Young v Accenture Australia Pty Limited
[2024] FCA 1013
•4 September 2024
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 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
REASONS FOR JUDGMENT
GOODMAN J
A. INTRODUCTION
The applicant is a former employee of the respondent. She has filed a statement of claim (SOC) and an amended statement of claim (ASOC). Many of the allegations contained in the SOC and the ASOC have been published by the Australian Financial Review newspaper. The respondent has not filed a defence.
The applicant and the respondent have agreed to participate in a mediation to be conducted by a Registrar of this Court.
By the application presently before the Court the respondent seeks, primarily, an order pursuant to s 37AF of the Federal Court of Australia Act1976 (Cth) (FCA Act) that until 14 days after the termination of the Court ordered mediation process the SOC, the ASOC and an affidavit of Ms Alexandra Shields, the respondent’s solicitor, affirmed on 30 July 2024 (Shields affidavit) be ordered to be confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth). The respondent also seeks various forms of alternative relief.
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.
...
On 22 May 2024, Ms Shields wrote to the applicant’s solicitor, addressing the applicant’s claims in the SOC in some detail and inviting the applicant to discontinue the proceeding, or to amend the SOC.
On 31 May 2024, I made orders by consent: vacating the case management conference scheduled for 4 June 2024; providing for the applicant to file any amended originating application and any amended statement of claim by 9 July 2024; and listing the proceeding for a case management hearing on 14 August 2024.
On 18 June 2024, the Court’s Registry advised the parties’ representatives of a “non-party (media) access request to inspect and copy [the originating application and the SOC]”. That application was from a representative of The Australian newspaper.
On 9 July 2024, the applicant filed the ASOC. The ASOC is, as one might expect, marked up in a manner which demonstrates that which has been added to, or deleted from, the SOC.
On 31 July 2024, the respondent filed:
(1)the present application; and
(2)an interlocutory application seeking orders for the summary dismissal of the ASOC; alternatively, orders that some or all of the ASOC be struck out on the basis that it: contains scandalous, frivolous or vexatious material; is evasive or ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; fails to disclose a reasonable cause of action; or is otherwise an abuse of the process of the Court (summary dismissal/strike-out application).
On the same day, the representative of The Australian was informed by the Court’s Registry of: the respondent’s non-publication application; that that application had been listed at 9:30am on 14 August 2024; and of their entitlement to appear at the case management hearing on that day.
On 13 August 2024, and ahead of the case management hearing scheduled for 14 August 2024, the parties provided proposed consent orders which provided for: the vacation of the case management hearing; the referral of the proceeding to mediation before a Registrar of the Court; the setting of timetables for the present application and the summary dismissal/strike‑out application, which timetables were to commence after the termination of the mediation; and a proposed interim order that until the present application was heard, the SOC, the ASOC and the Shields affidavit be treated as confidential within the meaning of r 2.32(1)(b) and their publication (except to the parties’ legal representatives) be prohibited. On that day, my Associate wrote to the parties indicating that I wished to be addressed concerning the proposed interim order.
On 14 August 2024, the parties attended the case management hearing. The publisher of The Australian did not appear at the case management hearing. During that hearing it became apparent that the applicant no longer consented to the proposed interim order. At the conclusion of the case management hearing, I made orders: referring the proceeding to mediation; setting a timetable for the present application, including setting it down for hearing on 28 August 2024; and setting a timetable for the summary dismissal/strike‑out application, with such timetable to commence only in the event that the mediation is unsuccessful and thus after the conclusion of the mediation. I also made the following interim order:
5.Pursuant to s 37AI of the Federal Court of Australia Act1976 (Cth) and subject to further order, the publication of:
a. the Statement of Claim filed on 25 April 2024;
b. the Amended Statement of Claim filed on 9 July 2024;
c. the affidavit of Alexandra Shields affirmed on 30 July 2024,
is prohibited until the determination of the respondent’s application for non-publication orders.
C. THE APPLICATION
On 28 August 2024, I heard the application. The respondent read the Shields affidavit. Each of the respondent and the applicant relied upon written submissions, which were supplemented by oral submissions. The publisher of The Australian did not appear at the hearing.
