ABC Defence To Porter Defamation Suit To Remain Secret

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FEDERAL COURT OF AUSTRALIA
Porter v Australian Broadcasting Corporation [2021] FCA 863
File number(s): NSD 206 of 2021
Judgment of: JAGOT J
Date of judgment: 30 July 2021
Catchwords: PRACTICE AND PROCEDURE – where parties settled

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

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

orders made in chambers – when orders may be made in
chambers and not in open court.
Legislation: Federal Court of Australia Act 1976 (Cth) ss 17, 37AA,

37AE–37AI, 37M, 37N
Federal Court Rules 2011 (Cth) rr 1.32, 1.35, 1.36, 2.21,
2.25–2.29, 2.31, 2.32, 9.12, 16.21, 20.03
Judiciary Act 1903 (Cth) s 78B
Cases cited: Appleroth v Ferrari Australasia Pty Limited [2020] FCA

756
Attorney-General v Observer Ltd [1990] 1 AC 109
Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115
4GVTKGXGFHTQO#WUV.++QP,WN[CV 8GTKH[XGTUKQP
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Chandrasekaran v Commonwealth of Australia (No 3)

[2020] FCA 1629
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12;
(2005) 223 CLR 1
David Syme & Co v General Motors-Holden’s Ltd [1984] 2
NSWLR 294
Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38;
[2020] AC 629
Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Hogan v Australian Crime Commission [2010] HCA 21;
(2010) 240 CLR 651
John Fairfax Group Pty Ltd v Local Court (NSW) (1991)
26 NSWLR 131
Keyzer v La Trobe University [2019] FCA 646
KPTT v Commissioner of Taxation [2021] FCA 464
Lange v Australian Broadcasting Corporation [1997] HCA
25; (1997) 189 CLR 520
Levy v Victoria (1997) 189 CLR 579
Llewellyn v Nine Network Australia Pty Ltd [2006] FCA
836; (2006) 154 FCR 293
McLaughlin v Glenn [2020] FCA 679
Minister for Immigration and Border Protection v Egan
[2018] FCA 1320
Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA
1101
Prothonotary of the Supreme Court of New South Wales v
Shane Dowling [2017] NSWSC 664
R v Davis (1995) 57 FCR 512
R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999]
QB 966
Reynolds v JP Morgan Administrative Services Australia
Ltd (No 2) [2011] FCA 489; (2011) 193 FCR 507
Rinehart v Rinehart [2014] FCA 1241; (2014) 320 ALR
195
Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR
311
Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018)
359 ALR 473
Russell v Russell [1976] HCA 23; (1976) 134 CLR 495
Scott v Scott [1913] UKHL 2; [1913] AC 417
SM Employment Pty Ltd v Commissioner of Taxation
[2019] FCA 464
The Country Care Group Pty Ltd v Commonwealth
Director of Public Prosecutions (No 2) [2020] FCAFC 44;
(2020) 275 FCR 377
Treasury Wine Estates Limited v Maurice Blackburn Pty
Ltd [2020] FCAFC 226
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Valentine v Freemantlemedia Australia Pty Ltd [2013]

FCA 1293
Williams v Forgie [2003] FCA 991
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 118
Date of hearing: 9 July 2021
Counsel for the Applicant: Mr B Walker SC with Mr B Dean
Solicitor for the Applicant: Company Giles Pty Ltd
Counsel for the Respondents: Ms R Enbom QC with Ms K Lindeman
Solicitor for the Australian Broadcasting Corporation Legal Services

Respondents:
Counsel for the Intervening Mr D Sibtain

Parties:
Solicitor for the Intervening Thomson Geer

Parties:
Counsel for Mr Dowling: Mr Dowling appeared in person
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ORDERS
NSD 206 of 2021
BETWEEN: CHARLES CHRISTIAN PORTER

Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION

First Respondent
LOUISE MILLIGAN
Second Respondent
ORDER MADE BY: JAGOT J

DATE OF ORDER: 30 JULY 2021
THE COURT ORDERS THAT:
1. The New South Wales District Registrar cause a copy of the unredacted defence filed
4 May 2021 and the unredacted reply filed 4 May 2021 to be placed into an envelope
marked “NSD206/2021 Charles Christian Porter v Australian Broadcasting
Corporation and Anor, Unredacted Defence and Unredacted Reply, removed from the
Court file pursuant to orders made on 30 July 2021. Not to be opened or made
available for inspection by the public other than by leave of the Court”.
2. The envelope referred to in order 1 be sealed and stored by the New South Wales
District Registrar in the New South Wales District Registry in a manner and location
as decided by the New South Wales District Registrar.
3. The interim suppression and non-publication orders made on 10 May 2021 and
subsequently amended on 21 May 2021, 25 May 2021 and 28 July 2021 be revoked.
4. Order 3 be stayed for a period of 14 days.

5. The interlocutory application filed by Shane Dowling on 11 May 2021 (the Dowling
interlocutory application) be dismissed.
6. Shane Dowling pay the costs of the parties of and in connection with the Dowling
interlocutory application as agreed or taxed.
7. The intervening parties and the parties each pay their own costs of and in connection
with the hearing on 9 July 2021 and all related case management hearings.
Porter v Australian Broadcasting Corporation [2021] FCA 863 i
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8. The intervening parties and the parties may seek to vary order 7 by filing and serving,
within seven days, a written submission not exceeding two pages setting out the
varied order sought and the reasons in support.
9. If the intervening parties or parties file and serve any written submission under order
8, the other parties and/or intervening parties may file and serve, within seven days, a
written submission in response not exceeding two pages.
AND THE COURT ORDERS BY CONSENT THAT:
10. Leave be granted to the applicant to file a notice of discontinuance within seven days
on the basis that there be no order as to costs.
11. The unredacted defence and unredacted reply be removed from the Court file.
Note: order 11 is made on the ground that it is necessary to prevent prejudice to the proper
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Porter v Australian Broadcasting Corporation [2021] FCA 863 ii
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REASONS FOR JUDGMENT
JAGOT J:
1. Background
1 This proceeding involves a claim for defamation. The parties settled the proceeding. On 31
May 2021 the parties forwarded an agreed email to the Court indicating that they would be
grateful if I made orders by consent in chambers as follows:
BY CONSENT:
1. The proceedings be discontinued.
2. No order as to costs.
3. The unredacted Defence and unredacted Reply be permanently removed from
the Court file.
THE COURT NOTES:
4. That the First Respondent agrees to the following publication:
On 26 February 2021, the [Australian Broadcasting Corporation (the ABC)]
published an article by Louise Milligan. That article was about a letter to the
Prime Minister containing allegations against a senior cabinet minister.
Although he was not named, the article was about the Attorney General
Christian Porter.
The ABC did not intend to suggest that Mr Porter had committed the criminal
offences alleged. The ABC did not contend that the serious accusations could
be substantiated to the applicable legal standard – criminal or civil. However,
both parties accept that some readers misinterpreted the article as an
accusation of guilt against Mr Porter. That reading, which was not intended
by the ABC, is regretted.
2 In an email in response I said:
Justice Jagot has considered the proposed consent orders. Her Honour notes the
following:
1 The necessary order is that “Leave be granted to the applicant to file a notice
of discontinuance within 7 days on the basis that there be no order as to
costs”. Her Honour has no issue with the making of an order in these
amended terms.
2 Order 2 is appropriate. Her Honour has no issue with the making of an order
in these terms.
3 Justice Jagot’s present view is that order 3 cannot be made merely by consent
between the parties. Her Honour’s present view is that the intervening parties
may still have a right to be heard about any order continuing, or having the
effect of continuing, the suppression orders. Mr Dowling’s interlocutory
application also remains unresolved.
Porter v Australian Broadcasting Corporation [2021] FCA 863 1
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3 I also informed the parties that, as a result, the proceeding would remain listed in open court
the following morning.
4 The parties responded to the effect that they agreed that order 1 needed to be amended as I
proposed. As to proposed consent order 3, they said “[i]n relation to Order 3, the ABC has
agreed as part of the settlement of the matter to unredacted copies of the Defence and the
Reply being removed from the court file. As such, in the parties’ view if her Honour were to
make this order, the question of suppression would no longer arise ”. This response did not
answer the issue of concern. The issue of concern was the appropriateness of making consent
order 3 at all or as proposed (in chambers) without hearing from the intervening parties in
particular. Also, it may not necessarily be the case that if an order for removal of a pleading
from the Court’s file is made the question of a suppression order does not arise. This is
explained below.
5 Evidence of the settlement was filed in accordance with subsequent orders. On 31 May 2021
the parties entered into a deed of settlement and release. Recital G to the deed records that the
parties had agreed, without admission as to liability, to settle the proceeding on the terms and
conditions set out in the deed. Clause 2.1 of the deed provides that the ABC would publish a
statement within 24 hours in the form set out in Sch 2 to the deed and permanently attach an
editor’s note to the publication the subject of the proceeding (an article published on 26
February 2021 about a “historical rape allegation against Cabinet Minister”). Clause 3.1
provides that the parties would file the consent orders in the form set out in Sch 3 to the deed
(reflecting the terms of the consent orders set out above). Clause 4 provides that, with effect
from execution of the deed, Mr Porter releases the ABC and Ms Milligan from all claims
connected in any way to the publication. Clause 5 provides that the deed may be pleaded in
bar to any claim which is released. Clause 7 relates to mediation costs. Clause 7.1 relates to
mediation costs and is redacted. Clause 7.2 provides that the quantum paid by the ABC
pursuant to cl 7.1 will remain confidential and will not be disclosed subject to certain
exceptions.
6 The intervening parties are Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd
and the Age Company Pty Ltd. I granted the intervening parties leave to be heard in respect
of an interlocutory application filed by the applicant, Mr Porter, on 5 May 2021 seeking
orders that Sch 1, 2 and 3 of the respondents’ defence be struck out under r 16.21(1) and,
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relying on r 16.21(a), (b), (c) and/or (f), that those Schedules be removed from the Court file
under r 16.21(2) of the Federal Court Rules 2011 (Cth) (the Court Rules).
7 Mr Dowling filed an interlocutory application on 11 May 2021 seeking leave to be heard in

respect of Mr Porter’s application for suppression/non-publication orders under s 37AF of the
Federal Court of Australia Act 1976 (Cth) (the Court Act). This is a reference to the fact that
Mr Porter had also filed an interlocutory application on 6 May 2021 seeking orders under
s 37AI of the Court Act suppressing the content of Sch 1, 2, and 3 of the respondents’
defence until further order. In response, on 10 May 2021, I made interim suppression and
non-publication orders in respect of Sch 1, 2 and 3 of the respondents’ defence and (at the
request of the respondents) para’s 2(ll) to (pp) and 8 of the reply to the defence under s 37AI
of the Court Act. These orders have subsequently been amended but the amendments are not
material to the remaining issue in the case, which is whether I should make order 3 as
proposed by consent between the parties.
8 Accordingly, as at 21 May 2021 (and today), the position was (and is) that:
(1) there is an undetermined interlocutory application by Mr Porter seeking to strike out

