FEDERAL COURT OF AUSTRALIA
Koulouris v Sourasis (Confidentiality Application) [2025] FCA 452
File number(s): QUD 3 of 2025 Judgment of: SARAH C DERRINGTON J Date of judgment: 2 May 2025 Date of publication of reasons: 6 May 2025 Catchwords: PRACTICE AND PROCEDURE – application by the first to fifth and seventh to thirteenth defendants for all documents on the Court file to be suppressed from disclosure or publication in their entirety – where the defendants have filed a defence – where the parties intend to proceed by mediation – where suppression and non-publication orders sought until conclusion of mediation – whether disclosure of documents might imperil mediation – whether suppression and non-publication orders necessary to prevent prejudice to the proper administration of justice – where matters sought to be protected already to some extent in the public domain – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37M
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954
Hogan v Hinch [2011] HCA 4; 243 CLR 506
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344
Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160; 294 FCR 221
Patterson v Westpac Banking Corporation [2024] FCA 629
Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311
Roberts-Smith v Fairfax Media Publications Pty Ltd [2019] FCA 36
Saw v Seven Network (Operations) Ltd [2024] FCA 1210
The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377
Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 23 Date of hearing: 2 May 2025 Counsel for the Plaintiffs: Mr D O’Brien KC and Ms G Yates Solicitor for the Plaintiffs: McInnes Wilson Lawyers Counsel for the First to Fifth and Seventh to Thirteenth Defendants: Mr G Lubofsky Solicitor for the First to Fifth and Seventh to Thirteenth Defendants: FSC Law Solicitor for the Sixth Defendant: Ms G Lakey of Hope & Co Lawyers ORDERS
QUD 3 of 2025 BETWEEN: GEORGE KOULOURIS
First Plaintiff
LATRIX ENTERPRISES PTY LTD ACN 113 233 159
Second PlaintiffKOULOURIS SUPERANNUATION PTY LTD ACN 153 570 659
Third PlaintiffAND: JASON ZACK SOURASIS
First Defendant
JASZAC INVESTMENTS PTY LTD ACN 128 619 483
Second Defendant
STRATEGIC FINANCIAL GROUP AUSTRALIA PTY LTD ACN 143 430 148 (and others named in the Schedule)
Third Defendant
ORDER MADE BY:
SARAH C DERRINGTON J
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The amended interlocutory application filed by the First to Fifth and Seventh to Thirteenth Defendants on 30 April 2025 be dismissed.
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- Case
- [2025] FCA 452
- Decision Date
CaseChat Overview and Summary
The court considered the settled principles for making suppression or non-publication orders under section 37AF of the Federal Court of Australia Act. The Full Court emphasised that such orders should only be made in exceptional circumstances, as they depart from the open justice principle. The court noted that the defendants had already filed a defence and that some matters sought to be protected were already in the public domain. The critical question was whether the suppression order was necessary to prevent prejudice to the proper administration of justice. The defendants argued that publication would substantially prejudice the prospects of resolving the matter through mediation and would have significant adverse commercial consequences. However, the Full Court found that the defendants' submissions did not meet the demanding statutory test for such orders.
The Full Court dismissed the amended interlocutory application for suppression and non-publication orders. The court lifted the interim suppression of the entirety of the file in proceeding QUD 3 of 2025, which had been effected by an earlier order. The defendants were ordered to pay the plaintiffs' costs of the interlocutory application.
Orders
Orders of the court
1. The amended interlocutory application filed by the First to Fifth and Seventh to Thirteenth Defendants on 30 April 2025 be dismissed.
2. The First to Fifth and Seventh to Thirteenth Defendants pay the Plaintiffs’ costs of the interlocutory application, to be taxed if not agreed.
3. The interim suppression of the entirety of the file in proceeding QUD 3 of 2025 which was effected by Order 3 of the Orders dated 11 April 2025 be lifted with effect from the date of these Orders.
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
The Full Court summarised the position in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377 at [7]-[9]:The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.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].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 Limited (No 3) [2012] FCA 1430 at [21].(Emphasis added.) More recently, in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 at [5], Lee J reiterated the deprecation by Full Courts of parties seeking inappropriately broad confidentiality and suppression orders notwithstanding the settled principles, and noted that courts have repeatedly sought to remind the profession of the express statutory limits on the making of such orders, the demanding nature of the statutory test involved, and the “very heavy” onus that needs to be discharged to obtain such an order.SHOULD THE SUPPRESSION ORDER BE MADE? In the present application, the Sourasis Defendants’ principal submission is that the publication of information in this proceeding to the media and the public will substantially prejudice the prospects of the parties resolving the matter at a mediation “to take place shortly”, and that any publication ought therefore be permitted only after a mediation takes place. Two reasons were said to ground that submission. First, if the deal does not go through because of the adverse publicity, it would deprive the eighth defendant, Sayers Road, of the funds it proposes to use to redeem the plaintiffs’ units and to repay the plaintiffs’ loan amounts. Secondly, publication would have significant adverse commercial consequences for the defendants, including Mr Sourasis himself, and would thereby significantly hamper any goodwill between the parties that would be necessary for a successful mediation.