C.1 Primary relief
The primary relief sought by the respondent, as modified by its submissions, is the making of orders in the following terms:
1.Until 14 days after the mediation process is terminated, pursuant to s 37AF of the Act, 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 Rules, and their publication (except to the parties’ legal representatives) be prohibited:
(a) the Statement of Claim filed on 25 April 2024;
(b) the Amended Statement of Claim filed on 9 July 2024; and
(c) the affidavit of Alexandra Shields affirmed on 30 July 2024.
2.The Registrar is to notify any non-party access applicants of:
(a) these orders; and
(b) the termination of the mediation process, once that termination occurs.
3.In the alternative to the above, the Court should make the orders proposed, but limited to ASOC [66] to [68].
C.1.1 Statutory framework and relevant principles
Sections 37AF and 37AG of the FCA Act provide in so far as is presently relevant:
37AF Power to make orders
(1) The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
...
(b) information that relates to a proceeding before the Court and is:
...
(iv) information lodged with or filed in the Court.
(2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).
37AG Grounds for making an order
(1) The Court may make a suppression order or non‑publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
...
(2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
The following expressions used in ss 37AF and 37AG are defined in s 37AA of the FCA Act as follows:
(1)“suppression order” is defined to mean:
... an order that prohibits or restricts the disclosure of information (by publication or otherwise);
(2)“non-publication order” is defined to mean:
... an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
The expression “publication” is not defined in s 37AA of the FCA Act, but the cognate expression “publish” is defined to mean:
... disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication; or
(b) broadcast by radio or television; or
(c) public exhibition; or
(d) broadcast or publication by means of the internet.
Also relevant is s 37AE of the FCA Act, which provides:
37AE Safeguarding public interest in open justice
In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
The principles relating to, and the importance of, the public interest in open justice are well‑established and were recently reiterated by Lee J in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 at [1] to [5], [43] to [45].
The public interest in open justice is engaged in the present case by, at least, the operation of r 2.32: see Ryan v Transurban Limited [2024] FCA 994 (Rangiah J). Further, the Shields affidavit was read on the application.
Rule 2.32 provides in so far as is presently relevant:
2.32 Inspection of documents
...
(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;
...
(3) However, a person who is not a party is not entitled to inspect a document that the Court has ordered:
(a) be confidential;
...
(4) A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.
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.”
The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”.
It is insufficient that a proposed order may be “convenient, reasonable or sensible” or that it serves “some notion of public interest” still less that, as a result of some “balancing exercise”, the proposed order appears to have one or more of those characteristics: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
The assessment of whether the order sought is necessary is undertaken by reference to all relevant circumstances: see, e.g., McLaughlin v Glenn [2020] FCA 679 at [21] (Abraham J); MCL 105 Pty Ltd v The Agency Group Australia Ltd [2021] FCA 274 at [21] (Colvin J). As Lee J noted in Farrell at [57], this includes relevant information already in the public domain.
It may be that the existence of particular information in the public domain renders inutile or ineffectual any suppression or non-publication order, from which it follows that such an order cannot be necessary to prevent prejudice to the proper administration of justice within the meaning of s 37AG(1)(a) of the FCA Act: Keyzer v La Trobe University [2019] FCA 646; (2019) 165 ALD 93 at 98 ([25] to [27]); Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 at 72 to 73 ([76] to [80]), Basten JA (Bathurst CJ and Whealy JA agreeing).
For example, in Keyzer, several non-parties sought orders in reliance upon s 37AG(1)(a) of the FCA Act for the suppression of their identities and of any material which would tend to reveal the nature of complaints that they had made. In that case, the online journal Lawyerly had earlier published an article containing the interveners’ identities and some details of their complaints. At 98 ([23] to [27]) Anastassiou J reasoned as follows:
[23] A further and more significant matter concerning the question of whether the confidentiality had been lost arose by reason of the publication of the interveners’ identities and some details of their complaints in an online journal called Lawyerly, published by Lawyerly Media. The Lawyerly publication is available on its website in summary form, but the full text of articles contained in the publication are available only on a subscription basis. There is no evidence before the court as to the number of subscribers to this publication.
[24] In her first affidavit, Dr Murray explained that she became aware of the principal proceeding on 25 March 2019 after having had her attention drawn to an article published in Lawyerly which named her and Ms Brenton as the complainants in the grievance process. Following that publication, the University wrote to Lawyerly to request that the article be amended to remove reference to the names of Dr Murray and Ms Brenton. Lawyerly Media agreed to that request.
