Appleroth v Ferrari Australasia Pty Limited (No 2)
[2020] FCA 820
•11 June 2020
FEDERAL COURT OF AUSTRALIA
Appleroth v Ferrari Australasia Pty Limited (No 2) [2020] FCA 820
File number: NSD 543 of 2020 Judge: SNADEN J Date of judgment: 11 June 2020 Date of publication of reasons: 12 June 2020 Catchwords: PRACTICE AND PROCEDURE – interlocutory application by interested parties to the proceeding for orders pursuant to s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) – application under rule 2.32 of the Federal Court Rules 2011 (Cth) that evidence filed in support of application be declared confidential – application for prohibition of the publication of information tending to identity interested parties – consideration of open justice principles – application allowed in part Legislation: Federal Court Act 1976 (Cth) pt VAA; ss 37AE, 37AF and 37AG
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: Appleroth v FerrariAustralasia Pty Limited [2020] FCA 756 Date of hearing: 11 June 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondents: The Respondents did not appear Counsel for the Interested Persons: Mr M Richardson Solicitor for the Interested Persons: Holmes Donnelly & Co ORDERS
NSD 543 of 2020 BETWEEN: HERBERT ANDREW APPLEROTH
Applicant
AND: FERRARI AUSTRALASIA LIMITED (ACN 160 706 141)
First Respondent
FERRARI N.V.
Second Respondent
FERRARI S.P.A.
Third Respondent
CNG20
First Interested Person
CNH20
Second Interested Person
JUDGE:
SNADEN J
DATE OF ORDER:
11 JUNE 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1) and 37AI(1) of the Federal Court of Australia Act 1976 (Cth)—and until further order or 4pm on Friday, 11 June 2021 (whichever occurs first)—the publication of information that identifies or tends to identify, including by means of identification of any position of employment held or formerly held with any of the respondent companies, either of the applicants to the interlocutory application filed on 4 June 2020:
(a)by name; and
(b)as being connected, in any way, with:
(i)the applicant in the substantive proceeding; or
(ii)the subject matter of the substantive proceeding,
is hereby prohibited.
2.Order 1 is made on the grounds specified in s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).
3.Until 4pm on Friday, 11 June 2021 or further order, the affidavit of the first applicant to the interlocutory application filed on 4 June 2020 is to be marked “confidential” and is not to be accessed from the court’s records by any person without an order of the court.
4.The interlocutory application filed herein on 4 June 2020 is otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
Before the court is an interlocutory application filed by strangers to the proceeding for orders under pt VAA of the Federal Court Act 1976 (Cth) (hereafter, the “FCA Act”) to ban the publication of information that might tend to identify them as being associated with the subject matter of the substantive proceeding.
In Appleroth v FerrariAustralasia Pty Limited [2020] FCA 756 (Snaden J), I summarised the nature of the substantive proceeding. That proceeding is no longer extant but it has generated a not-insignificant volume of media attention, much of which has centred upon a relationship in which Mr Appleroth was involved during his former employment with the respondent group of companies. The first applicant in the present interlocutory application is the other party to that relationship (which I will refer to, hereafter, as the “Appleroth Relationship”). The second applicant is her and Mr Appleroth’s infant son. I shall refer to the applicants, hereafter and respectively, as the mother and the son.
The interlocutory application came before the court in the afternoon of Thursday, 4 June 2020. It was supported by an affidavit made by the mother on that day. In that affidavit, the mother deposed as to her precarious emotional state, which she claimed would be adversely affected in the event that she were publicly identified as the other party to the Appleroth Relationship. The application was brought on for hearing with some haste. At its conclusion, I made an interim order prohibiting the publication of information that would serve to identify, or tend to identify the mother as the other party to the Appleroth Relationship. I considered that doing so would give the mother an opportunity to obtain more fulsome, expert evidence about her emotional or psychiatric state and the potential impact upon it (or upon the son) of her being publicly identified as the other party to the Appleroth Relationship. That interim order was set to expire at 4pm on Thursday, 11 June 2020. The hearing of the interlocutory application was adjourned until 10:15am on that day.
