Porter v Dyer
[2022] FCAFC 116
•14 July 2022
FEDERAL COURT OF AUSTRALIA
Porter v Dyer [2022] FCAFC 116
Appeal from: Dyer v Chrysanthou [2021] FCA 578
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642
Dyer v Chrysanthou (NSD 426 of 2021, Orders dated 23 June 2021)
File number: NSD 612 of 2021 Judgment of: BESANKO, LEE AND ABRAHAM JJ Date of judgment: 14 July 2022 Catchwords: PRACTICE AND PROCEDURE — appeal from orders made by Federal Court of Australia pursuant to s 23 of Federal Court of Australia Act 1976 (Cth), enjoining second respondent from acting for appellant in proceedings NSD 206 of 2021 (defamation proceedings) — where prior to defamation proceedings being brought by appellant, first respondent had sought legal advice and attended conference with second respondent and instructing solicitor, as well as friend of first respondent, Mr James Hooke — where primary judge found real and sensible possibility of misuse of confidential information imparted to second respondent during conference, applying analytical framework in Nash v Timbercorp Finance Pty Ltd (in liq) [2019] FCA 957; (2019) 137 ACSR 189 and, as second basis for order, need to protect integrity of judicial process and due administration of justice — whether open to primary judge to accept evidence of Mr Hooke as to what occurred at conference — whether error established on basis that confidential information found by primary judge or any of it had lost character of confidentiality by having entered public domain — whether primary judge erred in finding second respondent proposed to act “against” first respondent in defamation proceedings — whether primary judge erred in finding real risk that confidential information imparted during conference was relevant to defamation proceedings — whether error established in relation to conclusion of risk of misuse of confidential information — whether primary judge erred in relation to second basis of injunction in failing to consider “cab rank” principle in Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and appellant’s rights — appeal dismissed
PRACTICE AND PROCEDURE — appeal from ruling made during hearing before primary judge, allowing second affidavit of Mr Hooke to be filed and read by first respondent — where affidavit served on appellant two days before first day of hearing before primary judge and purported to set out precise content of confidential information said to have been imparted to second respondent at conference — whether primary judge failed to consider matters advanced by appellant in the appeal as giving rise to prejudice to appellant — appeal dismissed
PRACTICE AND PROCEDURE — application for leave to appeal from orders made by primary judge pursuant to s 37AF of Federal Court of Australia Act, prohibiting publication or disclosure of documents tendered as Exhibits 2, 3 and 6 — whether error in process of reasoning adopted by primary judge, to link information in Exhibits 2, 3 and 6 to one or more of categories of confidential information identified — application dismissed — consideration of requirement in s 37AJ of Federal Court of Australia Act that order specify a period for its operation
Legislation: Evidence Act 1995 (Cth) s 135
Federal Court of Australia Act 1976 (Cth) ss 24, 37AE, 37AF, 37AG, 37AH, 37AI, 37AJ
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)
Cases cited: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430
Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533
Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438
Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377
Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; (2014) 228 FCR 252
Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642
Dyer v Chrysanthou [2021] FCA 578
El-Cheikh v Miraki [2017] NSWSC 1765
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Giannarelli v Wraith (1988) 165 CLR 543
Grant v Downs (1976) 135 CLR 674
Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
House v The King [1936] HCA 40; (1936) 55 CLR 499
James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102
Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
Nash v Timbercorp Finance Pty Ltd (ACN 054 581 190) (in liq) [2019] FCA 957; (2019) 137 ACSR 189
Oreb v Australian Securities and Investments Commission [2016] FCA 321; (2016) 154 ALD 124
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357
R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966
Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311
Russell v Russell (1976) 134 CLR 495
Scott v Scott [1913] AC 417
Sent v John Fairfax Publication Pty Ltd [2002] VSC 429Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 175 Date of last submissions: 3 June 2022 (Appellant) Date of hearing: 20 April 2022 Counsel for the Appellant: Mr B Walker SC with Mr C O’Neill Solicitor for the Appellant: Company Giles Counsel for the First Respondent: Mr M Hodge QC with Ms A Cameron Solicitor for the First Respondent: Marque Lawyers Counsel for the Second Respondent: Ms A Horvath SC with Mr D Harris Solicitor for the Second Respondent: Kennedys (Australasia Partnership) ORDERS
NSD 612 of 2021 BETWEEN: CHARLES CHRISTIAN PORTER
Appellant
AND: JOANNE ELIZABETH DYER
First Respondent
SUE CHRYSANTHOU SC
Second Respondent
ORDER MADE BY:
BESANKO, LEE AND ABRAHAM JJ
DATE OF ORDER:
14 JULY 2022
THE COURT ORDERS THAT:
1.The parties confer as to the outstanding issues of the duration of the order of 23 June 2021, the costs of the cross-appeal and any final suppression orders to be made with respect to documents in the appeal proceeding, including the Court’s reasons. Within 14 days, the first respondent is to file the following:
(a)Agreed and signed minutes of order dealing with the disposition of the appeal and cross-appeal, including all matters of costs and suppression orders; or
(b)A short memorandum indicating the areas of agreement and disagreement between the parties as to the outstanding issues.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO AND ABRAHAM JJ:
INTRODUCTION
We agree in substance with Lee J’s reasons for rejecting Grounds 1 – 6 inclusive in the Notice of appeal. We respectfully disagree with his Honour’s conclusions in relation to Ground 7 in the Notice of appeal.
Ground 7 in the Notice of appeal is in the following terms:
The primary judge erred in making suppression orders over Exhibits 2, 3 and 6.
No particulars of the alleged error by the primary judge are provided in the Notice of appeal.
The primary judge made a suppression order with respect to a number of documents in the proceeding and the documents included Exhibits 2, 3 and 6. The order was expressed to have been made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and prohibited the publication or disclosure of specified documents, including Exhibits 2, 3 and 6 on the grounds that the order is necessary to prevent prejudice to the proper administration of justice and to preserve legal professional privilege over confidential communications. The order was subject to exceptions, but those exceptions are not relevant for present purposes.
The publication or disclosure of Exhibits 2 and 3 was prohibited in their entirety. The publication or disclosure of Exhibit 6 was prohibited only in part and a redacted form of Exhibit 6, which was not the subject of the order, was annexed to the order.
The primary judge delivered his substantive judgment in this proceeding on 27 May 2021. He heard submissions from the parties on the issue of the suppression orders which should be made on 17 and 18 June 2021. As we understand it, those hearings were live-streamed and there are transcripts of the hearings. Those transcripts, as we will later explain, identify the arguments and an indication from the primary judge of the approach he proposed to take to the resolution of the issues. On 18 June 2021, the primary judge reserved his decision.
On 23 June 2021, the primary judge advised the parties of the orders he made in chambers on that day by letter from his chambers which was in the following terms:
His Honour has determined that the disclosure of the documents and parts of documents the subject of the attached order should be prohibited because it is necessary to prevent prejudice to the proper administration of justice. A disclosure of the material is reasonably likely to result in the disclosure of the confidential information and privileged communications which the applicant disclosed to the Court in order to obtain the relief she sought, being relief intended to prevent the possible disclosure or use of that information.
THE APPELLANT’S SUBMISSIONS ON THE APPEAL
The appellant’s submissions on the appeal with respect to Ground 7 were confined to his written submissions and they were very brief.
In his submissions in chief, the appellant described the documents in issue as communications between the first respondent and journalists friendly to her. He submitted that there is no suggestion that the second respondent was aware of the text messages or that they were part of the confidential information or that they were discussed at the conference on 20 November 2020. It is true, as the appellant submits, that there is no suggestion that the second respondent was aware of the text messages or that they were discussed at the conference but, as we will explain, having regard to the basis upon which the primary judge made the orders, those matters do not advance the appellant’s case.
The appellant concluded his submissions in chief by submitting that obtaining a suppression order is “a high bar” and there is no juristic reason to have made the orders.
In his submissions in reply, the appellant submitted that in the absence of reasons, the appellant and others “are none the wiser as to the juristic basis for the order”. As we will explain, having regard to the transcripts of the hearings before the primary judge on 17 and 18 June 2021 and the letter from the judge’s chambers, the reasons for the orders are sufficiently clear.
LEAVE TO APPEAL IS REQUIRED
Suppression orders are taken to be an interlocutory judgment and leave to appeal is required (s 24(1D) and (1A) of the Federal Court of Australia Act).
The appellant has not made a written application for leave to appeal. Assuming an oral application is being made by the appellant, the test for a grant of leave to appeal is well known. In Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 (Decor v Dart), the Full Court of this Court said (at 398–399):
The question was raised whether, on an application for leave to appeal, the court should regard itself as bound to apply a formula said to have been laid down in Niemann v Electronic Industries Ltd [1978] VR 431. In Sharp v Deputy Commissioner of Taxation(Cth) (1988) 88 ATC 4,184 at 4,186 (and see also Merman Pty Ltd v Cockburn Cement Ltd [1989] 11 ATPR 49,951 at 49,954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991)) Burchett J stated the “major consideration[s]”, to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second
“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
…
In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”
In our opinion, the major considerations to be derived from Niemann do provide an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought. If differently constituted courts are to give consistent rulings, it is necessary that they be guided by relevant principles. …
For reasons we will give, and subject to one matter, we reject the appellant’s submissions and would refuse leave to appeal. In our opinion, even if the first limb of the test is satisfied, the second limb is significant in this case. Even accepting that issues of substantial injustice might include third parties and the public generally, it certainly includes the appellant and we are not satisfied that there will be any substantial injustice to the appellant if the suppression orders remain in place in relation to Exhibits 2, 3 and 6. That is a relevant matter.
