Federal Court of Australia

Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142

ORDERS

THE COURT ORDERS THAT:

Dismissal of interlocutory applications

1.    Except as ordered in paragraphs 2 to 16 of these orders:

(a)    the first and second respondents’ interlocutory application filed 12 June 2022;

(b)    the interlocutory application of Crushing Services International Pty Ltd filed 13 October 2023;

(c)    the applicant’s interlocutory application filed 13 June 2023, as amended by the document filed on 20 June 2023;

(d)    the first, second and fifth respondents’ interlocutory application filed 20 June 2023, as amended by the document filed 19 December 2023;

(e)    the fourth respondent’s interlocutory application filed 21 June 2023, as amended by the documents filed on 24 November 2023 and 19 December 2023;

(f)    the applicant’s interlocutory application filed on 16 October 2023, as amended by the documents filed on 30 November 2023 and 4 February 2024; and

(g)    the first, second and fifth respondents’ interlocutory application made by minutes of proposed orders lodged on 2 and 5 February 2024,

be dismissed with no order as to costs.

Upholding objections to affidavit evidence

2.    The first and second respondents’ objections to the applicant’s evidence set out in the document entitled ‘First and Second Respondents’ notice of objection to tender of evidence’ and the fourth respondent’s objections to the applicant’s evidence set out in the document entitled ‘Fourth Respondent’s Updated Objections to the Applicant’s Evidence’ provided to the Court on 8 February 2024 be upheld and the parts of the affidavits identified in Schedule 1 to these orders be struck out.

Suppression of documents in the proceeding

3.    The following suppression and (or) confidentiality orders be discharged:

(a)    paragraph 4 of the orders of 2 November 2022, as varied by the orders of 15 November 2022;

(b)    paragraph 2 of the orders of 21 June 2023; and

(c)    paragraphs 21 and 22 of the orders of 7 November 2023, as varied by paragraphs 1 and 2 of the orders of 7 February 2024.

4.    Subject to paragraphs 5, 6 and 15 of these orders, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground set out in s 37AG(1)(a), disclosure (by publication or otherwise) of the statement of claim filed on 1 June 2022 and the document entitled ‘Amended Statement of Claim’ lodged on 17 June 2023 and accepted for filing on 19 June 2023, be prohibited until further order.

5.    The prohibition in paragraph 4 of these orders does not extend to disclosure to:

(a)    the Court;

(b)    the parties and their legal representatives;

(c)    current and former directors and officers of the first respondent and their legal representatives, for the purposes of those directors and officers obtaining legal advice in relation to their obligations as a director or officer of the first respondent; and

(d)    any court, government, semi-government authority, administrative or judicial body or regulator (Government Authority), for the purpose of the parties complying with any applicable law, legally binding order or requirement of the Government Authority for the disclosure or publication of that information.

6.    Disclosure (by publication or otherwise) of information that is contained in a document referred to in paragraph 4 of these orders is permitted where the source of the information is:

(a)    not a document in the proceeding; or

(b)    a document in the proceeding (including a redacted version of a document referred to in paragraph 4 filed in the proceeding) that a person who is not a party to the proceeding is permitted to inspect in accordance with these orders, another order of the Court, or the Federal Court Rules 2011 (Cth).

Removal and confidentiality of documents in the proceeding

7.    The Western Australian District Registrar be directed with respect to the document removed from the Court file pursuant to paragraph 1 of the orders made on 21 June 2023:

(a)    to store an electronic record of that document in the Court’s records associated with the proceeding in such a manner that it is identified as a document that has been voided and is suppressed together with a notation in the Court’s records to the effect that: “An unredacted amended statement of claim that was lodged on 17 June 2023 and accepted for filing on 19 June 2023 was removed from the Court file pursuant to orders made on 21 June 2023 and is stored in the Court’s electronic records as a voided and suppressed document. The electronic record of that document is not to be inspected by a person that is not a party to proceeding WAD 103 of 2022 Steven Pigozzo v Mineral Resources Ltd (ACN 118 549 910) & Ors except by leave of a Judge of the Court.”; and

(b)    place on the Court file a redacted version of that document from which paragraphs 8.5(e), 8.5(f), 8.5(i), 8.5(k), 24 to 29.3, 29.5 to 35.8, 55 to 60.1, 102 to 102.3, 103.19(a) to 103.19(d), 103.20, 103.23(a), 103.23(b), 103.25, 103.26, 114(a), 114.3 to 114.5, 116, 116.2, 132(k), 133, 133.1, 145.2, 153(y), 153(z) and 155.1 to 155.23 are removed and the redacted document be taken to be the document lodged on 17 June 2023 and accepted for filing on 19 June 2023.

8.    The Western Australian District Registrar be directed to remove the following documents from the Court file:

(a)    amended statement of claim lodged 23 June 2023 and accepted for filing on 26 June 2023;

(b)    minute of proposed further amended statement of claim filed 16 October 2023;

(c)    affidavits of Michael Daniel Harmer affirmed 16 October 2023, 24 November 2023 (47 paragraphs), 27 November 2023, and 30 November 2023;

(d)    affidavit of Nicholas James Parkinson affirmed 24 November 2023; and

(e)    affidavit of Zachary Sharpe sworn 24 November 2023.

9.    The Western Australian District Registrar be directed, with respect to each of the documents referred to in paragraph 8 of these orders to store an electronic record of that document in the Court’s records associated with the proceeding in such a manner that it is identified as a document that has been voided and is suppressed together with a notation in the Court’s records to the effect that: “The [name and date of filing of the relevant document] was removed from the Court file pursuant to orders made on 18 September 2025 and is stored in the Court’s electronic records as a voided and suppressed document. The electronic record of that document is not to be inspected by a person that is not a party to proceeding WAD 103 of 2022 Steven Pigozzo v Mineral Resources Ltd (ACN 118 549 910) & Ors except by leave of a Judge of the Court.”

10.    Paragraph 1 of the orders of 29 September 2022 be varied in accordance with paragraphs 11(a) and 12 of these orders.

11.    Subject to paragraph 12 of these orders, the following documents in the proceeding be confidential and a person who is not a party to the proceeding be prohibited from inspecting them until further order:

(a)    statement of claim filed 1 June 2022;

(b)    minute of proposed second further amended statement of claim filed 30 November 2023;

(c)    affidavits of Michael Daniel Harmer affirmed 15 November 2023, 16 November 2023, 24 November 2023 (31 paragraphs), 24 November 2023 (35 paragraphs), 22 January 2024 and 4 February 2024;

(d)    affidavit of Robert Johnson Nathaniel Woodhouse sworn 24 November 2023;

(e)    affidavits of Steven Pigozzo affirmed 15 November 2023 and 22 January 2024; and

(f)    applicant’s outline of submissions filed 22 January 2024 in respect of the interlocutory applications listed for hearing on 6 and 7 February 2024.

12.    A person who is not a party to the proceeding may apply for leave to inspect a document referred to in paragraphs 7(a), 9 and 11 of these orders or the document referred to in paragraph 1 of the orders of 29 September 2022 in accordance with r 2.32(4) of the Rules.

13.    The Registrar be directed to:

(a)    place a notation on the Electronic Court File maintained by the Court to the effect that a non-party is prohibited from inspecting each of the documents referred to in paragraphs 7(a), 9 and 11 of these orders until further order;

(b)    place a notation on the Electronic Court File to the effect that any application made in accordance with paragraph 12 of these orders must be referred to a judge of the Court together with a copy of these orders and the reasons for these orders: Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142; and

(c)    refer any application made in accordance with paragraph 12 of these orders to a judge of the Court together with a copy of these orders and the reasons for these orders: Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142.

14.    The first, second and fifth respondents file redacted versions of the documents referred to in subparagraphs 11(b), 11(c), 11(d) and 11(e) of these orders in which the parts of those documents described in Schedule 2 to these orders are removed.

15.    Publication be permitted of the information contained in:

(a)    the redacted version of the statement of claim filed on 1 June 2022;

(b)    the redacted version of the amended statement of claim filed on 17 June 2023; and

(c)    the redacted versions of the documents filed in accordance with paragraph 14 of these orders.

16.    For the avoidance of doubt, the redacted versions of the documents filed in accordance with paragraphs 7(b) and 14 of these orders be documents a person who is not a party may apply for leave to inspect as documents that party is not otherwise entitled to inspect in accordance with r 2.32(4) of the Rules.

Dismissal of proceedings

17.    The consolidated proceedings be dismissed.

18.    There be no order as to the costs of the consolidated proceedings.

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

Schedule 1

Rulings – on objections to applicant’s evidence

Affidavit of Steven Pigozzo affirmed 15 November 2023

Affidavit of Michael Daniel Harmer affirmed 15 November 2023

Affidavit of Michael Daniel Harmer affirmed 16 November 2023

Affidavit of Robert Woodhouse affirmed 24 November 2023

Second affidavit of Michael Harmer affirmed 24 November 2023 (31 paragraphs in length)

Third affidavit of Michael Harmer affirmed 24 November 2023 (35 paragraphs in length)

Affidavit of Steven Pigozzo affirmed on 22 January 2024

Affidavit of Michael Harmer affirmed 22 January 2024

Affidavit of Michael Daniel Harmer affirmed on 4 February 2024

Schedule 2

1    Minute of proposed second further amended statement of claim filed 30 November 2023: paragraphs 33(vi), (vii), 34, 35, 39 to 61, 63 to 78B, 97(a), 97(b)(i), 97(b)(ii)(i) to (ii), 98 to 102, 103(chapeau), 103(a) to (b), 103(b)(ii), 104 to 134, 194(b) particular (iii), 210(b) particular (iii), 221(b) particular (iii), 229(b) particular (iii), 243(b) particular (ii), 251(b) particular (ii), 263(c) particular (ii), 273(c) particular (ii), 282(e) (second sentence to end), 289(e) (second sentence to end), 308 to 309, 310 (13th, 14th, 54th and 55th words), 311 to 312, 318, 324 to 327, 332 to 337, 341, 343, 344(c), 345(b), 345(d) to (e), 347(e), 348(a) to (b), 348(e) to (f), 353, 355 to 361, 363, 366 to 370, 371 (chapeau), 371(b), 372 to 373, 374(a) to (d), 375, 377 to 381, 422 to 429, 445(a), (b), (s), 446(a), (b), (s), 447(a)(i), 447(d)(i), 448 and 452.

2    Affidavit of Michael Daniel Harmer affirmed 15 November 2023: the paragraphs struck-out as set out in Schedule 1 to these orders; and annexure MDH-81.

3    Affidavit of Michael Daniel Harmer affirmed 16 November 2023: the paragraphs struck-out as set out in Schedule 1 to these orders; and annexures MDH-92, MDH-93 and MDH-94.

4    Affidavit of Michael Daniel Harmer affirmed 24 November 2023 (31 paragraphs): the paragraphs struck-out as set out in Schedule 1 to these orders.

5    Affidavit of Michael Daniel Harmer affirmed 24 November 2023 (35 paragraphs): the paragraphs struck-out as set out in Schedule 1 to these orders.

6    Affidavit of Michael Daniel Harmer affirmed 22 January 2024: the paragraphs struck-out as set out in Schedule 1 to these orders; and annexure MDH-113.

