Benjamin v Cathay Pacific Airways Limited
[2025] FedCFamC2G 415
•26 March 2025
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 the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 24 February 2025 Ms Fredenburgh, a journalist associated with the publication known as “Lawyerly”, lodged with the Court Registry a completed form titled “Request by non-party for access to Court documents (General Federal Law and/or Migration)” (Non-Party Access Request) requesting access to “unrestricted documents” filed in this proceeding. Those documents are an application and a Form 2 seeking relief under the Fair Work Act 2009 (Cth). Ms Fredenburgh lodged the Non-Party Access Request pursuant to r 2.11(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules), which provides:
A person who is not a party may inspect the following documents in a proceeding in the appropriate registry:
(a) an application starting the proceeding or a cross‑claim;
(b) a response or reply;
(c) a notice of address for service;
(d) a pleading or particulars of a pleading or similar document;
(e) a statement of agreed facts or an agreed statement of facts;
(f) an application in a proceeding;
(g) a judgment or an order of the Court;
(h) a notice of discontinuance;
(i) a notice of change of lawyer;
(j) a notice of withdrawal;
(k) reasons for judgment;
(l) a transcript of a hearing heard in open court.
Subrule 2.11(2), however, is subject to r 2.11(3), which provides:
. . . a person who is not a party is not entitled to inspect a document if:
(a) the Court or a Registrar has ordered the document be confidential; or
(b)the person is not entitled to inspect the document because of a suppression order or non‑publication order by the Court.
After the Non-Party Access Request was brought to my attention, I authorised my Associate to send, and on 24 February 2025 my Associate did send, the following email to the applicant’s lawyer and to Ms Fredenburgh:
The Court has received a “non-party access request” for unrestricted documents filed in this matter (attached).
His Honour proposes not to allow access until all parties have had an opportunity to inform the court whether they have any objection to such access being granted and, if so, the ground on which they have any such objection.
His Honour requests the applicant immediately provide a copy of this email to the respondent’s email address, and invites the parties to make submissions, by 4.00 pm on 27 February 2025, by email on whether they object to non-party access being granted.
If the parties do not provide any submissions by 4.00 pm on 27 February 2025 his Honour will grant the request for non-party access.
The applicant’s lawyer forwarded the email to the respondent’s lawyer and, on 25 February 2025, both the applicant’s and the respondent’s lawyers informed my Associate that the applicant and the respondent objected to my granting the Non-Party Access Request. Moreover, the applicant and respondent have applied, purportedly pursuant to s 230(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), for a suppression or non-publication order prohibiting or restricting the publication or other disclosure of all information relating to the proceeding. The parties provided written submissions in support of their applications; and Lawyerly provided written submissions in opposition to my making a suppression or non-publication order.
The question that arises on the written submissions, which the parties and Lawyerly have agreed I may determine on the papers, is whether I should make an order under s 230(1)(b) of the FCFC Act. For reasons that will appear later, that is not the question that arises when determining whether to refuse a request for access to documents made under r 2.11(2) of the GFL Rules, at least not where there has been no hearing, interlocutory or otherwise, in relation to the proceeding in relation to which the document has been filed.
POWER TO MAKE NON-PUBLICATION ORDER IN RELATION TO DOCUMENTS ON COURT FILE
Statutory provisions
Subsection 230(1) of the FCFC Act confers on this Court power to make a “suppression order” or “non-publication order” on the grounds set out in s 231 of the FCFC Act. Under s 230(1), a “suppression order” or “non-publication order” is an order that prohibits or restricts the publication or other disclosure of:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(iv)information lodged with or filed in the Court.
Subsection 230(2) of the FCFC Act provides that this Court may make such orders as it thinks appropriate to give effect to any suppression or non-publication order the Court may make under s 230(1).
The grounds on which s 231(1) of the FCFC Act specifies the Court may make a suppression or a non-publication order are:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
Section 229 of the FCFC Act provides that, “[i]n deciding whether to make a suppression order or non‑publication order”, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. It is therefore appropriate to begin by considering what “open justice” means, and why its safeguarding is a primary objective of the administration of justice.
“Open justice” principle
The notion of “open justice”, as understood by the common law, refers to an “essential characteristic of courts”, namely, “that they sit in public”,[1] it being the ordinary rule that courts are held “publicly and in open view”.[2] The rationale for open justice has been stated on a number of occasions. In Hogan v Hinch, for example, French CJ said:[3]
Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard.
