126 client legal privilege is premised on the

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126 Client legal privilege is premised on the existence of confidentiality: Evidence Act 1995 (Cth) ss 118–19. Some factual content included in affidavits or opinions may not qualify for client legal privilege even though the advice that draws on that factual content is privileged. Com- mercially sensitive information has been recognised as attracting the operation of suppres- sion orders: Australian Broadcasting Corporation v Parish (1980) 29 ALR 228, 234–5 (Bowen CJ), 245 (Franki J); Australian Competition and Consumer Commission v Air New Zealand Ltd [No 3] [2012] FCA 1430 (14 December 2012) [35] (Perram J).
616 Melbourne University Law Review [Vol 38:590 actual agreement or deed, so that it is a subset of category two. 127 However, it differs in that for the purposes of approving a settlement the terms of that settlement need to be considered and disclosed, at least in part, if reasons for approval are to be given. 128 The global settlement sum and the operation of the settlement distribution scheme should not be kept confidential. The specific individual payments referred to in category five do not need to be disclosed if the mechanics of the settlement distribution scheme are disclosed. Indeed, the privacy of the individual group members may support a lack of disclosure. However, for the class action process to be accountable and open to critique then the quantum of a settlement and the process by which it is distributed to group members need to be publicly available. 129 Moreover, allowing this information to be suppressed prevents it being discussed in any judgment. D Open Justice The Federal Court has made orders approving a settlement which are not accompanied by a judgment, and given judgments that contain very little detail as to the terms of the settlement and the reasons for approval. These circumstances are very much the exception but it is undesirable that they 127 See, eg, Storm Financial Settlement [2013] FCA 438 (14 May 2013) [9], [24] (Logan J). 128 See Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (27 August 2004) [7] (Crennan J); Williams v FAI Home Security Pty Ltd [No 4] (2000) 180 ALR 459, 463–4 [14]–[15] (Goldberg J). 129 See generally Dye v Commonwealth Securities Ltd [No 2] [2010] FCAFC 118 (14 September 2010) [121] (Marshall, Rares and Flick JJ): The principle of open justice operates on the premise that all the material placed in evi- dence before a court and on which, in open court, it is asked to act is open to public scru- tiny. That is because publicity itself has the purposes of both informing the public of how judicial power is exercised and ensuring that the courts are accountable for the use of that power entrusted to them. In relation to class actions specifically, see NAB Shareholder Settlement [2012] VSC 625 (19 December 2012) [5] (Pagone J): The need to balance the confidential expression of facts and views with the need for jus- tice to be seen and to be done openly is of particular significance in the case of class ac- tions where some members of the group, but not all, may have the ability to access the confidential information. The parties affected by a judicial decision, as well as the public

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