Young v Accenture Australia Pty Limited

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FEDERAL COURT OF AUSTRALIA

Young v Accenture Australia Pty Limited [2024] FCA 1013

File number(s): NSD 494 of 2024
Judgment of: GOODMAN J
Date of judgment: 4 September 2024
Catchwords: PRACTICE AND PROCEDURE – interlocutory application for non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – where statement of claim was released and many of the allegations in the statement of claim were published following an incorrect indication by an access applicant that the first case management hearing had been conducted – where respondent seeks non-publication orders on the bases that: the parties have agreed to an early mediation of their dispute; the respondent’s version of events was not publicly available via a defence; and the applicant’s pleadings may contain material liable to be struck out – where applicant opposes the respondent’s application – whether the orders are necessary to prevent prejudice to the administration of justice – application dismissed
Legislation:

Fair Work Act 2009 (Cth), s 570

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

Federal Court Rules 2011 (Cth), rr 2.28, 2.29, 2.32, 6.01, 16.21
Cases cited:

C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70

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

Deputy Commissioner of Taxation v Lee [2022] FCA 1307

Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52

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

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

Keyzer v La Trobe University [2019] FCA 646; (2019) 165 ALD 93

Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272

MCL 105 Pty Ltd v The Agency Group Australia Ltd [2021] FCA 264

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

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

Pigozzo v Mineral Resources Ltd [2022] FCA 1166

Porter v Australian Broadcasting Corporation [2021] FCA 863

Rinehart v Rinehart [2014] FCA 1241; (2014) 320 ALR 195

Ryan v Transurban Limited [2024] FCA 994

Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58

Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293
Division: Fair Work Division
Registry: New South Wales
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 87
Date of hearing: 28 August 2024
Date of last submissions: 29 August 2024
Counsel for the Applicant: Mr D Mahendra
Solicitor for the Applicant: DPR Legal
Counsel for the Respondent: Ms K Eastman SC with Mr M Watts
Solicitor for the Respondent: Norton Rose Fulbright Australia

ORDERS

NSD 494 of 2024
BETWEEN:

DONNA ALICIA YOUNG

Applicant
AND:

ACCENTURE AUSTRALIA PTY LIMITED

Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

4 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The respondent’s…

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Details
Case
[2024] FCA 1013
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Young initiated proceedings against Accenture Australia Pty Limited. The matter involves allegations contained within a Statement of Claim, which were inadvertently released to the public due to an error in the Court's administrative processes. Accenture Australia Pty Limited subsequently applied for non-publication orders under section 37AF of the Federal Court of Australia Act 1976 (Cth), arguing that the release of the allegations had prejudiced their position in the dispute and could harm the administration of justice. The court was required to determine whether the non-publication orders were necessary to prevent prejudice to the proper administration of justice.

The court considered the principles governing the issuance of suppression or non-publication orders, which are only permissible in exceptional circumstances. It was noted that the burden of proof lies heavily on the party seeking such orders to demonstrate that they are necessary. The court examined the evidence presented by Accenture Australia Pty Limited and concluded that it did not substantiate a sustainable claim for legal professional privilege over the contested paragraphs. Additionally, the court acknowledged that Accenture Australia Pty Limited had ample opportunity to make such claims but had not done so. Therefore, the court found that the orders sought were not necessary.

As a result, the court dismissed the interlocutory application for non-publication orders. The court also revoked previously made orders concerning the disclosure of certain documents. However, it allowed the respondent to seek leave to appeal the dismissal of their application, to prevent any potential application for leave from being rendered moot. The court emphasized the importance of the principle of open justice and the need to balance it with the protection of the administration of justice where necessary.

Orders

Orders of the court

1. The respondent’s interlocutory application filed on 31 July 2024 seeking non‑publication and other orders be dismissed.

2. The orders made under s 37AI of the Federal Court of Australia Act 1976 (Cth) on 14 August 2024 (order 5) and 28 August 2024 (order 1) be revoked.

3. Subject to order 4 below, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until 5:00pm on 11 October 2024, 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 material identified in the Schedule to this Order other than disclosure:

(a) by the parties or their legal representatives to any mediator, for the purposes of a confidential mediation between the applicant and the respondent; or

(b) with the prior written consent of the respondent.

4. In the event that no application for leave to appeal order 1 is made by 5:00pm on 13 September 2024, order 3 be vacated.

