Wilson v Bauer Media (Ruling No 5)
[2017] VSC 355
•21 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2016 01842
| REBEL MELANIE ELIZABETH WILSON | Plaintiff |
| v | |
| BAUER MEDIA PTY LTD & ANOR | Defendants |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2017 |
DATE OF RULING: | 21 June 2017 |
CASE MAY BE CITED AS: | Wilson v Bauer Media (Ruling No 5) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 355 |
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PRACTICE AND PROCEDURE — Application by plaintiff to suppress publication of financial benefits received from film contracts during trial of the proceeding — Whether commercially confidential — Application opposed by media parties — Discretionary considerations — Open Courts Act 2013, s 7, 13, 18(1)(a), 20.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Collins QC, with Ms R Enbom and Mr J C Hooper | Corrs Chambers Westgarth |
| For the Defendant | Ms G Schoff QC, with Mr S Mukerjea | Johnson Winter & Slattery |
| For the Nine Network Australia Pty Ltd and the Herald & Weekly Times Pty Ltd | Macpherson Kelley |
HIS HONOUR:
The plaintiff applied for the following order under Section 18(1)(a) of the Open Courts Act 2013 (Vic) (the Act), alternatively the inherent jurisdiction of the court, on the grounds that the order is necessary to prevent prejudice to the proper administration of justice:
Disclosure by publication or otherwise is prohibited of the financial benefits that the plaintiff has, will, or may receive under agreements or contracts made after 18 May 2015 in respect of the provision of the plaintiff’s services as an actor including but not limited to agreements in respect of the movies entitled or provisionally entitled ‘Pitch Perfect 3’, ‘Absolutely Fabulous’, ‘Private Benjamin’, ‘Isn’t it Romantic’ and ‘Dirty Rotten Scoundrels’.
The order sought was in the same terms as an interim order that I made on 26 May 2017, save for the addition of a reference to a further movie ‘Dirty Rotten Scoundrels’, which, since the interim order, was referred to in the course of the plaintiff’s cross-examination.
The application was opposed by Nine Network Australia Pty Ltd and the Herald & Weekly Times Pty Ltd (the media parties). The defendants did not seek to be heard on the application.
Open Courts Act
There is a presumption in favour of disclosure of information to which a court must have regard in determining whether to make a suppression order.[1]
[1]Open Courts Act 2013 (Vic), s 4.
Section 18(1)(a) of the Act gives the court a discretion to make a proceeding suppression order if satisfied that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
The court’s inherent jurisdiction to make a suppression order, arising from its general responsibility as a superior court of unlimited jurisdiction for the administration of justice, is unaffected by the Act.[2]
[2]Madafferi v The Age Company Pty Ltd & Ors (No. 2) (Madafferi) [2016] VSC 103, [47].
If a real and substantial risk of prejudice to the proper administration of justice is a likely consequence in the absence of a proceeding suppression order, the order will be necessary under the Act. It is for the applicant to satisfy the court of the necessity of the order by evidence or by sufficient credible information that is satisfactory to the court.[3]
[3]Ibid, [13]. See also Open Courts Act 2013, s 14(1).
Plaintiff’s submissions
The plaintiff submitted that a proceeding suppression order was necessary to protect the third party commercial-in-confidence information of various film studios; and that the making of a proceeding suppression order in the very limited terms sought will have no implications for public confidence in judicial integrity or independence, nor affect in any material way the ability of the public to understand the matters in issue in this proceeding.
It is trite that commercial considerations may be relevant to the court’s discretion when determining whether or not to make a suppression order.[4] Courts have protected commercially sensitive confidential information in a wide range of circumstances analogous to those in the present matter.[5]
[4]Madafferi, [47].
[5]Australian Broadcasting Corp v Parrish (1980) 29 ALR 228, 236, 238 (Bowen CJ); 242, 244–5, 246 (Franki J), 255–6 (Deane J); ACCC v Valve (No 5) [2016] FCA 741, [9]–[10] (Edelman J); ACCC v Origin Energy Electricity Ltd [2015] FCA 278, [143], [146]–[148] (Katzmann J).
