Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jones v Trad (No 2) [2013] NSWCA 415 Hearing dates: On the papers Decision date: 05 December 2013 Before: Ward JA at [1] Emmett JA at [2] Gleeson JA at [13] Decision: The informal application for redaction of portions of the Court's reasons of 20 November 2013 be rejected. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - request for suppression order - whether suppression necessary to prevent prejudice to proper administration of justice - public interest in open justice Legislation Cited: Broadcasting Services Act 1992 (Cth) Court Suppression and Non-publication Orders Act 2010, s 7(b) Supreme Court Act 1970, s 23 Category: Procedural and other rulings Parties: Alan Jones (First Appellant) Harbour Radio Pty Ltd (Second Appellant) Keysar Trad (Respondent) Representation: Counsel: Ms K Eastman SC with T Glover (Appellants) Ms K Nomchong SC (Respondent) Solicitors: Baker & McKenzie (Appellants) Turner Freeman (Respondent) File Number(s): CA 12/335873 Decision under appeal Citation: Jones & Anor v Trad Date of Decision: 2012-10-02 00:00:00 Before: R Madgwick QC, Deputy President; R Perrignon, Judicial Member; E Hayes, Non-Judicial Member File Number(s): 109004 & 109005 Judgment 1WARD JA: I agree with Emmett JA. 2EMMETT JA: In my reasons of 20 November 2013 for concurring in the orders proposed by Ward JA, I summarised relevant provisions of the Services Agreement as described in those reasons. Harbour Radio has now asked, by informal application pursuant to s 7(b) of the Court Suppression and Non-publication Orders Act 2010 (the Suppression Act) and s 23 of the Supreme Court Act 1970, that references to certain provisions of the Services Agreement be redacted before publication of the reasons of the Court. Under s 23, the Court has all jurisdiction that may be necessary for the administration of justice in New South Wales. 3Section 7(b) of the Suppression Act relevantly provides that a court may prohibit or restrict the publication or other disclosure of information that comprises evidence or information about evidence given in proceedings before the court. An order made under s 7(b) may be made on grounds permitted by the Act. Section 8 provides that a court may make such an order on one or more of the following grounds: (a)the order is necessary to prevent prejudice to the proper administration of justice; (b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; (c)the order is necessary to protect the safety of any person; (d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature; or (e)it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. 4Harbour Radio is the licensee under the Broadcasting Services Act 1992 (Cth) for the commercial radio broadcast licence for radio station 2GB. There are currently approximately 20 individuals serving as on-air presenters on that radio station, including Mr Jones, with varying degrees of experience and time spent as presenters on the radio station. 5Harbour Radio employs some of the presenters. However, in relation to the remainder Harbour Radio has entered into a services agreement with a corporation that provides the relevant presenter's services. Those agreements vary considerably from presenter to presenter, not just in relation to the scope of remuneration but also as to the rights granted to the presenters as part of the commercial bargain each has individually reached with Harbour Radio. 6The Services Agreement between Harbour Radio and Belford and Mr Jones contains two concepts that are unique to the arrangements with Belford and Mr Jones. The first is that Mr Jones has complete independence as to the content of the Program, as defined. Secondly, the grant to Belford and Mr Jones of a licence in respect of the copyright in the Program is unique to the arrangements that Harbour Radio has with Belford and Mr Jones. 7Thus, under cl 6 of the Services Agreement, Mr Jones has complete independence as to the content of the Program. Mr Robert Loewenthal, the managing director of Harbour Radio, has said in an affidavit sworn on 27 November 2013 that if other presenters were aware that Mr Jones had complete independence, current and future negotiations with other presenters could be prejudiced because they would demand similar rights to those enjoyed by Mr Jones. Mr Loewenthal says that that position is not tenable for Harbour Radio. He also says that negotiation of such agreements with presenters can sometimes be "challenging". 8Under cl 11 of the Services Agreement, Harbour Radio licenses to Mr Jones and Belford the copyright in all of the content produced for the Program. Mr Loewenthal says that that results in the giving up of an element of control in the content that it produces. 9The provisions of the Services Agreement constituted a not insignificant element in my reasons for concluding that Mr Jones engaged in a communication to the public in relation to the Broadcast. Further, I am not persuaded that any prejudice to Harbour Radio that might arise from publication of the details of the Services Agreement contained in my reasons is such that the suppression of the references is necessary to prevent prejudice to the proper administration of justice. 10Mr Loewenthal says that presenters are the key to the ratings success of radio programs and that, as a consequence, the agreements that Harbour Radio negotiates with its presenters are extremely important to the commercial success of radio station 2GB. I have no difficulty in accepting those assertions. Mr Loewenthal also asserts that anything that may adversely affect Harbour Radio's ability to negotiate freely with its on-air presenters will adversely affect the commercial success of radio station 2GB. That assertion, however, is of such generality and so lacking in specificity, that I am not persuaded that the public interest in open justice is outweighed by the public interest for an order of the nature now sought by Harbour Radio to be made. 11Harbour Radio contends that it agreed to include the provisions in question in the Services Agreement because of the unique position that Mr Jones has in the organisation and because Harbour Radio and Mr Jones have had a long business relationship that gives rise to a level of trust. Assuming that be so, and there is every reason to accept that it is, that appears to me to be a good reason why Harbour Radio would be in a position to resist requests by other presenters, in the course of negotiations, that they be afforded the same privileges that Mr Jones and Belford have under the Services Agreement. 12On the basis of the material presently before me, I would not be disposed to make the orders sought. The informal application should be rejected. 13GLEESON JA: I agree with Emmett JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2013