Vardy (liquidator) v Titan Cranes and Rigging Pty Ltd, in the matter of Boon Business Consultants Pty Ltd (in liq)
[2024] FCA 1410
•4 December 2024
FEDERAL COURT OF AUSTRALIA
Vardy (liquidator) v Titan Cranes and Rigging Pty Ltd, in the matter of Boon Business Consultants Pty Ltd (in liq) [2024] FCA 1410
File number: NSD 1219 of 2024 Judgment of: SHARIFF J Date of judgment: 4 December 2024 Date of publication of reasons: 12 December 2024 Catchwords: PRACTICE AND PROCEDURE – application for suppression, non-publication and confidentiality orders in respect of statement of claim (SOC) – where SOC unable to be accessed prior to first case management hearing pursuant to r 2.32(2) of the Federal Court Rules 2011 (Cth) (Rules) – where judge made orders in chambers pursuant to r 2.32(3) that SOC remain confidential until first case management hearing, reflecting default rule – where applicants filed interlocutory application prior to first case management hearing seeking further and better particulars and an order under r 2.32(3) that SOC be confidential until further order of Court – where application for confidentiality order not pressed or raised at case management hearing and order not made, such that original order under r 2.32(3) expired – where case management hearing and evidence filed in support of interlocutory application canvassed allegations contained in SOC – where journalist sought and was granted access to SOC and indicated intention to publish article outlining allegations in SOC – where applicants sought urgent relief in form of confidentiality order under r 2.32(3) and interim suppression and non-publication order under s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – consideration of interaction between r 2.32 and Part VAA of FCA Act – held: unnecessary to decide questions as to whether r 2.32(2) provides for something broader than common law principle of open justice and whether r 2.32(3) provides source of power independent to s 37AF – held: no factual basis for making orders sought as allegations contained in SOC had in substance been laid bare in open court – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 37AE, 37AF, 37AG, 37AI; Pt VAA
Federal Court Rules 2011 (Cth) r 2.32
Cases cited: Australian Securities and Investments Commission v Rich [2002] NSWSC 198
eisa Ltd v Brady [2000] NSWSC 929
Farrell v Super Retail Group Ltd [2024] FCA 954
Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) [2021] FCA 1507
Nine Network Australia Pty Limited [2006] FCA 836; (2006) 154 FCR 293
Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 160; (2022) 294 FCR 221
Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818
Patterson v Westpac Banking Corporation [2024] FCA 629
Porter v Australian Broadcasting Corporation [2021] FCA 863
Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473
Ryan v Transurban Ltd [2024] FCA 994
Saw v Seven Network (Operations) Ltd [2024] FCA 1210
Young v Accenture Australia Pty Limited [2024] FCA 1013
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 52 Date of hearing: 4 December 2024 Counsel for the Plaintiffs: Mr J Nolan Solicitor for the Plaintiffs: Ashurst Australia Solicitor for the Defendants/Applicants: Mr G Pasas of Clayton Utz Solicitor for Fairfax Media Publications Pty Ltd and Mr Marin-Guzman: Ms L Alick ORDERS
NSD 1219 of 2024 BETWEEN: DARREN JOHN VARDY IN HIS CAPACITY AS LIQUIDATOR OF BOON BUSINESS CONSULTANTS PTY LTD (IN LIQUIDATION) (ACN 634 124 315)
First Plaintiff
BOON BUSINESS CONSULTANTS PTY LTD (IN LIQUIDATION) (ACN 634 124 315)
Second Plaintiff
FIFTEEN INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 158 241 546) (and others named in the Schedule)
Third Plaintiff
AND: TITAN CRANES AND RIGGING PTY LTD (ACN 109 564 721)
First Defendant
MR DAMON LEO HANLIN
Second Defendant
ORDER MADE BY:
SHARIFF J
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The defendants be granted leave to rely upon the Amended Interlocutory Application dated 4 December 2024 handed up in Court (Amended Application).
2.Prayers 1A and 2 in the Amended Application be dismissed.
3.The application under Prayer 1 in the Amended Application be stood over to the case management hearing presently listed before her Honour Justice Markovic at 9am on Thursday, 5 December 2024.
4.Costs are reserved.
THE COURT NOTES THAT:
1.The defendants do not press Prayer 1B of the Amended Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SHARIFF J:
INTRODUCTION
On 4 December 2024, as the Commercial and Corporations List Duty Judge, I refused to grant urgent orders sought by the defendants as to suppression, non-publication and confidentiality of certain materials. These are my reasons for refusing to grant that relief.
