FEDERAL COURT OF AUSTRALIA

EOF25 v Talbot [2025] FCA 1091

ORDERS

THE COURT ORDERS THAT:

1.    On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the applicant be identified in all further documents filed in the proceeding from the date of this order by the pseudonym EOF25.

2.    The following documents be treated as confidential for the purposes of rule 2.32 of the Federal Court Rules 2011 (Cth) so as to give effect to order (1):

(a)    the originating application for judicial review accepted for filing on 29 April 2025;

(b)    the affidavits of Ian A Meagher made on 24 and 28 April 2025 and the annexures thereto;

(c)    the affidavit of John Wilson made on 30 June 2025 and the annexures thereto.

3.    The applicant file and serve an amended application for judicial review in the form of the application accepted for filing on 29 April 2025 save that the applicant’s name be replaced wherever it appears by the pseudonym EOF25.

4.    On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), publication and disclosure of the following information be prohibited:

(a)    information which identifies or may tend to identify the applicant as being the applicant in this proceeding; and

(b)    information contained in Annexures JW2 and JW3 to the affidavit of John Wilson made on 30 June 2025.

5.    Order (4) does not prohibit publication or disclosure of any information if the publication or disclosure is made:

(a)    by the parties or their legal representatives or any officer or employee of the Court for purposes connected with or relating to the proper conduct of this proceeding;

(b)    by the parties or the Human Rights Commission or any of its officers or employees for the purposes of any complaint made by the applicant to the Human Rights Commission;

(c)    with the consent of the parties or with the leave of the Court.

6.    Orders (1), (2) and (4) will operate up to the date that final judgment is handed down in the proceedings or the proceeding is otherwise finalised by order.

7.    Any application by a person who is not a party to this proceeding for leave to inspect any document filed in the proceeding pursuant to rule 2.32 of the Federal Court Rules 2011 (Cth) be referred to the docket judge, or if that judge is unavailable, a duty judge for determination.

8.    The applicant be given leave to have the proceeding relisted before the docket judge, or if that judge is unavailable, a duty judge, on the giving of reasonable notice for the purpose of applying for an interim suppression or non-publication order in respect of any document or documents filed or to be filed in the proceeding from the date of this order.

9.    The proceeding be listed for further case management hearing at 9.30am on 4 December 2025.

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

WIGNEY J:

1    The applicant in this matter commenced proceedings against a delegate of the Australian Public Service Commissioner and the Commonwealth seeking judicial review of a decision by the delegate to the effect that the applicant had engaged in conduct in breach of the APS Code of Conduct as defined in the Public Service Act 1999 (Cth). On 29 April 2025, a Registrar of this Court made an order, the effect of which was to permit the applicant to be identified by a pseudonym and to suppress or prohibit the disclosure of the documents that had been filed by the applicant up to that point. That order has been continued up until the date of this judgment. This judgment addresses whether the order should be continued until further order or whether alternative orders which prevent the disclosure of the applicant’s identity should be made.

2    The applicant has sought both a pseudonym order and suppression orders in respect of material that may disclose his identity essentially because such orders are necessary to protect his safety: see s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth). For the reasons that follow, I am satisfied that the applicant should continue to be identified by a pseudonym in these proceedings and that appropriate suppression and non-publication orders should be made to prevent disclosure of any material that may tend to identify him. The orders that I propose to make, however, differ in certain respects from those made by the Registrar. That is not intended to be, and should not be taken to be, any criticism of the Registrar.

3    There could be no doubt from the evidence filed in the proceedings thus far that the delegate’s decision and the underlying conduct or alleged conduct which provided the basis for the decision concerns highly personal and sensitive information about the applicant and another person. That alone would not be sufficient to support pseudonym and suppression or non-publication orders. What tips the balance in favour of the making of orders in this case is compelling opinion evidence from a consultant psychiatrist to the effect that disclosure of the applicant’s name in these proceedings would have an adverse impact on the applicant’s mental health and would aggravate his current mental health symptoms.

4    Specifically, the psychiatrist’s opinion is that the disclosure of the applicant’s name would give rise to a significant risk that the applicant would develop a major depressive disorder and possibly experience further suicidal thoughts.

5    Subsection 37AF(1) of the Federal Court Act provides as follows:

The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

6    A non-publication order is defined in s 37AA of the Federal Court Act as meaning:

An order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

7    A suppression order is defined in the same provision as meaning:

An order that prohibits or restricts the disclosure of information (by publication or otherwise).

8    Section 37AG(1) of the Federal Court Act specifies the grounds for making a suppression or non-publication order. It provides as follows:

(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).

9    Importantly, s 37AE provides that:

In deciding whether to make a suppression order or non‑publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

10    In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

11    The principles that must be applied when considering whether a suppression or non-publication order should be made are well established. The leading cases include John Fairfax Group Proprietary Limited v the Local Court of New South Wales (1991) 26 NSWLR 131, Rinehart v Welker [2011] 93 NSWLR 311, Hogan v Australian Crime Commission (2010) 240 CLR 651, Fairfax Digital Australia and New Zealand Proprietary Limited v Ibrahim [2012] 83 NSWLR 52, Country Care Group Proprietary Limited v Commonwealth Director of Public Prosecutions (No 2) [2020] 275 FCR 377, and AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6.

