Farrell v Super Retail Group Limited (Closed Court Application)
[2024] FCA 1451
•11 December 2024
FEDERAL COURT OF AUSTRALIA
Farrell v Super Retail Group Limited (Closed Court Application) [2024] FCA 1451
File number: NSD 1009 of 2024 Judgment of: LEE J Date of judgment: 11 December 2024 Catchwords: PRACTICE AND PROCEDURE – application to close the Court – open justice – where evidence adduced in cross-examination may disclose information the subject of extant suppression order – extraordinary circumstances – order made to close the Court for as short as period as necessary to ensure justice is done in the proceeding Legislation: Federal Court of Australia Act 1976 (Cth) s 17(4) Cases cited: Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452
R v Davis (1995) 57 FCR 514
Super Retail Group Limited v Farrell [2024] FCA 1214
Division: Fair Work Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 8 Date of hearing: 11 December 2024 Counsel for the applicant: Mr S Prince SC with Mr P Moorhouse and Ms T Wong Solicitors for the applicant: Harmers Workplace Lawyers Counsel for the first, second, third and fifth respondents: Mr J Sheahan KC with Mr M Follett SC, Ms Z Hillman and Mr D Ward Solicitors for the first, second, third and fifth respondents: Allens Counsel for the fourth respondent: Ms S Palaniappan Solicitors for the fourth respondent: Arnold Bloch Leibler
ORDERS
NSD 1009 of 2024 BETWEEN: REBECCA FARRELL
Applicant
AND: SUPER RETAIL GROUP LIMITED
First Respondent
ANTHONY HERAGHTY
Second Respondent
KEVIN FIGUEIREDO (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to s 17(4) of the Federal Court of Australia Act 1976 (Cth), the cross-examination of Mr Harmer now proceed in a closed session of the Court for as short as period as necessary to ensure justice is done in the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
The first respondent, Super Retail Group Limited, has made an another, more refined and more limited application to close the Court.
It comes after an already lengthy cross-examination of the present witness, Mr Michael Harmer, during the trial of Ms Farrell’s claim for specific performance of an agreement allegedly struck on 6 May 2024 (Alleged 6 May Agreement).
On 14 October 2024, orders were made by a Judge of the Court suppressing certain information said to be confidential aspects of the Alleged 6 May Agreement, which is the foundation of Ms Farrell’s specific performance suit: Super Retail Group Limited v Farrell [2024] FCA 1214.
It is a fundamental aspect of the common law that the administration of justice take place in Courts to which the public and the media have access. It is critical that the courts operate openly, and the fact that the judicial power of the Commonwealth is exercised openly, and not in secret, distinguishes its governmental role from aspects of the operation of the executive government. I have previously expressed the view that if hearings are not held in open court, and courts operate consistently with notions of open justice, legitimate concerns may arise as to whether the administration of justice may be corrupted: Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452 (at [1]–[6]).
The open justice principle extends to the media being able to publish fair, full and accurate reports of proceedings. The ability of the media to report in this way is crucial in maintaining public confidence in the proper functioning of the judicial branch and the independence of the courts. As Wilcox, Burchett and Hill JJ observed in R v Davis (1995) 57 FCR 514 (at 514):
Whatever [the media’s] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.
The principle of open justice, however, admits extraordinary circumstances and is required, in those circumstances, to yield to the fundamental obligation of the courts to ensure that justice is done. Unless the law changes in a fundamental and profound way, closing courts or suppressing evidence is not a balancing exercise; it is one grounded in proven necessity. It means more than the mere embarrassment or sensitivity of parties or what an objective observer thinks might subjectively be fair to an individual litigant.
In this case, I am assured by highly experienced senior counsel, Mr Sheahan KC, that the cross-examination of Mr Harmer cannot continue to advance his client’s case adequately without necessarily disclosing material prohibited from publication and suppressed by an extant order of the Court (see [3]). This is after Mr Sheahan has explored all the other aspects of his cross- examination of the present witness in open court.
Accordingly, I am satisfied that this is one of those rare cases where extraordinary circumstances exist and that it is appropriate, for as short as period as is necessary, to close the Court. This reaches the very high bar of being the only way of allowing Mr Sheahan to advance his clients’ interest by putting propositions (which necessarily disclose the suppressed material) to the witness.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 16 December 2024
Schedule
No: NSD1009/2024
Federal Court of Australia
District Registry: New South Wales
Division: Fair Work
Interested Person
FAIRFAX MEDIA PUBLICATIONS PTY LIMITED
Second Respondent
ANTHONY HERAGHTY
Third Respondent
KEVIN FIGUEIREDO
Fourth Respondent
SALLY PITKIN
Fifth Respondent
ANNABELLE CHAPLAIN
Sixth Respondent
AMELIA BERCZELLY
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