FEDERAL COURT OF AUSTRALIA
Clark v Digital Wallet Pty Ltd [2020] FCA 877
File number: NSD 592 of 2020 Judge: ABRAHAM J Date of judgment: 24 June 2020 Catchwords: PRACTICE AND PROCEDURE – application for suppression and non-publication orders – where proceedings have been discontinued – where information sought to be suppressed relates to the business affairs of the first respondent Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG, 37AG(1)(a)
Federal Court Rules 2011 (Cth), rr 2.32, 2.32(2), 2.32(3)
Cases cited: Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756
Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68
Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293
R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335
Re Japara Holdings Pty Ltd [2010] VSC 361
Date of hearing: 18 June 2020 Registry: New South Wales Division: Fair Work National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: Mr J. Willis Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First, Second, Third and Fourth Respondents: Mr D. B. Studdy with Mr I. Furlan Solicitor for the First, Second, Third and Fourth Respondents: Gilbert & Tobin Lawyers Counsel for the Fifth Respondent: Mr P Kulevski Solicitor for the Fifth Respondent: Clayton Utz Media Interests: Mr B. Butler appeared on behalf of Guardian Australia
Ms C. Caulfield appeared on behalf of Lawyerly Media
ORDERS
NSD 592 of 2020 BETWEEN: ANGELA CLARK
Applicant
AND: DIGITAL WALLET PTY LTD
First Respondent
JAMES TATE
Second Respondent
DAVID SINGH
Third Respondent
KIM ANDERSON
Fourth Respondent
COMMONWEALTH BANK OF AUSTRALIA (ACN 123123124)
Fifth Respondent
THE GUARDIAN AUSTRALIA
LAWERLY MEDIAMedia Interests
JUDGE:
ABRAHAM J
DATE OF ORDER:
24 JUNE 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until 31 December 2020 or such earlier time as notified in accordance with order 5, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) and their publication or disclosure be prohibited (other than to the parties and their solicitors and counsel):
(a)the parts of the statement of claim filed on 26…
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- AGLC
- Clark v Digital Wallet Pty Ltd [2020] FCA 877
- Case
- [2020] FCA 877
- Decision Date
CaseChat Overview and Summary
The court carefully considered the well-established principles for making suppression or non-publication orders. It noted that the term “necessary” is significant but not to be narrowly construed. The court held that once it was satisfied that an order was necessary, it would be erroneous not to make it. The onus to persuade the court to make such an order was heavy. The court found that the information in question, being commercial in confidence, met the threshold for confidentiality. Given the specific circumstances of this case, the court concluded that the suppression and non-publication orders were necessary to prevent prejudice to the proper administration of justice.
The court granted the orders, making certain parts of the statement of claim and the annexure to the originating application confidential and prohibiting their publication or disclosure. Additionally, specific confidential exhibits were designated as confidential documents, with restricted access to only the parties and their legal representatives. The court also mandated the redaction of certain parts of the originating application and the statement of claim and required the first respondent to notify the court upon the completion of a specific transaction.
Orders
Orders of the court
1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until 31 December 2020 or such earlier time as notified in accordance with order 5, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) and their publication or disclosure be prohibited (other than to the parties and their solicitors and counsel):
(a) the parts of the statement of claim filed on 26 May 2020 identified in schedule 1 annexed to this order;
(b) the parts of the annexure to the originating application filed on 26 May 2020 identified in schedule 2 annexed to this order; and
2. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until 31 December 2020 or such earlier time as notified in accordance with order 5, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) and their publication or disclosure be prohibited (other than to the applicant’s solicitors and counsel, the first respondent and the first respondent’s solicitors and counsel):
(a) Confidential Exhibits KM-1, KM-2, and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020.
3. Pursuant to r 2.32 until 31 December 2020 or such earlier time as notified in accordance with order 5:
(a) the statement of claim filed on 26 May 2020 and the originating application filed on 26 May 2020 be designated as confidential documents; and
(b) any person who is not a party to these proceedings may not inspect the statement of claim and may only inspect the redacted version of the statement of claim; and
(c) any person who is not a party to these proceedings may not inspect the originating application and may only inspect the redacted version of the originating application; and
(d) Confidential Exhibits KM-1, KM-2 and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020 be designated as confidential documents; and
(e) any person, other than the applicant’s solicitors and counsel, the first respondent and the first respondent’s solicitors and counsel, may not inspect Confidential Exhibits KM-1, KM-2 and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020.
