Melco Resorts (Macau) Ltd v Wu (No 2)
[2025] VSC 479
•7 August 2025 Ex tempore; Revised 8 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2023 00733
| MELCO RESORTS (MACAU) LTD | Plaintiff |
| v | |
| JIAN HONG WU | Defendant |
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JUDGE: | Connock J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5, 6, 7 August 2025 |
DATE OF JUDGMENT: | 7 August 2025 Ex tempore; Revised 8 August 2025 |
CASE MAY BE CITED AS: | Melco Resorts (Macau) Ltd v Wu (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 479 |
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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 Affidavit in accordance with the Court’s directions.
At the commencement of the trial at 10.30am on 5 August 2025, and before counsel for the plaintiff commenced her opening, senior counsel for the defendant raised the Access Restriction Application, and the transcript records the exchange which occurred, and a further exchange on the topic later that day, to which I refer but need not set out. It was determined that it was preferable to defer the Access Restriction Application so as to enable the openings to proceed and the evidence of the plaintiff’s lay witness, Mr Lamson, to be heard, which is what occurred on 5 August 2025 and during the morning of 6 August 2025.
To facilitate the hearing of the Access Restriction Application and access to the affidavit material by the plaintiff’s solicitors and counsel, I made orders, subject to further order, restricting access to the Fourth AV Affidavit and the Fifth AV Affidavit to (relevantly) the plaintiff’s legal representatives pending the hearing of the said application. With the concurrence of the parties, I commenced hearing the Access Restriction Application at the conclusion of Mr Lamson’s evidence shortly before the luncheon adjournment on 6 August 2025. Following exchanges between senior counsel for the defendant and the Bench, it became apparent that the defendant wished to file further affidavit material in support, which ultimately led to the application being adjourned to the following day, to be further heard after the conclusion of the expert evidence regarding handwriting was completed.
The Fifth AV Affidavit was provided to the Court and the plaintiff shortly before the trial resumed on the morning of 7 August 2025, and the further hearing of the Access Restriction Application proceeded later that day, as had been proposed.
The question for determination is whether, subject to further order, access to the Fourth AV Affidavit and/or the Fifth AV Affidavit should be restricted to the defendant, the respective legal representatives of the defendant and the plaintiff, and court officers and court staff, but excluding the plaintiff itself.
For the reasons that follow, I have determined that access to the Fourth AV Affidavit and the Fifth AV Affidavit should not be restricted in the manner sought. Consequently, the defendant’s Access Restriction Application should be dismissed.
Some background
The background to the proceeding and this application is revealed in large part through the matters referred to above and my reasons in Melco Resorts (Macau) Ltd v Wu[1] delivered ex tempore on 25 July 2025 and revised on 29 July 2025 (First Melco Reasons). These reasons assume a familiarity with the First Melco Reasons and should be read together with them.
[1][2025] VSC 460.
Fourth AV Affidavit and the Fifth AV Affidavit
In substance the Fourth AV Affidavit addresses two things. First, evidence regarding advice said to have been received from a lawyer in China regarding the China AV Issue. Second, some details of, and some background to, the No Fly Order and the Exit Restrictions.
The defendant no longer seeks any access restriction to the affidavit material addressing the China AV Issue, and a redacted version of the Fourth AV Affidavit has been provided to the plaintiff on an unrestricted basis. However, the Access Restriction Orders are sought in respect of the affidavit evidence regarding the No Fly Order and the Exit Restrictions, including the exhibits, which in the Fourth AV Affidavit included documents in Mandarin (Mandarin Documents) and translations of those documents by ‘Google Translate’ (Google Translation).
In the Fourth AV Affidavit Mr Joy deposed that he had arranged for the Mandarin Documents to be translated by a NAATI certified translator, and that this would be the subject of a further affidavit. This was confirmed in court late on 6 August 2025, and the Fifth AV Affidavit is the further affidavit foreshadowed by Mr Joy. In substance that affidavit exhibits a NAATI certified translation of the Mandarin Documents (NAATI Translation) the subject of the earlier Google Translation, and addresses advice received from China regarding the extent to which the Mandarin Documents are publicly available in China.
Hearing of the application
When the hearing of the Access Restriction Application commenced in the afternoon on 6 August 2025 senior counsel for the defendant raised the question of whether the Court should be closed to facilitate the making of submissions, which was at least implicitly supported by counsel for the plaintiff. I did not embrace this suggestion and, having regard to principles of open justice, indicated that the application should be heard in open court with submissions being made in a way where attention was drawn to relevant parts of the material in a manner that, at least for the purposes of the hearing of the Access Restriction Application, enabled the confidentiality or restricted access sought by the application to be maintained. Counsel for each of the parties responsibly accepted that this approach was appropriate.
