Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 (21 June 2017): application

August 13, 2017 |

As part of the rich vein of rulings and law that attend the Rebel Wilson case His Honour Dixon J considered an application by the Plaintiff to suppress publication of financial details she received from film contracts in  Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 


The plaintiff applied pursuantto:

  • Section 18(1)(a) of the Open Courts Act 2013 (Vic) (the Act); or alternatively
  • the inherent jurisdiction of the court, on the grounds that the order is necessary to prevent prejudice to the proper administration of justice


Disclosure by publication or otherwise is prohibited of the financial benefits that the plaintiff has, will, or may receive under agreements or contracts made after 18 May 2015 in respect of the provision of the plaintiff’s services as an actor including but not limited to agreements in respect of the movies entitled or provisionally entitled ‘Pitch Perfect 3’, ‘Absolutely Fabulous’, ‘Private Benjamin’, ‘Isn’t it Romantic’ and ‘Dirty Rotten Scoundrels’.



As a preliminary point the Court noted that:

  • there is a presumption in favour of disclosure of information to which a court must have regard in determining whether to make a suppression order [4].
  • Section 18(1)(a) of the Open Courts Act gives the court a discretion to make a proceeding suppression order if satisfied that the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means [5].
  • the court’s inherent jurisdiction to make a suppression order is unaffected by the Act [6]
  • if a real and substantial risk of prejudice to the proper administration of justice is a likely consequence in the absence of a proceeding suppression order, the order will be necessary under the Act. It is for the applicant to satisfy the court of the necessity of the order by evidence or by sufficient credible information that is satisfactory to the court [7]

The plaintiff submitted that:

  • a proceeding suppression order was necessary to protect the third party commercial-in-confidence information of various film studios [8];
  • the making of a proceeding suppression order in the very limited terms sought will have no implications for public confidence in judicial integrity or independence, nor affect in any material way the ability of the public to understand the matters in issue in this proceeding [8]
  • commercial considerations may be relevant to the court’s discretion when determining whether or not to make a suppression order [9]
  • courts have protected commercially sensitive confidential information in a wide range of circumstances analogous to those in the present matter [9]
  • the inherent confidentiality of the sums paid under her contracts are, at [10] :

(a) the plaintiff considered the amounts she has been paid for movies such as Pitch Perfect 2 and Pitch Perfect 3 to be confidential;

(b) when the plaintiff signed contracts, she was not allowed to publicly state how much she has earned or will earn for those movies;

(c) she had never publicly stated how much she earned for movies such as Pitch Perfect 2 or Pitch Perfect 3;

(d) the amounts she was paid for movies such as Pitch Perfect 2 or Pitch Perfect 3 are not in the public domain;

(e) she does not know what amounts were paid to her co-stars in movies such as Pitch Perfect 2 and Pitch Perfect 3 and she does not tell other co-stars what she is paid; and

(f) if she knew what other actors were being paid, it would be of use to her in negotiating future roles.

  • some contracts between the plaintiff and film studios contain express confidentiality clauses. An inference, even in the absence of confidentiality clauses, clearly arises that the sums paid to the plaintiff as her fee and bonuses for the nominated movies was commercially confidential [11].
  • the court ought not lightly interfere with the rights of the third party movie studios in circumstances where they have not had the opportunity to be heard [12]
  • on the question of public interest the precise sums that she earns for films might well be interesting to the public, but that doesn’t make them matters of public interest [13].
  • the trial has been the subject of an unusual degree of public scrutiny, including over the days in which the interim suppression order has been in place. An order would not inhibit the media from continuing to cover the trial fully [14].

The Court summarised the media parties’ submission, at [15], as:

(a) other litigants are routinely required to disclose personal information when then come before the court which necessarily involve a substantial amount of commercial in confidence intimation. Disclosure is an occasional, but necessary, by-product of the open justice principle and confidentiality alone has never been a proper basis for the making of a suppression order.

(b) this case is not unique in attracting particular media attention.

(c) it would be inappropriate to suppress the figures in circumstances where, should the plaintiff be successful in her defamation action, the court will be required to assess her damages on, inter alia, that information.

(d) the fact that the information might also be used to publish gossip or scuttlebutt does not invalidate the important public function served by revealing these figures.

(e) it is not enough to establish that there might be some vague risk of prejudice to the administration of justice. It must be a necessary and a very real, practical and definite risk such as has not been properly identified in this case.

(f) embarrassment is not a factor to be taken into account when determining whether a suppression order should be made.

(g) all litigants coming before the court know that there is a risk that sensitive information will come to light.  There is no evidence before the court that anybody will actually be put at a commercial disadvantage.

(h) the type of information that is sought to be suppressed, being the amounts which actors are paid, is routinely speculated upon and is the kind of information that forms the content of a large number of articles.

