Kean v Sky Channel Pty Ltd
[2025] FedCFamC2G 1171
•25 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kean v Sky Channel Pty Ltd [2025] FedCFamC2G 1171
File number(s): SYG 2098 of 2025 Judgment of: JUDGE LAING Date of judgment: 25 July 2025 Catchwords: PRACTICE AND PROCEDURE – application for non-publication and suppression orders – where application made in the context of an upcoming mediation – whether orders for a limited period are necessary to prevent prejudice to the proper administration of justice – orders made Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 229, 230, 231, 232, 233 & 229
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 2.11
Cases cited: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; (2014) 320 ALR 195
Dincer v Amazon Support Services Pty Ltd (No 2) [2025] FedCFamC2G 906
Griffin v Bartier Perry Pty Limited [2025] FedCFamC2G 442
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
McLaughlin v Glenn [2020] FCA 679
Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101
Porter v Australian Broadcasting Corporation [2021] FCA 863
Saw v Seven Network (Operations) Ltd [2024] FCA 1210
Taylor v Nationwide News Pty Limited [2021] FCA 664
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377
Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293
Division: General Number of paragraphs: 23 Date of hearing: 21 July 2025 Place: Sydney Solicitor for the Applicant: Mr R Aslanian of Connect Legal Counsel for the First Respondent: Ms K Eastman SC with Mr G Gee Solicitor for the First Respondent: King & Wood Mallesons Second Respondent: No appearance ORDERS
SYG 2098 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHYNNA KEAN
Applicant
AND: SKY CHANNEL PTY LTD ABN 77 009 136 010
First Respondent
JOHN SCORSE
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
25 JULY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), disclosure or publication of the following material (except to the parties, their legal representatives, Court staff and/or any process server engaged to serve documents upon a party) be prohibited on the ground that the order is necessary to prevent prejudice to the proper administration of justice pursuant to s 231(1)(a):
(a) the Application filed by the Applicant on 18 June 2025;
(b) the affidavit of Simone Tania Aloi sworn 8 July 2025;
(c) the affidavit of Simone Tania Aloi sworn 16 July 2025; and
(d) the First Respondent’s Outline of Submissions dated 8 July 2025.
2.Order 1 is to apply until seven days after termination of the mediation scheduled pursuant to the Orders made on 16 July 2025.
3.The Application in a Proceeding filed by the First Respondent is otherwise dismissed.
4.Order 4 of the Orders made on 9 July 2025 be vacated.
5.Liberty to apply.
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 LAING:
In this proceeding, the applicant (Ms Kean) makes allegations and seeks relief against the respondents. The proceeding is at an early stage. Although an Application has been made, no Statement of Claim has yet been filed nor any consequent pleading in the matter. The second respondent (Mr Scorse) has only recently been served. The matter has been referred to mediation. The mediation is scheduled to take place between 21 August 2025 and 9 September 2025.
In the afternoon before the first court date in this matter, the first respondent (Sky Channel) lodged an Application in a Proceeding (Interim Application) seeking orders pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), or alternatively s 233 of the FCFCOA Act, in relation to various material and information. At the first court date, I declined to make orders under s 230 of the FCFCOA Act but made interim orders under s 233 in an amended form to that which had been sought. The matter was stood over for hearing of the Interim Application on 21 July 2025.
At the hearing of the application, I expressed concerns regarding the breadth of the orders sought in the Interim Application as well as their proposed duration. An amended version of the orders sought was ultimately pressed. For the reasons that follow, I have been persuaded that orders ought to be made in accordance with the revised orders sought by Sky Channel.
RELEVANT PRINCIPLES
Part 7 of the FCFCOA Act governs the making of suppression and non-publication orders. Sections 229 to 232 provide:
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:
(a)information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence; or
(ii)information obtained by the process of discovery; or
(iii)information produced under a subpoena; or
(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;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
232 Procedure 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 its own initiative or on the application of:
(a) a party to the proceeding concerned; or
(b)any other person considered by the Court to have a sufficient interest in the making of the order.
