Federal Court of Australia

Saw v Seven Network (Operations) Ltd [2024] FCA 1210

ORDERS

THE COURT ORDERS THAT:

1.    The parties bring in a short minute of orders to give effect to these reasons within seven days.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The Applicant, Ms Saw, is a journalist who was formerly employed by the Respondent, Seven Network (Operations) Ltd (‘Seven’), on its current affairs program Spotlight. By an originating application filed in this Court on 6 September 2024, Ms Saw seeks relief for contraventions of the Fair Work Act 2009 (Cth) arising from her employment by Seven. The originating application was accompanied by a statement of claim. On 23 September 2024, an amended statement of claim was filed. I will refer to these documents as the pleadings.

2    On 27 September 2024, Seven filed the present application for suppression and non-publication orders to prevent the pleadings coming into the public domain. Both parties filed evidence and submissions in relation to that application. Pending its determination, third parties have not been granted access to the pleadings or the materials relating to the present application.

3    Three media organisations appeared at the hearing of the application. I granted those organisations access to Seven’s interlocutory application but not to any of the other materials. I denied them access to the materials for two reasons. First, it is possible that granting access to these materials may have led to their disclosure. It was possible that with a little more time more comprehensive arrangements by way of undertakings could have been put in place which may have ameliorated this risk but I was not willing to adjourn the proceeding to permit that to occur. Secondly, the course of the argument and the terms of the interlocutory application sufficiently put the media organisations on notice of the nature of the issues. Access to the actual evidence or submissions was not necessary in order for them to submit that suppression or non-publication orders ought not to be made.

The suppression and non-publication orders

4    Seven does not seek permanent suppression or non-publication orders but instead only orders which will last until 7 days after the termination of a mediation the Court has ordered or, alternatively, until after the filing of its defence. That mediation is to take place between 1 November 2024 and 30 November 2024. A defence is due to be filed by 18 October 2024.

5    A suppression or non-publication order can only be made if the requirements of s 37AG(1) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’) are satisfied. Section 37AG(1) provides:

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

6    Seven submits that the relevant ground is s 37AG(1)(a) – that is, that suppression and non-publication orders are necessary here to prevent prejudice to the proper administration of justice. In making a suppression or non-publication order the Court is required by s 37AE to ‘take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice’.

7    The principal business of this Court is the quelling of disputes between parties according to law. Disputes may be quelled by the trial of proceedings but they may also be quelled by parties agreeing to settle them. This is reflected in ss 37M(1) and (2) of the FCA Act which provide:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

8    The resources of the Court are finite. Every case which is not settled must be heard and determined. Consequently, the Court encourages parties to settle their litigation and it is in the interests of the administration of justice that they do so. Where proceedings have been settled, it has been accepted by many judges of this Court that non-publication and suppression orders may be made over documents on the Court file so that parties can be assured that settled proceedings remain confidential. Sometimes this has been achieved by removing sensitive pleadings from the Court file and placing them in a physical envelope marked ‘Not to be opened or made available for inspection by the public other than by the leave of the Court’: Porter v Australian Broadcasting Corporation [2021] FCA 863 at [118] per Jagot J. In other cases, the Court has made non-publication and suppression orders with respect to parts of pleadings following the settlement of proceedings and ordered that they be confidential under r 2.32 of the Federal Court Rules 2011 (Cth) (‘FCR’): Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at [5], [30] per Raper J; McLaughlin v Glenn [2020] FCA 679 at [15], [31] per Abraham J; Valentine Fremantlemedia Australia Pty Ltd [2013] FCA 1293 (‘Valentine’) at [9] per Mortimer J (as the Chief Justice then was).

9    The same policy considerations which support the making of such an order after the settlement of a proceeding would, in an appropriate case, justify the making of such an order before a mediation, at least where the mediation is imminent and one party believes keeping the matter confidential will increase the chances of settlement.

