Federal Court of Australia

Australian Property Scout Holdings Pty Ltd v Titus [2025] FCA 1064

ORDERS

THE COURT ORDERS THAT:

1.    Until 5.00 pm AEST on 5 September 2025, or earlier order, pursuant to s 37AI and s 37AJ of the Federal Court of Australia Act 1976 (Cth) and in order and to prevent prejudice to the proper administration of justice, the material identified in the Applicants’ Further Amended Statement of Claim as “Confidential Annexure A” and marked “A” is:

(a)    to be treated as confidential; and

(b)    to be sealed on the Court file in envelopes marked “Not to be opened except by leave of the Court or a Judge”;

(c)    not to be published or made available and any electronic version thereof is to be treated in an analogous fashion;

(d)    not to be disclosed to any person other than:

(i)    the Court;

(ii)    the applicants and their legal representatives;

(iii)    the respondents’ legal representatives.

2.    Liberty to apply.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

1    The applicants seek a suppression order in respect of a document identified in their further amended statement of claim filed 18 August 2025 as “Confidential Annexure A”. A copy of the document has been handed up today in a sealed envelope that I have marked for identification. The orders are sought pursuant to s 37AF and s 37AG of the Federal Court of Australia Act 1976 (Cth).

2    In support of that relief, the applicants rely upon two affidavits of Samuel Patrick Gordon: one filed on 18 June 2025 and the second such affidavit filed on 14 July 2025. Reliance is also placed on particular paragraphs of an affidavit of Thomas Henry Allan, sworn 20 August 2025. Leave was granted today for the applicants to file the affidavit of Mr Allan and for those paragraphs to be read.

3    The applicants’ business is described in the affidavit of Mr Allan as that of a “unique buyers’ agency”. The effect of the evidence in the affidavits of Mr Allan and Mr Gordon is that the material in respect of which a suppression order is sought is commercial in confidence or commercially sensitive, such that it is necessary to prevent the proper administration of justice to make the orders.

4    The principles with respect to making orders of this type were outlined by the Court in Kilgour v Commissioner of Taxation [2022] FCA 1487 and Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257. Those principles require, amongst other matters, that the Court be satisfied that a suppression order is necessary in the circumstances to prevent prejudice to the proper administration of justice. As Logan J outlined in Kilgour at [32], “necessary” means more than desirable.

5    I am not in a position to determine the merits of the application at the case management hearing today. In that circumstance, the Court is empowered pursuant to s 37AI and s 37AJ of the Act to make an interim suppression order to have effect, subject to revocation by the Court, until the application is determined. In making such an order, the Court is to ensure that it operates for no longer than is reasonably necessary to achieve the purpose for which it is made: Act, s 37AJ(2).

6    The suppression order sought by the applicants relates to an interlocutory application for injunctive relief that is presently listed for hearing on 5 September 2025. In the circumstances, I am satisfied that it is appropriate to make an interim suppression order until 5.00 pm on that day.

7    Having just delivered the reasons outlined above, counsel for the applicants requested that I give reasons addressing why I did not make the specific orders it pressed today. Two versions of those orders have been provided to my chambers. The first, in accordance with a direction regarding preparation for this case management hearing, was provided at about 1.00 pm on Tuesday, 19 August 2025. The most recent version, pressed today, was emailed to my Associate after 8.00 pm last night (draft orders). I will annex a copy of the draft orders to my reasons.

8    During the course of the case management hearing, counsel for the respondents outlined that the respondents oppose the draft orders, principally because of the breadth of the confidentiality undertaking that is annexed to them. The undertaking requires those signing it to agree to keep confidential not just the specific document in respect of which a suppression order is sought today, but all documents produced in this proceeding over which a claim for confidentiality is made. I am not prepared to make an order of that type today, having regard to the indication given by counsel for the respondents that he would not be prepared to sign the undertaking.

9    The reason proffered for not doing so seems to me, at least at first blush, to be sound given, amongst other matters, the breadth of the documents the subject of the undertaking and that no order for discovery has been made in the proceeding to date. In any event, as I have outlined, I am not in a position today to determine the merits of the suppression order sought by the applicants (not accompanied by an interlocutory application) and will do so on 5 September 2025.

Associate:

Dated:    2 September 2025

Annexure