Reflections on the Lehrmann trial: Part 1 - Open justice in the modern (Australian) courtroom

Australia’s Federal Court has an established practice of livestreaming proceedings of sufficient public interest to the world at large on the Court’s YouTube channel. This practice is consistent with the need to facilitate and encourage public access to justice and recognises that persons interested in a proceeding may be unable to attend Court physically, and that facilities for large numbers to observe hearings in person are limited.

Two interlocutory rulings in the defamation proceeding brought by Mr Lehrmann against Network Ten and journalist, Lisa Wilkson, have considered the appropriateness of livestreaming in circumstances where the subject matter of the proceeding has received significant prior public attention (including intrusive, offensive, and distressing social media content directed at trial participants) and where there are concerns for a particular witness’s mental health.

The Federal Court’s rulings that livestreaming was appropriate in both contexts (albeit with some additional protections in the case of the witness) emphasises the primacy of the open justice principle when questions of procedural management, such as confidentiality and witness support, arise. The rulings are also consistent with a line of recent judgments in which Australia’s Federal Court has deprecated an apparent persistence by some parties to seek swingeing suppression and non-publication orders and make clear that mere embarrassment and stress are not enough to warrant the making of such an order.

Livestreaming of the Lehrmann defamation trial generally

Notwithstanding that all prior interlocutory hearings in Mr Lehrmann’s defamation proceeding against Network Ten and Ms Wilkinson had been livestreamed, Network Ten raised an objection to the livestreaming of the trial and sought alternative orders that would impose a regime whereby journalists, instructing solicitors and other interested persons may be granted access to the livestream upon making an application to the Court, and providing an undertaking not to disseminate or record the proceeding.

Network Ten’s submissions applauded the Court for its practice of livestreaming appropriate trials of matters of public interest and acknowledged that such livestreams serve to enhance open justice and public scrutiny of the administration of justice. However, Network Ten submitted that livestreaming is not appropriate in every case of public interest and livestreaming of this trial would not serve the administration of justice for the following four reasons:

• First, the circumstances to be examined during the trial had received an inordinate amount of public attention over several years, including on social media, which was ‘deeply intrusive, offensive and …distressing’ to its targets, and it was foreseeable, if not inevitable, that the public would breach the Court’s prohibition on making recordings or screenshots of the proceeding. The mere concern that this prohibition might be breached was apt to have a distorting effect on participants in the trial, including the applicant, witnesses, and counsel.
• Secondly, the subject matter of the proceeding was an alleged sexual assault. In a criminal context, vulnerable persons would be afforded special procedures, such as taking the evidence of a complainant in camera (e.g. s 291(1) of the Criminal Procedure Act 1986 (NSW)), but such protections were not available in the civil context.
• Thirdly, there was an ‘inherent risk’ that an uncontrolled livestream of the trial could prejudice Mr Lehrmann’s right to a fair trial in any future criminal proceedings, with Network Ten relying on charges that were currently before the Queensland criminal courts.
• Fourthly, the trial was not a case in which, in the absence of a livestream, the public would not be properly informed of developments, as the trial was likely to be extensively reported and scrutinised by the media.

Network Ten’s application that the Court not adopt its usual course of livestreaming all hearings in the defamation proceeding brought into sharp relief two competing considerations: the principle of open justice; and the interests of justice demanding that witnesses feel comfortable to give full, frank, candid and unvarnished evidence.

Despite the arguments advanced by Network Ten, Lee J decided to allow the livestreaming of the trial to proceed. His Honour’s reasons, outlined below, emphasise the primacy to be given to the open justice principle and how it can be facilitated in the modern courtroom:

• First, His Honour considered that Network Ten’s submission that the public would inevitably breach prohibitions on recording and screenshotting the livestream assumed the worst. The Court, at the very least initially, was entitled to operate upon the assumption that members of the public will obey the law. If, however, that expectation was dashed, his Honour observed that ‘the law is amply equipped to respond’ via the law of contempt which ‘provides protection for those who have duties or functions to perform in relation to the administration of justice’ ([19] – [20]).
• Secondly, the practices in criminal trials concerning an alleged sexual assault had no direct application as this was a civil trial. Although Lee J stated that considerations informing such practices were relevant, the transparency of open justice should be the primary consideration. Moreover, his Honour reasoned that it was not disputed that Ms Higgins and others had ‘specifically volunteered to give evidence in support of a truth case’, did not maintain anonymity in the aborted criminal proceedings and had ‘engaged in extensive publicity in relation to the factual substratum of the proceeding’.
• Thirdly, Network Ten's asserted concern for Mr Lehrmann’s right to a fair trial was misdirected given Mr Lehrmann’s express preference for the hearing to be livestreamed. Furthermore, Mr Lehrmann had not been committed to stand trial in relation to the charges the subject of the Queensland matter, and there was no suggestion by prosecuting authorities that livestreaming the defamation trial may interfere with the orderly progression of those charges in the Queensland criminal justice system.
• Fourthly, the practical effect of Network Ten’s proposed orders would be to privilege access to the proceedings by journalists and those in a position to attend in person. Justice Lee stated that ‘[t]he public interest in facilitating a fair and accurate report of proceedings in court is not enjoyed by journalists to the exclusion of other members of the public’ [29]. Unlike the Roberts-Smith defamation proceedings, the trial would not give rise to considerations relating to the potential revelation of national security which justified prophylactic measures such as limited access to real-time livestreaming subject to appropriate undertakings. Although Network Ten’s proposed regime would allow for “any other person” upon application to the Court to be treated like journalists, it was “not the role of the Court in the usual course to ask people for their identity if they wish to observe the workings of the Court”.