7    Affidavit of Michael Daniel Harmer affirmed 4 February 2024: the paragraphs struck-out as set out in Schedule 1 to these orders and paragraphs 6 and 7.

8    Affidavit of Robert Johnson Nathaniel Woodhouse sworn 24 November 2023: the paragraphs struck-out as set out in Schedule 1 to these orders.

9    Affidavit of Steven Pigozzo affirmed 15 November 2023: the paragraphs struck-out as set out in Schedule 1 to these orders.

10    Affidavit of Steven Pigozzo affirmed 22 January 2024: the paragraphs struck-out as set out in Schedule 1 to these orders.

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The parties to the proceeding made a settlement agreement in July 2024 by which this consolidated proceeding and a separate but related proceeding were resolved. Before the settlement agreement was made there had been a number of interlocutory disputes that had been the subject of a hearing in court in public on 6 and 7 February 2024. In the lead up to that hearing a number of interim suppression orders had been made with respect to certain paragraphs of amended and proposed amended versions of the statement of claim. The Court reserved its decision on the various interlocutory applications including applications for indefinite continuation of the suppression orders. In the meantime, the interim suppression orders were continued, in effect, until judgment was delivered on the interlocutory applications. As part of the terms of settlement the parties lodged a minute of proposed consent orders that, if made, would have the effect of indefinitely preventing or prohibiting public disclosure of the various versions of the statement of claim, numerous affidavits, and written submissions that have been filed in the proceedings.

2    Having regard to the nature of the requested orders, I was not prepared to make them by consent in chambers and required notice to be given to potentially interested parties such as news publishers and for there to be an oral hearing in public. As a consequence, one news publisher and one journalist appeared and made submissions at a hearing concerning the extent to which the relevant orders restricting public disclosure should be made.

3    The principal question for determination is whether I should make orders in terms of a minute of proposed orders filed in the Court on 15 December 2024, in effect, by consent between the parties and CSI International Pty Ltd (as an intervenor). That question largely turns on the extent to which the public interest in the timely settlement of litigation prevails over the public interest in open justice such that orders that have the effect of prohibiting or preventing the relevant documents from publication are necessary to prevent prejudice to the proper administration of justice. Ultimately, after hearing from the parties, the intervenor, the news publisher and the journalist, I was persuaded that orders substantially in the terms proposed are so necessary. To the extent that I was not persuaded an order will be made that will require redacted documents to be filed and such documents will be available for inspection by persons who are not parties to the proceeding on application to the Court.

4    The following are my reasons for the orders made.

Background

5    On 1 June 2022 the applicant filed an originating process and statement of claim. A copy of that statement of claim was provided to the publishers of the West Australian and the Australian Financial Review newspapers. Interim orders were made on an urgent interlocutory application to prevent the publication of certain allegations contained in that statement of claim that were prima facie confidential and privileged from disclosure. Subsequently, I heard an interlocutory application to strike-out parts of that statement of claim and for suppression and non-publication orders to be made in respect of certain paragraphs of that pleading. On 29 September 2022 I made orders striking-out certain paragraphs of the statement of claim, for the continuation of the earlier orders preventing publication and to relist the matter to make final orders consistent with the reasons: Pigozzo v Mineral Resources Ltd [2022] FCA 1166.

6    For the reasons given in Pigozzo (No 1) at [90], [100], [118], [131], [186], [195], [203]-[215], on 2 November 2022 orders were made, as varied by orders made on 15 November 2022, in the following terms:

…

2.    The applicant has leave to file and serve an amended statement of claim consistent with the Court’s reasons for decision of 29 September 2022, by 7 December 2022.

3.    On or before 4.00pm on 9 November 2022 (AWST), the applicant must file and serve a redacted version of the statement of claim in which paragraphs 26-29, 35 and 102, 105(a), 105(b), 116 and 133(i) are removed from the pleading.

4.    Pursuant to s 37AF(1)(b)(iv) of the Federal Court of Australia Act 1976 (Cth), on the ground set out in s 37AG(1)(a), paragraphs 26-29, 35, 102, 105(a), 105(b), 116, 133(i) of the statement of claim are not to be disclosed or published other than to the Court (which, for the avoidance of doubt includes the Full Court of the Federal Court of Australia), the parties and their legal representatives and, otherwise, the first and second respondents’ interlocutory application of 8 June 2022 for an interim injunction and non-publication order is dismissed.

…

7    In the meantime, the applicant separately commenced proceeding WAD 155 of 2022 against most of the respondents in proceeding WAD 103 of 2022 and an additional respondent. The applicant also applied for leave to appeal from the orders striking out the statement of claim in proceeding WAD 217 of 2022. On 29 November 2022 orders were made consolidating WAD 155 of 2022 with proceeding WAD 103 of 2022 and staying the consolidated proceeding until the determination of the application for leave to appeal and any appeal.

8    On 3 April 2023 the application for leave to appeal was dismissed. On 27 April 2023 I made orders extending the time within which the applicant had leave to file an amended statement of claim to 13 June 2023.

9    On 13 June 2023 the applicant filed an interlocutory application by which he sought an extension of time to file an amended statement of claim. On 17 June 2023 the applicant lodged an amended statement of claim. That document was accepted for filing on 19 June 2023 and endorsed with a stamp recording that the statement of claim was ‘Amended pursuant to leave granted on 27 April 2023 and pursuant to r 16.51 of the Federal Court Rules 2011 (Cth)’. That endorsement was not correct because the document had not been lodged within the time specified in the order made on 27 April 2023.

10    On 20 June 2023 the first, second and fifth respondents filed an interlocutory application for suppression and (or) non-publication orders with respect to certain paragraphs of the amended statement of claim lodged on 17 June 2023. On 21 June 2023 the fourth respondent also filed an interlocutory application for suppression and (or) non-publication orders with respect to certain paragraphs of the amended statement of claim lodged on 17 June 2023.

11    On 20 June 2023 the applicant filed an amended interlocutory application for an extension of time to file an amended statement of claim.

12    On 20 June 2023 Neale Robert Prior, a representative of ‘The West Australian’ newspaper made a non-party request for access to three documents including the amended statement of claim lodged on 17 June 2023. As the amended statement of claim had been accepted for filing it was evidently understood to be a ‘pleading’ and as the other documents were interlocutory applications a non-party was entitled to inspect those documents in accordance with r 2.32(2) of the Rules (as in force at that time). On 20 June 2023 the Perth Registry of the Court sent Mr Prior sealed copies of the requested documents by email.

13    The matter was listed for a case management hearing on 21 June 2023. At that hearing it became apparent that the amended statement of claim lodged on 17 June 2023 had been lodged in error and that the applicant was agreeable to removal of that document from the Court file as he wanted to file another version of his statement of claim. The first, second and fifth respondents requested orders for the removal of that document and for its suppression and non-publication. As the document had been filed without leave, because the time for filing an amended statement of claim with leave expired on 13 June 2023, I made an order pursuant to r 2.27(1)(f) and r 2.28(1)(c)(ii) for that document to be removed from the Court file. In substance, that document should not have been accepted for filing (as an amended statement of claim), in those circumstances and, therefore, it was not a ‘pleading’ and a document a non-party was entitled to inspect under r 2.32(2)(c) of the Rules (as in force at that time). An interim order was made under s 37AI of the Federal Court of Australia Act 1976 (Cth) prohibiting disclosure and publication of the substance, purport or contents of certain paragraphs of that document until further order of the Court. That is, in effect, until determination of the respondents’ application for suppression and non-publication orders with respect to that document.

14    On 21 June 2023 an order was also made extending the time for the applicant to file an amended statement of claim, with leave, to 23 June 2023 to allow the applicant to file the ‘correct’ version of his amended statement of claim. On 23 June 2023 the applicant filed an amended statement of claim.

15    Earlier, on 12 June 2022, the first and second respondents had filed an interlocutory application for summary judgment against the applicant, alternatively for the proceeding to be permanently stayed. On 19 July 2023, at a case management hearing, orders were made listing that application for hearing on a date to be fixed. It was intended to hear that application and the application for suppression and (or) non-publication at the same time.

16    On 18 August 2023, at a case management hearing, orders were made fixing 27 November 2023 as the date for hearing of the summary judgment or stay application and the suppression and (or) non-publication application. It had also become evident that the respondents were contemplating applying to strike out parts of the amended statement of claim filed on 23 June 2023 and for suppression and (or) non-publication orders with respect to parts of that pleading. Additionally, the applicant was contemplating further amending his statement of claim. Accordingly, orders were made for the purpose of facilitating any other interlocutory applications and having them all heard at an ‘omnibus’ hearing on 27 November 2023.

17    On 13 October 2023 Crushing Service International Pty Ltd filed an interlocutory application for leave to intervene in the proceeding and for orders to strike out certain paragraphs of the amended statement of claim filed on 23 June 2023. CSI applied for leave to intervene because it claimed certain communications pleaded in the amended statement of claim were confidential and the subject of legal professional privilege which it maintained and claimed it had not waived.

18    On 16 October 2023 the applicant filed an interlocutory application for leave to further amend his statement of claim. A minute of proposed further amended statement of claim and affidavit of Michael Daniel Harmer affirmed 16 October 2023 were also filed with that application.

19    On 7 November 2023 I made orders adjourning the hearings of the applications for leave to further amend the statement of claim, for suppression and (or) non-publication orders and for leave to intervene and strike out parts of the amended statement of claim to a date to be fixed. Directions were also made to facilitate the hearing of any other interlocutory applications on the adjourned date. Additionally, interim suppression and non-publication orders were made under s 37AI of the Federal Court Act with respect to parts of the amended statement of claim filed on 23 June 2023 and parts of the minute of proposed further amended statement of claim filed on 16 October 2023 and for the affidavit of Mr Harmer filed on 16 October 2023 to be treated as confidential until the end of the hearing of the various interlocutory applications.

20    On 24 November 2023 the fourth respondent filed an amended interlocutory application for suppression and (or) non-publication orders. That application sought orders with respect to parts of the amended statement of claim filed on 23 June 2023, the proposed further amended statement of claim filed 16 October 2023 and certain other materials filed in the Court.

21    On 27 November 2023 orders were made vacating the balance of the hearing on that date, re-listing it on 6 and 7 February 2024 and for various directions to facilitate the hearing on those dates.

22    In accordance with the orders made on 7 and 27 November 2023, on 30 November 2023 the applicant filed an amended application for leave to amend his statement of claim and minute of proposed second further amended statement of claim. On 19 December 2023 the first, second and fifth respondents filed an amended interlocutory application for suppression and (or) non-publication orders and the fourth respondent filed a further amended application for suppression and (or) non-publication orders. In each case the amendments to the applications were proposed to seek suppression and (or) non-publication of parts of the minute of proposed second further amended statement of claim.

23    On 30 January 2024 orders were made, by consent, to the effect that r 2.32(2)(e) of the Rules was not to apply to CSI’s interlocutory application dated 13 October 2023 until further order. The reason that order was requested and made was that a part of the application reproduced parts of the amended statement of claim filed on 23 June 2023 that were the subject of interim suppression and non-publication orders.

24    On 4 February 2024 the applicant filed a further amended application for leave to further amend the statement of claim.

25    The first, second and fifth respondents made an application by way of a minute of proposed orders filed on 2 February 2024, amended by a minute filed on 5 February 2024, for the whole or parts of all the affidavits the applicant filed in the proceeding, except for the affidavit of Mr Harmer affirmed on 24 November 2023 (35 paragraphs), to be removed from the Court file.