[1] Hogan v Hinch [2011] HCA 4, at [20]
[2] Scott v Scott [1913] AC 417, at page 441, quoted in Russell v Russell [1976] HCA 23; at [8] (Gibbs J)
[3] Hogan v Hinch [2011] HCA 4, at [20]
And in Scott v Scott Lord Atkinson said:[4]
The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals,· but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.
[4] Scott v Scott [1913] AC 417, at page 463
The common law recognises exceptions to the principle that a court must conduct its proceedings in public. French CJ identified the principal exceptions in Hogan v Hinch:[5]
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced" and the difficulties that may be encountered in getting complainants to come forward "unless they are given this kind of protection.” So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified. The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open-court principle. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was “parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction.” Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal, can also be determined without a public hearing.
[5] Hogan v Hinch [2011] HCA 4, at [21] (footnotes omitted)
It is necessary at this point to identify a little more precisely the activities the open justice principle requires (subject to exceptions) a judge who constitutes a court to perform publicly and in open view.[6] These consist of the judge admitting evidence (including testimony given in affidavits, written statements, and orally in answer to questions) the parties seek to put before the court in support of their case and in opposition to the other party’s case; hearing and determining objections to the evidence parties seek to put before the court; hearing submissions after evidence has been admitted; and determining the case on the basis of reasons for judgment. By ensuring these tasks are performed publicly and in open view, members of the public, directly, or indirectly through media reporting, have the means of acquiring knowledge of the cases, evidence, and submissions the parties have put before or have advanced to the court, and the reasons for which the court has decided the case as it has; and, being armed with such knowledge, the public will be in a position to assess the nature and quality of the process by which the court heard and decided the case, and also to assess the correctness or wisdom of the decision the court made, given the evidence and arguments the parties presented to the court.
[6] By “judge” I intend to include officers, such as registrars, who are not judges but who exercise delegated powers that judges exercise.
The activities I have identified the open justice principle requires a judge perform publicly and in open view (again, subject to exceptions) are coterminous with the activities that comprise the exercise of judicial power. The principle of open justice, therefore, applies to the tasks a judge performs in the exercise of judicial power; the principle does not apply to activities or states of affairs that do not involve the exercise of judicial power. In particular, the principle of open justice does not apply to documents lying dormant in a court file which have not been presented to, or have otherwise not been referred to or by a judge in the course of a hearing, interlocutory or final. Perram J so confirmed in Saw v Seven Network (Operations) Ltd, where his Honour said that at “common law, the principle of open justice does not require that access be granted to a document on the court file where the document has not been used in open court”.[7] His Honour referred to the following passage from the judgment of Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court:[8]
The principle of open justice is not engaged at the time of the filing of the proceedings. It is only when relevant material is used in court that it becomes relevant. As Slicer J put it in Ex parte Davies Brother Ltd supra at 6:
“The making of a complaint, without more, is no more than a statement by a party (often the State) that it wishes to have a particular grievance (public or private) determined by a court. … The making of a complaint does not attract the requirement of ‘open justice’ unless and until it becomes an issue between the parties.”
[7] Saw v Seven Network (Operations) Ltd [2024] FCA 1210 at [17], referring to John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at 526 [65] per Spigelman CJ (Mason P agreeing at 533 [100] and Beazley JA agreeing at 533 [101]).
[8] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101, at [65] (Mason P and Beazley JA agreeing). See also Asic v Rich [2002] NSWSC 198, at [9], where Barrett J said: “The proceedings which must be open and to which access in the public interest must be guaranteed are proceedings that actually take place in court.”
There is some uncertainty about the extent to which the open justice principle applies to documents that have not been formally read or tendered, but have in some way been referred to in open court. Spigelman CJ considered that question in John Fairfax Publications:[9]
It is unnecessary to determine a single test applicable in all situations to identify when a document has been put before the court in such a manner that it ought be made public. A useful test was proposed by Lord Clyde in Cunningham v The Scotsman Publications Ltd [1987] SLT 698 at 706:
“The test in my view is not what is actually read out – although all that is read out is published – but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is taken as published.”
The underlying principle is as stated by Byrne J in Smith v Harris [1996] 2 VR 335 at 350:
“… [T]he policy which demands that the judicial process be open to public scrutiny does not demand that the subject matter of that process be available except in so far as this is necessary for the public to scrutinise the process itself.”