Accordingly, the Court refused the orders proposed by Network Ten and found it was appropriate for the trial, which was of public importance, to be livestreamed and that this was a way of facilitating open justice in the modern court room. Justice Lee did however indicate that the Court would reconsider the issue of livestreaming for particular and limited aspects of the evidence upon application by a party or witness. This is further discussed below.

Justice Lee’s decision also makes plain that the default position of open access to all testimonial and documentary evidence (as reflected in Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in the trial would apply, subject to it being proven necessary to take a different course for any specific aspect of the evidence.

Livestreaming of a particular witness’s evidence

For one particular trial witness, former Liberal staffer, Fiona Brown, the Court adopted a different approach - rather than permitting livestreaming of Ms Brown’s evidence in ‘real time’, the Court made orders requiring the livestream of her evidence be delayed. The background informing this decision does however demonstrate the primacy of open justice in the modern courtroom and how competing interests concerning a witnesses’ mental health can be appropriately balanced.

The orders concerning Ms Brown’s evidence came about after the Court rejected an application by Ms Brown’s counsel to discharge her subpoena to attend to give evidence on the grounds of her medical condition. Justice Lee made an interim order to have the supporting medical reports by her treating psychiatrist (Dr Ian Harrison) and psychologist (Ms Josie) (medical evidence) suppressed whilst the relevant submissions were heard. His Honour acknowledged that the medical evidence was “quite strong”, however found that it did not meet the level of severity that would discharge the subpoena. To mitigate any further harm , Lee J allowed the shutdown of the public live streaming for the duration of Ms Brown’s evidence (allowing only counsel and media in attendance on the day), and made orders allowing for streaming of the recorded evidence the following day. Further, the Court ordered parts of the medical evidence to be suppressed for a period of 10 years on the grounds that suppression was necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person (i.e., the grounds articulated in sub-ss 37(1)(a) and (c) of FCA Act).

Confidentiality orders

The facilitation of open justice in the modern court room is evidently not limited to the Court’s approach to livestreaming, but also extends to the Court’s approach to suppression orders. Whilst not new law, Lee J’s citation with approval of recent judgments deprecating the persistence of practitioners who seek suppression and non-publication orders on the grounds of mere embarrassment and stress placed on the parties is indicative of a consistent trend of the Australian Federal Court to require formal applications, supported by appropriate evidence, for orders under s 37AG of the FCA Act and strict application of s 37AE of that Act.

In Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452, Lee J cited John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 (John Fairfax Group), where Kirby P explained that despite sympathy for parties who may suffer embarrassment, invasions of privacy or even damage by publicity as facts come to light in open justice proceedings, such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Further, these considerations have “never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms” (142-143).

The strict conditions and overriding requirement for the Court to have regard to this primary objective of the administration of justice is also demonstrated in the below judgments:

• R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443 – Lee J rejected the application for almost all confidentiality orders sought by the applicants over details of estimated budgets of legal costs, respective litigation funding agreements and other information concerning the financial positions of the applicants, save for “war chest” information which, if revealed, had the ability to give forensic advantage to the respondents;
  
  
• Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 – His Honour noted that “proper consideration should be given to whether there is a sound basis for the application and whether the application is supported by sufficient evidence”. The Court was not satisfied that it was necessary to make the further redactions sought in Mr De Zilva’s email as there was no evidence to support an implicit submission that the director’s mental health would be adversely affected. His Honour criticised the “increasingly common and increasingly informal applications” by parties for imposing a significant burden on other parties and the Court system, reminding that the party’s lawyer must take account of the duty imposed by s 37N(1) to conduct the proceeding that is consistent with the overarching purpose (s 37M(1)) and assist the party to comply with it (s 37N(2) of FCA Act).

