Super Retail Group Limited v Farrell

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FEDERAL COURT OF AUSTRALIA

Super Retail Group Limited v Farrell [2024] FCA 1214  

Appeal from: Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954
File number(s): NSD 1178 of 2024
NSD 1191 of 2024
Judgment of: WIGNEY J
Date of judgment: 14 October 2024
Date of publication of reasons: 18 October 2024
Catchwords:  PRACTICE AND PROCEDURE – application for leave to appeal – where primary judgment dismissed application for suppression order – leave to appeal granted – suppression orders made until hearing of appeal or further order
Legislation:

Fair Work Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited:

Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA; (1991) 33 FCR 397

Ex parte Bucknell (1936) 56 CLR 221

Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954

Johnson Tiles Pty Ltd v Esso Australia Pty Limited (2000) 104 FCR 564
Division: Fair Work
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 13
Date of hearing: 14 October 2024
Counsel for the applicants: Mr J Sheahan KC with Ms Z Hillman and Mr D A Ward
Solicitor for the applicants: Allens
Counsel for the respondents: Mr S Prince SC with Ms T Wong
Solicitor for the respondents: Harmers Workplace Lawyers
Appearing for Fairfax Media Publications Pty Ltd Ms L Alick
Appearing for Nationwide News Pty Ltd Mr B M Regattieri

ORDERS

NSD 1178 of 2024
BETWEEN:

SUPER RETAIL GROUP LTD

Applicant

ANTHONY HERAGHTY
Second Applicant

KEVIN FIGUEIREDO (and others named in the Schedule)

Third Applicant
AND:

REBECCA FARRELL

First Respondent

AMELIA BERCZELLY

Second Respondent
NSD 1191 of 2024
BETWEEN:

SUPER RETAIL GROUP LIMITED
Applicant
AND:

EVO24
Respondent

EVP24
Second Respondent

MICHAEL DANIEL HARMER (and others named in the Schedule)
Third Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

14 OCTOBER 2024

THE COURT ORDERS THAT:

1.Leave be granted to the applicants to appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954.

2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order or until 4.15pm on the day of the hearing of the appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, there be no disclosure, by publication or otherwise, of the information referred to in the schedule to this order (Suppressed Information) other than by disclosure by the parties or their legal representatives:

(a)to any mediator, for the purposes of a confidential mediation in which the first applicant in NSD1178/2024 (SRG) and one or both of Rebecca Farrell and Amelia Berczelly are participants;

(b)with the prior written consent of SRG;

(c)to the legal representatives of Nationwide News Pty Limited and Fairfax Media Publications Pty Limited, but only for the purpose of making submissions in these proceedings;

(d)by the filing in…

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Details
Case
[2024] FCA 1214
Decision Date

CaseChat Overview and Summary

Super Retail Group Limited sought leave to appeal from the Federal Court's decision dismissing their application for a suppression order. The applicants argued that the information in question, which was central to their case, needed to be protected to prevent prejudice to the proper administration of justice. The respondents, Rebecca Farrell and Amelia Berczelly, opposed the application for leave to appeal, arguing that the suppression order was not necessary and would unduly restrict the media's ability to report on matters of public interest. The court had to decide whether the suppression order was necessary and if the applicants had a sufficient chance of success on appeal to grant leave to appeal.

The court found that the information in question was highly sensitive and, if disclosed, could cause significant prejudice to the applicants. The court considered the public interest in freedom of speech and the media's role in reporting on matters of public interest but concluded that the need to prevent prejudice to the proper administration of justice outweighed these considerations. The court found that the applicants had a sufficient chance of success on appeal and, therefore, granted leave to appeal. The court also issued a suppression order until the hearing of the appeal or further order, prohibiting the disclosure of the suppressed information by any party other than as specified in the order.

In conclusion, the court granted Super Retail Group Limited leave to appeal from the Federal Court's decision dismissing their application for a suppression order. The court issued a suppression order prohibiting the disclosure of the suppressed information by any party other than as specified in the order. The orders include exceptions for disclosure in confidential mediation, to legal representatives, to the Australian Securities and Investment Commission, and to the media for the purpose of making submissions in these proceedings. The court reserved costs.

Orders

Orders of the court

1. Leave be granted to the applicants to appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954.

2. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order or until 4.15pm on the day of the hearing of the appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, there be no disclosure, by publication or otherwise, of the information referred to in the schedule to this order (Suppressed Information) other than by disclosure by the parties or their legal representatives:

(a) to any mediator, for the purposes of a confidential mediation in which the first applicant in NSD1178/2024 (SRG) and one or both of Rebecca Farrell and Amelia Berczelly are participants;

(b) with the prior written consent of SRG;

(c) to the legal representatives of Nationwide News Pty Limited and Fairfax Media Publications Pty Limited, but only for the purpose of making submissions in these proceedings;

(d) by the filing in the Registry of any process or other document that contains any of the Suppressed Information; or

(e) to the Australian Securities and Investment Commission (ASIC), but only if, and only to the extent that, ASIC compels such disclosure of Suppressed Information.

3. For the avoidance of doubt:

(a) the content of negotiations relating to the terms comprising the Suppressed Information are themselves Suppressed Information; and

(b) information is not Suppressed Information merely because it appears in a document along with Suppressed Information.

4. Liberty to apply at short notice.

5. Costs reserved.

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

SCHEDULE (NSD 1178/2024 and NSD 1191/2024)

1. The information in paragraphs [21(a)], [21(d)], [21(e)], [21(g)], [21(h)], and [21(i)] of the Statement of Claim dated 29 July 2024 filed in NSD 1009 of 2024.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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