Federal Court of Australia

Gladiator Resources Limited v Price [2025] FCA 1566

ORDERS

THE COURT ORDERS THAT:

1.    The application for suppression orders is dismissed.

2.    The applicant is to pay the respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    By an amended interlocutory application dated 1 October 2025, Gladiator Resources Limited (ACN 101 026 859) (Gladiator), seeks suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act), in relation to the following documents:

(a)    Statement of Claim dated 24 June 2025 (SOC);

(b)    Defence dated 19 September 2025;

(c)    affidavit of Marina Olsen affirmed on 12 September 2025 and the annexure to that affidavit;

(d)    submissions of the respondent in support of his security for costs application dated 30 September 2025;

(e)    affidavit of Nandan Subramaniam affirmed on 30 September 2025;

(f)    submissions of the applicant in support of its suppression application dated 9 September 2025;

(g)    affidavit of Matthew Boysen sworn on 12 September 2025;

(h)    submissions of the respondent on the suppression application dated 1 October 2025;

(i)    submissions of Nationwide News Pty Ltd on the suppression application dated 9 October 2025;

(j)    affidavit of David Ross affirmed on 9 October 2025; and

(k)    the transcript of the hearing of this application.

2    I note items (d) and (e) relate to an application not moved on. The affidavit was not read, and the submissions not relied on. They are restricted documents: see r 2.32 of the Federal Court Rules 2011 (Cth).

3    The orders are sought on the basis that suppression is necessary to: (1) prevent prejudice to the proper administration of justice pursuant to s 37AG(1)(a); and (2) protect the personal safety of Gladiator’s officers and families pursuant to s 37AG(1)(c) of the Act.

4    The applicant relies on the affidavit of Mr Matthew Boysen sworn on 12 September 2025 (Boysen Affidavit) and the annexures to that affidavit and the affidavit of Ms Marina Olsen, the applicant’s solicitor, affirmed on 12 September 2025 (Olsen Affidavit) and the annexure to that affidavit.

5    The respondent submitted the applicant has not established any basis for the orders sought. The respondent relies on the affidavit of Nandan Bharadwaj Subramaniam, the respondent’s solicitor, affirmed on 30 September 2025.

6    Nationwide News Pty Ltd (Nationwide) appeared at the hearing of the suppression application pursuant to their right to do so: s 37AH(2) of the Act. They opposed the suppression orders extending to pleadings, evidence and submissions filed in these proceedings.

Factual overview

7    These proceedings commenced on 25 June 2025 by SOC. Gladiator is a medium size mining company listed on the Australian Securities Exchange (ASX) since 22 June 2006. In the SOC, Gladiator alleges that the respondent, Mr Andrew Price, has engaged in a campaign of publications about Gladiator that were misleading or deceptive pursuant to ss 1041E(1) and 1041H of the Corporations Act 2001 (Cth) and constitute injurious falsehoods. Each of the publications are listed in Schedule A to the SOC, and are summarised by the applicant to fall within the following categories, Gladiator: (1) is a fraudulent company and is not a legitimate business; (2) is involved in illegal practices and criminal activity; (3) is the subject of regulatory or criminal investigations; (4) its shares are the subject of “pump and dump” practices; (5) is in financial distress; (6) does not comply with its obligations under the Corporations Act and/or the ASX Listing Rules; (7) its board (including the Chair, Mr Boysen) is not competent; and (8) its non-executive director and Chair, Mr Boysen, is under regulatory investigation and has engaged in corporate misconduct and corporate crime.

8    The applicant claims that each of Mr Price’s statements identified in Schedule A to the SOC are false. Gladiator seeks compensation on the basis that it has suffered reputational loss and financial loss because of Mr Price’s conduct. In respect of the financial loss, the applicant claims these statements have prevented Gladiator from being able to pursue certain commercial and business transactions.

9    The SOC also alleges that Mr Price has an unstable and personally hostile obsession with Gladiator’s Chair, Mr Boysen, where Mr Price regularly makes threatening, intimidatory and harassing posts via his X account. It is alleged this conduct has continued since the SOC was filed.

