Fraser-Kirk v David Jones Limited

Fraser-Kirk v David Jones Limited involved a dispute where the plaintiff sought particulars from the defendants, which were not provided. The defendants, in turn, sought an undertaking to protect the identity of unnamed persons referred to in the plaintiff's Amended Statement of Claim. The case was heard by the Federal Court of Australia, where the primary legal issue was whether the Court should grant an undertaking to protect the identity of unnamed persons, the form of such an undertaking, and the necessity of promptly disclosing information to enable meaningful defences to be filed.

The Court found that the principle of open justice required that all material placed in evidence before a court be open to public scrutiny. It was noted that the power to suppress names or evidence under section 50 of the Federal Court of Australia Act was strictly limited to circumstances in which it appeared to the Court that an order was “necessary … to prevent prejudice to the administration of justice”. The Court rejected the defendants' argument that the allegations were scandalous, untested, and of a deeply personal and private nature. Instead, the Court held that the principle of open justice operated on the premise that all the material placed in evidence before a court and on which it was asked to act was open to public scrutiny.

The Court dismissed the Amended Notice of Motion and ordered that the particulars previously requested by the defendants be provided forthwith, no later than 30 September 2010. The Court also ordered that such particulars as had been requested by the defendants in respect to paragraph [40A] of the Amended Statement of Claim be provided by no later than midday on 13 October 2010. If those particulars were not provided, that paragraph of the Amended Statement of Claim was to be struck out. The plaintiff was ordered to pay the costs of and incidental to the hearing of the Amended Notice of Motion filed on 27 September 2010. The defendants were ordered to file Amended Defences no later than 5.00 pm on 15 October 2010, and the proceeding was set down for hearing commencing on 20 December 2010.