Appleroth v Ferrari Australasia Pty Limited (No 5)
[2023] FCA 744
•3 July 2023
FEDERAL COURT OF AUSTRALIA
Appleroth v Ferrari Australasia Pty Limited (No 5) [2023] FCA 744
File number: NSD 543 of 2020 Judgment of: SNADEN J Date of judgment: 3 July 2023 Date of publication of reasons: 4 July 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application by interested parties to the proceedings for orders pursuant to ss 37AF(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 identify interested parties – consideration of open justice principles Legislation: Federal Court of Australia Act 1976 (Cth) - pt VAA - ss 37AF, 37AG
Federal Court Rules (2011) (Cth) - r 2.32
Cases cited: Appleroth v Ferrari Australasia Pty Ltd (No 4) [2021] FCA 700 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 7 Date of hearing: 3 July 2023 Counsel for the Applicant: The applicant did not appear Counsel for the Respondents: The respondent did not appear Counsel for the Others: Ms G R Rubagotti ORDERS
NSD 543 of 2020 BETWEEN: HERBERT ANDREW APPLEROTH
Applicant
AND: FERRARI AUSTRALASIA PTY LIMITED
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:
3 JULY 2023
THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until further order or 4pm on Thursday, 3 July 2025 (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 Thursday, 3 July 2025 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.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Ex tempore
(Revised from transcript)SNADEN J:
On 24 June 2021, I made non-publication orders under pt VAA of the Federal Court of Australia Act 1976 (Cth) (“the Act”). Reasons were published in connection with them (Appleroth v Ferrari Australasia Pty Ltd (No 4) [2021] FCA 700 (hereafter, “the 2021 Decision”; Snaden J)); and what follows assumes a measure of familiarity with those reasons. I will employ the same phraseology as was employed in them.
By their terms, the orders that were made on 24 June 2021 (“the 2021 Orders”) were to expire on Monday, 26 June 2023. On that day, solicitors engaged by the first and second interested persons, Holmes Donnelly & Co Solicitors, filed an application to have them extended. That application was supported by a solicitor’s affidavit, which indicated an intention to commission a psychological assessment of the kind upon the strength of which the 2021 Orders were made. Unable to address the question of extension immediately, I made orders on 26 June 2023 under s 37AI(1) of the Act to extend by one week the operation of the 2021 Orders. The question of further extension under s 37AF of the Act was listed for hearing on Monday, 3 July 2023.
On Friday, 30 June 2023, Holmes, Donnelly & Co Solicitors filed an affidavit affirmed on that day by a clinical psychologist, Mr Troy Speirs. Mr Speirs also gave affidavit evidence in 2021. As it did then, Mr Speirs’s evidence now is directed to the states of mental health of the interested persons and the adverse impacts that might be wrought upon them by media exposure of their connection to the parties and the circumstances that were, if only briefly, the subject of the substantive application herein.
The application to extend the 2021 Orders was not opposed. For reasons equivalent to those that obtained in 2021 (see the 2021 Decision, [5]), it is appropriate—indeed necessary—to make orders as sought under s 37AF(1) of the Act. Mr Speirs’s evidence reveals that his assessment now is the same as it was in 2021 (and indeed, in 2020, when the question first arose): namely, that any public identification of the interested persons in connection with the events and circumstances that were the subject of the substantive application “…will be both detrimental and harmful to [the first interested person]’s mental health, as well as harmful to the wellbeing of [the second interested person]”.
Mr Speirs opines that potential media exposure should be suppressed “on a long-term basis”. The interested persons pressed for orders on that basis or, alternatively, for orders that would endure for not less than five years. As in 2021, I am not prepared—and, indeed, it is not appropriate—to make indefinite orders. Likewise, I consider that orders that extend for five years would not strike an appropriate balance between the legitimate (and necessary) protection of the interested persons (on the one hand) and the interests of open justice (on the other). For reasons equivalent to those identified in 2021 (see the 2021 Decision, [5]), I will limit the duration of the orders that I intend to make to a further two-year period.
Although not determinative on this occasion, I should record some hesitation in granting the relief for which the interested persons move. The events of the substantive application (to which, it must be recalled, the interested persons were not party) are now many years old. At the time, they were the subject of media interest; but there is reason to doubt that such interest as there was then remains now. Indeed, one might be forgiven for thinking that any current media interest in the circumstances that presented when the matter was first commenced, or in the connection to them that the interested parties share, arises merely because the matter has again found its way into the court’s daily hearings list. Regardless, there remains some prospect of media interest—indeed, the court was made aware of media inquiries concerning the hearing of Monday, 3 July 2023—and the consequences of media exposure in the circumstances are such as to warrant the orders that I will make.
The first interested person also seeks orders under r 2.32(3) of the Federal Court Rules (2011) (Cth) to maintain the confidentiality of the two affidavits affirmed to date by the first interested person (that is, the affidavits so affirmed herein on 4 June 2020 and 9 June 2021). Such orders were made in 2021 and the reasons that warranted them then (see the 2021 Decision, [6]) continue to warrant them now. The restriction that currently exists in respect of those affidavits will, subject to further order, also endure for a further two years.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 4 July 2023
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