Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de registered) (No 2)
[2024] FCA 326
•3 April 2024
FEDERAL COURT OF AUSTRALIA
Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de registered) (No 2) [2024] FCA 326
File number: NSD 1023 of 2022 Judgment of: CHEESEMAN J Date of judgment: 3 April 2024 Catchwords: PRACTICE AND PROCEDURE – application for non-publication/ suppression orders – where the evidence sought to be suppressed is a confidential settlement deed – whether orders are necessary to prevent prejudice to the proper administration of justice –– Held: application granted. Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG, 37AH, 37AJ ) Cases cited: Elliott v State of Victoria (Department of Education & Training) [2018] FCA 1029 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 14 Date of joint submission: 28 March 2024 Date of hearing: Determined on the papers. Solicitors for the plaintiffs: Iles Selley Lawyers Solicitor for the first defendant: Did not appear Solicitor for the second defendant: Did not appear Solicitor for the Interested Party (Andrew Binetter): Pitcher Partners Solicitor for the Interested Party (Michael Binetter): Braddon Marx Lawyers
ORDERS
NSD 1023 of 2022 BETWEEN: LIGON 158 PTY LIMITED (IN LIQUIDATION) ACN 003 464 015
First Plaintiff
ERMA NOMINEES PTY LIMITED (IN LIQUIDATION) ACN 000 957 040
Second Plaintiff
ERBIN FINANCES PTY LIMITED (IN LIQUIDATION) ACN 138 259 800 (and others named in the Schedule)
Third Plaintiff
AND: SHIELD HOLDINGS AUSTRALIA PTY LIMITED (DE-REGISTERED) ACN 078 881 035
First Defendant
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Second Defendant
ORDER MADE BY:
CHEESEMAN J
DATE OF ORDER:
3 APRIL 2024
THE COURT ORDERS THAT:
1.Until further order, pursuant to sections 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the parts of the reasons for judgment dated 6 March 2024 (Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de registered) [2024] FCA 144) listed in order 2 below and the joint submissions filed by the parties on 28 March 2024:
(a)be kept confidential;
(b)to the extent that such material is held by the Court in paper form, be held with the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge”;
(c)to the extent that such material is held by the Court in electronic form, be kept in a confidential section of the relevant Court file;
(d)not be published, made available (whether electronically or otherwise) or disclosed (by publication or otherwise) to any other person than:
(i)the Court;
(ii)the parties to this proceeding, including the Interested Parties, and their respective legal representatives;
(iii)the Commissioner of Taxation and his legal representatives.
2.Order 1 above applies to the following parts of the reasons for judgment dated 6 March 2024:
(a)the first sentence of [77];
(b)the second to last sentence of [85];
(c)the words after “debts” and before “pursuant” in [95];
(d)subparagraphs (1) to (3) (inclusive) of paragraph [101];
(e)[102];
(f)subparagraphs (1) to (5) (inclusive) of [103];
(g)[104];
(h)the words “pursuant to…” onwards in [109];
(i)the words after “and perhaps Margaret)” to the end of the sentence in [110];
(j)[145] to [157] inclusive;
(k)the second to last sentence of [159];
(l)[168];
(m)the words after “informed by cl 3 of the Binetter Entitites’ Deed” and before “which reveal that a relevant purpose” in [175];
(n)[207] and [208]; and
(o)the third sentence of [210].
3.These orders be entered forthwith.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHEESEMAN J
INTRODUCTION
On 6 March 2024 I delivered reasons for judgment in Ligon 158 Pty Limited (in liq) v Shield Holdings Australia Pty Limited (de registered) [2024] FCA 144 and made orders including that the reasons be suppressed and not disclosed to any person other than the plaintiffs, the interested parties and their respective legal representatives for a period of seven days, and that the parties be granted leave to make any application that any part of the reasons be suppressed and/or kept confidential.
By email on 12 March 2024, the plaintiffs sought an order that certain parts of the reasons be suppressed and kept confidential to the parties. On 13 March 2024, I made orders requiring an application be filed and served. Later that day, by email the interested parties consented to the confidentiality orders sought by the plaintiffs and in addition sought ongoing suppression of three further parts of the reasons, to which the plaintiffs consented.
In light of the parties’ agreement, I directed the parties to file a joint submission in support of the orders sought, which I would treat as being sufficient compliance with the orders I made on 13 March 2024.
