AxiCorp Financial Services Pty Ltd v CABC - [2025] FCA 144

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FCA 144
Decision Date: 4 March 2025

CaseChat Overview and Summary

AxiCorp Financial Services Pty Ltd sought orders for the suppression and confidentiality of information in proceedings before the Federal Court of Australia. The central dispute involved whether certain information should be kept confidential and suppressed to prevent prejudice to the proper administration of justice, and whether it was subject to legal professional privilege. The applicant claimed that the information was confidential and privileged, while the respondent contested these claims. The court was required to decide whether the suppression order under section 37AF of the Federal Court of Australia Act 1976 was necessary and whether the information should be rendered confidential under rule 2.32 of the Federal Court Rules 2011.

The court considered the necessity of suppressing the information to prevent prejudice to the proper administration of justice and the potential impact on other proceedings. It concluded that the information identifying the respondent should be deemed confidential, and the confidential information subject to legal professional privilege should be suppressed until a specified time. The suppression order would remain in effect until seven days after the conclusion of the first case management hearing in another proceeding, unless a similar order was made in that proceeding. The court also ordered that the respondent's name be used in the court file unless a pseudonym was allowed.

The court made several orders to manage the disclosure and confidentiality of the information. These included the filing of redacted versions of an affidavit, the suppression of confidential information, and the declaration of certain information as confidential. The court also set deadlines for the submission of draft procedural orders and directed the parties to confer on the costs of the proceeding. These orders were intended to balance the need for confidentiality with the principles of open justice and the proper administration of justice.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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