Federal Court of Australia

Farrell v Super Retail Group Limited (Application for Leave to Appeal Suppression Orders) [2025] FCA 170

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 28 January 2025 be dismissed.

2.    There be no orders as to costs.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    This application for leave to appeal relates to suppression and non-publication orders made by the primary judge on 23 December 2024 (the Suppression Orders) pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) on the ground that they were “necessary to prevent prejudice to the proper administration of justice”: s 37AG(1)(a) of the FCA Act. The subject matter of the Suppression Orders relates to a confined subset of without prejudice information contained in the applicant’s pleadings, and which is also contained in certain communications between the parties. It does not relate to the totality of the contents of the without prejudice communications between the parties.

2    The circumstances of the present application are unusual but the principles applicable to the resolution of the application for leave are conventional. It is well settled, and not in dispute, that in an application for leave to appeal an applicant must establish that: (a) the decision giving rise to the orders to be the subject of the appeal is attended with sufficient doubt to warrant it being considered by a Full Court; and (b) substantial injustice would result if leave was refused: Décor Corporation Proprietary Limited v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398 (Sheppard, Burchett and Heerey JJ). These considerations are cumulative and will not be satisfied “unless each limb of the test is made out”: Rawson Finances Pty Ltd v Deputy Cmr of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5] (Ryan, Stone and Jagot JJ) (emphasis added); see also Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at [3] (Jagot, Yates and Murphy JJ).

3    For the reasons set out below, I am not satisfied that leave should be granted. This is because I am not satisfied that it has been established that the applicant (Ms Farrell) will suffer substantial injustice if leave to appeal is not granted. Thus, even assuming (in Ms Farrell’s favour) that the Suppression Orders were wrong, the absence of substantial injustice is a sufficient reason to refuse the grant of leave: see eg Treasury Wine at [3].

2.    BACKGROUND

4    The short background is that Ms Farrell has commenced proceedings against the first respondent (SRG) and several of its officers or employees who are also respondents in the proceedings below (the SRG Parties). Ms Farrell makes various claims including under the Fair Work Act 2009 (Cth) (the FW Act) and the Corporations Act 2000 (Cth). Ms Farrell had also alleged that the parties entered into a binding settlement agreement (the Alleged Settlement Agreement) and sought specific performance of that purported agreement. The SRG Parties admitted that they had entered into without prejudice communications with Ms Farrell but denied that that there was any binding settlement agreement as alleged.

5    On 31 July 2024, the SRG Parties applied for suppression orders (the First Suppression Application) in respect of a broader category of information. That interlocutory application was heard on 14 August 2024. On 22 August 2024, the primary judge dismissed the First Suppression Application, but made interim suppression orders pursuant to s 37AI of the FCA Act to preserve the subject-matter of an appeal that the SRG Parties had foreshadowed: Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 (the August Judgment).

6    On 28 August 2024, the SRG Parties applied for leave to appeal from the dismissal of the First Suppression Application. On 14 October 2024, Wigney J heard that application and granted leave to appeal (over Ms Farrell’s opposition): see Super Retail Group Limited v Farrell [2024] FCA 1214. The SRG Parties’ appeal was listed for hearing before a Full Court on 7 March 2025. Wigney J made suppression orders under s 37AF of the FCA Act until further order or until the determination of the SRG Parties’ appeal.

7    In the meantime, the primary judge determined that Ms Farrell’s claims seeking to enforce the Alleged Settlement Agreement should be heard as a separate issue in the proceedings before him. That matter was heard between 10 and 12 December 2024. On the first day of that hearing, the SRG Parties made an oral application for certain suppression orders which related to a narrower category of information than the First Suppression Application (the Second Suppression Application). As things evolved, the information in respect of which the orders were sought related to a limited subset of the information contained in the without prejudice communications. That is because the SRG Parties acknowledged the earlier observation of the primary judge that some of the broader set of without prejudice information had already entered the public domain and, in that sense, that information was “out of the bag”: August Judgment at [55]. For example, the fact that the SRG Parties had made offers of settlement and proposed agreements by which to resolve the dispute was a matter that was already in the public domain. However, particular aspects of the without prejudice communications had not been so disclosed and remained confidential. The primary judge made interim orders under s 37AI of the FCA Act pending determination of the specific performance claim.

