Dincer v Amazon Support Services Pty Ltd (No 2)
[2025] FedCFamC2G 906
•12 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dincer v Amazon Support Services Pty Ltd (No 2) [2025] FedCFamC2G 906
File number(s): SYG 1421 of 2025 Judgment of: JUDGE CAMERON Date of judgment: 12 June 2025 Catchwords: PRACTICE AND PROCEDURE – Third party request for access to documents on the electronic court file – applicable principles and consideration of the interests of the proper administration of justice. Legislation: Fair Work Act 2009 (Cth) s. 368
Federal Circuit and Family Court of Australia Act 2021 (Cth) ch. 4, ss. 229, 230, 231
Federal Court of Australia Act 1976 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr. 1.04, 2.11
Cases cited: Commonwealth of Australia v De Pyle [2024] FCAFC 43
Dincer v Amazon Support Services [2025] FedCFamC2G 824
Griffin v Bartier Perry Pty Limited [2025] FedCFamC2G 442
Koulouris v Sourasis [2025] FCA 452
Patterson v Westpac Banking Corporation [2024] FCA 629
Porter v Australian Broadcasting Corporation [2021] FCA 863
Porter v Australian Broadcasting Corporation [2021] FCA 863
Rinehart v Welker (2011) 93 NSWLR 311
Saw v Seven Network (Operations) Ltd [2024] FCA 1210
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377
Division: Fair Work Number of paragraphs: 23 Date of hearing: 6 June 2025 Place: Sydney Applicant The applicant appeared in person by videoconference Counsel for the Respondents: Mr B Rauf Solicitors for the Respondents: King & Spalding Non-party Access Applicant:
Nine Entertainment Co Pty LtdMr D Marin-Guzman, by leave 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:
12 JUNE 2025
THE COURT ORDERS THAT:
1.Pursuant to s 231(1)(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the following material be suppressed until 7 days after the termination of the Court-ordered mediation process:
(a)the Application - Fair Work Division filed 12 May 2025;
(b)the Form 2 claim form filed 12 May 2025; and
(c)the affidavit of the applicant filed 2 June 2025.
2.Pursuant to s 230(1)(b)(iv) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the Court prohibits the publication or other disclosure of the following material until 7 days after the termination of the Court-ordered mediation process:
(a)the Application - Fair Work Division filed 12 May 2025;
(b)the Form 2 claim form filed 12 May 2025; and
(c)the affidavit of the applicant filed 2 June 2025.
3.Until 7 days after the termination of the Court-ordered mediation process, where further material is to be filed in this proceeding, including any defence to be filed:
(a)the parties must confer before the filing of that material to determine whether such material should be the subject of orders 1 and 2; and
(b)either party may apply to the Court on an urgent basis for orders 1 and 2 to be extended to such material.
4.Upon termination of the mediation process, the Registrar advise the non-party access applicant of its termination.
5.The parties have liberty to apply on short notice.
THE COURT NOTES THAT:
A.Orders 1 and 2 are made on the ground that they are 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 filed on 9 May 2025 and was allocated a first court date of 6 June 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.
On 26 May 2025 I made a number of programming orders in this matter. Most relevantly, the respondents were ordered to file a defence by 25 July 2025 and the matter was referred to mediation before a registrar of the Court after that date. I also ordered that:
…
14.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.
15.Order 14 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 respondents did file such an application in a proceeding and now seek the suppression of, or a prohibition on the publication or other disclosure of, the following material until 7 days after the termination of the mediation ordered on 26 May 2025:
(a)the Application - Fair Work Division (filed with Form 2) filed on 12 May 2025;
(b) the Application - Dismissal from employment in contravention of general protection filed on 12 May 2025; and
(c) the Affidavit of the Applicant in support of the application for an extension of time (to be filed on 30 May 2025).
They also seek consequential orders. These reasons concern that application.
