Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

In NSD 1009 of 2024:

1.    The first to fifth respondents’ application for a suppression order referred to in the interlocutory application dated 31 July 2024 (as amended to the form of order provided to the Court on 14 August 2024) be dismissed.

2.    Subject to Order 3 below, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) that until 11:00am on 1 October 2024 (and on the ground that it is necessary to prevent prejudice to the proper administration of justice) there be no disclosure, by publication or otherwise, of the material referred to in the schedule to this order (1009 Suppressed Material) other than disclosure by the parties or their legal representatives to:

(a)    the Fair Work Commission and its officers and staff, during any private conference conducted under the Fair Work Act 2009 (Cth), in which the first and sixth respondents participate;

(b)    any mediator, for the purposes of a confidential mediation to which the first respondent and the applicant are participants;

(c)    the legal representatives of Nationwide News Pty Limited and Fairfax Media Publications Pty Limited, for use of the 1009 Suppressed Material for the purpose of making submissions on any application for leave to appeal Order 1 and, if leave be granted, on any appeal;

(d)    with the prior written consent of the first respondent; or

(e)    by the filing in the Registry of any process or other document that contains any of the 1009 Suppressed Material.

3.    In the event no application for leave to appeal Order 1 is brought by 5:00pm on 28 August 2024, Order 2 above be vacated such that no suppression order remains in place.

4.    Liberty to apply to extend or vary Order 2 by notification to the Associate to Justice Lee.

5.    The Separate Hearing referred to in Order 9 of the Orders dated 7 August 2024 be listed to commence at 10:15am on 1 October 2024.

SCHEDULE

The material:

(a)    in paragraphs [21(a)], [21(b)], [21(d)], [21(e)], [21(g)], [21(h)], [21(i)], [21(k)] and [28], in particular (i) under paragraph [33], and in paragraphs [285(a)], [285(b)], [285(d)], [285(e)], [285(g)], [285(h)], [285(i)] and [285(k)] of the statement of claim dated 29 July 2024;

(b)    in prayers [11(a)], [11(b)], [11(d)], [11(e)], [11(g)], [11(h)], [11(i)], [11(k)] and [25] of the originating application dated 29 July 2024;

(c)    in the following parts of the outline of submissions filed by the first to fifth respondents dated 13 August 2024: paragraph 6, the part of the first sentence of paragraph 16 after the words “inter partes litigation”, and the second sentence of paragraph 16; and

(d)    in paragraphs [22(a)], [22(b)], [22(d)] and [22(e)] of the outline of submissions filed by the applicant dated 13 August 2024.

In NSD 909 of 2024:

1.    The applicant’s application for a suppression order referred to in the interlocutory application dated 13 August 2024 (as amended to the form of order provided to the Court on 14 August 2024) be dismissed.

2.    Subject to Order 3 below, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) that until 11:00am on 1 October 2024 (and on the ground that it is necessary to prevent prejudice to the proper administration of justice) there be no disclosure, by publication or otherwise, of the material referred to in the schedule to this order (909 Suppressed Material) other than disclosure by the parties or their legal representatives to:

(a)    the Fair Work Commission and its officers and staff, during any private conference conducted under the Fair Work Act 2009 (Cth), in which the applicant and the second respondent participate;

(b)    any mediator, for the purposes of a confidential mediation to which the first respondent and the applicant are participants;

(c)    the legal representatives of Nationwide News Pty Limited and Fairfax Media Publications Pty Limited, for use of the 909 Suppressed Material for the purpose of making submissions on any application for leave to appeal Order 1 and, if leave be granted, on any appeal;

(d)    with the prior written consent of the applicant; or

(e)    by the filing in the Registry of any process or other document that contains any of the 909 Suppressed Material.

3.    In the event no application for leave to appeal Order 1 is brought by 5pm on 28 August 2024, Order 2 above be vacated such that no suppression order remains in place.

4.    Liberty to apply to extend or vary Order 2 by notification to the Associate to Justice Lee.

SCHEDULE

The material:

(a)    in paragraphs [21(a)], [21(b)], [21(d)], [21(e)], [21(g)], [21(h)], [21(i)], [21(k)] and [28], in particular (i) under paragraph [33], and in paragraphs [285(a)], [285(b)], [285(d)], [285(e)], [285(g)], [285(h)], [285(i)] and [285(k)] of the statement of claim dated 29 July 2024;

(b)    in prayers [11(a)], [11(b)], [11(d)], [11(e)], [11(g)], [11(h)], [11(i)], [11(k)] and [25] of the originating application dated 29 July 2024;

(c)    in the following parts of the outline of submissions filed by the first to fifth respondents dated 13 August 2024: paragraph 6, the part of the first sentence of paragraph 16 after the words “inter partes litigation”, and the second sentence of paragraph 16; and

(d)    in paragraphs [22(a)], [22(b)], [22(d)] and [22(e)] of the outline of submissions filed by the applicant dated 13 August 2024.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    The importance of open justice as a venerable and indispensable part of our justice system is oft remarked upon in almost lyrical terms.

2    Jeremy Bentham went so far as to declaim: “where there is no publicity, there is no justice. Publicity is the very soul of justice”. Bentham recognised that the law secures against the abuse of power, but it also creates new opportunities for abuse, and the only effective solution to this problem lay in publicity; the most robust and comprehensive system of public oversight of public power in all its forms: see G J Postema, Utility, Publicity, and Law: Essays on Bentham’s Moral and Legal Philosophy (Oxford University Press, 2019) (at 267–282).

3    The authorities at common law are well known. In a case referred to and applied on innumerable occasions, McHugh JA in John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (at 476–477) stressed:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and 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. Mere belief that the order is necessary is insufficient.

(Emphasis added)

4    But despite these sorts of exhortations, it is an everyday occurrence to see practitioners, even highly experienced practitioners, seeking suppression and non-publication type orders of various types on an impermissibly broad and infirm basis. Moreover, one sometimes comes across examples, particularly in duty matters, of extensive suppression and non-publication orders being proposed (and sometimes made) by consent without the benefit of detailed submissions or analysis – despite the caution of Lord Woolf MR that it is when both sides agree that information should be kept from the public that the Court should be “most vigilant”: R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 (at 977)).