8    On 23 December 2024, the primary judge made orders dismissing Ms Farrell’s specific performance claims for the reasons set out in Farrell v Super Retail Group Limited (Specific Performance Claim) [2024] FCA 1515 (the Specific Performance Judgment). Upon delivery of those reasons, the SRG Parties pressed the Second Suppression Application. The primary judge gave short ex tempore reasons for making the Suppression Orders. It is convenient to set out those ex tempore reasons:

Today, I have delivered judgment in Farrell v Super Retail Group Limited (Specific Performance Claim) [2024] FCA 1515…That judgment is being published [in a form] which contains some redactions. Those redactions are made following an [application] made by SRG, which was conditional upon it successfully defending a specific performance claim. That is the application that now falls for determination. In Farrell Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, I gave reasons why I was not persuaded to make orders then sought by SRG, and made a set of – and made alternative orders of 22 August 2024. Those orders [led] to an application for leave to appeal, and leave being granted for further interim orders made by a judge of the court pending an appeal against my refusal to make more extensive confidentiality orders.

The current application comes against the background of two material changes of circumstance. The first is, I have now heard the specific performance suit. This hearing, including a portion which occurred in closed court[], was conducted in conformity with orders made by another judge of the court, which suppressed certain confidential information, which I will describe as the suppressed information. That hearing has now concluded without disclosure of the suppressed information. The second changed circumstance is that I have found that there was no contract between the parties. It follows that the communications which constitute the suppressed information were, and remain, without prejudice communications conducted on a confidential basis, in respect of which the privilege attaching to those communications, either at common law or pursuant to the provisions of the Evidence Act, have not been waived or lost by the respondent.

This is an unusual set of circumstances because of the chronology, and the fact that I have heard and delivered judgment in respect of the specific performance suit before an interlocutory appeal from earlier orders has been made, when there has been a change of circumstances. The applicant resists the making of the confidential orders proposed by SRG. The primary point that has been made is that the orders are “covered” by the orders made in the appeal proceedings. That is not a reason for me denying the current application. I’m required to have regard to the circumstances that exist now. And although there are interim orders in place by another judge of the court, that is not an answer as to whether I am satisfied that it is necessary in the interests of justice for me to make the order now sought.

While firmly having regard to the heavy – sorry, having regard to the need to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice, and the fact that the power to make the court is conditioned upon me being satisfied, it is, “necessary” to prevent prejudice to the proper administration of justice. This seems to me to be – sorry, given that these were, and remain, confidential without prejudice communications, it is necessary in my view that confidentiality orders be made. This is merely a reflection of the longstanding caution – sorry, the long-standing protection the court is prepared to give to confidential settlement negotiations pending the resolution of a dispute. The only other point I would make is that SRG has sought broader confidentiality orders that went beyond the suppressed information either sought originally by SRG, or was the subject of the orders made by another judge of the court.

The hearing was conducted without any suppression of that information, and I do not think there is any reason why such an order should be made. It simply does not seem to me to reach the high bar of being necessary in the interests of justice that the orders go beyond what was suppressed by an earlier order of the court. Accordingly, I have raised various mechanical matters concerning the orders, and I direct that a copy of that those orders be brought in as quickly as possible, so orders can be made and the court’s judgment can be published before 4 pm. So I presently stand the matter down the list, to allow for a copy of a Word version in conformity with my reasons to be provided to my associate, so orders can be made and my other – and the judgment be published.

9    After his Honour gave these reasons, the parties appear to have provided the primary judge with short minutes of order reflecting his Honour’s reasons and these were the Suppression Orders that were then made. These Orders were expressed as applying “until further order”.

10    On 28 January 2025, Ms Farrell applied for leave to appeal from the Suppression Orders. The hearing of that application was listed before the Full Court to be heard at the same time as the SRG Parties’ appeal from the August Judgment. In the meantime, the SRG Parties discontinued their appeal. Thereafter, Ms Farrell’s application for leave to appeal was allocated to me for determination.

3.    THE APPLICATION FOR LEAVE TO APPEAL AND THE PROPOSED GROUNDS OF APPEAL

11    Ms Farell contended that the Suppression Orders were attended by sufficient doubt and would give rise to substantial injustice if leave was refused.