12    From those authorities, the following key principles relevant to this matter may be distilled.

13    Suppression or non-publication orders should only be made in exceptional circumstances. That is because such orders can only be made when it is necessary to do so and as identified above, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

14    Once the Court is satisfied that a suppression or non-publication is necessary, it would be an error not to make it. There is no exercise of any residual discretion nor is any balancing exercise involved.

15    Mere embarrassment, inconvenience or annoyance will not justify the making of a suppression or non-publication order nor will unreliable or groundless fears suffice. Suppression or non-publication orders should not be made merely because it may be convenient to do so or because there is no objection to the making of those orders.

16    The onus or burden on an applicant to persuade a court to make a suppression or non-publication order is a heavy one.

17    Where a suppression or non-publication order is sought on the ground that the order is necessary to protect the safety of any person, the Court must generally be satisfied of the existence of a possibility of harm of such gravity or likelihood that, without the order, the risk of harm to the person could not reasonably be regarded as acceptable. There must be a demonstrable or real risk of harm.

18    Essentially the same principles apply when considering whether to make or continue a pseudonym order including on the basis that such an order is necessary to protect the safety of a person.

19    Applying those principles to the circumstances of this case, I am satisfied that it is appropriate to continue to permit the applicant to be identified by a pseudonym. I am equally satisfied that it is appropriate to make suppression and non-publication orders to prevent the disclosure of information that may tend to identify the applicant as a party to this proceeding. The evidence of the psychiatrist satisfies me that if such orders are not made, there is a demonstrable and real risk that the applicant will suffer serious harm to his mental health. This is, accordingly, an exceptional case where such orders are necessary and compel a departure from the open justice principle. I will, however, structure the orders in such a way as to ensure that the departure from the open justice principle is not complete and allows some material to be disclosed.

20    I should finally note that s 37AJ of the Federal Court Act provides as follows in relation to the duration of suppression or non-publication orders:

(1)    A suppression order or non-publication order operates for the period decided by the Court and specified in the order.

(2)    In deciding the period for which an order is to operate, the Court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

(3)    The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

21    There is conflicting authority about what is required to satisfy the requirement to specify a period of operation for the purposes of s 37AJ of the Federal Court Act. I do not propose to dip my toe into that debate at this stage, nor do I propose to specify what may be considered to be an arbitrary period specified in years. Instead, I will specify that the orders will operate up until the date that judgment is handed down in the proceeding or the proceeding is otherwise finalised. Consideration can then be given at that stage, to whether the orders should be continued and, if so, for how long.

22    The orders are as follows:

1.    On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), the applicant be identified in all further documents filed in the proceeding from the date of this order by the pseudonym EOF25.

2.    The following documents be treated as confidential for the purposes of rule 2.32 of the Federal Court Rules 2011 (Cth) so as to give effect to order (1):

(a)    the originating application for judicial review accepted for filing on 29 April 2025;

(b)    the affidavits of Ian A Meagher made on 24 and 28 April 2025 and the annexures thereto;

(c)    the affidavit of John Wilson made on 30 June 2025 and the annexures thereto.

3.    The applicant file and serve an amended application for judicial review in the form of the application accepted for filing on 29 April 2025 save that the applicant’s name be replaced wherever it appears by the pseudonym EOF25.

4.    On the ground in section 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth), publication and disclosure of the following information be prohibited:

(a)    information which identifies or may tend to identify the applicant as being the applicant in this proceeding; and

(b)    information contained in Annexures JW2 and JW3 to the affidavit of John Wilson made on 30 June 2025.

5.    Order (4) does not prohibit publication or disclosure of any information if the publication or disclosure is made:

(a)    by the parties or their legal representatives or any officer or employee of the Court for purposes connected with or relating to the proper conduct of this proceeding;

(b)    by the parties or the Human Rights Commission or any of its officers or employees for the purposes of any complaint made by the applicant to the Human Rights Commission;

(c)    with the consent of the parties or with the leave of the Court.

6.    Orders (1), (2) and (4) will operate up to the date that final judgment is handed down in the proceedings or the proceeding is otherwise finalised by order.

7.    Any application by a person who is not a party to this proceeding for leave to inspect any document filed in the proceeding pursuant to rule 2.32 of the Federal Court Rules 2011 (Cth) be referred to the docket judge, or if that judge is unavailable, a duty judge for determination.

8.    The applicant be given leave to have the proceeding relisted before the docket judge, or if that judge is unavailable, a duty judge, on the giving of reasonable notice for the purpose of applying for an interim suppression or non-publication order in respect of any document or documents filed or to be filed in the proceeding from the date of this order.

9.    The proceeding be listed for further case management hearing at 9.30am on 4 December 2025.

Associate:

Dated:    5 September 2025