5    The widespread practice of seeking inappropriate, or inappropriately broad, confidentiality and suppression orders remains the case notwithstanding this phenomenon is inconsistent with principle and has been deprecated by Full Courts (and judges in the original jurisdiction) who have repeatedly sought to remind the profession of the express statutory limits on the making or such orders; the demanding nature of the statutory test involved; and the “very heavy” onus that needs to discharged in order to obtain such an order: see, for example, Giddings v Australian Information Commissioner [2017] FCAFC 225 (at [25] per Collier, Flick and Charlesworth JJ); Commonwealth Director of Public Prosecutions v Christian [2019] FCAFC 5; (2019) 268 FCR 84 (at 110 [121] per Besanko, Flick and Robertson JJ); Mensink v Registrar of the Federal Court of Australia [2022] FCAFC 102; (2022) 294 FCR 101 (at 117 [76]–[77] per Bromwich, Lee and Thawley JJ); Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 (at 442–443 [16] per Madgwick J); Australian Competition and Consumer Commission v Air New Zealand Ltd (No 12) [2013] FCA 533 (at [7] per Perram J); Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241 (at [28] per Jacobson J); Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 (at 74 [30] per Foster J); Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 (at [8] per Edelman J); Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289 (at [110] per Lee J); Deputy Commissioner of Taxation v State Grid International Australia Development Company Limited (Application for Non-Publication Orders No 2) [2022] FCA 719 (at [23]–[24] per Thawley J); Liverpool City Council v McGraw-Hill Financial, Inc [2018] FCA 1289 (at [110] per Lee J); R&B Investments Pty Ltd (Trustee) v Blue Sky Alternative Investments Limited (Administrators Appointed) (in liq) (Confidentiality Orders) [2022] FCA 1443 (at [4] per Lee J); Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2023] FCA 256 (at [113] per O’Bryan J); Azimitabar v Commonwealth of Australia [2023] FCA 760 (at [303] per Murphy J); Chan v Commonwealth of Australia as represented by the NDIS Quality and Safeguards Commission (No 2) [2023] FCA 1538; (2023) 301 FCR 313 (at 339–340 [114] per Shariff J); and Kyle-Sailor v Heinke [2024] FCA 431 (at [25] per Horan J).

6    The application for suppression orders the subject of these reasons is novel, and I do not propose to make them, but they have been calibrated with more care than is sometimes the case. For reasons I will explain, however, each side of this dispute has sought some non-publication type orders in these proceedings unnecessarily and hence wrongly.

B    THE BACKGROUND TO THE PROCEEDINGS

7    It is first necessary to trace some background. The facts emerge from the three affidavits read at the interlocutory hearing, which were not cross-examined upon; nor were they the subject of objection. Nor was any limitation as to use sought in relation to the representations referred to in the affidavits (or contained in the documents annexed or Exhibits SM-1 and SM-2) (T4–5).

8    The applicant, Ms Rebecca Farrell, was employed as the Chief Legal Officer and as a company secretary of the first respondent, Super Retail Group Limited (SRG) between February 2020 and May 2024. From approximately September 2023, Ms Farrell contends an employment dispute arose between her and SRG. Shortly thereafter, on 11 December 2023, SRG became aware that Harmers Workplace Lawyers LP (Harmers) acted for Ms Farrell, and Ms Farrell commenced a period of leave from her employment.

9    In January 2024, the General Manager, Group Secretariat and Corporate Legal at SRG, the sixth respondent, Ms Amelia Berczelly, commenced a period of leave from her employment. Harmers commenced acting for Ms Berczelly in December 2023. In February 2024, SRG became aware Harmers also acted for her.

10    SRG engaged solicitors (Allens) and, from February 2024 onwards, Allens engaged in various “without prejudice” communications with Harmers. A mediation arranged before a former Registrar of this Court, Mr Tony Tesoriero, was conducted on 17 April 2024, which was attended by representatives of SRG, Ms Farrell and (part way through and by telephone) Ms Berczelly. Legal representatives were also present. Although I was not taken to any evidence suggesting Ms Berczelly was bound by a contractual obligation of confidence (unlike the other parties), there is no doubt the mediation was confidential and I would infer she is bound by equitable duties of confidence. The mediation was also unsuccessful.

11    Although we do not know what occurred during the mediation, it is reasonable to conclude that discussion would have taken place between the parties as to the nature and proposed likely quantum of the claims made by Ms Farrell and Ms Berczelly.

12    What next happened is noteworthy. SRG is an entity listed on the Australian Securities Exchange (ASX) and, on 26 April 2024, it “released an ASX announcement about expected workplace litigation”. The announcement was as follows:

26 April 2024

ASX Announcement

EXPECTED WORKPLACE LITIGATION

The Board of Super Retail Group Limited (ASX: SUL) today announces that the Group expects two employees, represented by Harmers Workplace Lawyers, will shortly commence court proceedings against the Group. The Group expects the employees to jointly claim loss and damage in the range of $30 million to $50 million.

The Group expects that the allegations in the proceedings will include: the non-disclosure of a relationship between Anthony Heraghty, the Group Managing Director & Chief Executive Officer, and the former Chief Human Resources Officer (who is not one of the two employees making the claim); inappropriate company travel; bullying, victimisation and adverse treatment; particular employees in the corporate team having unreasonable workloads, insufficient resources and restricted access to information; and unsatisfactory company record management.

The Board has conducted a review and investigations into these allegations. The Board was supported by independent external advisers. The Board's review and investigations concluded that none of the allegations are substantiated.

Super Retail Group will defend any court proceedings in relation to the allegations. Allens is acting for the Group.

As these matters are expected to be the subject of litigation, the Group does not intend to make any further comment at this time. The Group will update the market on this matter as appropriate.

The release of this announcement has been authorised by the Board of Super Retail Group.

(Emphasis added)

13    As is well known, by reason of being a listed entity, SRG has obligations under the Corporations Act 2001 (Cth) (Corporations Act) and ASX Listing Rule 3.1 to disclose immediately information concerning SRG that was not generally available and that a reasonable person would expect, if generally available, to have a material effect on the price or value of SRG’s securities (subject to exceptions I am not required to detail for present purposes). A reasonable person is taken to expect information to have a material effect on the price or value of securities where the information would or would be likely to influence persons who commonly invest in securities in deciding whether to acquire or dispose of those securities.

14    Any announcement to the ASX under Listing Rule 3.1 is required to be accurate, complete, and not misleading, and any opinions expressed in an announcement should be honestly held and balanced (see ASX Listing Rules, Guidance Note 8). It is reasonable to proceed on the basis that SRG contends it made a responsible and proper announcement to the ASX in that the entity announced material information and it constituted a true picture of the nature of the claims by Ms Farrell and Ms Berczelly (of which officers of SRG were then aware within the meaning of Listing Rule 3.1) and that the total claim for loss and damage being made was in the range of $30 million to $50 million.

15    The announcement occasioned widespread media interest and publicity. This is amply demonstrated by newspaper articles that were adduced in evidence. This material also reveals the controversial nature of the dispute, including referencing “sources close to Super Retail” alleging the use of “shake down” tactics.

16    By way of example, on 28 April 2024, in an article published in The Australian, the following appears:

Shopping giant Super Retail Group offered to settle a legal claim from at least two rogue executives over an alleged secret affair between its chief executive and its HR manager, but it was rejected after the offer fell well short of a $50m payday they expected …

Harmers Workplace Lawyers ... engaged in mediation talks with Super Retail earlier this year as it sought losses and damages on behalf of its clients that could be worth $30m to $50m. Those mediation talks later failed, The Australian can reveal, with offers of a settlement raised by the company but not accepted. The failure of mediation to find a workable solution and growing fears it was being held to ransom on baseless allegations led Super Retail on Friday go on the offensive by revealing to the Australian Stock (sic) Exchange that it was being pursued by lawyers acting for two current, female Super Retail executives making a number of scandalous claims and potentially chasing as much as a $50m payout …

Super Retail ... conducted a full investigation into the allegations… This later gave the board the confidence to publicly back its CEO, who has publicly professed a management style that includes getting ahead of a crisis before it breaks.