Defendant’s primary submissions
In oral submissions commenced on 6 August 2025, senior counsel for the defendant drew attention to various parts of the Google Translation,[2] the defendant’s concern regarding the claimed sensitive nature of the information, and the defendant’s desire that it be kept confidential. In respect of the parts of the Fourth AV Affidavit referred to, it was submitted that the information could be used in a manner adverse to the defendant’s interests, and that the defendant did not want this information to be known to the plaintiff. In this context it was submitted that it was not necessary for the plaintiff to know about this information because the material was only being used by the defendant in support of the AV Application, which was submitted to be only a legal question.
[2]Including aspects of pages 29 and 36 of the Google Translation.
The defendant submitted that to ‘maintain the confidentiality’ of the material would not deprive the plaintiff of any opportunity to do something in connection with the AV Application that it would otherwise be able to do, submitting that the plaintiff’s lawyers know about the material and can continue to oppose the AV Application. During these submissions I enquired as to the existence of any evidence in the Fourth AV Affidavit that the Mandarin Documents were confidential in nature. Senior counsel for the defendant stated that, although there was not currently evidence of that kind before the Court, his instructions were that the Mandarin Documents were not publicly available, and that a further affidavit could be sworn to that effect. Following further exchanges between counsel and the Bench, the further hearing of the defendant’s Access Restriction Application was adjourned for further hearing until after the expert evidence in the trial concluded on 7 August 2025. When the hearing of the Access Restriction Application resumed on 7 August 2025, the additional submissions of the defendant included the following.
It was submitted that the relevant authority in China had made a decision not to publish the Mandarin Documents, which I observe is a criminal judgment against the defendant and others (Judgment) and a Community Corrections Declaration against the defendant, and this was said to confirm its confidential character or status. In this context it was noted further that, as things stand, the evidence of Mr Joy on the topic was the only evidence before the Court. In addition, senior counsel for the defendant drew attention to various aspects of the NAATI Translation in support of its contention that it was in the interests of justice that the Access Restriction Orders be made.[3]
[3]The details of which are recorded in the transcript and can be understood by reference to the relevant pages of the NAATI Translation referred to, but need not be recited in these reasons.
Having regard to the matters to which attention was drawn, which necessarily occurred in open court in a considered but nuanced way given the confidentiality claim, the submissions made by the defendant included the following:
1) The relevant material did not go to a fact in issue in the substantive proceeding.
2) Restricted access orders would not shut out the plaintiff from knowing material relevant to the substantive questions in dispute.
3) The Judgment reveals that there were other people involved in the relevant events, and questions of personal safety of the defendant may be involved given what is disclosed in the Judgment.
4) If Mr Joy’s evidence on information and belief in the Fifth AV Affidavit is accepted, then it is apparent that the relevant authority made a decision not to put the Judgment in the public domain, contrary to what might be anticipated to be the usual practice, and that this should be the starting point for the Court.
5) Regard should be had to the magnitude of the matter the subject of the Judgment, the broader scope of the investigation, and the legitimate interest of the defendant being protected.
It was further submitted that, absent a compelling reason, then confidentiality should be ‘maintained’.
Plaintiff’s submissions
The plaintiff opposed the Access Restriction Application and submitted that no Access Restriction Orders should be made. The plaintiff’s submissions included the following.
Reference was made to the summary of the principles in Cargill Australia Limited v Viterra Malt Pty Ltd & Ors (No 23)[4] (Cargill No 23), with emphasis being placed upon various elements, including: the necessity requirement; the inadequacy of an assertion as to confidentiality; the significance of open justice; the need to establish a basis for any claim of confidentiality; the relevance of being able to draft effective reasons for judgments or rulings; and personal embarrassment not being a sound basis for making a confidentiality or restricted access order.
[4](2019) 58 VR 611.
Counsel for the plaintiff also drew attention to various aspects of the NAATI Translation by reference to page and line numbers in a manner that enabled me to direct my attention to the matters being referred to.[5] One aspect that was emphasised was the fact that the Judgment recorded that the relevant trial of the defendant had taken place in open court, with a vast amount of material having been recorded in the Judgment as having been addressed in open court.
[5]These included various matters on pages 3, 4, 5, 7, 8, 9, and 16 of the NAATI Translation exhibit page numbers to the Fifth AV Affidavit.
The plaintiff further submitted that:
1) There was nothing in the evidence establishing a basis for concern about personal safety.
2) The authorities emphasised that necessity is the relevant standard, and that it is not enough that a confidentiality order appears to be convenient, reasonable, sensible, or as a result of some interest balancing exercise.
3) The material is plainly relevant to the defendant’s AV Application and it will therefore be necessary for the plaintiff’s legal representatives to consider and advise their client in respect of at least these matters, and to seek and obtain instructions as a result.