The one matter is a matter not raised by the parties before the primary judge or before this Court. It was raised by the Court and relates to whether there is a requirement that the order specify a fixed or ascertainable period or a period specified by reference to the occurrence of a specified future event during which the order operates. Section 37AJ of the Federal Court of Australia Act provides as follows:
(1)A suppression order or non-publication order operates for the period decided by the Court and specified in the order.
(2)In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.
(3)The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
We will return to this matter.
THE APPROACH OF AN APPEAL COURT TO A SUPPRESSION ORDER MADE AT FIRST INSTANCE
The order itself states that the Court considered that the order is necessary to prevent prejudice to the proper administration of justice. That reflects the statutory test (s 37AG(1)(a) of the Federal Court of Australia Act).
In Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (Hogan), the High Court said that the word necessary is a strong word (at [30]). This Court has emphasised the importance of taking into account the circumstance that a primary objective of the administration of justice is to safeguard the public interest in open justice (Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 (Country Care) at [8]–[9]).
The test does not involve the exercise of a discretion and the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 do not apply on an appeal from such an order (Hogan at [33]; Country Care at [9]). Nevertheless, there is often a significant evaluative element involved in making a suppression order and that is to be borne in mind.
THE APPROACH TAKEN BY THE PRIMARY JUDGE DID NOT INVOLVE ERROR
We have considered the transcripts of the hearings on 17 and 18 June 2021 and the letter from the primary judge’s chambers carefully. The following matters are clear:
(1)The basis for the orders advanced by the first respondent was confidential communications and prejudice to the proper administration of justice, not legal professional privilege as such.
(2)The appellant accepted before the primary judge that insofar as material discloses confidential and privileged communications, that would ordinarily be a matter which provides a basis for a suppression order.
(3)The question the primary judge posed for himself was whether a reasonable person would draw the inference that the information in Exhibits 2, 3 and 6 (or any part of it) was information provided in confidence to the second respondent at the conference on 20 November 2020 with the result that the reasonable person would become aware of the confidential information disclosed at the conference by the disclosure of the exhibits (Transcript of proceedings on 18 June 2021 p 14, line 16). The letter from the primary judge’s chambers suggests a modification of this test to one of reasonably likely to result in disclosure. In our opinion, that less demanding test is nevertheless a sufficient basis for the making of a suppression order.
(4)The first respondent submitted that the reasonable person would draw the inference that the information in Exhibits 2, 3 and 6 was provided at the conference on 20 November 2020 because the exhibits were relevant to the issues in the proceeding — they had been discovered by the first respondent — and had been tendered by the appellant on the second day of the hearing, i.e., 25 May 2021, at which time they were made the subject of non-publication orders. Moreover, the issue of their possible disclosure was discussed in open Court at the hearings on 17 and 18 June 2021.
(5)The final step in the process of reasoning adopted by the primary judge was to link the information in Exhibits 2, 3 and 6 to one or more of the categories of confidential information identified by the primary judge.
It is true that the points set out above are taken from submissions by the parties and exchanges between counsel and the primary judge and not in large measure from reasons of the primary judge, but we do not consider that an obstacle in this case because the approach of the primary judge is clear, extensive reasons for suppression orders are not generally required and most importantly, it is for the appellant to identify error and he has not done so.
Subject to linking the information in Exhibits 2, 3 and 6 to one or more of the categories of confidential information identified by the primary judge, we see no error in his Honour’s approach.
Exhibit 2 is a single page containing three text messages between the first respondent and Mr Hooke on 27 June 2020. The important and relevant subject of the exhibit is XXXX XXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXX XXXXX XXXXX XXXXX XXXXX XXXX.
It is true that XXXXX XXXXX X X XXXXX XXXXX XXXXX XX XXXXX XX XXXXX XX XXX XXXXX XX XXXXX XXX, but they deal with a subject clearly discussed at the conference (see para 19 of Mr Hooke’s affidavit sworn on 21 May 2021 (Appeal Book Part C Tab 13); primary judge at [85]–[96]) and, in our opinion, it was open to the primary judge to conclude that the disclosure of the text messages was reasonably likely to result in the disclosure of confidential information.
Exhibit 3 is a number of text messages XXXXX XXXXX XXXXX XXXX XX XXXXX XXX XXXXX XXXXX XX. XXXXX X XXXXX XXXXX XXXXX XXXXX X XXX XXXXX XXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX XXXXX X XXXXX XXXXX X XX XXXXX XXXXX XXXX. That is confidential information (Information E) and again, in our opinion, it was open to the primary judge to conclude that the disclosure of the messages was reasonably likely to result in the disclosure of confidential information.
Exhibit 6 comprises five pages of text messages between the first respondent and another journalist, Ms Annabel Crabb, XXXXX XXX XXSSXXXXX . Page 1 of the five pages is not suppressed. Pages 2 and 3 were said to relate to categories of Information G and F, but we have difficulty in seeing how that is so. Nevertheless, by reference to the second limb in Decor v Dart, we would not grant leave to appeal with respect to those pages alone.
Pages 4 and 5 clearly relate to the second purpose of the conference on 20 November 2020 which the primary judge found was confidential information and provides a basis for the suppression order. We see no reason to interfere with the primary judge’s conclusion that the second purpose of the conference was confidential information.
There are two remaining matters.
First, the order of 23 June 2021 is framed in a way that suggests the preservation of legal professional privilege over confidential communications is a free-standing ground for a suppression order as distinct from an aspect of prejudice to the proper administration of justice. It seems to us that this is most likely a slip and we are fortified in that view by the terms of the letter from the primary judge’s chambers. The matter can be corrected in the final orders disposing of the appeal and cross-appeal without effect on the substantive orders or the order as to costs.
Second, the matter raised earlier about the duration of the order and s 37AJ of the Federal Court of Australia Act must be considered. Such authority as we have been able to find suggests that a concluding date or event for a suppression order must be identified (Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [24] per Perram J; Oreb v Australian Securities and Investments Commission [2016] FCA 321; (2016) 154 ALD 124 at [94] per Markovic J).
In the circumstances, we will proceed as follows.
Subject to the corrections to the suppression order of 23 June 2021, which we have identified, and which, as we have said, do not bear on the question of costs, the appeal should be dismissed with costs. As to the second respondent’s cross-appeal, Ground 1 was contingent on the appellant succeeding on the appeal — an event which has not materialised — and Ground 2 was abandoned. The cross-appeal must be dismissed. If the costs of the cross-appeal cannot be agreed, we will hear the parties. With respect to the duration of the order of 23 June 2021, we are provisionally of the view that a duration of 10 years is appropriate. We will hear the parties if any party seeks to be heard, either as to the need for a specified period for the order and/or the proposed duration of 10 years.
The parties are to confer as to the outstanding issues of the duration of the order of 23 June 2021, the costs of the cross-appeal and any final suppression orders to be made with respect to documents in the appeal proceeding, including the Court’s reasons. Within 14 days, the first respondent is to file the following:
(1)Agreed and signed minutes of order dealing with the disposition of the appeal and cross-appeal, including all matters of costs and suppression orders; or
(2)A short memorandum indicating the areas of agreement and disagreement between the parties as to the outstanding issues.
In the event of (2), the Court will put in place directions for the resolution of the outstanding issues.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Besanko and Abraham. Associate:
Dated: 14 July 2022
REASONS FOR JUDGMENT
LEE J:
A INTRODUCTION AND BACKGROUND
This is an appeal against orders and a ruling made by the primary judge. They are as follows:
(1)First, orders enjoining the second respondent, Ms Sue Chrysanthou SC, from acting for the appellant, Mr Christian Porter, in a defamation proceeding commenced by him against the Australian Broadcasting Corporation (ABC) and one of its journalists, Ms Louise Milligan (Defamation Proceeding): Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641 (PJ or primary judgment).
(2)Secondly, a ruling during the course of the hearing that led to the primary judgment, whereby the primary judge gave leave to the first respondent, Ms Joanne Dyer, to file and read an affidavit sworn by Mr James Hooke on 21 May 2021 (Hooke Affidavit): Dyer v Chrysanthou [2021] FCA 578 (Hooke Judgment).
(3)Thirdly, orders made following the primary judgment as to costs: Dyer v Chrysanthou (No 3) (Costs) [2021] FCA 642 (Costs Judgment).
(4)Fourthly, suppression orders made subsequent to the delivery of the primary judgment (unaccompanied by detailed reasons) over Exhibits 2, 3 and 6, being communications between Ms Dyer and Mr Hooke and various journalists (Suppression Orders). In this last respect, leave was necessary to bring the appeal.
The relevant background leading up to the hearing below can be sketched relatively briefly.
On 9 November 2020, the ABC broadcast an episode of the Four Corners television programme entitled “Inside the Canberra Bubble”. Excerpts from an interview with Ms Dyer conducted by Ms Milligan were aired. Part of the interview that was not aired concerned Ms Dyer recounting to Ms Milligan the information that a deceased woman had, it was said, alleged to Ms Dyer that Mr Porter had raped her. The deceased woman was known below as “AB”. Although part of the name is known publicly, for the sake of consistency, and with no disrespect, these reasons adopt the pseudonym used below.
Ms Dyer had been in contact with Ms Milligan as early as at least July 2020 (when she was interviewed) and, in the period prior to the broadcast of the programme, extensive communications were in evidence between: Ms Dyer and Ms Milligan; Mr Hooke (a friend of Ms Dyer) and Ms Milligan; and Ms Dyer and another of her friends, ABC journalist, Ms Annabel Crabb.
Ms Dyer had formed the view that the allegations made by AB against Mr Porter should become public. Mr Hooke was disappointed the Four Corners programme had not disclosed the allegations.