Internally, Super Retail also believes it is the victim of baseless allegations dressed up as potent legal threats and wielded to trigger a payday for the clients. One source had referred to the claims as akin to a “shakedown or blackmail” with the retailer deciding to go on the offensive rather than pay off the employees to go away.

(Emphasis added)

17    The following day, several events occurred. Harmers separately notified both Allens and another firm of solicitors then acting for SRG that Ms Farrell and Ms Berczelly intended to make what was alleged to be “an emergency disclosure in accordance with section 1317AAD of the Corporations Act 2001 (Cth)”. Harmers then took the course of releasing a media statement in the following terms:

Harmers Statement Super Retail Group

Monday, 29 April 2024

Prior to Friday’s ASX announcement by Super Retail Group Limited (“SRG"), Harmers Workplace Lawyers ("Harmers") had been approached by a number of present SRG employees very concerned about crucial governance issues at the company.

To date, Harmers currently acts for four clients who are whistleblowers against SRG within the meaning of the Corporations Act 2001 (Cth) (“Corporations Act"). Since Friday's announcement, we have been approached by a further number of current and ex employees with similar concerns.

We are confident that other current and former SRG staff will support our clients' claims.

A third party, not associated with SRG, has now also come forward to us with key evidence about the previously undisclosed personal relationship between SRG's CEO, Anthony Heraghty and his former direct report, and SRG's former CHRO, Jane Kelly.

Our two clients, who we assume Friday’s ASX announcement was aimed at, have each made Protected Disclosures within the meaning of the Corporations Act, within recent months, to the non-conflicted members of the SRG Board and, in one case, to SRG’s external auditor at the time, PricewaterhouseCoopers.

Friday’s ASX announcement, and subsequent media coverage initiated by SRG, amounts to the victimisation of these whistleblowers, and is causing them additional damage.

One of our clients has supplied SRG with a draft of a proposed Statement of Claim. That document raises a range of serious governance and conduct issues within SRG. The document has been selectively misrepresented in Friday’s ASX announcement by SRG. Only one aspect of the governance issues raised in the draft statement of claim relates to the personal relationship referred to within SRG’s announcement. However, SRG seems exclusively focused on this issue.

For clarity, SRG as recently as this month denied the existence of any such relationship of any kind.

When Harmers pointed out that it had clear proof of an intimate relationship, and thus a significant unreported conflict of interest, SRG’s position immediately shifted.

As of last Friday, SRG revealed to certain of its staff that a relationship does now exist between Mr Heraghty and Ms Kelly - but SRG now alleges only from January 2024. However, even from that date, such a relationship carried significant conflicts of interest.

One of our clients made a whistleblower complaint in November 2023, via the internal whistleblower platform Whispli, concerning the longer term existence of the relationship and its impact on governance issues - but that complaint was removed from the Integrity Officer and the Head of Risk and given to HR management answering directly to Ms Kelly.

The whistleblower who has served the draft Statement of Claim has provided a medical report and detailed calculations, relating to loss of potential income, justifying the quantum of the claim. Also, our clients offered to confidentially settle this matter for sums less than one third of the dollar amounts in the SRG announcement.

SRG is well aware that this is not a “shakedown", but a justifiable legal claim for damages, being deliberately misrepresented.

Friday’s announcement had a material impact on SRG’s share price throughout the day. SRG has been well aware for over a week of the information it released last Friday, yet it waited.

The Board of SRG has allegedly known of the relationship since December 2023 – despite SRG’s strident denials of that very relationship until as recently as this month.

The SRG announcement also did not reveal that the litigation will extend to Mr Heraghty personally as CEO. That information appears to have been separately provided to the media and not the ASX, and appears only in more recent articles. That does not coincide with our understanding of continuous disclosure obligations under the ASX Listing Rules and the Corporations Act.

The deliberate misrepresentations by SRG, and an internal campaign of suppression via fear, is threatening the safety of the whistleblowers concerned and a number of SRG staff.

For this reason, two of the whistleblowers have today given notice to the company of the need for Emergency Disclosure under the Corporations Act in the interests of their safety. This is designed to offer a higher level of protection to these whistleblowers now that the matter is public.

Harmers Workplace Lawyers

Media Contact

Anthony McClellan

AMC Media

…

(Emphasis added)

18    Allens responded by asserting that SRG had “serious concerns” that the media statement “does not constitute an emergency disclosure within the meaning of the Corporations Act, contains defamatory imputations in respect of various individuals and includes confidential information that was provided to your client on a without prejudice basis during mediation on 17 April 2024”. Notably, SRG asserted that there was “broad public dissemination of the Harmers Statement, including its republication in major media publications such as the Australian Financial Review, The Australian and the Age”.

19    Toing and froing between solicitors then ensued, which is unnecessary to recount for present purposes.

20    More relevantly, on 4 May 2024, SRG, Ms Farrell and Ms Berczelly through their solicitors engaged in further without prejudice discussions. A settlement was not reached that day and the discussions continued the following day between Mr Michael Harmer, the Chairman of Harmers, and Ms Sonia Millen, a partner of Allens. Mr Harmer also sent an email. Discussions continued the following day and Ms Millen “conveyed a without prejudice offer from SRG to resolve the Dispute with the Former Employees”.

21    The evidence then reveals, using the words of Ms Millen in her evidence, that “Mr Harmer sent me an email in which Mr Harmer stated that he was instructed to accept SRG’s offer, ‘subject to deed’; and a text message to the same effect”. The evidence reveals the email was sent at 6:12pm on 6 May 2024, and the text message at 6:14pm on the same day.

22    Pausing at this point, it is now said by Ms Farrell and Ms Berczelly that a binding agreement to resolve the disputes with SRG came into being upon conveyance of the first of these alleged communications of “acceptance” by Mr Harmer on 6 May 2024 (Alleged 6 May Agreement). I will return to this allegation below.

23    Communications were then apparently exchanged between solicitors regarding a proposed deed. According to Ms Millen, the Harmers’ partners sought to obtain releases from SRG and others in relation to the publication of the media release. The evidence is not presently complete on this point but, for whatever reason, the deed did not eventuate and, on 4 June 2024, Allens received Fair Work Commission (FWC) general protections applications that had been commenced on behalf of Ms Farrell (on 24 May 2024) and by Ms Berczelly (on a date which is presently unclear to me) foreshadowing judicial proceedings. On 11 June 2024, SRG filed responses to the general protections applications in the FWC.

24    On 24 June 2024, the dispute escalated further. Allens wrote to Harmers to put that firm “on notice” that should Ms Farrell and Ms Berczelly institute proceedings (following any failure to resolve the matters in the FWC and the subsequent issue of a certificate pursuant to s 368(3) of the Fair Work Act 2009 (Cth) (FW Act)), SRG would seek to enjoin Harmers from representing and advising Ms Farrell and Ms Berczelly because of an alleged conflict arising from the publication, by Harmers, of the media statement.

