PRACTICE AND PROCEDURE — Confidentiality orders — Party seeking to restrict access to affidavit material to legal representatives only — Whether Open Courts Act 2013 (Vic) applies — Common law principle of open justice — Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Whether content of affidavit of a confidential nature — Access restriction refused — General principles regarding confidentiality orders — Access restriction orders not necessary for the administration of justice.
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
A Folie
Ashurst Australia
For the Defendant
D Williams KC with K Li
Moray & Agnew Lawyers
HIS HONOUR:
Introduction and summary
This ruling addresses the defendant’s (defendant or Mr Wu) oral application (Access Restriction Application) first raised on 5 August 2025 for an order that two affidavits of the defendant’s solicitor, Mr Maxwell Joy, affirmed 5 August 2025 (Fourth AV Affidavit) and 7 August 2025 (Fifth AV Affidavit), be marked confidential with access restricted to the defendant, legal representatives of the defendant and the plaintiff, and judicial officers and court staff (Access Restriction Orders).
The affidavits are relied upon by the defendant in support of his application by summons filed 30 July 2025 for an order that the defendant’s evidence be taken by audiovisual means from China. That application (AV Application) was first returnable before me on 1 August 2025, but at that hearing it was adjourned to the first day of trial, 5 August 2025, to enable, among other things, the defendant to file further affidavit material in support regarding a Chinese government order (No Fly Order) against the defendant preventing him from leaving China for any reason (Exit Restrictions), and any issues or impediments associated with the Court ordering that the defendant’s evidence be given audiovisually from China (China AV Issue).
By email received by my chambers at 9:32am on 5 August 2025, the Court was provided with the Fourth AV Affidavit in support of the AV Application. The email stated that the defendant sought an order that access to the Fourth AV Affidavit and exhibits be restricted to the legal representatives of the parties and judicial officers or court staff only. It was noted that the plaintiff’s solicitors had been excluded from the correspondence at that point, pending the Court’s determination of the confidentiality issue. The email stated that the defendant was in the Court’s hands as to how best to proceed and would file the Fourth AV…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Melco Resorts (Macau) Ltd v Wu (No 2) [2025] VSC 479
Case
[2025] VSC 479
Decision Date
CaseChat Overview and Summary
Melco Resorts (Macau) Ltd was the plaintiff in a proceeding against Wu, the defendant, which came before the Supreme Court of Victoria. The plaintiff sought to restrict access to certain affidavit material to legal representatives only, contending that the information contained therein was of a confidential nature. The defendant opposed this application, arguing that the Open Courts Act 2013 (Vic) and the common law principle of open justice required the material to be publicly accessible.
The central issue before the court was whether the Open Courts Act 2013 (Vic) applied to the circumstances of this case, and if not, whether the content of the affidavit was of such a confidential nature that access should be restricted to legal representatives. The court also considered the relevant provisions of Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and the general principles regarding confidentiality orders. The court was required to determine whether an access restriction order was necessary for the administration of justice.
The court held that the Open Courts Act 2013 (Vic) did not apply to this case, as it was not a proceeding in which a court had been asked to make an order for the suppression or non-publication of information. The court then considered the content of the affidavit and found that it did not contain information of a confidential nature. The court emphasised that access restriction orders should only be made when necessary for the administration of justice, and in this case, the plaintiff had not demonstrated that such an order was required. The court ultimately refused the plaintiff's application to restrict access to the affidavit material to legal representatives only.