and remove from the Court file Sch 1, 2 and 3 of the respondents’ defence under
r 16.21(1) and (2) respectively of the Court Rules;
(2) there are interim suppression and non-publication orders under s 37AI of the Court
Act in respect of Sch 1, 2 and 3 of the respondents’ defence and para’s 2(ll) to (pp)
and 8 of the reply to the defence;
(3) the intervening parties had been granted leave to be heard in respect of the making of
any permanent suppression and non-publication orders under s 37AF of the Court Act
in respect of Sch 1, 2 and 3 of the respondents’ defence and para’s 2(ll) to (pp) and 8
of the reply to the defence;
(4) there is an undetermined application by Mr Dowling for leave to be heard in respect
of the making of any permanent suppression and non-publication orders under s 37AF
of the Court Act in respect of Sch 1, 2 and 3 of the respondents’ defence and para’s
2(ll) to (pp) and 8 of the reply to the defence; and
(5) the parties (that is, Mr Porter, the ABC and Ms Milligan) had settled the proceeding.
The terms of settlement included that the parties would file the proposed consent
orders.
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9 In those circumstances, I made directions enabling the parties, the intervening parties and Mr
Dowling to file affidavits and submissions setting out their respective positions and listed the
matter for hearing in open court on 9 July 2021. The issue requiring resolution is whether I
should make order 3 as proposed by consent between the parties, Mr Porter, the ABC and Ms
Milligan.
10 Having now: (a) heard from the parties and the intervening parties in open court, and
(b) reviewed the terms of the deed between the parties, I am satisfied that in the particular
circumstances of this case (as explained below) it is necessary to make proposed consent
order 3 to prevent prejudice to the proper administration of justice. My reasons follow.
2. The statutory provisions

11 It is necessary to understand a number of provisions of the Court Act and the Court Rules.
2.1 The Court Act

12 Part VAA of the Court Act deals with suppression and non-publication orders.
13 Section 17(1) provides:
Except where, as authorized by this Act or another law of the Commonwealth, the
jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction
of the Court shall be exercised in open court.
14 Section 17(1), on its own terms, is not absolute (it operates subject to the Court Act and any
other law of the Commonwealth). One provision of the Court Act which authorises the
exercise of jurisdiction in other than open court is s 17(4) which provides:
The Court may order the exclusion of the public or of persons specified by the Court
from a sitting of the Court where the Court is satisfied that the presence of the public
or of those persons, as the case may be, would be contrary to the interests of justice.
15 Another such provision is s 17(2) which provides:
The jurisdiction of the Court may be exercised by a Judge sitting in Chambers in:
(a) a proceeding on an application relating to the conduct of a proceeding;
(b) a proceeding on an application for orders or directions as to any matter
which, by this Act or any other law of the Commonwealth, is made subject to
the direction of a Judge sitting in Chambers; and
(c) a proceeding on any other application authorized by the Rules of Court to be
made to a Judge sitting in Chambers.
16 Section 37AE provides:
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In deciding whether to make a suppression order or non‑publication order, the Court

must take into account that a primary objective of the administration of justice is to
safeguard the public interest in open justice.
17 By s 37AF the Court may make a suppression or non‑publication order in respect of

“information” including “information lodged with or filed in the Court”: s 37AF(1)(b)(iv).
18 A suppression or non‑publication order under s 37AF can only be made on one of the
grounds in s 37AG(1) including that the “order is necessary to prevent prejudice to the proper
administration of justice”: s 37AG(1)(a).
19 By s 37AH(2) the persons entitled to be heard in relation to the making of a suppression or

non‑publication order are the applicant for the order, a party, the Government (or an agency
of the Government) the Commonwealth or a State or Territory, a news publisher, and “any
other person who, in the Court’s opinion, has a sufficient interest in the question of whether a
suppression order or non‑publication order should be made”.
20 If an application for a suppression or non‑publication order is made, s 37AI(1) permits the

Court to make a suppression or non‑publication order on an interim basis, “without
determining the merits of the application”. If such an interim order is made, the Court must
determine the application as a matter of urgency: s 37AI(2). The order I made on 10 May
2021 (as subsequently amended) was made under s 37AI(1) on the basis that it was not
possible to hear the merits of Mr Porter’s application until some weeks after the filing of his
interlocutory application.
21 Contravention of a suppression or non‑publication order is a criminal offence: s 37AL(1).
22 By s 37M(1) of the Court Act, “[t]he overarching purpose of the civil practice and procedure
provisions is to facilitate the just resolution of disputes” according to law and as quickly,
inexpensively and efficiently as possible. By s 37M(2) the overarching purpose includes the
following objectives:
(a) the just determination of all proceedings before the Court;

(b) the efficient use of the judicial and administrative resources available for the
purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and
complexity of the matters in dispute.
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23 By s 37M(3), “[t]he civil practice and procedure provisions must be interpreted and applied,
and any power conferred or duty imposed by them … must be exercised or carried out, in the
way that best promotes the overarching purpose.”
24 Section 37M(4) defines the civil practice and procedure provisions as the Court Rules and
“any other provision made by or under this Act or any other Act with respect to the practice
and procedure of the Court”.
25 Parties and their lawyers are subject to a duty to conduct any proceeding (including
negotiations for settlement of the dispute to which the proceeding relates) in a way that is
consistent with the overarching purpose: s 37N(1)-(3).
2.2 The Court Rules

26 The Court may make any order that the Court considers appropriate in the interests of justice :
r 1.32.
27 The Court may dispense with or make an order that is inconsistent with the Court Rules:
rr 1.34 and 1.35.
28 The Court may make orders other than in open court: r 1.36.
29 Rule 2.21 provides how documents may be lodged with the Court (in effect, by presenting or
sending the document to a Registry of the Court).
30 Rule 2.25(1) provides that a document is filed when it is lodged under r 2.21 and is accepted
in the Registry by stamping the document as “filed”.
31 A Registrar may refuse to accept a document for filing if the Registrar is satisfied that the
document is an abuse of the process of the Court or is frivolous or vexatious on the face of
the document or by reference to any documents already filed or submitted for filing with the
document: r 2.26.
32 Rule 2.27 deals with formal requirements which must be satisfied for a document to be filed.
33 By rules 2.28 and 2.29 documents accepted for filing or on a Court file may be removed from
the file (and, if necessary, replaced with a redacted version of the document) either on the
Court’s own initiative or on the application by a party under r 6.01 or r 16.21(2) or if the
Court is satisfied that the document is otherwise an abuse of process of the Court or should
not have been accepted for filing under r 2.27. Rules 2.28(3) and 2.29(4) provide that:
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A document removed from a Court file under this rule must be stored:
(a) if an order mentioned in this rule specifies a way to store the document - in
the way specified in the order; or
(b) otherwise - as directed by the District Registrar.
34 Rule 2.31(1) provides that the District Registrar of a District Registry has custody and control
over each document filed in a Registry in a proceeding and the records of the Registry. By
r 2.31(2) a person may remove a document from a Registry if a Registrar has given written
permission for the removal because it is necessary to transfer the document to another
Registry or the Court has given the person leave for the removal.
35 Rule 2.32 provides for the inspection of a document in a proceeding. Subject to some
limitations (with respect to privilege and confidentiality) a party may inspect any document
in a proceeding: r 2.32(1). A person who is not a party may inspect certain specified
documents in a proceeding, including a pleading: r 2.32(2). By r 2.32(3), however, a person
who is not a party is not entitled to inspect a document that the Court has ordered be
confidential or is forbidden from, or restricted from publication to, the person or a class of
persons of which the person is a member. By r 2.32(4) a person may apply to the Court for
leave to inspect a document that the person is not otherwise entitled to inspect. If the person
is entitled to inspect a document, they may also obtain a copy of the document on payment of
a fee: r 2.32(5).
36 It will be recalled that rr 2.28 and 2.29 provide that a document may be removed from a
Court file on the application by a party under r 6.01 or r 16.21(2). Rule 6.01 provides that:
If a document filed in a proceeding contains matter that is scandalous, vexatious or

oppressive, a party may apply to the Court for an order that:
(a) the document be removed from the Court file; or
(b) the matter be struck out of the document.
37 Rule 16.21 provides that:
(1) A party may apply to the Court for an order that all or part of a pleading be
struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the
proceeding; or
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(e) fails to disclose a reasonable cause of action or defence or other case

appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court
file if the pleading contains material of a kind mentioned in paragraph (1)(a),
(b) or (c) or is otherwise an abuse of the process of the Court.
38 It will be recalled that Mr Porter applied to strike out Sch 1, 2 and 3 of the defence under
r 16.21(1) and to remove those Schedules from the Court file on the basis that they contain
material of a kind mentioned in r 16.21(1)(a), (b), (c) and/or (f).
3. The submissions
39 The submissions for Mr Porter were straightforward. The proceeding included a dispute as to
whether Sch 1, 2 and 3 of the defence should be struck out under r 16.21(1)(a), (b), (c) and/or
(f) and removed from the Court file under r 16.21(2). This dispute was raised in good faith by
Mr Porter as apparent from his interlocutory application filed on 5 May 2021. The parties
settled the entirety of the proceeding including this dispute on the basis set out in the deed
including the filing of the proposed consent orders. The settlement of the proceeding
including the dispute about the defence was lawful. There is a public interest in parties being
encouraged to settle disputes, reflected in the terms of ss 37M and 37N of the Court Act. It is
not proposed that Sch 1, 2 and 3 of the defence disappear. The Court should give effect to the
agreement of the parties for the settlement of the proceeding, including the dispute about the
defence, by making appropriate orders. Orders could include orders for the storage of Sch 1,
2 and 3 of the defence by the District Registrar.
40 It was further submitted for Mr Porter that once it was accepted, as it must be, that the parties
had reached a lawful compromise of the entirety of the proceeding, including the dispute
about the defence, the only issue was whether effect should not be given to the lawful
compromise on some proper principled basis. There is no such principled basis. First, the
Court Rules permit a document, which includes a pleading, to be removed from the Court
file. Second, there is nothing about the nature of the proceeding, a claim for defamation,
which suggests the Court should not give effect to the lawful compromise of the parties.
Third, there is nothing about the nature of the parties which suggests the Court should not
give effect to the lawful compromise of these parties. All are equal before the law.
41 It was also submitted for Mr Porter that the intervening parties had no right to be heard about
the making of proposed consent order 3, and nor did Mr Dowling. The parties were not
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seeking the making of a suppression or non-publication order so the intervening parties had
no right to be heard under s 37AH(2)(d). Mr Dowling was not a “news publisher” as defined
in s 37AA of the Court Act and was not a person with any interest in the proceeding as
provided for in s 37AH(2)(e) of the Court Act. While the Court may require the assistance of
a contradictor or grant a person leave to intervene if their intervention will be useful (for
example, see r 9.12 of the Court Rules), Mr Dowling’s submissions and evidence disclose
that he is not able to provide the Court with any proper assistance. Mr Porter also accepted
that the interim suppression and non-publication orders made on 10 May 2021 (and
subsequently amended) should be revoked, consequential on the making of the proposed
consent orders.
42 It was submitted for Mr Porter that the practical effect of this would be that: (a) the
unredacted defence and unredacted reply would be removed from the Court’s file and thus
would not be amenable to inspection under r 2.32(2), (b) the unredacted defence and
unredacted reply could be stored in the Registry other than on the Court’s file for the
proceeding, and (c) the parties and intervening parties holding copies of the unredacted
defence and unredacted reply would be bound not to use the documents other than for the
purpose of the proceeding, consistent with the implied undertaking in respect of documents
filed in litigation (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). Since the hearing,
and with the agreement of the parties, I varied the interim suppression and non-publication
orders on 28 July 2021 to permit the South Australian Coroner’s Court access to the
unredacted defence in accordance with a request received from that Court.
43 As to proposition (c) above, I infer that the basis for this proposition is that the implied
Hearne v Street obligation applies to the unredacted defence and unredacted reply because
the redacted parts of those documents have not been read or referred to in open court in a way
that discloses their contents and, as a result, r 20.03(1) of the Court Rules is not engaged.
Rule 20.03(1) provides that “[i]f a document is read or referred to in open court in a way that
discloses its contents, any express order or implied undertaking not to use the document
except in relation to a particular proceeding no longer applies ”. However, it is necessary, in
this regard, to refer to Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020]
FCAFC 226 which concerns the Hearne v Street obligation. In obiter dicta in Treasury Wine
at [87]-[89] the Full Court dealt with an argument that the Hearne v Street obligation did not
apply at all to a pleading. The Full Court accepted that argument in circumstances where the
pleadings in issue in that case had not been the subject of any order restricting access.
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However, in doing so, the Full Court referred to two cases to the effect that the Hearne v
Street obligation does not apply to pleadings at all: Helicopter Aerial Surveys Pty Ltd v Garry
Robertson [2015] NSWSC at [35] and Canterbury-Bankstown Council v Payce Communities
Pty Ltd [2019] NSWSC 1419; and one case to the contrary: eisa Limited v Damien Brady
[2000] NSWSC 929 at [21].
44 The application or not of the Hearne v Street obligation to the unredacted defence and
unredacted reply was not the subject of any argument before me in the present case. The
scope for debate about that issue reinforces the conclusions I have reached below to the effect
that: (a) if it is not to be deleted from the Court Rules, the only proper grounds for making an
order that a document be “confidential” under r 2.32(3)(a) are the grounds which permit the
making of a suppression or non-publication order under s 37AG(1) of the Court Act, (b) the
only proper grounds for making an order that a document be removed from a Court file under
rr 2.28 or 2.29 of the Court Rules are also the grounds which permit the making of a
suppression or non-publication order under s 37AG(1) of the Court Act, and (c) applying for
an order that a document be “confidential” under r 2.32(3)(a) and removed from the file
under rr 2.28 or 2.29 cannot be permitted to avoid the stringent standard that would otherwise
apply if a suppression or non-publication order is sought, as the effect of the orders is the
same; both impact the right the public would otherwise have to inspect or seek leave to
inspect documents filed in the Court, and both should meet the requirement of “necessity” for
the making of the order, in effect, to prevent prejudice to the proper administration of justice :
s 37AG(1)(a).
45 Because the application of the Hearne v Street obligation to the unredacted defence and
unredacted reply was not the subject of any argument before me, it is necessary that I give the
parties, particularly Mr Porter (proposed consent order 3 being primarily in his interest), an
opportunity to consider their position in that regard. Accordingly, the revocation of the
interim suppression and non-publication orders which Mr Walker SC agreed should occur,
should also be stayed for a period of 14 days to enable any further applicat ions, as may be
seen to be necessary whether as a matter of abundant caution or otherwise, to be filed.
46 The intervening parties submitted that the effect of proposed consent order 3 was a de facto
suppression order. Proposed consent order 3 would mean that a document the public would
ordinarily be entitled to inspect under r 2.32(2)(c) of the Court Rules would not be available
for inspection. The result would be a derogation from the overarching principle of open
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justice. Given that a “news publisher” has a right to be heard about any suppression or non-
publication order (s 37AH(2)(d) of the Court Act), a news publisher should also have the
right to be heard about any application for removal of a document from a Court file. As will
become apparent, I agree with this submission.
47 The intervening parties submitted that there is a sound and principled basis for concluding
that Sch 1, 2 and 3 of the defence (and the unredacted reply) should not be removed from the
Court’s file. The basis is the requirement for open justice, as reflected in s 37AE of the Court
Act. The principle of open justice is fundamental.
48 In Minister for Immigration and Border Protection v Egan [2018] FCA 1320 Allsop CJ said
at [4]:
The principle of open justice is one of the overarching principles in the

administration of justice, in this Court and all others. It lies at the heart of the
exercise of judicial power as part of the wider democratic process. The principle
involves justice being seen to be done. A key part of this task is enabling accurate
and fair public reports of proceedings. Open justice is not an absolute concept,
unbending in its form. It must on occasion be balanced with other considerations,
including but not limited to considerations such as the avoidance of prejudice in the
administration of justice or the protection of victims. Nevertheless, an order
restricting the ordinary open justice approach is not lightly made. This balancing
exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act
1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32.
49 There are numerous judicial statements to similar effect. For example, in Russell v Russell
[1976] HCA 23; (1976) 134 CLR 495 at 520, Gibbs J said:
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that
their proceedings shall be conducted “publicly and in open view” (Scott v. Scott
[1913] A.C. 417, at p. 441). This rule has the virtue that the proceedings of every
court are fully exposed to public and professional scrutiny and criticism, without
which abuses may flourish undetected. Further, the public administration of justice
tends to maintain confidence in the integrity and independence of the courts. The fact
that courts of law are held openly and not in secret is an essential aspect of their
character. It distinguishes their activities from those of administrative officials, for
“publicity is the authentic hall-mark of judicial as distinct from administrative
procedure” (McPherson v. McPherson [1936] A.C. 177, at p. 200).
50 In Russell also at 520 Gibbs J said:
Of course there are established exceptions to the general rule that judicial
proceedings shall be conducted in public; and the category of such exceptions is not
closed to the Parliament. The need to maintain secrecy or confidentiality, or the
interests of privacy or delicacy, may in some cases be thought to render it desirable
for a matter, or part of it, to be held in closed court.
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51 The intervening parties noted that the mere fact that a pleading or part of a pleading has been
struck out does not mean that it warrants the removal of the pleading or part of it from the
file. In Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 Wigney J
said:
(1) suppression or non-publication orders should only be made in exceptional

circumstances: Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at
[27]; Rinehart v Rinehart [2014] FCA 1241; (2014) 320 ALR 195 at [23]. That is
both because the operative word in s 37AG(1)(a) is “necessary” and because the
Court must take into account that a primary objective of the administration of justice
is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart
at [25]. The paramount consideration is the need to do justice; publication can only be
avoided where necessity compels departure from the open justice principle: Rinehart
v Welker at [30]; Rinehart at [26]: at [186];
(2) in Rinehart v Welker, Bathurst CJ and McColl JA referred with approval to the
statement of Lord Woolf MR in R v Legal Aid Board; Ex parte Kaim Todner (a firm)
[1999] QB 966 at 978 that “[i]n general … parties and witnesses have to accept the
embarrassment and damage to their reputation and the possible consequential loss
which can be inherent in being involved in litigation” and said at [54]:
It is the price of open justice that allegations about individuals are aired in
open court. Such individuals, particularly if they are parties, can make their
response to such allegations public in the same forum. The media, the vehicle
by which such allegations are usually published to the world, would be
obliged to publish any response to ensure any report of the proceedings was
fair: s 29 of the Defamation Act 2005 (NSW).
At [187];
(3) the Court Rules provide that the pleadings filed by a party are ordinarily available for
public inspection. That is an important part of the system of open justice. As Rares J
pointed out in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006)
154 FCR 293 at [29], the reason that the pleadings may be inspected by the public is
so that the public “may see what is the controversy brought to the court for resolution
by it in its ordinary function as a court constituted under Chapter III of the
Constitution”: at [189]; and
(4) the principle of open justice demands and requires that the public be able to follow
and understand all stages of a proceeding, including interlocutory steps such as the
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striking out of part of a defence. It is difficult to see how such a step could be fully
understood, or fairly reported on, if the parts of the defence that are struck out are
suppressed: at [195].
52 The intervening parties referred to Chandrasekaran v Commonwealth of Australia (No 3)

[2020] FCA 1629 in which Wigney J said at [104]:
The mere allegation of a scandalous fact does not necessarily render the pleading
liable to be struck out as scandalous. Material which is degrading, and therefore
scandalous, will not be struck out unless it is also irrelevant: Cavill Business
Solutions Pty Ltd v Jackson [2005] WASC 138 at [25]. Scandal, in the context of r
16.21 of the Rules, means “the allegation of anything which is unbecoming to the
dignity of the Court to hear or is contrary to good manners or which charges some
person with a crime not necessary to be shown in the cause” and “any unnecessary
(not relevant to the subject) allegation bearing purely upon the moral character of an
individual”: Cavill at [25].
53 They referred also to KPTT v Commissioner of Taxation [2021] FCA 464 at [7] in which I
said “parties must accept the damage to their reputation, and the possibility of consequential
loss, which may be inherent in being involved in litigation”, quoting Rinehart at [21]-[31] as
summarised in The Country Care Group Pty Ltd v Commonwealth Director of Public
Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8].
54 The intervening parties referred to Appleroth v Ferrari Australasia Pty Limited [2020] FCA
756 where the applicant discontinued the proceeding and sought (unilaterally and not by
consent) an order that documents he had filed be designated to be “confidential” so that they
would be immune from inspection under r 2.32(3)(a) of the Court Rules (which provides that
a person who is not a party is not entitled to inspect a document that the Court has ordered
“be confidential”). Justice Snaden refused the application saying that:
(1) the Court’s power to grant relief in the nature of the orders that are sought is not in
question. Relief of that nature is discretionary. That discretion must be exercised
judicially. Doing so requires that the court take account of the matters that incline in
favour of the orders that the documents filed to date remain be yond public reach; and
that those matters be weighed against others that incline the other way: at [8];
(2) as stated in R v Davis (1995) 57 FCR 512 at 514 “…exposure to public scrutiny is the
surest safeguard against any risk of the courts abusing their considerable powers”: at
[11];
(3) it is only in exceptional and special cases that courts are entitled to exclude public
access to the processes with which they deal: David Syme & Co v General Motors-
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Holden’s Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA
agreeing). In John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR
131, Kirby P (in dissent but not on this issue) said (at 142-143):
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.
At [12];
(4) “…mere embarrassment, inconvenience or annoyance will not suffice to ground an

