McLaughlin v Glenn
[2020] FCA 679
•19 May 2020
FEDERAL COURT OF AUSTRALIA
McLaughlin v Glenn [2020] FCA 679
File numbers: NSD 2174 of 2019
NSD 2173 of 2019Judge: ABRAHAM J Date of judgment: 19 May 2020 Catchwords: PRACTICE AND PROCEDURE – application for non-publication or suppression order over certain documents on court file following settlement of the proceedings – whether such order necessary to prevent prejudice to the proper administration of justice Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AE
Federal Court Rules 2011 (Cth) rr 2.32(2), 2.32(3), 2.32(4)
Cases cited: Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397
Oldham v Capgemini Australia Pty Ltd(No 2) [2016] FCA 1101
Reynolds v JP Morgan Administrative Services Australia Ltd(No 2) (2011) [2011] FCA 489; (2011)193 FCR 507
Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384
R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335
Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311
SM Employment Pty Ltd v Commissioner of Taxation [2019] FCA 464
Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115
Valentine v Freemantlemedia Australia Pty Ltd [2013] FCA 1293
Date of hearing: The matter was determined on the papers Date of last submissions: 6 May 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondents: Mr D Fuller Solicitor for the Respondents: Colin Biggers & Paisley ORDERS
NSD 2174 of 2019 BETWEEN: LISA MCLAUGHLIN
Applicant
AND: OWEN GLENN
First Respondent
GLENN FAMILY FOUNDATION LTD (ACN 623 220 682)
Second Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
19 MAY 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until further order of the Court, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication (except to the parties’ legal representatives) be prohibited:
(a)the schedule to the originating application (being the original complaint to the Australian Human Rights Commission and associated documents) filed in the proceeding on 24 December 2019; and
(b)the statement of claim filed in the proceeding on 24 December 2019.
2.The application by a non-party for access to the statement of claim filed in these proceedings on 24 December 2019 be refused.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
NSD 2173 of 2019 BETWEEN: SARAH MCLAUGHLIN
ApplicantAND: OWEN GLENN
First Respondent
GLENN FAMILY FOUNDATION LTD (ACN 623 220 682)
Second Respondent
JUDGE:
ABRAHAM J
DATE OF ORDER:
19 MAY 2020
THE COURT ORDERS THAT:
1.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until further order of the Court, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication (except to the parties’ legal representatives) be prohibited:
(a)the schedule to the originating application (being the original complaint to the Australian Human Rights Commission and associated documents) filed in the proceeding on 24 December 2019; and
(b)the statement of claim filed in the proceeding on 24 December 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
On 24 December 2019 the applicant, Lisa McLaughlin, commenced these proceedings under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) (NSD2174/2019) against the respondents, at the same time as separate proceedings were commenced by Sarah McLaughlin under the AHRC Act (NSD2173/2019) (concurrent proceedings). In January 2020 the Court received a third party access request from a journalist (access request) in relation to the originating application and the statement of claim filed in these proceedings (together, the access documents). The originating application annexes to it as a schedule, a copy of the applicant’s complaint to the Australian Human Rights Commission (AHRC) and notice of termination (the AHRC complaint). The parties were notified of the application for access and were requested to indicate whether there was any objection to the third party being granted access.
On 2 March 2020, the parties agreed to settle these proceedings, and the concurrent proceedings, with both proceedings being discontinued upon the terms of the confidential settlement agreement being carried out. It should be noted that the stage of both proceedings at the time of resolution was that the matters were listed for a first case management hearing (which, as outlined below, did not end up occurring).
At the time when access was sought, the respondents opposed the application and a request was made by them for a suppression or non-publication order over the access documents. Initially, the applicant did not oppose access being granted to the third party. The parties and the third party were given an opportunity to file written submissions and originally the application was to be considered at the first case management hearing listed for 6 March 2020. On 4 March 2020 the respondents’ contacted chambers indicating that agreement had been reached to settle these and the concurrent proceedings, and that they anticipated filing notices of discontinuance. In those circumstances it was the position of both parties that the proceedings remain confidential. Clarification was sought by the parties as to whether a hearing of the application for a non-publication or suppression order was still required in circumstances where both parties consented to such orders being made. I considered that, given there was a current application to inspect the access documents, and that the fact of the parties consenting to the orders does not relieve the Court of its obligation to determine if the relevant orders ought to be made, that the application be listed for hearing. The application was adjourned to 23 March 2020. However, given the circumstances in respect to the Covid-19 pandemic, all existing listings requiring attendance at Court were vacated. In those circumstances, the parties and the person seeking third party access were provided with an opportunity to file written submissions in respect to the application. The respondents filed written submissions and an affidavit from their solicitor in support of the application. The applicant informed the Court that they agreed with the orders sought and the submissions filed by the respondents. No submission was received from the person who sought access, and no reasons were provided on the application requesting access. It was agreed by the parties that the application could be determined on the papers.
