Krishnan v Estee Lauder Pty Ltd (No 3)
[2022] FCA 275
•28 February 2022
FEDERAL COURT OF AUSTRALIA
Krishnan v Estee Lauder Pty Ltd (No 3) [2022] FCA 275
File number: WAD 156 of 2021 Judgment of: BANKS-SMITH J Date of judgment: 28 February 2022 Date of publication of reasons: 24 March 2022 Catchwords: PRACTICE AND PROCEDURE - application for suppression or non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) - identification of name and address of applicant - identification of personal or financial information - whether order necessary to prevent prejudice to the proper administration of justice or to protect the safety of any person - application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG
Federal Court Rules 2011 (Cth) rr 2.16, 2.32, 11.01
Cases cited: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359
Krishnan v Estee Lauder Pty Ltd [2022] FCA 273
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 17 Date of hearing: 28 February 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr D Larish Solicitor for the Respondent: Baker McKenzie ORDERS
WAD 156 of 2021 BETWEEN: MEENAKSHI KRISHNAN
Applicant
AND: ESTEE LAUDER PTY LTD (ACN 008 444 719)
Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
28 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application for non-publication or suppression orders is dismissed.
2.No order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
The applicant, Ms Krishnan, commenced these proceedings in June 2021.
In reasons published in Krishnan v Estee Lauder Pty Ltd [2022] FCA 273 I set out the nature of the claim brought by Ms Krishnan against the respondent (primary reasons).
In short, Ms Krishnan commenced these proceedings seeking relief arising out of her purchase of certain beauty products in circumstances where the advertised ingredients did not align with the ingredients in the products purchased.
From time to time Ms Krishnan has informally requested that the Court make suppression or non-publication orders. In correspondence with chambers she sought non-disclosure of her 'full name, home address, date of birth, age, financial situation, personal and family life'. Having given her prior notice, I required Ms Krishnan to formally make an application at a hearing on 28 February 2022. The respondent did not seek to make submissions about the application.
I dismissed the application and explained briefly at the hearing why I had come to that decision. These are my reasons for doing so.
The only reason put forward by Ms Krishnan in support of an application for suppression was that the proceedings were causing anxiety and that she was receiving medical treatment for anxiety. In letters to the Court she requested that the Court 'keep the public informed without disclosing any other personal and family information' as it 'can trigger anxiety'. She said that she 'may not be up to answering media'. Ms Krishnan read out a medical certificate during the hearing and later provided it to my chambers. The medical certificate confirmed that Ms Krishnan had been receiving medical treatment for 'anxiety and mental health' since August 2020, but did not purport to link it in any way to the proceedings or suggest that it might be exacerbated by the proceedings or any attention they may garner. I note that Ms Krishnan did not seek to formally adduce any evidence in support of her application. But be that as it may, on this occasion I have had regard to the matters she referred to in the letters to the court and her submissions, and to the medical certificate.
Before addressing the non-publication and suppression provisions, I note that r 2.16 of the Federal Court Rules 2011 (Cth) sets out the requirements for what must be included in the footer of each court document, including the address for service of the party. Rule 11.01 specifies the nature of an address for service - being a place where documents can be left during office hours and posted to. The public can generally access a party’s address without restriction from the originating process, pursuant to r 2.32(2). Where a party is represented, that address will generally be that of their solicitors. However, it is not necessary in the case of a self‑represented litigant (such as Ms Krishnan) that the address specified in the footer of court documents be their residential address: r 2.16 simply requires that 'the address for service' must be provided.
Section 37AF and s 37AG of the Federal Court of Australia Act 1976 (Cth) are as follows:
37AF Power to make orders
(1)The Court 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 Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1)The Court 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.
'Non-publication order' means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information), and 'suppression order' means an order that prohibits or restricts the disclosure of information (by publication or otherwise): s 37AA.
Section 37AE provides that when deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The threshold is high, having regard to principles of open justice. I must be satisfied that it is 'necessary' to make a suppression or non-publication order, and 'necessary' is a strong word: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30]. It is insufficient that the making of such an order might appear to be convenient, reasonable or sensible: Hogan at [31].
Whilst Ms Krishnan did not specify the grounds on which she sought orders, I will assume that the potentially relevant grounds are those referred to in s 37AG(1)(a) and s 37AG(1)(c).
I do not consider an order suppressing Ms Krishnan's name or address is 'necessary' simply because Ms Krishnan wishes to avoid media scrutiny about the proceedings she has instituted. The proceedings have been on foot for some time and Ms Krishnan evinced no evidence of anyone contacting her to discuss her claim or making inquiries in that regard, and therefore it is not apparent whether there is any real risk of such scrutiny. I accept that in certain circumstances deterring persons from taking or continuing legal action may be a form of prejudice to the administration of justice: see the analysis of the authorities undertaken by Jackson J in Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359 culminating at [57]‑[58]. Ms Krishnan did not suggest that she would be deterred from continuing with her claim if she was identified by media scrutiny as the applicant in the proceedings. I am not prepared to infer that would be the case. Ms Krishnan has not referred to any other potential form of prejudice to the administration of justice. A real risk of serious interference with the administration of justice by disclosure must be demonstrated, and I am not satisfied that it has been demonstrated in his case.
I have also taken into account that psychological harm can fall within the concept of a risk to the safety of any person: AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46; (2019) 97 NSWLR 1046 at [59]. I accept that Ms Krishnan suffers from anxiety and that these proceedings in general cause her anxiety. Regrettably, a level of anxiety and distress is not uncommon for litigants involved in proceedings, including where parties are represented. However, there is no evidence that disclosure of the information that Ms Krishnan seeks to have suppressed would lead to an increase in anxiety such as to constitute psychological harm.
The generality with which Ms Krishnan expresses her concern means that the evidence does not establish that suppression or other non-publication orders are necessary to protect her safety.
It is important, however, to note that it would not be usual for a Court to disclose information such as 'date of birth, age, financial situation, personal and family life' in published reasons unless there were some relevance to such information. For example, in this case Ms Krishnan has not evinced evidence that I understand to fall within the category of 'financial situation, personal and family life'. It has not been necessary to disclose Ms Krishnan's age. It has been necessary to refer to Ms Krishnan's anxiety because that is the foundation of this claim for non‑publication or suppression orders. There is some mention of doctors' fees and counselling in the primary reasons when setting out the itemisation of Ms Krishnan's damages claim, but nothing of substance relating to the reasons for such alleged incurred costs is discussed. Otherwise any references to Ms Krishnan's anxiety in the primary reasons are only general in nature. Caution by the Court in published reasons would not necessarily prevent disclosure of information by non-party access to affidavits that have been read in the proceedings, but Ms Krishnan has not pointed to any particular information contained in the small number of affidavits that she has filed and relied upon that she specifically seeks to have protected by non-publication or suppression orders.
For those reasons I declined to make non-publication or suppression orders as sought by Ms Krishnan.
There should be no order as to the costs of the application.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 24 March 2022
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