application for suppression or non-publication”: Keyzer v La Trobe University [2019]
FCA 646 at [29]: at [13]; and
(5) “…it is an inevitable feature of litigation in open court that persons who are
mentioned in passing may suffer embarrassment and distress. But that is a price the
community has to pay for the undoubted benefit of court proceedings being, except in
very exceptional circumstances, conducted in public”, quoting Williams v Forgie
[2003] FCA 991 at [14]: at [14].
55 Another relevant case, not mentioned by the intervening parties, is McLaughlin v Glenn
[2020] FCA 679. In McLaughlin, the parties settled the proceeding. A suppression order was
sought by consent after settlement. The suppression order related to one document that was
not part of any document which a non-party has a right to inspect under r 2.32(2) (a
complaint to the Australian Human Rights Commission (AHRC)). Another was the statement
of claim. Justice Abraham made the suppression orders and said:
(1) “…I considered that, given there was a current application to inspect the access
documents, and that the fact of the parties consenting to the orders does not relieve the
Court of its obligation to determine if the relevant orders ought to be made, that the
application be listed for hearing”: at [3];
(2) in SM Employment Pty Ltd v Commissioner of Taxation [2019] FCA 464 at [8] Logan
J said:
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…I can see no interest of justice which would be served by unrestricted

access to the details of that condition, or, for that matter, those of his wife or
children, particularly having regard to the disposition of this case. Indeed, it
may very well be that unrestricted disclosure would be subversive of the
consensual position reached by the parties as to the disposition of the case,
and, for that matter, the underpinning of that consensual disposition, which is
the reaching of a repayment agreement satisfactory to the Commissioner. It
seems to me that the furtherance of that agreement would possibly be put in
jeopardy by any unrestricted disclosure.
At [23];
(3) in Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 Rares J ordered that pleadings
be kept confidential after the proceeding settled when a bona fide claim of
confidentiality had been asserted, even though the Court had not and would not now
determine that claim because of the settlement: at [24];
(4) there is an undoubted very significant public interest in the settlement of litigation:
Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489;
(2011) 193 FCR 507 at [30]. These proceedings have been settled by agreeme nt at an
early stage, which as Mortimer J observed in Valentine v Freemantlemedia Australia
Pty Ltd [2013] FCA 1293 at [13] is an outcome the Court strives to achieve. Here the
parties have achieved finality through agreement which may be undermined if a t hird
party has access to and could report on matters which the parties seek to keep
confidential: at [27]; and
(5) in Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 Mortimer J also
observed at [30]:
Second, the settlement of the proceeding strengthens the case to refuse
access. In my opinion, and even in the absence of evidence about the precise
terms of settlement of this proceeding, it would be inimical to the negotiation
process which leads to the settlement of a proceeding in this Court, its
discontinuance without judicial pronouncement of any kind, and the
accompanying closing of the Court’s file with no further proceedings in open
court, for a sensitive document such as the AHRC Complaint to be released
over an applicant’s opposition. It would not be unusual for parties (not just
applicants) in proceedings such as this to have as one of the motivations for
settlement a desire to keep from the public gaze detailed factual allegations
of the kind which are frequently set out in complaints made to the
Commission. The Court should be mindful not to frustrate these
consequences of settlement which may be in the contemplation of parties
when they agree to resolve a proceeding by agreement.
56 The intervening parties also provided a helpful summary of cases in which an order had been
made for the removal of a document from a Court file as relied upon in the written
submissions for Mr Porter. The summary follows:
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(a) Rio Tinto Ltd v Federal Commissioner of Taxation [2004] FCA 335 pre-
dated the present rule. There, the respondent Commsissioner of Taxation was
ordered to file a statement outlining the Commissioner’s contentions and the
facts and issues in the appeal as the Commissioner perceived them. The
document was hopelessly deficient and an order was made for it to be
replaced with a compliant statement.
(b) In Nyoni v Shire of Kellerberrin [2011] FCA 1299, the second, third and
fourth respondents sought the removal of certain paragraphs of the statement
of claim from the Court file on the basis that they contained scandalous
material which was extraneous to the causes of action relied upon. Siopis J
declined to remove the material from the Court file but struck out the relevant
paragraphs from documents on the Court file.
(c) In Warner v Wong, in the matter of Bellpac Pty Limited (Receivers and
Managers Appointed) (In Liq) (No 4) [2015] FCA 369, Griffiths J ordered the
removal from the Court file of a defence filed two days prior to the
commencement of the trial, in circumstances where the respondent – a
litigant in person - had been ordered to file any defence two years earlier.
(d) Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 was a breach of
confidence claim, where orders were made to protect the confidentiality of
the information the subject of the claim. The parties sought to have the
pleadings replaced with redacted pleadings to preserve the subject matter of
the proceedings.
(e) In Sims v Suda Ltd (No 2) [2015] FCA 281, a litigant in person made
allegations of the commission by the respondent of a criminal offence, which
allegations were found by the Court to be “unsupported and unsupportable”.
After striking out the statement of claim and dismissing the proceedings,
orders were made for removal of the pleading.
(f) In Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd
(No 2) [2020] FCA 1361, a Statement of Agreed Facts and Joint Submissions
(ie not a pleading) was superseded by an amended document and the original
documents were removed for apparent convenience.
(g) Rotel Co Ltd v Panasales Clearance Centre (Australasia) Pty Ltd (No 2)
[2008] FCA 629 was an application for costs following a number of
applications, some of which were abandoned. Relevantly, the cross-claimants
had sought leave to file and serve an amended cross-claim, which application
was not ultimately pressed. The removal of the draft cross-claim from the
Court file was ordered without consideration of the propriety of acceding to
the parties’ consent position.
(h) Gill v Ethicon Sàrl (No 2) [2019] FCA 177 concerned the “hard” closure of a
class in a class action. Lee J ordered the removal of privileged material from
the Court file.
57 According to the intervening parties, there was no proper justification for the making of
consent order 3 as the parties proposed in the present case as: (a) Sch 1, 2 and 3 of the
defence had not been filed for any illegitimate or collateral purpose, (b) the material in Sch 1,
2 and 3 of the defence were relevant to the defence of justification, (c) the defence was settled
by senior counsel, (d) the Court had not found the material in Sch 1, 2 or 3 of the defence to
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contain scandalous, frivolous or vexatious material or to be evasive or ambiguous or

otherwise to be an abuse of process of the Court as provided for in r 16.21(1)(a), (b), (c)
and/or (f) of the Court Rules, (e) material had been released in proceeding NSD426/2021,
Dyer v Chrysanthou, consequential upon Dyer v Chrysanthou (No 2) (Injunction) [2021]
FCA 641, (f) had Mr Porter pressed his application for a suppression and non-publication
order it would have failed for lack of utility given the material already released, (g) refusal to
make consent order 3 as proposed would not compromise the settlement as the deed into
which the parties entered does not require order 3 to be made as a condition precedent to the
settlement, and (h) it is not for parties to pre-determine or regulate orders that are made by the
Court. Whilst settlement of disputes is to be promoted, the Court should not sanction
agreements that abrogate the Court’s exercise of its powers, including under r 2.28, in a
principled manner consistent with the overarching principle of open justice.
58 The intervening parties said that, in the ordinary course, when a proceeding settled the
documents remained on the Court file available for inspection under and in accordance with
r 2.32(2) and Mr Porter should not obtain “special treatment” merely because the parties had
agreed to removal of Sch 1, 2 and 3 of the defence and the unredacted reply from the Court
file.
59 Mr Dowling contended that: (a) the proceeding is a political and governmental matter as it
involves a Minister of the Crown suing a publicly funded broadcaster in a federal court in a
matter raising issues about the fitness of the Minister to continue as such or hold the positon
of Attorney-General of the Commonwealth, (b) Mr Porter named Mr Dowling’s website in
his filed documents and cannot now argue that Mr Dowling cannot be part of the political
debate, (c) no order can be made which would infringe on the principle of open justice or the
implied freedom of political communication recognised in Lange v Australian Broadcasting
Corporation [1997] HCA 25; (1997) 189 CLR 520 and Coleman v Power [2004] HCA 39;
(2004) 220 CLR 1, (d) no party had responded to his notice of a constitutional matter under
s 78B of the Judiciary Act 1903 (Cth) (the Judiciary Act) to the effect that ss 37AF and
37AH(2) of the Court Act and rr 2.28 and 2.29 of the Court Rules are invalid as they infringe
on the implied freedom of political communication recognised in Lange, and that any order
for the suppression or non-publication of documents or their removal from the Court file
would also be invalid for the same reason, and (d) the political and governmental nature of
the matter is disclosed by the media release issued for Mr Porter on 15 March 2021 referring
to Mr Porter as the Attorney-General.
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60 Mr Dowling also referred to the observations in D’Orta-Ekenaike v Victoria Legal Aid

