Appleroth v Ferrari Australasia Pty Limited (No 3)
[2021] FCA 627
•9 June 2021
FEDERAL COURT OF AUSTRALIA
Appleroth v Ferrari Australasia Pty Limited (No 3) [2021] FCA 627
File number: NSD 543 of 2020 Judgment of: FLICK J Date of judgment: 9 June 2021 Catchwords: PRACTICE AND PROCEDURE – interlocutory application by persons interested in the proceeding for extension of orders made by the docket Judge pursuant to ss 37AF(1), 37AI(1) and 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), including the prohibition of the publication of information tending to identify those persons
SUPPRESSION ORDERS – application that evidence filed in support of present application be declared confidential
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Cases cited: Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756
Appleroth v Ferrari Australasia Pty Limited (No 2) [2020] FCA 820
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 8 Date of hearing: 9 June 2021 Solicitor for the Applicant: Ms P Forster of Kennedys Law Counsel for the Respondents: The Respondents did not appear Counsel for the Interested Persons: Ms G R Rubagotti with Mr G Tsang Solicitor for the Interested Persons: Holmes Donnelly & Co ORDERS
NSD 543 of 2020 BETWEEN: HERBERT ANDREW APPLEROTH
Applicant
AND: FERRARI AUSTRALASIA PTY LIMITED (ACN 160 706 141)
First Respondent
FERRARI NV
Second Respondent
FERRARI SPA
Third Respondent
CNG20
First Interested Person
CNH20
Second Interested Person
ORDER MADE BY:
FLICK J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS THAT:
1.Orders 1 and 3 as made on 11 June 2020 be extended until 5:00pm on Friday 26 June 2021.
2.Until 5:00pm on Friday 26 June 2021 or further order, the affidavits filed in Court today of the:
(a)the First Interested Person; and
(b)Mr Troy Speirs,
are to be marked “confidential” and are not to be accessed from the Court’s records by any person without an order of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from Transcript)FLICK J:
Now before the Court as a duty matter is an Interlocutory Application seeking the extension of an order made by a Judge of this Court on 11 June 2020: Appleroth v Ferrari Australasia Pty Limited (No 2) [2020] FCA 820. That application is made by what the docket Judge described as “strangers to the proceeding”, being a mother and her son. An order is also sought to protect the confidentiality of the affidavit evidence filed in Court today.
The orders as first made in June 2020, but which are now sought to be extended, provided as follows:
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 concerned, in any way, with:
(i) the applicant in the substantive proceeding; or
(ii) the subject matter of the substantive proceeding,
is hereby prohibited.
…
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.
The variation of those Orders, which the mother and her son now seek, is to extend the Orders to 11 June 2027.
The Applicant and First Respondent to the substantive proceeding have been served with the Interlocutory Application. The Applicant in the substantive proceeding, Mr Herbert Appleroth, has also been provided with a copy of the affidavit evidence filed today. No submissions were advanced on his behalf opposing the orders now sought. The Respondents to the substantive proceeding did not appear.
Why the present application is made to the Court as a duty matter, rather than being heard by the Judge who heard the substantive proceeding, was not fully explained. It is nevertheless understood that the docket Judge was first approached to resolve the present application but was unavailable today to do so. In the absence of some reason to compel a different course, however, it is respectfully considered that an application to vary an order such as the present should preferably be made to – and resolved by – the docket Judge. It is that Judge who has far greater insight and familiarity with the totality of the allegations made in the substantive hearing, and far greater insight and familiarity with the evidence and reasons for first making the order: cf. Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 at 684. Although that case involved a question as to whether an order seeking a stay of a decision pending an application for special leave to appeal to the High Court should first be made to the trial Court, the following observations of Brennan J (as his Honour then was) equally demonstrate why an application of the present kind is best made to the docket Judge:
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court — the court in which the matter is pending and which is familiar with the matter —that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.
