Lattouf v Australian Broadcasting Corporation

[2025] FCA 62

FEDERAL COURT OF AUSTRALIA

Lattouf v Australian Broadcasting Corporation [2025] FCA 62

File number:

NSD 189 of 2024

Judgment of:

RANGIAH J

Date of judgment:

3 February 2025

Catchwords:

PRACTICE AND PROCEDURE - application for a suppression and non-publication order under s 37AF of the Federal Court of Australia Act 1976 (Cth) - whether the order is necessary to protect the safety of any person – that persons will be vilified or harassed if their identities and contact details were disclosed - application granted

Legislation:

Fair Work Act 2009 (Cth) ss 50 and 772

Federal Court of Australia Act 1976 (Cth) ss 37AA and 37AG(1)(c)

Federal Court Rules 2011 (Cth) r 2.32(4)

Cases cited:

Roberts-Smith v Fairfax Media Publications [2019] FCA 36

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

8

Date of interlocutory hearing:

3 February 2025

Counsel for the Applicant:

Mr O Fagir with Mr P Boncardo

Solicitor for the Applicant:

Maurice Blackburn

Counsel for the Respondent:

Mr I Neil SC with Ms V Bulut

Solicitor for the Respondent:

Seyfarth Shaw Australia

Counsel for the Intervenor:

Ms S Chrysanthou SC with Mr N Olson

Solicitor for the Intervenor:

Giles George

ORDERS

NSD 189 of 2024

BETWEEN:

ANTOINETTE LATTOUF

Applicant

AND:

AUSTRALIAN BROADCASTING CORPORATION

Respondent

ORDER MADE BY:	RANGIAH J
DATE OF ORDER:	3 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the ground that it is necessary to protect the safety of persons, for a period of 10 years, the names, identities, contact details and addresses of persons who made complaints to the respondent about its employment or engagement of the applicant in December 2023, are not to be published or otherwise disclosed, and may only be accessed from the Court file by the Court, Court staff, a party to these proceedings and their legal representatives.

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

REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1. In this proceeding, the applicant alleges that her employment was terminated by the respondent in contravention of ss 50 and 772 of the Fair Work Act 2009 (Cth).

2. On Saturday, 1 February 2024, an interlocutory application was lodged for filing on behalf of nine named persons seeking a non-publication order in respect of their identities and contact details.  I will refer to those persons as the Intervening Parties.

3. The Intervening Parties are persons who had made complaints to the respondent in December 2023 about the respondent’s employment of the applicant, which the applicant alleges contributed to the termination of her employment.  The identities and contact details of those persons are revealed in affidavits filed in the proceeding. 

4. The Court has, with the agreement of the parties, decided to broadcast the hearing via a live stream and has also set up an online file on which affidavits read in open court, exhibits and other documents will be uploaded and be accessible to all members of the public. While this will enhance the application of the principle of open justice, it also has the consequence of bypassing the process under r 2.32(4) of the Federal Court Rules 2011 (Cth), which requires that the Court’s leave be sought to access a range of documents, including affidavits that have been filed.

5. In the absence of orders preventing the publication and disclosure of the identities and contact details of the Intervening Parties, those details will be accessible to any member of the public.  The identities of the Intervening Parties have only peripheral relevance to the issues in this proceeding, and their contact details have no relevance. 

6. The Intervening Parties contend that a non-publication order is necessary “to protect the safety of any person” within s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Although the interlocutory application is expressed to seek a “non-publication order”, the draft order provided by the Intervening Parties is in fact a “suppression order” within the meaning of that term in s 37AA of the FCA Act. The applicant accepts that such an order ought to be made, and the respondent does not oppose its making.

7. In Roberts-Smith v Fairfax Media Publications [2019] FCA 36, Besanko J held at [16] and [17] that for the purposes of s 37AG(1)(c) of the FCA Act, it is not necessary to demonstrate the probability of harm; and that the necessity for an order will be informed by the nature, imminence and degree of likelihood of harm occurring.

8. I am satisfied from the material before me that there is a substantial risk that the Intervening Parties will face, at least, vilification and harassment if their identities and contact details were available to the public at large.  I am satisfied that a suppression and non-publication order is necessary to protect the safety of the Intervening Parties. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Associate:       

Dated:       7 February 2025