FEDERAL COURT OF AUSTRALIA Mununggurr v Channel Seven Sydney Pty Ltd [2019] FCA 2188 File number: NSD 291 of 2019 Judge: RARES J Date of judgment: 12 December 2019 Date of orders 23 December 2019 Catchwords: PRACTICE AND PROCEDURE – application by litigation representative to approve terms of settlement under rr 9.70 and 9.71 of the Federal Court Rules 2011 – where applicants under legal incapacity because of age – where settlement was in best interests of applicants – settlement approved with moneys to be held on trust for applicants by the Public Trustee of the Northern Territory COURTS AND JUDGES – whether aspects of the settlement should be subject to suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) – where suppression order for limited duration necessary to prevent prejudice to proper administration of justice so as to protect interests of applicants under legal incapacity and current commercial and personal interests of parties – where parties can apply on future date to extend suppression order under s 37AJ of the Federal Court of Australia Act 1976 (Cth) – quantum of settlement suppressed Legislation: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law Federal Court of Australia Act 1976 (Cth) s 37AJ Federal Court Rules 2011 rr 9.70, 9.71 Racial Discrimination Act 1975 (Cth) Trustees Act 1893 (NT) ss 24, 24A Cases cited: Butler v Djerriwarrh Employment & Education Services [2015] FCA 296 Dickason v Dickason (1913) 17 CLR 50 Fish v New South Wales Department of Education and Training [2018] FCA 434 Scott v Scott [1913] AC 417 Date of hearing: 12 December 2019 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 17 Counsel for the Applicants: Ms L Goodchild Solicitor for the Applicants: O'Brien Criminal and Civil Solicitors Counsel for the Respondents: Mr K Smark SC Solicitor for the Respondents: Addisons Table of Corrections 27 February 2020 Citation changed to reflect Channel Seven Pty Ltd rather than Seven West Media Limited as first respondent Table on orders page changed to reflect Channel Seven Pty Ltd rather than Seven West Media Limited as first respondent Seven Network (Operations) Limited added to orders page as second respondent Appearances updated to reflect that Mr K. Smark SC and Addisons represented the two respondents rather than a single respondent ORDERS NSD 291 of 2019 BETWEEN: KATHY (BANUMAL NUMBER TWO) MUNUNGGURR First Applicant DELVIN YUNUPINGU Second Applicant STEVEN MAYMURU (and others named in the Schedule) Third Applicant AND: CHANNEL SEVEN SYDNEY PTY LTD First Respondent SEVEN NETWORK (OPERATIONS) LIMITED Second Respondent JUDGE: RARES J DATE OF ORDER: 23 DECEMBER 2019 THE COURT ORDERS THAT: 1. Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), the confidential advice dated 22 October 2019, being annexure SJ08 to the affidavit affirmed by Stewart O'Connell on 11 December 2019, be deemed to satisfy the requirements of r 9.71(2)(c). 2. Pursuant to r 9.70, the agreement between the parties made to settle this proceeding, being annexure "SJ01" to the affidavit affirmed by Stewart O'Connell on 11 December 2019, be approved. 3. The solicitor for the applicants cause each individual share of the amount payable to each of the tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants (collectively the beneficiaries) to be paid to the Public Trustee of the Northern Territory to be held separately for the respective beneficiary on trust until that beneficiary attains the age of 18 years and thereafter for that beneficiary absolutely. 4. The Public Trustee shall have the following powers in respect of each of the six trusts established under order 3 above in addition to, and without limiting, the Public Trustee's powers under ss 24 and 24A of the Trustee Act 1893 (NT), namely the power to: (a) invest the trust fund and accumulate the whole or any part of the interest earned on it not paid to or for the benefit of the beneficiary in the way of compound interest until the trust fund vests in the beneficiary absolutely, (b) pay or apply for the maintenance, education, advancenment or benefit of the beneficiary the whole or any part of the income or capital of the trust fund or both in such manner as the Public Trustee in his or her absolute discretion shall think fit. 5. Unless the Court otherwise orders, up to and including 1 January 2033, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) the unredacted affidavit affirmed by Stewart O'Connell on 11 December 2019 be suppressed and not published, provided that the redacted version of that affidavit and its redacted annexures as read in open court on 12 December 2019 be available for access or inspection in accordance with the Rules. 6. The ground for order 5 is that it is necessary in order to prevent prejudice to the proper administration of justice. 7. The costs of and associated with the applicants' interlocutory application dated 12 November 2019 be costs in the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 The applicants are nine adults and six children, aged between five and nine, each of whom is represented by a litigation guardian. They commenced this proceeding against the two respondents, which are the producer and broadcaster of a television program, Sunrise on the Channel Seven network. Sunrise is broadcast daily throughout the Commonwealth. The applicants sought damages on a variety of causes of action against Channel Seven. 