4) Further and in any event, the Judgment was relevant to broader issues in the proceeding and, in particular, the credit of the defendant.
5) Whether or not the content of the affidavits is also relevant to one or more of the substantive questions in issue in the proceeding cannot be definitively determined at this stage.
6) Further and in any event, even if confidentiality had been established, which was denied, the scope of the order sought was too broad and should not preclude access by the plaintiff in order to enable solicitors and counsel properly to advise the plaintiff and obtain relevant instructions.
I add that counsel for the plaintiff had earlier indicated that the plaintiff wanted an opportunity to file material regarding the public availability of the Judgment, although following exchanges with the Bench the parties agreed that it was expedient and desirable for the application to be heard without allowing this to occur immediately, but reserving a further opportunity to adduce additional evidence if, on the material currently available, the Court formed a preliminary view that it was minded to rule in the defendant’s favour.
Defendant’s submissions in reply
By brief submissions in reply, senior counsel clarified that the submissions he had made regarding the weighing or balancing exercise were intended to convey that the evidence would need to be weighed in order to determine whether or not the Court was satisfied that it was necessary for the administration of justice to make the orders sought.
With respect to the issue of the defendant’s credit, it was submitted that, given the challenges presented by: the No Fly Order; the Exit Restrictions; the pending AV Application; the delay that might be involved before any evidence is given by the defendant; and the possibility that the circumstances might prevent the defendant giving evidence, it would be premature and unnecessary to allow access to the affidavit material at this time for a credit-based purpose. It was said that, at least at this point, this factor should be given little weight in the circumstances because it can be addressed at a later time without any risk of prejudice to the plaintiff.
Principles and observations
It is useful to note that the application arises in a context where, absent further order, the right of a person to inspect affidavit material on the court file in the proceeding is governed by r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), which is in the following terms:
28.05 Inspection of documents
(1)Subject to this Rule, when the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.
(2)A person not a party may not inspect or obtain a copy of the following documents without leave of the Court—
(a)affidavits;
(b)exhibits to affidavits;
(c)witness statements;
(d)expert reports, including those filed pursuant to Order 33 or Order 44 of these Rules; and
(e)written submissions, outlines of argument and chronologies.
(3)Paragraph (2) does not apply to a document that has been—
(a)read or relied on in open court; or
(b)relied on in an application determined without a hearing.
(4)No person may inspect or obtain a copy of a document which the Court has ordered remain confidential.
(5)A person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary, or in the case of a document filed in a proceeding in the Court of Appeal, the Registrar of the Court of Appeal, ought to remain confidential to the parties.
As to the operation of r 28.05(2) of the Rules, and the circumstances in which leave may be granted to inspect such documents, I refer to, without setting them out, the recent observations of Waller J on the topic in Final Stop Pty Ltd v QBE Insurance (Australia) Ltd.[6]
[6][2024] VSC 101, [75]–[85].
It is also to be noted that neither party contended that the Open Courts Act 2013 (Vic) (Open Courts Act) was engaged in respect of the Access Restriction Application. In my view this was the correct approach for the parties to take given the terms and operation of s 7(d) of the Open Courts Act, which relevantly provides as follows:
Admission of evidence and disclosure of information to a court or tribunal or party to a proceeding
This Act does not limit or otherwise affect—
…
(d)the making of an order or decision by a court or tribunal that—
(i)conceals the identity of a person by restricting the way the person is referred to in open court;
(ii)restricts the way an event or thing may be referred to in open court;
(iii)prohibits or restricts access to a court or tribunal file.
As Elliott J observed in Cargill No 23:[7]
[43]As may be observed, the orders referred to in s 7(d) share a common characteristic: they restrict the availability (or more accurately, preserve the unavailability) of information ordinarily derived from court processes. In contrast to ‘suppression orders’, such orders or decisions are concerned with primary court processes by restricting the disclosure and availability of information ordinarily derived from those processes.[8] Moreover, the orders or decisions identified do not directly interfere with processes by which intermediaries provide or disseminate to the public the information made available by court processes.
[7](2019) 58 VR 611, [43].
[8]Also with the balance of s 7, each of the rules, orders and decisions described there relate to ordinary court processes.
As to the principles and approach applicable to confidentiality and access restriction applications where the Open Courts Act is not relevantly engaged, these were also addressed by Elliott J in Cargill No 23, albeit in the context of an application for confidentiality orders in respect of transcript.[9] For present purposes, Elliott J’s helpful summary of the principles regarding confidentiality, restricted access applications, and the interaction with the common law principle of open justice, is instructive, and it is efficient respectfully to repeat parts of the same in almost identical terms in the present context, which I do in paragraphs 31 to 45 below.[10]
[9]But noting that the general principles apply equally to confidentiality orders over other documents, including affidavit material. See, for example, Re HEST Australia Ltd (2021) 66 VR 338 [132]–[140] (Button J) and Patrick Stevedores Operations No 2 Pty Ltd v Essential Services Commission [2022] VSC 175 [13] (Irving AsJ).