10    For example, in Patterson v Westpac Banking Corporation [2024] FCA 629, Raper J recognised that ‘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 pleadings and other documents filed with the Court], may enhance the prospects of the parties’ negotiations’: [21] (citations omitted). That follows from the ‘very significant public interest’ that exists ‘in the settlement of proceedings, particularly at an early stage’, and the fact that such negotiations ‘“can be inhibited if the allegations which are the subject matter of the proceeding are fully in the public domain”’: [20] (quoting Valentine at [14]). For these reasons, Raper J issued a non-publication and suppression order pursuant to s 37AF of the FCA Act over pleadings, applications, and related submissions in circumstances where, as here, a mediation had yet to take place and a defence had not been filed: [2], [30].

11    Also relevant is Young v Accenture Australia Pty Ltd [2024] FCA 1013 (‘Young’), where at [73], Goodman J declined to make a non-publication order with respect to pleadings on the court file in the lead up to a mediation. A significant distinction between that case and this case was, however, that in Young ‘many of the allegations set out in the [Statement of Claim were already] in the public domain’ as a result of an article in the Australian Financial Review: [9], [48]. In addition, Goodman J accepted that despite that occurrence the parties had still agreed to an early mediation ‘which rather suggests that the (further) public ventilation of details of allegations made by the applicant in the proceeding would not jeopardise the prospects of a settlement of this proceeding’: [49]. At the same time, Goodman J also accepted that there was an important public interest in facilitating the settlement of litigation particularly where, as here, it is in its early stages: [46]. Thus, Goodman J appeared to accept it was possible that a non-publication order (or an order under FCR r 2.32(3)(a)) could have been made with respect to documents on the court file to improve the likelihood of a settlement of a proceeding, even if doing so was not appropriate on the facts before his Honour.

12    The present proceeding is in its infancy. Seven seeks to have the pleadings suppressed until the mediation between it and Ms Saw takes place or until its defence is filed, the former being its preferred position. It says that the mediation is more likely to succeed if this course is taken. Both the statement of claim and the amended statement of claim contain allegations about the workplace at Seven which are sensitive and refer to conduct of persons not party to this litigation.

13    The proceeding has attracted some attention in the media. It is likely that if the pleadings are made public then their contents will be widely reported. That this may be embarrassing to Seven (and potentially the third parties) is irrelevant to the power to make a suppression or non-publication order for it is well-established that mere embarrassment is not sufficient to justify the making of such an order: Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160; 294 FCR 221 at 227 [27] per Rares, Perry and Hespe JJ; Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 (‘Rinehart’) at 326 [54] per Bathurst CJ and McColl JA.

14    Seven puts its case on the basis that the chances of settlement will be enhanced if Ms Saw’s allegations are not aired publicly before the mediation. Ms Saw submits that this is not so and that the prospects of settlement will not be materially affected by any such press coverage. Ms Saw’s submission is unrealistic. The continued maintenance of confidentiality is something which may be of value to Seven at any mediation and hence also to Ms Saw. To be crude about it, keeping the details of Ms Saw’s allegations out of the news is something Ms Saw can offer to Seven in their settlement negotiations. Once the allegations are public, on the other hand, that bargaining chip will be off the table. Thus, I accept that there is a risk – which I would rate as significant – that the publication of the pleadings will deleteriously affect the prospects of the mediation succeeding.

15    In my view, that effect would be prejudicial to the proper administration of justice within the meaning of s 37AG(1)(a). In reaching that conclusion I take into account, as I must, that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE of the FCA Act. Sections 37AE to 37AL were introduced into the FCA Act by the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 (Cth) and then enacted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), which became effective on 12 December 2012. As the explanatory memorandum and second reading speech which accompanied the bill show, its provisions were based on a model law prepared by the Standing Committee of Attorneys-General. That model law was also adopted by Victoria, in the form of the Open Courts Act 2013 (Vic), and by New South Wales, in the form of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (‘the CSPO Act’). No other State or Territory appears to have adopted the model law at this stage.