25    The next relevant event occurred on 28 June 2024, when Harmers sent Allens a letter with a draft statement of claim prepared on behalf of Ms Farrell (with Ms Berczelly being named as the sixth respondent). This draft was in a substantially similar form to the pleading later filed in this proceeding. In particular, it pleaded out the terms of the Alleged 6 May Agreement.

26    But then, on 11 July 2024, SRG filed an originating application in the Court (NSD 909 of 2024) (Adjectival Proceeding) against Ms Farrell and Ms Berczelly, seeking, among other things, final suppression orders “to remain in force until after the first directions hearing in any judicial proceeding commenced” and further, or in the alternative, injunctions to prevent what was said to be an anticipated breach of confidential information or abuse of process or an “anticipated/imminent breach of the implied Hearne v Street undertaking”. Interim relief was also sought.

27    On the following day, the application came before Abraham J at short notice and counsel appeared for both SRG (Mr Follett KC with Mr Ward) and Ms Farrell and Ms Berczelly (Mr Prince SC). Interim relief was not sought by SRG because of the following exchange (T10 (12 July 2024)):

HER HONOUR: So why can’t you give an undertaking that if you do file a statement of claim, you will not disclose the confidential information for X amount of time, to enable an application to be made.

MR PRINCE: Yes. I think we can give that undertaking, but without any concession that we’re obliged to give an undertaking or that - - -

HER HONOUR: No, no. I accept that.

MR PRINCE: - - - the court could make - - -

HER HONOUR: Yes.

MR PRINCE: But that’s consistent with my instructions, and the - - -

HER HONOUR: Yes.

28    The only substantive order made at that time was that Ms Farrell and Ms Berczelly each be assigned pseudonyms.

29    Ms Farrell then commenced a proceeding (NSD 1009 of 2024) on 29 July 2024 (Substantive Proceeding) by an originating application (OA) accompanied by a statement of claim (SOC) alleging that various of the respondents (collectively, SRG Parties) engaged in contraventions of the FW Act. At SOC [21], the terms of the offer said to be accepted leading to the Alleged 6 May Agreement were set out. Prayers 11 and 12 of the OA sought declaratory relief and an order for specific performance of the Alleged 6 May Agreement (and, somewhat curiously given the terms of the SOC, “alternative” relief was sought for common law damages for breach of contract).

30    On 31 July 2024, both the Adjectival Proceeding and the Substantive Proceeding came before Halley J. An interlocutory application was filed by the SRG Parties on that date (First SRG IA) seeking extraordinarily broad interim and final suppression orders (for an indeterminate period) in relation to, among other things, “the information contained in paragraphs [34]–[284]” of the SOC (that is, the substantive allegations made by Ms Farrell as to the events preceding her employment; details of her employment; various policies and duties pleaded including the duties of directors; various complaints and disclosures; details of a Fair Work Ombudsman investigation; events leading up to the taking of sick leave and the termination of employment; events following termination; allegations of contravening conduct by the SRG Parties; allegations of breach of contract; and loss and damage). Costs were also sought.

31    When the matter came before the Court, his Honour raised issues about inconsistencies between the Court documents filed before him and the terms of the existing pseudonym order in the Adjectival Proceeding. After his Honour raised whether any suppression order was necessary given that if an interested party wished to have access to the SOC and OA before the end of the first case management hearing, they would be required apply to do so (at which time SRG could be heard), Mr Follett explained that the apprehension was that this did not prevent “the applicant or any of her agents publishing the information to the media, including publishing the [SOC]” (T9.21 (31 July 2024)). Following some discussion during which his Honour referred to the “very high test” for final suppression orders being made (T9.10–26 (31 July 2024)), Halley J noted the inevitability of an application being made for access to the SOC and (with respect cogently) observed (T11.26–12.15 (31 July 2024)):

HIS HONOUR: - - - one solution might be to give the parties a short opportunity to reconsider – or at least consider further, if I put it more neutrally – consider further their positions as to the scope and extent of any redaction that is necessary for the administration of justice, and so that interim orders could be made today to preserve the status quo pending that being determined. But at the moment, I cannot for myself, see how the entire statement of claim could be redacted and be made the subject of non-publication orders. There may be some aspects of it which, on analysis when parties have had sufficient time to consider the position, may justify that.

But at the end of the day, the difficulty here is that there is a controversy as to whether or not a settlement was reached. Typically, the terms of the settlement are matters which – and discussions involving a settlement or leading up to a settlement – would not be matters that would be publicly aired, for the very obvious reason that there is a public interest in the resolution of proceedings as quickly and expeditiously as possible, and disclosing settlement offers, and counter offers, and concessions, and admissions, publicly would act contrary to that. But here, the very substance of the matter is a dispute as to whether or not there was an agreement, and if so, on what terms. So, inevitably, it’s going to be very hard for this matter to be resolved without that becoming public …

We don’t conduct closed … hearings in this country. So, that it’s only a question of time and the question is – as I think quite eloquently explained in Ms Millan’s affidavit – that once that material starts to become public, the content of it, then the ability of the parties to reach a resolution without a determination of the allegations becomes much more difficult. And in a sense, by your client commencing the proceedings, your client has adopted what might be described as a nuclear option.

Now, it’s a question of whether or not the fallout can be reduced, or whether we are unfortunately embarked on a position now where, effectively, it’s likely that the entire statement of claim is going to have to be disclosed. Unless we can have an interim position where it’s possible for the parties to – as I indicated at the outset – to further consider their positions. Now, are your current instructions to oppose any interim confidentiality order to permit those discussions to take place?

32    Undertakings were then given to the Court, and his Honour made orders on that date, among other things, that: (1) the matter be referred to the National Operations Registrar for allocation to a Docket Judge, with such allocation to occur on an expedited basis; and (2) the First SRG IA be adjourned until the first case management hearing before the Docket Judge. His Honour also discharged the pseudonym order in relation to Ms Farrell. I pause to note that given what we now know, it is odd that those acting for Ms Farrell ever thought such an order could be regarded as being necessary in all the circumstances.

33    On 6 August 2024, both proceedings were referred to me and I listed them the following day for a first case management and interlocutory hearing.

34    I indicated then that I wanted to deal with all issues I could deal with that day (T2.25 (7 August 2024)). Subject to resolving any application for suppression orders, leave was given to discontinue the Adjectival Proceeding, which had been superseded by events.

35    I explained to the parties that the following Monday, I was required to start a six-week hearing. Conscious of facilitating the quick, inexpensive and efficient resolution of the real issues in dispute, and after remarking it appeared that the specific performance suit was a narrow question as to whether, on whole of the evidence, the Alleged 6 May Agreement fell into either the second or third category explained in Masters v Cameron (1953) 91 CLR 353, and that such disputes had customarily been dealt with by Equity judges very expeditiously (even in the middle of trials), I advised I was prepared to hear the separate question as to specific performance later that week. Ms Farrell was content for the issue to determined promptly, but the response of the SRG Parties was to say they did not “understand why a plain, vanilla contract case should receive expedition” and “why the interests of [SRG] on a plain, vanilla contract case, should be put second to the diary commitments of the court” (T11–12 (7 August 2024)).