BACKGROUND FACTS
My reasons for making the non-publication order of 26 May 2025 were reduced to writing in Dincer v Amazon Support Services [2025] FedCFamC2G 824. Those reasons recorded that on 12 May 2025 the Australian Financial Review (AFR) had requested access to Mr Dincer’s application and Form 2 and that I had directed the registry that access should not be permitted prior to the matter’s first court date. The AFR had queried that decision and sought an explanation so the matter was listed for the making of a formal order and the giving of reasons on 26 May 2025.
EVIDENCE
In support of their application in a proceeding, the respondents rely on the affidavit of their solicitor, Mr Edwards, affirmed 30 May 2025. Mr Edwards has relevantly deposed that:
7. It is the Respondents' concern that non-party access to documents in the proceeding may jeopardise the parties [sic] ability to reach settlement at mediation. Orders for mediation have been made in this proceeding and the Respondents intend to meaningfully engage in that process.
8. It is also the Respondents' concern that if non-parties are granted access to the documents and publish information arising from the documents in the proceeding before the mediation is closed, key elements of settlement agreements typically including confidentiality and non-disparagement may become futile and cause the parties difficulties in reaching settlement.
9. Further, the Respondents are concerned that, if the Access Request is granted at this stage, there will be an incomplete and potentially inaccurate reporting of the proceedings in circumstances where the Respondents have not as yet engaged with the pleadings or stated their respective positions. In this regard, I also note that the Second Respondent is an individual person who may wish to exercise his right to privilege against exposure to penalty in the proceedings.
LEGISLATION AND RULES
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (Act) relevantly provides in relation to this Court 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:
…
(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.
SUBMISSIONS
Respondents
The respondents referred to authorities where it has been observed that considerations of open justice are to be balanced with the practical needs of justice itself while respecting the exceptional nature of suppression or non-publication orders. Those cases also note the object and purpose of the courts is to quell controversies as efficiently as possible, relevantly by facilitating settlements, and that the achievement of that goal must sometimes be given priority over considerations of open justice: The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; Patterson v Westpac Banking Corporation [2024] FCA 629; Saw v Seven Network (Operations) Ltd [2024] FCA 1210; and Griffin v Bartier Perry Pty Limited [2025] FedCFamC2G 442.
The respondents contended that in this case, in the context of the forthcoming mediation, suppression or non-publication orders in respect of the documents referred to earlier were necessary to prevent prejudice to the proper administration of justice because:
(a)resolution of the proceeding may be assisted by including confidentiality and non-disparagement obligations in any settlement, but those potential conditions of an agreement could be made unavailable if non-parties with access to court documents published information that might otherwise have been the subject of such obligations; and
(b)in circumstances where particulars have not been sought or provided and defences have not been filed, incomplete and potentially inaccurate commentary on the proceeding and allegations would be unhelpful in that they might distract the respondents from engaging in the mediation process.
The respondents also stressed the fact that the suppression they sought was not an indefinite one and was proposed to expire 7 days after the mediation concluded.
Applicant
Mr Dincer did not object to the documents on the Court file being made available to the media.
Nine Entertainment Co
The AFR’s position was put by the journalist who sought access to the documents in the file, Mr Marin-Guzman. He argued that the evidence proffered by the respondents did not support the making of suppression or non-publication orders. He stressed in that regard, citing Rinehart v Welker (2011) 93 NSWLR 311, The Country Care Group Pty Ltd v Commonwealth DPP and Commonwealth of Australia v De Pyle [2024] FCAFC 43, that such orders should only be made in exceptional circumstances. He also argued that the respondents should have led specific evidence to establish the existence of exceptional circumstances necessitating suppression or non-publication orders. In that connection Mr Marin-Guzman cited Koulouris v Sourasis [2025] FCA 452 and the comment of Sarah Derrington J at [17] that:
… In circumstances where the only parties suggesting that the mediation could be impeded are the same parties seeking the suppression orders, it is incumbent upon those parties to provide more than mere assertion that should the details of the proceeding be made public, the mediation would be impeded.
The AFR argued that the respondents’ arguments were no more than mere assertion and more was necessary before the Court would make the orders sought.