[2005] HCA 12; (2005) 223 CLR 1 at [32] that:
To adopt the language found in the cases considering Ch III of the Constitution, the
central concern of the exercise of judicial power is the quelling of controversies.
Judicial power is exercised as an element of the government of society and its aims
are wider than, and more important than, the concerns of the particular parties to the
controversy in question, be they private persons, corporations, polities, or the
community as personified in the Crown or represented by a Director of Public
Prosecutions. No doubt the immediate parties to a controversy are very interested in
the way in which it is resolved. But the community at large has a vital interest in the
final quelling of that controversy. And that is why reference to the “judicial branch of
government” is more than a mere collocation of words designed to instil respect for
the judiciary. It reflects a fundamental observation about the way in which this
society is governed.
61 Mr Dowling submitted further that: (a) he is a journalist and news publisher, as demonstrated
by his website, books and various proceedings in which he had been sued as a publisher,
(b) he had paid the filing fee for his interlocutory application and thus had a sufficient interest
in the proceeding on that basis, as well as his status as a journalist and news publisher and the
fact Mr Porter had relied on Mr Dowling’s website in his own filed documents, (c) as a news
publisher, he regularly deals with the media divisions of the Federal and State police,
amongst others, and (d) he should have been provided with the unredacted defence and
unredacted reply for the purpose of making his submissions. Mr Dowling also complained
that the parties had changed their position. There was to be a hearing about the making of
suppression and non-publication orders, but now the proceeding had settled the parties sought
to remove the unredacted defence and the unredacted reply from the Court’s file which would
have the effect of suppressing that material. As a journalist and news publisher he had a right
to be heard about that proposal.
4. Discussion
4.1 Mr Dowling
62 It is convenient to deal with the position of Mr Dowling first.
63 Mr Dowling has not had access to Sch 1, 2 and 3 of the defence or the unredacted reply. This
is because he was not granted leave to be heard in respect of Mr Porter’s application for
suppression and non-publication orders. There is no longer an application for suppression and
non-publication orders. Accordingly, s 37AH(2) of the Court Act is not engaged. Mr Dowling
is also not a person who should be granted leave to intervene in accordance with r 9.12 of the
Court Rules. Rule 9.12 provides that:
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(1) A person may apply to the Court for leave to intervene in a proceeding with
such rights, privileges and liabilities (including liabilities for costs) as may be
determined by the Court.
(2) The Court may have regard to:
(a) whether the intervener’s contribution will be useful and different
from the contribution of the parties to the proceeding; and
(b) whether the intervention might unreasonably interfere with the
ability of the parties to conduct the proceeding as the parties wish;
and
(c) any other matter that the Court considers relevant.
[…]
64 Mr Dowling’s contribution has not been useful (see below). On the evidence it could not be
concluded that Mr Dowling is a “news publisher” either as defined in 37AA of the Court Act
or otherwise. Section 37AA of the Court Act defines a “news publisher” as “a person
engaged in the business of publishing news or a public or community broadcasting service
engaged in the publishing of news through a public news medium”. The Macquarie
Dictionary online defines “news” as “1. a report of any recent event, situation, etc. 2.
information, events, etc., considered as suitable for reporting: it’s very interesting, but it’s not
news...” Mr Dowling is undoubtedly a publisher but, on the evidence, what he publishes is
not “news”. He does not, it seems, report on events. From his affidavit it appears that he
publishes opinions and comments purporting to focus on “anti-corruption” in the government
and the judiciary, much of which appears to consist of unfounded scandalous and scurrilous
allegations.
65 The fact that Mr Porter, in documents filed in the Court, referred to the allegedly defamatory
matter about which he sued having been re-published on Mr Dowling’s website does not give
Mr Dowling any interest in the proceeding greater than or different from any other member
of the public. Mr Dowling, in fact, has no greater or different interest in this matter from any
other member of the public. That he publishes material may be accepted. That he publishes
“news” may not.
66 Mr Dowling’s contentions, as noted, have not been of any assistance. The issue with which I
must deal, whether or not to make proposed consent order 3, has nothing to do with the
implied right of freedom of political communication. This may explain why no Attorney-
General has sought to be heard in respect of Mr Dowling’s interlocutory application which I
required to be the subject of notice under s 78B of the Judiciary Act.
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67 Mr Dowling attempted to run the same Constitutional argument in Prothonotary of the

Supreme Court of New South Wales v Shane Dowling [2017] NSWSC 664. The Prothonotary
had charged Mr Dowling with contempt of court. Amongst other things, he had made
scandalous allegations about a Judge and a Registrar in open court and had published material
subject to a suppression order. Mr Dowling contended that his communications were
protected by the implied right of freedom of political communication as identified in Lange
and the suppression orders were invalid as the infringed this right.
68 Justice Wilson rejected Mr Dowling’s arguments, saying:
51 As the lack of interest in the argument by the Attorneys-General may

suggest, the defendant’s confidence in the availability of a constitutional
defence is misplaced. The implied constitutional right of freedom of political
speech to which he refers does not provide a defence to a charge of contempt
of court relevant to conduct in the face of the court, and nor does it provide a
defence to contempt based upon deliberate and intentional breaches of court
orders. A defence of freedom of political speech has no application in the
present context.
52 There is no doubt that the Constitution protects the freedom of “the people of
the Commonwealth” to communicate with each other concerning those
political and government matters that are relevant to the system of
representative and responsible government provided for by the Constitution.
53 This implied freedom of political communication upon which the defendant
relies operates as a constraint on legislative power and is required by ss 7, 24,
and 128 of the Constitution: Lange at 557 and 560; Hogan v Hinch (2011)
243 CLR 506 at [92]; Unions NSW v New South Wales (2013) 252 CLR 530
at [36], [103] and [112]; McCloy v New South Wales (2015) 257 CLR 178 at
[2] and [30].
54 The implied freedom is not, however, one which is at large and akin to a
broad freedom of the nature of that guaranteed in the United States of
America by the Fifth Amendment to the Constitution of that country. It is
limited to what is necessary for the effective operation of the system of
representative and responsible government provided for by the Constitution:
Lange at 561.
55 As McHugh J observed in Levy v Victoria (1997) 189 CLR 579 at 622:
The freedom protected by the Constitution is not, however, a
freedom to communicate. It is a freedom from laws that effectively
prevent the members of the Australian community from
communicating with each other about political and government
matters relevant to the system of representative and responsible
government provided for by the Constitution. Unlike the Constitution
of the United States, our Constitution does not create rights of
communication. It gives immunity from the operation of laws that
inhibit a right or privilege to communicate political and government
matters” (italicisation in original).
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69 Mr Dowling’s arguments in the present case are equally misconceived. In Lange at 561-562
the High Court explained that the freedom of communication which the Constitution protects
(relating to communications concerning political or government matters between the electors
and the elected representatives, between the electors and the candidates for election and
between the electors themselves which are central to the system of representative
government, as discussed at 560) is not absolute. Rather:
It is limited to what is necessary for the effective operation of that system of

representative and responsible government provided for by the Constitution. The
freedom of communication required by ss 7 and 24 and reinforced by the sections
concerning responsible government and the amendment of the Constitution operates
as a restriction on legislative power. However, the freedom will not invalidate a law
enacted to satisfy some other legitimate end if the law satisfies two conditions. The
first condition is that the object of the law is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible government or
the procedure for submitting a proposed amendment to the Constitution to the
informed decision of the people which the Constitution prescribes. The second is that
the law is reasonably appropriate and adapted to achieving that legitimate object or
end.
70 Sections 37AF and 37AH(2) of the Court Act and rr 2.28 and 2.29 of the Court Rules concern
another legitimate end, being the administration of justice in which the principle of open
justice is fundamental but not absolute. That object is compatible with the maintenance of the
constitutionally prescribed system of representative and responsible government and those
laws are reasonably appropriate and adapted to achieving that legitimate object. As such,
those laws do not impermissibly burden the implied right of political communication. That
implied right, moreover, is not a personal right of Mr Dowling to communicate whatever he
sees fit. As McHugh J explained in Levy (above) the freedom which is protected is not the
freedom to communicate, but a freedom from laws which impermissibly inhibit a right to
communicate political and government matters. None of this means Mr Dowling has a right
to be heard about the making of proposed consent order 3.
71 Nor do the observations in D’Orta-Ekenaike at [32] speak to the current circumstances. The
“interest” of the public to which the High Court was referring is not a personal interest of an
individual wishing to see documents filed in a proceeding. It is the interest of the public at
large in ensuring that justice has been done and has been seen to be done. In the present case,
that interest is not secured by Mr Dowling being permitted to intervene in the proceeding.
The public interest is secured by the fact that, because proposed consent order 3, on its face,
raises an issue of the public interest in the proper administration of justice, I required the
parties to justify their position in open court, giving persons who do have an interest in that
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issue over and above that of any other member of the public, the inter vening parties, an
opportunity to be heard. This raises a separate issue about the form of the proposed consent
orders to which I will return below. The public interest is also secured by the fact that Mr
Dowling has been heard, in open court, as to whether or not he has a right to be heard about
proposed consent order 3 and these reasons have been given and will be published explaining
why he has no such right.
72 The only other observation I will make relating to Mr Dowling is this. Because of the public
interest in this matter and the rights of inspection given by r 2.32(2) of the Court Rules, the
Court established an online file on its website so members of the public could access
documents they would be entitled to inspect under r 2.32(2) free of charge. Mr Dowling’s
affidavit and submissions will not be placed on the online file given they contain apparently
scandalous and scurrilous material about third parties.
73 Further, the unsuitability of Mr Dowling to assist the Court as a contradictor to the parties
seeking the making of proposed consent order 3 is confirmed by the fact that his affidavit and
submissions filed in support of his position contain extraneous and apparently scandalous
material.
74 For these reasons, I will dismiss Mr Dowling’s interlocutory application filed 11 May 2021.
While Mr Dowling submitted that his costs should be paid by the parties because they
changed their position (from seeking a suppression and non-publication order to seeking
removal of the unredacted defence and the unredacted reply from the Court’s file), I disagree.
Mr Dowling filed his interlocutory application and has been unsuccessful in obtaining a ny
capacity to intervene. His proposed intervention, at all times, constituted the activity of an
intermeddler. The parties should have an order for costs against Mr Dowling in respect of Mr
Dowling’s interlocutory application.
75 I turn now to the relevant issues.
4.2 Consent orders and orders in chambers