These proceedings were commenced by way of an originating process and statement of claim (SOC) filed on 4 September 2024, and have been case managed to date by Markovic J. The first plaintiff is a liquidator of certain companies that are in liquidation, and the defendants are said to have been associated with those companies.
The subject matter of the dispute that arose before me was whether I should order the SOC to be a confidential document under r 2.32(3) the Federal Court Rules 2011 (Cth) (Rules) such that it could not be accessed by non-parties until further order of the Court; and, in respect of those who had to date accessed the SOC (as I explain below), whether I should make interim orders under s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that, until further order, those persons be prohibited from publishing or disclosing the SOC or its contents insofar as the SOC or its contents concerned the second defendant. These persons were identified as being Fairfax Media Publications Pty Ltd (Fairfax), the publisher of The Australian Financial Review (AFR), its employed journalist, Mr David Marin-Guzman, and any other employee, agent or contractor of Fairfax. I will return to the significance of the involvement of Fairfax and Mr Marin-Guzman below.
I was not satisfied that these orders should be made.
BACKGROUND
At the time the proceedings commenced, r 2.32 of the Rules applied. That rule relevantly provides as follows:
Inspection of documents
(1) A party may inspect any document in the proceeding except:
…
(b) a document that the Court has ordered be confidential.
(2)A person who is not a party may, after the first directions hearing or the hearing (whichever is earlier), inspect the following documents in a proceeding in the proper Registry:
…
(c)a pleading or particulars of a pleading or similar document;
…
(m)a transcript of a hearing heard in open Court.
…
(3)However, a person who is not a party is not entitled to inspect a document that the Court has ordered:
(a)be confidential; or
(b)is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.
Note:For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.
(4)A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.
(5)A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:
(a) is entitled to inspect the document; and
(b) has paid the prescribed fee.
…
Pursuant to r 2.32(2), the SOC was not able to be inspected by a non-party prior to the “first directions hearing” or the hearing, whichever occurred first in time.
The proceedings were originally listed for case management on 19 September 2024. On 18 September 2024, Markovic J made orders by consent vacating that hearing and listing the proceedings for case management on 10 October 2024.
On 9 October 2024, her Honour made further orders vacating the hearing on 10 October 2024 and listing the matter for case management on 14 November 2024, as well as an order “pursuant to r 2.32(3)” that the SOC remain confidential and not be accessed by non-parties until the date of the next case management hearing. This order effectively maintained the default position reflected in r 2.32(2) that pleadings not be available for inspection until a matter first comes before the Court.
On 13 November 2024, Markovic J made further orders by consent adjourning the hearing on 14 November 2024 and listing the matter for case management on 28 November 2024.
On that occasion, her Honour did not make any further order under, or for the purposes of, r 2.32(3), but the earlier order made on 9 October 2024 remained on foot.
On 26 November 2024, the defendants filed an interlocutory application seeking further and better particulars of certain paragraphs of the SOC, as well as an order pursuant to r 2.32(3) of the Rules that the SOC and paragraph 19 of an affidavit of Sharon Anne Burnett affirmed on 26 November 2024 (Burnett Affidavit) (which was made in support of that application) be confidential and not accessed by non-parties until further order of the Court or such other time as the Court saw fit.
The confidentiality order sought by the defendants, if granted, would have altered the default position under s 2.32(2) which allows for non-party access to certain documents following the first case management hearing. The application relied upon r 2.32(3) as the source of the power to make the confidentiality order that was sought.
At the case management hearing on 28 November 2024, the parties’ attention was focussed upon the dispute concerning particulars. The case management hearing was listed at 9.30 am on that day. Its listing was published in the daily court list of this Court and was conducted in open court. There were no orders sought or made as to the suppression or non-publication of any the matters that were then ventilated.
I have reviewed the transcript of that case management hearing. As I have already mentioned, during that hearing, the parties’ focus was on the application for further and better particulars. Counsel for the defendants informed her Honour that extensive and detailed particulars were being sought as the SOC made serious claims as against the second defendant. A submission was made to this effect by Counsel for the defendants:
… a significant part of the pleading alleges that the second defendant Mr Hamlin was a de facto or a shadow director of a number of entities. Now, those entities number in 50 to 60 to 70 entities, which are alleged to form part of this fraudulent scheme. So a large number of the particulars that are sought go to the same style of pleading being that Mr Hamlin - - -
It is to be observed at this juncture that the defendants deny the allegations made and consider the SOC to be deficient and liable to be struck out or summarily dismissed.