10    In the Defence, Mr Price, inter alia, denies or does not admit the assertions made in the SOC, and pleads that the posts were expressions of and informed by genuinely held opinions.

Relevant principles

11    The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of 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].

12    The Full Court also emphasised at [29] the importance of the principle of open justice in the context of non-publication orders:

… as s 37AE makes clear, the public interest in open justice is a primary consideration in deciding whether to make a suppression or non-publication order. The principle of open justice is “one of the overarching principles in the administration of justice” which “lies at the heart of the exercise of judicial power as part of the wider democratic process”: Minister for Immigration and Border Protection v Egan [2018] FCA 1320 (Egan) at [4]. The principle involves justice being seen to be done. While the principle is not an “absolute concept”, an order restricting the ordinary open justice approach is “not lightly made”: Egan at [4].

13    The onus is on the applicant to persuade the court that an order should be made.

14    As explained the application is on two bases.

15    As to the first, it may be accepted the authorities recognise that suppression may be necessary to prevent prejudice to the proper administration of justice on the basis the information sought to be suppressed is confidential and commercially sensitive: see e.g. Motorola Solutions, Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 (Motorola) at [7]-[9], endorsed by the Full Court in Steelforce Trading Pty Ltd v Parliamentary Secretary to the Minister for Industry Innovation and Science (No 2) [2018] FCAFC 47 at [4]; In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd [2020] FCA 193 at [367]; Porter v Australian Broadcasting Corporation [2021] FCA 863 at [85]; Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35].

16    However, it is important to consider the basis of such an order. In Motorola, Perram J at [9] explained:

There are cogent reasons for this which have variously been described in those cases, but they are generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit. That said, it is important to recall that the order must be necessary to protect the administration of justice. It can readily be imagined that a carte blanche approach to applications for s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court. As I have explained at [6(6)] of these reasons above, the safeguarding of that interest as a primary objective of the administration of justice is a mandatory consideration for the Court. Particularly is that so in cases such as the present, where the Agreement, and its interpretation, may become a central plank in the ultimate resolution of the proceeding, and thus, to the intelligibility of future reasons delivered by the Court.

17    The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis, by itself, to suppress its publication: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [9]. Generally, to obtain a suppression order requires demonstrating that a party would be “seriously compromised or adversely affected if confidentiality was not maintained”: Clark v Digital Wallet Pty Ltd [2020] FCA 877 (Clark)  at [26], quoting Re Japara Holdings Pty Ltd [2010] VSC 403 (Japara) at [10]. An important factor is the currency of any commercial information: Australian Competition and Consumer Commission v Emma Sleep GmbH (Non-publication) [2025] FCA 1027 at [18].

18    As to the second, regarding whether the order is necessary to protect the safety of a person, Nettle J In AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202 discussed what is required to establish this basis (in respect of s 77RF(1) of the Judiciary Act 1903 (Cth)). His Honour noted the statutory criterion is “not one of necessity to prevent harm to a person but of necessity to protect the safety of a person” and “safety is a protean conception” distinguishable from harm: at [15]. As “the idea of safety invariably entails the assessment of risk”, Nettle J observed at [15] that the criterion will be made out if

upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable.

19    It is therefore not necessary the court be satisfied on the balance of probabilities, absent the order sought, the person would suffer harm. In Roberts-Smith v Fairfax Media Publications [2019] FCA 36, Besanko J observed at [16]-[17] that necessity for an order will be informed by the nature, imminence and degree of the likelihood of harm occurring to the relevant person. Therefore, if the prospective harm is very severe, it may be more readily concluded that the order is necessary even if the risk is a possibility as opposed to a probability. There must at least be a demonstrable or real risk to the safety of an applicant for a suppression order (or another person) if the order is not made (or extended): see C7A/2017 v Minister for Immigration and Border Protection (No 2) [2020] FCAFC 70 at [16].