4. The first respondent is to file, by 4pm on 24 June 2020, the following documents:
(a) a redacted version of the originating application, redacting the parts of the annexure to the originating application referred to in order 1(b) above; and
(b) a redacted version of the statement of claim, redacting the parts of the statement of claim referred to in order 1(a) above.
5. The first respondent must notify the Court, within 5 working days of the completion of the transaction referred to in paragraph 5(d) of the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020, that the transaction has completed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Schedule 1
1. Paragraph [21](d).
2. The particulars to paragraph to [21].
3. Paragraphs [52](a).
4. In paragraph [56] the words, in the first line after “19 November 2019” up until “sent an email” be replaced with “Person X”. In the second line, the words after "conflict of interest" up to the end of that line. In the third line, the words before “Conflict of Interest” be replaced with “Person X”. In the fourth line, the two words before “Conflict of Interest” be replaced with “Person X”.
5. The particulars to paragraph [56].
6. In paragraph [57] the words, in the first line after “forwarded the” up until “Conflict of Interest Email” be replaced with “Person X”. In the third line, the words after “outlined in the” up until “Conflict of Interest Email” be replaced with “Person X”. In the fourth line, the words before “Conflict of Interest Inquiry” be replaced with “Person X”.
7. In the particulars to paragraph [57] the words, in the first line after “19 November 2019. The” be replaced with “Person X”. In the fifth line, the words after “(1)” up until “was subject to” be replaced with “Person X”. In the eighth line, the words after “the” up until “Conflict of Interest” be replaced with “Person X”.
8. In paragraph [60] the words, in the first line after “20 November 2019” up until “sent an email” be replaced with “Person X”.
9. In paragraph [60](a) the words, in the first line before "stated how" be replaced with "Person X". In the first line, the words after "conflicts of interest" up until, in the second line, the words "in which he proposed".
10. In paragraph [60](b) the words, in the first line before "stated that" be replaced with "Person X".
11. The first sentence of the particulars to paragraph [60]. In the fourth line, the words after "such as the" and before "Conflict of Interest" be replaced with "Person X".
12. In the particulars to paragraph [61] the words, in the fifth line after “Term): (1)” up until “was subject to” be replaced with “Person X”.
13. In paragraph [68] all the words in the first line after “to the Directors” up until, in the second line, the words “in relation to”.
14. In paragraph [69] all the words in the first line after “the Directors” up until, in the second line, the words “in relation to”.
15. In paragraph [78](a) in the first line, the two words appearing before "remaining a" and replacing those words with "Person X". In the first line, removing all the words up until "Person X". In the fifth line, the word appearing before "Concerns" and replacing that word with "Person X". In the second line, removing all the words from "Alternate Director Proposal" up until, in the fifth line, the words "(the Person X Concerns)".
16. In particular (i) to paragraph [78], all the words from “by reason of the” up until “Concerns” be replaced with the words "Person X".
17. In paragraph [85](a) all the words, in the second line after “relating to” up until "being a reference to" be replaced with the words "certain directors of Beem It". In the third line, all the words from "alia, the" up until “Concerns, the Naffah CBA Concerns” be replaced by the words "Person X".
18. In the second particular (i) to paragraph [85] all words, in the fourth line after “by reason of the” up until “Concerns” in the fifth line be replaced by the words "Person X".
19. In paragraph [110] all the words, in the second line appearing before "Conflict of Inquiry" by replaced by the words "Person X".
20. In paragraph [135](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
21. In paragraph [137](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
22. In paragraph [139](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
23. In paragraph [141](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
24. In paragraph [143](c) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
25. In paragraph [145](c)(iv) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
26. In paragraph [151] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X".
27. In the particulars to paragraph [151] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". In the last line, the two words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
28. In paragraph [187] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X".
29. In the particulars to paragraph [187] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". In the last line, the two words appearing before "Conflict of Interest Inquiry" be replaced with "Person X".