These reasons address the confidentiality application by the parties which the parties agreed to being determined in chambers having regard to their joint submissions filed on 28 March 2024. These reasons should be read with the redacted version of the reasons given in respect of the substantive application, a copy of which will be published at the same time as these reasons.
APPLICABLE LEGAL PRINCIPLES
Section 37AF of the Federal Court of Australia Act 1976 (Cth) provides:
(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).
Section 37AG of the Act provides:
(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.
A suppression order and a non-publication order is defined in s 37AA as follows:
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).
suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
Section 37AH of the Act permits the Court to make a suppression/non-publication order on its own initiative or on the application of a party to the proceeding concerned or any other person considered by the Court to have a sufficient interest in the making of the order.
In deciding whether to make an order under s 37AF, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE. The Court is to ensure that an order operates for no longer than is reasonably necessary to achieve the purpose for which it is made: s 37AJ.
It is well established that the preservation of the confidentiality of terms of settlement is in the interests of justice. In Elliott v State of Victoria (Department of Education & Training) [2018] FCA 1029 at [24] per Mortimer J, as her Honour then was, made the following observation that is apposite to the present application:
I am also satisfied it is appropriate to make limited orders pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth), preserving the confidentiality of the opinion given by counsel, and the terms of settlement. I am satisfied that the protection afforded by the prospect of a confidentiality regime under s 37AG as to the final terms of settlement, including but not limited to any payment made, has encouraged and facilitated the resolution of the proceeding. I consider it unlikely that such a settlement would have occurred without the prospect of such protection. The interests of the administration of justice are served by the making of limited orders to preserve the confidentiality of the terms, and of counsel’s opinion. The interests of justice are served not only for these parties, but so that future parties can also have confidence the Court may be prepared to facilitate the resolution of these kinds of proceedings by including such orders in any approval of a settlement. The resources of the parties and the Court have been conserved, and finality has been brought to a dispute which would have been intensive and time consuming for all concerned. …
CONSIDERATION
In the reasons given in respect of the substantive application, I refer to a document which I describe as the Liquidators’ Deed which is a settlement deed between various parties. Parties to the Liquidators’ Deed are subject to an obligation to keep the terms of the Liquidators’ Deed confidential.
I have reviewed the parts of the substantive reasons which the parties seek to suppress and am satisfied that they tend to disclose the substance of the terms of the Liquidators’ Deed.
I am further satisfied that it is appropriate and necessary to make the non-publication/ suppression orders sought by the parties to prevent prejudice to the proper administration of justice for the reasons advanced in the joint submissions, namely:
(1)it would promote the public interest in facilitating and encouraging the settlement of legal proceedings particularly having regarding to:
(a)the scale of litigation and disputation in relation to the wider “Binetter Group” which was resolved by the Liquidators’ Deed, and which relieved the parties and the Court of litigation which would otherwise have been significantly imposed on both public and private resources; and
(b)the existence of prior confidentiality orders which remain in effect in respect of the Liquidators’ Deed.
(2)there are parties to the Liquidators’ Deed which are not parties to this proceeding and which would, but for this proceeding, otherwise be able to continue to rely on the confidential nature of the Liquidators Deed. I accept that it is appropriate to protect such third parties’ legitimate interests in the preservation of the confidentiality in place in respect of the Liquidators’ Deed in circumstances where those parties otherwise have no interest in this proceeding.
(3)the material which the parties jointly seek to be kept confidential is appropriately confined so as to appropriately balance the competing public interests. I am satisfied that with the public being otherwise able to read the balance of the substantive reasons is sufficient having regard to the principle of open justice.
CONCLUSION
For these reasons, I will make orders in the form substantially sought by the parties. I will make the order on the basis that it is subject to further order of the Court. Having regard to the purpose to which the order is directed, it is not possible to nominate at this time a date on which the order should cease to have effect.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate:
Dated: 3 April 2024
SCHEDULE OF PARTIES
NSD 1023 of 2022 Applicants
Fourth Plaintiff:
RAWBIN FINANCES PTY LIMITED (IN LIQUIDATION) ACN 140 576 549
Fifth Plaintiff:
JOHN SHEAHAN IN HIS CAPACITY AS LIQUIDATOR OF THE FIRST TO FOURTH PLAINTIFFS
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