Very shortly thereafter, The Australian newspaper published an article authored by Ms Janet Albrechtsen, titled “Vested interests cornered by shoddy ABC hatchet job” (Newspaper Article). The Newspaper Article described Ms Dyer as a failed candidate for pre-selection by the Australian Labor Party. Ms Dyer, with the involvement of Mr Hooke, instructed a solicitor, Mr Michael Bradley, to provide advice to Ms Dyer.
Ultimately, a one-hour conference took place on 20 November 2020 (conference). Apart from Ms Chrysanthou and her instructing solicitor, in attendance were Ms Dyer, Mr Hooke and, for the latter part of the conference, another friend of Mr Hooke who was a junior barrister at the time, Mr Matthew Richardson.
Prior to the conference, Mr Richardson had provided Ms Chrysanthou with a copy of the Newspaper Article and an unsigned statement said to have been prepared by AB (Unsigned Statement). What occurred at the conference was the subject of disputed evidence, which will be discussed below. It is sufficient to note by way of introduction that no proceeding was ever commenced by Ms Dyer over the Newspaper Article, however, a “concerns notice” was sent by Ms Dyer to The Australian (a concerns notice is usually the first step in any prospective defamation proceeding, being a written notice sent by an aggrieved person to the publisher of allegedly defamatory material).
What did occur is that on 23 February 2021, an envelope marked “Urgent” was sent to various persons, including the then Prime Minister Scott Morrison and Senators Penny Wong and Sarah Hanson-Young, containing a five-page letter said to be from “[AB’s] Friend(s)”, drawing attention to the allegations made by AB and attaching the Unsigned Statement. The envelope, letter and statement were admitted into evidence by the primary judge as Exhibit 1, and the documents were described in the proceeding, collectively, as the “Dossier”.
Three days later, on 26 February 2021, the ABC published an article authored by Ms Milligan referring to the Dossier and entitled “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister” (Milligan Article). Following speculation as to the identity of the Cabinet Minister, Mr Porter subsequently identified himself as the person against whom the rape allegation had been made and denied the allegation.
Mr Porter also instructed a solicitor in relation to the Milligan Article, Ms Rebekah Giles, who delivered a brief to Ms Chrysanthou. Ms Chrysanthou gave evidence that she considered herself obliged to accept the brief. Following advice, Mr Porter commenced the Defamation Proceeding against the ABC and Ms Milligan in March 2021. Shortly before this occurred, Mr Hooke made a public statement in which he said he had made himself known to the New South Wales Police and asserted that he was willing to testify at any appropriately convened inquiry into Mr Porter’s conduct (notwithstanding that such an inquiry had not been convened).
Upon the Defamation Proceeding being commenced, Ms Chrysanthou notified the solicitor for Ms Dyer that she had accepted a brief to advise and appear for Mr Porter. A dispute as to the appropriateness of accepting the brief arose, and after a number of communications, on 11 May 2021, Ms Dyer filed an originating application seeking relief enjoining Ms Chrysanthou from further acting on behalf of Mr Porter and a concise statement. The dispute had the potential to disrupt the progression of the Defamation Proceeding. Orders were made by the primary judge readying the matter for an expedited final hearing, which commenced 13 days later, on 24 May 2021.
Consistently with the need to resolve the dispute with celerity, at the conclusion of the hearing, his Honour delivered ex tempore reasons (the primary judgment). Orders were made restraining Ms Chrysanthou on two bases, namely:
(1)the danger of misuse of confidential information received by Ms Chrysanthou in the context of her dealings with Ms Dyer; and
(2)the need to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice.
B THE SCOPE OF THE APPEAL
There are seven grounds of appeal and a cross-appeal. The cross-appeal, which relates to costs, as refined, is conditional upon the success of the appeal and can be put to one side for the present.
Some of the grounds of appeal partly overlap. They can be conveniently re-ordered and placed into five categories. Mr Porter asserts that the primary judge erred in:
(1)allowing the Hooke Affidavit to be read (Ground One) (Late Affidavit Issue);
(2)accepting Mr Hooke’s evidence as to what was said during the conference (Ground Three) (Credibility Finding Issue);
(3)finding relevant information was confidential (Ground Two), that Ms Dyer had a relevant interest in the Defamation Proceeding (Ground Four), and that there was a risk of misuse of the confidential information (Ground Five) (Confidential Information Issues);
(4)concluding that the administration of justice required restraint (Ground Six) (Administration of Justice Issue); and
(5)making the Suppression Orders (Ground Seven) (Suppression Issue).
It is convenient to deal with the issues in the order set out above.
C THE LATE AFFIDAVIT ISSUE
This contention can be disposed of shortly.
On the first day of the hearing, senior counsel for Ms Dyer sought, in effect, leave for the Court to receive the Hooke Affidavit and foreshadowed reading it. This course was opposed by senior counsel for Mr Porter.
A review of the transcript records that the arguments opposing the receipt of the Hooke Affidavit into evidence were as follows:
(1)it was not filed in accordance with the orders of the Court and was not evidence in reply;
(2)it went beyond the pleaded case;
(3)counsel could not deal with it in cross-examination of Mr Hooke, as it was not received until 8:30am on Saturday 22 May 2021; and
(4)the Court should exercise its discretion under s 135(a) of the Evidence Act 1995 (Cth) (Evidence Act) to exclude it.
As refined by the submissions made on appeal, it is now contended that receiving the Hooke Affidavit involved an error by the primary judge, as his Honour “failed to consider” the following four matters:
(1)the prejudice rendered by the fact that the evidence was principally in chief and not reply, and the significant expansion of the breadth of topics said to be confidential;
(2)that the Hooke Affidavit could not be fairly met because of limited time;
(3)that the Hooke Affidavit could not be the subject of response because a confidentiality regime existed preventing counsel from obtaining instructions from Ms Chrysanthou; and
(4)that a defence had been filed in the Defamation Proceeding (prior to the ruling) “which contained the extent of material asserted by the ABC as relevant to those proceedings from Mr Hooke (and Ms Dyer)”.
As noted above, the primary judge gave detailed and thorough reasons for his ruling in the Hooke Judgment. Upon reading those reasons, it is impossible to reconcile a submission that his Honour fell into error in failing to consider the first two matters identified in the preceding paragraph. They were clearly considered and weighed in the exercise of a discretion under Pt 3.11 of the Evidence Act not to exclude evidence otherwise accepted as passing through the Pt 3.1 relevance “gateway”.
As to the third matter noted above, Mr Porter’s counsel below did not suggest that any fetter in obtaining instructions from Ms Chrysanthou (because of a confidentiality regime adopted by Ms Chrysanthou) would somehow change depending upon when the Hooke Affidavit had been served. It did not matter when the affidavit was delivered because Ms Chrysanthou had determined it was to her forensic advantage not to familiarise herself with the affidavit evidence served detailing what was alleged to have been communicated to her (which she could not now remember). Even if this factor had been developed below as it was on appeal, given the forensic decision of Ms Chrysanthou, it was not of importance to the exercise of a discretion to allow Ms Dyer to rely on the Hooke Affidavit.
As to the fourth factor noted above, this was not the way the argument for discretionary exclusion was advanced below. Needless to say, the primary judge did not fall into error by failing to have regard to a matter not advanced before him.
Mr Porter submits that it was not necessary for him to establish error of the type identified in House v The King (1936) 55 CLR 499 in relation to the rejection of the application to exclude the Hooke Affidavit. Although the argument against allowing reception of the Hooke Affidavit relied, in part, on case management considerations, the argument proceeded below on the basis that the evidence should be excluded under s 135 of the Evidence Act. As was recently noted in Herron v HarperCollins Publishers Australia Pty Ltd [2022] FCAFC 68 (at [516] per Lee J, with whom Rares J and Wigney J agreed at [147] and [265] respectively), this involves a three-step (partly evaluative and partly discretionary) exercise: first, assessing the extent to which the evidence could rationally affect the assessment of the probability of the existence of the fact in issue; secondly, assessing whether that probative value is substantially outweighed by an identified danger; and thirdly, the exercise of a discretion as to whether the evidence should be the subject of exclusion (being a balancing exercise): see also James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 (at [29] per Giles, McColl and Macfarlan JJA).
There is no complaint that the primary judge misapprehended the probative value of the proposed evidence, and his Honour also identified the suggested unfair prejudice. In effect, the arguments advanced suggest his Honour erred in the exercise of his discretion.
Other than the contention the primary judge failed to consider the four matters identified at [52] above, Mr Porter has not contended the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, or mistook the facts. To the extent any submission on behalf of Mr Porter made orally can be characterised as one whereby it is asserted that upon the facts the exercise of discretion was unreasonable or plainly unjust, that contention is not made out.
The primary judge recognised the prejudice caused by the late service of the Hooke Affidavit, which belatedly set out the precise content of the confidential information. He appreciated that the case articulated by the concise statement (which is not a pleading) was pitched at a higher level of generality. His Honour further recognised the difficult position in which the cross-examiner was placed, including as to obtaining further documents as may be relevant to the proposed cross-examination. But the primary judge sought to accommodate such prejudice by facilitating the early return of any compulsory process and foreshadowed that an application could be made for an adjournment. A decision was made by senior counsel to press on, and no such application was made.
Balanced against this prejudice was the efficiency with which the case had been brought on by the primary judge, reflecting its urgency, and the importance (both as between the parties and generally) of avoiding the spectre of the case being determined “in the absence of the detailed account of confidential information” said to have been given in the Hooke Affidavit: Hooke Judgment (at [5]). The way the primary judge recognised and then weighed the relevant considerations was not attended by error, and this aspect of the appeal fails.
D CREDIBILITY FINDING ISSUE
Grounds Two and Three are related but best approached in two stages. The first issue is whether it was open to the primary judge to accept the evidence of Mr Hooke as to what occurred at the conference (Credibility Finding Issue). The second is the conclusion drawn by his Honour, having regard to his findings as to Mr Hooke’s evidence and the balance of the evidence, that part of the information conveyed at the conference was confidential information. This second aspect will be considered in the following section of these reasons.
