Di Maggio v Employsure Pty Ltd
[2022] FedCFamC2G 760
Federal Circuit and Family Court of Australia
(DIVISION 2)
Di Maggio v Employsure Pty Ltd [2022] FedCFamC2G 760
File number(s): SYG 1019 of 2022 Judgment of: JUDGE LAING Date of judgment: 13 September 2022 Catchwords: PRACTICE AND PROCEDURE – application for non-publication and suppression orders – where no supporting evidence produced – whether grounds for non-publication or suppression orders are established – application dismissed Legislation: Fair Work Act 2009 (Cth) s 340, s 351
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 229, s 230, s 231, s 232
Federal Court of Australia Act 1976 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.11
Cases cited: Australian Broadcasting Commission v Parrish [1980] FCA 33; (1980) 29 ALR 228; (1980) 43 FLR 129
Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278; ATPR, 42–495
Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010) FCA 1082
Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011
Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; 320 ALR 195
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
Taylor v Nationwide News Pty Limited [2021] FCA 664
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of last submission/s: 19 August 2022 Date of hearing: On the papers Solicitor for the Applicant: Jewell Hancock Employment Lawyers Solicitor for the Respondent: Employsure Law ORDERS
SYG 1019 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SARA DI MAGGIO
Applicant
AND: EMPLOYSURE PTY LTD
Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
13 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The respondent’s suppression application be dismissed.
2.Order 1 of the Orders made on 26 August 2022 be vacated.
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
JUDGE LAING
In these proceedings, the applicant seeks compensation, penalties and other remedies in relation to contended breaches by the respondent of the Fair Work Act 2009 (Cth) (FW Act). The applicant contends that the respondent made an adverse decision relating to her role because of her exercise of workplace rights, in breach of s 340(1)(a)(ii) of the FW Act. She alternatively contends that the respondent made the decision because of her pregnancy and/or impending family responsibilities, in breach of s 351(1). The proceedings are at an early stage.
Requests for access to documents filed in this matter have been made by a non-party, Tara de Boehmler of Workplace Express (Specialist News). At the first court date in this matter, on 12 August 2022, orders were made requiring that any suppression application be made by 19 August 2022.
No formal application in a proceeding in this regard appears to have been filed. However, on 19 August 2022 the respondent filed submissions seeking that suppression orders be made in relation to certain paragraphs of the Statement of Claim. Interim orders were made preventing disclosure of the limited paragraphs that were the subject of the application until the application had been determined.
For the reasons that follow, I have determined that the respondent’s suppression application ought not to succeed.
RELEVANT PRINCIPLES
Part 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) governs the making of suppression orders. Sections 229 to 232 provide:
229 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non publication order, the Federal Circuit and Family Court of Australia (Division 2) must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non publication order on grounds permitted by this Part, prohibit or restrict 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.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
231 Grounds for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non publication order on one or more of the following grounds:
(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).
(2)A suppression order or non publication order must specify the ground or grounds on which the order is made.
232 Procedure for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non publication order on its own initiative or on the application of:
(a) a party to the proceeding concerned; or
(b) any other person considered by the Court to have a sufficient interest in the making of the order.
(2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non publication order:
(a) the applicant for the order;
(b) a party to the proceeding concerned;
(c)the Government (or an agency of the Government) of the Commonwealth or a State or Territory;
(d)a news publisher;
(e)any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non publication order should be made.
(3)A suppression order or non publication order may be made at any time during a proceeding or after a proceeding has concluded.
(4)A suppression order or non publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.
(5)A suppression order or non publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.
Similar provisions appear in the Federal Court of Australia Act 1976 (Cth). The principles that are relevant to such provisions have been considered in a number of cases.
A non-party is generally able to inspect a pleading or similar document, unless orders have been made that the document be confidential or otherwise suppressed: r 2.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). This accords with the “open justice” principle, which has been stated to be “one of the most fundamental aspects of the system of justice in Australia”: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; 320 ALR 195 (Rinehart) at [24]. Departure “may only be justified where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule”: Rinehart at [24].
This principle is also reflected in s 229 of the FCFCOA Act, which requires the Court to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. The “entitlement of the media to report on court proceedings is a corollary of the right of access to the court by all members of the public”: Rinehart at [27].
A suppression order may, however, be made on grounds identified in s 231 of the FCFCOA Act. Those grounds include that “the order is necessary to prevent prejudice to the proper administration of justice”: s 231(1)(a).
Circumstances in which this has been found to apply have included “where disclosure of the information would seriously affect the commercial value of the subject matter by revealing secret processes or confidential business information to competitors”: Rinehart at [29]. The rationale for protecting certain types of confidential commercial information from disclosure was considered in Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278; ATPR, 42–495 at [148]:
148…It is not in the interests of the administration of justice that the proceedings “become a vehicle for advantaging or prejudicing trade rivals”: Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010) FCA 1082 at [23]. It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished. Otherwise, the parties and members of the public might lose confidence in the Court and the Court’s processes “might open the way to abuse”: Australian Broadcasting Commission v Parrish [1980] FCA 33; (1980) 29 ALR 228 at 230; (1980) 43 FLR 129 at 134.