It was also argued that mediations were not something new under the sun and that matters had been mediated successfully in the past and prior to authorities such as Porter v Australian Broadcasting Corporation [2021] FCA 863, Patterson v Westpac, Saw v Seven Network and Griffin v Bartier Perry. Mr Marin-Guzman submitted that the argument that suppression or non-publication orders are necessary to assist the mediation process ignores that long history. He also submitted that something specific and exceptional had to be placed before a court before suppression or non-publication orders would be made because otherwise applications such as the present would become the default position of litigants, particularly those in FW Act proceedings.
It was pointed out that in this case the parties had already been to mediation, in the form of a Fair Work Commission (Commission) mediation or conciliation conference under s.368 of the FW Act. The AFR submitted that if the Court was minded generally to restrict the availability of document until a mediation in its proceeding was held, then the attractiveness of the Commission’s process would be undermined, leading parties to not engage in it properly, whereas the value of that process would be reinforced if documents were made available in the Federal courts. Such reinforcing would, it was submitted, reflect the legislative intention of the relevant provisions and would assist the Federal courts by encouraging settlement at the Commission stage.
DISCUSSION
It is to be recalled that the matter has been referred to a mediation that is to be held once the respondents file their defence, which is to be no later than 25 July 2025.
In The Country Care Group case the Full Court of the Federal Court said at 379 [8]-[9]:
Suppression or non-publication orders should only be made in exceptional circumstances … That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice ... The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle ...
The critical question 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” ... It is nevertheless not to be given an unduly narrow construction … The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it ... There is no exercise of discretion or balancing exercise involved … (citations omitted)
In Saw v Seven Network Perram J said [8]-[10]:
The resources of the Court are finite. Every case which is not settled must be heard and determined. Consequently, the Court encourages parties to settle their litigation and it is in the interests of the administration of justice that they do so. Where proceedings have been settled, it has been accepted by many judges of this Court that non-publication and suppression orders may be made over documents on the Court file so that parties can be assured that settled proceedings remain confidential. …
The same policy considerations which support the making of such an order after the settlement of a proceeding would, in an appropriate case, justify the making of such an order before a mediation, at least where the mediation is imminent and one party believes keeping the matter confidential will increase the chances of settlement.
For example, in Patterson v Westpac Banking Corporation [2024] FCA 629, Raper J recognised that “when determining the necessity of preventing prejudice to the proper administration of justice, account may be taken of the fact that the lack of access [to pleadings and other documents filed with the Court], may enhance the prospects of the parties’ negotiations”: [21] (citations omitted). That follows from the “very significant public interest” that exists “in the settlement of proceedings, particularly at an early stage”, and the fact that such negotiations ‘“can be inhibited if the allegations which are the subject matter of the proceeding are fully in the public domain’” …
I respectfully adopt those statements of the law and policy.
The AFR placed some reliance on Koulourisv Sourasis but that case is distinguishable from this one for a number of reasons. Most relevantly, in Koulouris the application for suppression was partly based on the negative effect publication of information in the court file might have on a factually complex commercial negotiation which, it was said, might, if it were successful, lead to the settlement of the Koulouris proceeding. An important variable in that negotiation was whether any adverse publicity might constitute a “material adverse change” under the transaction documents and permit recission by a company proposing to invest funds in one of the respondents that could be used to settle the proceeding or, alternatively, might cause that investor to exercise rescission rights under a condition precedent whose requirements might otherwise have been waived. Given those factual contentions it is, with respect, unsurprising that Sarah Derrington J stated that more than mere assertion was required before her Honour would conclude that the proper administration of justice required the suppression of information in the court file on the basis that the postulated mediation might founder if that information became public.