12    As to substantial injustice, Ms Farrell claimed that the Suppression Orders had been made on a “final basis”. It was submitted that the practical consequences of the Suppression Orders are that: (a) sections of the Court's published reasons on one of the substantive issues in the first instance proceedings are only available in redacted form, (b) steps will need to be taken to prevent the disclosure of the suppressed information during the balance of the substantive proceedings before the primary judge (which are listed for final hearing in February 2026), and (c) participants in the proceedings will be permanently restrained from discussing the suppressed information other than in the case of permissible exceptions (such as discussing the information with their respective lawyers). It was further submitted that the Suppression Orders work an injustice to Ms Farrell because, so it is claimed, the SRG Parties “have been actively propagating in the media a version of events about the settlement discussions that took place between [Ms Farrell] and [the SRG parties]”. It is further claimed that the version of events that the SRG Parties have been “attempting to sell through the media is defamatory of [Ms Farrell], and the suppression orders limit the ability of the [Ms Farrell] to make a public response”.

13    During the course of oral argument, Counsel for Ms Farrell argued that the Suppression Orders would operate for an indeterminate period and without an opportunity for her to revisit the making of the Suppression Orders. It was submitted that this created a substantial injustice in circumstances where Ms Farrell was unable to speak publicly about matters which the SRG Parties had addressed prior to the making of the Suppression Orders.

14    Ms Farrell advanced several interrelated arguments as to why the Suppression Orders were attended by sufficient doubt. The primary arguments were as follows.

15    First, Ms Farrell submitted that, contrary to the primary judge’s finding, the change of circumstances that occurred upon delivery of the Specific Performance Judgment "weakened the arguments in favour of making suppression orders". It was submitted that this was because the primary judge had found that there was no binding settlement agreement and, therefore, there was no longer any concern that could be held that disclosure of the suppressed information (including the full terms of the Alleged Settlement Agreement) would cause the SRG Parties “to lose a valuable contractual right”. As a result, it was said that the “case for suppression orders became weaker, rather than stronger”.

16    Second, it was submitted that the reasons given by the primary judge for making the Suppression Orders were ones that his Honour rejected in August 2024. In this regard, Ms Farrell emphasised that in the August Judgment the primary judge found (at [61] and [83]) that the evidence adduced by the SRG Parties in support of the suppression orders sought by them was “unsatisfactory” and “inadequate”. Ms Farrell further emphasised that the primary judge rejected the SRG Parties’ contention that disclosure of the suppressed information would prove to be a specific disincentive to a settlement being reached in this particular case or as a more general disincentive for parties to litigation per se: August Judgment at [77]-[79]. Ms Farrell submitted that the position had not changed by 23 December 2024 and there was no evidence before the primary judge that addressed why, specifically, disclosure of the suppressed information would have damaging consequences to the administration of justice. It was said that the SRG Parties had not discharged the “heavy burden” for the making of the Suppression Orders where “even on the most expansive view, the only evidence before the [p]rimary [j]udge was the evidence SRG adduced back in August 2024” being evidence the primary judge strongly criticised in the August Judgment.

17    Third, it was submitted that the Suppression Orders were made on the basis of an erroneous rationale that courts are “prepared to protect ‘Without Prejudice’ communications” merely, or only, because they are confidential and promote negotiated settlements. Ms Farrell submitted that "[t]here needs to be more than the bare fact” of without prejudice privilege communications being confidential to justify the making of suppression orders on the basis that they are necessary. It was submitted that an applicant for suppression orders “must demonstrate some prejudice that is specific to the instant case”. Ms Farrell further submitted that because the suppressed information was admissible and had been admitted into evidence in the hearing of her specific performance claim, the conventional position was that it had been received by the Court and was “in the public domain”. It was submitted that this was at odds with the primary judge’s assessment of the “long-standing” protection that the Court is prepared to give to confidential settlement negotiations. Ms Farrell submitted that in those circumstances, the SRG Parties had not discharged their onus in establishing that the Suppression Orders were necessary to prevent prejudice to the administration of justice. In support of these submissions, Ms Farrell relied upon the decision of Snaden J in Naude v DRA Global Limited [2023] FCA 493 at [17]-[29].

18    Ms Farrell’s draft notice of appeal, which was amended and styled as the “Amended Draft notice of appeal”, sets out the following proposed grounds of appeal:

Grounds of appeal

The primary judge previously declined to make suppression orders in NSD1009/2024, in a judgment given on 22 August 2024. On 23 December 2024 the primary judge reconsidered the issue of suppression orders on the two bases outlined in the primary judge’s oral reasons.