Evidence was given by a number of participants at the conference. Mr Hooke, Ms Dyer and Mr Bradley were all called and cross-examined by counsel for Mr Porter, as was Ms Chrysanthou, who was cross-examined by senior counsel for Ms Dyer. Mr Hooke was the only witness who gave a detailed account of what was said.
Although trite, it is important to note at the outset that in relation to findings of fact, although appellate courts are obliged to conduct a real review of the trial, they should always bear in mind that they have neither seen nor heard the witnesses and make appropriate allowances: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 126–127 [25] per Gleeson CJ, Gummow and Kirby JJ); Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 (at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ).
Mr Porter now makes three specific points, namely:
(1)the Hooke Affidavit was accepted as providing an accurate account, even though it had not been the subject of challenge and it became practically impossible to raise any proper challenge to the Hooke Affidavit given the operation of the confidentiality regime and late service; this should have been, but was not, considered by the primary judge in relation to the possible acceptance of the evidence;
(2)the attention given to an aspect of evidence (in the Hooke Affidavit at [21]) that at the conference Ms Dyer and Mr Hooke were interested to explore one topic (being XXXXX XXXXX XXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXX XXXXX XXXXX XXXX), as a basis of preferring the evidence of Mr Hooke; and
(3)there was “a clear incongruity between Mr Hooke’s account of what occurred at the conference, and the contemporaneous record” because Mr Hooke’s account was of a conference that “was detailed and sombre” but Mr Bradley had sent a follow-up email describing the conference as “high level entertainment.”
I will deal with each of these points in turn. Before doing so, it is important initially to understand why the primary judge accepted the evidence of the Hooke Affidavit.
First, Mr Hooke was found to be a “credible”, “reliable and truthful witness” who made appropriate concessions, was unlikely to “give a false account” and gave his “genuine recollection of what occurred”, “consistent with contemporaneous communications”: PJ (at [16], [90]–[91]).
Secondly, to the extent Ms Chrysanthou’s evidence was inconsistent with evidence of Mr Hooke, it was not because Ms Chrysanthou was being less than truthful, but because her recollection was “not good and certainly not as good as that of Mr Hooke”, probably because the conference was a matter of “particular personal significance for him” but not for her: PJ (at [87]). In this regard, his Honour made reference to Ms Chrysanthou’s recollection being “demonstrated to be incorrect in a number of ways”, including (at PJ [87]–[91]):
(1)in relation to Mr Hooke’s attendance at the meeting;
(2)in relation to Mr Richardson’s attendance at the meeting;
(3)the merger of two separate conversations;
(4)her lack of recollection of a prior conversation with, and email from, Mr Richardson ahead of the meeting; and
(5)her denial of one purpose of the conference, which was not supported by the contemporaneous documentary evidence.
The notion that a busy silk may have a less clear and complete recollection of a conference than a lay participant (keenly interested in hearing the silk’s view as to matters of acute interest to the lay participant) is hardly surprising. More importantly, his Honour had the advantage of seeing the evidence being given in the witness box and gave cogent reasons for his credibility-based assessment.
The three specific points made by Mr Porter have no substance. As to the first, the primary judge was well aware of the fact Mr Hooke was being cross-examined by a barrister whose client did not attend the conference and the fact the affidavit had been served late. These facts do not undermine his credibility-based findings.
As to the second, the contemporaneous material XXXXX XXXX XXXXX XXXXX XX XXXX XXXXX XXXXX XXXXX XXXXX XXX XXXXX XXXXX XXXX. It is inherently probable that this was a topic of close interest at the conference. In her affidavit (at [29]), Ms Chrysanthou noted XXXXX XXXXX XXX XX XXXXX X XX XXXX XXXX XXXXX XXXXX XXXXX XX X XXXXX XXXXX XXXXX X X XXXXX XXXX XXXXX X XXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXX XXXXX XXXXX XXX XXXX XXXXX X XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X XXXXX XXXXX XXX XXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX. But the point made by the primary judge was that Ms Chrysanthou denied that XXXXX XXXXX XXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X. His Honour was, with respect, clearly correct to conclude that it is improbable that this topic was not discussed. Ms Chrysanthou’s denials that she was told about this topic during the conference were taken not as a pointer to the witness being untruthful, but as a matter (among others) reflecting a lack of accurate recollection. This reasoning not only involved no error, but was compelling.
As to the third point, Mr Porter submits that the email sent by Mr Bradley would be “most odd” if XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX . As his Honour’s findings make clear, this was not all that was discussed. There is nothing inherently improbable in reconciling this finding with the notion that a solicitor may have also found the conference, or parts of it, amusing.
There is no substance in Ground Three.
E CONFIDENTIAL INFORMATION ISSUES
E.1 Introduction
What Ms Dyer needed to establish to obtain equitable relief by way of an injunction was common ground, both below and on appeal.
Irrespective as to whether the relevant obligation of confidence was legal or equitable, an injunction can run (in equity’s exclusive or auxiliary jurisdiction) if there is a real and sensible possibility of the misuse of confidential information. As the primary judge noted (at PJ [64], [77]), the test for restraining a legal practitioner on the basis of the possible misuse of confidential information may be dissected in a number of ways. Reflecting upon the authorities, his Honour proceeded to apply the relevant test (outlined at PJ [74]–[78]) by responding to the following sequence of questions:
(1)What is the relevant information?
(2)Is that information confidential?
(3)Does the legal practitioner have possession of that information?
(4)Is the legal practitioner proposing to act “against” the former client in the requisite sense?
(5)Is there a real risk that the confidential information will be relevant?
(6)Is there no real risk of misuse of the confidential information?
It was also not in dispute on appeal that it was for the moving party to identify the relevant information with specificity (the first question) and to obtain an affirmative answer to the next four questions. If that occurred, the burden of establishing that there was no real risk of misuse (the sixth question) was on the resisting party. It was recognised by both the parties and the primary judge that these questions (drawn from Nash v Timbercorp Finance Pty Ltd (ACN 054 581 190) (in liq) [2019] FCA 957; (2019) 137 ACSR 189 (at 200 [62]–[64] per Anderson J)) were not a replacement for the test, but had utility as an analytical framework. On appeal, they continue to provide a useful structure for identifying, and then evaluating, the alleged errors of the primary judge (although it is convenient to deal initially with the first and third questions together and, in doing so, identify the key findings of the primary judge).
A further point should be made by way of introduction to the Confidential Information Issues. On appeal, aspects of the details of argument were somewhat different to the way Mr Porter conducted this aspect of his case below. This is illustrated by an “aide-mémoire” provided by counsel now acting for Mr Porter on appeal during the course of oral address. This document sought to supplement the written submissions filed on appeal (which were relevantly couched in very general terms) by specifying how the information alleged and found to be confidential had entered the public domain or otherwise been disclosed. Apart from being late, it was, unhelpfully, not cross-referenced with the appeal book numbering. Given some exhibit numbering was not reproduced on appeal, it was a document of limited utility. The document did confirm that Mr Porter contended before the primary judge that the confidential information had been disclosed publicly or otherwise disseminated and was not confidential. It also confirmed that Mr Porter has consistently maintained a submission that classification of the confidential information into “topics” is contrary to principle, but if such an approach lacking specificity is adopted, it should follow that if part of a topic is disclosed, the rest of that topic is no longer confidential.
But despite the submissions on appeal reflecting an argument put before the primary judge, the document had some differences in detail to a similar document provided to the primary judge (Confidential Annexure A). Moreover, the aide-mémoire made no reference to concessions of senior counsel below that aspects of the confidential information had entered the public domain.
E.2 The relevant information and the possession of it by Ms Chrysanthou
As noted above, following service of the Hooke Affidavit, specificity was belatedly provided as to the relevant information and the material alleged to be confidential by Ms Dyer was identified as falling into 14 topics, described (at PJ [85]) as Information A to N.
Based primarily (but not wholly) upon his acceptance of the evidence of Mr Hooke, the relevant findings of the primary judge as to the confidential information can be summarised as follows:
(1)there was information disclosed during the conference being “much” of the information as referred to in the Hooke Affidavit (PJ at [96]), but it was unnecessary to go through each topic of information (PJ at [127]);
(2)the following specific topics were disclosed: Information C (PJ at [118]); Information D (PJ at [120]); Information E (PJ at [116]); Information G (PJ at [114], [124]) and Information I (PJ at [122]); and
(3)further, there was, among other things, information disclosed as to Ms Chrysanthou’s assessment of Ms Dyer as a witness, and of the credibility of Ms Dyer’s account of the facts (see PJ at [96], [101] and [125]).
Although his Honour found that the confidential information conveyed to Ms Chrysanthou may not be limited to Information C, D, E, G and I, senior counsel for Mr Porter accepted that the determination as to confidential information “should stand or fall” on the primary judge’s conclusions based on these specific aspects of the confidential information. It is sufficient for the Full Court to proceed in considering the alleged errors on this basis, and any residual complaint about the confidential information being placed into topics can be put to one side. For ease of reference, in the balance of these reasons, I collectively refer to Information C, D, E, G and I, each of which was found to be conveyed at the conference, as the confidential information.
E.3 Was the information confidential?
This was an important aspect of the argument developed orally on appeal on behalf of Mr Porter that differed from the argument advanced below. It was said on appeal that what in fact is confidential is not the information conveyed in the conference itself, but the fact that the information was the subject matter of discussion at the conference. Before the primary judge, it is evident that this case was fought on the basis that, ordinarily, information disclosed in the course of a lawyer/client relationship is confidential and the lawyer owes a subsisting duty of confidentiality unless there is consent to disclosure or the relevant information comes into the public domain or otherwise becomes non-confidential. Consistently with the issue as to confidentiality being framed this way, there was no dispute below that some of the specified information disclosed during the conference was (at least in limited respects) in the public domain (both before and after the conference). The battleground between the parties in this part of the argument was identifying, with specificity, what part of the information conveyed in the conference was in truth confidential, in the sense it was not the subject of a subsisting obligation of confidence because that part of the information had been publicly disclosed by the time of the hearing.
