Federal Court of Australia

Patterson v Westpac Banking Corporation [2024] FCA 629

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s interlocutory application, dated 7 June 2024, be allowed.

2.    Until the mediation process is terminated, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and 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 Federal Court Rules 2011 (Cth) and their publication (except to the parties’ legal representatives) be prohibited:

(a)    Originating Application filed 13 December 2023;

(b)    Concise Statement filed 13 December 2023;

(c)    Statement of Claim filed 26 March 2024;

(d)    Amended Originating Application filed 24 May 2024

(e)    Amended Statement of Claim filed 24 May 2024;

(f)    Interlocutory Application filed 13 May 2024;

(g)    Affidavit of Andrew Gray sworn 7 May 2024;

(h)    Third, Fourth and Sixth Respondents’ outline of submissions filed 4 June 2024; and

(i)    Third, Fourth and Sixth Respondents’ Amended Interlocutory Application filed 4 June 2024.

3.    Upon the termination of the mediation process, the Registrar is to advise the non-party access applicant and Ms Alick of its termination.

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

REASONS FOR JUDGMENT

RAPER J:

1    These short reasons concern whether documents contained on the Court file should be supressed (and therefore not able to be accessed by third parties) until after a Court-ordered mediation process is complete. The matter was heard by me late yesterday afternoon and I have endeavoured to give short reasons promptly this morning.

2    By interlocutory application, filed on 7 June 2024, the first respondent seeks, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, that the originating application, the applicant’s pleadings, and various documents relating to and including an interlocutory application filed by the third, fourth, and sixth respondents, be ordered “confidential” within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth).

3    The orders sought by the first respondent are set out as follows:

1.     Until the mediation process is terminated, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and 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 Federal Court Rules 2011 (Cth) and their publication (except to the parties’ legal representatives) be prohibited:

a.     Originating Application filed 13 December 2023;

b.     Concise Statement filed 13 December 2023;

c.     Statement of Claim filed 26 March 2024;

d.     Amended Originating Application filed 24 May 2024

e.     Amended Statement of Claim filed 24 May 2024;

f.     Interlocutory Application filed 13 May 2024;

g.     Affidavit of Andrew Gray sworn 7 May 2024;

h.     Third, Fourth and Sixth Respondents’ outline of submissions filed 4 June 2024; and

i.     Third, Fourth and Sixth Respondents’ Amended Interlocutory Application filed 4 June 2024

2.     Matter referred to the docket judge to determine such further and other orders.

4    The relevant background includes the following. This matter was docketed to me in May 2024. On 23 May 2024, the Court ordered that the applicant and the first respondent be required to attend a mediation in Sydney before 20 June 2024. The matter was then assigned to a Judicial Registrar and the matter was scheduled for mediation to occur on 6 June 2024. The day before the mediation, on 5 June 2024, the Australian Financial Review, applied for access to the following documents: the statement of claim and concise statement filed by the applicant and the interlocutory application filed by Mr King, being the documents identified in proposed orders 1(b), 1(c) and 1(f) above. What is notable from the above, is that the AFR was not seeking the most recent copy of Ms Patterson’s pleading nor of the amended interlocutory application. This will be of some significance in these reasons. The first respondent then appeared before the Duty Judge on 6 June 2024 and foreshadowed its suppression application. The matter is still the subject of mediation before the Registrar and the Registrar has not yet terminated that mediation process. The matter was timetabled to be heard by me as the Docket Judge.

5    The AFR was informed of the listing of this application on 7 June 2024, leading to Fairfax Media Publications Pty Ltd filing submissions and appearing at the hearing.

6    The nature of the first respondent’s application to limit access to documents on the Court file must be understood in the context of the relevant organising principles. The principle of open justice is “a” not “the” fundamental principle of the Australian justice system: Porter v Australian Broadcasting Corporation [2021] FCA 863 at [83].

7    Part VAA of the Federal Court Act gives the Court power to make suppression orders. Section 37AA of the Federal Court Act defines a suppression order to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. The Part recognises that in order to do justice, there are circumstances where it may be necessary to restrict the disclosure or publication of information: Section 37AE of the Federal Court Act provides that “[i]n 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”.

8    In The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 the Full Court summarised the relevant principles concerning the making of suppression or non-publication orders in the following way (at [7]–[9]):

7    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the [Federal Court Act] are fairly well settled.

8    Suppression or non-publication orders should only be made in exceptional circumstances … 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 of open justice … The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle …

9    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”. The word “necessary” in that context is a “strong word” … It is nevertheless not to be given an unduly narrow construction … 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 … There is no exercise of discretion or balancing exercise involved …

(Citations omitted).

9    The authorities, referred to below, recognise that an exceptional circumstance demanding suppression may arise where a proceeding has been resolved at an early stage.