The appeal should be allowed because:

1.     The Court’s conclusion, that there was no binding settlement agreement between the parties, was not a matter that supported the making of suppression orders;

2.     The conduct of part of an earlier hearing in closed court, which was intended to preserve the utility of an appeal to the Full Court, and which meant the information had not yet been disclosed, was not something that supported the making of suppression orders on a final basis when that hearing was concluded; and

3.     The s.37AG test for suppression orders cannot be satisfied by the bare fact the information is contained in admissible ‘Without Prejudice’ communications. An additional factor must be present, which is specific to the instant case. The primary judge erred by treating the ‘Without Prejudice’ character of the information as sufficient reason to make suppression orders; and

4.     The suppression orders were not necessary to prevent prejudice to the proper administration of justice.

(Emphasis in original.)

19    At the hearing before me, Ms Alick, a solicitor employed by Fairfax Media Publications Pty (Fairfax) Ltd and Mr Regattieri, a solicitor employed by Nationwide News Pty Ltd (the Media Interveners) sought leave to intervene, which was not opposed. The Media Interveners had appeared before the primary judge pursuant to s 37AH(2)(d) of the FCA Act. The Media Interveners echoed Ms Farrell’s contentions that the Suppression Orders were attended by sufficient doubt because the primary judge had made those orders merely on the basis that the suppressed information was confidential and without prejudice, without taking into account that this information had been referred to in Mr Farrell’s pleadings, had been the subject of evidence that was admitted in the proceedings and was the subject of a judgment that resolved a live and public controversy before the Court. It was further submitted that the primary judge failed to have regard to the fact that the information that is the subject of the Suppression Orders was a selective “cherry-picking” of particular aspects of the without prejudice communications and the Alleged Settlement Agreement. In respect of the latter point, the Media Interveners submitted that it was inconsistent for some aspects of the confidential without prejudice communications to be in the public domain and for other aspects to be suppressed.

20    The Media Interveners also submitted that the Suppression Orders were attended with sufficient doubt because they were not specified to operate by reference to a “fixed or ascertainable period” or by reference to the occurrence of a “specified future event”, as is required by s 37AJ(3) of the FCA Act.

21    As to substantial injustice, the Media Interveners were not in a position to advance any submission as to the injustice arising to Ms Farrell but submitted that there would be substantial injustice arising to the public at large. It was submitted that there was a very real prospect that they would not have an occasion to be heard as to whether the Suppression Orders should be set aside at some future point in time, for example, if the proceedings were settled on a confidential basis.

4.    CONSIDERATION

4.1    Principles

22    As mentioned at the outset, the principles applicable to the grant of leave to appeal are well settled.

23    The decision to grant leave to appeal involves an exercise of discretion that takes into account the need to promote the overarching purpose of the Court of seeking to ensure the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: s 37M of the FCA Act. In Nationwide News Pty Ltd v Rush [2018] FCAFC 70, the Full Court (constituted by Allsop CJ, Rares and Lee JJ and where Lee J gave ex tempore reasons for the Court) stated at [2]-[4]:

The principles informing the determination of whether to grant leave to appeal from a decision of a single judge of this Court are not novel. The starting point is that in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (Act) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 –399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Cmr of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ).

Additionally, consistent with the facilitation of a quick, inexpensive and efficient resolution is the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be “disastrous to the proper administration of justice”.

24    It is to be accepted that, unlike many other points of practice and procedure, if leave to appeal is granted, the appeal in the present case would be governed by the “correctness standard”: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552 (Gibbs ACJ, Jacobs and Murphy JJ); GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635 at [1] (Kiefel CJ, Gageler and Jagot JJ). In Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659, Besanko and Abraham JJ held that an appeal from the making of orders under s 37AF of the FCA Act does not involve an application of the principles in House v The King [1936] HCA 32; (1936) 55 CLR 499: see Porter at [17], citing Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [33] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [9] (Allsop CJ, Wigney and Abraham JJ). That is because, though the decision involves an impressionistic assessment, the “correctness standard” applies to the determination of whether the order is necessary to prevent prejudice to the proper administration of justice as required by s 37AG(1)(a) of the FCA Act. However, as Besanko and Abraham JJ recognised in Porter at [17], “Nevertheless, there is often a significant evaluative element involved in making a suppression order and that is to be borne in mind”.

