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Porter v Australian Broadcasting Corporation

Porter v Australian Broadcasting Corporation

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Case Copied 30 July 2021 75 min read

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FEDERAL COURT OF AUSTRALIA
Porter v Australian Broadcasting Corporation [2021] FCA 863

File number(s): NSD 206 of 2021

Judgment of: JAGOT J

Date of judgment: 30 July 2021

Catchwords:
PRACTICE AND PROCEDURE – where parties settled proceeding – where interim suppression and non-publication orders were made – where parties proposed consent orders including order to permanently remove unredacted pleadings from Court file under r 16.21(2) of Federal Court Rules 2011 (Cth) (Court Rules) – where such order is important aspect of compromise between parties – where such order would prevent public from inspecting unredacted documents under r 2.32(2) – principle of public interest in open justice fundamental not absolute – Court to facilitate just resolution of disputes and give effect to contractual bargains between parties – unredacted documents to be removed from Court file on ground that it is necessary to prevent prejudice to proper administration of justice.

PRACTICE AND PROCEDURE – interaction of Federal Court of Australia Act 1976 (Cth) (Court Act) and Court Rules – Court’s powers to make suppression and non-publication orders under s 37AF (on grounds in s 37AG(1) and under limits imposed by ss 37AJ and 37AH) and to remove documents from Court file under rr 2.28 and 2.29 – operation of r 2.32 and timing of non-party inspection right.

PRACTICE AND PROCEDURE – consent orders and orders made in chambers – when orders may be made in chambers and not in open court.

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 17, 37AA, 37AE–37AI, 37M, 37N

Federal Court Rules 2011 (Cth) rr 1.32, 1.35, 1.36, 2.21, 2.25–2.29, 2.31, 2.32, 9.12, 16.21, 20.03

Judiciary Act 1903 (Cth) s 78B

Cases cited:
Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756

Attorney-General v Observer Ltd [1990] 1 AC 109

Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115
Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
David Syme & Co v General Motors-Holden’s Ltd [1984] 2 NSWLR 294
Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629
Dyer v Chrysanthou (No 2)(Injunction) [2021] FCA 641

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

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

John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131
Keyzer v La Trobe University [2019] FCA 646
KPTT v Commissioner of Taxation [2021] FCA 464
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579

Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293

McLaughlin v Glenn [2020] FCA 679

Minister for Immigration and Border Protection v Egan [2018] FCA 1320

Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101
Prothonotary of the Supreme Court of New South…

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: [2021] FCA 863
Decision Date

CaseChat Overview and Summary

The proceeding was a claim for defamation. The parties settled the proceeding. The parties forwarded an agreed email to the court indicating that they would be grateful if the court made orders by consent in chambers, including an order that the unredacted defence and unredacted reply be permanently removed from the court file. The intervening parties argued that the order for removal should not be made because it would derogate from the principle of open justice. The court concluded that it was necessary to make the proposed consent order to prevent prejudice to the proper administration of justice. The court decided that the removal of the unredacted defence and unredacted reply from the court file was necessary to prevent prejudice to the proper administration of justice. The court considered the compromise the parties reached in this case, including filing the proposed consent orders, to be a lawful compromise of the whole of the proceeding, including the interlocutory application for strike out and removal. The court also considered the implications of not making the proposed consent order for the settlement of disputes by parties and the proper administration of justice. The court made orders that the unredacted defence and unredacted reply be removed from the court file and not to be opened or made available for inspection by the public other than by leave of the court. The interim suppression and non-publication orders made on 10 May 2021 were revoked. The interlocutory application filed by Shane Dowling on 11 May 2021 was dismissed.

Orders