[10]Also largely including the footnotes from Elliott J’s reasons.
The correct approach is to consider the common law principle of open justice, which moderates the court’s power to make confidentiality orders in its inherent jurisdiction.[11]
[11]See, for example, Deputy Commissioner of Taxation v Karas (2011) 83 ATR 879, 881 [3] (Davies J). See generally John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476E-476G (McHugh JA, with whom Glass JA agreed). That inherent jurisdiction of the Supreme Court remains unaffected by the Open Courts Act: s 5(1).
The principle of open justice is a fundamental rule of the common law,[12] and an ‘essential part of the functioning of courts in Australia’.[13] General adherence to the principle of open justice is an essential characteristic of a court.[14]
[12]See John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476G-477C; Russell v Russell (1976) 134 CLR 495, 520.4 (Gibbs J); Dickason v Dickason (1913) 17 CLR 50, 51.3 (Barton ACJ, with whom Isaacs, Gavan Duffy, Powers and Rich JJ agreed). The principle of open justice was discussed in the context of refusing an application for a pseudonym order: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 21) [2019] VSC 182, [24]-[28].
[13]K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 512 [10] (French CJ).
[14]North Australian Aboriginal Justice Agency Limited v Northern Territoryof Australia (2015) 256 CLR 569, 594 [39.3] (French CJ, Kiefel and Bell JJ); Wainohu v New South Wales (2011) 243 CLR 181, 208-209 [44] (French CJ and Kiefel J); Russell v Russell (1976) 134 CLR 495, 520.4.
The principle of open justice requires that, save in exceptional circumstances, court proceedings occur in open court and, relevantly, that all of the evidence in court proceedings be available and accessible to the public.[15]
[15]Botsman v Bolitho [2018] VSCA 278, [244] (Tate, Whelan and Niall JJA). See also Hogan v Hinch (2011) 243 CLR 506, 530-532 [20]-[22] (French CJ). But, relevantly, subject to r 28.05 as set out above.
The rationale of the principle of open justice is to expose court proceedings, and the evidence in court proceedings, to ‘public and professional scrutiny’.[16] Such scrutiny informs the public as to how judicial power is exercised, and on what evidential basis.[17] Relatedly, it helps ensure courts are held accountable, and so guards against the possibility of the misuse of judicial power.[18] As a result, it aids in maintaining public confidence in the integrity and independence of the courts.[19]
[16]Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
[17]Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118, [121] (Marshall, Rares and Flick JJ).
[18]Ibid.
[19]Russell v Russell (1976) 134 CLR 495, 520.6.
In Victoria, the principle of open justice is recognised and reinforced by statute.[20] The Open Courts Act provides, within the context of that Act, for presumptions in favour of open court proceedings, and the disclosure of information.[21] The common purpose of those presumptions is to ‘strengthen and promote the principle of open justice’.[22] In addition, provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) have been understood to constitute a statutory endorsement of the open justice principle.[23]
[20]See Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, 60 [44].
[21]Open Courts Act, ss 4, 28.
[22]Ibid.
[23]Section 24 (the right to a “fair and public hearing”) and s 15(2) (the right to freedom of expression, including the freedom to “seek and receive information”) have been so understood: AS v Minister for Immigration and Border Protection (No 10) (2017) 54 VR 500, 506-507 [21]-[22] (J Forrest J).
Whilst the principle of open justice is fundamental, it is not absolute.[24] This is because the principle of open justice is not an end in itself, but rather serves to aid a more fundamental principle; the administration of justice.[25] In circumstances where the presence of the public or public scrutiny of proceedings is likely to detract from, rather than enhance, the administration of justice, the principle of open justice may give way. Such circumstances, however, are exceptional.
[24]Botsman v Bolitho [2018] VSCA 278, [245] (Tate, Whelan and Niall JJA); Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, 597 [189] (Crennan J).
[25]See Hogan v Australian Crime Commission (2010) 240 CLR 651, 667 [42] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (observation made in the context of s 50 of the Federal Court of Australia Act 1976 (Cth)); R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227, 235E (Sir John Donaldson MR, with whom Griffiths and Slade LJJ agreed); Scott v Scott [1913] AC 417, 437.5 (Viscount Haldane LC).
Any departure from the principle of open justice must be justified by the party or parties seeking such a departure,[26] and, if justified, extend no further, in scope,[27] and in time,[28] than strictly required for the administration of justice.[29]
[26]See, for example, Secretary, Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19, [3]-[4] (Santamaria, Ferguson and McLeish JJA); Hogan v Australian Crime Commission (2010) 240 CLR 651, 667 [43]; ABC v D1; ex parte The Herald & Weekly Times Ltd [2007] VSC 480, [62], [65], [67]-[68], [71] (J Forrest J).