[9] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101, at [68], [69]
That the principle of “open justice”, at least as understood by the common law, does not require access being granted to documents lodged with a court file that have not been used or otherwise referred to in open court is reflected in provisions contained in the rules of court which regulate access to such documents. Subrule 2.11(2) of the GFL Rules is an example. Such provisions are predicated on a contrary assumption to the assumption on which the open justice system is predicated. The assumption concerning documents that are housed in a court file, and which have not been used or referred to in any hearing, is that they are not available to be viewed by members of the public unless access is sought and granted, while the assumption underlying the open justice principle is that the activities covered by it are available to be viewed by the public unless an order is made restricting such accessibility.
Does s 230 of the FCFC Act apply to documents not covered by open justice principle?
A question arises whether s 230 of the FCFC Act applies to documents that have been lodged in the Court file but have not been produced or otherwise referred to in any hearing. The answer to that question, at least in part, turns on whether “open justice” in s 229 of the FCFC Act carries the common law understanding of the expression. In Saw Perram J held that “open justice”, as that expression appears in s 37AE of the Federal Court of Australia Act 1976 (Cth) (FC Act) (which is the same as s 229 of the FCFC Act), reflects “the common law understanding of that term” where, as I have already noted, his Honour said that at “common law, the principle of open justice does not require that access be granted to a document on the court file where the document has not been used in open court”.[10] His Honour further said that, once that conclusion is reached, it followed that “the principle of open justice referred to in s 37AG [sic]” of the FC Act had “no work to do” in relation to the statement of claim that had been filed in Saw, because “that principle does not require access to a document on a court file unless that document has been used in open court”.[11] His Honour continued:
Thus, whilst s 37AE requires me to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, that principle is silent in relation to the pleadings in this case.
[10] Saw v Seven Network (Operations) Ltd [2024] FCA 1210, at [17]
[11] Saw v Seven Network (Operations) Ltd [2024] FCA 1210, at [21]
Although Perram J found that the principle of open justice had “no work to do” in relation to a filed pleading which had not been used or referred to in open court, his Honour nevertheless considered it was necessary to determine whether a suppression or non-publication order should be made on one or more of the grounds stated in s 37AG(1) of the FC Act (being the same as the grounds stated in s 231(1) of the FCFC Act). It is not clear, however, why his Honour considered it was necessary to do so.
Subsection 37AG(1) of the FC Act (and s 231(1) of the FCFC Act), when read with s 37AE (and, respectively, s 229 of the FCFC Act), is predicated on the judge constituting the Court performing his or her judicial functions in accordance with the open justice principle as understood by the common law; that is, by performing those tasks publicly and in open view. Given that predicate, the Court may make a suppression or non-publication order only if, by making it, the “open justice” principle will be infringed (that is, the judge will not be performing all or any part of his or her judicial functions publicly), and there is justification for infringing that principle, that justification being one or more of the grounds stated in s 37AG(1) of the FC Act (or s 231(1) of the FCFC Act). But if the making of an order, such as not permitting a non-party to access a document in the Court’s file, would not infringe the open justice principle, as Perram J in Saw in effect held, it would be unnecessary to consider whether there would be any reason or reasons for making such order, such as those provided for in s 230(1) of the FCFC Act. Stated another way, the occasion for considering whether the Court would be justified in making a suppression or non-publication order on one or more of the grounds stated in s 231(1) of the FCFC Act arises only if the making of such order will infringe the open justice principle.
As I have noted, the Non-Party Access Request relates to the application and Form 2 the applicant filed in this proceeding. These are not documents that have been used, or have otherwise been referred to in any hearing. For that reason, my deciding not to grant the Non-Party Access Request would not infringe the open justice principle; and the occasion for my considering whether I should make an order under s 230(1) of the FCFC Act, therefore, does not arise. The question that does arise, however, is whether I should refuse to grant the Non-Party Access Request; and the determination of that question turns on the proper construction and application of r 2.11(3) of the GFL Rules.
APPLICATION OF R 2.11(3) OF THE GFL RULES
Subrule 2.11(2) of the GFL Rules raises a presumption that, on request, a non-party will be granted access to the classes of documents the subrule identifies (Unrestricted Documents). That presumption, however, is subject to r 2.11(3), which provides that a non-party will not be entitled to have access to those documents in two circumstances. One is where the Court or a Registrar “has ordered that the document be confidential”; and the second is where the Court has made “a suppression order or non‑publication order”. The note to this rule states: “[f]or the power of the Court to make a suppression order or non‑publication order, see sections 230 and 233 of the Act”.