Further submissions were made as to the deficiencies in the SOC, as follows:
Now, we’ve been given a rather extensive affidavit by the plaintiffs which sets out a large number of documents as well as evidence obtained through liquidator examinations, but, in circumstances where allegations against the second defendant in particular involve allegations of fraud, [i]n my submission, those allegations need to be pleaded and particularised with precision, and at present we simply don’t have that precision. The concern that we have is irrespective of the position that we may take in terms of admitting or denying that allegation, we would like to know the case that we’re going to have to meet at trial, and at present we simply just don’t know that.
…
… at the moment, we say that the particulars that have been provided to us are - fall well below, even, the standard of adequacy that we would require to know the case that we’re going to have to meet at trial.
Counsel for the plaintiffs resisted the characterisations of the SOC and indicated that detailed particulars had been provided in response. Counsel for the plaintiffs submitted as follows:
… We plead, though, as a central part of our case that there was a scheme. And we say, in respect of the various entities, your Honour will have seen, we call them employing entities or invoicing entities. In respect of each of those entities, the directors, according to the ASIC records, were effectively nominating - or straw directors. And either Mr Hamlin, or Mr Henderson, were the true directors.
…
… There’s a lot of detail in the case, but we have provided a lengthy response to the particulars, and we’ve provided them within the time frame ordered by the court, previously.
Her Honour observed that she had not yet been provided with a copy of the Burnett Affidavit.
In the result, her Honour considered that there should be further discussion between the parties in relation to the dispute about particulars. In those circumstances, her Honour was not minded to list the interlocutory application for hearing and instead listed the proceedings for a further case management hearing on 5 December 2024.
The defendants accepted before me that they did not press for, or even raise with her Honour that they intended to press for, the order they sought under r 2.32(3), and no such order was made. The topic did not arise during the case management hearing.
As such, as at 28 November 2024, after the first case management hearing had concluded, the confidentiality order made on 9 October 2024 was spent, though the defendants’ interlocutory application remained on foot.
The defendants adduced evidence before me indicating that their legal representatives had operated on the basis that, notwithstanding that the orders made under r 2.32(3) were spent, they did not consider that access to the SOC would be made available to third parties without them being notified, especially in circumstances where their interlocutory application had been filed the day before the last case management hearing and remained on foot.
In the meantime, it appears that following the case management hearing, Mr Marin-Guzman, a journalist from the AFR, sought and was granted access to the SOC. The defendants accepted that Mr Marin-Guzman had lawfully obtained a copy of the SOC, but emphasised that they had not been given notice of his application for access to the SOC or the fact that such access had been granted.
On 3 December 2024, the solicitors for the defendants received an email from Mr Marin-Guzman seeking the defendants’ comments on various allegations raised in the SOC. Mr Marin-Guzman informed the defendants’ solicitors that he had obtained a copy of the SOC from the Registry of the Court and intended to publish an article in the AFR that evening outlining the allegations in the SOC (including allegations that had not previously been reported in the press and which were the subject of the defendants’ extant application for confidentiality orders).
At this point, the defendants’ solicitors realised that Mr Marin-Guzman had been granted access to the SOC as the earlier orders had been spent. Needless to say, this was an unexpected development in the minds of the defendants and their solicitors.
At 5.10 pm on 3 December 2024, the defendants’ solicitors approached my chambers in my capacity as Commercial and Corporations Duty Judge (copying in Mr Marin-Guzman) requesting an urgent confidentiality order under r 2.32(3) and/or an interim non-publication order concerning the SOC until such time as the defendants’ application for confidentiality orders could been determined, and further requesting that, if such an order were made, Mr Marin-Guzman be required to delete or destroy the copy of the SOC provided to him by the Registry.
I refused to make the orders sought in chambers. I refused to do so because orders of the type sought, in the context in which they were sought, are not ones I considered appropriate to be made in chambers. There are some occasions when non-publication and suppression orders relating to non-controversial matters may in practice be made in chambers by consent, such as information identifying the personal addresses or contact details of parties and witnesses or other personal information such as bank account details, tax file numbers and the like. However, generally speaking, and on the whole, applications for non-publication and suppression orders are heard and made in open court, taking into account the rights of interested parties to be heard against the making of such orders. That is as it should be taking into account that the principle of open justice is itself at issue in such applications.