[25]It is not clear from the evidence how long that unredacted article remained on the Lawyerly website. It is likely that this version of the Lawyerly article was available for at least several days.
[26]The publication by Lawyerly of the unredacted article, probably for several days, is sufficient reason to refuse the application. The identity of Dr Murray and Ms Brenton and the substance of their complaints had been effectively disclosed before this application was made. That is not to say that the further publication of articles in Lawyerly or other media would not aggravate the embarrassment or distress already felt by Dr Murray or Ms Brenton caused by the publication of their identities and the substance of their complaints. In my view once the publication occurred as I have described above, and assuming for present purposes that there would otherwise have been good grounds to make the orders sought, making a suppression order after the publication of the Lawyerly article would not cure the gravamen of the interveners’ complaints and would likely be ineffectual. The making of an order that is, or is likely to be, ineffectual, ex hypothesis is not capable of being necessary to prevent prejudice to the proper administration of justice as required by s 37AG(1)(a) of the Act.
27Further, as a matter of principle, the Court should not make a proscriptive order that is, or is likely to be, practically ineffectual. The making of an order in those circumstances exposes the Court, and the administration of justice, to ridicule. Needless to say, that is the very opposite effect of the criterion mandated by s 37AG(1)(a).
(emphasis added)
Other examples of cases where the availability in the public domain of information sought to be protected was relevant to an assessment of whether orders were necessary to prevent prejudice to the proper administration of justice include Rinehart v Rinehart [2014] FCA 1241; (2014) 320 ALR 195 at 203 to 204 ([79] to [87]) (Jacobson J); Farrell at [12] to [18], [55] to [57], [63], [65] to [67] and [83]; and Deputy Commissioner of Taxation v Lee [2022] FCA 1307 at [52] (Bromwich J), and on appeal Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 at 293 [98] (Thawley, Stewart and Abraham JJ).
C.1.2 Consideration
The following salient features of the present application should be noted at the outset.
First, the proceeding has not been settled and the application is made by the respondent, but is opposed by the applicant. These features set the application apart from a number of the cases in this area, in which the parties, having settled the proceeding on confidential terms jointly seek non-publication or suppression orders so as to preserve the integrity of the agreement they have reached: see, e.g., Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293; Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101; McLaughlin; Porter v Australian Broadcasting Corporation [2021] FCA 863; Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 (Patterson No 2) and Ryan.
Secondly, the respondent has chosen not to file a defence and instead filed the summary dismissal/strike-out application.
Thirdly, a substantial portion of the SOC (and thus the ASOC) is already in the public domain as a result of the AFR Article.
Fourthly, neither party was responsible for the publication of that material into the public domain. The information in the SOC that was set out in the AFR Article became available to the Australian Financial Review because of an erroneous representation by the Australian Financial Review that the first case management hearing had occurred.
Fifthly, the torpor which attended the respondent’s application, which tends against the proposition that the orders sought are necessary. I reject the respondent’s submission that following the release of information in the SOC into the public domain, the respondent promptly took steps to seek non-publication orders. A prompt reaction — in circumstances where the respondent was on notice on 8 May 2024 that Mr Marin‑Guzman had access to the SOC and that he proposed imminently to publish an article concerning it — would have been an application to injunct the publication of the AFR Article or to seek relief immediately following its publication; not, as occurred, to wait for a further three weeks until 31 May 2024 before filing the present application and then not seeking to have it heard with any expedition.
Finally, save for those paragraphs of the SOC which might contain information over which the respondent may have a claim of legal professional privilege, the respondent has taken an “all or nothing” approach to the protection of the information contained in the SOC. In particular, no attempt has been made to separate out those paragraphs of the SOC or the ASOC which contain information that is now in the public domain from those which do not.
The respondent relied upon the following matters as supporting a conclusion that the orders sought are necessary to prevent prejudice to the proper administration of justice.
First, the fact of the referral of the proceeding to mediation.
In this regard, the respondent submitted, and I accept, that there is an important public interest in facilitating the settlement of litigation particularly at an early stage of litigation. Such a proposition is well‑established.
The respondent also submitted that the goal of achieving an early settlement would be jeopardised by the (further) public ventilation of details of the allegations made by the applicant in this proceeding. I do not accept this submission for the following reasons.
First, there has already been public ventilation of details of allegations made by the applicant.
Secondly, despite such public ventilation the parties have agreed to an early mediation, which rather suggests that the (further) public ventilation of details of allegations made by the applicant in the proceeding would not jeopardise the prospects of a settlement of this proceeding.