It is his Honour’s reference to the court having the greater “familiarity” with the matter which assumes relevance. In the present case, nothing is presently known as to the allegations made in the Statement of Claim which was apparently filed in the Court in the present proceeding, and nothing is known as to the content of any affidavit evidence that has been previously filed or sought to be filed with the Court: Appleroth v Ferrari Australasia Pty Ltd [2020] FCA 756. And nothing is known as to the circumstances in which Mr Appleroth, having made his allegations, then apparently decided to discontinue the proceeding. But all such matters would be known to the docket Judge. In the absence of any reference being made to the mother or her son in any document filed with the Court and available for public inspection, or any reference which would make their identity discernible, if that be the case, a question may arise as to whether s 37AF of the Federal Court of Australia Act1976 (Cth) provides an adequate source of power to make the order suppressing the “information” the subject of Order 1. In the absence of familiarity with such matters, it is difficult for a duty Judge to “second guess” the conclusion of the docket Judge – that conclusion being simply expressed as a state of satisfaction “that the orders that are sought are necessary in the sense contemplated by s 37AG(1)(c) of the FCA Act”: [2020] FCA 820 at [6].
But the application has been made to the Court and is now before it as a duty matter. And the Orders as first made expire on Friday of this week. The rights of the applicants, and the question as to whether the present application should have been made to and resolved by the docket Judge rather than the duty Judge, should not operate to the prejudice of the mother or her son.
So much as can be gleaned from the reasons provided by the docket Judge for first making the order continue to occasion concern as to whether a failure to now extend the Orders would occasion the very harm which the docket Judge sought to prevent. When first making the Orders, the docket Judge relevantly concluded that the then evidence disclosed “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.” The docket Judge then considered that an order for one year’s duration was appropriate but further contemplated that “[i]f, in a year’s time, there remains a basis for continuing orders, the applicants will be at liberty to apply for them”.
Thus in contemplation in June 2020 was the very prospect that some further extension may be warranted. The evidence as filed in Court today repeats the same concerns. It is sufficient for present purposes to note that the affidavit from the Clinical Psychologist filed in support of the Interlocutory Application includes the following expressions of opinion:
·the mother “indicated she is fearful of what will come next. She reports being constantly worried and preoccupied with court proceedings concerning extension of the current suppression order and the possibility of the media publishing both her and her son’s identity and circumstances as relate to the court proceedings if the suppression order is not extended. She indicated she worries about something happening to [the son] if something were to happen to herself”
·the mother “presents with extremely severe depression and stress with no change in her stress experience across the last 12 months and minimal change in her depressive experience during the last 12 months. Her level of anxiety has decreased somewhat across the last 12 months”;
·the mother’s “current level of psychiatric disturbance, confirmed through psychological testing, has been extremely severe and pervasive since her last psychological assessment in June 2020”; and
·any publication in the media “will be both detrimental and harmful to [the mother’s] mental health, as well as harmful to the wellbeing of [the son] in both the short and long term”.
Founded upon those professional opinions, and assuming there is power to have made the June 2020 Orders, it is considered that an extension of the Orders as first made is thus warranted. But not for the period of six years as sought in the Interlocutory Application. The extension now granted is for the limited purpose of enabling the mother and her son to make an application to the docket Judge to grant any such further extension as his Honour sees fit. It is the docket Judge who can best weight up the appropriateness of any further extension, and not a Duty Judge who has only had passing exposure to the factual issues involved in the substantive proceeding. Although it may readily be accepted, as Counsel for the mother and son quite properly submitted, that any extension should be of sufficient duration to permit the docket Judge to fix an appropriate hearing date, it may also be accepted that before the docket Judge any further hearing would not be of any great length.
THE ORDERS OF THE COURT ARE:
1.Orders 1 and 3 as made on 11 June 2020 be extended until 5:00pm on Friday 26 June 2021.
2.Until 5:00pm on Friday 26 June 2021 or further order, the affidavits filed in Court today of the:
(a)the First Interested Person; and
(b)Mr Troy Speirs,
are to be marked “confidential” and are not to be accessed from the Court’s records by any person without an order of the Court.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick. Associate:
Dated: 10 June 2021
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