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

FEDERAL COURT OF AUSTRALIA
Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452

File number: NSD 103 of 2023

Judgment of: LEE J

Date of judgment: 22 November 2023

Catchwords: PRACTICE AND PROCEDURE – open justice – whether defamation trial should be livestreamed – where objection to livestream raised by media company – reality that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done – hearing to continue to be livestreamed to facilitate the public interest in open justice subject to any further application establishing it is necessary to take a contrary course in relation to particular evidence – alternative course as reflected in proposed orders refused

Legislation:
Federal Court of Australia Act 1976 (Cth) Pt VAA, s 37AE

Criminal Procedure Act 1986 (NSW) s 291(1)

Limitation Act 1969 (NSW) s 56A

Cases cited:
Attorney-General v Butterworth [1963] 1 QB 696

Attorney-General v Leveller Magazine Ltd [1979] AC 440

Chapman v Honig [1963] 2 QB 502

Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719

European Asia Bank AG v Wentworth (1986) 5 NSWLR 445

Hobbs v Tinling (C.T.) and Company, Limited [1929] 2 KB 1

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

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

Lehrmann v Queensland Police Service [2023] QSC 238

McPherson v McPherson [1936] AC 177

Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506

R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256

Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46

R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443

Scott v Scott [1913] AC 417

Chief Justice Anne Ferguson, ‘Essential Briefing on the State of the Profession’ (Law Institute of Victoria, 22 March 2023)
John J Doyle AC KC, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Law Review 25
F.R.V Heuston, Lives of the Lord Chancellors (Clarendon Press, 1987)
James J Spigelman AC KC, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147
Graeme Williams KC, A Short Book of Bad Judges (Wildy, Simmonds & Hill Publishing, 2013)

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 35

Date of hearing: 22 November 2023

Counsel for the Applicant: Mr S Whybrow SC and Mr M Richardson SC with Mr N Olson

Solicitor for the Applicant: Mark O’Brien Legal

Counsel for the First Respondent: Dr M Collins KC with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCA 1452
Decision Date: 22 November 2023

CaseChat Overview and Summary

The case of Lehrmann v Network Ten Pty Limited (Livestream) involved a dispute concerning the live streaming of a defamation trial. The defendant, Network Ten Pty Limited, sought to have the trial livestreamed to the public, a request which was opposed by the media company. The matter was before the court to determine whether the trial should proceed with live streaming to uphold the principle of open justice. The court was tasked with balancing the public interest in open justice against any potential prejudice to the trial's fairness that might result from live streaming.

The court examined the principle of open justice, recognising its fundamental importance in ensuring that justice is not only done but is also seen to be done. It considered the arguments presented by both parties, focusing on whether the live streaming of the trial would undermine the fairness and integrity of the proceedings. The court acknowledged the public's right to be informed about the judicial process and the importance of transparency in legal proceedings. It deliberated on whether the potential benefits of live streaming in promoting open justice outweighed any risks to the trial's fairness.

After considering the arguments, the court ruled in favour of continuing the live streaming of the trial, subject to any further applications that might necessitate a different course regarding specific evidence. The court found that the principle of open justice was of such fundamental importance that it should be upheld, even if it required accommodating the potential risks of live streaming. The court also considered the practical implications of live streaming, including the facilitation of public access to the judicial process, which was deemed to be in the public interest. The alternative course proposed by the media company was rejected as the court determined that it did not sufficiently address the overarching importance of open justice.

The court ordered that the application for specific orders proposed by the first respondent, Network Ten Pty Limited, be refused. This decision ensured that the trial would continue to be livestreamed, subject to any future applications that might require a review of this decision concerning particular evidence. The ruling reflected the court's commitment to maintaining the principle of open justice while also being mindful of the need to protect the integrity of the trial.

Orders

Orders of the court

1. The application for orders as proposed by the first respondent, annexed to the submissions provided to the Court on 9 November 2023, be refused.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 103 of 2023
Judgment of:	LEE J
Date of judgment:	22 November 2023
Catchwords:	PRACTICE AND PROCEDURE – open justice – whether defamation trial should be livestreamed – where objection to livestream raised by media company – reality that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done – hearing to continue to be livestreamed to facilitate the public interest in open justice subject to any further application establishing it is necessary to take a contrary course in relation to particular evidence – alternative course as reflected in proposed orders refused
Legislation:	Federal Court of Australia Act 1976 (Cth) Pt VAA, s 37AE Criminal Procedure Act 1986 (NSW) s 291(1) Limitation Act 1969 (NSW) s 56A
Cases cited:	Attorney-General v Butterworth [1963] 1 QB 696 Attorney-General v Leveller Magazine Ltd [1979] AC 440 Chapman v Honig [1963] 2 QB 502 Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 European Asia Bank AG v Wentworth (1986) 5 NSWLR 445 Hobbs v Tinling (C.T.) and Company, Limited [1929] 2 KB 1 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Lehrmann v Queensland Police Service [2023] QSC 238 McPherson v McPherson [1936] AC 177 Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 Roberts-Smith v Fairfax Media Publications Pty Limited (No 26) [2022] FCA 46 R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443 Scott v Scott [1913] AC 417
Chief Justice Anne Ferguson, ‘Essential Briefing on the State of the Profession’ (Law Institute of Victoria, 22 March 2023) John J Doyle AC KC, ‘The Courts and the Media: What Reforms are Needed and Why’ (1999) 1 University of Technology Law Review 25 F.R.V Heuston, Lives of the Lord Chancellors (Clarendon Press, 1987) James J Spigelman AC KC, ‘The Principle of Open Justice: A Comparative Perspective’ (2006) 29(2) University of New South Wales Law Journal 147 Graeme Williams KC, A Short Book of Bad Judges (Wildy, Simmonds & Hill Publishing, 2013)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	35
Date of hearing:	22 November 2023
Counsel for the Applicant:	Mr S Whybrow SC and Mr M Richardson SC with Mr N Olson
Solicitor for the Applicant:	Mark O’Brien Legal
Counsel for the First Respondent:	Dr M Collins KC with…