26    On 6 and 7 February 2024 I heard six substantive interlocutory applications filed by the parties in the proceeding; namely (1) the first and second respondents’ application for summary judgment or alternatively a permanent stay; (2) the applicant’s application for leave to further amend his statement of claim; (3) CSI’s application to strike out parts of the amended statement of claim filed on 23 June 2023; (4) the first, second and fifth respondents’ application for suppression and (or) non-publication orders; (5) the fourth respondent’s application for suppression and (or) non-publication orders; and (6) the first, second and fifth respondents’ informal application for removal of affidavits. Additionally, the respondents objected to parts of the affidavits upon which the applicant relied for the purposes of that hearing.

27    Subject to objections of the respondents, the following affidavits were read by the applicant at the hearing on 6 and 7 February 2024:

(a)    affidavits of Michael Daniel Harmer affirmed 15 November 2023, 16 November 2023, 24 November 2023 (31 paragraphs), 24 November 2023 (35 paragraphs), 22 January 2024 and 4 February 2024;

(b)    affidavit of Robert Johnson Nathaniel Woodhouse sworn 24 November 2023; and

(c)    affidavits of Steven Pigozzo affirmed 15 November 2023 and 22 January 2024.

28    The applicant filed affidavits of Michael Daniel Harmer affirmed 16 October 2023, 24 November 2023 (47 paragraphs), 27 November 2023, 30 November 2023 but these were not read in the proceeding.

29    The following affidavits were read by the first, second and fifth respondents at the hearing on 6 and 7 February 2024:

(a)    affidavits of Nicholas James Parkinson affirmed 1 June 2022, 19 October 2023 and 12 December 2023;

(b)    affidavits of Thomas Anthony Coltrona sworn 12 June 2022 and 13 October 2023; and

(c)    affidavit of Simon James Rushton sworn 26 November 2023.

30    Affidavits of Nicholas James Parkinson affirmed 24 November 2023 and Zachary Sharpe sworn 24 November 2023 were filed by the first, second and fifth respondents, but not read in the proceeding.

31    The fourth respondent read an affidavit of Samuel James Dundas affirmed 2 February 2024.

32    At the conclusion of the oral hearing on 7 February 2024 I reserved my judgment. I also made orders extending all existing interim suppression and non-publication orders, the order for confidentiality over Mr Harmer’s affidavit of 16 October 2023 and the order excluding CSI’s interlocutory application from operation of r 2.32(2)(e) until further order. I also made a separate interim suppression and non-publication order, until further order, with respect to parts of the minute of proposed second further amended statement of claim filed on 30 November 2023.

33    It follows that certain paragraphs of the amended statement of claim lodged on 17 June 2023 and removed from the Court file by order made on 21 June 2023, the amended statement of claim filed on 23 June 2023, the minute of proposed further amended statement of claim filed on 16 October 2023, the minute of proposed second further amended statement of claim filed on 30 November 2023, the affidavit of Mr Harmer filed on 16 October 2023 and the interlocutory application of CSI filed on 13 October 2023 have been the subject of interim orders of the Court that have had the effect of prohibiting the disclosure and (or) publication of those documents or parts of them pending judgment on the six interlocutory applications that were the subject of the hearing on 6 and 7 February 2024.

34    On 22 July 2024, and before judgment was delivered on the interlocutory applications, the solicitors for the first, second and fifth respondents sent an email to the Court indicating that the parties had negotiated and entered into a deed of settlement and release and that they had agreed to signed consent orders attached to that email. Amongst the orders agreed were orders for the removal of certain documents from the Court file and for suppression and non-publication orders.

35    On 1 August 2024 the Court sent the parties an email indicating that the Court was of the view that certain of the proposed orders could not be made by consent, that intervening and interested parties and news publishers may have the right to be heard on the making of the proposed orders and, for the purpose of addressing those matters, the matter was listed for a case management hearing on 13 August 2024.

36    On 12 August 2024 the parties lodged a minute of proposed orders. It was not a signed consent order.

37    On 13 August 2024 orders were made for service of the proposed orders on certain interested parties and any person who was not a party to the proceeding was given an opportunity to be heard.

38    On 14 August 2024 the parties lodged another version of the minute of proposed orders and served the 13 August 2024 orders and the minute on the interested parties by email.

39    On 20 August 2024 Fairfax Digital Australia & New Zealand Pty Ltd, publisher of the WAtoday news website filed a notice of acting and appointed Larnia Alick (in-house counsel for the Nine media group) to represent it in the proceeding.

40    On 28 August 2024 the parties lodged another minute of proposed orders in different, but similar, terms to the proposed consent orders lodged on 22 July 2024.

Proposed orders

41    On 15 December 2024 the parties lodged yet a further minute of proposed orders. The parties then moved for orders in terms of that minute with minor further amendments at the hearing on 17 December 2024 as follows. (Oral amendments at the hearing are indicated by striking through and (or) underlining the text.)

Notices of Objections

1    The First and Second Respondents’ objections to Applicant’s Evidence and Fourth Respondent’s objections to Applicant’s Evidence provided to the Court on 8 February 2024 (Notices of Objections) be upheld and all the paragraphs objected to be struck out.

2    Pursuant to r 29.03(2) and r 2.29(1)(b)(ii) of the Federal Court Rules 2011 (Cth), the affidavits referred to in the Notices of Objections be removed from the Court file.

Removal of Court Documents

3    Pursuant to r 6.01(a), r 29.03(2) and r 2.29(1)(b)(ii) of the Federal Court Rules 2011 (Cth) the following documents be removed from the Court file:

3.1    the Amended Statement of claim dated 23 June 2023 (ASOC);

3.2    the Minute of Proposed Further Amended Statement of Claim dated 16 October 2023 (MFASOC);

3.3    the Minute of Proposed Second Further Amended Statement of Claim dated 30 November 2023 (MSFASOC);

3.4    the affidavit of Michael Daniel Harmer affirmed 16 October 2023 (16 October Harmer Affidavit);

3.5    the affidavit of Michael Daniel Harmer affirmed 15 November 2023 (15 November Harmer Affidavit);

3.6    the affidavit of Michael Daniel Harmer affirmed 16 November 2023 (16 November Harmer Affidavit);

3.7    the affidavit of Robert Johnson Nathaniel Woodhouse sworn on 24 November 2023 (Woodhouse Affidavit);

3.8    the first affidavit of Michael Daniel Harmer affirmed on 24 November 2023 containing 47 paragraphs (First 24 November Harmer Affidavit);

3.9    the second affidavit of Michael Harmer affirmed 24 November 2023 (31 paragraphs in length) (Second 24 November Harmer Affidavit);

3.10    the affidavit of Nicholas James Parkinson affirmed on 24 November 2023 (Parkinson Affidavit);

3.11    the affidavit of Zachary Sharp sworn on 24 November 2023 (Sharp Affidavit);

3.12    the affidavit of Michael Daniel Harmer affirmed on 27 November 2023 (27 November Harmer Affidavit);

3.13    the affidavit of Michael Daniel Harmer affirmed on 30 November 2023 (30 November Harmer Affidavit);

3.14     the affidavit of Michael Daniel Harmer affirmed on 22 January 2024 (22 January Harmer Affidavit);

3.15    the affidavit of Michael Daniel Harmer affirmed on 4 February 2024 (4 February Harmer Affidavit);

3.16    the submissions filed on behalf of Mr Pigozzo dated 22 January 2024;

3.17    the affidavit of Steven Pigozzo affirmed 15 November 2023 (15 November Pigozzo Affidavit); and

3.18    the affidavit of Steven Pigozzo affirmed 22 January 2024 (22 January Pigozzo Affidavit).

4    Alternatively to Order 3:

4.1    the following parts of the following affidavits be removed from the Court file pursuant to r 29.03(2) of the Rules:

4.1.1    The 16 October Harmer Affidavit: paragraphs 52 (including MDH-66), 54 (including MDH-67), and pages 49-54, 58-60, 62-64, 75,-77, 79-84, 86-88, 105-107, 138-300, 302-574 and 598-605.

4.1.2    the 15 November Harmer Affidavit: paragraphs 9, 10, 18, 20(iii) (final sentence and MDH-81), 81 (first and second sentences).

4.1.3    The 16 November Harmer Affidavit: paragraphs 10 (from the words “which described an episode” onwards), 12 (including MDH-92), 13 (including MDH-93), 14 (including MDH-94), 15, 16, 20 - 23.

4.1.4    The Woodhouse Affidavit: paragraphs 4 (penultimate and ultimate sentences), 7, 9, 10, 12.

4.1.5    The First 24 November Harmer Affidavit: paragraphs 5, 10 – 15, 16(a), 16(b) (including MDH-95), 16(c), 16(d) (including MDH-96), 16(e), 17 (including MDH-97), 18 – 22 (including MDH-98), 23, 23(a), 23(c) (including MDH-99), 23(d) (including MDH-100), 23(e) (including MDH-101), 23(f), 24, 25 (including MDH-102), 27, 28, 29 (including MDH-103), 30 – 33, 35, 36, 38 (including MDH-105, MDH-106, MDH-107 and MDH-108), 39, 40 – 47 (including MDH-109 and MDH-110) and all headings and subheadings within the affidavit.

4.1.6    The Second 24 November Harmer Affidavit: paragraphs 6 – 14.

4.1.7    The Parkinson Affidavit: NJP-8.

4.1.8    The Sharp Affidavit: ZS-1.

4.1.9    The 27 November Harmer Affidavit: paragraphs 4 – 12, 14.

4.1.10    The 30 November Harmer Affidavit: paragraphs 6 – 15.

4.1.11    The 22 January Harmer Affidavit: paragraphs 17 – 27, 29 – 54 (including MDH-113), 55 (first and final sentences), 56 – 63, 71 – 79.

4.1.12    The 4 February Harmer Affidavit: paragraphs 4, 5, 6, 7, 9 – 17, 19, 31, 32.

4.1.13    The 15 November Pigozzo Affidavit: paragraphs 39 (second sentence, 44 (first and second sentences), 47 (second sentence), 51, 60 (second and third sentences), 75 (second, third and fourth sentences), 77, 91, 105 (penultimate sentence), 106, 107 and 108.

4.1.14    The 22 January Pigozzo Affidavit: paragraphs 15 – 22, 43 and 44.

4.2    pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the following documents filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication and inspection (except to the parties’ legal representatives) be prohibited:

4.2.1    the Amended Statement of Claim dated 23 June 2023;

4.2.2    the Minute of Proposed Further Amended Statement of Claim dated 16 October 2023;

4.2.3    the 16 October Harmer Affidavit;

4.2.4    the 15 November Pigozzo Affidavit;

4.2.5    the 15 November Harmer Affidavit;

4.2.6    the 16 November Harmer Affidavit;

4.2.7    the Woodhouse Affidavit;

4.2.8    the First 24 November Harmer Affidavit;

4.2.9    the Second 24 November Harmer Affidavit;

4.2.11    the Parkinson Affidavit;

4.2.12    the Sharp Affidavit;

4.2.13    the 27 November Harmer Affidavit;

4.2.14    the 30 November Harmer Affidavit;

4.2.15    the Minute of Proposed Second Further Amended Statement of Claim dated 30 November 2023;

4.2.16    the 22 January Pigozzo Affidavit;

4.2.17    the 22 January Harmer Affidavit;

4.2.18    the Applicant’s outline of submissions filed 22 January 2024; and

4.2.19    the 4 February Harmer Affidavit.