16    A relevantly identical provision to s 37AE also appears in the CSPO Act in the form of s 6 (the differences do not relate to anything relevant to this case). In Rinehart, the New South Wales Court of Appeal had occasion to consider what was involved in ‘open justice’ under s 6. At 321 [32] Bathurst CJ and McColl JA said this:

By way of reinforcement of the proposition in [31], s 6 of the CSPO Act requires the court when considering whether to make an order under the Act to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”. The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; (2004) 61 NSWLR 344 (at [18]) per Spigelman CJ (Handley JA and Campbell AJA agreeing). Open justice ensures public confidence in the administration of justice: see Moti v R [2011] HCA 50 (at [100]) per Heydon J; Hogan v Hinch (at [20]) per French CJ; R v Tait (1979) 46 FLR 386 (at 401 –403) per Brennan, Deane and Gallop JJ. It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson's statement in Scott v Scott [1913] AC 417 (at 463), that “in public trial is [to be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect.”

17    This suggests that the words ‘open justice’ in s 37AE reflect the common law understanding of that term. At common law, the principle of open justice does not require that access be granted to a document on the court file where the document has not been used in open court: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at 526 [65] per Spigelman CJ (Mason P agreeing at 533 [100] and Beazley JA agreeing at 533 [101]). Thus, if the reference to open justice in s 37AE is to the common law principle of open justice, then the principle has no application in this case because the pleadings in question have not been used in open court (other than for the purposes of this application).

18    Recently, in Ryan v Transurban Limited [2024] FCA 994 (‘Transurban’), Rangiah J concluded that whilst this was true of the principle of open justice principle in general, the reference to open justice in s 37AE had to be understood in a context which included the operation of FCR r 2.32. Rules 2.32(2)-(4) provide:

(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.

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)    be confidential; or

(b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note:    For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

(4)    A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

19    Thus, in Transurban at [30] his Honour observed:

In my respectful opinion, s 37E of the FCA Act does not purport to confine the objective of safeguarding the public interest in open justice within the bounds of the open justice principle. The provision certainly does not do so in its terms. That the public interest in open justice may extend beyond the open justice principle is recognised by r 2.32(2) of the Rules.

20    I respectfully differ from this conclusion for several reasons:

(1)    First, the meaning of the expression ‘the public interest in open justice’ in s 37AE of the FCA Act is a question of statutory construction of that provision. The meaning of that expression cannot be affected by delegated legislation made under the Act in the form of FCR r 2.32(2): Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at 42 [56] per French CJ; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at 109-110 [19] per Gummow A-CJ, Kirby, Hayne, Crennan and Kiefel JJ; Federal Commissioner of Taxation v Macoun [2014] FCAFC 162; 227 FCR 265 at 274-275 [40] per Edmonds and Nicholas JJ (not relevantly challenged on appeal to the High Court).

(2)    Secondly, s 37AG is part of a scheme based on a model law adopted by the Commonwealth, New South Wales and Victoria. Accordingly, the concept of ‘open justice’ should receive a uniform interpretation. Where the New South Wales Court of Appeal has accepted that open justice in these provisions is a reference to the common law principle of open justice, it would be inappropriate to depart from that holding.

(3)    Thirdly, if the meaning of open justice in the model law can be affected by individual court rules, this will disrupt what was plainly intended to be a national approach.

21    I thus respectfully disagree with Rangiah J on this point. The concept of ‘open justice’ in s 37AG is not affected by the provisions of r 2.32(2). Once that conclusion is reached, it follows that the principle of open justice referred to in s 37AG(1) has no work to do in this case because that principle does not require access to a document on a court file unless that document has been used in open court. Thus, whilst s 37AE requires me to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, that principle is silent in relation to the pleadings in this case.

22    Since I am satisfied that the disclosure of the pleadings at this stage would be prejudicial to the administration of justice because it may imperil the success of an upcoming mediation, I am satisfied that suppression and non-publication orders should be made. Because the materials filed by the parties in relation to the present application likewise disclose similar information, I am satisfied that suppression and non-publication orders should be made with respect to them as well. On the other hand, no suppression or non-publication order should be made in relation to Seven’s interlocutory application, filed on 27 September 2024. Because it does not contain the same kind of information, it is not necessary to the administration of justice to treat this application in the same manner.