25    In this regard, it is also to be borne in mind that, in assessing whether the relevant orders are attended by sufficient doubt, the Court is to consider the proposed appeal at a “reasonably impressionistic level” and assess whether the proposed appeal is “sufficiently arguable” or has “reasonable prospects of success”: MZABP v Minister for Immigration & Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at 597–598 [62]–[63] (Mortimer J, as her Honour then was).

4.2    Substantial injustice not established

26    In the present case, even assuming in Ms Farrell’s favour that the Suppression Orders are attended by sufficient doubt, I am not satisfied that any substantial injustice would be occasioned to Ms Farrell if leave to appeal was not granted.

27    The Suppression Orders made by the primary judge are expressed to have been made “until further order”. This form of order appears to reflect the short minutes of order provided to the primary judge by the parties on 23 December 2024. As far as I can ascertain, the parties appear to have taken no issue with the orders being expressed to operate “until further order”, although Ms Alick for Fairfax had submitted to his Honour at an earlier point in time that a potential compromise could be reached by expressing the orders to operate until the determination of the hearing of the SRG Parties’ appeal: T9.39-45 (Hearing before Lee J on 23 December 2024).

28    As noted above, in the hearing before me, the Media Interveners raised a point that the Suppression Orders were inconsistent with 37AJ(3) of the FCA Act. Reliance was placed upon the decision of Besanko and Abraham JJ in Porter, where it was stated at [28] that: “[s]uch authority as we have been able to find suggests that a concluding date or event for a suppression order must be identified”: referring to Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [24] (Perram J) and Oreb v Australian Securities and Investments Commission [2016] FCA 321 at [94] (Markovic J). In response, the SRG Parties submitted that a “specified future event” had been identified, being the “further order”.

29    Even assuming at an impressionistic level that the point raised by the Media Interveners casts doubt on the Suppression Orders, I am not persuaded that any substantial injustice would be occasioned to Ms Farrell from the refusal to grant leave. Counsel for Ms Farrell was unable to point to any aspect of the pleaded case to which the without prejudice communications remained relevant (given the specific performance claim has been dismissed). As a result, it is not clear why the Suppression Orders would need to be revisited such that there would be substantial injustice to Ms Farrell unless leave was granted.

30    Because the orders here have been expressed to operate “until further order”, the entry of the order does not appear to be affected by r 39.05 of the Federal Court Rules 2011 (Cth). The making of an order “until further order” was, in one sense, understandable (putting to one side whether it conformed with s 37AJ(3) of the FCA Act) in circumstances where the substantive proceedings remain on foot before the primary judge and his Honour remains the docket judge. This contemplates the exigencies that may arise during the conduct of the balance of the proceedings. It is also an order which appears to me to have had in mind that the suppressed information may, or is likely to, be relevant to the question of costs. That is because at the conclusion of the proceedings one or more of the parties may seek that the Suppression Orders be varied or set aside so that the suppressed information may be relied upon in relation to the question of costs depending on the outcome.

31    Viewed this way, I do not consider that it is accurate to characterise the Suppression Orders (as presently expressed) as foreclosing any party from being heard in the future as to whether they should be varied or set aside. That is all the more the case in circumstances where the pleadings have not closed. There is some distance to run before all the facts and matters in issue between the parties are crystallised. The question as to whether any further or other order should be made in relation to the suppressed information is a matter that in the ordinary course of events can be expected to be dealt with before the primary judge.

32    As to the submission made by the Media Interveners that there would be substantial injustice arising to them and the public at large, I was taken to no authority to support the proposition that, in an application for leave to appeal, these are relevant considerations. However, it is unnecessary to decide this point given that, as is the case with Ms Farrell, it is open to the Media Interveners to seek to be heard before the primary judge to seek to vary or set aside the Suppression Orders if circumstances change as the proceedings take their course.

33    During oral argument before me, SRG accepted the possibility that it would be open to Ms Farrell to be heard about whether the Suppression Orders should continue by reason of any new or fresh arguments that she wishes to advance that had not been previously raised with the primary judge. The following exchange occurred:

HIS HONOUR: All right. What do you say about substantial injustice? The way that Mr Hyde Page is putting it is that, in practical terms, there won’t be a revisitation of the order.