In this regard, in contrast to the case put on appeal, following a concession made in closing submissions by senior counsel for Mr Porter below, there was no dispute before the primary judge that Information D was confidential. Similarly, the record below reveals that as to Information I, while some related information was in the public domain, it was not in dispute that this aspect of the confidential information “is not in the public domain”.
As to Information C, Mr Porter points to XXXXX X X XXXXX XX XXXXX XXX XXXX XXXX XXX XXXXX XXXXX XXXXX XXX XXXXX XXXX X XX XXXXX XXXXX XXXXX XXXXX XXXXX XXXX XX XX XXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX X XXXX XX XXXX XXX XXXXX XXXXX XXX XXXXX X XXX XXX XXXXX XX XX. Information C, which related to this topic, was imparted to Ms Chrysanthou and remained subject to an obligation of confidence.
As to Information E, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXX, it is correct that some disclosure of part of this information occurred, but that does not mean that what was imparted in the conference on those topics was not imparted to Ms Chrysanthou confidentially. Needless to say, given the defence of qualified privilege, XXXXX XXXXX XXXXX XXXXX XXX XXX XXXXX X XXXXX XXXXX XXXXX XXXXX XXXXX XXXX, but the extent of the information disclosed in conference would not necessarily be disclosed in any defence or interrogatories. The fact that the confidential information may not have coincided precisely with information in the public domain ((XXXXX XXXXX XXXXX XXXXX XXX XXXXX X) meant that it was not public and remained confidential at the time of the hearing.
Information G, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXX XXXXX XXX, was not information that was public and non-confidential.
Mr Porter suggests that the primary judge elided the notion of information not entering into the public domain with the conclusion that information was confidential. Although it is correct that information may lose its character of confidence even where it is not yet in the public domain, this is not the case with the specifics of the information found to have been disclosed in conference by the primary judge. The relevant information was disclosed to Ms Chrysanthou confidentially. Although public dissemination of information otherwise subject to an obligation of confidence may be relevant to the question of the risk of misuse, no error has been disclosed in the conclusions reached by the primary judge as to the first aspect of the analysis.
E.4 Did Ms Chrysanthou propose to act “against” Ms Dyer in the requisite sense?
Mr Porter submitted that the primary judgment provided “no clue” as to how Ms Chrysanthou was acting against Ms Dyer in circumstances where she was not a party to the Defamation Proceeding, nor was she a likely witness given she was “simply named in a verification particular on an unremarkable point”. Orally, senior counsel for Mr Porter submitted that the primary judge failed to identify “how having the brief for Mr Porter threatens in any way against the interests, however broadly understood, of Ms Dyer”. If Ms Dyer was not likely to be a witness (contrary to the conclusion of the primary judge), the notion that Ms Chrysanthou was acting against Ms Dyer could only be made out, it was submitted, if “Ms Dyer is to be treated as somebody who is entitled to prevent counsel from appearing for somebody whom she disapproves. Mr Porter”. Finally, it was said that if one was to put to one side the illegitimate notion that anything in favour of Mr Porter is against the interests of Ms Dyer, then “we are left with an unexplained mapping of forensic possibilities and then an understanding of their extent and nature” so as to draw a conclusion as to whether relief should be granted because Ms Chrysanthou proposed to act “against” Ms Dyer in the requisite sense.
But these arguments do not do justice to his Honour’s reasons.
Much was made of the primary judge’s finding (at PJ [105]), that it was “at least reasonably possible” and there was “a real possibility” that Ms Dyer would be called as a witness in the Defamation Proceeding. This involved an acceptance of the submission made on behalf of Ms Dyer that this conclusion was merited because of the ABC’s pleading of the defence of qualified privilege. His Honour’s conclusion that Ms Dyer was unlikely to be called as a witness in relation to the pleaded truth defence was clearly correct, but with respect to his Honour, it is somewhat difficult to see how there was a realistic possibility of Ms Dyer being called by the ABC in relation to the qualified privilege defence. There could be no bona fide as to what Ms Dyer told the ABC, as it was recorded. One struggles to conceive any other fact in issue where anything Ms Dyer could say would be relevant. At least no such issue was articulated by those acting for Ms Dyer.
But as the primary judge made clear (at PJ [106]), this was not decisive. As his Honour explained, Ms Chrysanthou was a barrister acting for Ms Dyer and received the confidential information in the course of acting for Ms Dyer. Consequently, she owed a duty to Ms Dyer to protect that information and it was not open for Ms Chrysanthou to decide, against the wishes of Ms Dyer, that she would risk using the confidential information for the benefit of any other person.
Relying upon the observations of Anderson J in Timbercorp (at 206 [98]), the primary judge explained that a relevant conflict arises where the use of the information “may be regarded as against the client’s interests, whether legal or otherwise”: PJ (at [104]). In other words, the relevant conflict is not limited or confined to a client’s legal interests but extends to other interests of the client. This articulation of principle was not disputed below.
Hence the question of whether Ms Chrysanthou was proposing to act “against” Ms Dyer in the requisite sense does not depend upon Ms Dyer being a party to a dispute or being a witness called in litigation between other parties. The primary judge noted that Ms Dyer consulted Ms Chrysanthou “XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXX XXXXX XXX. Confidential information was disclosed in that context” and Ms Chrysanthou then “accepted a brief for the person about whom Ms Dyer wanted AB’s allegations made public”: PJ (at [142]). Read in context, this reasoning did not impermissibly embrace a notion that anything in favour of Mr Porter was against the interests of Ms Dyer, but rather was an explanation as to why Ms Dyer was not prepared to allow the confidential information imparted to Ms Chrysanthou for Ms Dyer’s purposes, to be used later without Ms Dyer’s consent for any other purpose. To do so absent her consent was to act against her interests.
Irrespective as to whether his Honour ought to have concluded that there was a reasonable possibility or prospect of Ms Dyer being called, it was open to his Honour to conclude that in the circumstances of the case, Ms Chrysanthou was proposing to act against Ms Dyer in the relevant sense. No error requiring appellate intervention is established.
E.5 Was there a real risk that the confidential information was relevant?
In written submissions, the finding of the primary judge that the confidential information was relevant to the Defamation Proceeding was the subject of criticism. However, given the way Ground Five of the appeal was framed and developed in oral argument, these criticisms were largely subsumed into the argument that the primary judge erred in finding that there was risk of misuse of the confidential information.
This is unsurprising, because if the conclusion reached was that the relevant confidential information was highly relevant, or only of limited relevance, these differing assessments may rationally bear upon the distinct question as to whether there was no real risk of misuse. But there is utility in dealing with the two questions separately, because it was Ms Dyer who was required to demonstrate risk of relevance and then, if established, it was for Mr Porter to demonstrate that there was no real risk of misuse.
Although Ms Dyer may not have been a likely witness, this does not mean there was not a real risk the confidential information would be relevant. Of course, risk of relevance is assessed by reference to the barrister’s proposed retainer or brief, not simply a risk of relevance to specific facts in issue in another proceeding. But in this case, as the primary judge observed (at PJ [108]), there was a statutory qualified privilege defence pleaded. Such a defence requires examination of the circumstances of publication generally in assessing whether the conduct of the respondents in publishing was reasonable and considering whether there was a state of mind of a type that would defeat the defence. Although the fact and content of Ms Dyer’s extensive dealings with the ABC and Ms Milligan were unlikely to be in dispute, this did not mean other aspects of the confidential information were somehow irrelevant to this evaluation of reasonableness or defeasance of the defence. Mr Porter submitted that aspects of the confidential information would need to be disclosed in the Defamation Proceeding in any event, but this is not an answer to the issue of risk of relevance. Indeed, the opposite is true. One need only have regard to the way the primary judge explained the relevance of the confidential information to the draft interrogatories to recognise risk of relevance.
The real focus of Mr Porter was not on relevance per se, but on potential misuse.
E.6 Was there no real risk of misuse of the confidential information?
Consistently with the above, much of Mr Porter’s submissions were directed to this issue.
Properly analysed, there were, in effect, three arguments advanced below by Mr Porter as to why there was no real risk of misuse: first, (connected to the fifth question identified at [74] above) that any relevance was so tangential so as not to give rise to a risk of misuse; secondly, Ms Chrysanthou does not recollect anything confidential from the conference; and thirdly, Ms Chrysanthou had undertaken not to use any such information should she later recollect the existence of the confidential information: see PJ (at [128]). On appeal, there was no attack on his Honour’s rejection of the second and third arguments and the submissions focussed on the first of these arguments as to why the primary judge erred in making the positive finding that there was a real risk of misuse.
Although part of this argument relied upon the notion that a risk had to be of some substance to justify equity’s intervention, it should be noted that there was no discrete argument advanced that the primary judge erred in the exercise of his discretion to grant equitable relief by way of injunction, in the event Mr Porter failed to establish no real risk of misuse.
The primary judge explained that extensive submissions were made by the parties in relation to the various ways in which the confidential information was, or could be, relevant to the Defamation Proceeding: PJ (at [107]). In this regard, as noted above, Mr Porter relied upon Confidential Annexure A to assert the information was in the public domain, would not benefit Mr Porter, and was thus unlikely to be misused. Needless to say, to demonstrate error, the focus must be on how Mr Porter went about his task below to establish that there was no real risk.
