When Silence Becomes a Legal Right
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Published: 11 November 2025 | Reviewed: 5 December 2025
(3-minute read)
The structural lesson from
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1
A court cannot force someone to speak,
even if their silence makes a class action harder to run.
This single structural rule is what changed the outcome in
Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1
What Happened
A shareholder class action alleged that Crown failed to warn investors about the dangers of its China operations. Sixteen Crown employees had been arrested and later convicted in China. Their knowledge of what Crown knew, and when it knew it, was central to the case.
But each employee had signed confidentiality obligations, first in their employment contracts, then again in termination deeds. When the plaintiff’s lawyers attempted to speak with those former employees before trial, the confidentiality clauses stood in the way.
So the plaintiff asked the Federal Court for an unprecedented order: to “relieve” all former employees of their contractual confidentiality obligations for the limited purpose of assisting with evidence preparation.
A judge granted the order.
Crown appealed.
What the Full Court Decided
The Full Court overturned the ruling.
Three judges, Chief Justice Allsop, Justice White and Justice Lee, held that the primary judge had made a fundamental legal error. Confidentiality is a legal right. It cannot be suspended simply for case-management convenience.
The Court drew a bright structural line:
A confidentiality clause remains enforceable unless a recognised public policy, such as fraud, illegality, or obstruction of justice, renders it void.
Courts cannot “relieve” people of private contractual obligations just because disclosure might assist litigation preparation.
Pre-trial efficiency, no matter how helpful, is not a legal basis to modify a valid contract.
If confidentiality is suspected to conceal wrongdoing, the proper remedy is to challenge enforceability directly, not bypass it.
The Court emphasised the rule of law: efficient case management cannot override substantive legal rights.
Why This Judgment Matters
Many Australians assume courts can “lift confidentiality” whenever fairness seems to require it. Zantran makes the opposite clear.
The structural lessons are universal:
Confidentiality survives unless proved unlawful.
Case management cannot rewrite private contracts.
There are proper legal tools, subpoenas, discovery, preliminary discovery, and declaratory proceedings, to test whether a confidentiality obligation should stand.
Courts must not distort procedural powers into authority to alter substantive rights.
This protects both sides: information is not suppressed unlawfully, but neither is private agreement dissolved for convenience.
What Australians Can Learn
This case is not about gambling, China or class actions. It is about structure:
Who decides what evidence may be obtained, and on what grounds?
The decision shows how quickly fairness can be compromised when boundaries blur:
If courts could suspend contracts for convenience, private rights would become unstable.
If contractual silence could be overridden without proper proof, confidentiality protections would become meaningless.
If efficiency became the test, legal rights would shift with circumstance.
The Full Court restored the principle: fairness flows from discipline, not shortcuts.
The Structural Fix
This judgment belongs to Advocacy Boundaries & Independence, the Clean Law Client Protection Principle that ensures no role is expanded for convenience, and no party’s rights are overridden by haste.
Learn how this structural safeguard works:
Advocacy Boundaries & Independence
The Rule That Protects Us All
The message of Zantran is stark: the justice system cannot trade principle for speed. Silence may frustrate efficiency, but the legality of that silence cannot be bypassed. It must be assessed properly, through the right procedures, at the right time.
That is why boundaries matter, in courts, and in legal practice. When roles, powers and decisions stay structurally separate, fairness remains stable.
Justice is not achieved by making the process easier. It is achieved by keeping the foundation clean.
Read Crown Resorts Ltd v Zantran Pty Ltd [2020] FCAFC 1
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