The defendants pressed that I hear their application that evening in circumstances where there was an expectation that the AFR would be publishing an article about the proceedings, and Mr Marin-Guzman and Fairfax had been asked to give but had not given any undertakings not to publish.
The result was that I convened an expedited hearing at 8:30 pm that evening to hear the defendants’ application. At that hearing, I sought an explanation for the urgency of the matter, and expressed the view that convening a hearing at that time did not appear to be consistent with professional or societal norms unless the matter was truly and pressingly urgent. I was informed by the solicitor representing Fairfax and Mr Marin-Guzman that the proposed article would not be published that evening.
In those circumstances, I adjourned the hearing and relisted the matter for the following morning, 4 December 2024. At that hearing, the defendants filed an amended interlocutory application (Amended Application) seeking orders in the nature that I have set out above. In support of the Amended Application, the defendants read the following affidavits:
(a)a redacted version of the Burnett Affidavit together with an exhibit SB-1; and
(b)an Affidavit of Ziad (Zac) Chami sworn 4 December 2024 (Chami Affidavit).
The plaintiffs neither consented to nor opposed the orders sought by the defendants and took no active part in the hearing, other than to reserve the plaintiffs’ position as to costs. Fairfax and Mr Marin-Guzman were represented at the hearing and opposed the relief sought by the defendants.
CONSIDERATION
The submissions made before me raised important questions as to the interaction between r 2.32 of the Rules and Part VAA of the FCA Act (Suppression and Non-Publication Orders). These matters were considered recently by Perram J in Saw v Seven Network (Operations) Ltd [2024] FCA 1210 at [8]ff.
A primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE, FCA Act. I agree with Perram J’s view expressed in Saw at [20]-[21] that the meaning of the expression the “public interest in open justice” for the purpose of s 37AE of the FCA Act cannot be affected by r 2.32 as it is delegated legislation: cf, Ryan v Transurban Ltd [2024] FCA 994 at [30] (Rangiah J).
However, there is a separate (and potentially unresolved) controversy as to whether r 2.32(2) provides for something that is broader than the common law principle of open justice and whether r 2.32(3) provides a source of power independent to s 37AF, upon which the Court may make an order that a document falling within r 2.32(2) is to “be confidential”: see Saw at [25] and [27]. This raises more fundamental issues as to whether the principle of open justice would be safeguarded by permitting non-parties access to pleadings and the other types of documents and information specified in r 2.32(2). In eisa Ltd v Brady [2000] NSWSC 929, Santow J held that the release of pleadings prior to the trial of an action created “a danger of prematurity” and stated at [18]:
… It is at the trial that public and Press will ordinarily have full and unfettered opportunity to be present and hear what is said, and where pleadings can be understood in their proper context. It may well then be possible to release a copy of the pleadings without danger of prematurity, though the circumstances would need still to be considered.
This reasoning was followed and applied by Barrett J in Australian Securities and Investments Commission v Rich [2002] NSWSC 198 at [15], where his Honour quoted Santow J in Brady at [20]:
Clearly if the court were thus to make available to the press prematurely affidavits or pleadings containing damaging allegations not read in court or sufficiently described in open court, this may severely and unfairly prejudice the subject of these damaging allegations with no necessary redress in defamation.
Barrett J further stated at [20]:
The appropriate outcome here in relation to the amended statement of claim is the outcome that emerged in relation to the documents considered in Stonham and eisa Ltd v Brady, namely, that access should not be granted. In saying this, I must emphasise that the outcome is not a product of any a priori position. There is no room in cases of this kind for the operation of any presumption either way. Again, an observation of Santow J in eisa Ltd v Brady is in point:
“Thus adopting a simple bright-line rule that access should always be allowed - or indeed never - in either case ignores that there are genuinely competing principles to be weighed. There is open justice, its processes made as accessible as possible through a properly informed Press reporting to the wider community and which seek to be contemporaneous. There is the need to avoid injustice and unfair prejudice in the trial from disclosure of serious and as yet untested or incompletely tested allegations, where prematurity of disclosure is at issue and where there is likely to be no redress in defamation, no matter how malicious the pleaded allegation. Neither principle has a priori ascendancy. Both are subordinated to the interests of justice in which the community is vitally concerned as well as the parties. These questions must therefore be tested, case by case, against that overriding purpose of the interests of justice.”
