Farley v Mkr Capital Pty Ltd

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Farley v Mkr Capital Pty Ltd [2025] FedCFamC2G 1340  

File number(s): SYG 1689 of 2025
Judgment of: JUDGE ZIPSER
Date of judgment: 19 August 2025
Catchwords:

PRACTICE AND PROCEDURE – application for interim injunction or interlocutory relief – whether applicant has made out prima facie case – balance of convenience

PRACTICE AND PROCEDURE – application to extend interim non-publication or non-disclosure order in respect of information in affidavit of party – whether information was confidential – relevance of confidentiality clause in agreement between parties as alternative mechanism to prevent disclosure of information - whether order necessary to prevent prejudice to proper administration of justice

Legislation:

Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 233

Federal Circuit andFamily Court of Australia (Division 2) (General Federal Law) Rules 2021 r 30.04

Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082

Chief Executive Officer of Australian Transaction Reports and Analysis Centre v TAB Ltd (No 4) [2017] FCA 1532

Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 44; 275 FCR 377

Division: Division 2 General Federal Law
Number of paragraphs: 57
Date of hearing: 17 July 2025
Place: Parramatta
Applicant: Appeared in person
Counsel for the Respondents: Dilan Mahendra
Solicitor for the Respondents: Russell Kennedy

ORDERS

SYG 1689 of 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

THOMAS FARLEY

Applicant
AND:

MKR CAPITAL PTY LTD ABN 50 667 758 812

First Respondent

AARON ROWE

Second Respondent

ORDER MADE BY:

JUDGE ZIPSER

DATE OF ORDER:

19 AUGUST 2025

THE COURT ORDERS THAT:

1.The application for an interim injunction sought by the applicant in his application filed on 26 May 2025 is dismissed.

2.The application in a proceeding filed by the respondents on 2 July 2025 is dismissed.

3.Order 1 made on 17 July 2025 is vacated.

4.Order 3 above is stayed until 4 pm on 16 September 2025.

5.The proceeding is listed at 9:15 am on 29 August 2025 for:

(a)submissions on costs arising from the dismissal of the applications referred to in orders 1 and 2 above; and

(b)directions.

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 ZIPSER

INTRODUCTION

  1. On 17 July 2025, I heard:

    (a)an application for an “interim injunction” by the…

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Details
Case
[2025] FedCFamC2G 1340
Decision Date

CaseChat Overview and Summary

The case of Farley v Mkr Capital Pty Ltd involves an application for an interim injunction or interlocutory relief, specifically to release withheld wages, and to extend an interim non-publication or non-disclosure order in respect of information contained in an affidavit of the applicant, Mr Farley. The dispute arose out of an employment contract between Mr Farley and MKR Capital Pty Ltd, where Mr Farley was employed as an employee but was later terminated. Following his termination, it was discovered that there was a discrepancy in the final payout amount calculated by the employer, MKR Capital Pty Ltd, and the amount calculated by their accountant. The Federal Circuit and Family Court of Australia was tasked with deciding on these interlocutory applications.

The legal issues before the Court were whether Mr Farley had made out a prima facie case for the release of withheld wages and whether the information in his affidavit was confidential, necessitating an extension of the interim non-publication or non-disclosure order. The Court had to consider whether the information was indeed confidential and if the order was necessary to prevent prejudice to the proper administration of justice. Furthermore, the relevance of a confidentiality clause in the agreement between the parties as an alternative mechanism to prevent disclosure of information was evaluated.

In its reasoning, the Court examined the nature of the information contained in Mr Farley's affidavit and the circumstances under which it was disclosed. The Court found that the information in question was not confidential and did not require further protection beyond what was already provided by the confidentiality clause in the Employment Contract. Consequently, the Court determined that the making of a suppression or non-publication order was not necessary to prevent prejudice to the proper administration of justice. As such, the application for an interim injunction for the release of withheld wages was dismissed, and the application to extend the interim non-publication or non-disclosure order was also dismissed.