36    Leaving aside that characterisation of my seeking to assist the parties to resolve this aspect of the dispute promptly and with a minimum of cost, it then became apparent to me, for the first time, that a form of interlocutory order was also being sought by the SRG Parties (which seemed to me to amount to a final injunction) restraining Harmers from acting in the Substantive Proceeding.

37    I explained to Mr Prince that logic demanded the allegation of a conflict going to the representation of a party had to be determined first. Eventually orders were made arranging for the application seeking to enjoin Ms Farrell retaining her present solicitors (Conflict Application) to be heard promptly and arranging for evidence to be filed in relation to the specific performance suit (so as to allow for a prompt resolution of that issue following determining the Conflict Application).

38    As to the proposed suppression order in the First SRG IA, I expressed concern about its swingeing nature and the proposed redaction of nearly the entirety of the statement of claim. In response, Mr Follett informed me that prayer 3 was no longer pressed and what was now sought to be suppressed was essentially that contained in SOC [21], that is, the terms of the Alleged 6 May Agreement (Terms Information).

39    I adjourned the outstanding suppression and confidentiality applications for hearing after expressing a preliminary view, based on the information then before the Court, that it was difficult to see the necessity in:

(1)    the proposed refined suppression order sought by the SRG Parties restricted to the Terms Information, given it has long been common practice for the terms of settlement agreements to be the subject of sworn evidence including cross-examination conducted in open court when the enforceability of such agreements (often involving a confidentiality term) are in issue – put another way, if one party is seeking to enforce a settlement agreement, in ordinary circumstances, the genie is out of the bottle because the law allow disclosure of information that would otherwise have been privileged (T37.32–39 (7 August 2024)); and

(2)    the pseudonym application in the Substantive Proceeding in relation to Ms Berczelly, in the light of the medical evidence (such as it was) and the lack of evidence concerning whether there has been a disclosure within the meaning of s 1317AAE of the Corporations Act (T33.4–11 (7 August 2024)).

40    But at the conclusion of the first case management hearing, I made an interim suppression order until 6pm on 14 August 2024 over, among other things, the identity of Ms Berczelly and the Terms Information (Order 10) and stood over all suppression or confidentiality related applications for final hearing on 14 August 2024 (Order 11). I set down the application for a final suppression order as soon as possible because of the statutory requirement in s 37AI(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that I determine the application “as a matter of urgency”.

C    THE RELEVANT LAW

41    The relevant principles were not (and could not) be in dispute. They are well established and have been explained many times in the cases I have already referred to in the introduction to these reasons, but it is worth making the following points.

42    Suppression orders, or orders having the practical effect of suppression orders, must be made under and in compliance with the requirements of Pt VAA of the FCA Act, which sets out express limits on:

(1)    the power to make any suppression order: s 37AF;

(2)    the grounds for making such an order: s 37AG; and

(3)    their duration: s 37AJ. 

43    In deciding whether to make a suppression order, the starting point is instructive. The Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. This is not empty rhetoric: it is a statutory obligation pursuant to s 37AE of the FCA Act. As is evident from the remarks made in the introduction to these reasons, its identification as a mandatory consideration reflects a profoundly important aspect of our system of justice. Transparency may have its inconveniences, but as Lord Atkinson put it in his speech in Scott v Scott [1913] AC 417 (at 463):

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

44    When the importance of open justice is properly appreciated, it can be seen that a confidentiality or suppression order is not justified simply because it may be “convenient, reasonable or sensible”; nor is it sufficient that a confidentiality order may be viewed as serving “some notion of public interest”: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (at 664 [31] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

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.

46    Notwithstanding the use of the word “may” in s 37AF(1) of the FCA Act, assessing whether to make an order does not involve some form of balancing exercise weighing up, on the one hand, the interests of open justice and, on the other hand, the prejudice which may occur if information is released. Any submission that because of the subject matter or the circumstance of a particular case means the open justice consideration is of less weight than in other cases is wrongheaded as it assumes the correct test is one which involves the balancing of competing interests: see Hogan (at 664 [33]); Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 (at [14] per Griffiths J). It logically follows that if and when “the necessity of an order for the relevant purpose is established, refusal to make the order is not an option”: Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339; (2021) 106 NSWLR 383 (at 421 [218] per Bathurst CJ, Leeming JA and Simpson AJA).

D    THE IDENTIFICATION OF THE “NECESSITY” FOR THE SUPPRESSION

47    The SRG Parties contend that there are three key reasons why a suppression order in the terms now sought is necessary in order to prevent prejudice to the proper administration of justice, being:

(1)    the disclosure of the Terms Information would operate as a specific disincentive to the resolution any extant dispute between the parties to these proceedings;

(2)    the disclosure of the Terms Information would operate as a disincentive to parties generally to resolve litigation by non-curial means; and

(3)    there are extant FWC proceedings involving Ms Berczelly in respect of which the disclosure of the Terms Information would undermine the future resolution of those proceedings.

48    The SRG Parties developed these submissions as follows.

49    First, the SRG Parties contend that one type of evidence that has been accepted as necessary to prevent prejudice to the administration of justice is evidence of settlement terms: Mununggurr v Channel Seven Sydney Pty Ltd [2019] FCA 2188 (at [12]–[16] per Rares J); Elderslie Finance Corporation Ltd v Newpage Pty Ltd (No 6) [2007] FCA 1030; (2007) 160 FCR 423 (at 431–432 [42]–[46] per Lindgren J). In this case, it is said that it is necessary to suppress the terms of the Alleged 6 May Agreement because to do otherwise would be to destroy the subject matter of confidentiality surrounding those terms in the first place and to deprive the parties of part of their bargain. The commercial value of the agreement, in other words, would be destroyed if those terms became public knowledge.

50    Secondly, it is said that the disclosure of the Terms Information would operate generally as a disincentive to parties to engage in settlement discussions. The settlement discussions that are alleged to have given rise to the Alleged 6 May Agreement are the subject of “without prejudice” privilege. It is said that absent the engagement of any exception, the disclosure of communications the subject of that privilege would, generally speaking, discourage parties from engaging in settlement negotiations and undermine the public interest in the administration of justice: Naude v DRA Global Ltd [2023] FCA 493 (at [25] per Snaden J); see also Pigozzo v Mineral Resources Ltd [2022] FCA 1166 (at [206] per Feutrill J).

51    Thirdly, and relatedly, the SRG Parties submit that the disclosure of the Terms Information would not only risk destroying the subject matter of confidentiality in the Alleged 6 May Agreement, but also the future prospects of a non-curial resolution of ongoing FWC proceedings involving Ms Berczelly and SRG. A paradigm example is said to come from Lifeplan Australia Friendly Society Limited v S&P Global Inc (Formerly McGraw-Hill Financial, Inc) (A Company Incorporated in New York) [2018] FCA 379, where I noted (at [20]) that in the circumstances of that case, the primary objective of the administration of justice was outweighed by the necessity to prevent prejudice to the proper administration of justice by the Court revealing details of the settlement.

