Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2)

[2023] FCA 1561

FEDERAL COURT OF AUSTRALIA

Lehrmann v Network Ten Pty Limited (Confidentiality) (No 2) [2023] FCA 1561

File number:

NSD 103 of 2023

Judgment of:

LEE J

Date of judgment:

7 December 2023

Date of publication of reasons:

8 December 2023

Catchwords:

PRACTICE AND PROCEDURE  – application by non-party for confidentiality orders in respect of deed giving effect to settlement of proceedings between Ms Brittany Higgins and the Commonwealth of Australia – where deed contains personal medical information irrelevant to issues in dispute in current proceeding – suppression of medical information necessary to prevent prejudice to the proper administration of justice

Legislation:

Evidence Act 1995 (Cth) ss 36, 55

Federal Court of Australia Act 1976 (Cth) Pt VAA, ss 37AE, 37AF(1)(b), 37AG(1)(a), 37AJ(1)

Cases cited:

Lehrmann v Network Ten Pty Limited (Confidentiality) [2023] FCA 1552
Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452

Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (30 November 2021)

Division:

General Division

Registry:

New South Wales

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

16

Date of hearing:

7 December 2023

Counsel for the Applicant:

Mr S Whybrow SC with Mr M Richardson SC and Mr N Olson and Mr D Helvadjian

Solicitor for the Applicant:

Mark O’Brien Legal

Counsel for the First Respondent:

Dr M Collins KC with Mr T Senior

Solicitor for the First Respondent:

Thomson Geer Lawyers

Counsel for the Second Respondent:

Ms S Chrysanthou SC with Mr B Dean

Solicitor for the Second Respondent:

Gillis Delaney Lawyers

Counsel for Ms Brittany Higgins:

Mr N Owens SC

Solicitor for Ms Brittany Higgins:

Arnold Bloch Leibler

Counsel for the Commonwealth of Australia:

Mr M J Lewis

Solicitor for the Commonwealth of Australia:

Australian Government Solicitor

ORDERS

NSD 103 of 2023

BETWEEN:

BRUCE LEHRMANN

Applicant

AND:

NETWORK TEN PTY LIMITED ACN 052 515 250

First Respondent

LISA WILKINSON

Second Respondent

ORDER MADE BY:	LEE J
DATE OF ORDER:	7 DECEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), the following parts of the deed of settlement and release executed by the Commonwealth of Australia (as represented by the Department of Finance) and Brittany Higgins, dated 13 December 2022 (deed), be suppressed for a period of ten years, on the grounds that disclosure of the following parts of that deed, or the information contained within those parts, is necessary to prevent prejudice to the proper administration of justice:

(a)clause 2.2 of the deed, on page 8, from the word “BSB” to the word “Name”;

(b)in the attachment to the deed entitled, “Draft Statement of Particulars”, the entirety of paragraph 3 entitled “Particulars of Disabilities”; and

(c)in the attachment to the deed entitled “Attachment 2 – Events Complained Of”, paragraph 13.4 to paragraph 13.5.22 inclusive.

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

REASONS FOR JUDGMENT
(delivered ex tempore, revised from the transcript)

LEE J:

1. An application has been made in respect of the deed of settlement and release entered into by the Commonwealth of Australia (Commonwealth) and Ms Brittany Higgins (deed), produced pursuant to an order made under s 36 of the Evidence Act 1995 (Cth) (EA) directed to Ms Higgins’ solicitor who was in Court, and then tendered by the applicant in this proceeding, Mr Bruce Lehrmann.

2. Ms Higgins seeks a confidentiality order pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of aspects of the deed. I am satisfied that an order should be made in relation to three of four matters referred to in the proposed orders provided by counsel for Ms Higgins, Mr Owens SC, who has been given leave to appear. Counsel also appeared on behalf of the Commonwealth, Mr Lewis, and indicated the Commonwealth is content to “defer to” Ms Higgins’ position.

3. I will address each of the four matters in turn.

4. First, an application is made to redact the entirety of the signature page. On the material before me, I do not consider it is necessary to prevent prejudice to the proper administration of justice for this material to be redacted, particularly in circumstances where other documents bearing the signature of Ms Higgins and other persons have already been made public on the online Court file.