Non-Publication

5    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground set out in s 37AG(1)(a), the substance, purport or contents of the information contained in:

5.1    paragraphs 8.5(e), 8.5(f) (3rd, 4th, 32nd and 33rd words), 8.5(i)(iii), 24 to 29.3, 29.5 to 35.8, 55(a) to (b), 55.2 to 57.5, 57.5(ii) to (iii), 57.6 to 60.1, 102 to 102.3, 103.19 (a) to (d), 103.20, 103.23 (a), (b), 103.25, 103.26, 114(a), 114.3 to 114.4, 114.5 (chapeau), 114.5(a), 114.5(a)(i)(ii) to 114.5(a)(i)(v), 114.5(b), 114.5(d)(i) to 114.5(d)(iii), 114.5(e) to (f), 114.5(g) (6th and 7th words), 114.5(g)(i), 114.5(i) (chapeau, 5th, 6th, 23rd and 24th words), 114.5(i) particular (i) (15th and 16th words), 114.5(i) particular (ii) (4th sentence, 10th and 11th words), 114.5(k), 116, 116.2, 132(k), 133, 133.1, 145.2, and 155.1, 155.2 (chapeau), 155.2(a)(ii) to 155.2(a)(v), 155.2(b), 155.2(d)(i) to 155.2(d)(iii), 155.2(e) to (f), 155.2(g) (chapeau, 6th and 7th words), 155.2(g)(i), 155.3 (5th, 6th, 22nd and 23rd words), 155.3 particular (i) (15th and 16th words), 155.3 particular (ii) (4th sentence, 10th and 11th words), 155.5 to 155.8, 155.10 to 155.24 of the document entitled 'Amended Statement of Claim' lodged on 17 June 2023 and accepted for filing on 19 June 2023;

5.2    paragraphs 8.5 (particulars (v), (vi), (ix)(C), (x) and (xi)), 24 to 29.3, 29.5 to 35.8, 55(a) to (b), 55.1 to 57.5, 57.5(ii) to (iii), 57.6 to 60.1, 102 to 102.3, 103.19(a) to (d), 103.20, 103.23(a), (b), 103.25, 103.26, 114(a), 114.3 to 114.4, 114.5 (chapeau), 114.5(a), 114.5(a)(i)(ii) to 114.5(a)(i)(v), 114.5(b), 114.5(d)(i) to 114.5(d)(iii), 114.5(e) to (f), 114.5(g) (chapeau, 26th and 27th words), 114.5(g)(i), 114.5(i) (chapeau, 4th, 5th and 22nd-24th words), 114.5(i) particular (i) (15th and 16th words), 114.5(i) particular (ii) (4th sentence, 10th and 11th words), 114.5(k), 116, 116.1, 132(k), 133, 133.1, 145.2, and 155.1, 155.2 (chapeau), 155.2(a)(ii) to 155.2(a)(v), 155.2(b), 155.2(d)(i) to 155.2(d)(iii), 155.2(e) to (f), 155.2(g) (chapeau, 6th and 7th words) 155.2(g)(i), 155.3 (chapeau, 5th, 6th, 23rd and 24th words), 155.3 particular (i) (15th and 16th words), 155.3 particular (ii) (4th sentence, 10th and 11th words), 155.5 to 155.8 , 155.10 to 155.24 of the ASOC;

5.3    paragraphs 33(vi), (vii), 34, 35, 39 to 61, 63 to 78A, 97(a), 97(b)(i), 97(b)(ii)(i) to (ii), 98 to 102, 103(chapeau), 103(a) to (b), 103(b)(ii), 104 to 134, 194(b) particular (iii), 210(b) particular (iii), 221(b) particular (iii), 229(b) particular (iii), 243(b) particular (ii), 251(b) particular (ii), 263(c) particular (ii), 273(c) particular (ii), 282(e) (second sentence to end), 289(e) (second sentence to end), 308 to 309, 310 (13th, 14th, 54th and 55th words), 311 to 312, 318, 324 to 327, 332 to 337, 341, 343, 344(c), 345(b), 345(d) to (e), 347(e), 348(a) to (b), 348(e) to (f), 353, 355 to 361, 363, 366 to 370, 371 (chapeau), 371(b), 372 to 373, 374(a) to (d), 375, 377 to 381, 422 to 429, 445(a), (b), (s), 446(a), (b), (s), 447(a)(i), 447(d)(i) and 448, 452 of the MFASOC, including as attached as "MDH-66" and "MDH-67" to the affidavit of Michael Daniel Harmer affirmed and filed on 16 October 2023; and

5.4    paragraphs 33(vi), (vii), 34, 35, 39 to 61, 63 to 78B, 97(a), 97(b)(i), 97(b)(ii)(i) to (ii), 98 to 102, 103(chapeau), 103(a) to (b), 103(b)(ii), 104 to 134, 194(b) particular (iii), 210(b) particular (iii), 221(b) particular (iii), 229(b) particular (iii), 243(b) particular (ii), 251(b) particular (ii), 263(c) particular (ii), 273(c) particular (ii), 282(e) (second sentence to end), 289(e) (second sentence to end), 308 to 309, 310 (13th, 14th, 54th and 55th words), 311 to 312, 318, 324 to 327, 332 to 337, 341, 343, 344(c), 345(b), 345(d) to (e), 347(e), 348(a) to (b), 348(e) to (f), 353, 355 to 361, 363, 366 to 370, 371 (chapeau), 371(b), 372 to 373, 374(a) to (d), 375, 377 to 381, 422 to 429, 445(a), (b), (s), 446(a), (b), (s), 447(a)(i), 447(d)(i) and 448, 452 of the MSFASOC,

are not to be disclosed or published other than to:

a)    the Court;

b)    the parties and their legal representatives;

c)    current and former directors and officers of the first respondent and their legal representatives, for the purpose of those directors and officers obtaining legal advice in relation to their obligations as a director or officer of the first respondent; and

d)    any court, government, semi-government authority, administrative or judicial body or regulator (Government Authority), for the purpose of the parties complying with any applicable law, legally binding order or requirement of the Government Authority for the disclosure or publication of that information.

Outstanding Interlocutory Applications

6    Save as otherwise ordered above:

6.1    The First and Second Respondents’ interlocutory application dated 12 June 2022 be dismissed with no order as to costs.

6.2    Crushing Services International Pty Ltd’s interlocutory application dated 13 October 2023 be dismissed with no order as to costs.

6.3    The Applicant’s amended interlocutory application dated 30 November 2023 be dismissed with no order as to costs.

6.4    The First, Second and Fifth Respondents’ amended application dated 19 December 2023 be dismissed with no order as to costs.

6.5    The Fourth Respondent’s further amended application dated 19 December 2023 be dismissed with no order as to costs.

6.6    The Applicant’s further amended interlocutory application dated 4 February 2024 be dismissed with no order as to costs.

6.7    The First, Second and Fifth Respondents’ application by Amended Minute of Proposed Orders filed 5 February 2024 be dismissed with no order as to costs.

Dismissal of Proceedings

7    The consolidated proceedings be dismissed.

8    There be no orders as to costs.

42    The parties also read and relied on affidavits of Thomas Anthony Coltrona sworn 28 August 2024 and 13 December 2024. Fairfax read and relied on an affidavit of Larina Michelle Alick affirmed 5 September 2024.

Summary of submissions made on the proposed orders

43    The parties agree to orders that would have the effect of prohibiting the disclosure and (or) publication of numerous documents filed in the proceeding. The orders would operate to remove certain documents or parts of documents from the Court file, make certain documents or parts of documents confidential and prohibit or restrict disclosure or publication of those documents and make suppression orders with respect to certain documents or parts of documents. In substance, they submit that the Court should make the requested orders having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M of the Federal Court Act and that maintaining the confidentiality of the documents and information contained in them is a key element of the commercial bargain the parties have struck to resolve the proceedings. Further, the applicant abandoned many of the versions of the statement of claim that he had lodged in the Court, the respondents applied to have affidavits removed from the Court file to which the applicant has agreed and many of those affidavits were not read or were read subject to the respondents’ objections and the applicant has agreed that the objections should be upheld and substantial parts of the affidavits struck-out. The public interest in ‘open justice’ is not absolute and is to be balanced against the public interest in the efficient and timely resolution of proceedings. It would prejudice the proper administration of justice if the parties’ bargain were disregarded and information that they agreed should remain confidential were made public.

44    Fairfax opposes the Court making orders that would prohibit or restrict a non-party’s access to documents on the Court file to which a non-party has an existing right of inspection or right to request inspection by leave of the Court. It submits that there has already been significant publication of the allegations made in the proceedings and that any suppression or non-publication of the allegations would be futile. Further, Fairfax submits that if any order is made concerning non-publication it should be in terms that make it very clear what allegations can and cannot be published because it remains possible that a journalist could become aware of the allegations from a source other than a document that has been filed in the Court. In support of that submission, after the hearing, Fairfax provided the Court with examples of suppression orders made in criminal proceedings intended to prevent disclosure of the identity of complainants or witnesses or the criminal history of accuseds.

45    If orders were made in terms of the examples Fairfax provided, it would also be necessary to make an order prohibiting publication of the order itself because publication of the order would reveal the information sought to be protected. Further, none of the examples is analogous to the orders the parties seek in this proceeding which are, in effect, suppression or non-publication of evidence or information about evidence or information lodged with or filed in the Court. For these reasons, I do not consider the Fairfax example orders to be particularly useful and I am not persuaded that orders should be made in terms of any of those examples.

46    Mr Prior, who was in attendance, was also given leave to make and made oral submissions. As the recipient of two documents in respect of which non-publication orders have been made, his primary interest is to ensure that any order the Court may make about the continuation of those orders makes clear what he is and is not permitted to publish. He made a number of submissions by reference to the amended statement of claim lodged on 17 June 2023 and the order of 21 June 2023 that created ambiguity and a lack of certainty about what parts of that document could be published. Mr Prior drew the Court’s attention to certain non-suppressed allegations that contained similar information to suppressed allegations. He submits that the overlapping nature of the allegations renders unclear what information in that document can and cannot be disclosed or published.

Consent orders

47    Rule 39.11 of the Rules provides that a judge may make an order in accordance with the terms of a written consent of the parties. The Court may also make an order in accordance with the terms of an agreement expressed orally in a hearing before the Court. But, in either case, the Court need not make an order merely because the parties have agreed that an order should be made: e.g., James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 at [17] (Gaudron and Gummow JJ). The Court must be satisfied that it has jurisdiction or power, and it is otherwise appropriate, to make the order particularly where the interests of non-parties or the public may be affected: e.g., Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [7]-[8], [11]-[12], [14]-[15] (French J). Parties cannot confer power upon the Court to make orders which the Court lacks power to make: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150 at 163 (Gibbs CJ, Stephen, Mason and Wilson JJ).