2 Channel Seven published the matter complained of on or about 13 March 2018 in which it showed background, pixelated footage of an Aboriginal community, of which each of the applicants was a member. They alleged that that footage depicted them in a form recognisable to viewers in connection with a story or segment titled, "Aboriginal Adoption, Proposal for White Families Should Take in Abused Kids". The applicants contended that the matter complained of conveyed a number of defamatory imputations of and concerning each of them. They also alleged that the broadcast gave rise to a variety of other causes of action, including breaches of the Racial Discrimination Act 1975 (Cth), breaches of confidence and misleading or deceptive conduct under the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth). In essence, the applicants complained that the publication suggested that, in one way or another, they had some connection to the issues of child abuse in the subject matter of the broadcast, which was not the case. 3 On 3 July 2019, I ordered the parties to attend a private mediation and set the proceeding down for a three-week hearing commencing on 14 April 2020 on country at Nhulunbuy in the Northern Territory, or such other place as may be directed, being the area in which the applicants live. In the event, the parties attended at a mediation conducted by the Honourable Stan Jones QC and reached a resolution of this proceeding in a confidential settlement. The parties agreed that they would enter into a deed, the terms of which have now been agreed and reduced to writing. The terms of the settlement will resolve, among all the other claims, those of the children who will receive a settlement sum and an apology subject to the Court exercising its power to approve it under rr. 9.70 and 9.71 of the Federal Court Rules 2011. 4 The applicants' solicitor, Stewart O'Connell, in his affidavit, affirmed on 11 December 2019, explained the circumstances of the applicants, including the children and their litigation guardians in the settlement negotiations and he annexed a written opinion of counsel for the applicants dated 22 October 2019 as to the appropriateness of the settlement for the children. Should the settlement be approved? 5 The Court must approach the approval of terms of settlement, having regard to its responsibilities under rr 9.70 and 9.71. In Fish v New South Wales Department of Education and Training [2018] FCA 434, Gleeson J reviewed the requirements of the Rules, and applied what Mortimer J had said in Butler v Djerriwarrh Employment & Education Services [2015] FCA 296, at [10] – [16]. In particular, Mortimer J said at [16] that "…the jurisdiction to approve a settlement for a person under disability is inherently protective." The protective nature of the jurisdiction is intended to ensure that the Court is in an independent position to assess, on an informed basis, as best it can, whether a settlement is in the best interests of the person under a legal incapacity having regard to all of the circumstances, including the nature of the litigation, his or her financial and other relevant interests and all of his or her relevant circumstances. 6 To the extent that it may be argued that counsel's opinion does not satisfy the requirement in r 9.71(2)(c) (that requires an opinion by an independent lawyer that the settlement is in the best interests of each of the children, as a person under a legal incapacity), I am nevertheless satisfied that I should accept that opinion as an independent and proper basis on which to proceed for the purposes to which r 9.71(2)(c) is directed. 7 The applicants' solicitors will receive as part of the overall settlement, an amount with respect to the costs of the proceedings, but Mr O'Connell said that they will not seek to recover any further costs from the moneys being paid for the benefit of the six children. 8 Mr O'Connell made inquiries of the Public Trustee of the Northern Territory. He ascertained that the Public Trustee would be prepared to hold the settlement moneys on a separate trust for each child, if the Court required it to do so, on the basis of charging a one-off fee of 1.1% on the capital amount, and an annual fee of 6.6% charged on any interest earned by the principal of each trust in each year. 9 I inquired of counsel for the applicants during the hearing, whether the terms of the trust that the Court should settle ought: enable the Public Trustee, if need be, to accumulate any interest, until each of the applicants turned 18, at which point, the trust fund could be held for him or her absolutely, and if required, paid to him or her, in the meantime, give the Public Trustee discretion to apply, at the request of the guardian or parents of each child, the whole or a part of the trust fund, as may be appropriate in the opinion of the Public Trustee, for the purposes of the beneficiary's maintenance, education or advancement in life. 10 Given the amount of the trust fund for each child, I am of opinion that it is appropriate to give the Public Trustee the above powers, in addition to those under ss 24 and 24A of the Trustee Act 1893 (NT). The Public Trustee will be able to exercise the discretions in the way he or she considers to be appropriate, unless he or she considers that the circumstances would warrant the significant potential drain on the particular trust fund, having regard to its size, of making an application to the Court. 