In Llewellyn v Nine Network Australia Pty Limited [2006] FCA 836; (2006) 154 FCR 293, Rares J considered that these decisions did not reflect the practice in this Court. In the context of earlier rules of this Court, his Honour stated at [22]-[23]:
This court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this court are initiated. Parties know that when they file in this court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection. If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46 r 6(1) provides a means for it to be kept confidential. The need for that exceptional course ought to be established on evidence at the time it is filed. Of course there may be cases of urgency or necessity where it is not always possible to do so and the court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations. No such situation was made apparent in this case.
In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts. Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts. People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state or, here, the Commonwealth to be applied to the resolution of their dispute.
In relation to the untested nature of allegations contained in pleadings, Rares J stated at [27] that:
The proposition that untested allegations in civil proceedings are somehow to be shielded from public view merely because they are untested allegations and could not possibly be properly understood in the context of a fully contested hearing is, in my opinion, not one that can sit with the principle of open justice or the right of any one fairly to report proceedings in a court of justice.
Llewellyn has been referred to and applied on several occasions in other matters before this Court: e.g., see Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473 at [189]-[194] (Wigney J); Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) [2021] FCA 1507 at [5]-[6] (Mortimer J, as her Honour then was).
That is not to say that access to pleadings will be granted to non-parties at all times, or on all occasions, after the first directions hearing in this Court. Recent decisions demonstrate that this will be fact dependent. The making of non-publication and suppression orders as to pleadings, and orders that they “be confidential”, have been made in the context of mediations, settlement discussions, and settlements that require the parties to keep them confidential: e.g., see Patterson v Westpac Banking Corporation [2024] FCA 629 (Raper J); Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 (Raper J); Saw (Perram J); Farrell v Super Retail Group Ltd [2024] FCA 954 (Lee J); Porter v Australian Broadcasting Corporation [2021] FCA 863 (Jagot J). Goodman J did not make such orders in their entirety in Young v Accenture Australia Pty Limited [2024] FCA 1013 where there was evidence that many of the allegations contained in the pleadings were “in the public domain”: at [9] and [48].
Consistently with Rares J’s observations in Llewellyn, in Ferguson, Mortimer J stated at [5] that:
… Access to the foundation documents in a proceeding enables the public to understand and follow the resolution of the controversy by the Court. Access also permits fair and accurate reporting of proceedings by the media, which in itself is capable of supporting and advancing the operation of open justice.
However, her Honour considered it appropriate in that case that the relevant pleadings remain confidential until a notice of address for service had been filed. Her Honour stated at [9] and [12]-[13]:
At this stage of this proceeding, where no notice of address for service has been filed, but the Court can reasonably expect there will be one filed, given the respondent is a State organisation, there is a real risk of prejudice to the proper administration of justice tending in favour of a limited order being made under r 2.32(3). That is because the respondent would, in the ordinary course of the proceeding, after being served with the originating application and filing a notice of address for service, have an entitlement to apply to the Court for a suppression order over the originating application or parts of it, or apply for an order under r 2.32(3). The respondent would bear the onus of satisfying the Court it was appropriate for such an order to be made and would need to confront the application of the open justice principle…
…
Permitting inspection before a notice of address for service has been filed deprives the respondent of the opportunity to exercise the right it has as a party to apply for suppression orders, and to make submissions about why they are appropriate. It is not in the interests of the administration of justice to deprive a party of that right in circumstances where the respondent is likely to be unaware of the non-party access request and the time to exercise any right to seek suppression orders has not yet arisen.
An order under r 2.32(3) can be made for a limited period of time, and can be tailored so as to allow for no more than the prompt exercise of this right, if the respondent chooses to do so. If the respondent does not act promptly, the order under r 2.32(3) will expire and any non-party will be able to inspect, and copy, the originating application.
Her Honour’s reasons reflect at least one purpose served by rr 2.32(2) and (3) being that the rules do not permit non-party access to certain documents until after the first directions hearing so as to enable one or both parties to make an application for appropriate orders under r 2.32(3) and/or Part VAA of the FCA Act.
Whatever may be the position in other courts, the position in this Court is as expressed by Perram J in Saw at [25] that “r 2.32(2) is broader than the common law principle of open justice would require because access can be granted even where the document has not been utilised in open court, provided that the first directions hearing has already transpired”. That is of course subject to applications being made under r 2.32(3) and/or Part VAA of the FCA Act.