MR FOLLETT: Well, I have just addressed you – we don’t accept that, standing here now.

HIS HONOUR: So, you say they can go back and have another shot.

MR FOLLETT: They may, depending upon what the basis upon which they go back before his Honour was. If they go back before his Honour with an argument that they didn’t put to him, and they say, “We didn’t raise this, but it’s an important point,” I don’t know that we would be heard to say, “Well, you can’t run that because you didn’t run it the first time around.” There might become a point where there’s some sort of Anshun estoppel or abuse of process, but - - -

HIS HONOUR: Well, there might be a change of circumstance - - -

MR FOLLETT: There might be a change of circumstance.

34    The other practical issues identified by Ms Farrell are not novel. The fact that there is a redacted judgment is not unusual. More to the point, I am not persuaded that any substantial injustice has been, or will be, occasioned to Ms Farrell by the publication of a redacted judgment. Nor am I satisfied that the limitations imposed on Ms Farrell by reason of the operation of the Suppression Orders works an injustice to her, let alone a substantial injustice. The parties are represented by experienced legal practitioners, and I have no reason to doubt their ability to comply with the Suppression Orders in the conduct of the balance of the substantive proceedings. Further, if there is any other person with whom Ms Farrell wishes to discuss the supressed information, she may seek the consent of the SRG Parties to seek a variation to the Suppression Orders, failing which she may apply to the primary judge for such a variation.

35    Nor am I persuaded that any weight is to be given to Ms Farrell’s assertions that the SRG Parties have made public and defamatory statements about her, including as to the content and nature of the settlement discussions that are the subject of the Suppression Orders. Ms Farrell was unable to point to any evidence that any public statements made by the SRG Parties had disclosed any of the suppressed information. If the statements made by the SRG Parties have been defamatory or otherwise unlawful, it is a matter for Ms Farrell to exercise any rights that she may have. These matters did not rise beyond bare assertion.

36    As I am not satisfied that there would be any substantial injustice, the application for leave to appeal should be dismissed, even if it was assumed that the Suppression Orders were attended by sufficient doubt: Décor at 398.

4.3    Are the Suppression Orders attended by sufficient doubt?

37    I am prepared to accept that the Suppression Orders are attended by sufficient doubt to the extent that it would be contended in an appeal that the operation of the Orders “until further order” is inconsistent with 37AJ(3) of the FCA Act. This is not to say that the Suppression Orders are in fact erroneous, but that at a “reasonably impressionistic level” there is an arguable case of error: MZABP at [62]–[63]. However, for the reasons set out above, I am not satisfied that any substantial injustice would arise to Ms Farrell if leave was refused.

38    In light of the conclusions that I have reached as to the absence of substantial injustice, it is unnecessary to descend into any detail as to whether the Suppression Orders are attended by doubt for other reasons. It is sufficient to note the following.

39    The submissions advanced by Ms Farrell and the Media Interveners failed to have adequate regard to the unusual circumstances of the matter before the primary judge. The primary judge’s reasons for making the Suppression Orders may have been short and given ex tempore, but they were to the point having regard to the peculiar facts that prevailed. The primary judge observed that, as a result of his rejection of the specific performance claim, the position was that the information that had been suppressed had remained confidential and was not part of the without prejudice communications that had otherwise been disclosed. The primary judge further observed that the making of the Suppression Orders was consistent with the “long-standing protection” the Court is prepared to give to confidential settlement negotiations.

40    It is not correct, despite the Media Interveners’ submissions to the contrary, that the primary judge failed to have regard to their contentions as to the perception of selective “cherry-picking” by the SRG Parties as to the materials that were the subject of without prejudice privilege. The transcript of the argument before the primary judge discloses the following exchange:

MS ALICK: … If the basis of the application is that this material was in without prejudiced communications, what is put is a really sort of cherry-picked version of which information is without prejudice, and which is not. There seems to be, still in the redactions, but also in these documents, information which was part of the without prejudice communications, but which is not sought to be suppressed. The only information that is sought to be suppressed is information that SRG thinks is unflattering, that would make it look bad, which is a reputation concern, not one of administration of justice.

HIS HONOUR: Where would the – where would I see an example of that, Ms Alick?

