Qantas Airways Limited v Persons Unknown

[2025] NSWSC 776

Supreme Court

New South Wales

Medium Neutral Citation:

Qantas Airways Limited v Persons Unknown [2025] NSWSC 776

Hearing dates:

16 July 2025

Date of orders:

16 July 2025

Decision date:

16 July 2025

Jurisdiction:

Equity

Before:

Kunc J

Decision:

Interlocutory orders made

Catchwords:

CIVIL PROCEDURE — Hearings — Suppression and non-publication

COURTS AND JUDGES — Bias — Applicable principles

Legislation Cited:

Court Suppression and Non-Publication Orders Act, 2010 (NSW)

Cases Cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

HWL Ebsworth Lawyers v Persons Unknown (2024) 113 NSWLR 418; [2024] NSWSC 71

Category:

Procedural rulings

Parties:

Qantas Airways Limited (Plaintiff)

Persons Unknown (Defendants)

Representation:

Counsel: Name suppressed (Plaintiff)

Solicitors: Name suppressed (Plaintiff)

File Number(s):

2025/272678

Publication restriction:

Nil

EX TEMPORE JUDGMENT (REVISED)

Introduction

1. By proceedings commenced today in the Duty List, the plaintiff, Qantas Airways Limited, moves the Court to commence proceedings including for urgent interlocutory relief against persons unknown (the defendants). In the age of hackers and challenges to cybersecurity, the Court has become well familiar with this type of matter. There is no doubt that since the decision of Slattery J in HWL Ebsworth Lawyers v Persons Unknown (2024) 113 NSWLR 418; [2024] NSWSC 71 proceedings can be brought in this form.

2. There has already been considerable media attention directed to the fact that Qantas has been the subject of a cybersecurity incident. The present proceedings include an application for interlocutory injunctions restraining the defendants from, putting it generally, publishing, transmitting, disclosing or using any of the material which has been taken from Qantas’ servers without Qantas’ consent, and requesting the defendants to remove immediately all such material from any accessible location on the internet.

3. These short reasons deal with two particular aspects of today’s application: the issue of my potential recusal and the suppression of the existence of these proceedings for not more than about 19 hours.

Recusal

4. I disclosed to Qantas’ counsel that I am a person affected by this cybersecurity breach. I have been a member of the Qantas Club and a Qantas Frequent Flyer for more years than I care to remember. I have received a generic email from Qantas informing me that my data is caught up in what occurred.

5. Having disclosed that to counsel, I indicated my view that I did not regard what I had disclosed as a sufficient basis to recuse myself from dealing with the present application or the further conduct of these proceedings having regard to the principles in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.

6. Counsel indicated that he had no application to make in the light of my disclosure. With commendable efficiency, his written submissions had anticipated this issue and for the reasons he sets out in those submissions, I do not regard this as a case where my somewhat limited connection with what has occurred would cause a fair-minded lay observer to think that I could not approach the matter before me in an impartial way.

7. I also accept the force of counsel’s submission that the principle of necessity may come into play here. I would almost be prepared to take it as a matter of judicial notice that every judge of this Court is likely to have flown with Qantas and is probably a Frequent Flyer or member of the Qantas Club.

Suppression

8. The impartiality of the judicial officer is an essential element of the proper exercise of judicial power. Another essential element is the principle of open justice, which I regard as the more pressing issue for present purposes. That is because Qantas applies for orders that for a very short period of time, again putting it broadly, the fact of these proceedings and the evidence relied upon should be suppressed. The jurisdictional basis for that application is the Court Suppression and Non-Publication Orders Act, 2010 (NSW) (CSNPO Act). I also propose to exercise the inherent jurisdiction of the Court over the maintenance of its own process.

9. The basis for Qantas’ application, which has been made out by the evidence given before me today by the Chief Information Security Officer of Qantas, is as follows.

10. Qantas is communicating with the defendants through a dedicated message box and specially set up email addresses. I find that there is an entirely justifiable concern that if the fact of these proceedings becomes public and known to the defendants before they are served through the box and at the email addresses in accordance with the orders which I will shortly make, the defendants could in a matter of minutes, if not faster, disconnect themselves from those addresses. This would then frustrate the Court’s process by preventing Qantas from complying with the Court’s orders to effect proper service for the purposes of the Court’s rules. It is also for that reason that I was satisfied that the proceedings before me today should be conducted in closed court with the transcript suppressed until service has been effected.

11. The Court is conscious that these proceedings will be of great public interest in every sense of that expression. It is a matter of public interest as the law understands that term, and it will be a matter, no doubt, in which the public will be very interested. Section 6 of the CSNPO Act makes it clear that the Court is to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. That is an obligation which the Court takes extremely seriously, recognising that the principle of open justice has a life and significance in the lawful exercise of judicial power well beyond its statutory expression in the CSNPO Act.

12. Nevertheless, in the present circumstances, I am satisfied on the basis of the evidence that there is a real risk to the proper administration of justice in the way that I have described if the existence of the proceedings and the evidence read is not completely suppressed until the Court’s orders for service have been carried out.

13. I am also satisfied that this derogation from open justice is justifiable because it will be only for a very short period of time. The Court’s orders will require service to be effected by 9am tomorrow morning. It will be by email and therefore in an electronic form. It is now shortly before 2pm. The only matter which may delay service occurring even more quickly is the necessity for the plaintiff to prepare the various court documents in accordance with the redactions which the Court has permitted to be made (and which are the subject of separate non-publication orders that will be revisited on the next return date, including as to the identity of the legal representatives).

14. The importance of the open administration of justice and the particular circumstances of this case are balanced by the undertaking which I have required to be given by Qantas (and which has been given) which is designed to ensure that as quickly as possible after the orders for service have been complied with, these proceedings will become public proceedings.

15. That undertaking has two parts.

16. First, within an hour of the service orders being complied with, or no later than 9am tomorrow morning, Qantas will make a media announcement informing the world of the fact of these proceedings having been commenced.

17. Second, Qantas has agreed that it will promptly make available to any media organisation upon request copies of the redacted versions of the documents upon which the Court has been moved, and which is the form in which the documents will have been served.

Conclusion

18. For these reasons, the Court will make the orders sought by Qantas with some variations to reflect the issues to which I have just referred.

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Decision last updated: 17 July 2025