AxiCorp Financial Services Pty Ltd v CABC
[2025] FCA 144
•4 March 2025
FEDERAL COURT OF AUSTRALIA
AxiCorp Financial Services Pty Ltd v CABC [2025] FCA 144
File number: NSD 134 of 2025 Judgment of: BROMWICH J Date of judgment: 4 March 2025 Catchwords: PRACTICE AND PROCEDURE – suppression order – confidentiality order – effect of suppression orders on other proceedings – whether suppression order under s 37AF of the Federal Court Act 1976 (Cth) is necessary to prevent prejudice to the proper administration of justice – whether information should be rendered confidential pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) – where applicant claims that information is subject to a claim of legal professional privilege – HELD: information identifying of the respondent to be confidential pursuant to r 2.32 and confidential information subject to legal professional privilege to be suppressed pursuant to s 37AF until 7 days after the first case management hearing in NSD189/2025 unless similar orders made in that proceeding Legislation: Corporations Act 2001 (Cth) ss 1317AAE and 1317AG
Federal Court Act 1967 (Cth) ss 37AE, 37AF(1), 37AG(1)(a), 37AI
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: Rogan v White [2024] FCA 1163 Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Date of hearing: 25 February 2025 Number of paragraphs: 21 Counsel for the Applicant: Mr D Ward Solicitor for the Applicant: Norton Rose Fulbright Counsel for the Respondent: The respondent did not appear Solicitor for the Intervener: Ms L Alick ORDERS
NSD 134 of 2025 BETWEEN: AXICORP FINANCIAL SERVICES PTY LTD
Applicant
AND: CABC
Respondent
FAIRFAX MEDIA PUBLICATIONS PTY LTD
Intervener
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
4 MARCH 2025
IN THESE ORDERS:
Confidential Information means information contained in the respondent’s ‘Form F8 – General protections application filed on 5 December 2024 (the FWC Application) insofar as that information is highlighted in the copy of the FWC Application that is Annexure JPB-14 to the affidavit of Jack Pembroke-Birss affirmed 12 February 2025, excluding the last sentence of [68] of the Schedule to the FWC Application; and
Identification Information means information contained in the FWC Application that has been redacted that is additional to the information that is highlighted (excluding all words in the last sentence of [68] except for the name of CABC), being Annexure JPB-14 to the redacted copy of the affidavit of Jack Pembroke-Birss affirmed 12 February 2025.
THE COURT ORDERS THAT:
1.By 10 March 2025, the applicant file two versions of the affidavit of Jack Pembroke-Birss affirmed 12 February 2025 with redactions applied:
(a)to only the Confidential Information; and
(b)to both the Confidential Information and the Identification Information.
2.Subject to order 3, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Confidential Information must not be published or otherwise disclosed, except to the applicant and its legal representatives, the respondent and their legal representatives, the Court and Court staff, or as otherwise required by law.
3.Order 2 remain in force until 4.00pm 7 days after the conclusion of proceeding NSD189/2025, subject to any prior contrary order.
4.The Identification Information is confidential in this proceeding for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth).
5.Order 4 remain in force until 4.00 pm 7 days after the first case management hearing in NSD189/2025, presently listed to take place before a registrar on 21 March 2025, unless a prior order is made in that proceeding to suppress or make confidential information that tends to identify CABC, in which case the duration of that order apply.
6.Unless an order to allow CABC to use a pseudonym is made by 4.00 pm 7 days after the first case management hearing in NSD189/2025, the court file in this proceeding be amended to reflect the name of CABC.
7.The applicant and respondent confer and, by 10 March 2025, or such further time as may be allowed, provide agreed or competing draft procedural orders for the dealing with the applicant’s oral application for costs of this proceeding to be paid by the respondent to the Associate to Justice Bromwich.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
The applicant in this proceeding, AxiCorp Financial Services Pty Ltd, was the subject of a general protections application brought in the Fair Work Commission on 5 December 2024 by a former employee (the FWC Application). The former employee is referred to in this proceeding under the pseudonym CABC following an order made to that effect by Perry J on 4 February 2025. The proceedings before the Commission were not able to be conciliated and therefore resulted in a certificate by the Commission being issued which facilitates the bringing of a proceeding in this Court.
AxiCorp was concerned that in the gap between the termination of the proceeding in the Commission, and the commencement of a proceeding in this Court by CABC, there may be some disclosure of confidential information by CABC or someone acting on his behalf. The basis for that concern was that CABC, in bringing the FWC Application, had made reference in the Schedule to that application to matters that were claimed by AxiCorp to be the subject of legal professional privilege, which was therefore confidential. AxiCorp principally sought an injunction to restrain CABC from disseminating that asserted confidential information, but also sought collateral relief as detailed below.
The matter was first brought before Perry J as duty judge on 4 February 2025 as an urgent application before the start of the proceeding, with AxiCorp at that stage being the prospective applicant and CABC being the prospective respondent. Her Honour made orders as described below after hours on the day that application was filed.
