltd as trustee for the Alidas Superannuation Fund v CIMIC Group Limited [2020] FCA 510, Jagot J made suppression orders in relation to various categories of documents, which relevantly included the settlement deed. Her Honour stated at [19]:… as to the settlement deed, I note that there is an obligation on the parties to keep the settlement deed confidential, save for certain permitted disclosures which include the settlement notice which discloses the quantum of the settlement sum, which is not, in itself, confidential. In circumstances where it is not necessary for the settlement deed to be disclosed in order to explain why the settlement is fair and reasonable, I am content that the order for confidentiality should also be made over the remaining confidential components of the settlement deed. It may be noted that the suppression orders made in Inabu were directed to the publication of the terms of the settlement deed other than the quantum of the settlement sum. In Jenkings v Northern Territory of Australia (No 4) [2021] FCA 839, Mortimer J (as her Honour then was) refused an application by the Northern Territory for an order prohibiting disclosure of the settlement sum. The proceeding involved a claim for damages and compensation brought by the applicants on behalf of persons who had suffered false imprisonment, assault, battery or other forms of adverse action, or conduct involving racial discrimination, while detained in a youth detention centre. While the Territory also sought (in the alternative) a suppression order over the whole of the settlement deed, the real issue in dispute was the suppression of the settlement sum: Jenkings at [52]-[53]. Further, in the course of oral argument, counsel for the Territory accepted that any suppression order would need to include an exception or carve out to enable disclosure of the settlement sum to group members: Jenkings at [9]. Justice Mortimer referred to some examples of previous cases in which suppression orders had been made in relation to the settlement of representative proceedings under Part IVA of the FCA Act: Jenkings at [30]-[38]. In most of those cases, the suppression order was agreed or unopposed, and was not the subject of specific or detailed reasons. In some cases, the suppression order was made in relation to confidential advice from counsel on the fairness and reasonableness of the settlement. In other cases, details of the settlement including the settlement sum were not disclosed. In particular, in Fowler v Airservices Australia [2009] FCA 1189 at [36]-[38], Bennett J made a suppression order restricting publication of the global settlement sum and a distribution schedule of individual payments to group members, in circumstances where such publication would “put at naught” a clause in the settlement deed preventing disclosure of the content of the deed and where “[t]he requirement of confidentiality form[ed] part of the settlement of the proceeding”.

Ratio Decidendi

Legal Principle Established

Clause 2A of the proposed Settlement Scheme provides:Whether or not the Court makes a Non-publication order, any group member wishing to know the amount of monetary compensation to be paid in the settlement should contact Levitt Robinson Solicitors and ask to be told the amount orally. If the Court makes a Non-publication Order, Levitt Robinson will not be able to provide any group member with the amount in writing and group members should not tell anyone else the amount unless required to do so by law or for the purpose of getting their own advice.CONSIDERATIONGeneral principles As is recognised in s 17(1) of the FCA Act, this Court’s jurisdiction is ordinarily to be exercised in open court. This reflects the principle of open justice which is a fundamental rule of the common law and an essential characteristic of a court: Russell v Russell (1976) 134 CLR 495 at 520 (Gibbs J) and 532 (Stephen J); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-477 (McHugh JA, with whom Glass JA agreed); John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [18] (Spigelman CJ). There are limited exceptions to the rule that the administration of justice must take place in open court, including “where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule”: John Fairfax & Sons Ltd at 476. Part VAA of the FCA Act confers powers on the Court to make suppression and non-publication orders. A suppression order is defined in s 37AA to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”, and a non-publication order is defined to mean “an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)”. Thus, a suppression order is broader than a non-publication order, in that the former restricts both publication and any other manner of disclosure of the information. For such purposes, “publish” is defined in s 37AA to mean “disseminate or provide access to the public or a section of the public by any means”, with an inclusive list of examples of various forms of publication or public broadcast or exhibition. The Court may make a suppression order or non‑publication order on its own initiative, or on the application of a party or any other person considered by the Court to have a sufficient interest in the making of the order: s 37AH(1). In addition to the applicant for the order and the parties to the proceeding, the persons who are entitled to appear and be heard on any such application include news publishers, the Government of the Commonwealth or a State or Territory, and any other person who in the Court’s opinion has a sufficient interest in the question whether a suppression order or non‑publication order should be made: s 37AH(2).