McLaughlin v Glenn

Case [2020] FCA 679

FEDERAL COURT OF AUSTRALIA

McLaughlin v Glenn [2020] FCA 679

File numbers: NSD 2174 of 2019
NSD 2173 of 2019
Judge: 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…

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AGLC
McLaughlin v Glenn [2020] FCA 679
Case
[2020] FCA 679
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, McLaughlin v Glenn involved a dispute over the application for non-publication or suppression orders concerning specific documents on the court file following a settlement of the proceedings. The central issue was whether such orders were necessary to prevent prejudice to the proper administration of justice. The application was made under s 37AF of the Federal Court of Australia Act 1976 (Cth) and related to the schedules to originating applications and statements of claim. The respondents argued that the Australian Human Rights Commission (AHRC) complaint was not part of the originating application and thus not accessible to third parties, and that suppression or non-publication orders should be imposed on the AHRC complaint and the statement of claim to prevent prejudice to the proper administration of justice.

The court addressed the issue of whether the AHRC complaint forms part of the originating application, noting that it does not become part of the pleadings in the Court and remains confidential under AHRC legislation. Previous cases, such as Oldham v Capgemini Australia Pty Ltd and Reynolds v JP Morgan Administrative Services Australia Ltd, supported the notion that the AHRC complaint does not form part of the originating application. Therefore, it was not covered by the third party access request and no application for leave to access the document had been made. If one had been made, leave would not be granted as it would undermine the protection provided by the AHRC legislation.

The court concluded that a non-publication order should be imposed on the schedule to the originating applications and the statements of claim to prevent prejudice to the proper administration of justice. This was based on the reasoning that although no application for access to these documents had been made, considering the position globally was prudent. Consequently, access to the third party could be granted in relation to the originating application, excluding the schedule. The court imposed a non-publication order on the schedule to the originating applications and the statements of claim, allowing access to the third party for the originating application, excluding the schedule.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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].