52    In this case, the SRG Parties contend that the disclosure of the confidential information would jeopardise the related proceedings for two interrelated reasons:

(1)    the value of any confidentiality term of any future settlement agreement would be significantly diminished by disclosure of the confidential information because the disclosure would give rise to an inference that the terms of any future settlement are at least comparable to the previously-disclosed confidential terms (which applies equally in the case of Ms Berczelly); and

(2)    the disclosure of the Terms Information would act as a disincentive to the making of any confidential settlement offer by any of the SRG Parties to Ms Berczelly.

53    It is said that this is particularly so in circumstances where the process of conciliation between certain SRG Parties and Ms Berczelly has not concluded and where the FWC has not certified, in respect of Ms Berczelly, that it is “satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful”: FW Act, s 368(3)(a).

E    WHY NECESSITY IS NOT MADE OUT    

E.1    Three Preliminary Points

54    I will deal with each of three key and overlapping arguments advanced by SRG below, but prior to doing so it is important to make three preliminary points.

55    First is identifying the information currently already in the public domain relevant to this dispute and its proposed settlement. It is evident from my factual findings and the material now publicly available that the following information is “out of the bag”:

(1)    the identity of all relevant participants;

(2)    both the nature of the serious claims being made and granular details of those claims;

(3)    the fact a mediation and settlement discussions have taken place to resolve the claims and when and how those negotiations took place;

(4)    the content of some without prejudice communications, including the emails and other communications passing between solicitors placed into evidence;

(5)    from the time of the ASX announcement, the alleged quantum of the claims, being between $30 million to $50 million;

(6)    from the time of publication of series of articles in late April, that it had been reported that:

(a)    “sources close to Super Retail on Friday accused the employees behind the legal action of using ‘shake down’ tactics” and the claims were “like blackmail or a shake down” or “akin to a ‘shakedown or blackmail’” and SRG “internally” believed that it was the “victim of baseless allegations dressed up as potent legal threats and wielded to trigger a payday” (Annexures JMH-4 and JMH-5);

(b)    “[r]ather than wait for court documents to land”, SRG “made the decision to alert the stock (sic) exchange” as part of an “offensive strategy” (Annexure JMH-4); and

(c)    SRG’s offer to settle the proposed claims against it (as at April 2024) was rejected because it fell “well short of a $50m payday” (Annexure JMH-5);

(7)    from the time of the media release, the contention that Harmers’ clients offered to settle the dispute “for sums less than one third of the dollar amounts in the SRG announcement”;

(8)    the fact a subsequent written offer was made by Harmers on behalf of Ms Farrell and Ms Berczelly to resolve their dispute by email on 5 May 2024 and that, in response, a counteroffer was made by Allens on behalf of the SRG Parties, the next day, to resolve the dispute;

(9)    the notion, described by the SRG Parties in its submissions as “trite”, that “many respondents, including public companies, will pay a premium for the quick and confidential resolution of disputes” (to use the words of those submissions);

(10)    the fact that promptly after a counteroffer was made by Allens, and in response to the counteroffer, Mr Harmer stated by email and text message that “he was instructed to accept SRG’s offer, “subject to deed”;

(11)    certain terms of the Alleged 6 May Agreement (over which no suppression order is now sought) being those pleaded at SOC [21(c), (f) and (g)] that the terms of settlement would be confidential; the settlement would be on the basis of a denial of liability on part of all parties; and that there would include non-disparagement clauses in any deed;

(12)    the fact the parties tried to document a deed for the purpose of either documenting a concluded bargain (as Ms Farrell and Ms Berczelly contend) or documenting a preliminary consensus that had been reached, which would only become a concluded bargain upon execution of the deed (as the SRG Parties contend);

(13)    that according to Ms Millen, Harmers partners “sought to make themselves parties in their own right [to the settlement], in a context where those partners also sought to obtain releases from SRG and others in relation to the publication of the” media release and, more specifically, according to senior counsel for the SRG Parties: “Harmers sought specific terms to be included in any settlement agreement which would protect their position” (T15.4 (7 August 2024)); and

(14)    there is now a dispute as to whether a settlement had been concluded.

56    Secondly, (and related to the first point), although it does not really matter given the extent of the information in the preceding paragraph, it is worth making an additional point as to what is already known or is able to be reasonably inferred:

(1)    In response to the submission made by the SRG Parties that even if the Alleged 6 May Agreement was binding and a suppression order was made, the terms would always remain confidential as between the parties, an oral submission was advanced by Mr Prince that given there had already been a market announcement (see [12] above) “ultimately there will be a requirement for a disclosure of the settlement agreement” (T24.23–28). I responded by noting, in effect, that the evidence does not allow me to draw conclusions as to what information concerning SRG would, on a commonsense ex ante analysis, be material information concerning the entity within the meaning of s 677 of the Corporations Act.

(2)    But to the extent it matters, the asserted position of the SRG Parties has relevance for a different reason. Given the SRG Parties have submitted the settlement terms would always remain confidential irrespective of the outcome of the specific performance suit if a suppression order was made, any informed bystander would necessarily conclude that the position advocated by SRG and its officers is that, if specifically enforced, any financial impact of the Alleged 6 May Agreement (if such an impact existed) would not be required to be disclosed to the ASX pursuant to Listing Rule 3.1 and s 674 of the Corporations Act.

(3)    A moment’s thought reveals that this very submission says something about the content of the Terms Information. This can be usefully demonstrated by reference to one of the detailed “Worked Examples” (Example E “material law suit”) used by the ASX in Annexure A to Guidance Note 8 that assists disclosing entities understanding their continuous disclosure obligations concerning resolution of litigation.

(4)    As a matter of logic, for a disclosing entity, an assertion an entity need not disclose any terms of a confidential settlement of litigation necessarily says something about the assessment made by the officers of that entity as to their materiality, and more specifically, the likely impact of the terms of the confidential settlement on the entity’s financial position.

(5)    In the present case, the submissions made on behalf of the SRG Parties, no doubt following informed instructions and consideration, necessarily carries with it the assertion that if specific performance was granted but a suppression order was extant (and hence the Terms Information was not generally available information) the Terms Information would not be considered by the officers of SRG to be material information for the purposes of s 677 of the Corporations Act. Despite the submission made by Mr Prince, it is unnecessary for me to comment further on this assessment and, for reasons I have explained, I have an insecure evidentiary basis to do so in any event.

57    Needless to say, assessing whether a suppression order is necessary in that it goes beyond merely being convenient, reasonable or sensible has to be judged by reference to all the circumstances, including what relevant information is already in the public domain.

58    Secondly, after the SRG Parties initially submitted there will be a challenge as to whether the specific performance suit was being brought in “good faith” (T31.40 (7 August 2024)), this was later refined to a submission that it has “no reasonable prospects of success” (T32.24 (7 August 2024)). But in the absence of evidence, particularly an account of the critical oral conversations leading up to Mr Harmer’s email and text on the evening of 6 May 2024, I am simply unable to form any informed view about the ultimate merits of the equity Ms Farrell seeks to enforce. It is appropriate to proceed on the basis that senior counsel has settled the claim and must subjectively consider that there is a reasonable foundation, based on material already in his possession, that the claim can be conscientiously pleaded.

59    Thirdly, given I am currently sitting in a trial and the application was heard out of hours, these reasons have been prepared in some haste. But I note that I have considered all submissions made by the SRG Parties (and will specifically address what emerged as the key or important points made on their behalf).

