Patterson v Westpac Banking Corporation (No 2) - [2024] FCA 818

FEDERAL COURT OF AUSTRALIA
Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818

File number: VID 1062 of 2023

Judgment of: RAPER J

Date of judgment: 25 July 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 have settled the proceedings – whether such orders are necessary to prevent prejudice to the proper administration of justice – application allowed

Legislation:
Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG(1), 37AF

Federal Court Rules 2011 (Cth) rr 2.32, 2.32(1)(b),

Cases cited:
Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272

Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289

McLaughlin v Glenn [2020] FCA 679

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

Patterson v Westpac Banking Corporation [2024] FCA 629

Porter v Australian Broadcasting Corporation [2021] FCA 863

R v Legal Aid Board; ex parte Kaim Todner (a firm) [1999] QB 966

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

Valentinev Freemantlemedia 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 hearing: 3 July 2024

Counsel for the Applicant: Mr A White

Solicitors for the Applicant: McDonald Murholme

Counsel for the Respondent: Mr M Seck

Solicitors for the Respondent: King & Wood Mallesons

Counsel for the Interested Non-party 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:

25 JULY 2024

THE COURT ORDERS THAT:
1.This Proceeding (VID1062/2023) is dismissed.
2.There be no order as to costs in the Proceeding.
3.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 and inspection (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)Affidavit of Andrew Gray sworn 7 May 2024;
(e)Third, Fourth and Sixth Respondents’ Interlocutory Application filed 13 May 2024;
(f)Amended Originating Application filed 24 May 2024;
(g)Amended Statement of Claim filed 24 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.

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

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 818
Decision Date: 25 July 2024

CaseChat Overview and Summary

Patterson v Westpac Banking Corporation (No 2) involved an application by the first respondent to have certain documents on the Court file ordered confidential. The parties had settled the proceedings, and the respondents had not filed their pleadings but had brought a strike-out application. The court was required to decide whether such orders were necessary to prevent prejudice to the proper administration of justice. The court considered the principle of open justice, which is a fundamental principle of the Australian justice system, but also recognised that there are circumstances where it may be necessary to restrict disclosure or publication of information to do justice. The court concluded that an order was necessary to prevent prejudice to the proper administration of justice.

The court found that the applicants had established that the orders were necessary to prevent prejudice to the proper administration of justice. The court noted that the principle of open justice is not the only fundamental principle of the Australian justice system and that Part VAA of the Federal Court Act gives the Court power to make suppression orders. The court considered the relevant authorities and found that the applicants had demonstrated a real risk of substantial prejudice if the documents were not ordered to be confidential. The court concluded that the orders were necessary to prevent prejudice to the proper administration of justice.

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 were ordered confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication and inspection (except to the parties’ legal representatives) were prohibited: (a) Originating Application filed 13 December 2023; (b) Concise Statement filed 13 December 2023; (c) Statement of Claim filed 26 March 2024; (d) Affidavit of Andrew Gray sworn 7 May 2024; (e) Third, Fourth and Sixth Respondents’ Interlocutory Application filed 13 May 2024; (f) Amended Originating Application filed 24 May 2024; (g) Amended Statement of Claim filed 24 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. The Proceeding was dismissed, and there was no order as to costs in the Proceeding.

Orders

Orders of the court

1. This Proceeding (VID1062/2023) is dismissed.

2. There be no order as to costs in the Proceeding.

3. 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 and inspection (except to the parties’ legal representatives) be prohibited:

(a) Originating Application filed 13 December 2023;

(b) Concise Statement filed 13 December 2023;

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

(e) Third, Fourth and Sixth Respondents’ Interlocutory Application filed 13 May 2024;

(f) Amended Originating Application filed 24 May 2024;

(g) Amended Statement of Claim filed 24 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.

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

Finally, Fairfax contested the applicability of the relevant authorities referred to above, in part on the basis of a broad allegation of “erosion” by “accretion” of what it considered the general principle of open justice. As previously adverted to, the principle of open justice is “a” not “the” fundamental principle of the Australian justice system: Porter at [83]. Part VAA of the Federal Court Act gives the Court power to make suppression orders and recognises that in order to do justice, there are circumstances where it may be necessary to restrict disclosure or publication of information: s 37AE of the Federal Court Act. Conclusion For these reasons, I am satisfied that an order in the following form is necessary to prevent prejudice to the proper administration of justice: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 and inspection (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)Affidavit of Andrew Gray sworn 7 May 2024;(e)Third, Fourth and Sixth Respondents’ Interlocutory Application filed 13 May 2024;(f)Amended Originating Application filed 24 May 2024;(g)Amended Statement of Claim filed 24 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	VID 1062 of 2023
Judgment of:	RAPER J
Date of judgment:	25 July 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 have settled the proceedings – whether such orders are necessary to prevent prejudice to the proper administration of justice – application allowed
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AG(1), 37AF Federal Court Rules 2011 (Cth) rr 2.32, 2.32(1)(b),
Cases cited:	Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 Liverpool City Council v McGraw-Hill Financial, Inc (now known as S&P Global Inc) [2018] FCA 1289 McLaughlin v Glenn [2020] FCA 679 Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 Patterson v Westpac Banking Corporation [2024] FCA 629 Porter v Australian Broadcasting Corporation [2021] FCA 863 R v Legal Aid Board; ex parte Kaim Todner (a firm) [1999] QB 966 Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; 193 FCR 507 Valentinev Freemantlemedia 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 hearing:	3 July 2024
Counsel for the Applicant:	Mr A White
Solicitors for the Applicant:	McDonald Murholme
Counsel for the Respondent:	Mr M Seck
Solicitors for the Respondent:	King & Wood Mallesons
Counsel for the Interested Non-party	Ms L Alick (general counsel) at Fairfax Media Publications Pty Ltd

ORDER MADE BY:	RAPER J
DATE OF ORDER:	25 JULY 2024