48    In Mr Coltrona’s affidavit of 28 August 2024 he deposes that on 19 July 2024 the parties agreed to settle the proceeding on terms that are confidential, but required the parties to consent to orders in terms of the minute of consent orders dated 22 July 2024. That document was sent to the Court by email on 22 July 2024 and is signed by the legal representatives of each of the parties in the proceeding.

49    Although the written and oral submissions of the parties were consistent with an agreement between the parties to the effect that the Court should make orders ‘by consent’ in terms of the minute lodged on 15 December 2024 as amended on 17 December 2024, there is no evidence to the effect that the terms of the parties’ settlement agreement require them to consent to orders in those terms. Otherwise, the terms of the settlement have not been disclosed to the Court. Nonetheless, I infer from the fact that the terms of the settlement agreement required the parties to consent to orders in terms of the signed minute of consent orders dated 22 July 2024 and the co-operation between the parties in the lodgement and agreement to the terms of the subsequent minutes of proposed orders that an express or implied term of the settlement agreement requires the parties to do all things reasonably necessary to permit each other party to have the benefit of that agreement. I also infer that objects the parties intend to secure by their agreement include:

(a)    to prevent disclosure of the contents of the minutes of proposed further amended statements of claim filed on 16 October 2023 and 30 November 2023, all affidavits that were read and the subject of objections at the hearing on 6 and 7 February 2024, the applicant’s written submissions for that hearing and various other affidavits filed but not read at any hearing; and

(b)    for the substance, purport or contents of the information contained in various paragraphs of the amended statement of claim filed on 23 June 2023 and the minutes of proposed further amended statements of claim filed on 16 October and 30 November 2023 to be indefinitely prohibited from disclosure and publication.

50    The parties’ minute of proposed orders lodged on 15 December 2024, as amended, is consistent with those objects, but the categories of document in each limb have been expanded and the minute proposes an alternative means of achieving the object of the first limb.

51    In support of the proposed orders the parties invoke rr 6.01(a), 29.03(2) and 2.28(1)(b)(ii) of the Rules as the foundation for an order for removal of the various versions of the statement of claim, the applicant’s submissions and all the affidavits. Alternatively, removal of parts of the affidavits is founded on r 29.03(2) of the Rules and, otherwise, the whole of the various versions of the statement of claim, all affidavits and the applicant’s submissions are sought to be made confidential within the meaning of r 2.32(1)(b) of the Rules on the basis of s 37AF of the Federal Court Act on the ground that such an order is necessary to prevent prejudice to the proper administration of justice. Suppression orders for certain paragraphs of the various versions of the statement of claim are also founded on s 37AF on the same ground.

Applicable provisions and rules

52    Rule 6.01(a) provides that if a document filed in a proceeding contains a matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that the document be removed from the Court file. Rule 29.03(2) provides that a party may apply to the Court for an order that an affidavit or part of an affidavit that contains any scandalous, frivolous, or vexatious material, or that is evasive or ambiguous, or otherwise is an abuse of the process of the Court be removed from the Court file. Rule 2.28(1)(a)(ii) and r 2.28(1)(b)(ii) facilitate the removal of such documents even after they have been accepted for filing. In substance, the parties agree the documents identified in para 3 and para 4.1 of the minute of proposed orders contain material that is one or more of scandalous, vexatious, oppressive, evasive, ambiguous or an abuse of process.

53    Division 2.4 of the Rules (as now in force) deals with custody and inspection of documents and is in the following terms.

2.31    Custody of documents

(1)    The District Registrar of a District Registry is to have custody of, and control over:

(a)    each document filed in a Registry in a proceeding; and

(b)    the records of the Registry.

(2)    A person may remove a document from a Registry if:

(a)    a Registrar has given written permission for the removal because it is necessary to transfer the document to another Registry; or

(b)    the Court has given the person leave for the removal.

(3)    If the Court or a Registrar permits a person to remove a document from the Registry, the person must comply with any conditions on the removal imposed by the Court or a Registrar.

2.32    Inspection of documents

(1)    A party may inspect any document in the proceeding except:

(a)    a document for which a claim of privilege has been made:

(i)    but not decided by the Court; or

(ii)    that the Court has decided is privileged; or

(b)    a document that the Court has ordered be confidential.

(2)    A person who is not a party may, after the earlier of the first directions hearing and the hearing, inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross-claim;

(b)    a pleading or particulars of a pleading or similar document;

(c)    an interlocutory application;

(d)    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;

Note:    Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

(2A)    A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)    a notice of address for service;

(b)    a statement of agreed facts or an agreed statement of facts;

(c)    a judgment or an order of the Court;

(d)    a notice of appeal, notice of contention or notice of cross-appeal;

(e)    a notice of discontinuance;

(f)    a notice of change of lawyer or notice of ceasing to act;

(g)    a consent to act as trustee or consent to act as liquidator;

(h)    reasons for judgment;

(i)    a transcript of a hearing heard in open Court.

(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)    Subject to subrule (3), a person may apply to a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect.

(5)    A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

(a)    is entitled to inspect the document; and

(b)    has paid the prescribed fee.

Note 1:    For the prescribed fee, see the Federal Court and Federal Circuit and Family Court Regulations 2012.

Note 2:    If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.

Note 3:    For proceedings under the Trans-Tasman Proceedings Act, see also rule 34.70.

54    Part VAA of the Federal Court Act provides for the Court to make suppression or non-publication orders. A suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise). A non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information): s 37AA. Part VAA does not limit or affect any powers that the Court has apart from that Part to regulate its proceedings or deal with a contempt of the Courts: s 37AB. Relevantly, the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate: s 23. The Court has general power to make rules not inconsistent with the Federal Court Act: s 59(1).

55    The Court has power to make a suppression order or non-publication order that prohibits or restricts the disclosure or publication of information that relates to a proceeding before the Court and is information that comprises evidence or information about evidence or information lodged with or filed in the Court (including documents): s 37AF(1)(b)(i), s 37AF(1)(b)(iv) of the Federal Court Act. The Court may make a suppression or non-publication order on the ground that the order is necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a). In deciding whether to make a suppression 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: s 37AE.

Applicable principles

56    In Porter v Australian Broadcasting Corporation [2021] FCA 863 Jagot J observed that there are a number of anomalies in the Rules and that the provisions of the Rules that permit the removal and that prevent inspection by a party or non-party may operate in a manner that has the effect of a suppression or non-publication order under the Federal Court Act. However, in the case of the Rules, unlike the Act, there is no express provision that: the Court must take into account that a primary objective of the administration of justice is to safeguard the principle of open justice as s 37AE requires; that an order specify the ground and that be ‘necessary’ on one of the grounds identified in s 37AG; that it be made for a duration that is no longer than is reasonably necessary to achieve the purpose for which it made as s 37AJ requires; or that the persons identified in s 37AH are entitled to appear and be heard on whether an order should be made: Porter at [83]-[97]. It may be added that, in the case of the Rules and not the Act, the Court may make any order considered appropriate in the interests of justice, including orders dispensing with compliance with the Rules or inconsistent with the Rules: rr 1.32, 1.34, 1.35. As a consequence of these matters, Jagot J applied the power in the Rules to remove a document from the Court file in a manner that was consistent with making an order under s 37AE of the Act, including that news publishers and another interested party were permitted to appear and be heard on whether the order for removal should be made. Her Honour made the order requested on the ground that such an order was necessary to prevent prejudice to the proper administration of justice taking into account the objective of safeguarding the public interest in the principle of open justice: Porter at [6]-[10], [98]-[115].

57    In Porter Jagot J evidently accepted that the public interest in the principle of open justice was engaged with respect to the two pleadings that were the subject of the removal orders. However, the common law principle of open justice is not necessarily always engaged in circumstances in which an application is made for removal of a document from the Court file under r 2.28 or r 2.29 or for an order that a document be confidential under r 2.32(1)(b) or r 2.32(3)(a) of the Rules. The extent to which the common law principle of open justice is engaged depends on the nature of the document filed in the proceeding and the extent to which it has been read or relied upon in open court.

Common law principle of open justice

58    Section 17(1) of the Federal Court Act provides that, except where, as authorised by the Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a judge sitting in chambers, the jurisdiction of the Court shall be exercised in open court. Section 17(2) describes the circumstances in which the jurisdiction of the Court may be exercised in chambers. The historical difference between a judge sitting in chambers and in open court and the circumstances in which the jurisdiction of courts came to be exercised ‘in chambers’ is described in Medical Board (Vic) v Meyer [1937] HCA 47; 58 CLR 62 at 93-97 (Dixon J) and in Studholme v Rawson [2020] NSWCA 76; 102 NSWLR 490 at [22]-[29] (Bell P). Originally, the exercise of jurisdiction in chambers was private in the sense that members of the public were not given admission into the judge’s chambers (or courtroom) as of right. It has not been the practice of this Court to exclude members of the public from a hearing ‘in chambers’ and all hearings are generally open to the public. In some jurisdictions the distinction between a judge sitting in chambers and in open court has been abolished. Whether sitting in chambers or in open court the Court has power to exclude the public from a sitting where its presence would be contrary to the interests of justice: s 17(4). Otherwise, s 17 reflects the common law principle of open justice: Australian Broadcasting Commission v Parish [1980] FCA 33; 43 FLR 129 at 132 (Bowen CJ).

59    Lord Shaw cited Jeremy Bentham’s explanation for the principle in Scott v Scott [1913] AC 417 at 477 as follows:

… “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” …

60    Aside from disciplining the judiciary, the principle has other important objects as Gibbs J explained, in a frequently cited passage, in Russell v Russell [1976] HCA 23; 134 CLR 495 at 520 (citations omitted).

It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view”. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure”. To require a court invariably to sit in closed court is to alter the nature of the court…

61    Further, as a Full Court (Thawley, Stewart and Abraham JJ) observed in Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; 296 FCR 272 at [84]:

Open justice facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken. …

62    The principle means that any person who wants to attend a hearing and observe what takes place in the courtroom is entitled to sit in the public gallery and do so. A person in that position is able to hear the submissions of the parties, the testimony of witnesses, the remarks and directions of the judge, the orders pronounced and the reasons delivered. But, a person in that position is generally not able to read written submissions or documents received in evidence or examine other things received as exhibits.

Right of members of the public to inspect documents in the proceeding

63    Members of the public have no common law right to inspect records of the Court: John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [29]-[31] (Spigelman CJ, Mason P and Beazley J agreeing). Court records are also not ‘public records’. The Freedom of Information Act 1982 (Cth) does not apply to documents in a proceeding because such documents relate to the exercise of judicial power and are not documents that relate to matters of an administrative nature: s 5; Kline v Official Secretary to Governor General [2013] HCA 52; 249 CLR 645 at [45] (French CJ, Crennan, Kiefel and Bell JJ); Loughnan v Altman [1992] FCA 985; 39 FCR 90 at 94-95 (Black CJ, Sweeney and Lee JJ). In the absence of rules permitting inspection, members of the public have no right to inspect court records except orders. The right to inspect orders is grounded in the public interest in the principle of open justice: see, e.g., Titelius v Public Service Appeal Board [1999] WASCA 19; 21 WAR 201 at [50], [74]-[91] (Malcom CJ), [96]-[100] (Ipp J), [110] (Wallwork J, agreeing); see, also, Smith v Haris [1996] 2 VR 335 at 350 (Byrne J). It follows that, except where permitted under the Rules, documents in a proceeding are not intended to be and are not available for inspection by members of the public: Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; 222 FCR 580 at [45]-[46] (Jacobson J).