[27]See, for example, General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68, 86 [62], 87 [65] (Warren CJ, Vincent and Kellam JJA).
[28]Ibid, 87 [65]. See also Northern Territory of Australia v Griffiths (dec’d) [2019] HCA 19, [8] (Nettle J); Hogan v Australian Crime Commission (2010) 240 CLR 651, 663 [29].
[29]Botsman v Bolitho [2018] VSCA 278, [245]; Matthews v AusNet Electricity Services Pty Ltd [2014] VSC 663, [437] (Osborn JA).
In certain circumstances, commercial confidentiality may be necessary to the administration of justice, and so permit a departure from the principle of open justice. In such circumstances, the court may make a confidentiality order. A confidentiality order may, amongst other things, restrict access to a transcript of a hearing or other documents, in whole or in part, and require that certain portions of a transcript or other document be redacted or otherwise marked or treated as confidential.[30]
[30]See, for example, Hogan v Australian Crime Commission (2009) 177 FCR 205, 212 [17] (Jessup J), referring to an order made by Emmett J at first instance requiring, relevantly, the redaction of confidential names and terms from the hearing transcript. See also SPKB v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 296, [18] (Carr, Finn and Sundberg JJ), and Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274, [8] (Edelman J).
The court will only make a confidentiality order where confidentiality is necessary for the administration of justice. In other words, a confidentiality order:[31]
must be ‘necessary in order to serve the ends of justice’, ‘necessary to secure the proper administration of justice in proceedings’ or necessary to avoid a course which would ‘destroy the attainment of justice in the particular case’.
(Citations omitted.)
[31]AA v BB (2013) 296 ALR 353, 388 [181] (Bell J).
It is not enough that a confidentiality order appear to be convenient, reasonable, sensible, or be perceived to be in the public interest, however understood, or that ‘as a result of some “balancing exercise”, the order appears to have one or more of those characteristics’.[32] Further, and for obvious reasons, it is not enough that the applicant merely wishes to avoid scrutiny or maintain confidence, or subjectively believes the orders sought to be necessary.[33] Whilst relevant,[34] it is also not enough that the parties to a proceeding agree that a confidentiality order should be made, or that, as here, an application for a confidentiality order is not opposed.[35] This is because the rationale of the principle of open justice is exposure to public scrutiny, to which the parties to a proceeding may be unanimously averse.
[32]Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). See also AA v BB (2013) 296 ALR 353, 388 [180]-[181]; Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635, 641 [31]-[33] (Hodgson JA, with whom Hislop and Latham JJ agreed).
[33]John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 477B (McHugh JA, with whom Glass JA agreed).
[34]See, for example, Guy v Crown Melbourne Limited (No 2) (2018) 355 ALR 420, 484 [249] (Mortimer J); Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17, [18] (Perram J); Australian Broadcasting Commission v Parish (1980) 43 FLR 129, 156.8 (Deane J).
[35] Scott v Scott [1913] AC 417, 438.9 (Viscount Haldane LC).
Further, it is not enough that the applicant merely assert confidentiality in respect of the information sought to be protected; rather, the applicant must identify a basis for the court to maintain the confidentiality.[36] Relatedly, it is ordinarily for the applicant to adduce evidence upon which the court may reasonably conclude that the standard of necessity has been met.[37] Specifically, the applicant must ordinarily adduce evidence of some apprehended particular or specific harm or damage that disclosure of the information the subject of the proposed order would cause.[38]
[36]Hogan v Australian Crime Commission (2010) 240 CLR 651, 666 [38], citing, with approval, Hogan v Australian Crime Commission (2009) 177 FCR 205, 220-221 (Jessup J).
[37]John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 477B (McHugh JA, with whom Glass JA agreed).
[38]Hogan v Australian Crime Commission (2010) 240 CLR 651, 667 [41], [43].
The protection of commercially sensitive information may, in appropriate cases, be necessary to the administration of justice.[39] This is because the administration of justice requires that controversies between parties be resolved without a party, or a non-party, suffering severe and collateral commercial harm.[40] As has been observed:[41]
Parties should not be deterred from coming to courts to enforce or protect their rights for fear that in doing so they will be forced to lose the very foundation of their commercial success … or that they may lose some competitive advantage that derives from material that they rightly consider to be confidential or secret.
For example, the principle of open justice may, in appropriate cases, accommodate the protection of trade-sensitive information, such as ‘prices and costs paid and incurred’ for valuable items, supplier terms, and commercially-sensitive aspects of goods and services sold.[42]
[39]Re Hogan; ex parte West Australian Newspapers Ltd (2009) 41 WAR 288, 296 [33] (McLure P, with whom Owen and Miller JJA agreed). See also Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148, [50]-[54] (McLure P, with whom Buss and Newnes JJA agreed); Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430, [35] (Perram J) and the authorities there cited.