Justice Perry issued the sought injunction restraining CABC and any of the agents of CABC from disclosing or otherwise publishing AxiCorp’s Confidential Information to any third party, other than CABC’s legal representatives, AxiCorp and its legal representatives, the Court and Court staff. The Confidential Information was defined in the Schedule to that order as information highlighted in a copy of the Schedule to the FWC Application, as annexed to an affidavit of the solicitor for AxiCorp, Mr Jack Pembroke-Birss, affirmed on 4 February 2025.
AxiCorp, in seeking that injunction, having relied on the affidavit of Mr Pembroke-Birss, which included as an annexure the FWC Application, collaterally sought a suppression order over that Confidential Information contained therein. Justice Perry made an interim order to that effect under s 37AI of the Federal Court of Australia Act 1976 (Cth) to prevent the identity of CABC or any information likely to lead to the identification of CABC being published or disclosed to any person or entity except AxiCorp and its legal representatives, CABC and CABC’s legal representatives, the Court and Court staff, until further order or until first directions in a new proceeding once it had been commenced by CABC. That new proceeding was commenced on 11 February 2025 by CABC, and carries the matter number NSD189/2025.
The power to make an interim suppression order under s 37AF requires the substantive application, which is one made under s 37AF of the Act, to be determined as a matter of urgency, and accordingly was listed to be heard by me today as the duty judge. That has been the purpose of the hearing today. I have had before me AxiCorp’s originating application filed and dated 5 February 2025, which has been replaced by an amended originating application for which leave to be filed was sought and granted today. I received that amended originating application in paper form pending its electronic filing.
The major difference between the amended originating application and the originating application it replaces is the correction of a typographical error in prayer 3, and the definition of Confidential Information is amended so that instead of referring to information highlighted in a copy of the FWC Application included in Mr Pembroke-Birss’ affidavit affirmed 4 February 2025, it now refers to information highlighted in a copy of the same document as included in an affidavit affirmed by Mr Pembroke-Birss on 12 February 2025. The difference in the highlighting is that AxiCorp slightly narrowed the scope of its legal professional privilege claims. At the hearing, AxiCorp also did not maintain its legal professional privilege claim in respect of the last sentence of [68] of the Schedule to the FWC Application.
Also provided by AxiCorp was a filed redacted version of Mr Pembroke-Birss’ 12 February 2025 affidavit with the same annexures, including the FWC Application with redactions applied to passages covering both the legal professional privilege claims and a further claim made for the benefit of the respondent, reflecting the CABC’s allegations that characterise CABC as a whistleblower. The concept of a whistleblower is relevantly contained within Pt 9.4AAA of the Corporations Act 2001 (Cth) and, in particular, s 1317AAE, which deals with confidentiality of a whistleblower's identity, and s 1317AG, which provides that identifying information of a whistleblower is not to be required to be disclosed or produced to courts or tribunals. The purpose of those provisions of the Corporations Act is essentially to protect a whistleblower from being outed, so to speak, in aid of protecting the practice of whistleblowing.
Intervening in this application today has been Fairfax Media Publications Pty Ltd which is, amongst other things, the publisher of the Australian Financial Review newspaper which, through that Fairfax corporate entity, was an applicant for access to, amongst other things, the unredacted affidavit of Mr Pembroke-Birss dated 4 February 2025. The respondent to this proceeding, CABC — now, the applicant to the new proceeding brought against the AxiCorp, NSD189/2025 — has filed a submitting appearance save as to costs in relation to this proceeding and, therefore, in relation to both the restraining order that has been made and in relation to the interim suppression order that has been made and, necessarily, in relation to the final suppression order that is now being sought under s 37AF.
Counsel for AxiCorp has taken me through the details of the claim for legal professional privilege in four categories at some length and in some detail as to quite a number of paragraphs in Schedule to the FWC Application, which contain direct references to the giving or seeking of legal advice; communications for the dominant purpose of seeking or receiving that advice; legal advice given by other lawyers; and instructions given to other lawyers.
In relation to the claims of legal professional privilege in the four categories that were identified, I am satisfied that either the claim is soundly made without a serious question of doubting it or because it falls within a lower threshold, but is sufficient to meet being necessary to prevent prejudice to the proper administration of justice. As to the latter, as Jackman J observed in Rogan v White [2024] FCA 1163, after upholding a direct claim for legal professional privilege:
[6] As to the second category of evidence, this evidence concerns a conversation between Ms Rogan and Mr Betar over which Mr White foreshadows that he will claim without prejudice privilege on the basis that the communications were made as part of a genuine attempt to resolve the proceedings. Again, a counterargument has been foreshadowed on the part of Ms Rogan to the effect that the privilege will not protect communications which reflect misconduct. It appears to me that it is reasonably arguable that the evidence which is sought to be made the subject of the suppression order will be rejected on the ground of without prejudice privilege, although I note again that there is a tenable argument against that proposition.