The lack of risk of misuse is not addressed by saying generally that material was in the public domain or would be disclosed during the course of the proceedings. It is necessary to recall that concessions were made that some information (Information D and Information I) was not in the public domain, and error has not been demonstrated in his Honour’s conclusion that the balance of the confidential information found to be conveyed retained its confidential character and there was a risk it would be relevant to the conduct of the work required by the brief.
The first difficulty for Mr Porter is that it was open to the primary judge to conclude that the confidential information provided to Ms Chrysanthou by Ms Dyer, either directly or through Mr Hooke, was likely to contain evidence or information additional to answers to interrogatories or to the documentary or other evidence revealed by the ABC. Mr Porter has not established that it was incorrect for his Honour to conclude that the confidential information would not necessarily coincide precisely with the information disclosed as a result of processes in the Defamation Proceeding. His Honour was, with respect, correct to conclude that the submission advanced for Mr Porter below was based on the insecure premise that the confidential information revealed to Ms Chrysanthou was confined to what the ABC already knew, or would obtain in the process of answering interrogatories or providing discovery, and that the confidential information would necessarily be disclosed.
Further, it is insufficient to focus solely on whether specific aspects of the confidential information will or might be disclosed during the conduct of the proceedings the subject of the proposed retainer. Absent consent to disclosure by the former client, the duty on the barrister to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not to take reasonable steps to do so. The issue of risk of misuse cannot be approached narrowly. To do so would be incongruent with the breadth of the duty, which encompasses “all communications made by the client about his affairs, and information learnt directly or indirectly about the client, in the course of the professional relationship”: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 17 WAR 98 (at 108 per Ipp J). It is not good enough to adopt some form of “wait and see” approach as to whether confidential material will be disclosed though the ordinary incident of future document or information disclosure procedures.
It was open to the primary judge to draw the conclusion, given the nature of the confidential information, that one cannot exclude the real risk that this confidential information, either consciously or subconsciously, may inform actions taken in the performance of the brief to act for Mr Porter (for example, enquires as to the past relevant conduct of parties in preparation for cross-examination or more generally, or the drafting of interrogatories, or drafting compulsory processes or categories of disclosure and then considering whether there had been compliance with any orders for the provision of documents and information). It is no answer that Ms Chrysanthou had forgotten things: one cannot exclude the possibility that recollection can be triggered or of subconscious derivative use.
No error has been demonstrated in relation to the primary judge’s conclusion that there was a risk of misuse. It follows that the primary judge did not err in enjoining Ms Chrysanthou based on the danger of misuse of confidential information received by Ms Chrysanthou in the context of her dealings with Ms Dyer.
F ADMINISTRATION OF JUSTICE ISSUE
There was a second basis upon which the injunction ran, that is, the need to protect the integrity of the judicial process and the due administration of justice, including the appearance of justice. This was described as an alternative basis for relief, but it was not a pure alternative.
The primary judge dealt with this basis for relief (at PJ [133]–[151]) and found that an injunction was appropriate because:
(1)fair-minded members of the public would think Mr Porter would gain some advantage from briefing Ms Chrysanthou;
(2)there was a real and material risk of the public having less faith in the outcome of the Defamation Proceeding; and
(3)fair-minded members of the public would recognise the inconsistent interests of Ms Dyer and Mr Porter.
Ground 6 is expressed at a high level of generality but was developed in written and oral submissions as resting upon two overlapping complaints: first, the primary judge “paid no regard to the cab rank principle in arriving at [his] conclusion”; and secondly, his Honour erred by paying “scant regard to Mr Porter’s rights”.
The complaint that the primary judge paid insufficient attention to that aspect of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Bar Rules) known as the “cab rank” rule assumed a prominence on appeal that did not reflect submissions made by Mr Porter below. Indeed, the complaint made that the Bar Rules were not mentioned in the primary judgment must be seen in the context that the cab rank rule and the Bar Rules were referred to in one subparagraph in Mr Porter’s opening submissions below (as part of a summary of principles) and there was only one reference to the cab rank rule in Mr Porter’s closing written submissions below, and no reference was made by counsel for Mr Porter in oral address.
As the argument on appeal was developed orally, emphasis was placed on the importance of the cab rank rule (as to which see [173]–[174] below), and the notion that weighed in the balance against this fundamental aspect of the administration of justice was a mere theoretical possibility of misuse of information.
But the difficulty is that the possibility of misuse was not considered by his Honour to be merely theoretical. As explained above, his Honour not only found the confidential information to be relevant, but also found a real risk of misuse. On the findings of the primary judge, there were conflicting duties. On the one hand there was the duty owed to Ms Dyer to keep the information confidential absent her consent, and on the other hand, the duty to Mr Porter to use relevant information for his benefit. His Honour’s conclusions that fair-minded members of the public would recognise an inconsistency in interests, that Mr Porter might gain some advantage, and there was a real and material risk of the public having less faith in the outcome of the Defamation Proceeding, reflect these findings.
The primary judge correctly identified the relevant principles. They have been comprehensively summarised by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 (at 582 [76]) and Griffiths J in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (at [39]). Justice Griffiths’ summary was as follows:
The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(a)The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; 228 FCR 252 at [37] per Beach J).
(b)The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
(c)Due weight must be given to the public interest in a client not being deprived of the legal practitioner of its choice, however, this important value can be over-ridden in an appropriate case (Dealer Support Services at [95] per Beach J).
(d)This basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information (Dealer Support Services at [96] per Beach J).
(e)This basis for disqualification is an “exceptional one” and is “to be exercised with appropriate caution” (Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; 237 ALR 612 at [35] per Young J).
(f)A legal practitioner may be restrained from acting in a matter not only where the practitioner has a conflict of interest viz a viz a former client, but also viz a viz a person who is “as good as” a client (Macquarie Bank Ltd v Myer [1994] VR 350 at 359 per J D Phillips J).
(Emphasis in original).
The primary judge also correctly identified that there was a difference between the expression of the test by Brereton J as being whether the hypothetical referee would conclude that the proper administration of justice required that lawyer be prevented from acting, and the above formulation of the test by Griffiths J as whether the referee might so conclude. The primary judge observed that the latter might formulation conforms or coheres more closely with the test for apprehended bias, but as Ward CJ in Eq noted in Michael Smith Real Estate Pty Ltd t/as Raine & Horne Marrickville v Chmait [2021] NSWSC 1160 (at [63]–[64]), the weight of authority favours the former would formulation adopted not only by Brereton J but also by Nettle J in Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (at [113]), McDougall J in El-Cheikh v Miraki [2017] NSWSC 1765 (at [20]), and Beach J in Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; (2014) 228 FCR 252 (at 276 [94]).
The primary judge observed (in obiter) that if he had concluded that there was no real risk of misuse of confidential information, or only a minimal risk, he would nonetheless have concluded that a fair-minded member of the public would say that Ms Chrysanthou should not act for Mr Porter. This conclusion was not inconsistent with the prevailing authorities which accept that the basis for disqualification is not discharged by it simply being demonstrated that there is no risk of the misuse of confidential information. But this is not the way the case was decided because his Honour did find that there was such a risk on the facts as found.
It follows from this that it is unnecessary in the circumstances of this case to attempt to examine the potentially difficult question of whether the exceptional course of restraint could be appropriate, even where no real risk of misuse of confidential information was established. Leaving aside the position of solicitors not bound by the cab rank rule, as senior counsel for Mr Porter stressed, to prevent a barrister acting in these circumstances does exhibit some tension with the cab rank obligation to accept briefs unless an exception under the Bar Rules exists, being an obligation given statutory force in New South Wales.
As to the notion that his Honour erred by paying insufficient regard to Mr Porter’s rights, the primary judge correctly directed himself in giving appropriate and significant weight to the public interest in a client not being deprived of a barrister of his choice. However, this important value was over-ridden in the particular circumstances of this case.
No error has been demonstrated in his Honour’s approach given his factual findings.
G SUPPRESSION ISSUE
G.1 The Suppression Orders and the relevant background
Since initially drafting this section of my reasons, I have had the benefit of reading, in draft, the judgment of Besanko and Abraham JJ. I respectfully take a different view to their Honours and would have made orders setting aside the Suppression Orders made by the primary judge on 23 June 2021, insofar as they relate to Exhibit 2, Exhibit 3, and part of Exhibit 6 (collectively, the third party communications). Despite my view being one which is in dissent, it is appropriate I explain why I have reached this view.
It is useful to commence considering the impugned Suppression Orders by understanding more generally the way in which it came about that extensive confidentiality and suppression orders were made.
Prior to the commencement of the proceeding, an order was made restricting access to the unredacted concise statement, affidavits and exhibits. This order was made under s 37AI of the Federal Court of Australia Act 1976 (Cth) (Act). Section 37AI(1) provides that such an “interim” order can be made if an application is made for a suppression order or non-publication order, without “determining the merits of the application”. At the first case management hearing, further “interim” confidentiality orders were made as to the unredacted concise response, discovery and the ABC’s defence filed in the Defamation Proceeding. On 23 May 2021, a variation to the “interim” order was made which, among other things, extended to unredacted versions of submissions.
On the second day of trial (25 May 2021), an order was then made:
Until further order, pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), publication or disclosure be prohibited, other than to the solicitors and counsel for the Applicant and First Respondent and any solicitor or counsel of the Second Respondent that is not acting for the Second Respondent in Federal Court of Australia proceedings NSD 206 of 2021, of documents tendered in evidence in this proceeding as exhibits 2, 3 and 6 to 9.
Various orders were then made during the course of the hearing to close the Court and the primary judgment was delivered in closed court (although a summary was provided in open court immediately thereafter).