Thirdly, the applicant has opposed the application and has not joined in the submission that (further) public ventilation of details of allegations made by the applicant in the proceeding would jeopardise the goal of achieving an early settlement of the proceeding. This may be contrasted to the position in cases where both parties have contended that such jeopardy would arise (thus allowing the Court to treat this as a matter of common ground). Although a joint position would not have been determinative in the present case, the absence of a joint position undermines the submission put by the respondent in circumstances where the respondent has not adduced evidence establishing the jeopardy it propounds. Fourthly, and relatedly, is the absence of such evidence.
The respondent also submitted that it can fairly be expected that the respondent will feel compelled to defend the proceeding publicly, with a view to publicly exonerating itself and restoring any damage to its corporate reputation that may have been occasioned by the publication of the applicant’s allegations; and that this would impede any potential resolution by way of mediation and instead make the proceeding more acrimonious.
I accept that this is a possibility. However, that is all that is, and the evidence falls well short of establishing that this may “fairly be expected”, much less establishing the requisite need to make the orders sought in order to prevent prejudice to the proper administration of justice. There is no evidence capable of establishing that the respondent would approach its defence in a particular manner or that such an approach would likely impede resolution or increase acrimony. The methods by which litigation is conducted are as various as the temperaments of particular clients and advisers, and I am not prepared to presume that a particular approach would be taken or reacted to a particular matter, in the absence of evidence. I note also that there is no evidence that the respondent has to date sought to defend itself publicly with respect to the information that was made publicly available on 9 May 2024.
The respondent also relied upon the observation of Mortimer J (as the Chief Justice then was) in Valentine at [15] to [16]:
15There will of course come a point at which such resolution seems unlikely and other objectives within the Court’s case management responsibilities will need to be addressed, such as requiring the parties to file pleadings. At that point, the opportunities for a wholly confidential resolution may be lost, but that is because the parties themselves have not been able to take advantage of the opportunities they have been afforded to that point.
16Unless and until the point is reached where other case management objectives should prevail, it will often be appropriate for the Court to make orders in relation to inspection of documents which enhance the likelihood of early and successful resolution by preserving as much as possible some confidentiality about the subject matter of the proceeding. Once a proceeding is resolved, however, these considerations need to be addressed afresh if an application such as this is made.
These observations do not assist the applicant. Her Honour’s observations followed paragraph [12], in which her Honour noted that confidentiality had been maintained to that point in time. That is not the present case.
The second matter relied upon by the respondent in support of its submission that the orders sought are necessary to prevent prejudice to the proper administration of justice is the fact that the respondent has not filed a defence to the ASOC and has instead filed the summary dismissal/strike-out application, with the consequence that it has not yet in any document on the Court’s file set out its response to the allegations contained in the ASOC.
The respondent submitted that it can fairly be expected that any further media coverage concerning the SOC or the ASOC would result in a wider circulation of the applicant’s allegations against the respondent, with the consequence that the respondent would be called upon to publicly defend itself prior to filing any defence with the Court (should the filing of a defence ultimately be necessary); and that it is not appropriate that the respondent be required to do that in circumstances where the parties have agreed to pursue settlement discussions prior to insisting upon the filing of a defence/determining the summary dismissal/strike-out application.
In support of this submission, the respondent relied upon the following passages from the judgment of Abraham J in McLaughlin at [22] and [30] (reproduced in the form set out in the respondent’s submissions):
[22]…The public interest in open justice operates on an assumption that a person who is the subject of serious allegations in litigation has the opportunity to respond in the same public forum, with a corresponding expectation that the media will report on both sides of the story: Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 at [54]…the respondents had not filed a defence prior to the settlement because the respondents had requested further and better particulars of the applicant’s statement of claim…if the statement of claim was not properly particularised, allowing access would be to give a third party access to allegations which did not fairly set out the applicant’s case and which the respondents have not had and will not have the opportunity to answer in accordance with this Court’s procedures.
…
[30]…the state of the proceedings at the time of settlement were such that the statement of claim to which access is sought was still the subject of dispute such that further particulars were called for and a defence not filed as a result. It would, on any account, be an incomplete position. If access to those documents is granted in those circumstances the early settlement of the proceedings has the consequence that the respondents are likely prejudiced, or at the very least, put at a disadvantage.