11 In the circumstances, I am satisfied that the terms of the proposed settlement for each of the children is one that ought be approved, with appropriate orders as to the terms on which their moneys will be held on trust. In arriving at this conclusion I have had regard to the following factors: first, the terms of counsel's opinion, her familiarity with the detail of the proceedings and the circumstances, secondly, the number of complex difficult areas of the law that the proceeding involved that would have required a lengthy trial in a remote part of Australia that would have consumed very considerable resources of each of the parties and imposed considerable human stresses on all of them, thirdly, all of the applicants, including the children, claimed no special damages but sought general damages on a variety of heads, fourthly, my own understanding of the issues in this proceeding as docket judge, having viewed the matter complained of and having considered the pleadings and issues and, fifthly, the overall terms of the settlement include the payment of a sum for the benefit of each child, and the broadcast of an apology that appears to be worded appropriately as a means to ameliorate the bane of the publications complained of. Confidentiality 12 The parties wish to keep the terms of their settlement confidential. They provided in the deed that they would do so except, relevantly, as provided by law and the publication of the apology. Ordinarily, when parties of full capacity settle litigation they may do so on such terms as they see fit, including by agreeing to keep confidential to themselves the whole of the terms. They are free to choose to resolve the litigation simply, for example, by a consent order or a notice of discontinuance. 13 However, if there is a need for the Court to approve a settlement in respect of a person under a legal incapacity, some aspects of such a settlement, and the process of approval itself, may become subject to exceptions to the principle of open justice, in which case the Court must exercise its powers to do justice according to law: Scott v Scott [1913] AC 417 at 436-439, per Viscount Haldane LC; Dickason v Dickason (1913) 17 CLR 50. 14 Here the apology is to be published on Sunrise. The connection between what the apology conveys and the fact that the parties have resolved the proceeding makes obvious (and thus discloses) that the apology is (or was) part of a settlement, as does the need for the Court to approve the terms of the settlement for each child under rr 9.70 and 9.71. 15 The generic terms of the settlement deed are usual and ordinary in agreements of this kind. But, on the material presently before me, there is an obvious commercial and, bona fide personal, confidentiality in maintaining the secrecy of the settlement figures that the parties have arrived at in order to resolve the difficult factual and legal issues in the proceeding. They are to be congratulated in achieving the settlement they have. 16 I am also of opinion that it is in the best interest of each child that the amount be kept confidential. There is no material presently before me to suggest that the financial terms of the settlement ought be maintained as confidential beyond the time that the youngest of the beneficiaries will turn 18 in late 2032. However, that may not be a correct appreciation of the position and I will make orders that enable any of the parties to apply before 1 January 2033 for an extension of the confidentiality order that I will make as to the contents of the redacted portions of Mr O'Connell's affidavit, having regard to the terms of ss 37AF and 37AJ of the Federal Court of Australia Act 1976 (Cth). The ground for making that order is that it is necessary to prevent prejudice to the proper administration of justice so as to protect the interests of the children and the current commercial and personal interests of the parties, as reflected in the terms of the confidentiality clause in the deed. Conclusion 17 For these reasons, I am of opinion that the settlement ought be approved and I will make orders accordingly, including the following as orders 3 and 4 to establish the trusts on which the children's settlement moneys will be held: 3. The solicitor for the applicants cause each individual share of the amount payable to each of the tenth, eleventh, twelfth, thirteenth, fourteenth and fifteenth applicants (collectively the beneficiaries) to be paid to the Public Trustee of the Northern Territory to be held separately for the respective beneficiary on trust until that beneficiary attains the age of 18 years and thereafter for that beneficiary absolutely. 4. The Public Trustee shall have the following powers in respect of each of the six trusts established under order 3 above in addition to, and without limiting, the Public Trustee's powers under ss 24 and 24A of the Trustee Act 1893 (NT), namely the power to: (a) invest the trust fund and accumulate the whole or any part of the interest earned on it not paid to or for the benefit of the beneficiary in the way of compound interest until the trust fund vests in the beneficiary absolutely, (b) pay or apply for the maintenance, education, advancement or benefit of the beneficiary the whole or any part of the income or capital of the trust fund or both in such manner as the Public Trustee in his or her absolute discretion shall think fit. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 23 December 2019 SCHEDULE OF PARTIES NSD 291 of 2019 Applicants Fourth Applicant: YARRAKAYNGU MARAWILI Fifth Applicant: JANELLE MAYMURU Sixth Applicant: MELISSA WUNUNGURRA Seventh Applicant: KENNY (WAPIT) MUNUNGGURR Eighth Applicant: LOUISE WANAMBI Ninth Applicant: WARANGAL MARIKA Tenth Applicant: MAHALIA WUNUNGARRA BY HER TUTOR LOUISE WANAMBI Eleventh Applicant: ISIAH WANAMBI BY HIS TUTOR JANELLE MAYMURU Twelfth Applicant: TASHAUN MUNUNGGURR (BARRARAL NUMBER TWO) BY HIS TUTOR LORETTA YUNUPINGU Thirteenth Applicant: MARLEY WANAMBI BY HIS TUTOR MELISSA WUNUNGURRA Fourteenth Applicant: CAMILLE WANAMBI BY HER TUTOR AMANDA YUNUPINGU