Construction of r 2.11(3)
Three observations may be made about the text of r 2.11(3) of the GFL Rules. First, the reason for which, under r 2.11(3), a person may not be entitled to have access to Unrestricted Documents is not limited to the Court having made a suppression or non-publication order under s 230(1) or s 233 of the FCFC Act; a non-party will also not be entitled to gain access to Unrestricted Documents if the Court or a Registrar has ordered that the document be confidential. Second, the words “be confidential” suggest that the Unrestricted Document to which access is sought need not be confidential before the Court or a Registrar orders that it be confidential. The word “be” confers a power on the Court or a Registrar to render a document confidential.
The third observation that may be made about the text of r 2.11(3) of the GFL Rules is that it does not identify the matters the Court or a Registrar may consider when determining whether to order that an Unrestricted Document be confidential. There is one matter, however, that the Court or a Registrar must consider; and that is whether the open justice principle applies to the Unrestricted Document. The open justice principle will apply to an Unrestricted Document if there has been a hearing, interlocutory or otherwise, in the proceeding in relation to which the document has been filed, and the document was referred to or read out at the hearing, or, perhaps, if its publication is necessary to enable the public to understand what occurred at the hearing, and the orders and reasons for the orders that ensued from it. If the open justice principle applies to the document, the only grounds on which the document can be ordered to be confidential are the grounds stated in s 231(1) of the FCFC Act; and the only way the document can be ordered to be confidential is by a Judge, not a Registrar, making a suppression or non-publication order under s 230(1) of the FCFC Act, noting in the order, as required by s 231(2), the ground on which it is made.[12]
[12] The power under s 230(1) of the FCFC Act has not been delegated to a Registrar: see s 254(1) of the FCFC Act, and r 21.01 of the GFL Rules.
If the open justice principle does not apply to the Unrestricted Documents in relation to which a request for access has been made, the Court or a Registrar may consider any matter that may be relevant to determining whether the Court or the Registrar should order the document be confidential. One consideration is the prejudice that may arise from documents containing damaging allegations being published in advance of the hearing, in circumstances where the allegations have not been challenged, and may never be challenged because, for example, the parties settle the proceeding or, if the proceeding is not settled, the damaging allegations have been struck out or abandoned before the hearing. In eisa Limited v Damien Brady Santow J described the potential prejudice a party or witness may suffer in these circumstances as follows: [13]
…[A]t general law, documents such as pleadings or affidavits made in [the] course of proceedings are in any event privileged; see Revis v Smith (1856) 18 CB 126; 139 ER 1314 and Lilley v Rouly (1892) 61 LJQB 727. Thus the privilege extends beyond the actual proceedings themselves to the necessary preparatory steps, such as proofing of witnesses and to any document published on an occasion properly incidental to judicial proceedings, and necessary for them; Mann v O’Neill [1997] Aust Torts R 64,309 at 64,312. That would include the initiating process and the pleadings; Jamieson v R (1993) 177 CLR 574 at 583. This is so though no hearing actually takes place; O’Neill v Mann (1994) 49 FCR 370 at 380.
Clearly if the court were thus to make available to the Press prematurely, affidavits or pleadings containing damaging allegations not read in court or sufficiently described in open court, this may severely and unfairly prejudice those the subject of these damaging allegations, with no necessary redress in defamation. That prejudice may not only go to reputation but may go further and actually prejudice the paramount requirement of a fair trial. If it became the norm for courts to release to the press pleadings not yet heard and tested in open court, serious and damaging allegations could be put in pleadings for the purpose of their Press exposure relatively free of defamation risk. Carefully crafted qualification to the pleadings may contrive to sidestep any liability for false swearing.
[13] eisa Limited v Damien Brady [2000] NSWSC 929, at [19], [20]
There may be other considerations that may be relevant to deciding whether to order an Unrestricted Document be confidential. The publication of damaging allegations contained in an Unrestricted Document may lessen the willingness of the party against whom the allegations are made to settle or mediate the dispute because that person may instead seek to publicly vindicate his or her reputation at the hearing, rather than seek to settle the matter and thus leave an air of doubt as to whether the allegations are well-founded. On the other hand, ordering an Unrestricted Document containing damaging allegations to be confidential may enhance the parties’ prospects of settling their dispute because the possibility of damaging allegations eventually being published at the hearing is likely to act as an inducement for the parties to settle their dispute to avoid the damaging allegations being made public.