E.2    The Specific Disincentive

60    There are several cascading difficulties with the notion that the disclosure of the Terms Information would operate as a specific disincentive to the resolution the current dispute between the parties to these proceedings.

61    The first is the unsatisfactory state of the evidence, which is a legacy of SRG’s initial and overreaching claim to suppression, which it (properly) abandoned on 7 August 2024. Ms Millen gave evidence of the alleged specific disincentive by making several hearsay representations (admissible because of the interlocutory nature of this application but unable to be challenged directly in the absence of an unlikely reasonable request to SRG under Pt 4.6 of the Evidence Act 1995 (Cth) (EA) to call as a witness the person who made the representation (see s 166(f)).

62    Among other things, Ms Millen said she was informed by Mr Paul Harvey, SRG’s General Manager, Performance, Reward and Workplace Relations, that SRG apprehends that “if orders 1-3 sought in the SRG Application are not made”, then:

(1)    disclosure “will severely limit, or altogether eliminate, the prospects that the Dispute will ever be resolved by non-litigious means, because it will be very difficult, or impossible, for SRG to reach a non-litigious dispute settlement in circumstances where any settlement offer might be used to wage a public relations campaign against it, on the basis – however unmeritorious – that the parties had reached a binding settlement agreement”;

(2)    SRG “will suffer irreparable harm to its corporate reputation, as a result of the inevitable (but erroneous) public perception that any settlement offer by SRG constituted an admission of the allegations made by Ms Farrell in the [SOC]”;

(3)    if Ms Farrell is correct in her contention that she, SRG and Ms Berczelly entered a legally binding settlement “of the Dispute (which SRG denies), then publication of the information in paragraphs [34]-[284] of the [SOC] would eviscerate the benefit for which SRG (on Ms Farrell’s case) bargained – namely, a confidential settlement in relation to the untested allegations that Ms Farrell makes against SRG”;

(4)    SRG “disputes many of the allegations made in paragraphs [34]-[284] of the statement of claim, and that at trial, SRG will adduce evidence to prove the truth of a markedly different version of events. I am also informed by Mr Harvey that SRG is likely to seek further particulars of, and orders striking out, various allegations made in paragraphs [34]-[284]”.

63    Importantly, this evidence is premised upon the notion that the information sought to be suppressed was that identified in prayers 1 to 3 of the First SRG IA. Since this evidence was first recounted (in an affidavit of 5 August 2024), the vast bulk of this “confidential information” has entered the public domain including, critically, the precise detail of the allegations made. Despite this, and the fact Ms Millen affirmed a further affidavit on 13 August 2024, no evidence was directed specifically to the much more limited application focussed only upon the proposed disclosure of the Terms Information.

64    Secondly, even to the extent possible one takes these comments as being directed to the Terms Information only (somewhat generously to SRG), the points apparently made by Mr Harvey are either confusing, beside the point or are not compelling.

65    As to (1), as I have explained, it is public there were at least two offers made by SRG and there is an allegation there is a binding settlement caused by acceptance of the second. Information about the general range of the offers made by the parties at the time of the mediation (and rejected by the other party) is also public as is the “trite” notion that “public companies, will pay a premium for the quick and confidential resolution of disputes”. It is also clear that SRG regards the proposition a settlement agreement was reached is without reasonable foundation. Moreover, very public allegations have been made of seriously improper conduct by both parties. It is far from self-evident to me in these circumstances that the incremental disclosure of the Terms Information will create some additional and decisive barrier to a future settlement which does not presently appear to be objectively likely (given the present absence of consensus and the escalation of the dispute). And remembering, of course, the parties have already had ample time and numerous opportunities to settle the dispute including at a formal mediation before a highly experienced mediator.

66    As to (2), SRG have already disclosed (and it is common ground) that an express term of the Alleged 6 May Agreement is that it was without any admission of liability by SRG. Whatever else is unclear, SRG has made it plain it disputes the allegations. There is no dispute about there being no admission – suppression orders are not necessary because people may irrationally hold a view contrary to the facts. Indeed, the contrary is the case: disclosure allows a true and relevantly complete position of the facts to emerge.

67    As to (3), to the extent that one was to accept that “publication of the information in paragraphs [34]-[284] of the [SOC] would eviscerate the benefit for which SRG (on Ms Farrell’s case) bargained”, the asserted cause of destruction of the relevant contractual benefit of SRG is now public. One cannot eviscerate something twice. This assertion is not material to the necessity to suppress the different and incremental disclosure of the Terms Information.

68    Moreover, in any event, if contrary to the evidence adduced by SRG, it is suggested the disclosure of different information, being the Terms Information, would (somehow doubly) cause “evisceration”, the point does not have substance. If it is ultimately found there was a bargain struck, the loss of the confidentiality of the terms secured by the bargain will be lost for one reason alone: it will be the result of the SRG Parties acting wholly inconsistently with the bargain, disputing its existence, and requiring it to be specifically enforced. In these circumstances, of course, the exclusionary rule of evidence preventing of settlement negotiations does not apply (EA, s 131(2)(f)).

69    As to (4), not only is this not directed to the Terms Information, but the fact that SRG disputes allegations or seeks to strike them out is entirely beside the point. As Rares J explained in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293, “all persons of the right to be able to make fair reports of proceedings that have been initiated in courts” and “ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts” (at 297–298 [23], 299 [29] and 300 [35]). His Honour noted (at 298 [27]):

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.

70    Thirdly, obviously enough, settlement is a bilateral or, in this case, multilateral process. Unlike many cases where suppression of information is sought to aid settlement (as discussed below) each party other than the SRG Parties opposes the suppression orders and do not contend it is necessary to suppress the Terms Information.

71    Fourthly, despite the long history of judges being confronted with applications to enforce alleged agreements to settle litigation, and the prevalence of such settlements being on confidential terms, as Mr Follett frankly accepted, he was not aware of any case where a suppression order of the type sought has been made in the context of a specific performance suit for any reason – let alone to preserve the prospect of some future (and in this case thus far elusive) settlement. Certainly, for my part, having been involved in several such cases over 35 years, suppression of the terms of agreements sought to be enforced in equity is unprecedented in my experience (which, at the risk of understatement, tends to point away from the necessity for a suppression order being made).

E.3    The General Disincentive

72    One can readily accept two general and well-established propositions.

73    First, as Rares J noted in Mununggurr (at [13]), if there is a need for the Court to approve a settlement in respect of a person under a legal incapacity, some aspects of such a settlement, and the process of approval itself, may become subject to exceptions to the principle of open justice, in which case the Court must exercise its powers to do justice according to law: Scott v Scott (at 436–439 per Viscount Haldane LC).

74    Secondly, although recognising that suppressing documents is an exceptional course, as was recently canvassed by Raper J in Patterson v Westpac Banking Corporation [2024] FCA 629 and Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818, there may be cases where circumstances may arise in the context of the resolution of proceedings justifying suppression orders or refusal of access to material. There is a significant public interest in the settlement of proceedings, particularly at an early stage: Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; (2011) 193 FCR 507 (at 514–515 [30] per Rares J); Valentine v Fremantle media Australia Pty Ltd [2013] FCA 1293 (at [13] per Mortimer J). One of the express objectives of case management under s 37M(2)(d) of the FCA Act is, after all, the disposal of all proceedings in a timely manner.