64    The District Registrar of a District Registry has custody and control over each document filed in a Registry and the records of a Registry: r 2.31(1). A document is filed in a proceeding if it is lodged with the Court at the Registry and accepted in the proper Registry by having the seal of the Court affixed to it: rr 2.21–2.25. However, a document that is lodged with the Court may not be accepted for filing: r 2.26, r 2.27. Consequently, a document that is lodged may not have the seal of the Court affixed to it and, in that circumstance, it is not filed in the proceeding, but is in the custody of the District Registrar.

65    Rule 2.32(1) makes provision for a party to inspect any ‘document in the proceeding’ except for documents the subject of undecided claims for privilege or that are privileged or that the Court has ordered be confidential. A person who is not a party may inspect the documents in a proceeding in the categories listed in r 2.32(2) and r 2.32(2A). However, a person who is not a party is not entitled to inspect a document that the Court has ordered be confidential or is forbidden or restricted from publication to the person or a class of persons of which the person is a member: r 2.32(3). Subject to r 2.32(3), a person may apply to a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect: r 2.32(4).

66    The concept of ‘document in a proceeding’ is wider than a ‘document filed in a proceeding’. The concept extends to evidence (documents and things) in the custody of the District Registrar that relate to the proceeding such as exhibits even though evidence is not ‘filed’. Documents and things produced in response to a subpoena are also subject to separate rules about removal and return, inspection, copying and disposal: rr 24.19, 24.20, 24.21, 24.24 of the Rules.

67    There appears to be an unresolved question regarding the extent to which the entitlement of non-parties to inspect the documents listed in r 2.32(2) and r 2.32(2A) is wider than the common law principle of open justice and whether r 2.32(1)(b) and r 2.32(3)(a) provide a power to order that a document in the proceeding ‘be confidential’ which operates independently of the power to make a suppression or non-publication order in s 37AF of the Act: Saw v Seven Network (Operations) Ltd [2024] FCA 1210; 305 FCR 340 at [25], [27] (Perram J). I agree, for reasons given by Perram J, that r 2.32(2) (and now r 2.32(2A)) is broader than the common law principle of open justice would require because a document in one of the listed categories may be inspected before it has been read or referred to in open court: Saw at [25]. The principle of open justice is not engaged at the time of the filing of proceedings. It is only when relevant material is used in open court that the principle comes into play: John Fairfax Publications v Ryde Local Court at [65]. Otherwise, it is not necessary to resolve the controversy for the purposes of this matter because, for reasons given later, the common law principle of open justice is either not engaged with respect to certain documents or, if so, I am satisfied that orders for removal, confidentiality or suppression are necessary to prevent prejudice to the proper administration of justice.

68    As to a document in a proceeding that a non-party has no entitlement to inspect, the Court will generally grant leave to inspect a document (including evidence) if the document has been read or relied upon in open court: Access to Documents and Transcripts Practice Note (GPN-ACCS) at [4.3]; see also Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1 at [27] (Sackville J); Hartnell v Federal Commissioner of Taxation (No 1) [2009] FCA 230; 254 ALR 71 at [9] (Perram J) and the authorities there cited. The rationale for permitting such inspection is to preserve and give effect to the principle of open justice in the context of the modern approach to litigation in which far less evidence is given orally and parties rely extensively on written submissions and other pre-trial processes that make hearings more efficient, but less ‘public’: see, e.g., Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 at [3]-[7] (Finkelstein J). Otherwise, leave to inspect documents that have not been read or relied upon in open court will generally be refused: Universal Music (Australia) at [43].

69    Aside from the non-public nature of the documents, where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. It is common to speak of the relevant obligation flowing from an implied undertaking. Many documents lodged or filed in a proceeding, including affidavits, are subject to that implied undertaking: Hearne v Street [2008] HCA 36; 235 CLR 125 at [96]-[97] (Hayne, Heydon and Crennan JJ). Therefore, if a document subject to the implied undertaking has not been received into evidence, a member of the public should not be in a superior position to a party to the proceeding and be able to inspect and publish that document and thereby use the document for a purpose collateral to that for which it was filed in the proceeding.

70    Likewise, many documents in a proceeding may contain personal information about an individual that would be subject to the Australian Privacy Principles in the Privacy Act 1988 (Cth) in the hands of the entity that lodged, filed or delivered the documents into the custody of the Registrar. Under the Australian Privacy Principles certain entities that hold person information about another person are prevented from using or disclosing that information unless the use or disclosure is for the purpose for which it was collected or is permitted under another exception: cl 6.1 of the Australian Privacy Principles. An entity may use or disclose personal information about an individual if the use or disclosure is required or authorised by or under, amongst other things, a court order: cl 6.2(b). Although the Australian Privacy Principles may not have direct application to a non-party inspecting documents in a proceeding, they may inform the exercise of the discretion and provide a reason to refuse leave to inspect the whole or part of a document in the interests of justice: e.g., Baptist Union of Queensland — Carinity v Roberts [2015] FCA 1068; 241 FCR 135 at [36], [38]-[42] (Rangiah J). Put another way, in general, inspection of documents in a proceeding should not operate to circumvent the policy of the Privacy Act to ‘promote the recognition of the privacy of individuals with respect to their personal information’ in recognition of the ‘public interest in protecting privacy’ (s 2A(1)(a)-(aa)) by allowing the use or disclosure of personal information other than for the purpose for which it was collected or for use in the proceeding.

71    It follows that, except to the extent that a document in a proceeding has been read or relied upon in open court, inspection of that document by a person who is not a party to the proceeding would not be justified on the ground of the principle of open justice. That is so, even though inspection of the originating process and pleadings would enable the public to understand the controversy brought to the Court for resolution by it in its ordinary function as a court constituted under Ch III of the Constitution of the Commonwealth: Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; 154 FCR 293 at [29] (Rares J). And may, in the fullness of time, facilitate the principle of open justice and fair and accurate reporting of hearings in open court by news publishers.

Suppression and non-publication orders

72    Section 37AE requires the Court in deciding to make a suppression or non-publication order to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. I agree with the view Perram J expressed in Saw to the effect that the concept of ‘open justice’ in s 37AE reflects the common law understanding of that term as set out earlier in these reasons: Saw at [15]-[21]. Further, in general, an application for a suppression or non-publication order will be made in a context in which the information in question has been or will be disclosed, ‘read’ or relied upon in open court. That is, the question of whether a suppression or non-publication order should be made usually arises in a context in which the common law principle of open justice has been or will be engaged. Relevantly, s 37AG(1)(a) requires the Court to be satisfied that a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice.

73    The applicable principles are well settled and were summarised by a Full Court (Allsop CJ, Wigney and Abraham JJ) in Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 as follows:

8    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; at Rinehart v Rinehart [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

9    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].

74    In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said:

30    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133; 29 ALR 228 at 234], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

31    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics[: A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 641].

Although these observations were made regarding the former s 50 of the Federal Court Act, they are equally applicable to the current Pt VAA of that Act.

Public interest in settlement of litigation

75    As Jagot J observed in Porter, while a primary objective of the administration of justice is to safeguard the public interest in open justice it is not the primary objective because there are many other primary objectives of the administration of justice: Porter at [83]; Lee v Deputy Commissioner of Taxation at [83].

76    Section 37M of the Federal Court Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Further, the civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out in the way that best promotes the overarching purpose. Section 37N provides that the parties must conduct the proceeding (including negotiations for settlement of the dispute) in a way that is consistent with the overarching purpose. The Rules and the suppression and non-publication provisions of Pt VAA of the Federal Court Act are civil practice and procedure provisions.

77    The overarching purpose of the civil practice and procedure provisions include facilitation of the just resolution of disputes on terms agreed between the parties. Power is conferred on the Court to refer a proceeding or any part of it to mediation or other forms of alternative dispute resolution under s 53A of the Federal Court Act. There is a very significant public interest in the settlement of litigation as reflected in the overarching purpose and the parties’ obligation to conduct proceedings consistently with that purpose: see, e.g., Reynolds v JP Morgan Administrative Services Australia Limited (No 2) [2011] FCA 489; 193 FCR 507 at [30] (Rares J). That public interest extends to both interlocutory disputes and the proceedings as a whole: see, e.g., Porter at [99]-[100]. That public interest may be undermined if members of the public have access to and could report on matters which the parties have agreed should be confidential as part of the terms of their settlement: Porter at [84], [99]-[105]; McLaughlin v Glenn [2020] FCA 679 at [27] (Abrahams J).

78    Nonetheless, mere agreement that information should remain confidential does not mean that the Court is bound to accede to any proposed consent order providing for removal of a document from the Court file or for a suppression or non-publication order. If there are no circumstances other than the parties’ agreement, it may not be possible to conclude that removal or suppression or non-publication is necessary to prevent prejudice to the proper administration of justice: Porter at [106].

Summary

79    In the context of this matter and relevantly, a person who is not a party to the proceedings has a right to inspect a pleading or particulars of a pleading or similar document and an interlocutory process: r 2.32(2)(b), r 2.32(2)(c). But, a person who is not a party to the proceedings is not entitled to inspect an affidavit (whether or not read) or written submissions filed in a proceeding without leave of a Registrar: r 2.32(4).

80    An order for the removal of a document, that a document be confidential or for suppression of the contents of a document all have the effect that a member of the public will be prevented or prohibited from accessing the information contained in the document. Although the parties have agreed by the terms of a settlement agreement for orders of that kind to be made, the Court should be satisfied that such an order is necessary to prevent prejudice to the proper administration of justice taking into account that a primary objective of the administration of justice is the public interest in open justice.

81    For the purposes of considering if it is appropriate to make an order for removal, confidentiality, suppression or non-publication, irrespective of whether or not the document is one a non-party is or is not entitled to inspect under the Rules, although the Court must take into account the objective of the administration of justice to safeguard the public interest in open justice, that public interest would not be engaged unless the document has been read or relied upon in open court: Hogan at [40] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). That is, the common law principle of open justice would not justify permitting inspection of a document in category referred to in r 2.32(2), r 2.32(2A) or r 2.32(4) unless the document had been read or referred to in open court. Where a document has not been read or relied upon in open court, the question of whether an order is necessary to prevent prejudice to the proper administration of justice may then be approached from the perspective that such an order will not infringe the common law principle of open justice.

Statements of claim

The extent to which the principle of open justice was engaged

82    As already mentioned, interim orders were made under s 37AI of the Federal Court Act by consent that prohibited disclosure or publication of the substance, purport or contents of certain paragraphs of the amended statement of claim lodged on 17 June 2023, the amended statement of claim filed on 23 June 2023, the minute of proposed amended statement of claim filed on 16 October 2023 and the minute of proposed second further amended statement of claim filed on 30 November 2023 until further order of the Court. An order was also made to the effect that the affidavit of Mr Harmer affirmed 16 October 2023 be confidential until further order. Although these orders were expressed to be interim orders, in effect, the continuation of them by the order made on 7 February 2024 was an interlocutory order made under s 37AF on the ground that it was necessary to prevent prejudice to the proper administration of justice that the relevant paragraphs of the documents remain confidential until the suppression applications with respect to them were determined and judgment delivered. An order of that nature is similar to making an order to close the court so as to hear an application for suppression or non-publication: e.g., Livingstone, in the matter of NewSat Ltd (in liq) [2022] FCA 1559 at [4] (Stewart J).

