JUDGMENT No, wilt 7 V4 CATCHWORDS PRACTICE AND PROCEDURE - confidentiality order - appeal concerning whether settlement containing term that it was not to be disclosed should be set aside - whether the Full Court should make an order preserving the confidentiality of the terms. Australian Broadcasting Commission v. Parish (1980) 29 ALR 228 : PH HEDI VG 314 of 1994 P. DI VG 315 of 1994 Burchett, Foster & O'Loughlin JJ. Melbourne 6 October 1994 RECEIV™ 4 18 OCT 1994 FEDERAL COURT Or AUSTRALIA f PRINCIPAL a REGISTRY INTHE FEDERAL COURT OF AUSTRALIA Vv TRY GENERAL DIVISION VG 314 of 1994 VG 315 of 1994 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: RICK LEWI FREDERICK WINTER Appellants AND: PH HEDI T, P ' LAS an E First Named Respondents AND: METZKE & ALLAN Second Named Respondent AND: HANN NOMINEES PTY LTD Third Named Respondent AND: PETER HANN Fourth Named Respondent BETWEEN: GRAY & WINTER Appellants AND: JOHN JOSEPH HEDIGAN, PAUL MARSHALL GUEST, PETER JOHN O' CALLAGHAN, ALLAN JAMES MYERS and ALEX CHERNOV First Named Respondents AND: METZKE & ALLAN Second Named Respondent AND: HANN NOMINEES Pry LTD Third Named Respondent AND: PETER HANN Fourth Named Respondent 2. CORAM: Burchett, Foster and O'Loughlin JJ. PLACE: Melbourne DATE : 6 October 1994 R IDGMEN' One of the aims of the administration of justice has always been to facilitate the settlement of disputes, in order to avoid or reduce the bitterness and harshness of litigation. The law recognizes that "Blessed are the peacemakers". In the negotiation of settlements it has often been found that the preservation of the privacy of an agreement assists settlement. Courts have accordingly made orders that terms of settlement not be disclosed. In this Court, however, it is generally thought preferable not to make such an order. Instead, parties who wish to reach confidential settlements are free to agree to keep the terms private. There is, of course, no reason why they should not do so. Principles of high importance which are relevant to this question were discussed in detail in Australian Broadcasting Commission v. Parish (1980) 29 ALR 228. There the Court took as the starting point the common law rule that justice is generally administered by courts in public. The present case raises the question because it concerns a settlement that was to be kept confidential. But a fresh dispute arose as to that settlement. The new question had to be 3. determined whether the settlement should stand. Its determination, upon general principles, would occur in open Court unless a special order were made closing the Court. Such an order was in fact made by the trial judge. Its ground, as I understand the matter, had nothing to do with the identity of the parties to the litigation, but was simply that the dispute related to a confidential agreement. As Aust i Broa sti Commission v. Parish shows, such a dispute may in some circumstances provide an instance where a special order should be made. But it depends on the facts of the case. So far as the present appeal is concerned, I see no good reason to make an order of that kind. As I have said, the only basis suggested is the confidentiality of the original settlement that is in dispute. But the matter has gone well past the circumstances of the conclusion of that settlement, and the term in question is of relatively small importance in the total picture. Indeed, the parties who originally insisted on it now no longer wish the term to be supported by an order forbidding publicity of this proceeding. The current dispute is not itself a subject requiring secrecy. Accordingly, having weighed that interest which the parties may still have in the confidentiality of their settlement against the general interest that the Court should act and be seen to act openly, I would refuse to make an order restricting the publicity of the proceedings. FOSTER J. I agree. I agree. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Court. Associate: Prakeepe O xh ca. Date: 17/10 /94- Counsel for the Appellants: Solicitors for the Appellants: Counsel for the First Named Respondents: Solicitors for the First Named Respondents: Counsel for the Third and Fourth Named Respondents: Solicitors for the Third and Fourth Named Respondents: Dates of hearing: Mr D.E. Grieve Q.C. with Miss D.M. Coulton Messrs Gray & Winter Mr J.E. Middleton Q.C. with Mr P.J. Jopling and Mr J. Tsalanidis Messrs Mahony Galvin Rylah Miss S.M. Cohen Messrs Phillips Fox 6 October 1994