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…

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: [2022] FedCFamC2G 760
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Sara Di Maggio sought compensation, penalties, and other remedies against Employsure Pty Ltd for alleged breaches of the Fair Work Act 2009 (Cth). The applicant claimed that her termination was due to her exercising workplace rights or due to her pregnancy and impending family responsibilities, both of which would be breaches of the Act. The proceedings were in their early stages when the respondent sought suppression orders to prevent the disclosure of certain information to a non-party media organisation. The respondent argued that the information concerned its business strategies and that disclosure would harm its commercial interests. However, no evidence was provided to substantiate these claims.

The court examined the principles governing suppression orders, which are outlined in the Federal Circuit and Family Court of Australia Act 2021 (Cth). Suppression orders are only to be made in exceptional circumstances where they are necessary to prevent prejudice to the proper administration of justice, protect national security, ensure personal safety, or avoid undue distress in sexual offence cases. The court noted that commercial confidentiality alone is not enough to justify a suppression order and that the party seeking the order must provide cogent evidence to support the necessity of such an order.

Given the lack of supporting evidence in this case, the court was unable to conclude that the disclosure of the information would cause significant commercial harm to the respondent or that the suppression orders were necessary to prevent prejudice to the proper administration of justice. The court dismissed the suppression application and vacated the interim suppression order, emphasising the need for substantial evidence to justify such orders. The court's decision underscores the importance of providing detailed and substantiated arguments when seeking suppression orders in legal proceedings.

Orders