The respondent acknowledged that the present case differed from McLaughlin in that in the present case the proceeding has not settled, but submitted that the reasoning of Abraham J set out above remained apposite in circumstances where the allegations against the respondent are serious (as they assert civil contraventions of the Fair Work Act 2009 (Cth) (FW Act)); and the respondent would be placed at a real disadvantage if access to the documents in respect of which it seeks non-publication orders were to be provided in circumstances where an early settlement is being pursued but the absence of any defence on the Court file would mean that any third party who obtained access to those documents would be deprived of the respondent’s side of the story.
I accept that there is a distinction between the present case and McLaughlin, in that in McLaughlin but not in the present case, the proceeding had settled. Indeed, that fact – and the fact that the settlement agreement was a confidential agreement which may have been undermined if a third party had access to and could report on matters which the parties agreed to keep confidential – were central to her Honour’s reasoning (see [26] to [27]). Her Honour’s observations at [30] reflect that at the time of the settlement, no defence had been filed and that because of the settlement, no defence could be filed, with the consequence that the release of the statement of claim would – in that context – paint an incomplete picture. The present position is quite different. There is no settlement agreement constraining the respondent and thus the non-filing of a defence by the respondent (and the consequent incomplete picture) is of the respondent’s choice. The respondent is not constrained from filing a defence or otherwise expressing its response to the applicant’s allegations.
It is unnecessary to address the extract from [22] of her Honour’s reasons for judgment as that paragraph is not, contrary to the respondent’s submissions, an expression of her Honour’s views, but her recording of submissions made in that case.
The respondent also submitted that it can be expected that the release of the documents would “necessarily invoke the need for comment”, citing Patterson (No 2) at [27], where Raper J said:
With respect to the former, there is a material difference between the seeking of access to pleadings when both parties have had, or will have, an opportunity to set out in detail their respective pleaded positions and when, by resolution of the proceedings, at any early stage, finality has been achieved. The Court record represents an incomplete and unbalanced account of the respective parties’ positions. I do not accept that the lack of completeness or imbalance would be remedied by the release of the strike out application and associated documents. Such materials are not akin to the provision of detailed defences addressing all allegations. I am satisfied that release would undermine the settlement and finality of the proceedings. The release of the documents will necessarily invoke the need for comment which will conflict directly with the terms agreed between the parties. Accordingly, such release would frustrate the consequences of settlement and impede public confidence in the utility of early resolution prior to the close of pleadings and the achievement of finality.
(emphasis added)
These observations do not assist the respondent. They were made in a context in which the proceeding before Raper J had settled, on particular terms as to confidentiality. In that case, her Honour found that the release of information would “necessarily invoke the need for comment” which would have been in direct conflict with what the parties had agreed. The undermining of the terms agreed in order to achieve an early settlement was the relevant prejudice. There is no equivalent in the present case.
Assuming for present purposes that a journalist were to obtain access to the documents and to “require” the respondent to “defend itself” prior to filing its defence, the respondent would then have a choice whether, and to what extent, it wished to do so. That the respondent might be put in such a position is an unremarkable incident of litigation (absent a confidential settlement agreement preventing such comment); and does not provide a basis for concluding that an order is necessary to prevent prejudice to the proper administration of justice. As Lee J observed in Farrell at [45]:
Parties and witnesses must accept the embarrassment, damage to reputation and the possible consequential loss which can be inherent in litigation: ACCC v Air New Zealand Limited (No 12) (at [7] per Perram J); Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 (at 320–321 [29] per Bathurst CJ and McColl JA). Adverse publicity, even to third parties, is an often an inevitable by-product of litigation and is part of the price paid for open justice.
The third matter relied upon by the respondent in support of its submission that the orders sought are necessary to prevent prejudice to the proper administration of justice relates to the state of the applicant’s pleadings.
The respondent submits that the SOC has been superseded by the ASOC, which latter document records the manner in which the applicant pursues her claim against the respondent; and as such there is no obvious public interest in any third party having access to the SOC. This may be so, but it is beside the point when that fact does not present prejudice to the proper administration of justice. The presence or absence of a public interest is not the relevant test. In any event, a reader of the ASOC would, by dint of the markup in that document, be able to discern the terms of the SOC.