(2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non-publication order:
(a) the applicant for the order;
(b) a party to the proceeding concerned;
(c)the Government (or an agency of the Government) of the Commonwealth or a State or Territory;
(d)a news publisher;
(e)any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.
(3)A suppression order or non-publication order may be made at any time during a proceeding or after a proceeding has concluded.
(4)A suppression order or non-publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.
(5)A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.
Rule 2.11(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) provides that a non-party to a proceeding may inspect certain documents in a proceeding. However, r 2.11(3) qualifies this where the Court has ordered that the document(s) be confidential, or where the person is not entitled to inspect the document because of a suppression order or non-publication order. Further, r 2.11(4) allows an application for leave to inspect a document that a person is not otherwise entitled to inspect.
A suppression or non-publication order may be made on grounds identified in s 231 of the FCFCOA Act. Those grounds include that “the order is necessary to prevent prejudice to the proper administration of justice”: s 231(1)(a).
Such orders are not to be lightly made. The word “necessary” has been recognised to be “… a strong word which reinforces the legislative intention that suppression orders should only be made in exceptional circumstances”: Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241; (2014) 320 ALR 195 at [23] (Jacobson J). It requires that there “must be some material before the Court upon which it can reasonably conclude that the order is necessary”: Taylor v Nationwide News Pty Limited [2021] FCA 664 at [18] (Katzmann J). In this regard, “[c]ogent evidence is needed and a belief that the orders are necessary will not be sufficient”: Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 at [26] (Jackson J).
In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, the relevant principles were summarised as follows at [8]-[9] (Allsop CJ, Wigney and Abraham JJ):
8Suppression 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].
9The 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 Limited (No 3) [2012] FCA 1430 at [21].
The Court is required by s 229 of the FCFCOA Act to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Sky Channel observed that it has been considered that the principle of “open justice” reflects the common law understanding of that concept: Saw v Seven Network (Operations) Ltd [2024] FCA 1210 (Saw) at [17], [20] (Perram J). At common law, the principle of open justice does not require that access be granted where a document has not been used in open court: Saw at [17].
In any event, a number of cases have found suppression and/or non-publication orders necessary to prevent prejudice to the proper administration of justice within the context of mediation. In Saw, Perram J considered at [8]-[10]:
8The 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. Sometimes this has been achieved by removing sensitive pleadings from the Court file and placing them in a physical envelope marked ‘Not to be opened or made available for inspection by the public other than by the leave of the Court’: Porter v Australian Broadcasting Corporation [2021] FCA 863 at [118] per Jagot J. In other cases, the Court has made non-publication and suppression orders with respect to parts of pleadings following the settlement of proceedings and ordered that they be confidential under r 2.32 of the Federal Court Rules 2011 (Cth) (‘FCR’): Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at [5], [30] per Raper J; McLaughlin v Glenn [2020] FCA 679 at [15], [31] per Abraham J; Valentine Fremantlemedia Australia Pty Ltd [2013] FCA 1293 (‘Valentine’) at [9] per Mortimer J (as the Chief Justice then was).
9The 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.
10For 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”’: [20] (quoting Valentine at [14]). For these reasons, Raper J issued a non-publication and suppression order pursuant to s 37AF of the FCA Act over pleadings, applications, and related submissions in circumstances where, as here, a mediation had yet to take place and a defence had not been filed: [2], [30].
In Griffin v Bartier Perry Pty Limited [2025] FedCFamC2G 442, suppression and non-publication orders were made by Judge Doust over certain material until fourteen days after the termination of the Court-ordered mediation process. Similar orders were made recently by Judge Cameron in Dincer v Amazon Support Services Pty Ltd (No 2) [2025] FedCFamC2G 906, which were expressed to operate until 7 days after the termination of the Court-ordered mediation process.
THE PRESENT APPLICATION
All parties have indicated their consent to the orders sought in the Interim Application. Although Mr Scorse did not appear at the hearing of the Interim Application, his support was indicated in correspondence. No non-party has sought to be heard in relation to the application.