20    Mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11]; Ogawa v President of the Human Rights Commission [2022] FCAFC 160; (2022) 294 FCR 221 at [27].

Consideration

21    As can be seen from the breadth of the application (see [1] above), suppression orders are sought on almost all documents presently filed in the proceedings, including those relating to the substantive hearing and documents which had not been filed at the time the applicant first filed its application. It would leave the originating application as one of the only unrestricted documents not the subject of the order. Further, the applicant’s submissions note the suppression orders presently sought are based on the present status of the proceedings, where the applicant expects to “seek further suppression orders in relation to evidence filed in the future”.

22    As a preliminary observation the suppression orders are of such breadth that in practical terms, they would render the conduct of the proceedings suppressed. The originating application provides no information as to the content of the claim. Suppression orders are significantly more restrictive than non-publication orders. It is difficult to understand how a trial could be conducted, or a judgment written. The applicant denied that characterisation of the consequences of the orders sought if granted, submitting that it was not seeking a closed court and therefore people could watch the proceedings. That submission fails to grapple with the practical consequences of the orders. Anyone watching the proceedings would not have access to the pleadings to inform them of the nature of the claim. There could be no reporting of the proceeding. Further, material the subject of suppression orders is ordinarily not expressly referred to in open court because of the nature of the material. If that is so, it is unclear how the case could properly be conducted in open court. The terms of the orders extend to the entirety of documents filed, which means they would apply to very basic information as to the type of claim. This includes information of a nature that the applicant included in a media release issued by Gladiator at the commencement of the proceedings.

23    Further, given the two bases on which the application is advanced, even if accepted, it is unclear how that would result in such broad sweeping orders. The orders encompass documents which do not contain any material which could possibly fall within the description of the bases of the application. The application pays no proper regard to the principles underpinning open justice, and the limitations on granting suppression orders. The scope and duration of a suppression order should be no greater than is demonstrably necessary: Royal Women’s Hospital v Medical Practitioners Board of Australia (No 2) [2007] VSCA 284 at [11].

24    The evidence relied on in support of the orders sought is the Boysen Affidavit and Olsen Affidavit. The Boysen Affidavit is, in many respects, in the most general of terms. For example, there has been no attempt in the evidence to distil what is said to be truly commercially sensitive information (considered in the context of the relevant principles for determining such applications), nor any attempt to identify the specific posts said to relate to Mr Boysen’s family (apart from by example), and how they are said to give rise to the need for an order to protect the personal safety of Gladiator’s officers and families. Rather, the applicant has taken a blanket approach to suppress everything.

25    The Boysen Affidavit also proceeds based on the correctness of the applicant’s underlying claims, and that suppression orders are necessary to stop the further publication of posts by Mr Price. I note that is not either of the two bases on which the suppression orders are sought, as identified in the applicant’s written submissions. Further, the respondent challenges the claims. Those claims are yet to be heard, with evidence yet to be filed. That approach is also evident from the submission the Defence must be suppressed because, inter alia, the respondent pleads the posts were expressions of genuinely held opinions and the basis Mr Price had for them. The applicant submitted, in that circumstance, the Defence needs to be suppressed because it will further damage Gladiator’s business reputation. This is also reflected in the Boysen Affidavit seeking orders to have the effect of preventing a journalist, Mr Ross, who the applicant claims has published adverse stories about Gladiator from further reporting on Gladiator because Mr Boysen says the stories are “false and misleading”. The journalist is not being sued. The applicant also accepts the reporting by Mr Ross in recent times has not been inaccurate. Again, that is not a basis for making the orders sought.

26    Significantly, this is in a context where the posts referred to in the documents the applicant seeks to have suppressed are publicly available. Those posts would continue to be so even if the orders sought were made. The applicant has not grappled with that issue in this application.

27    The ordinary consequence of bringing proceedings is that the material on which it is based is in the public domain (unless otherwise ordered). The onus is on the applicant to establish the basis for the orders. It will be recalled that “necessary” in this context is a “strong word”, and that such orders should only be made in exceptional circumstances: see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [30].