It appears draft suppression orders were provided to the chambers of the primary judge in early June 2021, and correspondence then took place between the parties as to the extent of the redactions sought by Ms Dyer. Leave was granted to Nationwide News Pty Ltd to intervene for the purposes of making submissions concerning the making of any suppression order (although, following opposition from Ms Dyer, counsel for the intervener was not given access to materials to develop submissions). Oral submissions were received on 17 and 18 June 2021, but there was very little debate as to the scope of the orders sought. The position taken by Mr Porter was that although he generally did not oppose suppression orders in the form finally proposed by Ms Dyer, he did not consent to them. The exception was that he did oppose orders being made in relation to Exhibits 2 and 3, and as to part of Exhibit 6, being the third party communications.
Counsel for Ms Dyer submitted to the primary judge that the evidence must be suppressed because, if revealed, the Exhibits “may suggest that [the communications revealed in them] in particular contain something of relevance to the parties in a more direct way” as to information disclosed to Ms Chrysanthou. It was said:
(1)as to Exhibit 2, that it was information that relates to Information C and D which was referred to in the Hooke Affidavit (at [19]) (and was which was found to be conveyed: PJ [118], [120]);
(2)as to Exhibit 3, that it was information that relates “specifically to information E” (and was which was found to be conveyed: PJ [116]); and
(3)as to parts of Exhibit 6, that it was information that relates to Information G (which was found to be conveyed: PJ [114], [124]) and Information F.
The primary judge directed himself to the issue of suppression by observing:
I think I need to be satisfied that if the material was shown, a reasonable person would draw the inference that that was what was told to Ms Chrysanthou, the very thing we’re trying to – the confidentiality which we’re trying to preserve. So I think, really – the mere fact that it happens to have been said before doesn’t mean that it’s necessarily appropriate to [not suppress the earlier communication].
Although Mr Porter asserts that the primary judge did not disclose any basis for the Suppression Orders, this must be rejected. From the remark above and a later email communication between the parties, it is evident that his Honour’s later decision to find that the Suppression Orders were necessary to prevent prejudice to the proper administration of justice was informed by the fact that to do otherwise could result in disclosure of the topics of later privileged communications.
The terms of the Suppression Orders also support this conclusion. Although the primary judge received no or little assistance on the issue, his Honour made the Suppression Orders in chambers, which were relevantly in the following terms:
1.Pursuant to s 37AF of the [Act], publication or disclosure be prohibited other than to:
(1)the applicant, the first respondent, Mr James Hooke, the solicitors and counsel for the applicant and the first respondent, and any solicitor or counsel for the second respondent that is not acting for the second respondent in Federal Court of Australia proceedings NSD 206 of 2021; or
(2)any other person where that person is receiving the publication or disclosure only for the purposes of instructing or acting or advising in relation to a complaint to, or investigation by, or proceedings in, a professional disciplinary body,
on the grounds that the order is necessary to prevent prejudice to the proper administration of justice and to preserve legal professional privilege over confidential communications, of:
…
(f) documents tendered in evidence as exhibits 2 and 3;
(g) documents tendered in evidence as exhibit 6, other than the redacted form of exhibit 6 annexed to these orders …
G.2 Relevant law
It is not appropriate for this Court, given its appellate role, to comment generally on all the suppression and confidentiality orders made in this case in the absence of a challenge to them.
The suppression and non-publication orders were extensive and it is notable that almost all were made without the benefit of detailed submissions and were made expressly by consent. This reflects an apparent perceived common interest in suppressing information that would otherwise be available. But as Lord Woolf MR explained in R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 (at 977), it is when both sides agree that information should be kept from the public that the Court should be “most vigilant”.
In the Federal Court, the making of suppression and non-publication orders is regulated by Pt VAA of the Act. As the Full Court (Bromwich, Lee and Thawley JJ) recently explained in Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102 (at [76]), leaving to one side interim orders, which are not presently relevant, consistently with suppression orders being exceptional, Div 2 of Pt VAA sets out express limits on, among other things, the power to make orders (s 37AF), and the grounds for making them (s 37AG).
In deciding whether to make a suppression order, the starting point is instructive. The Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. This is not empty rhetoric. It is a statutory obligation pursuant to s 37AE of the Act. Its identification as a mandatory consideration reflects a profoundly important aspect of our system of justice. Transparency may have its inconveniences, but as Lord Atkinson put it in his speech in Scott v Scott [1913] AC 417 (at 463):
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.
When the importance of open justice is properly appreciated, it can be seen that a confidentiality or suppression order is not justified simply because it may be “convenient, reasonable or sensible”; nor is it sufficient that a confidentiality order may be viewed as serving “some notion of public interest”, or that it is the result of some “balancing exercise”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [31] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
Parties and witnesses have to accept the embarrassment, damage to reputation and the possible consequential loss which can be inherent in litigation: Australian Competition and Consumer Commission v Air New Zealand Limited (No 12) [2013] FCA 533 (at [7] per Perram J); Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 (at 320–321 [29] per Bathurst CJ and McColl JA). Adverse publicity, even to third parties, is an often an inevitable by-product of litigation and is part of the price paid for open justice.
It is also noteworthy that a suppression order cannot be made on the distinct ground of preserving legal professional privilege. The only four grounds are those provided for in s 37AF(1). As the only relevant ground was s 37AF(1)(a) (“the order is necessary to prevent prejudice to the proper administration of justice”), it followed making an order which has the practical effect of preserving legal professional privilege over other and separate confidential communications was only within power if it met the threshold of being necessary to prevent prejudice to the proper administration of justice.
In my view, in understanding when it will be necessary to protect privileged communications (or, more accurately, the topic of privileged communications), it is worth revisiting some fundamental notions.
As the High Court has explained, the formulation of legal professional privilege is the product of a balancing between competing public interests. Save for the improper purpose principle, the balance is struck in favour of the public interest of encouraging the full and frank disclosure by clients to their legal advisers without the apprehension of being prejudiced by subsequent disclosure of the communication, as against the public interest in obtaining the fullest possible access to all relevant facts: Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 (at 64–65 per Gleeson CJ, Gaudron and Gummow JJ, 82 per Kirby J). In this way, it can be seen that in defining the limits of the privilege itself, the law has developed in such a way as to identify what types of communications are necessary to protect to reflect this balance.
In the present case, communications subject to legal professional privilege at common law were relevant to a fact in issue and were adduced into evidence. Often, of course, when privileged communications are adduced into evidence, there is loss of privilege (see Pt 3.10 of the Evidence Act). But this was a case seeking restraint of the lawyer and so the confidential nature of privileged communications was not lost by their adduction into evidence by both the client and the lawyer. Unsurprisingly, those privileged communications between client and lawyer are apt to be protected by a suppression order because the substantive legal right to maintain the privilege has not been lost. Hence although preserving privileged communications is not an identified statutory ground, it is necessary to prevent prejudice to the proper administration of justice to suppress publication of the privileged communications themselves.
But importantly, the communications the subject of this ground of appeal are a step removed from privileged communications between the client and her lawyer. They are third party communications between non-lawyers which took place before the legal advice was obtained and do not reveal the content of any legal advice.
Given the nature and content of the third party communications, it is unsurprising a contention that they could be privileged was not maintained. In the balance between competing interests which has informed the development of the law as to the ambit of what types of communications are privileged, third party communications between non-lawyers can be privileged, but only in defined circumstances. In this regard, it is now clear that legal professional privilege can extend to confidential communications between the client and a third party who is not an agent for the dominant purpose of a client obtaining advice: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357 (at 367–368 [41]–[42], 369 [49] per Finn J, 386–387 [105]–[107] per Stone J with both of whom Merkel J agreed at 370 [52]). But these requirements of confidentiality and purpose are fundamental.
But just because there was no finding that these third party communications were privileged does not mean the general principles of when third party communications are privileged and the balancing of competing interests that have led to the development of these principles are presently irrelevant. They provide at least some context for considering the distinct issue of whether it is necessary to prevent prejudice to the proper administration of justice to suppress non-privileged material because it may be reasonably likely that the material may reveal the topic of other communications that are privileged.
A final point should be made. Part VAA of the Act relevantly provides for the exceptional course of making a suppression or non-publication order in relation to “information that comprises evidence or information about evidence”: see s 37AF(1)(b)(i). Any such order should go no further than suppressing that part of the information or that part of the evidence that is necessary and be formulated with “sufficient particularity to ensure” that the “order is limited to achieving the purpose for which the order is made”: see s 37AH(5). It necessarily follows that if a document is admitted into evidence and it is only necessary to suppress some representations contained in it, the order should be calibrated to ensure that it is only that part of the document that is the subject of suppression.
G.3 The general difficulties with the suppression of Exhibits 2, 3 and (part of) 6
The terms of the order
The relevant order was in the following terms:
on the grounds that the order is necessary to prevent prejudice to the proper administration of justice and to preserve legal professional privilege over confidential communications …
(Emphasis added).
Two things should be observed immediately about the terms of this order: first, it identifies two “grounds” for suppression; secondly, it operates for an indefinite duration.
The parties should not have provided this form of order to the primary judge. As noted above, the only ground was that “the order is necessary to prevent prejudice to the proper administration of justice”. Further (and again reflecting the exceptional nature of suppression orders), s 37AJ(2) of the Act requires that the order should operate for no longer than is reasonably necessary to achieve the purpose for which it is made. In this regard, the order operates for the period specified in the order (which may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event).
The Suppression Orders should be varied to address both these deficiencies.
The further problem with the Suppression Orders generally
More substantively, the principles explained above lead to the conclusion that the suppression of the third party communications was not necessary.
At the risk of repetition, it merits emphasising that the primary judge found the disclosure of the third party communications was reasonably likely to result in the disclosure of the topic of other privileged communications. Put another way, although there was no conclusion reached by the primary judge that the third party communications were confidential, made for the dominant purpose of receiving legal advice or revealed any advice, it was sufficient that they be suppressed because they were reasonably likely to result in disclosure of the topic of subsequent and separate privileged communications.