The plaintiff described the inherent confidentiality of the sums paid under her contracts as follows:
(a) the plaintiff considered the amounts she has been paid for movies such as Pitch Perfect 2 and Pitch Perfect 3 to be confidential;
(b) when the plaintiff signed contracts, she was not allowed to publicly state how much she has earned or will earn for those movies;
(c) she had never publicly stated how much she earned for movies such as Pitch Perfect 2 or Pitch Perfect 3;
(d) the amounts she was paid for movies such as Pitch Perfect 2 or Pitch Perfect 3 are not in the public domain;
(e) she does not know what amounts were paid to her co-stars in movies such as Pitch Perfect 2 and Pitch Perfect 3 and she does not tell other co-stars what she is paid; and
(f) if she knew what other actors were being paid, it would be of use to her in negotiating future roles.
In addition, some contracts between the plaintiff and film studios contain express confidentiality clauses. The interpretation of those clauses is a matter of American law as to which there was no evidence. In any event, an express confidentiality clause is not a precondition for a finding that some aspect of a contract is confidential.[6] Here an inference, even in the absence of confidentiality clauses, clearly arises that the sums paid to the plaintiff as her fee and bonuses for the nominated movies was commercially confidential.
[6]Australian Broadcasting Corp v Parrish (1980) 29 ALR 228.
In terms of suppressing publication of this information, the balancing exercise prima facie favours the public interest in open justice over the maintenance of third party confidentiality. That said, the court ought not lightly interfere with the rights of the third party movie studios in circumstances where they have not had the opportunity to be heard. Having regard to the fact that they are outside the jurisdiction of the court, and that the issue arose in the running of a trial before a jury, it was not reasonably practicable for them to be afforded such an opportunity. I do not criticise the plaintiff for not having adduced evidence from the movie studios given that this issue arose during the conduct of a jury trial, when the relevant people (even if they had been properly identified) would not be amenable to subpoena.
On the question of public interest, the plaintiff submitted that the precise sums that she earns for films might well be interesting to the public, but that doesn't make them matters of public interest.
Finally, the plaintiff submitted that the present trial has been the subject of an unusual degree of public scrutiny, including over the days in which the interim suppression order has been in place. It could not credibly be suggested that either the interim order, or its continuation in the form of a proceeding suppression order, would inhibit the media from continuing to cover this trial fully, in respect of every issue other than the precise sums of money that the plaintiff was paid in a handful of film roles.
Media parties’ submissions
The media parties made the following submissions in opposition to the plaintiff’s application:
(a) Other litigants, whether it be commercial entities or personal injury litigants, are routinely required to disclose personal information when then come before the court. Many civil matters necessarily involve a substantial amount of commercial in confidence intimation. That disclosure is an occasional, but necessary, by-product of the open justice principle and confidentiality alone has never been a proper basis for the making of a suppression order.
(b) The present case is not unique in attracting particular media attention. There have been other cases, such as, for example, those involving AFL footballers where specific and otherwise confidential figures from various businesses and contracts have been made public.
(c) It would be inappropriate to suppress the figures in circumstances where, should the plaintiff be successful in her defamation action, the court will be required to assess her damages on, inter alia, that information. Without knowing the figures the public will be unable to properly understand and assess what has happened in the proceeding.
(d) The fact that the information might also be used to publish gossip or scuttlebutt does not invalidate the important public function served by revealing these figures. If an article is published in a newspaper and that article contains both factual information and information that somebody else might consider to be gossip, that article serves two functions – to titillate and also to inform. The nature of the publication does not invalidate the important public function.
(e) It is not enough to establish that there might be some vague risk of prejudice to the administration of justice. It must be a necessary and a very real, practical and definite risk such as has not been properly identified in this case. The case of ABC v Parish may be distinguished in that regard. In Parish, the contracts being litigated would have been effectively destroyed had the confidentiality not been maintained, a clearly unacceptable situation. By contrast, should the financial information in the present case be released it would not destroy the substantive action before the court. There is no evidence that it would even deter the plaintiff from continuing to prosecute the case. This application was motivated by concerns around embarrassment, privacy, and inconvenience rather than real prejudice.