The stringent approach was adopted when the Court dismissed applications by two media organisations for suppression and non-publication orders under s 37AG(1)(a) of the FCA with respect to the deeds of settlement they had respectively reached with Mr Lehrmann (full judgment here):

• in each application, the media organisation applicant sought a suppression order on the grounds that it was necessary to prevent prejudice to the proper administration of justice. Citing Hogan v Australian Crime Commission [2010] HCA 21, Lee J observed that “necessary” is a “strong word”, meaning the order must be “required”, and it is not sufficient that the order sought is objectively sensible, or desirable, or appears to be fair or a good thing;
• Justice Lee found that the applicants did not provide a compelling answer as to why suppression of the precise quantum of the amounts paid was necessary to prevent prejudice to the administration of justice;
• further, whilst not determinative, in the case of one of the settlement deeds, there was a possibility that the amount would become public knowledge in any event (given the media organisation applicant was a statutory corporation which was the object of public scrutiny (including at Senate estimate hearings)).

In a separate application for a suppression order however, Lee J was satisfied that it was necessary to make a confidentiality order with respect to aspects of a deed of settlement and release entered into by the Commonwealth of Australia (Commonwealth) and Ms Brittany Higgins (deed) on the grounds articulated in ss 37AF(1)(b) and 37AG(1)(a) of the FCA. Justice Lee was satisfied that the entirety of parts relating to “Particulars of Disabilities” and “The Events Complained about” ought to be redacted on the basis of Ms Higgins’ intimate and highly personal medical information which was irrelevant to the disposition of the issues of the proceeding. In answering whether redacting the material was necessary to prevent prejudice to the proper administration of justice, Lee J reinforced that the Court must be mindful not to fetter the ability of parties to seek an extra-curial resolution of disputes, to engage in frank, full exchanges as to the medical conditions of persons seeking resolution of claims for personal injury to secure settlement, without fearing that personal information was going to be ‘published to all the world’. Justice Lee emphasised that public confidence in the administration of justice requires transparency to the extent that it can be provided, and that granting the application proposed by Ms Higgins’ counsel (when such information had ‘at best, marginal relevance’) did not detract from principles of open justice.

Prohibited conduct

Irrespective of whether a proceeding is heard in person or via remote access technology, the use of recording and transmission devices on the Court’s premises or in Court hearings without express approval of the Court is prohibited by r 6.11 of the Federal Court Rules 2011 (FCR) and ss 17 and 39 of the Court Security Act 2013 (Cth) (CSA) and would constitute contempt.

On 22 November 2023, Lee J made orders in the defamation proceeding that members of the public who attend the hearing via YouTube do so on the two conditions that they are permitted to observe and listen to the hearing but in no circumstance participate in the hearing, and are prohibited from making any recording or photographic record of the hearing or part thereof by any means whatsoever. Lee J advised that failure to observe these conditions may constitute a contempt of court and be punishable as such.

During the course of the trial, it became apparent that the Court’s orders had been breached by the publication of nine videos containing parts of evidence obtained during cross-examination on the ‘Feminism Debunked’ YouTube channel.

On 18 December 2023, Lee J ordered Google LLC (Google) to provide to the Principal Registrar subscriber registration information of the account holder who maintained the Feminism Debunked channel and associated IP logins.

On 28 December 2023, the relevant YouTube account owner, Mr Glenn Logan, was ordered to appear in person (either personally or by his legal representative) on 13 February 2024 to show cause as to why proceedings for contempt should not be instituted against him for an alleged contravention of the 22 November 2023 orders by his publication of the nine videos.

Following this appearance, the Court will determine whether proceedings for contempt should be instituted against him. If proceedings are instituted, penalties available under common law include imprisonment, fine, injunction, sequestration and award of costs. The nature and extent of any penalty will depend on the following:

• nature and circumstances of the contempt, including whether the contemnor appreciated that a contempt was being committed or whether they subjectively intended to disobey any court order;
• effect of the contempt on the administration of justice;
• contemnor's culpability and any financial gain made from the act of contempt;
• need to deter the contemnor and others from repeating contempt;
• absence or presence of a prior conviction of contempt;
• contemnor's financial means;
• contrition and apology by the contemnor.

Recent examples where a contemnor who has published material contrary to orders of the Federal Court has been sentenced to imprisonment include:

• Jones v Toben (No 2) [2009] FCA 477, where the contemnor was sentenced to three months’ imprisonment for wilful and contumacious contempt of court on 24 occasions by publishing material on the internet in breach of Court orders and an undertaking to the Court; and
  
• Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202, where the Court imposed a term of imprisonment for 18 months for conduct involving a defendant’s publication by internet and on the side of motor vans involving a defiance of court orders. The sentence was reduced on appeal to 12 months: Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 at [189].

We will update this article with the outcome of the show cause hearing on 13 February 2024, so watch this space!

Authors: Julie Cheeseman, Evelyn Park and Jack Pink