Case: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836
Outcome: referred to
do not consider that the first reason provides a basis for excluding documents under s 50 of the Federal Court of Australia Act 1976 (Cth). Given the principle of open justice, the fact that documents have not been admitted into evidence would not be sufficient to justify a prohibition on their publication. In Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 Rares J observed at [27]: 'The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could only possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of anyone fairly to report proceedings in a court of justice.' Rares J was dealing with an application which sought to restrain access by the media to pleadings filed in proceedings. Pleadings are subject to O 46 r 6(1). Third parties are entitled to access pleadings unless the Court has ordered that they are confidential. The case law relating to documents subject to O 46 r 6(2) is somewhat different. Nonetheless, the principle which emerges from the above is the fact that material contains allegations which are untested this does not of itself justify an order under s 50. For similar reasons, I do not consider that the fifth reason proposed by APRA is sufficient to justify the continuation of an order under s 50. Unfortunate though it may be, the fact that the reputations of certain individuals may be damaged by documents is not of itself a reason for restricting their publication by an order under s 50. The damage to an individual must be weighed against the importance of maintaining open justice and public confidence in the justice system. As Rares J observed in Llewellyn at [23]: 'Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts.' However, I consider that the second and third reasons suggested by APRA relating to the prohibitions contained in s 56 of the APRA Act are significant. In my opinion, it would prejudice the administration of justice if documents were revealed to which restrictions under s 56 of the APRA Act applied. The Court cannot require the production of these documents and they were provided to the applicant and to the Court subject to confidentiality requirements. It would vitiate my decision of 26 May 2006 relating to the effect of that section if those documents which were ' protected documents ' or contained ' protected information ' were allowed to be published by the Court. I agree with Rares J in Llewellyn that the approach adopted in the Supreme Court of New South Wales, in which different rules apply, is different from the approach adopted by the rules of this Court: see at [21] and [22] of his Honour's judgment. Pursuant to O 46 r 6(1) of the Federal Court Rules , a non-party will generally be entitled to access the pleadings. Accordingly I do not consider the comments of Santow J in eisa Ltd v Brady and Ors [2000] NSWSC 929 at [20] are applicable to this Court in so far as they apply to pleadings. However, in respect of affidavit material which has not been read in Court, the comments of Santow J in respect of affidavits accord with the principle outlined by Sackville J in Macquarie Radio and Seven Network .