76 It is convenient here to say something about the form of the proposed consent orders. It is
conventional for parties submitting proposed consent orders to frame the orders as the Court
would ultimately make them. This convention tends to mask the fact that the submission to a
court of any consent order, in substance, is a request to the court to exercise judicial power. In
so doing a court is bound to consider whether the orders are lawful, accord with any statutory
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or legal requirements, and should be made having regard to all relevant considerations (which
may include the rights and interests of third parties). Orders, including orders by consent, are
frequently made “in chambers”. It will be recalled that s 17(2) of the Court Act permits
orders to be made in chambers where, relevantly, such an order is authorised by the Court
Rules. Rule 1.36 authorises any order to be made other than in open court. It is thus a matter
for the judge to decide if any order is appropriate to be made in chambers or not.
77 Proposed consent order 3, in the circumstances of this case, is not appropriate to be made in
chambers. This is because: (a) the order relates to a filed pleading which was subject to
dispute between the parties, (b) the intervening parties had already been granted leave to be
heard in respect of the making of any suppression or non-publication order consequential on
the outcome of a hearing about that dispute, (c) Mr Dowling had filed an application for leave
to be heard in respect of the making of any suppression or non-publication order
consequential on the outcome of a hearing about that dispute, (d) that dispute had been fixed
for hearing on 9 July 2021, (e) there was legitimate and not merely prurient public interest in
the resolution of that dispute because it involved an issue whether the respondents, as alleged
by Mr Porter, had filed material constituting a form of abuse of process of the Court, and
(f) the order was not sought in circumstances where, for example, Sch 1, 2 and 3 of the
defence had been filed in error and were to be replaced by amended documents. Rather, the
order sought is for permanent removal of Sch 1, 2 and 3 of the defence and the unredacted
reply from the Court’s file, and thus permanent exclusion of the public right to inspect a
pleading under r 2.32(2)(c), subject only to a contrary grant of leave to inspect under
r 2.32(4). As to the capacity to grant leave to inspect under r 2.32(4) it is difficult to imagine
such leave being granted if the order for removal is made unless and until there is some
material change of circumstance.
78 For these reasons, I consider that the request the parties made on 31 May 2021 that I make
proposed consent order 3 in chambers, in the circumstances of this case, was misconceived.
Proposed consent orders 1 and 2 are different from proposed consent order 3. The
discontinuance of proceedings on the basis there be no order as to costs does not involve the
potential rights of third parties. They involve truly inter partes arrangements only. Had the
proposed consent orders been confined to orders 1 and 2 then, subject to the necessary
amendment to the terms of order 1, I would have made the orders in chambers. Proposed
consent order 3, however, affects the rights of third parties and, as these reasons for judgment
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disclose, engages considerations about the proper administration of justice beyond the mere
interests of the parties.
79 Because of the conventional form of proposed consent orders and the request that the
proposed consent orders be made in chambers, the communication from the parties arguably
conveyed the inaccurate and unfortunate impression that the parties expected that the Court
would act as a “rubber stamp” approving whatever form of the order they agreed. In oral
submissions in support of the making of proposed consent order 3, Mr Walker SC expressly
and properly disavowed any such suggestion. He accepted that, in substance, the agreement
of the parties was not that the Court make proposed consent order 3, but that they had agreed
to seek that the Court make proposed consent order 3. This distinction is important,
particularly in respect of an order such as proposed consent order 3 which, if made, would
impact on the rights of third parties (the public at large) granted by r 2.32(2) of the Court
Rules.
80 For this reason also Mr Walker SC expressly and properly observed that when requested to
make an order such as order 3, by consent of the parties, the Court may consider it
appropriate to appoint an amicus curiae (a friend of the court) to act as a contradictor (that is,
a person putting such opposing arguments as may be appropriate given the agreed position of
the parties). In the present case, the appointment of an amicus curiae to act as a contradictor
has not been necessary. I have received assistance from the intervening parties. The
intervening parties have properly acted as the “eyes and ears of the general public” (Attorney-
General v Observer Ltd [1990] 1 AC 109 at 183) in this matter.
81 These considerations would also apply to a party or parties seeking the making of a
suppression or non-publication order. The fact of an agreement to the making of an order
between the parties is a relevant but not a sufficient condition for the making of a suppression
or non-publication order. In both cases, the making of an order for re moval of a document
from a Court file and the making of a suppression or non-publication order (other than an
interim order under s 37AI of the Court Act), it will be necessary for the Court to consider
whether the order can and should be made. Mere agreement between the parties will not be
sufficient, of itself, to justify the making of an order. Other considerations will have to be
taken into account and weighed by a judge contemplating making such an order (including,
for a suppression and non-publication order, whether the judge is satisfied that the order is
necessary as specified in s 37AG(1) of the Court Act).
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82 Accordingly, when they submit proposed consent orders for removal of a document from a
Court file or the making of a suppression or non-publication order (other than an interim
order under s 37AI of the Court Act), parties should not expect that a judge will necessarily
make the orders on the basis of nothing more than the consent of the parties. Nor should they
expect that a judge will necessarily make the orders in chambers. They should expect that a
judge may need to be provided with evidence and submissions as to why such an order can
and should be made, that the application for the making of such orders may be required to be
heard in open court, and that a “news publisher” within the meaning of s 37AA of the Court
Act may apply to be heard in respect of the application either as of right under s 37AH(2) (for
the making of a suppression or non-publication order) or by a grant of leave under r 9.12 of
the Court Rules (for the making of an order for removal of a document from a Court file).
4.3 Some issues about the Court Rules

83 It is also appropriate to say something about the interactions of the various Court Rules and
the Court Act. The Court Act is clear – a primary objective of the administration of justice is
to safeguard the public interest in open justice: s 37AE. The fact that this is “a” not “the”
primary objective of the administration of justice reflects the fact that there are other primary
objectives, including those in s 37M of the Court Act to facilitate the just resolution of
disputes according to law and as quickly, inexpensively and efficiently as possible.
84 Sections 37AE-37AL of the Court Act recognise that in order to do justice it is sometimes
necessary that information filed or given in a proceeding not be disclosed or published. This
is because justice will be undermined if people are not free to seek the exercise of judicial
power confident that, amongst other things, their safety and the safety of others will not be
compromised, that national or international security will not be prejudiced, and that the
administration of justice will not itself be prejudiced: s 37AG(1). The administration of
justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court
confident that some kinds of information can be protected from disclosure if necessary (such
as commercially confidential information valuable to a person or a third party, or sensitive
information about a person’s health, or personal information about parties or third parties of
no more than prurient interest to others) then public confidence in and access to justice may
itself be undermined.
85 The purpose of the principle of open justice has been said to be at least two-fold, to “enable
public scrutiny of the way in which courts decide cases” and “to enable the public to
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understand how the justice system works and why decisions are taken”: Dring v Cape
Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 at [42]-[43]. That said, there are
well-recognised cases in which the overall administration of justice requires the suppression
of some information from the public, reflected in s 37AG(1) of the Court Act. In Dring at
[46] these well-recognised categories were said to include “national security, the protection
of the interests of children or mentally disabled adults, the protection of privacy interests
more generally, and the protection of trade secrets and commercial confidentiality”.
86 While “mere embarrassment, inconvenience or annoyance will not suffice to ground an

application for suppression or non-publication” (Keyzer at [29]) and the principle of open
justice, that justice must not only be done but be seen to be done, is fundamental (Scott v
Scott [1913] UKHL 2; [1913] AC 417), the principle has never been absolute. The principle
has always yielded to contrary necessity (an appropriately high bar specified in s 37AG(1), in
contrast to the mere convenience or preference of parties). The requirement of “necessity”
was explained in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR
651 at [31] by contrast to the notion that such an order would be “convenient, reasonable or
sensible, or [would] serve some notion of the public interest, still less that, as the result of
some ‘balancing exercise’, the order appears to have one or more of those characteristics”.
This approach may be contrasted with that in the United Kingdom where the person seeking
access to documents must “show a good reason why [access] will advance the open justice
principle”: Dring at [47]. Rule 2.32(2) of the Court Rules, in contrast, assumes that the
principle of open justice is advanced by public access to the nominated document, subject to
contrary order as identified in r 2.32(3).
87 It appears to me that, recognising these matters, there are certain aspects of the Court Rules
which may justify consideration of amendment.
88 First, unless a document has been filed by mistake and is intended to be replaced by a
substitute document, I can see little difference between the effect of making a suppression or
non-publication order under s 37AF of the Court Act and making an order for removal of a
document from a Court file under rr 2.28 and 2.29 of the Court Rules which would otherwise
be available for inspection by the public under r 2.32(2). Both orders have the effect of
placing the document beyond the reach of the public. Yet a suppression or non-publication
order may only be made on the grounds specified in s 37AG(1), must specify the grounds on
which it is made under s 37AG(2), can only operate for as long as reasonably necessary under
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s 37AJ (and the period must be specified in the order), and the persons specified in s 37AH(2)
are entitled to appear and be heard by the Court on an application for such an order.
89 By contrast, the Court Rules providing for removal of a document from a Court file do not
expressly confine the grounds on which such an order may be made, do not require the order
to specify the ground on which it was made, and do not specify persons entitled to appear and
be heard by the Court on an application for such an order.
90 This appears to be anomalous. The anomaly may explain why the interlocutory application
filed for Mr Porter on 5 May 2021 focused on removal of Sch 1, 2 and 3 of the defence from
the Court file rather than the making of suppression and non-publication orders and, in the
interim, marking Sch 1, 2 and 3 as “confidential” and thus prohibiting their inspection under
r 2.32(2). Whatever the reason for the terms of the interlocutory application, the position I
consider sound in principle in the circumstances of this case is this: (a) the application to
remove part of the defence from the Court file raises the same considerations as an
application for a suppression or non-publication order in respect of that part of the document,
(b) the intervening parties should be heard in respect of any such application, and (c) the only
reason for making any such order is the conclusion that it is necessary to do so to prevent
prejudice to the proper administration of justice. If a different approach is taken or a lower
standard than this is applied, there will be inconsistency between two methods of achieving
the same objective – preventing persons generally from seeing that part of the defence.
91 Second, r 2.32(3) prevents a person who is not a party from inspecting a document under
r 2.32(2) if the Court has ordered that the document be “confidential” or “is forbidden from,
or restricted from publication to, the person or a class of persons of which the person is a
member” (that is, is subject to a suppression or non-publication order). While maintaining
confidentiality of certain valuable or personal sensitive information may be a reason it is
necessary to make a suppression and/or non-publication order under s 37AF, the Court Act
does not contemplate two classes of suppressed information – confidential information (on
the one hand) and information that is forbidden from publication to a person (on the other
hand). There is only one relevant class of suppressed information, being information that is
subject to a suppression and/or non-publication order. The option for the Court to order
information to be “confidential” and thereby protect it from inspection under r 2.32(2),
without being subject to the regime for the making of suppression and non-publication orders,
also appears anomalous. This may explain the view Rares J reached in Llewellyn at [11] that
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for a document to be ordered to be “confidential” under the previous version of r 2.32(3)(a),

the required confidentiality was of the same kind which would enable a suppression or non-
publication order to be made. For the reasons already given, I agree with this view.
92 The potential anomalies could be removed by deleting r 2.32(3)(a) and the reference to an
order that the document “be confidential” and including provisions in respect of rr 2.28 and
2.29 qualifying the power to make an order for removal in terms similar to ss 37AG-37AH of
the Court Act.
93 In Valentine Mortimer J explained why, in certain cases (and in that case), it was appropriate
to make such an order, but the same considerations would have applied in the context of the
making of a suppression and non-publication order. Justice Mortimer identified that:
(1) the proceeding had been resolved at an early stage (before the filing of pleadings)
which is what the Court strives to achieve through the Court Act, the Court Rules and
its case management procedures: at [13];
(2) “[c]onsistently with the purposes of the settlement privilege, the mainte nance of
confidentiality around not only the terms of any settlement but the negotiations
leading to it, is an important and often critical aspect of a successful resolution.
Within a confidential setting, parties with opposing and frequently conflicting
interests feel able to exchange views, put propositions, and make and respond to
allegations in ways they feel unable to do in an open and public setting. On all sides,
concessions, apologies and admissions against interest may be made which would not
be made in public. The freedom parties and their representatives feel to conduct
negotiations in this way can be inhibited if the allegations which are the subject matter
of the proceeding are fully in the public domain”: at [14]. While the context of these
observation was an anti-discrimination claim, they apply equally to many classes of
litigation, including defamation proceedings; and
(3) while there will come a point in proceedings where the opportunity for a wholly
confidential resolution may be lost (where, for example, pleadings have been filed
which are ordinarily available for inspection), “[u]nless and until the point is reached
where other case management objectives should prevail, it will often be appropriate
for the Court to make orders in relation to inspection of documents which enhance the
likelihood of early and successful resolution by preserving as much as possible some
confidentiality about the subject matter of the proceeding. Once a proceeding is
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resolved, however, these considerations need to be addressed afresh if an application