Although the applicant supports the respondents’ submissions and the orders sought, it is nonetheless necessary, given the nature of the orders sought, that the Court is satisfied that such orders are required.
Two matters were clarified by the parties after the initial application was made. First, that in relation to the originating application the parties did not press for an order which covered the entire application, but only one which related to the schedule attached to that application; and second, that the same orders were sought in relation to the concurrent proceedings in relation to the schedule attached to the originating application and the statement of claim filed in those proceedings. The basis of the orders sought in relation to the concurrent proceedings were the same as advanced in these proceedings.
In essence the respondents contend, first, the AHRC complaint does not form part of the originating application and is not otherwise a document to which a third party is entitled to have access pursuant to r 2.32(2) of the Federal Court Rules 2011 (Rules) and no leave has been sought pursuant to r 2.32(4) and; second, in relation to the AHRC complaint and the statement of claim, a suppression or non-publication order should be made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (Act) on the basis that publication would prejudice the proper administration of justice.
Consideration
The AHRC complaint
The question of whether the AHRC complaint forms part of the originating application arises because leave of the Court is not required by a third party to access the originating application: r 2.32(2)(a).
Rule 34.163(2) of the Rules requires an originating application commencing a proceeding under the AHRC Act to be “accompanied by” a copy of the original complaint to the AHRC and a notice of termination of the complaint given by the President of the AHRC.
In Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 (Oldham), Mortimer J observed at [28]:
An AHRC complaint falls into none of the categories which I have so far traversed. Indeed, it generally forms no part of a proceeding in this Court at all. Rather, its existence is a precondition to, and a constraint on, this Court’s jurisdiction under the AHRC Act. The function it performs as a document within the records of the Court is thus a limited one.
In Oldham v Capgemini Australia Pty Ltd(No 2) [2016] FCA 1101 (Oldham (No 2)), Mortimer J observed at [14]:
I begin with the propositions which emerged from my previous reasons refusing access. In my opinion, a Complaint made to the AHRC is a private and confidential document, strictly protected under the AHRC legislation, which does not become part of the “pleadings” in this Court and does not lose its private and confidential character because the Federal Court Rules 2011 (Cth) require that it (and the Commission’s notice of termination) are to be filed with any initiating process as proof of satisfaction of the precondition to this Court’s jurisdiction under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).
Similarly, in Reynolds v JP Morgan Administrative Services Australia Ltd(No 2) [2011] FCA 489; (2011) 193 FCR 507 (Reynolds) at [24] Rares J reached the same conclusion in relation to the predecessor to the current Rules.
For those reasons, the AHRC complaint does not form part of the originating application and therefore is not covered by the third party access request. Nor does the complaint fall within any other category of documents in r 2.32(2) which may be obtained by a third party as of right. No application for leave to access the document has been sought. If one had been made, for the same reasons as above, leave would not be granted. To grant leave would be to undermine the protection given to the complaint under the AHRC legislation: Oldham (No 2) at [27]-[29].
Accepting that ordinarily the jurisdiction of the Court must be exercised in open court: s 17(1) of the Act, the fact that a document is on a court file is not sufficient reason per se, to grant leave to inspect by a non-party: Reynolds at [26].
Although leave to access the document would be required for the AHRC complaint, there is utility in considering the position in a global manner now that the proceedings have settled, recognising the possibility of future access applications: Valentine v Freemantlemedia Australia Pty Ltd [2013] FCA 1293 (Valentine) at [11]. I am mindful also that the AHRC complaint is annexed to the originating application, and although, for the reasons given above, it is not part of the application, making an order over the schedule will prevent the schedule erroneously being provided.
In relation to the concurrent proceedings, I consider that, although no access request has been made for any of the documents filed in those proceedings, for the same reasons as in the paragraph above, an order should be made over the AHRC complaint annexed to the originating application filed in the concurrent proceedings.
Remaining documents sought
This refers to the originating application and the statement of claim. Access is given to those categories of documents unless the document is confidential or forbidden or restricted from publication: r 2.32(3). Consequently the respondent has sought a suppression or non-publication order on that material, pursuant to s 37AF of the Act, on the basis that it is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a). The originating application contains the nature of the claim and the statement of claim sets out allegations made against the respondents which form the basis of the claim.
As noted above, the parties are not seeking an order over the originating application, only the schedule attached thereto (the AHRC complaint).
Section 37AF provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of, inter alia, information lodged with or filed in the Court: s 37AF(1)(b)(iv). One of the grounds upon which a Court is permitted to make such an order is that “the order is necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a). In 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: s 37AE.
The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the Act are well settled. The question in this instance 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] HCA 21; (2010) 240 CLR 651 (Hogan) at [30], although it is not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384 at [8], citing Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13]. 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].
Mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11].
The question whether an order is necessary will depend on the particular circumstances of the case.