MS ALICK: So looking at the redactions, for example, from the very first one discussed a moment ago by my friend; paragraph 33. So terms 1, 2 and 3 are not sought to be suppressed, but 4, 5, 6 and 7 are. And then 8 not suppressed, but 9 is. And this is exactly the same point that was made in relation to the paragraph 21 of the statement of claim, because not all of paragraph 21 is suppressed. SRG, again, has cherry-picked which parts it thought were the least flattering to it, and has only suppressed those parts.

What is currently sought in these orders also, is even more so a cherry-picked version, because it’s not even all of the subsections that are suppressed by the 14 October order. We still have other paragraphs suppressed by the 14 October order, which are not going to be suppressed by this one. This order only seeks to apply to paragraph 21(g), (h) and (i), whereas the other orders include (a), (d) and I think some of the others. So where we have this real unexplained conflict between those orders, either the 14 October order needs to be addressed - - -

HIS HONOUR: Well, I understand that.

MS ALICK: Or this waits - - -

HIS HONOUR: I understand that point about the inconsistency between what was originally sought, what was the subject of suppression throughout the hearing, and the proposed orders that are provided now. And I understand that point. What about the material that was the subject of the previous suppression order? What do you say about that?

MS ALICK: I think that does – I mean it is going to be the subject of an appeal. I think it’s on 7 March, that hearing is listed. I think the 14 October order stands, and just covers that. But if there is other material – and that’s only, you know, those certain paragraphs of – subparagraphs of paragraph 21 of the statement of claim.

HIS HONOUR: Yes, but I have got to deal with this application.

MS ALICK: Yes. No, that’s right. And what - - -

HIS HONOUR: At the moment, what I’m struggling with – I understand the point that you make about, as it were, seeking to go beyond – and it wasn’t the subject of the application that was made to me at the end of the hearing. I understand what you say about going beyond what was the subject of the suppression that was made. But in respect of the suppression that was made, and that material was suppressed through the hearing, and the hearing has already occurred, I found there wasn’t a contract.

The difficulty I’m having, in those circumstances, is why there’s a principled basis, given that I’m amply satisfied that these were without prejudice communications, and the content of it has been, already, the subject of suppression during the hearing. Why it wouldn’t be necessary, in the interests of justice, to make a final confidentiality order in respect of that, when I know that they were the without prejudice – when I now know they were without prejudiced communication?

MS ALICK: Yes.

HIS HONOUR: It’s no different from someone going out and having a similar discussion now.

MS ALICK: Well, we – it was original – in my original submissions in writing, back for the August hearing, is the same submission I would make now.

HIS HONOUR: Yes.

MS ALICK: Which is just because something is without prejudice, does not mean it is absolutely confidential in all circumstances.

HIS HONOUR: No, I understand.

MS ALICK: And it does not mean that the administration of justice would be imperilled if a suppression order were not made. This - - -

HIS HONOUR: Well, I think the way the hearing operated, including having to close the court, was suboptimal. But it was something that I had to do, in order to give effect to orders of the court.

(Emphasis added.)

41    As will be apparent from the above, the primary judge was well aware of the Media Interveners’ contentions as to perceived “cherry-picking”, but his Honour was also conscious of the unusual circumstances that had come to prevail. There had not been a selective “cherry-picking”, but the supressed aspects of the without prejudice communications were those that had not entered the public domain and which had remained suppressed because of orders made by the Court. Further, the SRG Parties had exercised their rights to seek leave to appeal, and to appeal, from the orders made by reason of the August Judgment. The result of that was that (including by reason of interim orders made by the primary judge and, subsequently, leave to appeal being granted by Wigney J) the relevant information that was suppressed had remained confidential. It was information that remained the subject of without prejudice privilege. The primary judge was acutely aware of these peculiar circumstances, as is made apparent in his Honour’s ex tempore reasons.

