Dincer v Amazon Support Services Pty Ltd
[2025] FedCFamC2G 824
•26 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dincer v Amazon Support Services Pty Ltd [2025] FedCFamC2G 824
File number(s): SYG 1421 of 2025 Judgment of: JUDGE CAMERON Date of judgment: 26 May 2025 Catchwords: PRACTICE AND PROCEDURE – Third party request for access to documents on the electronic court file – where matter very recently commenced – where respondents not known to be served or aware of the proceeding – applicable principles and consideration of the interests of justice. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 229, 230, 231
Federal Court of Australia Act 1976 (Cth) ss. 37AE, 37AF, 37AG
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r. 2.11
Federal Court Rules 2011 (Cth) r. 2.32
Cases cited: Australian Securities and Investments Commission v Atkins [2023] FCA 714
Ferguson v Tasmanian Cricket Association(trading as Cricket Tasmania) [2021] FCA 1507
Porter v Australian Broadcasting Corporation [2021] FCA 863
Division: Fair Work Number of paragraphs: 16 Date of hearing: 26 May 2025 Place: Sydney Applicant The applicant appeared in person by videoconference Counsel for the Respondents: Mr B Rauf Solicitors for the Respondents: King & Spalding ORDERS
SYG 1421 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SERHAT SEVKI DINCER
Applicant
AND: AMAZON SUPPORT SERVICES PTY LTD (ACN 163 823 416)
First Respondent
OLIVER BAILLOT
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.Pursuant to r 2.11(3)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), the Originating Application in this proceeding and its accompanying Form 2 claim form be restricted from publication to persons other than parties in this proceeding.
2.Order 1 expire at 5pm 30 May 2025 unless the respondents lodge or file prior to that time an application for suppression or non-publication orders.
THE COURT NOTES THAT:
A.Order 1 is made on the ground that it is necessary to prevent prejudice to the proper administration of justice.
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 CAMERON
INTRODUCTION
This proceeding was commenced by an application and a Form 2 claim form which were filed on 9 May 2025. The applicant, Mr Dincer, alleges in his Form 2 that his former employer, the first-named respondent (Amazon Support Services) contravened the Fair Work Act 2009 (Cth) (FW Act) and that the second-named respondent, who is alleged to be an employee of Amazon Support Services, also contravened the FW Act.
Until a couple of hours ago, neither respondent had filed any document in the proceeding, and so the Court could not know if either was aware of it. Mr Dincer has not filed an affidavit of service evidencing that the respondents, or either of them, have been served with the originating process. However, at 12:34pm today the respondent solicitors provided my Chambers with copies of notices of address for service which, it was advised, were in the process of being filed.
The matter is listed today because the Court has received an application by a non-party to have access to the documents filed by Mr Dincer. The Court has refused that application for the time being and these are the reasons for that refusal.
BACKGROUND FACTS
On 12 May 2025, Mr Marin-Guzman of the Australian Financial Review requested access to Mr Dincer’s application and Form 2. Later that day the registry referred that request to me and I directed that access should not be permitted prior to the matter’s first court date, which was listed to occur at the end of next week. In doing so I referred to the judgment of Mortimer J in Ferguson v Tasmanian Cricket Association(trading as Cricket Tasmania) [2021] FCA 1507. My direction was advised to Mr Marin-Guzman that afternoon. The next morning, Mr Marin-Guzman responded asking:
Could you please provide me with a copy of the confidentiality, suppression or non-publication order engaging the terms of rule 2.11(3) in relation to inspection?
Such an order could only be made on the basis that the court was satisfied that the power should be exercised on one of the grounds in section 231 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). These requirements are set out in the judgment of Ferguson v Tasmanian Cricket Association [2021] FCA 1507 at [8].
Because the direction was an administrative one, rather than a judicial one, there was no order to provide to Mr Marin-Guzman and no reasons given other than the citation of Ferguson v Cricket Australia to which I have referred. However, Mr Marin-Guzman has pressed his request and so the matter was listed today for the making of an order as Mortimer J did in Ferguson v Cricket Tasmania and for the provision of reasons for doing so.
