Karas v LK Law Pty Ltd (No 2) - [2023] FCAFC 55

FEDERAL COURT OF AUSTRALIA
Karas v LK Law Pty Ltd (No 2) [2023] FCAFC 55

Appeal from: LK Law Pty Ltd v Karas [2022] FCA 762

File number: SAD 112 of 2022

Judgment of: CHARLESWORTH, O’CALLAGHAN AND COLVIN JJ

Date of judgment: 5 April 2023

Catchwords: PRACTICE AND PROCEDURE – where primary judge made a suppression order pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Act) to treat certain documents as confidential –
interlocutory application by appellant seeking orders pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act that parts of the reasons for judgment of Full Court be suppressed

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF(1)(b), 37AG(1)(a)

Cases cited: Karas v LK Law Pty Ltd [2023] FCAFC 15

Division: General Division

Registry: South Australia

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 24

Date of last submission/s: 3 March 2023

Date of hearing: Determined on the papers

Counsel for the Appellant: Mr J Sheahan KC with Mr G Kozminsky and Ms E Brumby

Solicitor for the Appellant: Arnold Bloch Leibler

Counsel for the Respondents: Mr B Roberts KC with Mr T Besanko and Ms H Doyle

Solicitor for the Respondents: Kerrs

ORDERS

SAD 112 of 2022

BETWEEN:
JASON DEMETRIOS KARAS

AND:
LK LAW PTY LTD

First Respondent

SCIPIO JOHN LIPMAN

Second Respondent

LIPMAN FAMILY PTY LTD (ACN 627 125 580)

Third Respondent

ORDER MADE BY:

CHARLESWORTH, O’CALLAGHAN AND COLVIN JJ

DATE OF ORDER:

5 APRIL 2023

THE COURT ORDERS THAT:
1.The Full Court’s reasons for judgment in this matter in the form published to the parties, their legal representatives and Court staff on 17 February 2023 be amended in order to constitute the final reasons of the Court for general publication by redacting the content of paragraph [43] and in paragraph [54] by redacting the second sentence following the words “himself described”.
2.The redactions provided for in order 1 remain in effect only for as long as any relevant suppression order applies in Proceeding No. SAD222/2021.
3.These orders take effect notwithstanding the suppression order made in Proceeding No. SAD222/2021.
4.The appellant’s interlocutory application dated 23 February 2023 otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
THE COURT:

We published to the parties, their legal representatives and Court staff our reasons in this matter on 17 February 2023. See Karas v LK Law Pty Ltd [2023] FCAFC 15.
Orders 3, 4 and 5 of the orders made on that date were:
3.The reasons for judgment provided to the parties today (Reasons) be suppressed from publication on the grounds specified in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) and otherwise kept confidential until:
(a)if an application is filed in accordance with paragraph 4, the date of the resolution of that application; or
(b)if no application is filed in accordance with paragraph 4, 10.00am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FCAFC 55
Decision Date: 5 April 2023

CaseChat Overview and Summary

Karas, a litigant, appealed against a decision of the Full Court of the Federal Court of Australia, which had previously dismissed an application for suppression of certain documents in a proceeding. The appeal was centred on the suppression order made by the primary judge under sections 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The appellant sought orders to suppress parts of the reasons for judgment of the Full Court, contending that the publication of those parts could prejudice any future proceedings. The legal issues before the court involved the interpretation of the relevant sections of the Act and the balance between the public's right to access court documents and the need to protect sensitive information.

The court examined the arguments put forward by the appellant regarding the necessity of suppressing specific parts of the Full Court’s reasons for judgment. The Full Court had to determine whether the parts in question contained information that, if published, could indeed prejudice any future proceedings, and whether this outweighed the public interest in access to judicial documents. The court found that while the appellant's concerns about potential prejudice were valid, the parts of the reasons for judgment that were sought to be suppressed did not contain any information that could reasonably be considered as likely to prejudice any future proceedings. Consequently, the appeal was dismissed with the court affirming that the reasons for judgment could be published as they stood, except for specific redactions made to address any immediate concerns about potential prejudice.

The court ordered that the Full Court’s reasons for judgment, as published on 17 February 2023, be amended by redacting specific parts of paragraphs [43] and [54]. These redactions were to remain in effect only for as long as any relevant suppression order applied in the original proceeding. The appellant's application for further suppression was dismissed, and the orders made by the Full Court were to take effect notwithstanding the existing suppression order.

Orders

Orders of the court

1. The Full Court’s reasons for judgment in this matter in the form published to the parties, their legal representatives and Court staff on 17 February 2023 be amended in order to constitute the final reasons of the Court for general publication by redacting the content of paragraph [43] and in paragraph [54] by redacting the second sentence following the words “himself described”.

2. The redactions provided for in order 1 remain in effect only for as long as any relevant suppression order applies in Proceeding No. SAD222/2021.

3. These orders take effect notwithstanding the suppression order made in Proceeding No. SAD222/2021.

4. The appellant’s interlocutory application dated 23 February 2023 otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	LK Law Pty Ltd v Karas [2022] FCA 762
File number:	SAD 112 of 2022
Judgment of:	CHARLESWORTH, O’CALLAGHAN AND COLVIN JJ
Date of judgment:	5 April 2023
Catchwords:	PRACTICE AND PROCEDURE – where primary judge made a suppression order pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Act) to treat certain documents as confidential – interlocutory application by appellant seeking orders pursuant to ss 37AF(1)(b) and 37AG(1)(a) of the Act that parts of the reasons for judgment of Full Court be suppressed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AF(1)(b), 37AG(1)(a)
Cases cited:	Karas v LK Law Pty Ltd [2023] FCAFC 15
Division:	General Division
Registry:	South Australia
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	24
Date of last submission/s:	3 March 2023
Date of hearing:	Determined on the papers
Counsel for the Appellant:	Mr J Sheahan KC with Mr G Kozminsky and Ms E Brumby
Solicitor for the Appellant:	Arnold Bloch Leibler
Counsel for the Respondents:	Mr B Roberts KC with Mr T Besanko and Ms H Doyle
Solicitor for the Respondents:	Kerrs

ORDER MADE BY:	CHARLESWORTH, O’CALLAGHAN AND COLVIN JJ
DATE OF ORDER:	5 APRIL 2023