By contrast, in this case, the contentions advanced by the respondents were based on a few simple propositions predicated on the desirability of the matter settling at the mediation ordered on 26 May 2025 and the risk to that outcome which making the documents on the court file available for inspection might present. In that connection, the following comments of Judge Doust in Griffin v Bartier Perry at [44] are apposite:
… As to the Form 2, I have not been persuaded by Fairfax’s submissions that the Court should make orders for the partial release of those parts or paragraphs of that document, the release of which would not result in any prejudice to the administration of justice. That submission is an invitation to second guess the interests of the parties in the confidentiality of the contents of the Form 2. It is implicit in the reasoning of both Perram J and Raper J [in Saw v Seven Network and Patterson v Westpac respectively] that the prospect of maintaining confidentiality is to be regarded as having a value in the mediation process; its maintenance pending exhaustion of that process is therefore necessary to avoid a deleterious impact to the prospects of the mediation succeeding. The prospects of resolution of the proceeding rest entirely in the hands of the parties at the mediation stage, and may be affected by considerations which are not apparent to the outside observer.
I acknowledge the AFR’s implicit submission that the circumstances of this matter were not exceptional and did not merit the making of the orders sought by the respondents. However, that qualification which is found in the authorities is not a test that must be satisfied but an epigrammatical observation on the practical difficulty of clearing the statutory hurdles standing in the way of the making of a suppression order. In this matter, as in earlier ones, the relevant test concerns what is necessary to prevent prejudice to the proper administration of justice. In that connection, it was observed by Perram J in Saw v Seven Network at [7], in comments as applicable to ch.4 of the Act as to the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), that the overarching purpose of the civil practice and procedure provisions of the Federal Court Act is the quelling of disputes:
… as quickly, inexpensively and efficiently as possible.
In this Court, the significance of that statement is reinforced by r. 1.04 of the Rules which states:
1.04 Overarching purpose
(1)The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
(2) To assist the Court, the parties must:
(a) avoid undue delay, expense and technicality; and
(b) consider options for primary dispute resolution as early as possible. (emphasis added)
Mr Edwards, who one infers has some understanding of the facts of the dispute, at least from the respondents’ perspective, and of his clients’ attitudes to those facts as they understand them, has deposed that the respondents are concerned that access to and publication of information in the Court’s file may compromise the mediation’s prospects of success. It is appropriate and unsurprising that parties reflect on and have opinions about such matters and it is only they who can have a full understanding of what is or might be important considerations when trying to settle a matter. This is not a case, as Koulouris was, where the applicants for suppression advance contentions concerning a multi-step process that might lead to settlement of the proceeding and which, in the absence of supporting evidence, are not much more than speculations. In this case Mr Edward deposes to his own clients’ concerns regarding the forthcoming negotiation, which can be taken to be within his competence.
I also acknowledge the AFR’s concern that applications such as the present might become standard practice if all a party needed to do to secure suppression of documents on the Court’s file was to refer to the risk that release of the documents potentially posed to a forthcoming mediation. However, accepting that submission would appear to involve accepting what seems to be an implication that many or most of such applications would be unmeritorious but would be successful despite that lack of merit. I am not persuaded that that would be so. Each application such as the present is a serious matter. In each case, it is a question of the evidence presented and what the applicant for suppression, or their solicitor, is willing to depose to in an affidavit, on pain of penalty for making a false statement in an affidavit. While one cannot say that, in the future, no unmeritorious applications for suppression or non-publication orders will be successful, neither has it been demonstrated that forensic processes will, to a material extent, fail to identify such lack of merit.
As to whether the Court should hesitate to make suppression or non-publication orders because doing so might influence parties’ attitudes to mediation or conciliation conferences before the Commission, the answer to that concern is supplied by the Full Court of the Federal Court in The Country Care Group case at 379 [9] where it was said:
… Once the court is satisfied that an order is necessary, it would be an error not to make it.
CONCLUSION
Based on the evidence provided in the affidavit of Mr Edwards and for the reasons I have given, I find that it is necessary in order to prevent prejudice to the administration of justice that orders of the sort sought by the respondents be made. In doing so I note that those orders will not operate later than 7 days from the conclusion of the mediation ordered on 26 May 2025, which is an important qualification that reflects the underlying reason for making the orders.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 12 June 2025
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