[40]Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [13]‑[14] (Greenwood J).
[41]Qantas Airways Limited v Rolls-RoycePLC [2010] FCA 1481, [21] (Rares J).
[42]See Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, [13]-[14]; Qantas Airways Limited v Rolls-Royce PLC [2010] FCA 1481, [21]; Sportsbet Pty Ltd v New South Wales (No 12) [2010] FCA 62, [3]-[4] (Perram J); Siam Polyethylene v Minister of State for Home Affairs (No 3) [2009] FCA 839, [2]-[6] (Rares J). However note that whilst commercial sensitivity in the context of litigation between trade rivals weighs significantly in favour of “necessity”, it is not decisive: Cyclopet Pty Ltd v Australian Nuclear Science and Technology [2012] FCA 1326, [7] (Jacobson J).
Where a confidentiality order is sought in respect of commercial (or other) information, it is for the applicant to establish that each piece of commercial (or other) information in respect of which a confidentiality order is sought has a confidential character warranting the protection of a court order.[43]
[43]Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326, [8]; ICAP Australia Pty Ltd v Forrest Moebes [2010] NSWSC 738, [8] (Ball J) and the authorities there cited.
The strength of an asserted need for confidentiality will necessarily vary according to context, and in light of matters including:[44]
(1) The nature of the proceeding in which confidentiality is sought.
(2)The nature of the information in respect of which a confidentiality order is sought.
(3)Whether or not the information has already been received into evidence, or deployed in open court.[45]
(4)The likelihood and severity of collateral damage to participants in the court proceeding or others, absent the confidentiality order sought.
(5)The nature and extent of the confidentiality order sought and how it would operate to interfere with the principle of open justice.
[44]See, for example, Re Hogan; ex parte West Australian Newspapers Ltd (2009) 41 WAR 288, 296-297 [34] (McLure P, with whom Owen and Miller JJA agreed), 299 [50]-[51] (Owen JA, with whom Miller JA agreed); Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326, [8].
[45]AS v Minister for Immigration and Border Protection (No 10) (2017) 54 VR 500, 507-508 [26]-[28] (J Forrest J); Deputy Commissioner of Taxation v Karas (2011) 83 ATR 879, 881 [4] (Davies J); Hogan v Australian Crime Commission (2010) 240 CLR 651, 667 [41]-[43].
It is also necessary to consider what effect, if any, the making of a confidentiality order in respect of certain evidence may have on the ability of the court to provide cogent reasons for its judgment in a proceeding. As was observed in Wainohu v New South Wales,[46] the obligation on courts to provide adequate reasons for judgment is itself an aspect of the open justice principle.[47] Plainly, where certain evidence is made subject to a confidentiality order, the court may be deprived of the opportunity to include and openly refer to that evidence in its published reasons. Whether that constitutes a significant obstacle may depend on whether or not, without relying on the confidential information, and by formulating its reasons in more general terms, the court may nonetheless ‘convey an adequate account of the litigation and the reasons underlying the orders’.[48]
[46](2011) 243 CLR 181.
[47]At 215 [58] (French CJ and Kiefel J). See also Botsman v Bolitho [2018] VSCA 278, [244] (Tate, Whelan and Niall JJA); AK v Western Australia (2008) 232 CLR 438, 470 [89] (Heydon J), citing Murray Gleeson, ‘Judicial Accountability’ (1995) 2 Judicial Review 117, 122.
[48]Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police (2008) 234 CLR 532, 596 [185] (Crennan J), citing David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294, 300G-301A (Street CJ).
Of course, the principles and matters addressed by Elliott J in Cargill No 23 have been addressed in numerous cases, including many of those referred to by Elliott J in Cargill No 23.
Consideration and disposition
Having regard to the evidence before me, the applicable principles referred to above, the submissions, and the Court’s obligations under the Civil Procedure Act 2010 (Vic) (CP Act), it is in my view clear that it has not been established by the defendant on the evidence before me that the relevant material is confidential in character or that, even if it was assumed to be, it is necessary, or even reasonably necessary, for the administration of justice to restrict access to the Fourth AV Affidavit or the Fifth AV Affidavit in the manner contended for. I add that, in weighing the evidence and considering the submissions and applicable principles when assessing this issue of necessity, I have also taken into account the objects in s 9 of the CP Act, and sought to give effect to the overarching purpose in s 7 of the CP Act, as required by s 8 of that Act. I elaborate below as to why I have reached these conclusions.