83    The interim suppression orders were made before the hearing on 6 and 7 February 2024 with respect to all documents except the minute of proposed second further amended statement of claim filed on 30 November 2023. However, by the time of the hearing the applicant had abandoned all earlier versions of the statement of claim and sought leave to amend in terms of the document filed on 30 November 2023. As already mentioned, the respondents amended their suppression applications to include the minute filed on 30 November 2023. Further, the fourth respondent applied for an order that the Court be closed. That application was not pressed at the hearing on the understanding that the existing interim suppression orders covered the same paragraphs as the minute filed on 30 November 2023 and that the hearing in open court would be conducted without reading out any of the allegations the subject of an application for a suppression order.

84    The interlocutory application for leave to amend the statement of claim in terms of the minute filed on 30 November 2023 is a document that a person who is not a party to the proceeding may inspect under r 2.32(2A). In this case, the minute of proposed second further amended statement of claim was filed separately from the interlocutory application for leave to amend. In my view, the minute filed on 30 November 2023 was not part of the interlocutory application to which r 2.32(2A) applies. Further, as leave to amend in terms of the minute filed on 30 November 2023 has not been and will not be granted, it was not a pleading to which r 2.32(2) applies. Therefore, the minute filed on 30 November 2023 is not a document in the proceeding that a non-party is entitled to inspect without leave. Otherwise, the minute filed on 30 November 2023, except for the paragraphs the subject of the interlocutory suppression order, was read or relied upon in ‘open court’. As already mentioned, although the court was not closed, the hearing was conducted with respect to the confidential parts of the document, in effect, as if those paragraphs were ‘read’ or relied upon in ‘closed court’.

85    In the case of the minute of proposed further amended statement of claim filed on 16 October 2023, while an interlocutory application was filed the same day for leave to amended in terms of the minute, again the minute was filed separately. Again, in my view, the minute was not part of the interlocutory application to which r 2.32(2A) applies. The minute filed on 16 October 2023 was also abandoned in favour of the minute filed on 30 November 2023. Leave to amend in terms of the minute filed on 16 October 2023 was not and will not be granted and, therefore, it is also not a pleading to which r 2.32(2) applies. In my view, it is not a document that person who is not a party to the proceedings is entitled to inspect under r 2.32(2) or r 2.32(2A).

86    As for the amended statement of claim lodged on 17 June 2023, as already mentioned, that document was not lodged within the time stipulated for leave to amend and, therefore, it was not a ‘pleading’ to which r 2.32(2) applies. Further, it was lodged in error and abandoned and has been removed from the Court file. The amended statement of claim lodged on 23 June 2023, was ‘filed’ within the extended time stipulated for leave to amend and, therefore, that document was a ‘pleading’ within the meaning of r 2.32(2) and a document that a non-party would normally be entitled to inspect. However, that statement of claim was also abandoned in favour of the minute of 16 October 2023 and then the minute of 30 November 2023. Also, both the amended statement of claim lodged on 17 June 2023 and the amended statement of claim filed on 23 June 2023 were prepared in a form that permits the paragraphs of the statement of claim filed on 1 June 2022 that are the subject of the suppression order made on 2 November 2023, as varied on 15 November 2023, to be read. Therefore, parts of these documents are prohibited from disclosure under the existing orders of the Court. Therefore, while the amended statement of claim filed on 23 June 2023 is a ‘pleading’, it must be regarded as a document that a person who is not a party to the proceeding is prohibited from inspecting under r 2.32(3)(b).

87    Except for the interlocutory applications for suppression orders, none of the amended statement of claim lodged 17 June 2023, amended statement of claim filed 23 June 2023 or minute of proposed amended statement of claim filed 16 October 2023 was the subject of a contested application heard in open court. The contents of these documents were not ‘read’ out in open court, but the paragraphs the subject of the suppression and non-publication applications were referred to in submissions. Again, although the court was not closed, in effect, the suppressed allegations were not ‘read’ or referred to in open court.

88    It follows that, while the hearing of the interlocutory applications took place in open court, importantly, the hearing was conducted in such a manner as to preserve the confidentiality of the allegations the subject of applications for suppression orders. As the parties have now agreed to resolve all the interlocutory applications by agreement, the common law principle of open justice does not require that a member of the public inspect the documents that were the subject of the unresolved applications for suppression orders. Members of the public and news publishers were able to attend the hearing of the interlocutory applications and report on that hearing including the submissions about the reasons for and against making suppression or non-publication orders. The common law principle of open justice does not require that a member of the public be able to inspect documents in the proceeding that were not otherwise ‘read’ or relied upon in a hearing in open court.

89    The position with respect to the minute filed on 30 November 2023 is different. In my view, the principle of open justice is engaged with respect to the parts of that document that were read out and relied upon in open court, but not the parts that were kept confidential during the hearing. A person who is not a party to the proceeding should be entitled to apply for leave to inspect the parts of the minute that were exposed in open court.

Removal from the Court file

90    The fourth respondent made an interlocutory application for an order that the amended statement of claim filed on 23 June 2025 be removed from the Court file under r 6.01 and r 2.28(1)(a)(ii) and (or) r 2.28(1)(c) of the Rules. All respondents also made interlocutory applications for suppression orders with respect to certain paragraphs of that document and the minute of proposed further amended statement of claim filed on 16 October 2023. In substance, the parties all now agree that an order for removal of those documents should be made under r 6.01 and r 2.28(1)(a)(ii) of the Rules. In my view, in the circumstances, there is no reason for not making that order. The documents were abandoned. For the reasons already given, the common law principle of open justice does not require that a member of the public be able to inspect any part of them.

91    As already mentioned, the minute of proposed second further amended statement of claim filed on 30 November 2025 is in a different category as it was pressed and was the subject of the interlocutory application for leave to amend the statement of claim heard on 6 and 7 February 2024. All respondents also made interlocutory applications for suppression orders with respect to certain paragraphs of that document. In substance, the parties also now agree that the document should be removed from the Court file under r 6.01 and r 2.28(1)(a)(ii) of the Rules. In my view, it is not appropriate to accede to the parties’ request because it would undermine the principle of open justice and suppression of the whole document is not necessary to prevent prejudice to the proper administration of justice.

Confidentiality orders

92    In the alternative to removal, the parties request that the Court order that the minute filed on 30 November 2023 be confidential within the meaning of r 2.32(1)(b) of the Rules on the ground that it is necessary to prevent prejudice to the proper administration of justice. As already mentioned, suppression of the whole document is not necessary.

93    However, for the following reasons, it is necessary to prevent prejudice to the proper administration of justice that the parts of the minute filed on 30 November 2023 that were not ‘read’ or relied upon in open court should remain confidential and not available to be inspected by a person who is not a party to the proceeding.

(1)    This is not a case where the parties have merely agreed to a suppression or non-publication order as a term of a settlement agreement. The respondents opposed the amendments to the statement of claim on bona fide grounds. The respondents also applied for suppression orders on bona fide grounds.

(2)    Neither the application to amend nor the application for suppression orders has been or will be determined because the interlocutory applications and the proceedings have been settled.

(3)    No determination has been or will be made to the effect that the suppressed allegations disclose a reasonably arguable cause of action or are otherwise sustainable.

(4)    No defence has been or will be filed so as to put forward the respondents’ defence or case in answer to the suppressed allegations.

(5)    There has not been nor will there be judicial determination of any of the issues proposed to be raised in the proceeding.

(6)    The allegations were not ‘read’ or relied upon in open court.

In these circumstances, the public interest in the settlement of litigation is overwhelmingly in favour of maintaining the confidentiality of the suppressed allegations.

94    Nonetheless, Fairfax submits that there is no utility in an order preventing disclosure and publication of the allegations in circumstances in which there has already been significant publication in news articles of information relating to the allegations in the proceeding. In support of that submission Fairfax relies on the affidavit of Ms Alick. That affidavit ran to about 100 pages and annexed numerous news publisher articles. Many of these were not legible. Fairfax indicated that it would submit a USB drive with ‘high resolution’ versions of the annexures after the hearing. A high-resolution version of Ms Alick’s affidavit was provided to the Court, but there is no indication that it was done with the consent or agreement of the parties or that it may form part of the evidence upon which the Court is to found its decision. However, as no objection was taken to the proposal that the document be provided to the Court, I have had regard to the high-resolution version of Ms Alick’s affidavit. It is more legible, but many articles remain unclear in part.

95    In response, the moving parties relied on the affidavit of Mr Coltrona sworn 13 December 2024. That affidavit exhibited a USB drive running to 831 pages of news publisher articles. It excludes the articles annexed to Ms Alick’s affidavit. Mr Coltrona deposes to having read and reviewed all the relevant articles (including those annexed to Ms Alick’s affidavit). He prepared a table in which he set out the various paragraphs of the amended statement of claim lodged on 17 June 2023, amended statement of claim filed on 23 June 2023, the minute of proposed statement of claim filed on 16 October 2023 and the minute of second further amended statement of claim filed on 30 November 2023 that the parties propose to keep confidential and the extent to which there has been publication of information about those allegations in one or more of the articles. The accuracy of Mr Coltrona’s table was not questioned and I accept Mr Coltrona’s evidence. The effect of that evidence is that there has been a degree of publication of certain of the allegations that the parties now want to suppress indefinitely. However, there has not been publication of the vast majority of the allegations. A review of the articles annexed to Ms Alick’s affidavit also indicates that there has not been substantive publication of the allegations that were the subject of the suppression order made on 2 November 2022, as varied, with respect to the statement of claim filed on 1 June 2022.

96    In my view, the public interest in the timely settlement of litigation prevails. There is utility in giving effect to the parties’ settlement agreement even though there has been some disclosure or publication of the allegations sought to be suppressed: Porter at [113]. Interference with the public interest in open justice will be mitigated because there will be an order requiring the parties to file a redacted version of the minute of proposed further amended statement of claim filed on 30 November 2023. Members of the public will be entitled to apply for leave to inspect the redacted document under r 2.32(4) of the Rules. Further, disclosure and publication of information obtained from an independent source or that involves re-publication of information that is already in the public domain will not be prohibited by an order that makes the minute of second further amended statement of claim confidential.

Suppression or non-publication orders

97    The parties also propose that the Court make suppression orders with respect to certain paragraphs of the amended statement of claim lodged on 17 June 2023, the amended statement of claim filed on 23 June 2023, the minute of proposed further amended statement of claim filed on 16 October 2023 and the minute of proposed second further amended statement of claim filed on 30 November 2023.

98    It is not ‘necessary’ to make a suppression or non-publication order with respect to any of these documents except for the amended statement of claim lodged on 17 June 2023. The other documents will be removed from the Court file or ordered to be confidential which will have the practical effect of an order prohibiting disclosure or publication of those documents until further order of the Court. Due to the interim suppression orders and the manner in which the hearing was conducted on 6 and 7 February 2024 there has not been disclosure of the suppressed allegations in those documents to the public through the proceeding.