As a result of the Court's decision, the final orders were that the application for an interim injunction for the release of withheld wages was dismissed and the application to extend the interim non-publication or non-disclosure order was also dismissed. The Court extended the existing non-disclosure order on an interim basis until it published a decision in respect of the matters heard on 17 July 2025, with the intention to vacate the order if not persuaded that it should continue.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, each interlocutory application is dismissed.FACTUAL BACKGROUND In November 2024, discussions commenced between the applicant, Mr Farley and the second respondent, Mr Rowe, who is the principal of the first respondent, MKR, concerning MKR employing Mr Farley. On about 18 December 2024, the parties signed a contract of employment (Employment Contract). Some terms of the Employment Contract were:(a)The contract commencement date was 1 February 2025.(b)The total remuneration was “$180,000 USD (inclusive of 11.5% Super)”.(c)The probationary period was 6 months with 1 months’ notice.(d)Clause 27, titled “Confidential Information”, imposed obligations on Mr Farley to “maintain the confidentiality of information and documents to which you have access during or arising from your employment with MKR …” On 6 April 2025, Mr Rowe sent Mr Farley an email providing notice of termination of Mr Farley’s employment at MKR. On 8 April 2025, Mr Rowe sent Mr Farley an email “to agree [Mr Farley’s] final payout amount” which Mr Rowe calculated as USD $21,900. On 10 April, Mr Rowe, having now consulted with MKR’s accountant, sent Mr Farley an email which stated (Rowe 10 April Email):Please find attached payslips including the payslip for your final pay which has been prepared by MKR Capital accountants. There is a spreadsheet attached which reconciles everything and further information below. I have paid the $691.53 and it should be in your account now. The Rowe 10 April Email forwarded to Mr Farley an email from the accountant to Mr Rowe which stated in part (Accountant 10 April Email):Today, 10th April, final gross pay including superannuation, tax and annual leave payout was calculated as $35,523.11. This amount will be split as above:•$691.53 – paid directly to Tom•$8,004.04 – to Host Plus Superannuation Fund•$26,826 – to ATO as PAYG-WithholdingThe Accountant 10 April Email appeared immediately underneath the Rowe 10 April Email. When one reads the email chain, it is clear that Mr Rowe’s reference to “further information below” was a reference to the explanation in the Accountant 10 April Email.PROCEEDINGS IN THIS COURTEvents leading up to hearing on 17 July 2025 On 18 May 2025, Mr Farley lodged in this Court:(a)an application under the Fair Work Act 2009 (Cth) (Application) – required by r 4.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules); (b)a claim in accordance with the approved form (Claim) – required by r 30.04 of the Rules; and(c)an affidavit containing evidence on which he relied (Farley Affidavit). The Application included an application for an “interim injunction for the release of withheld wages”. This is the Withheld Wage Application. In the Claim:(a)Mr Farley seeks final relief, including a declaration, monetary orders and civil penalties totalling over $3,000,000: see pages 18-20 of the Claim.(b)Mr Farley sought an “urgent interim injunction” “for the release of withheld wages …”: see page 10 of the Claim. The amount of withheld wages sought was $35,961.19, which is closely related to the amount of $35,523.11 referred to in the email in paragraph 7 above. Again, this is the Withheld Wage Application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the end of the hearing I extended the June Non-Disclosure Order on an interim basis until I published a decision in respect of the matters heard on 17 July 2025. I did this by extending the non-disclosure order “until further order” with the intention that, on publishing a decision in respect of the Non-Disclosure Application, I could vacate the order if not persuaded that the order should continue. CONSIDERATIONNon-Disclosure Application Section 230 of the FCFCOA Act provides that the Court may, by making a suppression or non-publication order, prohibit or restrict the publication or disclosure of, among other matters, “information that comprises evidence” that relates to a proceeding. Section 231 of the FCFCOA Act species the grounds upon which the Court is permitted to make such an order. One of those grounds, being the ground on which the respondents rely in this case, is that “the order is necessary to prevent prejudice to the proper administration of justice”. Section 229 of the FCFCOA Act provides that, 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”. In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions [2020] FCAFC 44; 275 FCR 377 (Country Care) at [8]-[9] the Full Court stated:[8]Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. 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: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26]. [9]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”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. 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: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].