On Wednesday, 10 June 2020, the mother filed an affidavit made on that day by a clinical psychologist, Mr Troy Speirs. Attached to that affidavit was a brief psychological report that Mr Speirs had prepared in relation to the mother (or principally in relation to the mother) and the impact that her public exposure as the other party to the Appleroth Relationship might potentially visit upon her. The key aspects of that report are as follows, namely that:
(1)the mother has been engaged in psychological treatment since December 2017 in response to “…severe and persistent mood disturbance, comprising both depressive and anxious symptoms characteristic of Major Depressive Disorder”;
(2)the mother demonstrates “…both depressed and highly anxious mood”;
(3)the son has “…developed behaviours suggestive of an anxious attachment to his mother”;
(4)testing of the mother reveals that she has (emphasis original) “…extremely severe and broad ranging psychiatric disturbance with extreme symptom intensity when compared to a psychiatric outpatient population and severe symptom intensity when compared to a psychiatric inpatient population”;
(5)the mother’s anxiety over the last six months has “…escalated to an extremely severe level”;
(6)the mother’s “…psychiatric disturbance appears to [be] characterised by unrelenting obsessive thoughts of a frightening and fearful nature that have exacerbated her paranoid ideation, depression and the emergence of psychotic experience that increases her vulnerability to having a nervous or psychotic breakdown”;
(7)the inclusion of the names of the mother or the son in any media content published in connection with the substantive proceeding (such that the mother is publicly identified as the other party to the Appleroth Relationship) “…will be detrimental to [the mother’s] mental health and harmful to the wellbeing of [the son] in both the short and long term”.
In considering whether or not to make a non-publication order under s 37AF(1) of the FCA Act, the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE. The foundational importance of the court’s processes playing out in public cannot be overstated. The making of a non-publication order is unusual and is not a step that should lightly be entertained.
In the present case, the application proceeds upon the contention that the orders that are sought are necessary to protect the safety of the mother and her son: FCA Act, s 37AG(1)(c). The evidence before the court tends to support that conclusion. This is not a case in which an applicant seeks protection under pt VAA of the FCA Act in order to avoid mere distress or humiliation. The evidence discloses that the applicants’—and, in particular, the mother’s—mental health is poor, and that the public exposure of their identities (and connection to the substantive proceeding) will worsen it. I am satisfied that the orders that are sought are necessary in the sense contemplated by s 37AG(1)(c) of the FCA Act.
The applicants submitted that the order that is sought should remain in effect indefinitely or “until further order”. I do not consider that that is appropriate. An order of the kind presently under contemplation should remain in force only for so long as is reasonably necessary to protect against the vice that it is designed to overcome—in this case, the harm that will befall the applicants in the event of public identification. Faced with that reality, counsel for the applicants submitted that non-publication orders should remain in place for a period of five years.
I consider that 12 months is more appropriate. The mother has been receiving treatment since December 2017. It is sincerely to be hoped that that treatment succeeds. No doubt it shall forever be the case that public disclosure of the applicants’ identities (and connection to the substantive proceeding) will be a potential source of embarrassment or distress for them; but it should be assumed that that embarrassment or distress will eventually fall short of occasioning the kind of harm that is presently in prospect. The non-publication orders that I will make should expire at that point. If, in a year’s time, there remains a basis for continuing orders, the applicants will be at liberty to apply for them.
In addition to the orders that I will make under pt VAA of the FCA Act, the applicants sought orders under r 2.32(3) of the Federal Court Rules 2011 (Cth) (hereafter, the “FCA Rules”) that the two affidavits filed in support of the interlocutory application (and referred to above) be declared confidential, such that public access to it should be restricted.
Following the hearing of 4 June 2020, I made an order under r 2.32(3) of the FCA Rules effectively prohibiting public access to the mother’s 4 June 2020 affidavit. In light of (and for much the same reasons that underwrite the making of) the order that I intend to make under pt VAA of the FCA Act, I consider that it is appropriate that that prohibition remain in place. I will make an order to that effect for the same duration—one year—as will apply to the order made under pt VAA of the FCA Act.
I do not consider that it is necessary to make an equivalent order in respect of Mr Speirs’s affidavit. Mr Speirs’s affidavit largely serves as the explanation for the non-publication order that I intend to make. I consider that it is important that those who are affected by that order (if there is any such person) should have the means of understanding why I have considered that it was necessary.
As an unfortunate consequence of the times, the hearings of 4 and 11 June 2020 were conducted by video conference. Several journalists expressed an interest in (and were provided the means of) attending the hearing on 4 June 2020. So far as the court is aware, only one media outlet—Fairfax Media Publications Pty Ltd—actually did so. It made submissions through its counsel but did not, on that occasion, oppose the interim orders that were made. No media outlets sought to be heard at the hearing of 11 June 2020. The court is aware that at least one journalist sought (and was duly given) dial-in details for that hearing. The absence of media representation at the 11 June 2020 hearing likely reflects media disinterest in the subject matter of the present interlocutory proceeding. Nonetheless, I am conscious of the possibility that it reflects some difficulty in meeting the challenges that remote hearings inevitably present. With that in mind, I wish to make clear—perhaps clearer than it already should be—that I will entertain with appropriate haste any application that is brought to revisit the orders that I propose to make. The principle of open justice requires nothing less.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate:
Dated: 12 June 2020
2