In the present case, the defendants contended that they had acted in accordance with the approach outlined above in that they had made an application for orders under r 2.32(3) prior to the first case management hearing. They further contended that it was likely that, subject to the resolution of the dispute about particulars, they would make an application for strike-out or summary dismissal of the SOC or parts of it. It was submitted that, in those circumstances, there should be orders as to the confidentiality of the SOC and its suppression and non-publication. It was submitted that the defendants should not be exposed to public reporting of these allegations in circumstances where they had not yet exercised their rights to seek to have them struck-out and removed, especially in circumstances where the reporting of the contents of the SOC would likely cause professional and reputational loss to both defendants and is said to be occasioning personal harm to the second defendant.
I was not satisfied that, in the events that had come to pass, there was a factual or other basis for making the orders that were sought. Putting to one side any unresolved controversies about the interaction and operation of r 2.32(2) and (3) and Part VAA of the FCA Act (which it is not necessary for me to decide for the purposes of this application), the facts here were that the allegations contained in the SOC had in substance been laid bare in open court.
First, as I have mentioned, during the case management hearing on 28 November 2024, it was mentioned in open court that the SOC made allegations that the second defendant was a de facto or shadow director of approximately 50 to 70 entities and that there was a “fraudulent scheme” in which he and the first defendant were involved.
Second, as I have also mentioned, there is an ongoing dispute between the parties as to the adequacy of the pleading and the particulars that have been supplied to date. These matters were canvassed at the case management hearing. A present dispute before the Court is as to the adequacy of the pleading. It is a dispute in which the very question of the adequacy of the untested allegations is to be contested and, if successful, the relevant parts of the pleading will be struck out. Given that the broad ambit of that dispute has been aired in open court, I see no justification for it be confidential.
Third, as a result of each of the above two matters, the Burnett Affidavit exhibited the parties’ correspondence in relation to the requests for particulars and the responses made to those requests. The Burnett Affidavit was read in open court (save for certain redacted paragraphs), and I received its exhibits as part of the evidence before. The result is that the details of the parties’ arguments about various paragraphs of the SOC have been put before the Court. The requests for particulars and the responses to them are lengthy. The requests parse the SOC in detail, and the substantive response to the requests sets out many of the central allegations contained in the SOC.
Fourth, there is no a priori rule that untested allegations made in a pleading that may be the subject of a strike out or summary dismissal application should be kept confidential or that it would be necessary to prevent the proper administration of justice to make orders under s 37AF: s 37AG(1). It has been held time and again that in determining whether there is prejudice to the proper administration of justice, considerations of embarrassment, convenience or personal sensitivity to the publication of personal and often very private circumstances given in evidence or revealed in the course of a proceeding in open court, of themselves, cannot justify or support the exercise of any inherent or implied power of a court to suppress or prohibit the publication of those matters: e.g., see Ogawa (formerly Ms PD) v President of the Australian Human Rights Commission [2022] FCAFC 160; (2022) 294 FCR 221 at [27] (Rares, Perry and Hespe JJ). That is the case even where parts of pleadings are struck out, subject to appropriate cases where the material struck out is truly scandalous and vexatious: e.g., see Rush at [195]-[196]. No case or argument was put to me that the relevant paragraphs of the SOC were scandalous or vexatious.
Having regard to the above, I was not satisfied that an order should be made under r 2.32(3) that the SOC “be confidential”. Nor was I satisfied that it was appropriate to exercise my discretion to make interim suppression and non-publication orders under s 37AI.
Accordingly, I declined to grant the relief sought by the defendants and made orders the following day reflecting the position I had reached.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff. Associate:
Dated: 12 December 2024
SCHEDULE OF PARTIES
NSD 1219 of 2024 Plaintiffs
Fourth Plaintiff:
HENPARK HOLDINGS PTY LTD (IN LIQUIDATION) (ACN 624 401 029)
Fifth Plaintiff:
NPC ADVISORY (SD) PTY LTD (IN LIQUIDATION) (ACN 643 357 224)
Sixth Plaintiff:
NPC ADVISORY (TC) PTY LTD (IN LIQUIDATION) (ACN 651 525 192)
Seventh Plaintiff:
NPC ADVISORY CORPORATE PTY LTD (IN LIQUIDATION) (ACN 651 525 209)
Eighth Plaintiff:
ULTIMATE LABOUR HIRE PTY LTD (IN LIQUIDATION) (ACN 635 852 630)
Ninth Plaintiff:
ROSEVILLE CONSTRUCTION SERVICES PTY LTD (IN LIQUIDATION) (ACN 601 107 117) (ROSEVILLE)
1
16
2