The respondent submits, with respect to the ASOC, that: (1) there is a contest, based upon the anticipated opposition by the applicant to the summary dismissal/strike-out application, as to whether the ASOC contains allegations that are, inter alia, scandalous, frivolous and/or vexatious; evasive and/or ambiguous; prejudicial and/or embarrassing; and an abuse of process; (2) thus, there is a risk that the disclosure of the ASOC to third parties (and in particular to journalists) when it may contain allegations meeting such criteria will prejudice the respondent including the potential for a successful resolution of the matter at mediation. Again, this may be so but at this stage it is only a possibility. I refer also to my observations at [49] to [52] above as to the effect of disclosure of information upon the mediation process. Whilst the orders sought by the respondent might be considered desirable or to serve some notion of public interest, this is insufficient. No threat to the proper administration of justice has been established.
The fourth matter relied upon by the respondent in support of its submission that the orders sought are necessary to prevent prejudice to the proper administration of justice concerns three paragraphs of the ASOC ([66] to [68]) which the respondent contends could disclose in summary form the content of confidential legal advice over which the respondent may be entitled to claim privilege (respondent’s emphasis).
The respondent submitted that:
(1)there is a live issue as to whether those paragraphs contain information over which the respondent has a claim of privilege;
(2)that issue need not be determined on the present application;
(3)if those paragraphs do reflect legal advice, then the respondent will be entitled to claim privilege; the privilege has not been waived; the Court should infer that the applicant must have known of the likelihood that the ASOC including the privileged information may be subsequently disclosed and broadcast to a wider audience; and it is not in the public interest that pleadings be used to lead to such a result;
(4)on the other hand, if those paragraphs do not reflect legal advice, then there is no claim for privilege, however it does not follow that a non-publication order should not be made with respect to those paragraphs. Rather, a non-publication order should be made with respect to those paragraphs because “...unfair prejudice to the respondent that media reporting may follow, in which it is incorrectly reported that the respondent obtained legal advice that it never, in fact, received, when there is no defence that provides journalists with the respondent’s side of the story”; and the fact that the AFR Article expressly referred to such advice demonstrates the likelihood of such prejudice being visited upon the respondent again in the future.
I do not accept these submissions for the following reasons.
First, although it is well-established that a valid claim for privilege with respect to information pleaded by another party may provide a basis for appropriate orders: see, e.g., Pigozzo v Mineral Resources Ltd [2022] FCA 1166 (Feutrill J), the evidence on the present application falls well short of what is required to establish a valid claim for privilege: see, e.g., Singtel Optus Pty Ltd v Robertson [2024] FCAFC 58 at [24] to [32] (Murphy, Anderson and Neskovcin JJ) and the authorities there cited. This may be because, as noted above, the respondent did not seek to vindicate its claim for privilege on this application.
In the absence of evidence establishing the claim for privilege or at least establishing on an interim basis that such a claim is viable, I cannot be satisfied that an order is necessary to prevent prejudice to the proper administration of justice.
Secondly, the potential for prejudice described in the respondent’s submissions in the event that there is no valid claim for privilege (see [68(4)] above) is insufficient to establish that the orders sought are necessary to prevent prejudice to the proper administration of justice. Again, there is no constraint on the respondent filing a defence or otherwise responding to the allegations made against it.
Thus, I am not persuaded by any of the reasons advanced by the respondent that the orders sought are necessary to prevent prejudice to the proper administration of justice.
The respondent submitted that the above four factors corresponded to those advanced in Patterson v Westpac Banking Corporation [2024] FCA 629, a case in which Raper J was persuaded to make an order of the kind presently sought by the respondent. Of course, each case turns on its particular circumstances and my reasons addressing the circumstances of the present case are set out above.
In expansion of one aspect of those reasons, I consider the fact of the disclosure of many of the allegations in the SOC in the AFR Article to be a matter of central importance to the present application, as the breadth of matters discussed in that article when read against the SOC suggests that the orders sought would be largely ineffectual and inutile; and thus unnecessary to prevent prejudice to the proper administration of justice. As noted above, the respondent took an “all or nothing” approach, and made no attempt to identify those parts of the SOC which were not disclosed in the AFR Article or why the proper administration of justice would be prejudiced by the disclosure of those remaining parts in a context in which much of the SOC and the ASOC had been disclosed (cf. Lee at 290 [77] and 293 [98]).