23    For avoidance of doubt, the following materials are to be subject to the suppression and non-publication orders:

(1)    the statement of claim filed on 6 September 2024;

(2)    the amended statement of claim filed on 23 September 2024;

(3)    the affidavit of Ruveni Desaa Kelleher affirmed on 27 September 2024 and its Confidential Exhibit marked ‘RDK-1’;

(4)    the outline of submissions filed by Seven on 8 October 2024;

(5)    the affidavit of Penelope Faith Parker sworn on 9 October 2024; and

(6)    the outline of submissions filed by Ms Saw on 10 October 2024.

24    It is no doubt because the principles of open justice do not provide a very convenient avenue for obtaining access to the bulk of documents which are on the court file that specific provision has been made in FCR rr 2.32(2)-(4) for access to that file.

25    It will be apparent then that r 2.32(2) is broader than the common law principle of open justice would require because access can be granted even where the document has not been utilised in open court, provided that the first directions hearing has already transpired. Ordinarily, Ms Saw’s pleadings would be available to the public under subrule (2)(c) but that rule is subject to subrule (3)(a), which provides that non-parties are ‘not entitled to inspect a document that the Court has ordered … be confidential’. There is authority for the proposition that the power in subrule (3)(a) reflects the principle of open justice: Valentine at [22]. On this view, an order under subrule (3)(a) should only be made if an order could be made under s 37AF.

26    In this case, it is not necessary to determine whether this is correct because I am willing to make an order under ss 37AF(1)(a) and (b)(iv). As such, I am also willing to make a confidentiality order under FCR r 2.32(3)(a) as was done in Ferguson v Tasmanian Cricket Association (t/as Cricket Tasmania) [2021] FCA 1507 at [8] per Mortimer J (as the Chief Justice then was). However, without expressing a concluded view (because it was not the subject of any argument) there may be some problems with this approach to r 2.32(3)(a). To begin with, the word used in r 2.32(3)(a) is ‘confidential’ whereas the words used in s 37AG(1)(a) are ‘necessary to prevent prejudice to the proper administration of justice’. Certainly, where the open justice principle at common law is engaged in relation to a document referred to in r 2.32(2) (because, for example, it has been utilised in open court) then there is much to be said for the view that the Court ought not declare a document to be confidential under r 2.32(3)(a) unless it would be willing to make an order on a ground in s 37AG.

27    But where the common law principle of open justice is not engaged, which will very often be the case because a document has not yet been used in open court, it is not self-evident that a symmetry between FCR r 2.32 and ss 37AE to 37AL of the FCA Act is necessary. And if it is not necessary, it is not clear why the word ‘confidential’ should be given a meaning that it does not ordinarily bear, viz, the meaning of ‘necessary to prevent prejudice to the proper administration of justice’. For example, and again without expressing a concluded view, I would think that it might be appropriate to restrict access to filed documents which have not been used in open court if they contain information confidential to the parties even if the Court would not make an order under s 37AF. However, since this question does not arise on the present case, these observations are untested by argument and necessarily preliminary.

28    One further matter should be noted. Seven’s interlocutory application also seeks suppression and non-publication orders over the defence and any reply. As these documents have not yet been filed, it is not appropriate at this stage to make an order in respect of them. Prior to the filing of these documents, the parties should confer to determine if these documents should, for the reasons stated herein, also be subject to suppression and non-publication orders. Either party may apply to the Court for such orders on an urgent basis.

Amendment disallowance

29    Seven also sought an order that the amendments to paragraphs 52, 54 and 56 of the amended statement of claim be disallowed. These amendments set out the texts of various emails. These are then given certain legal characterisations for the purposes of the Fair Work Act 2009 (Cth). FCR r 16.02(1)(d) requires a pleading to ‘state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved’ (emphasis added). In some cases, such as a defamation case, the text of a communication will be a material fact. That is not, however, the case with these emails, as was accepted during argument. Consequently, the pleading is in breach of FCR r 16.02(1)(d). I will therefore disallow the amendments pursuant to FCR r 16.52.

30    The parties should bring in a short minute of orders to give effect to these reasons within seven days.

Associate:

Dated:    18 October 2024