10    The Rules provide for the circumstances in which access to documents may be granted, with and without leave. Rule 2.32(2) specifies which documents that may, relevantly, be inspected after the first directions hearing without leave:

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:

(a)     an originating application or cross-claim;

(b)     a notice of address for service;

(c)     a pleading or particulars of a pleading or similar document;

(d)     a statement of agreed facts or an agreed statement of facts;

(e)     an interlocutory application;

(f)     a judgment or an order of the Court;

(g)     a notice of appeal or cross-appeal;

(h)     a notice of discontinuance;

(i)     a notice of change of lawyer;

(j)     a notice of ceasing to act;

(k)     in a proceeding to which Division 34.7 applies:

(i)     an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)     an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

(l)     reasons for judgment;

(m)     a transcript of a hearing heard in open Court.

Note:     Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

11    Accordingly, by this application, the respondents are seeking for the following documents to be in effect supressed, where ordinarily, they would be accessible by any third party without the necessity for a grant of leave: the originating application filed 14 December 2023 (r 2.32(2)(a)); concise statement filed 14 December 2023 (r 2.32(2)(c)); the statement of claim filed 27 March 2024 (r 2.32(2)(c)); the amended originating application filed 24 May 2024 (r 2.32(2)(a)); the amended statement of claim filed 24 May 2024 (r 2.32(2)(c)); the third, fourth and sixth respondents’ interlocutory application filed 13 May 2024 (r 2.32(2)(e)); and, the third, fourth and sixth respondents’ amended interlocutory application filed 4 June 2024 (r 2.32(2)(e)).

12    However, the effect of this rule is not absolute. Important safeguards remain in the Federal Court Act, as referred to above, which allow for these documents to be the subject of restriction.

13    The remainder of the documents sought to be ordered confidential; namely, the third, fourth and sixth respondents’ outline of submissions filed 4 June 2024 and the affidavit of Andrew Gray sworn 7 May 2024, require leave for access to be given: r 2.32(4).

14    The first respondent submitted that their application ought to be granted on the following main bases: First, the proceeding is currently the subject of ongoing mediation and there is an important public interest in facilitating the settlement of litigation. This is said to be so because the maintenance of confidentiality “of court documents” during mediation is often a critical aspect to a successful resolution because otherwise the negotiation may be inhibited and the achievement of a possible confidential outcome undermined. Secondly, given the respondents have not filed a defence, the amended statement of claim is the subject of an application for summary dismissal/strike out and the individual respondents are not a party to the mediation, the respondents, including the individual respondents, should not be forced to defend their position publicly during the mediation process or until after the summary dismissal application has been heard and their defences filed.

15    However, despite the latter half of the first respondent’s second submission that suppression of the documents be maintained until after the summary dismissal application is heard and the filing of their defence, the proposed orders only seek restriction on access until the termination of the mediation process.

16    In support of the application, the first respondent relied upon two affidavits of Mr Gray, solicitor, sworn on 7 and 11 June 2024. The first attached the previous orders of the Court and explained the current mediation timetabling. The second attached an AFR article published on Friday 7 June 2024.

17    Ms Patterson echoed the submission of the first respondent and sought for the documents that are the subject of the proposed orders to not be released until after the conclusion of the mediation processes on the basis that such a release would impede the mediation. Ms Patterson submitted that account should be taken of the very limited period of operation of the proposed order – being limited until the completion of the mediation process (likely to be a few days). Ms Patterson submitted that Fairfax has not articulated why it would be in the public interest to release the documents before that short period has expired and contended that there was obvious utility in granting the order given the very limited information contained in the AFR article by comparison to what is contained in the Court documents.

18    Ms Alick, on behalf of Fairfax relied upon the following written submissions (which included oral supplementation). First, there was no apparent necessity in granting the application, given the order would be futile given what had already been reported. Secondly, it was submitted that the first respondent had not, other than asserting its belief, put on any evidence as to why the parties would be inhibited in conducting settlement negotiations and that “mere assertions” carry no weight. Rather, Fairfax submitted that “media reporting cannot inhibit the parties’ negotiation of how much money they are willing to pay/receive in the settlement of the case”. Thirdly, such orders should only be made in exceptional circumstances and that the first respondent had failed to identify anything exceptional about this case. According to Fairfax, the first respondent’s argument would mean that “the documents filed in every proceeding should be suppressed until the mediation process is terminated” which is contrary to open justice. Fourthly, previous authority adverting to the fact that a document being merely on the Court file as not being a reason to grant access is outdated reasoning given the terms of the current r 2.32. Fifthly, there is no risk of unbalanced and inaccurate reporting and that really such a submission is a veiled attempt to avoid negative publicity.

Resolution

19    The critical question requiring resolution is whether the making of the suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. For the following reasons, I am satisfied that, in the circumstances, it is.

