Federal Court of Australia

Hyland v Havas Media Australia Pty Ltd [2025] FCA 1562

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 2.32(3)(b) of the Federal Court Rules 2011 (Cth), the originating application and concise statement filed on 10 June 2025 in this proceeding be restricted from publication to persons other than parties to this proceeding.

2.    Pursuant to s 37 AF of the Federal Court of Australia 1976 (Cth) (the Act) and on the ground referred to ins 37AG(1)(a) of the Act, there by no disclosure, by publication or otherwise, of the originating application and concise statement filed by the applicant on 10 June 2025 at 12.47.

3.    Order 1 and 2 do not prevent disclosures to and between the following authorised persons:

(a)    Judges of this Court;

(b)    necessary Court staff (including transcription service providers);

(c)    the parties;

(d)    legal representatives of the parties instructed in this proceeding;

(e)    witnesses or proposed witnesses in the proceeding;

(f)    Commonwealth officers acting in the course of their duties; and

(g)    judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding.

4.    Order 2 does not prevent disclosure of information referred to in that order by a Commonwealth officer acting in the course of their duties.

5.    Order 2 operates throughout the Commonwealth of Australia.

6.    Order 2 operates for two years or until further order.

7.    No person is to be allowed to access the originating application and concise statement on the court file until further order.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The respondent seeks various orders with respect to the suppression, non-publication and/or removal of the applicant’s originating application and concise statement filed on 10 June 2025 from the court file. This is in a context where there has been a third-party access request to those documents.

2    The applicant was previously employed in the role of Chief Executive Officer at Havas Media Australia Pty Ltd (the respondent). This proceeding settled before the first case management hearing. As part of that resolution, a confidential deed was executed by the parties on 15 July 2025 and orders made in chambers on 15 July 2025 dismissing the proceeding.

3    The applicant has no attitude to the application. The access applicant was informed of this application. As the matter was resolved before the first case management hearing, an inquiry was made as to whether the access applicant sought leave to access the documents, the basis for it, and if so, whether they sought to be heard on this application. No response has been received.

Consideration

4    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) are well settled. They were summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [8]-[9] 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]; Rinehart v Rinehart at [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].

5    The onus is on the applicant to persuade the Court that an order should be made.

6    Applications on similar bases have been made in recent times, with differing outcomes. That reflects that each case must depend on its own facts. The question whether an order is necessary will always depend on the particular circumstances of the case: see e.g. Saw v Seven Network (Operations) Ltd [2024] FCA 1210; Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 (Saw (No 2)); Patterson v Westpac Banking Corporation [2024] FCA 629; Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 (Patterson (No 2)). The respondent filed an affidavit in support of the application. It is inappropriate and unnecessary to recite the details of its content.

7    In that context I make the following observations.

8    First, given the timing of the settlement was before the first case management hearing, the documents sought are restricted: Federal Court Rules 2011 (Cth) r 2.32(2). Accordingly, to access the documents, leave is required. Leave can be refused, but that does not exhaust the utility of this application. As I observed in McLaughlin v Glenn [2020] FCA 679 (McLaughlin) at [14], “there is utility in considering the position in a global manner now that the proceedings have settled, recognising the possibility of future access applications: Valentine v Freemantlemedia Australia Pty Ltd [2013] FCA 1293 (Valentine) at [11]”. That is similarly apt in this circumstance.

9    Second, the timing of the settlement being before the first case management hearing also means the Court has not had to adjudicate on any of the issues in the proceeding, save for the non-publication application: see Patterson (No 2) at [23]; Saw (No 2) at [4]-[5].

10    Third, given the timing, there has been no response to the pleadings. If access was granted, the documents would, on any account, be an incomplete position: McLaughlin at [30]. The evidence establishes that the respondent would have challenged many of the matters in the concise statement. If access to the documents is granted in those circumstances, the early settlement of the proceeding has the consequence, on the evidence, that the respondent would be put at a disadvantage. Further, the agreement is such that the respondent would be inhibited in their ability to ensure balanced or accurate reporting can be undertaken. Publication would subvert the settlement.

11    Fourth, the agreement reached between the parties included clauses as to confidentiality.

12    Fifth, in McLaughlin, I observed at [27]-[28]:

[27]    There is an undoubted very significant public interest in the settlement of litigation: Reynolds at [30]. These proceedings have been settled by agreement at an early stage, which as Mortimer J in Valentine at [13] observed is an outcome the Court strives to achieve. Here the parties have achieved finality through agreement which may be undermined if a third party has access to and could report on matters which the parties seek to keep confidential.

[28]    In Oldham (No 2), Mortimer J observed at [30]:

Second, the settlement of the proceeding strengthens the case to refuse access. In my opinion, and even in the absence of evidence about the precise terms of settlement of this proceeding, it would be inimical to the negotiation process which leads to the settlement of a proceeding in this Court, its discontinuance without judicial pronouncement of any kind, and the accompanying closing of the Court’s file with no further proceedings in open court, for a sensitive document such as the AHRC Complaint to be released over an applicant’s opposition. It would not be unusual for parties (not just applicants) in proceedings such as this to have as one of the motivations for settlement a desire to keep from the public gaze detailed factual allegations of the kind which are frequently set out in complaints made to the Commission. The Court should be mindful not to frustrate these consequences of settlement which may be in the contemplation of parties when they agree to resolve a proceeding by agreement.

13    In that context, there is significant public interest in the settlement of litigation. 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 v Australian Broadcasting Corporation [2021] FCA 863 (Porter) at [84], [99]-[105]; McLaughlin at [27]. Allowing third party access to the documents will erode public confidence in private bargains being maintained in circumstances where settlement is reached at an early stage in the proceeding: e.g. Patterson (No 2) at [21].

14    I am satisfied in this case, pursuant to s 37AF and s 37AG(1), that an order is necessary to prevent prejudice to the proper administration of justice.

15    That said, I do not accept the respondent’s submission to remove the originating application and concise statement from the court file. In my view, it is neither appropriate nor necessary to do so. The circumstances in Porter are different from those in this case: see e.g. [100]-[101]. Although in Porter, Jagot J made the order for removal, that fact should not be taken out of context.

Associate:

Dated:    11 December 2025