The respondents point to three matters, which cumulatively is said to provide a basis in relation to each of the matters. First, the nature of the allegations made in the statement of claim. Mindful that recitation of the submissions in respect to this basis would have the effect of defeating the purpose of the order sought, it is unnecessary to elaborate further. Second, the proceedings have settled before the respondents filed a defence to those allegations. The public interest in open justice operates on an assumption that a person who is the subject of serious allegations in litigation has the opportunity to respond in the same public forum, with a corresponding expectation that the media will report on both sides of the story: Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [54]. Third, the respondents had not filed a defence prior to the settlement because the respondents had requested further and better particulars of the applicant’s statement of claim, which was not responded to prior to the settlement. If the statement of claim was not properly particularised, allowing access would be to give a third party access to allegations which did not fairly set out the applicant’s case and which the respondents have not had and will not have the opportunity to answer in accordance with this Court’s procedures.
The respondents pointed to some observations in SM Employment Pty Ltd v Commissioner of Taxation [2019] FCA 464 where Logan J made an order in relation to documents in the proceeding without redaction of personal details about the director of the applicant company and his family in circumstances where the parties had agreed to settle the proceeding. His Honour observed at [8]:
…I can see no interest of justice which would be served by unrestricted access to the details of that condition, or, for that matter, those of his wife or children, particularly having regard to the disposition of this case. Indeed, it may very well be that unrestricted disclosure would be subversive of the consensual position reached by the parties as to the disposition of the case, and, for that matter, the underpinning of that consensual disposition, which is the reaching of a repayment agreement satisfactory to the Commissioner. It seems to me that the furtherance of that agreement would possibly be put in jeopardy by any unrestricted disclosure.
Reliance was also placed on Cantarella Bros Pty Ltd v Du Bois [2016] FCA 1115 where Rares J ordered that pleadings be kept confidential after the proceeding settled when a bona fide claim of confidentiality had been asserted, even though the Court had not and would not now determine that claim because of the settlement. The respondent submitted by analogy, the Court should make the suppression or non-publication order sought on the basis that the respondents have made a bona fide request for further and better particulars which, if properly founded, would mean that allowing third party access would be contrary to the administration of justice.
The first matter by itself is insufficient to make the orders. However, it is telling that the applicant agrees with the respondents’ submission, which must necessarily include the second and third bases relied on which relate to the pleadings, namely, that allowing access to the statement of claim, given the state of the proceedings at the time of settlement, may be subversive to the settlement reached by the parties.
The evidence establishes that the settlement agreement is a confidential agreement.
There is an undoubted very significant public interest in the settlement of litigation: Reynolds at [30]. These proceedings have been settled by agreement at an early stage, which as Mortimer J in Valentine at [13] observed is an outcome the Court strives to achieve. Here the parties have achieved finality through agreement which may be undermined if a third party has access to and could report on matters which the parties seek to keep confidential.
In Oldham (No 2), Mortimer J observed at [30]:
Second, the settlement of the proceeding strengthens the case to refuse access. In my opinion, and even in the absence of evidence about the precise terms of settlement of this proceeding, it would be inimical to the negotiation process which leads to the settlement of a proceeding in this Court, its discontinuance without judicial pronouncement of any kind, and the accompanying closing of the Court’s file with no further proceedings in open court, for a sensitive document such as the AHRC Complaint to be released over an applicant’s opposition. It would not be unusual for parties (not just applicants) in proceedings such as this to have as one of the motivations for settlement a desire to keep from the public gaze detailed factual allegations of the kind which are frequently set out in complaints made to the Commission. The Court should be mindful not to frustrate these consequences of settlement which may be in the contemplation of parties when they agree to resolve a proceeding by agreement.
While those observations were made when her Honour was considering an application for access by a third party to an AHRC complaint, where, as here the details of the allegations in the complaint are at least to some extent replicated in the statement of claim, they are apt.
Moreover, this is particularly so where the state of the proceedings at the time of settlement were such that the statement of claim to which access is sought was still the subject of dispute such that further particulars were called for and a defence not filed as a result. It would, on any account, be an incomplete position. If access to those documents is granted in those circumstances the early settlement of the proceedings has the consequence that the respondents are likely prejudiced, or at the very least, put at a disadvantage.
I am satisfied in this case, pursuant to s 37AF that an order is necessary to prevent prejudice to the proper administration of justice.
For the same reasons I am satisfied such an order is necessary over the statement of claim filed in the concurrent proceedings. Although no application for access to that document has been made, as outlined above, there is utility in considering the position in a global matter: Valentine at [11].
Conclusion
For the reasons above, I am satisfied in relation to each matter that a non-publication ought to be imposed on the schedule to the originating applications and the statements of claim. It follows that access to the third party can be given in relation to the originating application sought in NSD2174/2019 (excluding the schedule).
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate:
Dated: 19 May 2020
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