Sky Channel submitted that there would be prejudice to the administration of justice if specified documents on the Court file were disclosed. This was said to be so for essentially three reasons.
The first concerns the impact upon the upcoming mediation. Sky Channel observed that the matter has been referred to mediation, which is scheduled to occur between 21 August 2025 and 9 September 2025. It was observed that during a confidential mediation, parties should be able to exchange views and discuss matters openly and frankly. Sky Channel submitted that maintaining confidentiality of court documents during mediation is often a critical aspect to a successful resolution, as parties may feel inhibited in conducting negotiations if allegations made in the proceeding are in the public domain or may undermine a possible agreed confidential outcome: Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293, [13]-[14] (Mortimer J, as her Honour then was); Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [30] (Mortimer J); McLaughlin v Glenn [2020] FCA 679 at [27] (Abraham J); and Porter v Australian Broadcasting Corporation [2021] FCA 863 at [44], [99]-[105] (Jagot J).
The second reason concerns the status of the proceeding. In this regard, it was submitted that due to the preliminary stage of the matter, there is a risk that any disclosure or publication of the allegations in the application (as they stand) would not represent the case that is ultimately pleaded and may be unbalanced and inaccurate. This is in circumstances where Ms Kean has not served her proposed Statement of Claim and the respondents have not filed a Defence. Sky Channel submitted that it would erode public confidence in the administration of justice to expose the respondents to a “trial by media”, before they have had a chance to answer the case that is actually put against them.
The third matter relied upon concerns a summary dismissal application intended to be filed by Sky Channel if the mediation is unsuccessful. It is unnecessary (and undesirable) to set out in detail the proposed basis of this application. However, Sky Channel submitted that it would cause prejudice to the proper administration of justice to allow disclosure and publication of the information in the documents that are the subject of this application before the Court has determined matters central to the summary dismissal application.
I understood the third argument to be directed towards the proposed orders as originally framed, which extended to after determination of the summary dismissal application. At the hearing on 21 July 2025, potential issues with this proposal were discussed. The revised form of orders proposed by Sky Channel provided for expiry of any orders made under s 230 of the FCFCOA Act a limited time after termination of the mediation. I accept, however, that the situation regarding the summary dismissal application may inform the significance of maintaining confidentiality within the context of the mediation.
I am persuaded that the revised orders proposed by Sky Channel are necessary to prevent prejudice to the proper administration of justice within the meaning of s 231(1)(a) of the FCFCOA Act. In particular, I am persuaded that the orders are necessary to preserve the prospects of the upcoming mediation that has been scheduled. As has been found now in a number of cases, such a situation is capable of giving rise to the necessity contemplated by s 231(1)(a) of the FCFCOA Act (and its counterpart in analogous legislation).
I am satisfied that Sky Channel genuinely intends to participate in the scheduled mediation. In the particular circumstances of this case, I also accept that Sky Channel has good reason to believe that the effectiveness of the mediation is likely to be compromised if the orders that have been proposed are not made. That position has been supported by Ms Kean. It is borne out on the evidence before the Court.
Having regard to the foregoing, I am persuaded that the orders sought are necessary to prevent prejudice to the proper administration of justice. They ought therefore to be made.
CONCLUSION
On the basis of the above, I will make suppression and non-publication orders in the revised terms ultimately sought by Sky Channel. Those orders will be expressed to operate for a limited period of time, expiring 7 days after the scheduled mediation that has been ordered by the Court.
The Interim Application will otherwise be dismissed. As the application will thereby be determined, this will result in the cessation of the (broader) suppression and non-publication orders made on an interim basis on 9 July 2025.
I will also make an order vacating Order 4 of the Orders made on 9 July 2025, which provided for the filing and service of a Statement of Claim. Although this order was originally proposed by Ms Kean and Sky Channel, they have subsequently sought that procedural orders regarding the pleadings be left until after the mediation, if unsuccessful.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 25 July 2025
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