(i)  the plaintiff was a powerful litigant —as opposed to an ordinary litigant — because she is well resourced and had what the media parties described as the ‘best legal team available’. She should not be afforded a level of secrecy not available to other ordinary litigants and the court ought uphold the important principle that all litigants are equal before the law.

The Court framed the question, at [16], as:

..a balance must be weighed between the competing public interests of, on one hand, open justice, and on the other, free and unhindered access to the court for a plaintiff seeking vindication of substantive rights against a defendant that incidentally requires the maintenance of commercially confidential information.

with the plaintiff bearing the onus of establishing that the suppression order is necessary, a high burden.

The Court noted:

  • the principle of open justice is of vital public importance, because it is fundamental to public confidence in judicial integrity and independence [17] so as to
    • protect against the abuses that may flourish when the courts are not open to public scrutiny, and,
    • enables the media to do its job properly, acting as the de facto eyes and ears of the public who cannot sit in court each day.
  • the questions of proprietary interests and commercial confidences constitute a legitimate exception [20].

The Court ruled:

  •  the proposed order does not offend either of the fundamental aspects of open justice and   is necessary to prevent prejudice to the proper administration of justice which is a real risk as opposed to a remote possibility [21].
  • that the plaintiff is obliged to maintain commercial confidentiality of the precise sums that she earns for particular movies and the revelation of such figures is likely to be detrimental to her in the future [22].
  • the plaintiff, at [23], has identified a real and definite risk of prejudice to the administration of justice in the
    • that she could herself be at a disadvantage in future negotiations for movie roles if it became known that she had put information about the amounts she had been paid into the public domain. It is reasonable to infer that film producers may be less willing to deal with an actor who has nullified the commercial confidence in the substance of the negotiation [24].
    • the publicity from the disclosure of fee arrangements that is responsible reporting would be outweighed by scuttlebutt publicity [25].
    • there is no merit in the media parties characterisation that to make the suppression order sought would amount to a ‘powerful litigant’ being afforded special entitlements on that basis [26]
  • the risk of prejudice to the administration of justice follows on the prospect that other persons with a public profile who wish to seek vindication of rights against powerful media companies may be discouraged from seeking to vindicate those rights if required to act to their possible future prejudice in dealings with third parties through disclosure of confidential information [27]
  • the media parties were not able to point to any compelling need for the public to know those precise sums in the context of this proceeding, other than fair report of proceedings in court, that is, open justice [26]
  • the plaintiff was not only seeking to avoid embarrassment, privacy or inconvenience. The concept of public interest in court proceedings rises above and is different from an interest that only go to finding the sums interesting as a matter of Hollywood gossip and the interests of media entities in making money from the sale of publications [28]
  • the public would not be constrained from properly assessing an award of damages that might be make. Any  award of damages will be accompanied by detailed reasons and the information to be suppressed was of very limited compass [29]
  • the proper administration of justice also involves questions about access to justice and this form of disclosure may lead to the concerns that other plaintiffs might be discouraged from seeking to vindicate their rights because of irrelevant or third party concerns [30]
  • the role of the media as the eyes and ears of the public was of less importance in this proceeding than is commonly the case in contemporary times as the courtroom was full of spectators.  The only restriction was on the out of court publication of limited specific information [31].

As to the extent of the order the Court stated:

  •  the order sought is akin to a pseudonym order, which is a form of order not regulated by the Open Courts Act.  Such a form of order has a light footprint on the principles of open justice and can be effective in advancing competing policy outcomes such as access to justice without unacceptable compromise of the competing principle [32].
  • the Act makes clear that the effect on the public nature of the proceedings and the ability of the media to fully report on proceedings should only be restricted to the minimum extent necessary to achieve the purpose for which the order was made [33]
  • the order to be made will have no effect on the public nature of the proceedings.  The ability of the media to fully report on proceedings will only be restricted on the issue of the particular figures identified in the contracts [33].


The Court noted that, in hindsight, it would have preferred adopting a referential system approach to a suppression order [36] stating that the limited reference in evidence to the figures demonstrated that the impact of the interim suppression order on public reporting of the trial and on the objectives of the principles of open justice was minimal.

The court made a suppression order in the terms sought by the plaintiff [37] until further order or the expiration of a five-year term from the making of the order [40].


In practical terms Courts in Australia are generally protective of commercial in confidence financial data being made available for publication.  Data relating to business activities such as turnover, profits and earnings are often times redacted or the subject of some form of restraint of publication where an application is made.  It is quite common in commercial cases.  The analysis here does cover similar ground that commercial courts are familiar with with the added consideration of public interest.

As important in making the application is the scope of the order itself. As the court made clear the extent of the order is to be no greater than that to achieve the applicant’s aim.  Just because a party wins the application does not mean an application will be successful if the orders seek excessive restraint.

One Response to “Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 (21 June 2017): application”

  1. Wilson v Bauer Media (Ruling No 5) [2017] VSC 355 (21 June 2017): application | Australian Law Blogs

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