99    Regarding the amended statement of claim lodged on 17 June 2023, as already mentioned, the Registry provided a copy of that document to Mr Prior in response to an access request. For the reasons given earlier, that document was not a pleading and, therefore, it was not a document that a person who is not a party to the proceeding was entitled to inspect without leave of the Court. Mr Prior should also not have been provided with that document because it was prepared in a form in which the allegations that were the subject of the interlocutory suppression order made with respect to the statement of claim filed on 1 June 2022, although struck through, were able to be read. That is, in substance, disclosure of that document disclosed information that was suppressed by the order of the Court made on 2 November 2022. Regrettable as it is that the document was provided to Mr Prior in error, he was, fortunately, a person to whom the applicant had provided the statement of claim filed on 1 June 2022. Consequently, the suppressed allegations were not disclosed to a person who was not already in possession of them.

100    Mr Prior, as a person legitimately in possession of both documents, is understandably concerned to ensure that any news article of his that may be published is not in breach of any existing suppression orders and that any continuation of the suppression orders is in terms that make plain precisely what can and cannot be published. As already mentioned, Mr Prior drew to the Court’s attention certain aspects of the existing orders that render unclear what allegations may be published because there are aspects of the suppressed allegations that overlap with allegations that are not suppressed. I accept that there is a lack of clarity in the existing orders and that problem would be compounded if final suppression orders were made in the form the parties propose.

101    The parties also propose orders in a form that would prohibit disclosure or publication of ‘the substance, purport or contents of the information’ contained in certain paragraphs of the amended statement of claim lodged on 17 June 2023. That formulation is too wide in its scope for four reasons. First, a person may fall foul of the order by publishing non-suppressed allegations contained in the same document (or the minute filed on 30 November 2023) where there is overlap in the ‘substance, purport or contents’ of the non-suppressed allegations with that of the suppressed allegations. Second, in its terms, it may capture disclosure or publication of information that is obtained from a source that is not ‘information that comprises evidence or information about evidence’ or ‘information lodged with or filed in the Court’, but information obtained from an independent source of the same or similar information. Third, there has already been a degree of publication of the suppressed allegations and, therefore, re-publishing or using an existing public source should not be prohibited or restricted. Fourth, a person who is not aware of the substance, purport or contents of the information in the suppressed paragraphs has no way of knowing if disclosure or publication of information is or is not prohibited. In short, I am not satisfied that the Court has power to make an order of that width under s 37AF(1)(b). In any event, an order of that width is not ‘necessary to prevent prejudice to the proper administration of justice’ for the purposes of s 37AG(1)(a) of the Federal Court Act.

102    Nonetheless, the error in allowing Mr Prior to inspect the amended statement of claim lodged on 17 June 2023 would be compounded if further disclosure or publication of the contents of that document were permitted. In my view, suppression of that document is prima facie necessary to prevent prejudice to the proper administration of justice because inspection was permitted without leave of the Court when leave was required. Further, leave to inspect that document would have been refused because it reproduced allegations that were the subject of the suppression order made on 2 November 2022, as varied. While the document has been removed from the Court file, as it remains in the possession of Mr Prior, a suppression order is necessary to prevent prejudice to the proper administration of justice. But the form of that order should take into account the concerns Mr Prior has expressed regarding clarity, that there may be independent sources of the information, and that there has already been a degree of publication of the allegations.

103    Unfortunately, the lack of clarity Mr Prior has highlighted also effects the form of the order made on 2 November 2022, as varied. For the reasons given in Pigozzo (No 1), it remains necessary to prevent prejudice to the proper administration of justice that the applicable paragraphs of the statement of claim filed on 1 June 2022 be subject to a suppression order until further order of the Court. However, the form of the order should be varied to remove any uncertainty concerning the allegations that are permitted to be published.

104    Taking all these matters into account, I am of the view that the suppression order made on 2 November 2022, as varied, and the interim suppression order made on 17 June 2023 should be discharged and substituted with suppression orders in a form that has the effect prohibiting disclosure of the whole of the documents except as permitted by the order. Disclosure of information in all non-supressed paragraphs will be permitted as will be information obtained from independent sources or other documents in the proceeding for which inspection is permitted.

Affidavits

The extent to which the principle of open justice was engaged

105    At the hearing of the interlocutory applications the applicant ‘read’ certain affidavits. As is usual, the affidavits were not ‘read out’ in open court. When an affidavit is ‘read’ in open court it is taken to have been read out when the party that wants to rely on the evidence in the affidavit indicates that the affidavit is to be read in support of that party’s case.

106    Before an affidavit is ‘read’ an objection may be taken to the admissibility of all or part of the proposed evidence in the affidavit. If an objection is upheld that part of the affidavit is not taken as ‘read’ and is struck-out of the affidavit. It is as if an objection had been taken to the evidence given orally and the evidence not received. It is common, in the interests of efficiency, for the parts of an affidavit to which objection has been taken to be received provisionally and for a ruling to be made on admissibility and reasons given as part of the reasons given on the substantive application. Where a ruling is made upholding an objection in the judgment the relevant paragraph of the affidavit is taken not to have been read or received in evidence. Where a ruling is made that part of an affidavit is not admissible either before it is read or in the reasons for decision, in general, the principle of open justice would not require that the parts of an affidavit struck-out be made available for inspection by a member of the public because that information would not form part of the evidence given in open court.

107    In this case, the respondents objected to numerous paragraphs of the affidavits upon which the applicant relied at that hearing. The procedure adopted was to receive the affidavits provisionally, hear the argument on the objections and reserve the ruling for the reasons on the substantive interlocutory applications. Therefore, no ruling was made in open court at the hearing.

108    The parties have now agreed that the various objections should be upheld. Accordingly, there is no reason for not making the requested orders striking-out the applicable parts of the affidavits. The common law principle of open justice does not require that members of the public should be able to inspect those parts of the affidavits that have been struck-out. The principle of open justice also does not require that affidavits that were not read by any party at the hearing or in the proceeding should be able to be inspected.

Removal of affidavits read

109    The parties request removal of the affidavits of Mr Harmer affirmed 15 November 2023, 16 November 2023, 24 November 2023 (31 paragraphs), 22 January 2024 and 4 February 2024, the affidavits of Mr Pigozzo affirmed 15 November 2023 and 22 January 2024, and the affidavit of Mr Woodhouse affirmed 16 November 2023 under r 29.03(1) and r 2.28(1)(b)(ii) of the Rules. However, each of those affidavits was read at the hearing on 6 and 7 February 2024 and, subject to the paragraphs that the parties have agreed should be struck-out, were received into evidence.

110    It is not necessary to prevent prejudice to the proper administration of justice that the whole of the affidavits be removed from the Court file or suppressed. However, it is also not a requirement of the principle of open justice that a person who is not a party to the proceeding inspect the parts of the affidavits that have been struck-out. The parts struck out have, in effect, been ‘removed’ from the affidavits that were ‘read’ out in open court.

111    To give effect to the parties’ settlement agreement and the principle of open justice, there will be an order that the affidavits be confidential for the purposes of r 2.32(1)(b) and an order that the parties file redacted versions of the affidavits ‘read’ at the hearing on 6 and 7 February 2024 with the parts struck-out removed. A person who is not a party to the proceeding will be entitled to make an application to inspect the redacted affidavits under r 2.32(4) of the Rules.

Removal of affidavits not read

112    On 2 February 2024 the first, second and fifth respondents filed a minute of proposed orders in which those respondents sought the removal of the whole or parts of affidavits that the applicant had filed in the proceeding under r 29.03(2) and r 2.28(1)(b)(ii) of the Rules. Those respondents filed an amended minute of proposed orders on 5 February 2024. The affidavits of Mr Harmer affirmed 16 October 2023, 24 November 2023 (47 paragraphs), 27 November 2023 and 30 November 2023 were the subject of that minute and none of those affidavits was read at the hearing on 6 and 7 February 2024 or at any other hearing. The parties now agree, in effect, that the requested orders should be made on the informal application with respect to the whole of the affidavits even though the orders sought only related to certain paragraphs of three of those affidavits. The parties also agree that two affidavits the first, second and fifth respondents filed (affidavits of Mr Parkinson affirmed 24 November 2023 and of Mr Sharpe sworn 24 November 2023) also be removed from the Court file on the same grounds. These latter affidavits were evidently filed in response to Mr Harmer’s affidavit of 24 November 2023 and were not read at the hearing on 6 and 7 February 2024 or at any other time.

113    In substance, the parties are in agreement that all these affidavits contain scandalous, frivolous or vexations or evasive or ambiguous material or otherwise are an abuse of the process of the Court. As none of the affidavits was read, the affidavits the applicant filed were the subject of a bona fide application for removal and the affidavits the respondents filed were responsive to certain of those affidavits, the common law principle of open justice does not require that a person who is not a party to the proceeding be entitled to inspect any of those documents. It is appropriate that affidavits that do not comply with r 29.03(1) be removed from the Court file. It is not necessary for the Court to determine the merits of the interlocutory application for removal if the parties have agreed that the affidavits in question are of that character. Therefore, with respect to affidavits that were not read, it is appropriate that an order be made to remove them from the Court file. As the affidavits will be removed from the Court file, an order that they ‘be confidential’ is not necessary to prevent prejudice to the proper administration of justice, but, the electronic Court file will identify the affidavits as ‘voided’ and ‘suppressed’.

Applicant’s written submissions

114    For the same reasons that there will not be an order for removal of the minute of second further amended statement of claim but there will be an order that the document be confidential, there will be an order that the applicant’s written submissions dated 22 January 2024 be confidential for the purposes of r 2.32(1)(b) and r 2.32(3)(a) of the Rules, but not an order for removal.

Some observations about removal of documents from the Court file

115    The Court no longer maintains paper or hardcopy Court files. The Court maintains an electronic Court file. Documents are lodged through the Court’s eLodgment facility. An electronic record of documents that are lodged and accepted for filing is maintained digitally. The electronic records of documents accepted for filing are accessible to a party to the proceeding who is registered through the Commonwealth Courts Portal.

116    When the Court kept hardcopy Court files a document that was ‘removed’ from the Court file was marked as voided and removed from the physical file. The document was not destroyed or returned to the party that had ‘filed’ the document unless an order to that effect was made. Certain documents of a confidential nature were placed into a sealed envelope and marked and identified as confidential and not to be opened or inspected without a Court order. The envelopes were stored in the proper Registry.

117    A document that has been ‘filed’ through eLodgment that is ordered to be ‘removed’ from the Court file is ‘removed’ virtually in the sense that the electronic record of that document is no longer accessible through the Commonwealth Courts Portal. The electronic record remains accessible to the Registry but is stored in a separate folder and identified as ‘voided’ and, if confidential, as ‘suppressed’. A notation can also be placed within the records maintained by the Registry to the effect that the document was removed from the Court file by an order of the Court and that it is not to be inspected without an order of the Court.

118    The orders for removal of the documents from the Court file will be made to reflect that the Court file is an electronic file and that documents removed are ‘voided’ and ‘suppressed’ with a notation in the Court’s records to indicate that an order was made for removal and that the document is not to be inspected without an order of a Judge of the Court.

Disposition

119    For the foregoing reasons orders will be made substantially in terms of the parties’ minute of proposed orders. The orders made will give effect to the object of the parties’ agreement and the public interest in the settlement of litigation balanced against the public interest in the principle of open justice.

Associate:

Dated:    18 September 2025

SCHEDULE OF PARTIES