I have taken into account the respondent’s submission that the disclosure of the SOC to the Australian Financial Review was the product of error and not the result of any act or omission by either party. I accept that neither party was responsible for the information in the SOC entering the public domain. However, the fact remains – regardless of the reason – that much of the information contained in the SOC is in the public domain, with the consequences discussed above.
I have also taken into account the respondent’s submission that dismissal of the application might serve to encourage persons making applications to take advantage of inadvertent or deliberate errors as to whether a first case management hearing has been held and would “completely subvert and undermine” the system presently in place for dealing with access to court documents. I do not accept this submission. The potential for abuse of the present system is adequately addressed by the sanctions presently available against those who engage in such abuse. The present case, although most unfortunate, should be seen as exceptional and not one rendering the order sought necessary for the proper administration of justice.
The above analysis has focused upon the position of the SOC and the ASOC. The respondent did not separately address any submissions as to why the orders sought in so far as they would apply to the Shields affidavit are necessary to prevent prejudice to the proper administration of justice. Having reached the views that I have reached with respect to the SOC and the ASOC as described above, and having reviewed the Shields affidavit, I am not satisfied that the orders sought are necessary.
C.2 Alternative relief
The first form of alternative relief sought by the respondent is an order that:
... pursuant to rr 2.28, 6.01 and 16.21 (2) of the Federal Court Rules, an order that the Statement of Claim be removed from the Court file.
Rules 2.28, 6.01 and 16.21(2) provide in so far as is presently relevant:
2.28 Documents accepted for filing—removal from Court file and storage
(1) A document which has been accepted for filing will be removed from a Court file if:
(a) the Court has ordered that the document be removed from the Court file:
(i) on its own initiative; or
(ii) on the application of a party under rule 6.01 or subrule 16.21(2); or
(b) for an affidavit—the Court has ordered that the affidavit be removed from the Court file:
(i) on its own initiative; or
(ii) on the application of a party under subrule 29.03(2); or
(c) the Court is satisfied that the document:
(i) is otherwise an abuse of process of the Court; or
(ii) should not, under rule 2.27, have been accepted for filing.
(2) A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.
...
6.01 Scandalous, vexatious or oppressive matter
If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:
(a) the document be removed from the Court file; or
(b) the matter be struck out of the document.
16.21 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
...
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
(emphasis in original)
The respondent’s submissions did not separately address this form of relief. It appears to depend upon there being material in the SOC that is scandalous, frivolous, vexatious or oppressive. As noted above, the summary dismissal/strike-out application raises these issues, albeit with respect to the ASOC rather than the SOC, but that application is yet to be determined and the evidence on the present application does not provide a basis for satisfaction that the SOC contains material meeting any of the requisite criteria such as to found an order for its removal from the file.
The further form of alternative relief sought by the respondent is an order that:
... pursuant to rr 2.29, 6.01 and 16.21 (2) of the Federal Court Rules an order that the Statement of Claim and the Amended Statement of Claim be removed from the Court file and replaced with a redacted copy that redacts paragraphs [66], [67] and [68] of the Statement of Claim and paragraphs [66], [67] and [68] the Amended Statement of Claim.
Rule 2.29 provides:
2.29 Documents on a Court file—removal, redaction and storage
(1) A document on a Court file will be removed from the Court file and replaced with a redacted copy if:
(a) the Court has ordered that the document be removed and replaced:
(i) on its own initiative; or
(ii) on the application of a party under rule 6.01 or subrule 16.21(2); or
(b) for an affidavit—the Court has ordered that the affidavit be removed and replaced with a redacted copy:
(i) on its own initiative; or
(ii) on the application of a party under subrule 29.03(2); or
(c) the Court is satisfied that:
(i) any part of the document is otherwise an abuse of process of the Court; and
(ii) it is reasonably practicable for that part of the document to be redacted.
(2) A party may apply to the Court for an order under paragraph (1)(c) that a document be removed from the Court file and replaced with a redacted copy.
(3) If a part or parts of a document are struck out or removed under this rule:
(a) the corresponding part or parts of the redacted copy of the document must be unable to be read in any way; and
(b) the redacted copy must be marked with:
(i) the date on which the order was made; and
(ii) each date on which redaction was performed.
(4) A document removed from a Court file under this rule must be stored:
(a) if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or
(b) otherwise—as directed by the District Registrar.
(emphasis in original)
Rules 6.01 and 16.21(2) are set out at [80] above.
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.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate:
Dated: 4 September 2024