Bayles by his litigation representative Bayles v Nationwide News Pty Limited (No 3) [2020] FCA 1397

Bayles by his litigation representative Bayles v Nationwide News Pty Limited (No 3) [2020] FCA 1397

A broad non-publication order over the affidavit and all annexures was not necessary having regard to open justice. Suppression was necessary under s 37AG(1)(a) only for sensitive bank account details, the deed of release containing confidential settlement terms, the parts of the independent legal advice referring to settlement terms, and the addresses and signatures in the trust deed because publication of that information would prejudice the proper administration of justice, including by undermining confidential settlements or exposing parties and the trust fund to identity theft risk. The second respondent did not discharge the heavy onus required to suppress additional advice merely...

Jurisdiction
Australia
Judgment Date
28 September 2020
Procedural Posture
Defamation Action; Application for Suppression or Non Publication Order / Judgment on Application Under S 37 AF of the Federal Court of Australia Act 1976 (cth) Concerning Parts of an Affidavit and Annexures Filed in Support of Settlement Approval
Outcome
Suppression/non-publication order made in part; broader application refused or not pressed in part.
Legal Topics
['suppression or Non Publication Orders' 'open Justice' 'administration of Justice' 'confidential Settlement Terms' 'settlement Approval' 'identity Theft Risk']
['practice and Procedure' 'defamation'] ['suppression or Non Publication Orders' 'open Justice' 'administration of Justice' 'confidential Settlement Terms' 'settlement Approval' 'identity Theft Risk']

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Procedural Posture

Defamation Action; Application for Suppression or Non Publication Order / Judgment on Application Under S 37 AF of the Federal Court of Australia Act 1976 (cth) Concerning Parts of an Affidavit and Annexures Filed in Support of Settlement Approval

Legal Issues

  1. 1 ['Whether non-publication of the affidavit and annexures was necessary to prevent prejudice to the proper administration of justice under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth).' 'Whether the deed of release containing settlement terms should be withheld from publication because the parties agreed to confidentiality and settlement of litigation is in the public interest.' 'Whether parts of independent legal advice and the trust deed should be suppressed, including settlement terms, addresses and signatures.' 'Whether possible embarrassment or annoyance to the second respondent justified suppression of additional parts of the independent legal advice.']

Ratio Decidendi

A broad non-publication order over the affidavit and all annexures was not necessary having regard to open justice. Suppression was necessary under s 37AG(1)(a) only for sensitive bank account details, the deed of release containing confidential settlement terms, the parts of the independent legal advice referring to settlement terms, and the addresses and signatures in the trust deed because publication of that information would prejudice the proper administration of justice, including by undermining confidential settlements or exposing parties and the trust fund to identity theft risk. The second respondent did not discharge the heavy onus required to suppress additional advice merely...

Court Disposition

Suppression/non-publication order made in part; broader application refused or not pressed in part.

Orders

  • ['Subject to order 2 and until further order, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to prevent prejudice to the administration of justice, there be no disclosure by publication or otherwise of paragraph 7, annexure DF-1, paragraphs 24-26 of annexure...