42    Ms Farrell and the Media Interveners sought to cast doubt on the Suppression Orders by contending that the primary judge’s reliance upon the “long-standing protection” the Court is prepared to give to confidential negotiations. In response, the SRG Parties submitted that the making of suppression orders in respect of without prejudice communications was “orthodox”. It is unnecessary to so regard the Suppression Orders, but the SRG Parties were correct to point out that there are numerous decisions of this Court where without prejudice communications and/or particular terms of settlement agreements have been the subject of suppression orders, including: Rogan v White [2024] FCA 1163 at [6]-[7] (Jackman J; contested claim for without prejudice privilege); Widjabul Wia-bal v Attorney General (NSW) [2023] FCA 438 at [15]-[24] (Rares J; settlement sum); Trilogy Funds Management Ltd v KPMG [2017] FCA 432 at [15]-[16] (and order 4) (Jagot J; settlement sum); Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Ltd [2006] FCA 915 at [9] (Jessup J; sales figures prepared for without prejudice discussions); Equity Financial Planners Pty Ltd v AMP Financial Planning Pty Ltd [2024] FCA 1036 at [184] (McElwaine J; without prejudice materials in settlement approval); Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394 at [116]-[119] (Halley J; without prejudice settlement offers and settlement terms); Re City Steel Pty Ltd (in liq) [2024] FCA 481 at [16] (Cheeseman J; without prejudice materials and deed of settlement); Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [145], [206] and [209] (Feutrill J); Clime Capital Ltd v UGL Pty Ltd (No 2) [2020] FCA 257 at [22]-[23] (Anastassiou J; without prejudice settlement materials); Hopkins v AECOM Australia Pty Ltd (No 8) [2016] FCA 1096 at [7] (see also orders 6 and 7) (Nicholas J; without prejudice settlement materials); and Booth v Victoria (No 3) [2020] FCA 1143 at [2] (Mortimer J; expert reports arising out of without prejudice conferences).

43    The Media Interveners submitted that these authorities were distinguishable because here the relevant without prejudice communications had been admitted into evidence as they fell within the exception to the privilege for the purpose of enforcement of the Alleged Settlement Agreement and there had been a public judgment resolving that controversy before the Court. However, the primary judge was well aware of these points and it is precisely why his Honour said that (a) there had been a change in circumstances due to the fact that the specific performance claim had been rejected, and (b) his rejection of that claim had arisen in the unusual circumstances where the suppressed information remained confidential due to orders made by the Court. Those orders included the interim orders the primary judge had made upon the SRG Parties indicating their intention to seek leave to appeal from the August Judgment and the subsequent orders made by Wigney J when granting leave to appeal.

44    As a result, it is unnecessary to say any more about the significant public interest in the settlement of proceedings, particularly (but not exclusively) at an early stage of the proceedings, which is an outcome that promotes the interests of the administration of justice: see Patterson v Westpac Banking Corporation [2024] FCA 629 at [20] (Raper J), citing Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489 at [30] (Rares J) and Valentine v Freemantlemedia Australia Pty Ltd [2013] FCA 1293 at [13] (Mortimer J); Saw v Seven Network (Operations) Ltd [2024] FCA 1210 (Perram J) at [10]; Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at [18] (Raper J); and Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 at [5] (Perram J).

45    Nor is it necessary to further consider the interests in the administration of justice that may arise from the spectre of the Court being called upon to publicly adjudicate on pleaded controversies between parties where those parties have privately, and confidentially, put to each other positions contrary to their pleaded and evidentiary cases.

46    Nor do I consider that Ms Farrell or the Media Interveners obtained any assistance from the decision in Naude. There, Snaden J determined the matter without deciding whether the relevant communications were, in fact, the subject of without prejudice privilege: at [23]. Further, Naude was not a case where, like here, the Court has determined that the without prejudice communications did not give rise to a binding agreement.

47    I also do not consider that the Suppression Orders were attended by sufficient doubt because of any alleged inconsistency as between the August Judgment and the position that prevailed in December 2024. At an earlier point in time, the SRG Parties had sought more expansive orders which the primary judge was not satisfied were necessary to be made in the context of an impending suit for specific performance. However, the fact that the primary judge had rejected the making of orders at an earlier point in time did not cast doubt upon whether, in the circumstances that prevailed in December 2024, his Honour was persuaded to make different orders. As the primary judge pointed out in his brief ex tempore reasons, things had changed.

48    However, even if I was wrong, for the foregoing reasons, other than in relation to the operation of the Suppression Orders until further order in a manner potentially inconsistent with 37AJ(3) of the FCA Act, I am not satisfied that sufficient doubt has been cast on the Suppression Orders to warrant their appellate review by the Full Court. And, in any event, I am not satisfied that any substantial injustice arises from the refusal to grant leave.

5.    DISPOSITION

49    The application for leave to appeal should be dismissed. In view of s 570 of the FW Act, there should be no order as to costs.

Associate:

Dated:    11 March 2025

SCHEDULE OF PARTIES