Patterson v Westpac Banking Corporation - [2024] FCA 629

FEDERAL COURT OF AUSTRALIA
Patterson v Westpac Banking Corporation [2024] FCA 629

File number(s): VID 1062 of 2023

Judgment of: RAPER J

Date of judgment: 13 June 2024

Catchwords: PRACTICE AND PROCEDURE – application by the first respondent for the documents on the Court file to be ordered confidential – where the respondents have not filed their pleadings and have brought a strike out application – where the parties are currently engaged in mediation – application allowed

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF

Federal Court Rules 2011 (Cth) rr 2.32, 2.32(1), 2.32(1)(b), 2.32(2), 2.32(2)(a), 2.32(2)(c), 2.32(2)(e), 2.32(4)

Cases cited:
McLaughlin v Glenn [2020] FCA 679

Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101

Porter v Australian Broadcasting Corporation [2021] FCA 863

Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; 193 FCR 507

The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377

Valentine v Fremantle media Australia Pty Ltd [2013] FCA 1293

Division: Fair Work Division

Registry: Victoria

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 30

Date of last submission/s: 7 June 2024

Date of hearing: 12 June 2024

Counsel for the Applicant: Mr A White

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondents: Ms K Eastman SC with Mr M Seck

Solicitors for the Respondents: King & Wood Mallesons

Counsel for the Access Applicant: Ms L Alick (general counsel) at Fairfax Media Publications Pty Ltd

ORDERS

VID 1062 of 2023

BETWEEN:
JULIA PATTERSON

Applicant

AND:
WESTPAC BANKING CORPORATION (ACN 007 457 141) and others named in the Schedule

First Respondent

ORDER MADE BY:

RAPER J

DATE OF ORDER:

13 JUNE 2024

THE COURT ORDERS THAT:
1.The first respondent’s interlocutory application, dated 7 June 2024, be allowed.
2.Until the mediation process is terminated, pursuant to s 37AF 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 following documents 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)Originating Application filed 13 December 2023;
(b)Concise Statement filed 13 December 2023;
(c)Statement of Claim filed 26 March 2024;
(d)Amended Originating Application filed 24 May 2024
(e)Amended Statement of Claim filed 24 May 2024;
(f)Interlocutory Application filed 13 May 2024;
(g)Affidavit of Andrew Gray sworn 7 May 2024;
(h)Third, Fourth and Sixth Respondents’ outline of submissions filed 4 June 2024; and
(i)Third, Fourth and Sixth Respondents’ Amended Interlocutory Application filed 4 June 2024.

3.Upon the termination of the mediation process, the Registrar is to advise the non-party access applicant and Ms Alick of its termination.

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

REASONS FOR JUDGMENT

RAPER J:

These short reasons concern…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FCA 629
Decision Date: 13 June 2024

CaseChat Overview and Summary

In the matter of Patterson v Westpac Banking Corporation, the court was called upon to decide an application by the first respondent for certain documents on the court file to be ordered confidential. The dispute involves the disclosure of specific documents related to the proceedings. The respondents have not yet filed their pleadings and have brought a strike-out application. Additionally, the parties are currently engaged in mediation.

The legal issues before the court were whether the documents should be kept confidential and if so, for how long. The court considered the potential for prejudice to the administration of justice if the documents were made public, especially given the ongoing mediation process. The court also weighed the respondents' right to have their side of the story presented in the public domain once the proceedings are finalised. The court determined that maintaining the confidentiality of the documents for a limited period would prevent prejudice to the administration of justice.

The court allowed the first respondent's interlocutory application and ordered the specified documents to be confidential until the mediation process is terminated. This decision was made on the ground that the order was necessary to prevent prejudice to the proper administration of justice. The court emphasised that the parties must move expeditiously if they seek any continuation of the order after the mediation process ends.

The orders made by the court included allowing the first respondent's interlocutory application, ordering the specified documents to remain confidential until the mediation process is terminated, and requiring the Registrar to advise the non-party access applicant and Ms Alick of the termination of the mediation process. The court also noted that the entry of orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The first respondent’s interlocutory application, dated 7 June 2024, be allowed.

2. Until the mediation process is terminated, pursuant to s 37AF 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 following documents 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) Originating Application filed 13 December 2023;

(b) Concise Statement filed 13 December 2023;

(d) Amended Originating Application filed 24 May 2024

(e) Amended Statement of Claim filed 24 May 2024;

(f) Interlocutory Application filed 13 May 2024;

(g) Affidavit of Andrew Gray sworn 7 May 2024;

(h) Third, Fourth and Sixth Respondents’ outline of submissions filed 4 June 2024; and

(i) Third, Fourth and Sixth Respondents’ Amended Interlocutory Application filed 4 June 2024.

3. Upon the termination of the mediation process, the Registrar is to advise the non-party access applicant and Ms Alick of its termination.

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

Full text does not contain this section.

Decision

Reasons for decision

However, if in this case, this matter achieves finality, in the immediate aftermath of the mediation process, as in McLaughlin, there may be an argument that all the documents remain restricted, given the finality of the proceedings, as there would never be an occasion thereafter for the respondents to put, in effect, their side of the story in the public domain. However, I accept there may be other competing arguments and the resolution will depend on the circumstances.Conclusion For these reasons, I am satisfied that in order to prevent prejudice to the administration of justice, it is appropriate to make an order that the documents contained in the proposed order remain confidential for a limited period of time until the mediation process has been terminated by the Registrar. The parties will then need to move expeditiously if they seek any continuation of the order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	VID 1062 of 2023
Judgment of:	RAPER J
Date of judgment:	13 June 2024
Catchwords:	PRACTICE AND PROCEDURE – application by the first respondent for the documents on the Court file to be ordered confidential – where the respondents have not filed their pleadings and have brought a strike out application – where the parties are currently engaged in mediation – application allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF Federal Court Rules 2011 (Cth) rr 2.32, 2.32(1), 2.32(1)(b), 2.32(2), 2.32(2)(a), 2.32(2)(c), 2.32(2)(e), 2.32(4)
Cases cited:	McLaughlin v Glenn [2020] FCA 679 Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 Porter v Australian Broadcasting Corporation [2021] FCA 863 Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; 193 FCR 507 The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions(No 2) [2020] FCAFC 44; 275 FCR 377 Valentine v Fremantle media Australia Pty Ltd [2013] FCA 1293
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	30
Date of last submission/s:	7 June 2024
Date of hearing:	12 June 2024
Counsel for the Applicant:	Mr A White
Solicitors for the Applicant:	McDonald Murholme
Counsel for the Respondents:	Ms K Eastman SC with Mr M Seck
Solicitors for the Respondents:	King & Wood Mallesons
Counsel for the Access Applicant:	Ms L Alick (general counsel) at Fairfax Media Publications Pty Ltd

ORDER MADE BY:	RAPER J
DATE OF ORDER:	13 JUNE 2024