such as this is made”: at [15]-[16].
94 Justice Mortimer in Valentine rightly rejected the proposition that the principle of open
justice had not yet been engaged because the parties had not attended a case management
hearing, saying at [22] that:
The fact that the Court was prepared, on occasion, to adjourn directions hearings at
the parties’ request, and that one consequence may have been there was less media
reporting than the parties might otherwise have had to face, should not be seen as an
acceptance by the Court that this proceeding should be conducted otherwise than in
accordance with the principles of open justice. One of the reasons for a full hearing
on the parties’ interlocutory application was to ensure the principles of open justice
were observed.
95 In other words, consistently with the views I have expressed, Mortimer J considered it
necessary that the application for the order that the documents be identified as “confidential”
should be heard in open court and not merely acceded to because the parties agreed the order
should be made.
96 The third potential anomaly in the Court Rules is r 2.32 itself. Rule 2.32(2)(a) and (c) permits
inspection of an originating application and a pleading. Proceedings are started by the filing
of an originating application: r 8.01(1). Frequently, an originating application must be
accompanied by a statement of claim: r 8.05. When an originating application is filed it has
endorsed on it a “return date”. This is the date the matter will come before the Court for the
first time. Under r 8.06 an applicant must as soon as practicable and at least five days before
the return date fixed in an originating application, serve the originating application and
accompanying documents on the other parties.
97 It can be expected that an applicant will take care to protect their own confidential and
personally sensitive information in an originating app lication and statement of claim.
However, an applicant will not necessarily have the same incentive (or knowledge) to protect
confidential and personally sensitive information about the other parties or third parties in
their originating application or statement of claim. While inclusion of such information in a
document filed in a court for some collateral purpose would involve an abuse of process, the
more likely prospect is that the information is relevant but the applicant has not known or
appreciated (or, perhaps, cared sufficiently) that the other parties or third parties might have a
legitimate basis to apply for suppression and non-publication orders over that information.
The anomaly is one of timing. If a member of the public becomes aware that an originating
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application and statement of claim has been filed they may be able to exercise their right of
inspection under r 2.32(2) before the other parties to the proceeding and the third parties who
may be mentioned in the filed documents are aware of the existence of the proceeding. As a
result, the right of those parties to seek suppression and non-publication orders would be
undermined. This potential for injustice could be ameliorated by amending r 2.32(2) to permit
inspection as of right only after the first return date of the proceeding; applications to inspect
before the first return date in the proceeding would require leave.
4.4 Removal from the Court file?

98 Against this background the question whether it is necessary to prevent prejudice to the
proper administration of justice for the unredacted defence and the unredacted reply to be
removed from the Court’s file can be answered.
99 As noted, under s 37M of the Court Act the function of the Court is to “facilitate the just
resolution of disputes”. A court can perform that facilitation function in multiple ways, not
confined to a judicial decision quelling the dispute. An important function of a court is also to
facilitate the settlement of disputes by parties on terms agreed between the parties. Provided
the terms are lawful and the agreement does not affect the rights or interests of third parties, it
would be rare for a court to refuse to give effect to a settlement agreed between the parties.
As explained in Reynolds at [30]:
There is a very significant public interest in the settlement of litigation. This is

reflected in the existence at common law of the privilege that attaches to without
prejudice communications for the purpose of negotiating for a settlement of a
dispute. In addition, that privilege is also reflected in s 131 of the Evidence Act 1995
(Cth) which excludes such communications from being admissible except in certain
limited circumstances.
100 In the present case the parties settled all aspects of the proceeding. Their compromise related
not only to Mr Porter’s substantive allegations that he had been defamed, but also his
allegations that Sch 1, 2 and 3 of the respondents’ defence were liable to be struck out under
r 16.21(1)(a), (b), (c) and (f) of the Court Rules and should be removed from the Court’s file
under r 16.21(2) of the Court Rules. The compromise the parties reached was that there
should be no judicial determination of any of those allegations. Rather, they agreed to file
consent orders by which, on the basis that there be no order as to costs, Mr Porter would
discontinue his proceeding, the unredacted defence and unredacted reply would be removed
from the Court’s file, and the ABC would publish a statement and attach an editorial note to
the allegedly defamatory article. As discussed, while the consent orders reflected the Court in
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fact making the orders sought, the effect of this agreement was to require only the filing (not
the making) of the consent orders. In other words, in substance, the parties could not agree
that the Court make orders; they could only agree to apply to the Court, by consent, for the
Court to make orders. This is the true effect of cl 3.1 of the deed. Understanding this
reinforces the points made above: (a) the parties are applying to the Court for the making of
orders, and (b) in the circumstances of this case proposed consent order 3 should not be made
in chambers merely because the parties consented to it – the parties have to persuade the
Court the order should be made.
101 It is true that, as the intervening parties submitted, the releases in the deed are not conditional
on the making of the consent orders. The releases operated on execution of the deed as
specified in cl 4.1. As such, the settlement will not fail if proposed consent order 3 is not
made. But this does not mean that the public interest in facilitating the settlement of
proceedings by parties is any less acute in this case than any other. Mr Porter compromised
the whole of his case and gave releases to the respondents, agreeing the releases acted as a
bar to any future claim, on the basis of all of the provisions of the deed including, but not
limited to, the ABC and Ms Milligan agreeing to proposed consent order 3. Consistent with
their contractual obligations, the ABC and Ms Milligan consented to the making of all of the
proposed consent orders including order 3. They did so in circumstances where Mr Porter had
applied in good faith for Sch 1, 2 and 3 to the defence to be struck out as a form of abuse of
process and removed from the file. The compromise the parties reached was a lawful
compromise of the whole of the proceeding, including Mr Porter’s undetermined application
to strike out and remove from the file Sch 1, 2 and 3 of the defence.
102 The intervening parties are right that parties cannot dictate to a court the orders it should
make. They are also right that, in the ordinary course, filed documents remain on the Court
file after settlement. But this does not mean that a party applying for removal of a document
from a Court file is seeking (or obtaining) “special treatment”. The Court Rules permit such
an application to be made and to be granted. As submitted by Mr Walker SC, just as parties
may compromise a substantive claim or the entirety of a proceeding, so too parties may
compromise an interlocutory application, in this case Mr Porter’s application for Sch 1, 2 and
3 of the defence to be struck out and removed from the Court’s file (and the respondents’
response that if Sch 1, 2 and 3 of the defence are struck out and removed from the Court’s
file, para’s 2(ll) to (pp) and 8 of the reply to the defence should also be struck out and
removed from the Court’s file). For the Court to refuse to make proposed consent order 3, in
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these circumstances, would be to undermine the lawful contractual bargain which the parties
struck to compromise all of their claims.
103 The undermining of that lawful contractual bargain would operate at two levels.
104 First, as between the parties, the Court would be re-writing the contract of the parties. The
Court would be doing so in circumstances where it does not know, one way or another,
whether the bargain would have been reached without proposed consent order 3. It is true that
the parties could have drafted the deed so that the release would be conditional on the making
of the consent orders and did not do so. However, this reinforces the fact that if proposed
consent order 3 is not made the Court would be re-writing the contract of the parties by which
they would still be bound. Provided a contract is lawful and the parties are competent,
freedom to contract is one of the foundational pillars of the common law. Further, it is the
duty of the Court under s 37M(3) of the Court Act, in exercising its powers in civil
proceedings under the Court Rules, to do so in the way that best promotes the overarching
purpose of facilitating the just resolution of disputes according to law and as quickly,
inexpensively and efficiently as possible. Between themselves the parties have determined a
lawful way in which to resolve all disputes between them and that resolution, accordingly,
reflects the just resolution of the disputes between them as quickly, inexpensively and
efficiently as possible. These considerations indicate that it may be necessary in the proper
administration of justice to give effect to the contractual bargain of the parties.
105 Second, in terms of the interests of justice overall, these considerations as between the parties
remain in play. In addition, refusing to make proposed consent order 3 may involve prejudice
to the proper administration of justice by potentially discouraging parties from settling all
elements of their dispute. For example, in the present case, if the parties assumed that the
Court would not make proposed consent order 3 they would have had three choices: (a) to not
settle the proceeding at all, (b) to settle the proceeding regardless, or (c) to settle the
substantive proceeding but conditional on Mr Porter succeeding in respect of his interlocutory
application to strike out Sch 1, 2 and 3 of the defence and remove those parts of the document
from the Court’s file. Options (a) and (c) are contrary to the duty imposed on the parties and
their representatives to comply with the overarching principle in s 37M of the Court Act. Yet
option (b) may be contrary to the true objectives of one or both of the parties, driving them to
adopt options (a) or (c). Options (a) and (c), however, conflict with the overarching purpose
in s 37M and thus undermine the proper administration of justice.
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106 This does not mean that the Court is bound to accede to any proposed consent order
providing for the removal of a document from a Court file (nor an order to that effect sought
unilaterally). To the contrary, the principle of open justice, although not absolute, is also a
foundational principle of the common law. There may be no circumstances other than the
agreement of the parties which justify the removal of the document; in that event, it may be
impossible for the Court to conclude that removal is necessary to prevent prejudice to the
proper administration of justice. In the present case, however, there are other circumstances
which lead me to conclude that it necessary to make proposed conse nt order 3 to prevent
prejudice to the proper administration of justice. Those circumstances are: (a) before the
settlement was reached, Mr Porter had filed an interlocutory application in good faith seeking
to strike out Sch 1, 2 and 3 of the defence and for those parts of the defence to be removed
from the Court file, (b) before the settlement was reached, the respondents had indicated to
the Court their position that if Sch 1, 2 and 3 of the defence were struck out and removed
from the Court’s file then para’s 2(ll) to (pp) and 8 of the reply to the defence should also be
struck out and removed from the Court’s file, (c) Mr Porter’s interlocutory application had
not been determined at the time the settlement was reached, (d) the parties settled the whole
of the proceeding, including Mr Porter’s interlocutory application for strike out and removal,
on terms which included the filing of the proposed consent orders, (e) the terms of those
consent orders included proposed order 3 meaning order 3 is a part of the contractual bargain
for settlement which the parties struck, (f) by reason of the settlement there has not been and
will never be a judicial determination of Mr Porter’s interlocutory application, and (g) nor has
there been and nor will there ever be a judicial determination of any of the issues raised in the
respondents’ defence. It is these particular circumstances of the present case which cause me
to conclude that it is necessary to make proposed consent order 3 to prevent prejudice to the
proper administration of justice. Had any one of these circumstances not been present, I may
well have concluded to the contrary.
107 The effect of making proposed consent order 3 will be to prevent the public from inspecting
those unredacted documents under r 2.32(2) of the Court Rules (subject only to the grant of
leave under r 2.32(4) which I have acknowledged would not be likely unless circumstances
change). This consequence engages the principle of open justice. As discussed above,
however, this principle, while fundamental, is not absolute.
108 It is relevant that Mr Porter was the Attorney-General for the Commonwealth and is a
Minister of the Crown and that the ABC is a publicly funded broadcaster. This means that
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there is a legitimate public interest in their conduct generally (including their conduct of the
litigation). The principle of equality before the law, invoked for Mr Porter, does not change
this fact. This reinforces that the relevant test for the making of proposed consent order 3 is
not merely whether the parties have consented to it, but whether the making of proposed
consent order 3 is necessary to prevent prejudice to the proper administration of justice. The
principle of equality before the law is given effect by recognising that these parties were as
entitled as any other party to compromise the proceeding on such lawful terms as they saw fit
and to seek that the Court make orders to give effect to the compromise.
109 It is also relevant that the infringement on the principle of open justice is limited in scope in
the present case. Schedules 1, 2 and 3 are particulars to the defence. The defence excluding
Sch 1, 2 and 3 remains available for public inspection. The redacted reply (excluding para’s
2(ll) to (pp) and 8, which deal with Sch 1, 2 and 3) also remains available for public
inspection. Further, if circumstances do change in any material way, an application may be
made for leave to inspect the unredacted defence and unredacted reply under r 2.32(4) of the
Court Rules.
110 While “[o]rdinary members of the public are well aware of the difference between allegations
made in courts and findings made by courts” (Llewellyn at [23]), as noted, the matters in
Sch 1, 2 and 3 of the defence remain allegations which will never be the subject of judicial
determination given the settlement of the proceeding. Mr Porter’s allegations that those
Schedules are a form of abuse of process will also never be the subject of judicial
determination. In these circumstances, and given the full compromise of a ll aspects of the
dispute reached between the parties, I am satisfied it is necessary to give effect to proposed
consent order 3 as an important aspect of that compromise and, to that extent, the principle of
open justice must yield.
111 This conclusion has nothing to do with the fact that the parties may warrant the description of
“powerful litigants” (see John Fairfax quoted above). The parties are not obtaining “special
treatment” or extracting from the Court any protection greater than “ordinary parties ”. It is
open to any party to apply for the same kind of relief as the parties sought in the present case
if the circumstances arguably justify the making of such an order. Any such application will
be evaluated by reference to all of the circumstances and, in my view, should be tested
against the question whether the order is necessary to prevent prejudice to the proper
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112 Two other arguments of the intervening parties need to be resolved.
113 One, I do not accept their argument based on an alleged lack of utility. It is not to the point
that some or even most of the information in Sch 1, 2 and 3 of the defence may be otherwise
disclosed in information released by Thawley J consequential upon Dyer. That does not
change the fact of the compromise the parties reached in this case, including filing the
proposed consent orders.
114 Two, I do not accept that before I may make proposed consent order 3 I need to have
concluded that Sch 1, 2 and 3 of the defence constitute a form of ab use of process and should
be struck out within the meaning of r 16.21(1)(a), (b), (c) of (f) of the Court Rules. The very
purpose of the settlement reached by the parties included avoiding a judicial determination of
any issue in the proceeding including in respect of Mr Porter’s interlocutory application to
strike out and remove from the Court file Sch 1, 2 and 3 of the defence. The essential purpose
of that compromise would be lost if, in order to accede to the consent order, I had to find that
Sch 1, 2 and 3 of the defence did involve a form of abuse of process.
115 My power to make proposed consent order 3 is not dependent on the making of such a
finding. Under r 2.28(1)(a)(i) and (ii) and r 2.29(1)(a)(i) and (ii) of the Court Rules the Court
may make such an order on its own initiative or on the application of a party under r 6.01 and
r 16.21(2). In this case, there is an undetermined application for removal under r 16.21(2).
The rules do not condition the power on the Court being satisfied that the doc ument should be
struck out. As I have said, in a case such as the present where the removal is a part of the
agreed settlement of the proceeding, I consider the proper approach is to decide if the
removal of the document from the Court file is necessary to prevent prejudice to the proper
administration of justice, in common with the making of a non-publication or suppression
order under s 37AF(1)(a) of the Court Act.
116 As between the parties and intervening parties on the issue of costs, my present view is that
each party should pay their own costs of and in connection with the hearing on 9 July 2021
and the related case management hearings. The reason for this is that while I have been
assisted by the submissions for the intervening parties I did not require their intervention and
they have not succeeded. In these circumstances the intervening parties should not have any
order for costs in their favour and the parties should not have any order for costs against the
intervening parties given the assistance they provided to the Court. Further, the parties (in
effect, Mr Porter) would have been required to file evidence and make submissions, including
5KIPGFD[#WUV.++
written submissions and oral submissions in open court, whether or not the intervening
parties had opposed the making of proposed consent order 3. I would have required them to
do so given the issues relating to the proper administration of justice to which proposed
consent order 3 gives rise. If any party wishes to seek to vary this costs order they will be
given an opportunity to do so.
117 I noted above that I did not propose to place the submissions or affidavit of Mr Dowling on
the Court’s online file because they contain scandalous material. I will otherwise make
arrangements for the following documents to be placed on the Court’s online file: (a) Mr
Dowling’s interlocutory application filed 11 May 2021, (b) Mr Porter’s submissions in
support of the proposed consent orders, (c) the ABC’s submissions about the proposed
consent orders, and (d) the intervening parties’ submissions against the proposed consent
orders.
118 The appropriate form of orders to be made, recognising that the redacted defence and
redacted reply have already been filed and will remain on the Court file, is as follows:
THE COURT ORDERS THAT:
(1) The New South Wales District Registrar cause a copy of the unredacted defence filed
4 May 2021 and the unredacted reply filed 4 May 2021 to be placed into an envelope
marked “NSD206/2021 Charles Christian Porter v Australian Broadcasting
Corporation and Anor, Unredacted Defence and Unredacted Reply, removed from the
Court file pursuant to orders made on 30 July 2021. Not to be opened or made
available for inspection by the public other than by leave of the Court”.
(2) The envelope referred to in order 1 be sealed and stored by the New South Wales
District Registrar in the New South Wales District Registry in a manner and location
as decided by the New South Wales District Registrar.
(3) The interim suppression and non-publication orders made on 10 May 2021 and
subsequently amended on 21 May 2021, 25 May 2021 and 28 July 2021 be revoked.
(4) Order 3 be stayed for a period of 14 days.