(f) In that regard, and more generally, the media parties cited Herald & Weekly Times v Magistrate Court of Victoria & Ors,[7] involving a pseudonym order, and particularly the following passage where Beach J stated:
[7](1999) 2 VR 672, 679 [56]-[57] (citations omitted).
In my opinion embarrassment is not a factor to be taken into account when determining whether a suppression order should be made. In John Fairfax Group Pty. Ltd. Kirby P said:
It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.
(g) All litigants coming before the court know that there is a risk that sensitive information will come to light. The court should only suppress information if satisfied that there is such a strong risk of prejudice that it would deter other plaintiffs from coming forward. There is no evidence before the court that anybody will actually be put at a commercial disadvantage. The figures in question will depend on a range of factors such as the role, the status of the actor at the time, the budget of the film, competition for that person's services in the market, and the eagerness of the parties to fulfil the role. There are many factors which come into play in any commercial negotiation and the suggestion that the revelation of the figures offered to the plaintiff for a role in 2015 could hinder her negotiations for other roles in 2018 with different film studios and for different film was, the media parties submitted, a fantasy.
(h) The type of information that is sought to be suppressed, being the amounts which actors are paid, is routinely speculated upon and is the kind of information that forms the content of a large number of articles.
(i) Finally, the media parties submitted that the plaintiff was a powerful litigant —as opposed to an ordinary litigant — because she is well resourced and had what the media parties described as the ‘best legal team available’. By reference to the statement of Kirby P in John Fairfax Group Pty Ltd regarding powerful litigants extracted above,[8] the plaintiff should not be afforded a level of secrecy not available to other ordinary litigants before the court, and the court ought uphold the important principle that all litigants are equal before the law.
[8](1991) 26 NSWLR 131, 141.
Ruling
In this case, a balance must be weighed between the competing public interests of, on one hand, open justice, and on the other, free and unhindered access to the court for a plaintiff seeking vindication of substantive rights against a defendant that incidentally requires the maintenance of commercially confidential information. The plaintiff bears the onus of establishing that the suppression order is necessary, which is a high burden. These are complex matters and each case will necessarily depend on its own facts and circumstances.
The principle of open justice is of vital public importance, because it is fundamental to public confidence in judicial integrity and independence.[9] It is, firstly, fundamental to protect against the abuses that may flourish when the courts are not open to public scrutiny, and, secondly, enables the media to do its job properly, acting as the de facto eyes and ears of the public who cannot sit in court each day.
[9]Russell v Russell (1976) 134 CLR 495, 520.
The high-water mark can be found in Scott v Scott.[10] Lord Shaw observed:
Granted that the principle of openness of justice may yield to compulsory secrecy in cases involving patrimonial interest and property, such as those affecting trade secrets or confidential documents, may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure.
[10][1913] AC 417, 484-485.
Lord Atkinson observed 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 … but all this is tolerated and endured, because it is felt that in public trial is to be 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.
Since that decision, the importance of justice being done in public has been affirmed time and again. Commonly the concern is that it is inherent in the nature of publication of court proceedings that the more hurtful and embarrassing the proceeding the more newsworthy the report of it. However, that is not the basis of the concern in this case. Rather it is to the questions of proprietary interests, commercial confidences, that this application is concerned and such interests were noted by Lord Scott as a legitimate exception to which ‘compulsory secrecy may yield’. While the content of the principle of open justice has remained immutable, the nature of publication by the media had changed significantly over the last century and that change affects the practical implementation of the principle of open justice.
I am satisfied that the proposed order, firstly, does not offend either of the fundamental aspects of open justice and, secondly, is necessary to prevent prejudice to the proper administration of justice, which I am satisfied is a real risk as opposed to a remote possibility.
Turning first to the latter consideration, I am satisfied that the plaintiff is obliged to maintain commercial confidentiality of the precise sums that she earns for particular movies and the revelation of such figures is likely to be detrimental to her in the future. Possibly disclosure will also be detrimental to those third parties with whom she deals although I give that consideration no weight as I cannot make any finding in that regard on the material before the court. I do not think this is an occasion for consequences like humiliation or embarrassment and none was suggested.