For my part, and with respect, I do not consider that because a communication is reasonably likely to result in disclosure of the topic or nature of later privileged communications that it follows (by reason of this fact alone) that the high bar of necessity has been met and a suppression order can be justified.
As noted above, a balance has already been struck in formulating the privilege itself. The underlying rationale, accepted by the High Court in Grant v Downs (1976) 135 CLR 674 (at 685 per Stephen, Mason and Murphy JJ), is that the existence of the privilege “to the extent to which it is accorded” reflects the paramountcy of one competing interest over another.
Although the making of a suppression order does not involve a balancing of these considerations (or a balancing of any considerations), it is an evaluation that occurs in the context of requiring the Court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. It also seems to me that when evaluating whether a suppression order should be made to protect privileged communications, at least an aspect of the relevant context is recognising the limits upon the sort and types of third party communications the privilege itself has been developed to protect.
Any consideration of a suppression order is necessarily fact-specific, and depends upon all the relevant circumstances. But it seems to me that the further removed a third party communication is from being confidential, or is apparently connected to the purposes of obtaining legal advice, or reveals any advice, the less compelling is the claim that there is a necessity that it be suppressed.
The argument expressly advanced below, and the logic of the position adopted on behalf of Ms Dyer on appeal, was that suppression was necessary simply because the third party communications could result in a reasonable person identifying the topics upon which later legal advice was obtained. Hence, a non-lawyer, third party communication, not proven to be confidential, not revealing any advice, and not for the purpose of obtaining advice, is required to be protected because an inference is likely to be drawn about the topic of later protected communications. Given the demands of the statutory test, I have difficulty accepting this conclusion can be correct. As senior counsel for Mr Porter put it, there is no “penumbra effect” whereby such communications become information necessary to suppress for the administration of justice.
With respect, I do not consider it was open to make a suppression order in relation to the third party communications generally (although minor redactions referred to below were necessary to suppress some information). It follows I would grant the oral application for leave that was made by senior counsel for Mr Porter and allow the appeal in relation to the Suppression Orders.
Moreover, even if I am incorrect about this general problem of proving necessity in suppressing the third party communications, there are other reasons why the ground of appeal is, in my respectful view, substantially made out.
G.4 Other issues
Exhibit 2
Exhibit 2 is said to be information that relates to Information C and D. The first point to make is none of the text messages relate to the topic of Information D directly or indirectly. Secondly, other representations made in the last message do not relate either directly or indirectly to Information C. Thirdly, although other representations concern some information which also could be said to be related to the topic of Information C, this communication between Ms Dyer and Mr Hooke occurred on 27 June 2020 (eleven days before Ms Milligan interviewed Ms Dyer for the Four Corners television programme). On my reading of the communications, I do not consider that one would be doing anything other than speculating as to whether the matters discussed in Exhibit 2 were later the subject of confidential communication and advice at the conference held many months later.
For completeness, I should note that some identifying information is included in Exhibit 2, but this is available elsewhere and does not form a basis for a suppression order.
Exhibit 3
Exhibit 3 is a series of instant message service communications, which detail various other communications which had taken place or were proposed to take place between relevant actors. A large number do not relate to Information E, directly or indirectly.
Again, to the extent any representations do relate to Information E, I consider that any connexion to later advice is wholly speculative.
It is unnecessary and inimical to principles of open justice for this evidence to be suppressed. The exception to this is that given the nature of this proceeding, in my view, it is necessary to prevent prejudice to the proper administration of justice that telephone numbers be suppressed. Further, to prevent undermining other orders made in the proceeding below and the Defamation Proceeding, I consider the criterion of necessity to prevent prejudice to the proper administration of justice is made out in suppressing the surname of AB where is appears in Exhibit 3.
Exhibit 6
In my view, the position in relation to the balance of Exhibit 6 is the same. Exhibit 6 consists of five pages of text messages between Ms Dyer and an ABC journalist, Ms Annabel Crabb (only five messages have not been suppressed).
It is convenient to deal with pages 2–3 and pages 4–5 of the Exhibit separately (as Besanko and Abraham JJ have done).
As to the messages on pages 2–3, although these communications do not relate to Information G and F as contended, the majority concludes that leave ought not to be granted with respect to the evidence on those pages alone by reference to the second limb of the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398–399 per Sheppard, Burchett and Heerey JJ), that is, no substantial injustice would result if leave were refused.
As is already apparent, I would have granted leave to appeal in relation to Ground 7 generally, but even if the only error was that there was no basis for the Suppression Orders in relation to the evidence on pages 2–3 (or those parts of Exhibit 2 and 3, which do not relate to the aspects of the confidential information alleged), and with respect to those who have a contrary view, I would still have granted leave for four reasons.
First, the two limbs of Decor bear upon each other such that the question of substantial injustice must be considered in the light of the fact that here there is not just arguable error, but demonstrated error, in this aspect of the Suppression Orders.
Secondly, it is already necessary to intervene to correct the error in the Suppression Orders having an indefinite duration and identifying an incorrect ground.
Thirdly, and most importantly, a relevant consideration in the exercise of discretion as to leave is the principle of open justice. The relevant consideration of substantial injustice must be understood contextually and is not confined to the parties but includes the public generally. The suppression of any evidence where it is not necessary is, by definition, a departure from important principles of open justice. In my view, this departure is of especial significance meriting a grant of leave in a case of widespread public interest. The fact that a media representative was granted leave to intervene below to make submissions on the making of the Suppression Orders reflects this public interest. Courts of justice should be fully exposed to public and professional scrutiny by well-informed observers who are able to follow and comprehend all the evidence, all the submissions of parties, all the oral submissions and all the reasons for judgment, unless a contrary and properly particularised order is made in accordance with Pt VAA of the Act. If this is the case, public confidence in the administration of justice is enhanced and, as Gibbs J observed in Russell v Russell (1976) 134 CLR 495 (at 520), “confidence in the integrity and independence of the courts” is maintained.
Fourthly, and related to the last point, despite the High Court in Hogan stressing the demanding nature of the statutory test, and the relevant onus being described as “a very heavy one” (see Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198; (1999) 88 FCR 438 (at 442 [16] per Madgwick J)), it remains a commonplace, at least in commercial litigation, that overreaching confidentiality orders are proposed by parties. Very recently, Thawley J remarked that applications for suppression or non-publication orders regularly impose a significant burden and “are becoming increasingly common and increasingly informal” and cautioned that “proper consideration should be given to whether there is a sound basis for the application and whether the application is supported by sufficient evidence”: see Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 (at [23]–[24]).
Practitioners may consider it convenient, reasonable or sensible to eschew descending into the detail of identifying what parts of a document are truly confidential (and what parts are not), but adopting such a course in proposing draft orders is inconsistent with the statutory test. This case, of significant public interest, presents a vehicle for a Full Court to explain why practitioners should not propose suppression orders that extend indiscriminately to partly confidential documents adduced or proposed to be adduced into evidence.
As to the evidence on pages 4–5, although I accept that the second purpose of the conference was found to be confidential information, a number of the communications on pages 4–5 go well beyond Ms Crabb and Ms Dyer making reference to the purpose of the conference and are irrelevant to Information G or F. Although, given the majority view, it is inappropriate to detail these other communications, they are plainly of significant public interest and are of relevance in understanding the background to the dispute and the motivations of relevant actors. In my view, and with respect to the primary judge who received little assistance on the point, even if I am wrong in my conclusion that no part of Exhibit 6 should have been suppressed, at least the error as to those parts irrelevant to Information G and F should be corrected.
In my view, Ground 7 is substantially made out and I would make variations to the Suppression Orders to allow the publication of Exhibit 2, Exhibit 3, and balance of Exhibit 6 (save as to the parts indicated above).
H CONCLUSION AND ORDERS
Before coming to the orders that should be made to reflect the rejection of the principal challenges to the primary judge’s judgment and orders, reference should be made to one aspect of the written submissions made on behalf of Ms Dyer. In those submissions, reference was made to “the manner in which Ms Chrysanthou conducted herself in relation to her ethical obligations” in deciding whether to accept the brief on behalf of Mr Porter. No such issue was raised in these terms before the primary judge, nor was any allegation of unethical conduct put to Ms Chrysanthou in cross-examination. Understandably in these circumstances, senior counsel for Ms Dyer clarified the position orally and noted no contention of unethical behaviour on the part of Ms Chrysanthou was being asserted.
Ms Chrysanthou, as a barrister, was subject to ethical obligations including the cab rank rule. The importance of this rule should not be minimised. As Brennan J said of the rule in Giannarelli v Wraith (1988) 165 CLR 543 (at 580), whatever its origins:
…its observance is essential to the availability of justice according to law. It is difficult enough to ensure that justice according to law is generally available; it is unacceptable that the privileges of legal representation should be available only according to the predilections of counsel or only on the payment of extravagant fees. If access to legal representation before the courts were dependent on counsel’s predilections as to the acceptability of the cause or the munificence of the client, it would be difficult to bring unpopular causes to court and the profession would become the puppet of the powerful.
Although a barrister must not act if there is a real risk of misuse of confidential information, the conclusion that a proposed brief would involve such a misuse involves an evaluative judgment by the barrister. Refusing a brief on this basis is not some matter of preference or convenience and can sometimes require close reflection. Although Ms Chrysanthou was mistaken in the judgment she formed, no finding was made by the primary judge that her view was not formed in good faith.
In my view, the appeal should be dismissed (save in relation to the Suppression Orders) and I would give leave for submissions to be made as to costs. I agree the cross-appeal should also be dismissed.
I certify that the preceding one hundred and forty three (143) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 14 July 2022
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