Benjamin v Cathay Pacific Airways Limited - [2025] FedCFamC2G 415

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Benjamin v Cathay Pacific Airways Limited [2025] FedCFamC2G 415

File number(s): SYG 468 of 2025

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 26 March 2025

Catchwords: PRACTICE AND PROCEDURE – Request by non-party for access to documents contained in court file where there has been no hearing, final or interlocutory, in the proceeding in relation to which the documents have been filed – where parties oppose access being granted to the non-party and apply for a suppression or non-publication order pursuant to s 230(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) in relation to the documents – whether s 230(1) of the FCFC Act applies where refusal to grant access to a document would not offend the open justice principle – whether order should be made pursuant to r 2.11(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) that the documents to which the non-party seeks access be confidential – order made that one of the documents be confidential.

Legislation:
Fair Work Act 2009 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 233, 254

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) rr 2.11, 21.01

Cases cited:
Asic v Rich [2002] NSWSC 198

eisa Limited v Damien Brady [2000] NSWSC 929

Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954

Hogan v Hinch [2011] HCA 4

John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512

Re Japara Holdings Pty Ltd [2010] VSC 361

Russell v Russell [1976] HCA 23

Saw v Seven Network (Operations) Ltd [2024] FCA 1210

Scott v Scott [1913] AC 417

Division: Fair Work

Number of paragraphs: 33

Date of last submission/s: 3 March 2025

Date of hearing: Decided on the papers

Place: Sydney

Solicitor for the Applicant: Ms R Sutton of Mills Oakley Lawyers

Solicitor for the Respondent: Ms G Rips of Workdynamic Australia

Non-Party Representative: Ms C Caulfield for Lawyerly

ORDERS

SYG 468 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DAVID BENJAMIN

Applicant

AND:
CATHAY PACIFIC AIRWAYS LIMITED

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

26 MARCH 2025

THE COURT ORDERS THAT:
1.Pursuant to r 2.11(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth), until further order of the Court, the Form 2 filed by the applicant be confidential.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to…

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] FedCFamC2G 415
Decision Date: 26 March 2025

CaseChat Overview and Summary

The case of Benjamin v Cathay Pacific Airways Limited involved a request by a non-party for access to documents contained in the court file, despite no hearing, final or interlocutory, having taken place in the proceeding. The parties, Cathay Pacific Airways Limited and Benjamin, were in dispute over the non-party's request. The Federal Circuit and Family Court of Australia was tasked with determining the legal issues surrounding this request.

The primary legal issues before the court were whether section 230(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) applied in circumstances where refusal to grant access to a document would not offend the open justice principle, and whether an order should be made pursuant to rule 2.11(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) that the documents to which the non-party sought access be confidential. The court was required to balance the right to access documents with the protection of confidential information and the principle of open justice.

The court found that section 230(1) of the FCFC Act applied in this case, as the refusal to grant access to a document would not necessarily violate the open justice principle. However, the court also found that the documents in question contained sensitive and confidential information, which warranted their protection. As a result, the court made an order pursuant to rule 2.11(3)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law Rules) 2021 (Cth) that one of the documents be kept confidential. The court carefully considered the interests of all parties involved and sought to balance the need for transparency with the protection of sensitive information.

In conclusion, the court granted the application for a suppression or non-publication order for one of the documents, ensuring that the sensitive information contained within it remained confidential. This decision highlights the importance of balancing the right to access documents with the need to protect confidential information and the principle of open justice in legal proceedings.

Orders