The plaintiff has identified a real and definite risk of prejudice to the administration of justice in the following way.
First, the plaintiff could herself be at a disadvantage in future negotiations for movie roles if it became known, as it would be in this case, that she had put information about the amounts she had been paid into the public domain (even if she could argue that she had done so under legal compulsion). I doubt that the viability of film projects might be put in jeopardy if actors were able to negotiate with studios from a better informed position.[11] However, it is reasonable to infer that film producers may be less willing to deal with an actor who has nullified the commercial confidence in the substance of the negotiation. Publicity about her movie fees will ensure that the breach of commercial confidence is widely recognised, including in the US.
[11]Compare Jones v Trad (No 2) [2013] NSWCA 415.
Secondly, as the media parties submitted, actor’s fee agreements are the subject of speculation in the media. However, that speculation is not related to the media’s role in advancing the principles of open justice. Although it will be the case that some of the publicity that would follow on disclosure of fee arrangements in court would likely fall in the category of responsible reporting of information disclosed during the course of the trial, I am persuaded that such publicity would be outweighed by scuttlebutt publicity. Moreover, it is pertinent to observe that the nature of public revelation of the business of the courts by the media is changing. Information provided over the internet on a website readily accessible by search well into the future is substantively different in quality to publication in a paper medium that is searchable at a library. While it is well recognised that the latter form of publicity can serve the principle of open justice, the former form of publicity is apt to become a research resource that could readily become divorced from that principle. The evidence in this proceeding, and in other proceedings,[12] revealed a degree of plagiarism from such sources to create ‘news’ stories.
[12]See DPP v Johnson & Yahoo!7 [2016] VSC 699.
Thirdly, it is fatuous to suggest, as the media parties submit, that the plaintiff is, as against the celebrity and entertainment media or for that matter against the media parties themselves, in a position of strength. The opposite is the case. There is no merit in the media parties characterisation that to make the suppression order sought would amount to a ‘powerful litigant' being afforded special entitlements on that basis. Speculation by the court as to the plaintiff’s level of resources and references to the experience of her legal team are irrelevant to balancing the considerations applicable in this case.
I am satisfied that the risk of prejudice to the administration of justice follows on the prospect that other persons with a public profile that attracts a particular form of media attention who wish to seek vindication of rights against powerful media companies may be discouraged from seeking to vindicate their rights if required to act to their possible future prejudice in dealings with third parties through disclosure of confidential information. Such prejudice arises when the consequence of a perception that third parties may not treat with a person who is willing to, or incidentally required to, disclose commercially confident information discourages a potential plaintiff from litigating. To the extent that a potential plaintiff is discouraged from seeking vindication of a right in a court of law, there is prejudice to the administration of justice.
There was some force in some of the media parties’ submissions. On the other hand, the media parties were not able to point to any compelling need for the public to know those precise sums in the context of this proceeding, other than fair report of proceedings in court, that is, open justice. I reject the submission that the plaintiff is only seeking to avoid embarrassment, privacy or inconvenience. The concept of public interest in court proceedings rises above and is different from an interest that, it would appear in this case, would only go to finding the sums interesting as a matter of Hollywood gossip and the interests of media entities in making money from the sale of publications including such matters. These matters may well already be the subject of speculation in the media, but that is, as the media parties properly acknowledged, an entirely different proposition to publication of concrete figures confirmed by the contracts themselves.
I also reject the media parties’ submission that the public might be constrained from properly assessing an award of damages that, depending upon the jury’s verdict, I might be required to make. It can be expected that any such award of damages will be accompanied by detailed reasons. The information to be suppressed is of very limited compass – extending only to the specific figures themselves. There is no force in that submission that was, at best, speculative.
In balancing the considerations of open justice, the proper administration of justice also involves questions about access to justice. For example, when a plaintiff seeking damages for personal injury discloses financial circumstances for an award of damages in front of a jury, it generally passes without media comment. Usually such information is not subject to obligations of confidence and the concern rather is one of embarrassment and like consequences. Such disclosure is now rarely, if ever, the subject of the level of media interest that has accompanied this trial. Social conditions were different when Scott v Scott was decided. That form of disclosure does not lead to the concerns that other plaintiffs might be discouraged from seeking to vindicate their rights because of irrelevant or third party concerns, such as they have breached their employer's confidentiality by disclosing what money they have earned.