5. Secondly, I have determined to redact the bank account details appearing in cl 2.2 of the deed for reasons which are, I trust, obvious.

6. Thirdly, in the attachment to the deed entitled “Draft Statement of Particulars”, I am satisfied the entirety of paragraph 3 entitled “Particulars of Disabilities” ought to be redacted. Ms Higgins is not a party to this proceeding. Paragraph 3 sets out detailed and intimate medical information, which is irrelevant to the disposition of the issues in this proceeding. In a similar vein, the fourth aspect of the deed in relation to which confidentiality orders are sought (being paragraphs 13.4 to 13.5.22 inclusive in the annexure entitled “The Events Complained About”) contains highly personal medical information.

7. I do not need to canvass the relevant principles, which are well known: see Lehrmann v Network Ten Pty Limited (Confidentiality) [2023] FCA 1552 (at [6]); Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 (at [6]). While personal embarrassment and sensitivity are not enough, and the issue of relevance is not determinative, such considerations are not wholly irrelevant to my reaching a level of satisfaction it is necessary for limited material to be redacted to prevent prejudice to the proper administration of justice in the circumstances of this proceeding. This sensitive, personal material was provided in connexion with settling another dispute between different parties. The Court must be mindful not to fetter the ability of parties to seek to achieve the extra-curial resolution of disputes, which would otherwise be litigated; parties should be able to engage in frank, full exchanges as to the medical conditions of persons seeking resolution of claims for personal injury to secure settlement, without fearing personal information is going to be published to all the world in another proceeding in which the information has no or, at best, marginal relevance.

8. I am satisfied it is necessary to make a confidentiality order in respect of this material.

9. It is well to note two final matters, one of which only came to my attention following the making of the order.

10. First, s 37AJ(1) of the FCA Act provides a suppression or non-publication order made pursuant to Pt VAA operates for the period decided by the Court and specified in the order. I propose to make the order for a duration of ten years.

11. Secondly, the Commonwealth, through its solicitors, provided a letter tendered on the application noting:

    Confidentiality was included in the settlement deed at the request of Ms Higgins. We consider that this approach is consistent with findings and recommendations in the report of Ms Kate Jenkins, Sex Discrimination Commissioner: Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (2021) | Australian Human Rights Commission (see, for example, p 197 (victim survivor support choice and control) and p 225-228 (best practice in reporting and complaints)).

12. In the Sex Discrimination Commissioner’s report, what is described as “victim survivor support choice and control” is said to emphasise that “any response to sexual assault should be trauma-informed, adhering to the principles of safety, empowerment, trustworthiness, choice, collaboration, and respect for inclusion and diversity” (at 197). What is said to be “best practice” is said to include the notion that (at 227–228):

    Confidentiality and privacy are fundamental requirements of the successful operation of a reporting and complaints mechanism. The United Kingdom adopts a presumption that, when investigating and imposing a sanction in relation to misconduct, the matter remains confidential. The exception is where there is a compelling reason for publication (including that it would not be possible to impose the sanction while retaining confidentiality, although the detrimental effect of such publicity should be taken into account when determining the relevant sanction).

13. It is not apparent to me what I am to make of this submission made by the solicitors for the Commonwealth which, entirely understandably, was not the subject of any elaboration by experienced counsel for the Commonwealth (given I had indicated I was prepared to make an order).

14. All parties do not dispute that the tender of the deed is relevant to the facts in issue: see s 55 of the EA. The proposed order dealing with the non-publication of evidence directs attention to the relevant criterion, being the necessity to prevent prejudice to the proper administration of justice. My job in considering whether to make an order is to apply the statutory test. Further, I am required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE of the FCA Act. It is not to exercise a discretion informed by policy recommendations in a report of the Sex Discrimination Commissioner.

15. As I have said repeatedly in this case, public confidence in the administration of justice requires transparency to the extent that it can be provided. The carefully calibrated order proposed by counsel for Ms Higgins, which I will make, does not detract from principles of open justice properly applied in accordance with Pt VAA of the FCA Act.

16. Finally, the Court is grateful to counsel for Ms Higgins and the Commonwealth for their assistance in appearing on short notice.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.

Associate:

Dated:       8 December 2023