The respondents’ appearance today has altered circumstances somewhat and, whereas the original decision was to restrict non-party access to the originating process until the first return date, it is now appropriate to revise that approach and give the respondents some time to consider whether they wish to apply for suppression or non-publication orders in relation to the originating process. Mr Dincer has told the court that he has no objection to access being given.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) relevantly provides in relation to this Court, namely the Federal Circuit and Family Court of Australia (Division 2), as follows:
Division 2—Suppression and non-publication orders
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:
…
(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;
…
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
The Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) relevantly provide:
2.11 Inspection of documents
...
(2) 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;
…
(d) a pleading or particulars of a pleading or similar document;
....
(3) However, 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.
DISCUSSION
This Court’s r.2.11 is identical in all presently material respects, to r.2.32 of the Federal Court Rules 2011 (Cth) as it stood at the time Ferguson v Cricket Tasmania was decided. Similarly, ss.229-231 are relevantly identical to ss.37AE-37AG of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) referred to by Mortimer J in Ferguson v Cricket Tasmania. That is to say, this Court’s Act and Rules operate today in the same way as the Federal Court Act and the Federal Court Rules operated in 2021, when Ferguson v Cricket Tasmania was decided.
The cases make it clear that the:
…principle of open justice is not absolute and must be balanced with the need of the Court to act at all times in the “interests of justice” and avoid prejudice to the proper administration of justice or other potential harm.
(Australian Securities and Investments Commission v Atkins [2023] FCA 714 at [18])
In Ferguson v Cricket Tasmania, Mortimer J observed at [11] that the appropriate way for a departure from open justice principles to be undertaken is following an active contest about the making of orders which depart from those principles after a party has exercised an entitlement to seek such orders. Her Honour continued at [12]:
Permitting inspection before a notice of address for service has been filed deprives the respondent of the opportunity to exercise the right it has as a party to apply for suppression orders, and to make submissions about why they are appropriate. It is not in the interests of the administration of justice to deprive a party of that right in circumstances where the respondent is likely to be unaware of the non-party access request and the time to exercise any right to seek suppression orders has not yet arisen.
Until a short time ago, that was this case. There was no evidence before the Court which indicated that the respondents were aware of this proceeding and thus of their rights to seek a suppression or non-publication order over the documents to which access has been sought. It would have been unfair under the circumstances to deny them an opportunity to seek a suppression or non-publication order over the documents in question should they have wished to pursue that course.
In Porter v Australian Broadcasting Corporation [2021] FCA 863 Jagot J, when a judge of the Federal Court, said, referring to the Federal Court Rules:
It can be expected that an applicant will take care to protect their own confidential and personally sensitive information in an originating application and statement of claim. However, an applicant will not necessarily have the same incentive (or knowledge) to protect confidential and personally sensitive information about the other parties or third parties in their originating application or statement of claim. While inclusion of such information in a document filed in a court for some collateral purpose would involve an abuse of process, the more likely prospect is that the information is relevant but the applicant has not known or appreciated (or, perhaps, cared sufficiently) that the other parties or third parties might have a legitimate basis to apply for suppression and non-publication orders over that information. The anomaly is one of timing. If a member of the public becomes aware that an originating application and statement of claim has been filed they may be able to exercise their right of inspection under r 2.32(2) before the other parties to the proceeding and the third parties who may be mentioned in the filed documents are aware of the existence of the proceeding. As a result, the right of those parties to seek suppression and non-publication orders would be undermined. This potential for injustice could be ameliorated by amending r 2.32(2) to permit inspection as of right only after the first return date of the proceeding; applications to inspect before the first return date in the proceeding would require leave.
The Federal Court has amended its rule to that effect but this Court’s rules have not been relevantly amended.
Granting non-party access at this point to the originating process in this proceeding would be unfair to the respondents and contrary to the interests of the administration of justice because they have not had an opportunity to seek suppression or non-publication orders over the documents to which non-party access has been sought. I consider that fairness requires that those documents not be made available until the respondents have had that opportunity and, on the application of the respondents, they will have until 5pm on Friday 30 May 2025 by which to file an application for suppression or non-publication orders.
CONCLUSION
The orders will be that the Originating Application and its accompanying Form 2 be restricted from publication to persons other than parties in this proceeding unless by 5pm 30 May 2025 the respondents file an application seeking an extension of those orders.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 2 June 2025
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