75    The maintenance of confidentiality around not only the terms of any settlement but the negotiations which led to it, can be a critical aspect of a successful resolution. 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 to the nature of the claims made may enhance the prospects of the parties’ negotiations and, depending upon the circumstances, this consideration could illustrate necessity.

76    But even in cases like Valentine where the Court refused leave to inspect documents containing the substance of allegations because it was likely to enhance the prospects of the parties’ negotiations being effective and successful, Mortimer J recognised (at [15]) that a point would be reached at which such resolution seems unlikely and the opportunities for a wholly confidential resolution may be lost because the parties themselves have not been able to take advantage of the opportunities they have been afforded to that point.

77    The suggestion some sort of “chilling” effect will be caused by refusing to make any order suppressing the Terms Information is hard to understand and belied by history given such a novel order has never been made. Nothing about refusing this suppression order affects the ability of parties to seek orders of the type made by Raper J in Patterson or Mortimer J in Valentine. I recognise it takes two to tango, but if these parties wished (and could) settle their dispute confidentially, they had plenty of opportunities to do so. This would be clear to anyone understanding the background facts set out above (at [55]).

E.4    The FWC Proceeding

78    As noted above, the SRG Parties submit that the disclosure of the Terms Information would risk the future settlement of continuing FWC proceedings involving Ms Berczelly and SRG because disclosure would be a “disincentive” and the value of any confidentiality term of any future settlement agreement would be impacted because of the disclosed Terms Information.

79    There is also no substance in this argument.

80    There is no relevant analogy with my judgment in Lifeplan. That case involved two closely related class actions; the first of which settled and the second of which was listed for hearing before another judge of the Court. There was a clear demonstrated necessity to prevent prejudice to the proper administration of justice by revealing details of the settlement (which involved discounts and frank and transparent advice by counsel concerning prospects) except to the extent necessary for me to explain the approval.

81    Here both Ms Berczelly and SRG know exactly what went on. If I find there was no resolution of their dispute in the specific performance suit (to which she is a necessary and proper party and has been made a respondent), they will be negotiating against that background. The remarks I made above about the so-called specific disincentive apply equally here.

E.5    Other Matters

82    As I have explained, assessing whether to make a suppression order does not involve a balancing exercise between open justice and the prejudice which may be occasioned by disclosure. With that said, identifying the probable consequences of disclosure (to the extent they could be characterised as real prejudice) might have some apparent relevance to a consideration of the specific disincentive advanced by the SRG Parties.

83    I have already discussed the unsatisfactory nature of the evidence, but one cannot help getting the impression that this argument is far more about what might be thought by the SRG Parties to be convenient, reasonable, or sensible and preventing material entering the public domain which the SRG Parties would prefer not to be disclosed. Moreover, as the information set out at [55] and [56] above illustrates, so much is already known or can be inferred from what is already public.

84    As I noted during oral submissions, the best point for SRG is that it falls between two stools: if the case has settled, it would have been entitled to enforce a confidentiality term; if it has not, then settlement discussions would not have been revealed.

85    But properly analysed, this is just the inevitable and sometimes potentially embarrassing by-product of a specific performance suit over an alleged settlement agreement, being a type of litigation which, perforce, allows for the adduction into evidence of material that would, but for the nature of the suit, been subject to settlement privilege.

86    Finally, the SRG Parties flirted with a “floodgates” argument. Like many floodgate arguments, it was unpersuasive and paid insufficient regard to the ethical responsibilities of legal practitioners not to commence a suit for specific performance unless there was a proper basis to do so. The necessity to make an order so as to guard against the spectre of badly motivated actors bringing improperly based specific performance suits to avoid contractual obligations of confidence merely needs to be stated to be rejected.

F    THE RESPONSE OF SRG AND ORDERS

87    At the conclusion of argument, I indicated to senior counsel for SRG that I was not persuaded that the suppression order sought should be made and enquired whether reasons were required. In response, I was told that senior counsel already had instructions to seek leave to appeal from any dismissal of the applications.

88    An application was made that I make interim suppression orders; a course I declined.

89    In doing so, however, I was and am conscious that if I was not to make some type of order preventing access to the Terms Information, then it would be open for any person to obtain access immediately and prior to the Court having the opportunity of dealing with the foreshadowed applications for leave to appeal.

90    After some discussion as to the way forward, I fastened upon the expedient of not entering an order dismissing SRG’s applications until I had delivered reasons for dismissal and, in the interim, invited submissions on the terms of any orders preserving the status quo pending any applications for leave to appeal.

91    Proposed orders were sought and then provided. Those orders provided for an undertaking to be given that the applications for leave to appeal be pursued with expedition and that the operation of the dismissal orders be “stayed, pending the hearing and determination of … the application for leave to appeal … and if leave is granted, until the hearing and determination of the appeal”.

92    I do not consider that this is an appropriate, or at least the preferable, course.

93    As I indicated during oral argument, I consider the better course is for final confidentiality orders to be made for a limited time, but on an entirely different basis than has been thus far sought by the SRG Parties.

94    It is invidious for me to speculate as to the prospects of any applications for leave to appeal. It suffices for present purposes to comment that even if I thought that an application for leave has poor prospects of success, it would still be necessary to preserve the subject matter of the foreshadowed leave to appeal application, for an order to be made for a limited period to allow any application to be made.

95    Even taking into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, and despite serious misgivings as to some of the redactions sought by the SRG Parties, orders are necessary to prevent prejudice to the proper administration of justice because it would allow the SRG Parties, after they have had the opportunity of considering my reasons, the opportunity to bring applications for leave to appeal and not have them rendered otiose. To do otherwise would be to act contrary to the interests of justice.

96    However, I wish to deal with the Conflict Application and the specific performance suit as expeditiously as possible. Collateral disputation can undermine the aims of the case management imperatives reflected in the overarching purpose provisions (particularly when some parties are private citizens). If such disputation must be pursued, it should happen with celerity.

97    Moreover, having determined that the suppression order sought by SRG Parties is not merited, it is contrary to open justice principles to suppress the relevant information for any longer than is strictly necessary.

98    Accordingly, I will make a final suppression order but for a limited period to give sufficient time for any applications for leave to appeal to be filed and, if filed, heard. If there is some unexpected difficulty in the applications being heard in a timely manner, then I will reserve liberty to the SRG Parties to approach my Associate to apply for a variation of the order on reasonable grounds. If upon reading the reasons and upon reflection, the SRG Parties do not pursue applications for leave to appeal, being applications which ought to be made promptly, the suppression order should be automatically dissolved.

99    Given the form of the orders I will make, it is unnecessary to procure an undertaking as to expedition because absent the SRG Parties taking all steps reasonably necessary to procure the prompt resolution of any applications for leave to appeal, I would not be disposed to extend the life of the suppression order.

Associate:

Dated: 22 August 2024