As senior counsel for the defendant observed, the central issue revolved around the claimed confidentiality of the Mandarin Documents and their translations. These comprised the reasonably lengthy Judgment against the defendant (and two others) dated 16 January 2025, and the ‘Community Correction Declaration’ in respect of the defendant recording the suspended three-year imprisonment sentence imposed upon the defendant by the Judgment that was accompanied by a five-year community corrections order for the period 10 February 2025 to 9 February 2030.
Whilst the limited evidence in Mr Joy’s affidavit regarding advice from a lawyer in China records that the Judgment and Community Correction Declaration have not been published and are not available on any website for the reasons addressed by Mr Joy, there was no evidence before me that any confidentiality or similar order had been made in relation to the Judgment or Community Correction Declaration. Indeed, if either of these documents had been subject to such an order, then presumably the defendant would have been restricted in his ability to rely on them in support of the AV Application, and the evidence before me contained no indication that there was such an issue.[49]
[49]That said, the result on this application would be no different even if this matter was put to one side.
Further, although the Access Restriction Application has been dealt with urgently, the defendant has had more than sufficient time, and notice, to bring forward any evidence regarding the existence of any order or direction that the Judgment or Community Correction Declaration, or any of their content, is confidential, or is required to be kept confidential. Notwithstanding the five affidavits filed in support of the AV Application, including evidence regarding what the defendant has very recently informed Mr Joy about, there is no evidence from the defendant or anyone else to this effect.
It is also to be noted that the Judgment reveals, among other things, that the relevant trial proceeded in open court and that it details the vast amount of material and information presented to the court by the Public Procuratorate and defence counsel in respect of the subject matter of the Judgment. So much is apparent from, for example, pages 3 to 19 of the NAATI Translation, to which I refer but will not set out. For example, page 4 of the NAATI Translation records that, to substantiate the relevant charges, the public prosecutor ‘read out in court and presented’ in (open) court extensive material and information, including that referred to on pages 4 to 7 of the NAATI Translation, which, incidentally, also included the Interpol Red Notice materials to which attention was drawn by senior counsel for the defendant during the hearing of the application.
Further, on page 7 of the NAATI Translation it is recorded that the defendant had no objection to the alleged facts, charges and sentencing recommendations, and signed a statement to that effect, and that the defendant had no objection during the trial, which, as I have said, is recorded as having been held in open court.
In addition, there is nothing on the face of the Judgment or the Community Correction Declaration that records either of these documents as being confidential, or subject to confidentiality restrictions. I note further in this regard that the Judgment also relates to two other named individuals who, it may be inferred, also received a copy of the Judgment.[50]
[50]Although it would make no difference to the result if this was not the case.
In addition, the NAATI Translation records on page 14 that the facts referred to in it were supported by a vast amount of specified information that was said to have been ‘verified and cross-examined’ in court. The material referred to is itemised at some length at pages 13 and 14 of the NAATI Translation.
Turning to another matter, Mr Joy records his instructions that the defendant regards the Judgment and the Community Correction Declaration to be highly sensitive material, and that he is instructed to take all steps necessary to keep the Judgment and the Community Correction Declaration confidential. However, these matters, whether alone or in combination with any other circumstances, are of little assistance to the defendant on this application given the principles to be applied, and the judicial exercise that is required to be undertaken. However, I have taken this evidence into account, and I accept that, for present purposes and on the evidence before me, Mr Wu regards the material to be highly sensitive, and the subject of embarrassment for him.
Next, it is plain that the affidavit material is relevant to the defendant’s AV Application, as well as the just and efficient future management of this proceeding, including the future conduct of the now part-heard trial. It is apparent that it is highly likely, if not inevitable, that the plaintiff’s legal representatives will need to consider the material in question and advise the plaintiff about it in the context of at least the AV Application, including by addressing how the evidence is relevant to it, and what impact it might have. It is readily apparent that these matters need to be discussed and addressed with relevant representative/s of the plaintiff in order to obtain instructions, at least regarding the position to be taken, and the submissions to be made, on the AV Application. To the extent that it was submitted that the material does not need to be addressed with representative/s of the plaintiff in order to advise the plaintiff and obtain instructions, I do not accept that submission. In my view such a contention is unrealistic and not persuasive in the circumstances, and that would remain so even if it was to be assumed that the Judgment and Community Correction Declaration were of a confidential character and relevant only to the AV Application.
Putting credibility to one side for the moment, whilst it is not currently readily apparent that the affidavit material in question is relevant to a fact in issue in the trial of the substantive proceeding, I accept for present purposes that this cannot be definitively determined at this time in the urgent circumstances in which the application was brought before the Court and considered. However, given that no fact in issue was relevantly identified for present purposes, I have proceeded on the assumption at this stage that it is relevant only to the AV Application at this time.
