FEDERAL COURT OF AUSTRALIA
BSL22 v BSM22 [2022] FCA 558
File number: VID 29 of 2022 Judgment of: SNADEN J Date of judgment: 13 May 2022 Catchwords: PRACTICE AND PROCEDURE – interlocutory applications for orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – orders sought to prevent prejudice to the proper administration of justice and to protect the safety of the parties by whom the applications made – necessity of relief sought – medical evidence as to consequences of disclosure for applicant’s safety – imbalance as between parties in the event that both interlocutory applications not granted productive of prejudice to the proper administration of justice – applications granted Legislation: Federal Court of Australia Act 1976 (Cth) pt VAA
Sex Discrimination Act 1984 (Cth)
Cases cited: Hogan v Australian Crime Commission (2010) 240 CLR 651 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 26 Date of hearing: 13 May 2022 Counsel for the Applicant: Ms S Kelly Solicitor for the Applicant: Workplace Dynamic Australia Counsel for the First and Third Respondents: Ms R Preston Solicitor for the First and Third Respondents: Maddocks Counsel for the Second Respondent: Ms F Knowles Solicitor for the Second Respondent: Gilchrist Connell ORDERS
VID 29 of 2022 BETWEEN: BSL22
Applicant
AND: BSM22
First Respondent
BSN22
Second Respondent
BSO22
Third Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until determination of this proceeding or further order of the court (whichever is earlier):
(a)none of the parties is to make or, in the case of the first respondent, authorise the making of, any disclosure that identifies any party as being a party to this proceeding, other than:
(i)for purposes connected to the proper conduct of this proceeding, including giving or receiving legal advice;
(ii)in connection with:
A.the management of the second respondent’s former employment with the first respondent;
B.the management of the applicant’s employment with the first respondent; or
C.genuine administration purposes related to the first respondent’s business; or
(iii)with the consent of the other parties.
(b)each of the parties is to be allocated a pseudonym for the purposes of this proceeding as follows, namely:
(i)in the case of the applicant: BSL22;
(ii)in the case of the first respondent: BSM22;
(iii)in the case of the second respondent: BSN22; and
(iv)in the case of the third respondent: BSO22; and
(c)the parties’ pseudonyms are to be used in place of their names in all court documents available to non-parties as set out in r 2.32(2) of the Federal Court Rules 2011.
2.Order 1 is made on the grounds specified in s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth).
3.Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until determination of this proceeding or further order of the court (whichever is earlier)—information that…
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- Case
- [2022] FCA 558
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicants had demonstrated a sufficient risk to their safety if their identities were disclosed and whether the orders were necessary to prevent prejudice to the proper administration of justice. The applicants provided medical evidence outlining the potential consequences of disclosure for their safety, which was critical in the court's assessment. The court found that the risk to the applicants' safety was significant and that the proposed orders were necessary to address this risk. Additionally, the court noted that without these orders, there would be an imbalance between the parties, potentially leading to further prejudice to the administration of justice.
Following its analysis, the court granted the applications and issued orders preventing the disclosure of the parties' identities and certain confidential information. The orders included provisions for the use of pseudonyms, restrictions on publication, and measures to ensure that any documents released to the public were appropriately redacted. The court also reserved the costs of the applications pending further orders or the conclusion of the proceedings. The detailed orders reflect the court's commitment to balancing the applicants' safety concerns with the need for transparency and fairness in the legal process.
Orders
Orders of the court
1. Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until determination of this proceeding or further order of the court (whichever is earlier):
(a) none of the parties is to make or, in the case of the first respondent, authorise the making of, any disclosure that identifies any party as being a party to this proceeding, other than:
(i) for purposes connected to the proper conduct of this proceeding, including giving or receiving legal advice;
(ii) in connection with:
A. the management of the second respondent’s former employment with the first respondent;
B. the management of the applicant’s employment with the first respondent; or
C. genuine administration purposes related to the first respondent’s business; or
(iii) with the consent of the other parties.
(b) each of the parties is to be allocated a pseudonym for the purposes of this proceeding as follows, namely:
(i) in the case of the applicant: BSL22;
(ii) in the case of the first respondent: BSM22;
(iii) in the case of the second respondent: BSN22; and
(iv) in the case of the third respondent: BSO22; and
(c) the parties’ pseudonyms are to be used in place of their names in all court documents available to non-parties as set out in r 2.32(2) of the Federal Court Rules 2011.
2. Order 1 is made on the grounds specified in s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth).
3. Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until determination of this proceeding or further order of the court (whichever is earlier)—information that identifies or tends to identify any party:
(a) by name; and
(b) as being connected, in any way, with the subject matter of the proceeding,
must not be published.
4. Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth)—and until determination of this proceeding or further order of the court (whichever is earlier):
(a) the information contained in the annexure to the applicant’s statement of claim (the “Confidential Annexure”) must not be published;
(b) the registry must not release the Confidential Annexure (or any copy thereof) to any person without prior order of the court; and
(c) to the extent that a document filed in this proceeding refers to the information contained in the Confidential Annexure, and does so in a way that discloses any of its content, the registry must not release that document to any person without prior order of the court.
5. Orders 3 and 4 are made on the grounds specified in s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth).
6. For the purposes of orders 3 and 4, “publish” carries the meaning assigned to that word by s 37AA of the Federal Court of Australia Act 1976 (Cth).
7. The registry must take such steps as are reasonably necessary to ensure that any document filed in this proceeding to which public access is granted, or that is released to any person, is first redacted to any extent necessary so as not to identify by name any of the parties herein.
8. The costs of and incidental to the applicant’s and second respondent’s applications for suppression and non-publication orders are reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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