30. In paragraph [214](b) all the words, in the first line appearing after "Alternate Director Proposal" up until "being an officer" be replaced with "Person X".
31. In the particulars to paragraph [214] all the words, in the second line from “implementation arose principally from” up until “remaining a Director” be replaced with "Person X". In the third line all the words appearing after “Alternate Director Proposal” up until “and continuing to receive” in the fourth line. In the fifth line all the words after “Beem It strategy” up until “While” in the sixth line. In the sixth line all the words after “While” up until the words “was a Director” be replaced with “Person X”.
32. In paragraph [219](a) all words, in the second line after “by reason of the” up until “Concerns” be replaced with “Person X”.
33. In paragraph [219](b) all the words in the first line after “reason of the” up until “Concerns” be replaced with “Person X”. In the first line all the words after “Concerns,” up until “being an officer” be replaced with “Person X”.
34. In the particulars to paragraph [219] all the words, in the first line after “in relation to the” up until “Concerns” be replaced with “Person X”. In the second line all the words after “principally from” up until “remaining a Director” be replaced with “Person X”. In the third line all the words after “Alternate Director Proposal” up until “and continuing to receive” in the fourth line. In the fifth line all the words after “Beem It strategy” up until “While” in the sixth line. In the sixth line all the words after “While” up until “was a Director” be replaced with “Person X”.
35. In paragraph [224](a) all the words, in the second line from “by reason of the” up until “Concerns” be replaced with “Person X”.
36. In paragraph [224](b) all the words, in the first line after “by reason of the” up until “Concerns” be replaced with “Person X” and the words after "Concerns," up until "being an officer" be replaced with "Person X".
37. In the particulars to paragraph [224] all the words, in the first line after “in relation to the” up until “Concerns” be replaced with “Person X”. In the second line all the words after “principally from” up until “remaining a Director” be replaced with “Person X”. In the third line all the words after “Alternate Director Proposal” up until “and continuing to receive” in the fourth line. In the fifth line all the words, from “Beem It strategy” up until “While” in the sixth line. In the sixth line all the words after “While” up until “was a Director” be replaced with “Person X”.
38. In the particulars to paragraph [229] all the words, in the fourth line from “Concerns Inquiry, the” up until “Conflict of Interest” be replaced with “Person X”.
39. In the particulars to paragraph [237] all the words, in the fourth line from “Concerns Inquiry, the” up until “Conflict of Interest” be replaced with “Person X”.
Schedule 2
In relation to the letter dated 7 February 2020 annexed to the Originating Application filed on 26 May 2020:
1. In the second paragraph all words, in the fourth line after “regarding the” up until “in which case”.
2. In the third paragraph all words, in the second line after “in relation to the” up until “has been unsatisfactoy”. In the last line, all words after “in relation to the”.
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
In reply the first respondent took issue with the submission as to the futility of the order in relation to Person X, and made submissions in support of that in the context of the evidence in this case.Consideration A person who is not a party may inspect an originating application and statement of claim: r 2.32(2), unless such a document is confidential or forbidden or restricted from publication: r 2.32(3). Section 37AF provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of, inter alia, information lodged with or filed in the Court: s 37AF(1)(b)(iv). Such orders can be made at any time during a proceeding or after a proceeding has concluded: ss 37AF(1), 37AH(3). One of the grounds upon which a Court is permitted to make such an order is that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a). In deciding whether to make a suppression 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: s 37AE. The relevant principles in relation to the making of suppression or non-publication orders under s 37AF are well settled. The question in this instance is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan at [30], although it is not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384 at [8], citing Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13]. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21]. The onus to persuade the court to make the order has been described as “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]. Mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11]. It is well established that commercial in confidence or commercially sensitive information may form a sufficient basis for the grant of a confidentiality order: Hogan at [38]-[39]; Rinehart v Welker [2011] NSWCA 403 at [37]; Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35]. The question whether an order is necessary will depend on the particular circumstances of the case.