It may also be that an Undisclosed Document contains allegations which, if disclosed to the public, will cause embarrassment and distress to the party against whom the allegations are made and, indeed, to the party making them. It may be assumed that this will usually be the case where the allegations relate to a party’s mental or physical health. It is of course true that if the parties do not settle the proceeding in which such allegations are made, they will be published during the hearing, thus causing distress and embarrassment. But that may not happen because the parties may settle the matter without the necessity of a hearing; and the possibility that such information will be made public if the matter proceeds to trial, will act as an inducement to the parties to settle their difference to avoid the necessity of these matters becoming public at a trial.
Approach to exercising power under r 2.11(3)
Thus, when determining for the purposes of r 2.11(3) of the GFL Rules whether an order should be made that an Unrestricted Document be confidential, the Court or Registrar must first consider whether there has been any hearing, interlocutory or otherwise, in the proceeding in relation to which the Unrestricted Document has been filed. If that question is answered in the negative, the principle of open justice would be irrelevant to whether the Court or a Registrar should order that any of the Unrestricted Documents be confidential. Matters that would be relevant to determining whether such an order should be made may include whether the document contains allegations which, if published, may be damaging to the reputation of the person or persons against whom the allegations are made; and whether the documents contain allegations that relate to a person’s mental or physical health which, if published, may cause embarrassment or distress.
If, on the other hand, there has been a hearing, interlocutory or otherwise, in the proceeding in relation to which the Unrestricted Document has been filed, and the document has been produced or read out or referred to during the hearing, or, perhaps, its publication is necessary to enable the public to understand what occurred at the hearing and the orders and the reasons for the orders that ensued from it, the open justice principle will apply to the document. In those circumstances, a Judge of the Court must consider whether any of the grounds specified in s 230(1) of the FCFC Act for making a suppression or non-publication order apply in relation to the document. If the Judge considers that any one of the grounds applies, he or she will make a suppression or non-publication order pursuant to s 230(1) of the FCFC Act; but if the Judge is not so satisfied, access must be granted to the Unrestricted Document.
PARTIES’ AND LAWYERLY’S SUBMISSIONS
In his written submissions, the applicant says the Form 2 discloses he suffers from certain conditions which, if they are published to the world, will be exacerbated, and, moreover, will adversely affect his ability to instruct his lawyers. It is unnecessary to describe what those conditions are. In its written submissions, the respondent notes that the Form 2 makes allegations against a number of people which, if disclosed to the public at this stage, that is without their having been tested in open court, they would potentially adversely affect their reputation. It is unnecessary to set out those allegations.
In its written submissions Lawyerly submits that the “overarching principle that must be applied by the court when weighing an application for non-publication is that of open justice”. Lawyerly further submits that mere embarrassment is insufficient to support the making of a suppression order and, in any event, the applicant has not filed evidence to support the conditions from which he says he suffers. Lawyerly refers to a number of statements from the cases, including that “[p]arties and witnesses must accept the embarrassment, damage to reputation and the possible consequential loss which can be inherent in litigation”;[14] “[a]dverse publicity, even to third parties, is an often an [sic] inevitable by-product of litigation and is part of the price paid for open justice”;[15] to obtain a suppression order the party seeking it must “demonstrate that the party would be seriously compromised or adversely affected if confidentiality was not retained”.[16]
[14] Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, at [45]
[15] Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, at [45]
[16] Re Japara Holdings Pty Ltd [2010] VSC 361, at [10]
DETERMINATION
The parties’ and Lawyerly’s submissions assume the open justice principle applies to the application and Form 2 to which the Non-Party Access Request applies. As I have already found, the open justice principle does not apply to those documents because there has been no hearing in this matter, final or interlocutory. The question that arises, therefore, is not whether any of the grounds provided for in s 231(1) of the FCFC Act apply to the documents, but whether, for the purposes of r 2.11(3) of the GFL Rules, I should make an order that the documents be confidential.
I am satisfied the Form 2 should be confidential. If the Form 2 is published at this stage, I am satisfied that this may potentially damage the reputation of a number of people against whom the Form 2 makes allegations; and it may cause embarrassment and distress to the applicant. Further, by making an order that the Form 2 be confidential, the prospects of the parties settling the matter will be materially greater than they would be if an order is not made.
I therefore propose to order, pursuant to r 2.11(3) of the GFL Rules that, until further order of the Court, the Form 2 the applicant filed in the proceeding be confidential. I do not propose to so order in relation to the application because there is nothing about its nature or contents that would warrant its being made confidential.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 26 March 2025
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