5. The parties each have liberty to apply to vary order 3 upon notification to the Associate to Goodman J.

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

SCHEDULE

1. Statement of Claim filed on 25 April 2024

2. Amended Statement of Claim filed on 9 July 2024

3. Affidavit of Alexandra Shields affirmed on 30 July 2024

4. Respondent's outline of submissions filed on 20 August 2024

5. Applicant's outline of submissions filed on 30 August 2024

6. Respondent’s supplementary submissions filed on 30 August 2024

Background

Background to the litigation

The applicant opposes the application. For the reasons set out below, the application should be dismissed.B. BACKGROUND On 25 April 2024, this proceeding was commenced by the filing of an originating application and the SOC. On 6 May 2024, I made an order listing the proceeding for a case management hearing on 4 June 2024. On 7 May 2024, an application was made by the Australian Financial Review for access to documents held on the Court file. On that application form, the question asking whether there had been a first case management hearing was answered incorrectly in the affirmative. As a result, the SOC was released to the Australian Financial Review. On 8 May 2024 at 11:15am, Mr David Marin-Guzman from the Australian Financial Review sent an email to the respondent concerning the proceeding. After setting out a detailed recitation of allegations made by the applicant in the SOC, Mr Marin-Guzman posed six questions. Mr Marin-Guzman indicated that his deadline was 4:15pm that day and he asked for a response by then. On 9 May 2024, the Australian Financial Review published an article titled “Accenture warned of ‘$40m back-pay’ risk for overtime” (AFR Article). From the AFR Article, it is readily apparent that many of the allegations set out in the SOC are in the public domain. The AFR Article also included:A spokeswoman for [the respondent], which has yet to file a defence said:“We do not comment on pending legal matters, nor do we comment on individual personnel matters.” At 6:53pm that day, the solicitor for the applicant sent an email to my Associate (and to the respondent’s solicitors), referring to the AFR Article, and stating, inter alia, that: the applicant had no involvement in the provision of the SOC to any non-party, nor was she involved in the publication of the AFR Article; the applicant was upset and concerned about the publication of the AFR Article; as there had not yet been a first case management hearing, the applicant’s solicitors understood that non-parties did not have access to the Court’s file; and the parties had not otherwise been notified of any application to obtain access to the file. On 14 May 2024, Senior National Judicial Registrar Farrell responded to that email stating:I refer to your email below to the chambers of Justice Goodman, which has been referred to me in my capacity as District Registrar for the New South Wales Registry of the Federal Court. I have now looked into the matters raised in your email. As you may be aware, a non-party to a proceeding is required to complete and lodge a Request by Non-Party for Access to Court Documents (Access Request Form) in order to make an application to be provided with copies of unrestricted (and/or restricted) documents which have been filed in a proceeding in accordance with sub-rule 2.32(4) of the Federal Court Rules. The Access Request Form which was provided by the journalist in this instance contained incorrect responses in relation to whether the first case management hearing had taken place. In response to a request from me, the journalist has advised that because the Commonwealth Courts Portal (CCP) indicated that there was a listing in the matter on 6 May, he incorrectly assumed that the first case management hearing had taken place and stated this on the Request Form which he lodged on 7 May. However, the listing indicated on the CCP was an administrative listing by which an order was made listing the first case management hearing to take place on 4 June 2024. The journalist has acknowledged that this was an inadvertent error on his part. Regrettably, the Court Officer who processed the Request Form and provided the documents did not identify the error and this was how the documents came to be released. ...

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The effect of the relief sought is to require the applicant to replace the SOC and ASOC on the Court file with versions of those documents in which paragraphs [66] to [68] have been redacted, on the basis that those paragraphs could reflect communications over which the respondent is entitled to claim legal professional privilege. As noted at [70] above, the evidence on this application falls well short of establishing that there is a sustainable claim for such privilege. In circumstances where the respondent has had ample opportunity to make good such a claim and has elected not to do so, I am not persuaded that the orders sought should be made.D. CONCLUSION For the foregoing reasons, the application should be dismissed. As to costs, s 570 of the FW Act operates, and neither party sought to displace the usual position that each party should bear their own costs. Following discussions with senior counsel for the respondent toward the end of the hearing, I will make a limited order under s 37AF of the FCA Act for the purpose of allowing the respondent to seek leave to appeal should it wish to do so. Counsel for the applicant did not oppose the making of such an order. I am satisfied that it is necessary to prevent prejudice to the proper administration of justice to make an order preventing disclosure of particular documents so as to avoid any application for leave to appeal from my dismissal of the present application being rendered pointless. I note that a similar order was made by Lee J in Farrell.

Ratio Decidendi

Legal Principle Established

In Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, the Full Court of this Court (Allsop CJ, Wigney and Abraham JJ) at 379 ([7] to [9]) provided the following conspectus of relevant principles concerning applications under s 37AF of the FCA Act for suppression or non-publication orders:7The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.8Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].9The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21]. (emphasis added) In C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70, the Full Court of this Court (Katzmann, Wigney and Abraham JJ) observed at [13] to [14]:13.Third, a suppression order cannot be made unless it is “necessary” for one or more of the purposes specified in s 37AG. The appellants bear the onus of persuading the Court to make the order and the onus has been described as “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (Edelman J) at [8], citing Computer Interchange Pty Ltd v Microsoft Corporation (1999) 88 FCR 438 at 438 (Madgwick J). The onus has not been discharged.14.It is trite to observe that “necessary” is “a strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]. It is not enough that suppression be considered desirable. In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, where a non-publication order was sought, McHugh JA, with whom Glass JA agreed, said at 477 that, “there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication” and “[m]ere belief that the order is necessary is insufficient.”