(5) The interlocutory application filed by Shane Dowling on 11 May 2021 (the Dowling
interlocutory application) be dismissed.
(6) Shane Dowling pay the costs of the parties of and in connection with the Dowling
interlocutory application as agreed or taxed.
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(7) The intervening parties and the parties each pay their own costs of and in connection
with the hearing on 9 July 2021 and all related case management hearings.
(8) The intervening parties and the parties may seek to vary order 7 by filing and serving,
within seven days, a written submission not exceeding two pages setting out the
varied order sought and the reasons in support.
(9) If the intervening parties or parties file and serve any written submission under order
8, the other parties and/or intervening parties may file and serve, within seven days, a
written submission in response not exceeding two pages.
AND THE COURT ORDERS BY CONSENT THAT:
(10) Leave be granted to the applicant to file a notice of discontinuance within seven days
on the basis that there be no order as to costs.
(11) The unredacted defence and unredacted reply be removed from the Court file.
Note: order 11 is made on the ground that it is necessary to prevent prejudice to the proper
I certify that the preceding one

hundred and eighteen (118)
numbered paragraphs are a true copy
of the Reasons for Judgment of the
Honourable Justice Jagot.
Associate:
Dated: 30 July 2021

ABC Defence To Porter Defamation Suit To Remain Secret

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5KIPGFD[#WUV.

FEDERAL COURT OF AUSTRALIA

Porter v Australian Broadcasting Corporation [2021] FCA 863

File number(s): NSD 206 of 2021

Judgment of: JAGOT J

Date of judgment: 30 July 2021

Catchwords: PRACTICE AND PROCEDURE – where parties settled

PRACTICE AND PROCEDURE – interaction of Federal

PRACTICE AND PROCEDURE – consent orders and

Legislation: Federal Court of Australia Act 1976 (Cth) ss 17, 37AA,

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

Chandrasekaran v Commonwealth of Australia (No 3)

Porter v Australian Broadcasting Corporation [2021] FCA 863

Valentine v Freemantlemedia Australia Pty Ltd [2013]

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 118

Date of hearing: 9 July 2021

Counsel for the Applicant: Mr B Walker SC with Mr B Dean

Solicitor for the Applicant: Company Giles Pty Ltd

Counsel for the Respondents: Ms R Enbom QC with Ms K Lindeman

Solicitor for the Australian Broadcasting Corporation Legal Services

Counsel for the Intervening Mr D Sibtain

Solicitor for the Intervening Thomson Geer

Counsel for Mr Dowling: Mr Dowling appeared in person

Porter v Australian Broadcasting Corporation [2021] FCA 863

NSD 206 of 2021

BETWEEN: CHARLES CHRISTIAN PORTER

AND: AUSTRALIAN BROADCASTING CORPORATION

ORDER MADE BY: JAGOT J

THE COURT ORDERS THAT:

4. Order 3 be stayed for a period of 14 days.

Porter v Australian Broadcasting Corporation [2021] FCA 863 i

AND THE COURT ORDERS BY CONSENT THAT:

Porter v Australian Broadcasting Corporation [2021] FCA 863 ii

REASONS FOR JUDGMENT

2 In an email in response I said:

Porter v Australian Broadcasting Corporation [2021] FCA 863 1

Porter v Australian Broadcasting Corporation [2021] FCA 863 2

7 Mr Dowling filed an interlocutory application on 11 May 2021 seeking leave to be heard in

(1) there is an undetermined interlocutory application by Mr Porter seeking to strike out

Porter v Australian Broadcasting Corporation [2021] FCA 863 3

2. The statutory provisions

2.1 The Court Act

13 Section 17(1) provides:

15 Another such provision is s 17(2) which provides:

16 Section 37AE provides:

Porter v Australian Broadcasting Corporation [2021] FCA 863 4

In deciding whether to make a suppression order or non‑publication order, the Court

17 By s 37AF the Court may make a suppression or non‑publication order in respect of

19 By s 37AH(2) the persons entitled to be heard in relation to the making of a suppression or

20 If an application for a suppression or non‑publication order is made, s 37AI(1) permits the

21 Contravention of a suppression or non‑publication order is a criminal offence: s 37AL(1).