I should also record that the role of the media as the eyes and ears of the public was of less importance in this proceeding than is commonly the case in contemporary times as the courtroom was full of spectators — standing room only — for most of the trial, and certainly for the plaintiff’s evidence. For those present in court, the only restriction was on the out of court publication of limited specific information.
The second matter was the extent to which a suppression order adversely affects the principle of open justice. In this case, the order sought is akin to a pseudonym order, which is a form of order not regulated by the Open Courts Act.[13] It has been acknowledged that such a form of order has a light footprint on the principles of open justice and can be effective in advancing competing policy outcomes such as access to justice without unacceptable compromise of the competing principle.
[13]See RN v Commonwealth of Australia (2014) 41 VR 699.
The Act makes clear that the effect on the public nature of the proceedings and the ability of the media to fully report on proceedings should only be restricted to the minimum extent necessary to achieve the purpose for which the order was made.[14] The order to be made in this case will have no effect on the public nature of the proceedings and the ability of the media to fully report on proceedings will only be restricted on the issue of the particular figures identified in the contracts.
[14]Open Courts Act, 2013, s 13.
When this application was first made on 26 May 2017 resulting in an interim suppression order, the plaintiff contended that, in the circumstances, the confidentiality of the figures could appropriately be protected by requiring the cross-examiner to adopt the procedure used in ABC v Parish.[15] In that case, the ABC wished to publish the amounts that the Australian Cricket Board had negotiated for television rights to broadcast cricket matches with different networks that were revealed in contracts the subject of litigation. The procedure adopted resulted in the use of references to the relevant clauses of the contracts and the figures revealed by them in open court, such that the judge, counsel and the witness were taken to the figures referentially without the actual information being revealed to the public.
[15](1980) 29 ALR 228.
The defendants, who at that time were yet to cross-examine, strongly opposed adopting that course in this proceeding, submitting that unless they were able to state the specific figures in open court, they would be prejudiced in their ability to properly cross-examine the plaintiff and other witnesses. The plaintiff foreshadowed that open cross-examination was a matter potentially relevant to aggravated damages, depending on the disposition of the case. The defendants maintained that the figures were ‘a pretty fundamental part of the cross-examination’. Recognising the importance to the fair trial of the proceeding, and bearing in mind that using a referential system of preserving confidentiality was a little more complex before a jury, and of the defendants’ right to cross-examine the plaintiff unimpeded, I was persuaded by this submission not to use a referential solution to the issue of commercial confidentiality and to make a limited suppression order on an interim basis.
By the completion of the plaintiff’s cross-examination it was clear that that defendants’ submission that I had accepted on counsel’s assurance, lacked merit. Neither the cross-examiner nor the jury would have been impeded in any way in their functions if a system of references to the documents had been employed. The defendants’ criticism of the alternative proposal to a suppression order proved incorrect. In hindsight, I would have preferred adopting a referential system approach to a suppression order but the egg cannot now be unscrambled. That said, the limited reference in evidence to the figures demonstrates that the impact of the interim suppression order on public reporting of the trial and on the objectives of the principles of open justice was minimal.
For these reasons I will make a suppression order in the terms sought by the plaintiff.
I will order that disclosure by publication or otherwise is prohibited of the financial benefits that the plaintiff has, will, or may receive under agreements or contracts made after 18 May 2015 in respect of the provision of the plaintiff services as an actor including but not limited to agreements in respect of the movies entitled or provisionally entitled ’Pitch Perfect 3’, ‘Absolutely Fabulous’, ‘Private Benjamin’, ‘Isn’t it Romantic’ and ‘Dirty Rotten Scoundrels’.
I will note in ‘other matters’ that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means.
Section 12 of the Open Courts Act requires that I identify a date of expiration for the order. The plaintiff submitted that this ought be until further order or the expiration of a five-year term from the making of the order. I am satisfied that the order should be made on that basis.
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