Further, I accept that there is force in the defendant’s contention that, if the material was confidential and relevant only to the defendant’s credibility, there would be no immediate timing imperative for disclosure at this point for credibility purposes. Consequently, and for present purposes, at this stage I have given no weight to the plaintiff’s credibility argument when weighing and assessing the evidence in order to determine whether it has been established that it is necessary for the administration of justice that the Access Restriction Orders be made.
With respect to the applicable principles, there was ultimately no issue between the parties, with counsel for the plaintiff emphasising various aspects of the principles referred to by Elliott J in Cargill No 23 as earlier referred to. That said, to the extent that the defendant submitted that the confidentiality is to be ‘maintained’ by making the Access Restriction Orders unless ‘compelling reasons to the contrary’ are shown, I do not accept that submission. Such a contention appears to invert to some degree the relevant test or required process of analysis, as is apparent from the earlier discussion in the ‘Principles and observations’ section of these reasons. In any event, on the evidence before me it has not been shown that the Judgment or the Community Correction Declaration has the necessary quality of confidence, and, further, even if such a quality of confidence had been established, a compelling reason for making the Access Restriction Orders has not been demonstrated, whether as being necessary for the administration of justice or otherwise.
With respect to the issue of personal safety raised by senior counsel for the defendant, there is no evidence from the plaintiff regarding any issue of this kind, and this is so notwithstanding that instructions have been very recently taken from the defendant in order to file and serve the Fourth AV Affidavit and the Fifth AV Affidavit. Further, it is apparent from the Judgment that the overwhelming majority of matters, if not all of them, to which attention was drawn by senior counsel for the defendant, are recorded as having already been addressed in open court. In any event, even if such personal safety issues had been demonstrated, and it had been established that some form of confidentiality order was necessary to the administration of justice, I would not have made orders of the kind sought because of the constraint they would place on the ability of the plaintiff’s legal representatives to give advice to the plaintiff and obtain relevant instructions.
Although I have taken into account the defendant’s submissions that there is some information in the Judgment regarding the financial affairs of the defendant and his wife, the fact that they may be of interest to the plaintiff, and that they may be sought to be used in a manner adverse to the defendant’s interests, this is of little assistance to the defendant on this application.[51] This is because the relevant material has not been established to be confidential in character and, further, even if it had been, it would not warrant the imposition of restrictions of the kind sought given the other considerations I have referred to, and it not being necessary for the administration of justice.
[51]Whether considered alone or in combination with any other circumstances.
A further matter to be noted in the present context is that the material in question has been brought forward by the defendant in support of his application to have his evidence taken by audiovisual means, and the material is sought to be deployed for his benefit in this regard. This has occurred in a context where, until very recently, the defendant had not been responding to his solicitor’s attempts to contact him in the lead-up to the trial,[52] and the Court had been informed as recently as 18 June 2025 that there was no issue regarding the defendant’s availability to give evidence at the trial in person. Whilst it is readily apparent that the evidence that has now been brought forward by the defendant is materially relevant to the AV Application, the circumstances in which the material has emerged underscores its relevance to the AV Application, the future conduct of this proceeding, and the consequential need for counsel and solicitors acting for the plaintiff to be able to consider the evidence, give advice, and obtain appropriate instructions.
[52]See the First Melco Reasons.
Finally, even if I had been satisfied that the Judgment and the Community Correction Declaration were of a confidential character, and that it was necessary in the administration of justice to provide some level of access restriction to the material, I would not have determined that it was necessary to make orders excluding access by appropriate representatives of the plaintiff. As I have said, in the circumstances of this case this would have had the unjust effect of compromising the ability of the plaintiff’s solicitors and counsel to give advice and obtain instructions, which would be contrary to, rather than necessary for, the administration of justice in the circumstances of this case.
Conclusion and proposed orders
As is apparent, I have concluded that the defendant has not established that all or any of the contents of the Judgment, Community Correction Declaration, or other affidavit material in question, are confidential in character or nature. Further, even if I had concluded that some or all of the said material was confidential in character or nature as asserted, on the evidence before me, the defendant has not established that it is necessary, or even reasonably necessary, for the administration of justice to place access restrictions on the Fourth AV Affidavit and the Fifth AV Affidavit of the kind sought by the defendant.
It follows that the defendant’s Access Restriction Application should be dismissed.
It is also appropriate that the temporary confidentiality orders made on 6 August 2025[53] restricting access to the affidavit material pending the hearing and determination of this application be vacated, and I propose to make orders to that effect.
[53]Authenticated on 7 August 2025.
I will hear the parties with respect to the question of costs.
Following the delivery of my oral ruling and reasons ex tempore, I heard argument on the question of costs and determined that the defendant should pay the plaintiff’s costs of and incidental to the Access Restriction Application, to be taxed on a standard basis if not agreed.
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