However, commercial confidentiality alone is not sufficient to justify a suppression order: Betfair Pty Ltd v Racing New South Wales (No 5) [2009] FCA 1011 at [9].
A suppression order is not to be lightly made. The word “necessary” has been recognised to be “… a strong word which reinforces the legislative intention that suppression orders should only be made in exceptional circumstances”: Rinehart at [23]. It requires that there “must be some material before the Court upon which it can reasonably conclude that the order is necessary”: Taylor v Nationwide News Pty Limited [2021] FCA 664 at [18]. In this regard, “[c]ogent evidence is needed and a belief that the orders are necessary will not be sufficient”: Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 at [26].
THE PRESENT APPLICATIOn
The respondent’s submissions indicated that the following orders were sought by the respondent:
7. The [respondent to the proceedings] seeks a suppression order under s 231(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘Federal Circuit Court Act’) restricting the disclosure of the following statements in the [applicant in the proceedings]’s Statement of Claim to the Non-party, on the basis that the order is necessary to prevent prejudice to the proper administration of justice:
(a) The following statements in paragraph 6 which state:
i. ‘In or around April 2021:
1.the Applicant had a conversation with Mr Price at the Business, during which Mr Price stated, among other things, that:
a.the Respondent would restructure to align with the structure of its new parent company Peninsula Group;
b.this would involve the creation of “Head Of” roles; and
c. the parties would work towards the Applicant being appointed to one of these “Head Of” roles. ‘
(b) The following statements in paragraphs 10 (a) (i) – (iii) which state:
i.‘the Applicant, Mr Price and Mr Werner had a series of discussions at the Business where:
1. The future structure of the Applicant’s team was discussed;
2.It was agreed that a “Head of” role would be created; and
3.It was agreed that there was insufficient work to sustain both Applicant’s current Events Manager role and Head of Events role.’
8. The [respondent to the proceedings] seeks that the order sought and set out above in paragraph 7 of these submissions, operate for a period of 12 months from the date the order is made by the Court.
Had I been minded to make suppression orders to that effect, I would not have done so in the terms suggested in these paragraphs. The making of such orders, publically, would have disclosed the very information that the respondent sought to suppress. I also note that the paragraphs in the Statement of Claim in which the above statements appeared were in fact paragraphs 6(b) from (i) to (iii) and paragraph 10(a) from (i) to (iii). This was reflected in the interim orders made.
The basis of the application was briefly asserted at [21]-[22] of the respondent’s submissions, as follows:
21.The [respondent to the proceedings] submits that the disclosure of the statements to the Non-party as set out in paragraph 7 of these submissions could reveal information about the [respondent’s] current and future business strategies to competitors of the [respondent] and it constitutes confidential information that is commercially sensitive for its future continuity and success.
22.If the order sought by the [respondent] is not made, the result will be or at least can be assumed to be that the [respondent’s] competitors could gain access to the [respondent’s] current and future business strategy, enabling the [respondent’s] competitors to use and implement the information within their organisations, and place themselves at a commercially competitive advantage to the [respondent]. The consequences may pose a real risk of commercial harm to the [respondent’s] business.
No evidence, at all, has been filed in support of the application. On 25 August 2022, my Associate wrote to the parties observing:
No affidavit evidence appears to have been filed in support of the matters contended in the suppression application (including, for example, establishing the asserted confidential nature of the relevant information). This may limit the orders able to be made upon determination of the application. Please advise as soon as possible if the moving party intends to remedy this and if so when.
As no response was received by 6 September 2022, a follow up email was sent. By email sent later that day, the respondent’s representatives confirmed that “Employsure Pty Ltd will not be filing any supporting documentation for the suppression application”. However, the application was not withdrawn.
As the above referenced authorities establish, suppression orders are not lightly made. Before such an order can be made, sufficient material must be placed before the Court to enable the Court to be satisfied as to the contended basis for the order.
This has not occurred in the present case. In the absence of any supporting evidence, I cannot be satisfied as to the effect of disclosure upon the respondent’s business. The respondent has not provided any real detail as to why the information in issue is “commercially sensitive for its future continuity and success”, through potentially revealing information about its “current and future business strategies to competitors”. I am not prepared to “assume”, as the respondent suggests, that the information in issue would allow competitors to use and implement the information within their own organisations, thereby placing themselves at a competitive advantage to the detriment of the respondent’s business.
This is not apparent on the face of the information alone. The information refers generally to a potential restructure aligning the structure of related companies and involving the creation of “Head Of” roles. It is not clear how competitors would obtain some material advantage by acquiring this information, to the detriment of the respondent’s business. It is not apparent on the materials, for example, why a competitor would not already be aware of their ability to align the structure of related companies and/or create “Head Of” roles.
It follows that in the absence of any supporting evidence, I am unable to be satisfied that there is any real risk of commercial harm to the respondent that would flow from disclosure of the paragraphs of the Statement of Claim in respect of which suppression has been sought. Nor can I be satisfied that the orders sought are necessary to prevent prejudice to the proper administration of justice.
It follows that the respondent’s suppression application must be dismissed. I will accordingly vacate the interim suppression order made on 26 August 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 13 September 2022
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