[7] In my view, the proper administration of justice requires that there not at this stage be disclosure of evidence which may well, in due course, be ruled inadmissible on the ground of without prejudice privilege. Again, the doctrine of without prejudice privilege enjoys a paramountcy to other imperatives as to trials being conducted with the benefit of all available documentary and other evidence and paramountcy to the general need for open justice. I propose again that the order expire at 4.15 pm on the first day of the final hearing in order to give the trial judge a sufficient opportunity to rule on the objection.
As Jackman J observed, there may be circumstances in which the proper administration of justice requires that there not be disclosure of material, not necessarily because a claim of privilege — in this case, legal professional privilege, but in that case, without prejudice privilege — will necessarily ultimately be successful, but that at least there is a reasonable argument for it and, if it is not protected at this stage, the benefit of the privilege may be lost down the track.
There is a further category of information that AxiCorp seeks to have suppressed that goes beyond legal professional privilege, although has a crossover with it, dealing with information that is not privileged but is of a kind that does meet the threshold in section 37AG(1)(a) which is the grounds for making a suppression order, being that the order is necessary to prevent prejudice to the proper administration of justice. The basis for that is a well-identified one which is to do with someone not being impeded from bringing a proceeding because of confidential information being disclosed. That is a difficult threshold to meet, but I am satisfied that it is at least reasonably arguable in relation to [32] of the Schedule to the FWC Application to which it relates.
It may be that a docket judge dealing with the new proceeding (NSD189/2025) may form a different view about legal professional privilege with the benefit of a greater amount of time but also a wider range of information as to whether or not that privilege claim is sustained. For present purposes, however, I am satisfied that it is sufficiently arguable for some of the paragraphs identified, and clearly available in relation to others, so as to warrant the grant of the suppression order that has been sought. The test of necessity has been established.
A separate category, as I indicated, was information that could identify CABC, due to his potential status as a whistleblower. I have looked through the various passages for which the applicant has proposed redaction, recognising that it was not for the applicant to be an advocate for that and CABC, without criticism, elected not to appear. I have a greater measure of hesitation in relation to that.
At the time of the hearing and of giving these reasons ex tempore, given CABC has apparently expressed a desire (without any argument or explanation) to maintain confidentiality of his identity as a whistleblower, the precautionary approach which fits within the rubric of preventing prejudice to the proper administration of justice, and the public interest standing behind whistleblower identification not being allowed to take place, was such that the suppression order should be extended to that information as well. However, with the benefit of further reflection, I consider that is going too far on the limited information available to me. I will therefore limit the protection to an order keeping that identifying information confidential for the purposes of until 4.00 pm 7 days after the day of the first case management hearing in the new proceed brought by CABC, presently before a registrar on Friday, 21 March 2025. Prior to that time, CABC will have to consider whether to apply for a suppression order, or other relief, in relation to maintain confidentiality as to identity. At the same time, provision must be made for the use of the CABC pseudonym in this proceeding to cease, unless an order is made for its use in proceeding NSD189/2025. That proceeding has been commenced using the pseudonym without any supporting order.
An argument was valiantly advanced by counsel for AxiCorp that an order for suppression under s 37AF(1) did not just apply to the proceeding in which it was granted but applied to like information in another proceeding – relevantly, here, the proceeding now brought by CABC. I am not satisfied that that is so, at least automatically. I think the ambit of s 37AF, to be read with the safeguarding of the public interest in open justice set out in s 37AE, is such that a suppression order made in one proceeding ought not, as a matter of some automatic process, be carried forward to another proceeding or even necessarily an appeal proceeding.
The assessment of what is necessary has to be tied to the particular proceeding in which it is brought. That is not to say that a determination of privilege in this proceeding may not readily carry forward to a like claim being made in the other proceeding and, in this case, arising out of much the same subject matter. It has been proposed in the course of discussion that Axicorp and CABC may be able to have a discussion and see if they can reach agreement as to an appropriate form of a like suppression order in relation to the new proceeding. I think that is a good course and, depending on whether it is me or someone else who is dealing with that aspect of the new proceeding rather than the substantive aspect of the new proceeding, I think that is a course to be commended.
I should hasten to add, though, that agreement on the ambit of the coverage of legal professional privilege in this proceeding arising out of what is contained in the FWC Application carrying over to much the same sort of subject matter in the new proceeding does not carry forward in the same logical way to the whistleblower aspect. It may be that CABC will not seek the anonymity in light of bringing and seeking relief in that new proceeding. It will have to wait to see the course that is to be adopted. I, for one, would need some convincing that when someone brings a court proceeding and is seeking to obtain rights and seeking to rely in part upon their status as a whistleblower, they may maintain their claim for anonymity. That is not to say I prejudge the question, but I am highlighting the issue or possible problem.
The conclusion I now reach is therefore that the suppression order in relation to the information subject to its legal professional privilege claim, excluding that contained in the last sentence of [68] of the Schedule to FWC Application, should be made but noting the limitation to this proceeding that I have identified.
AxiCorp seeks its costs. CABC has filed a submitting notice but seeks to be heard on the question of costs. I make orders that the parties provide agreed or competing procedural orders for the disposition of that question.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 4 March 2025