Appleroth v Ferrari Australasia Pty Limited (No 4)
[2021] FCA 700
•24 June 2021
FEDERAL COURT OF AUSTRALIA
Appleroth v Ferrari Australasia Pty Limited (No 4) [2021] FCA 700
File number: NSD 543 of 2020 Judgment of: SNADEN J Date of judgment: 24 June 2021 Catchwords: PRACTICE AND PROCEDURE – interlocutory application by interested parties to the proceeding for orders pursuant to ss 37AF(1), 37AI(1) and 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 Legislation: Federal Court Act 1976 (Cth) – pt VAA – ss 37AG
Federal Court Rules (2011) (Cth) – r 2.32
Cases cited: Appleroth v Ferrari Australasia Pty Limited (No 2) [2020] FCA 820 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 6 Date of hearing: 24 June 2021 Solicitor for the Applicant: Ms P Forster of Kennedys Law Counsel for the Respondents: The respondents did not appear Counsel for the Others: Ms G R Rubagotti Solicitor for the Others: 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:
SNADEN J
DATE OF ORDER:
24 JUNE 2021
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 Monday, 26 June 2023 (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 interested persons:
(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 ground specified in s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).
3.Until 4pm on Monday, 26 June 2023 or further order, the affidavits of the first interested person dated 4 June 2020 and 9 June 2021 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.
4.The interlocutory application dated 7 June 2021 is otherwise dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(delivered ex tempore)SNADEN J:
On 11 June 2020, I made non-publication orders under pt VAA of the Federal Court Act 1976 (Cth). The circumstances that came to warrant those orders (hereafter, the “2020 Orders”) are described in the reasons that were published in support of them: Appleroth v Ferrari Australasia Pty Limited (No 2) [2020] FCA 820 (hereafter, “Appleroth”; Snaden J). I shall employ in these reasons the same terminology that I employed in those reasons.
By their terms, the 2020 Orders were to expire on Friday, 11 June 2021. A few days before that expiry, the mother’s solicitor indicated to my chambers an intention to seek that they be extended. An application was subsequently made but I was not able to hear it prior to 11 June 2021. Instead, it came before a duty judge, who granted a short extension of the 2020 Orders.
The mother and son press for a further extension of the 2020 Orders until 2027. None of the other parties sought to be heard.
Three affidavits were filed in support of the present application: one affirmed by the mother on 9 June 2021; and two by a clinical psychologist, Mr Troy Speirs (one dated 8 June 2021, the other dated 20 June 2021). Respectfully, a great deal (though not all) of the first of those three affidavits is comprised of inadmissible opinion. Of much greater assistance for present purposes is the expert evidence of Mr Speirs.
Mr Speirs’s evidence mirrors that of which I was seized in June 2020. For the same reasons as were identified then (Appleroth, [4]-[6]), it is appropriate—indeed necessary—to make orders in the nature of those that are now sought. Again, however, I will not make those orders for the duration that is sought. Mr Speirs’s evidence is that “[a]ny publication [of information identifying the mother as the other party to the Appleroth Relationship or the son as a child of that relationship] 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.” That reality, he opines, will likely endure “on a long-term basis”. No precise time-frame is identified in connection with that diagnosis (a point that I note without intending criticism). For reasons identical to those that I identified in 2020 (Appleroth, [7]-[8]), I am not prepared to (and, indeed, cannot) make orders that will endure for longer than might be necessary. In the circumstances, I have determined that orders spanning a period of two years are appropriate.
The mother also seeks orders under r 2.32(3) of the Federal Court Rules (2011) (Cth) to have the three most recent affidavits declared confidential, such that public access to them should be restricted. She also seeks to extend the equivalent order made in 2020 in relation to some of the evidence that was then before the court. Again, the circumstances that now present mirror those that presented in June 2020; and so too will the orders that I will make. I will restrict public access to the mother’s most recent affidavit; but not to the affidavits (and reports) of Mr Speirs. I will also extend the restriction that currently exists in respect of the affidavit material relied upon in 2020. Those restrictions (both on the 2020 evidence and the more recent material) will also endure for two years or until further order. I will make those orders for the same reasons that I made the equivalent order in 2020: Appleroth, [9]-[11] (Snaden J).
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 24 June 2021
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