20    It may be accepted that suppression orders may only be made in exceptional circumstances. The Courts have recognised that exceptional circumstances may arise in the context of the resolution of proceedings. There is undoubtedly a very significant public interest in the settlement of proceedings, particularly at an early stage (which is an outcome the Court strives to achieve): Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489 at [30]; Valentine v Fremantle media Australia Pty Ltd [2013] FCA 1293 at [13]. The maintenance of confidentiality around not only the terms of any settlement but the negotiations which led to it, is an important and often critical aspect of a successful resolution (Valentine at [14]):

[c]onsistently with the purposes of the settlement privilege, the maintenance of confidentiality around not only the terms of any settlement but the negotiations leading to it, is an important and often critical aspect of a successful resolution. Within a confidential setting, parties with opposing and frequently conflicting interests feel able to exchange views, put propositions, and make and respond to allegations in ways they feel unable to do in an open and public setting. On all sides, concessions, apologies and admissions against interest may be made which would not be made in public. The freedom parties and their representatives feel to conduct negotiations in this way can be inhibited if the allegations which are the subject matter of the proceeding are fully in the public domain.

21    Accordingly, when determining the necessity of preventing prejudice to the proper administration of justice, account may be taken of the fact that the lack of access, may enhance the prospects of the parties’ negotiations: Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [30]; Reynolds at [30]. This consideration illustrates the necessity in this circumstance.

22    This Court has recognised, in appropriate circumstances, where the matter has resolved before even the first return and the pleading (an unrestricted document) contains sensitive material for which the respondent has not (given the early resolution of the proceeding) had an opportunity to provide any response, that both unrestricted and restricted documents may be the subject of permanent suppression orders: See, for example, McLaughlin v Glenn [2020] FCA 679. It is accepted that in this case the application is made after first return. However, the Court is of the view for the above reasons and those which follow, why nonetheless this application should be granted.

23    Here, both the first respondent and the applicant submit that the provision of access to these documents will impede the mediation. I do not accept the submission of Fairfax that there was a requirement to expand upon this or to provide specific evidence. To require the provision of the same, may in effect, require disclosure of the very details about which settlement privilege arises, impede open and frank discussions as to the resolution of the proceedings, or require the disclosure of confidential details which are at heart of the negotiation. The resolution may include, keeping confidential certain allegations, the withdrawal of allegations, the provision of a joint statement and apologies from both sides. The timing of when such withdrawals, admissions, joint statements or apologies are given may be material in the resolution of proceedings.

24    Here, account may be taken of the fact that the proposed order is only for a very short period of time (namely, the exhaustion of the mediation processes). On the current estimate, it is being sought for a few days. Accordingly, the proposed order extends no further than necessity demands.

25    Further, whilst not a determinative factor, the Court only required the first respondent to attend the mediation. The pleadings make allegations against a number of individual respondents. Those individuals have not had an opportunity to put on any defences. The provision of the Court documents at this stage are likely to distract the parties from engaging in the mediation process. I accept that mere distraction, in and of itself, does not bespeak necessity for the proper administration of justice but it forms part of the cumulative bases identified above as to why in these circumstances, it is necessary.

26    In addition, there is a contextual matter of note. Curiously, the AFR, by its application, is seeking copies of a superseded statement of claim and interlocutory application. It is not clear what the public utility would be in seeking access to outdated pleadings only. It is also clear from the AFR article published last Friday that it inaccurately reported persons as being parties to the proceedings who are no longer parties. Whilst I accept Ms Alick’s submission that Fairfax does not need to justify that the provision of access would be in the public interest, I do note that inaccurate reporting of a matter currently in mediation has the potential to undermine it.

27    Furthermore, as observed by Mortimer J, the determination of whether access will be granted may occur at multiple stages in the proceedings and where resolution seems unlikely, then at that point, with the prospect of a wholly confidential resolution lost, then consideration may be given to the removal of any restriction: Valentine at [15]. Accordingly, the granting of this limited application for a limited period, does not preclude later access where the necessity no longer exists.

28    With this in mind, I accept what Fairfax says about the potential inability of the parties to continue to ventilate these same bases after the exhaustion of the Court-ordered alternative dispute resolution processes.

29    However, if in this case, this matter achieves finality, in the immediate aftermath of the mediation process, as in McLaughlin, there may be an argument that all the documents remain restricted, given the finality of the proceedings, as there would never be an occasion thereafter for the respondents to put, in effect, their side of the story in the public domain. However, I accept there may be other competing arguments and the resolution will depend on the circumstances.

Conclusion

30    For these reasons, I am satisfied that in order to prevent prejudice to the administration of justice, it is appropriate to make an order that the documents contained in the proposed order remain confidential for a limited period of time until the mediation process has been terminated by the Registrar. The parties will then need to move expeditiously if they seek any continuation of the order.

Associate:

Dated:    13 June 2024

SCHEDULE OF PARTIES