28    Against that background, I turn to the bases.

29    As to the commercially sensitive information, generally that is said to be the material in column four of Annexure A to the SOC. The Boysen Affidavit at [33] is as follows:

Column 4 of Schedule A includes detailed financial information relating to Gladiator. Such financial information includes details regarding the cash savings, accounts payable and cash surplus of the Applicant as at particular dates. While Gladiator, as an ASX­listed company, is required to file financial reports to the market on a quarterly basis, the financial information included in column 4 of Schedule A includes Gladiator’s financial information at various points in time which goes well beyond the information required to be disclosed by a listed company pursuant to the quarterly reporting requirements.

30    The affidavit does not refer to specific entries in Annexure A, although I note in the applicant’s written submission a footnote purports to identify what is referred to as examples of such information (referring to 12 entries). To put that in context, Annexure A contains 100 entries. It is plain from Annexure A to the SOC that not all material in column four could satisfy that description. Most is not even financial material, but a rebuttal to the imputed meaning or representation said to be conveyed by a post. The material which is said to be “commercially sensitive” has not otherwise been identified in the evidence. The only explanation provided is that the material contained in column four is broader than the information required to be disclosed by a publicly listed company. It has not been identified in evidence what that information is. Again, it is not explained why that makes this material, some of which is aged, commercially sensitive: see e.g. Clark at [26]. Rather the evidence in the Boysen Affidavit was in broad terms:

[41]    Disclosure of confidential financial information that is outside the scope of Gladiator's disclosure requirements may:

(a)    undermine future commercial negotiations. Gladiator operates in a highly competitive and global environment. The mining industry is a speculative industry and has strong elements of confidentiality in the early stages in order to secure commercial opportunities. Negotiations often involve milestone-based incentives, for example, stock options at different stages of the exploratory process. The value of the options in Gladiator is based on investor confidence and largely susceptible to the adverse disclosure of information outside of the regular processes;

(b)    negatively impact capital raising opportunities; Gladiator engages with large companies for the purposes of capital raising and investment. If those companies were to become aware of information that is disclosed outside of the ordinary means of disclosure (whether in due diligence, tenders or on a need-to-know basis) Gladiator’s bargaining power would be reduced significantly; and

(c)    negatively influence Gladiator's existing and potential future investors: as Gladiator is a speculative mining company in the early exploration stage, investor confidence is a primary driver of future commercial opportunities. Gladiator's primary investors are high net worth individuals and Institutional investors. In the process of securing capital, particularly in larger capital raising, parties seeking to invest either have stockbroking teams or advisers whose sole role is to conduct due diligence on the company in which it is investing. If adverse information or information that can be construed negatively is made public, particularly if taken out of context, those stockbroking teams or advisers will advise the investor of the risk involved and will move onto the next opportunity. This dramatically affects Gladiator's ability to obtain capital in capital raising efforts.

31    An example is then given by Mr Boysen in [42]-[43], concluding at [44]:

[42]    By way of example, annexed to this affidavit and marked “MB-2” is an ASX announcement relating to Gladiator engaging a company in the United States to ‘peg’ land for the purpose of mining for materials in the “rare earth” space (Announcement). ‘Pegging’ is essentially mapping out a section of land.

[43]    It is imperative that the location of the land referred to in the Announcement is not disclosed – for example, a competitor of Gladiator might seek to claim that land as their own.

[44]    As it involves mining/land, there are regular communications with governments and regulators and the need to obtain approvals. A party may try to give misleading information (e.g. allegations of fraud, similar to the Price allegations) to the governments / regulators to induce them not to deal with Gladiator.

32    This example is general and speculative. It does not take account of the information already posted on X which will remain online, and publicly accessible.

33    Further, this evidence does not address, inter alia, the posts the subject of the claim which are recorded in the SOC and therefore also sought to be suppressed. Matters of that nature form the bulk of the content in the SOC. In so far as the applicant, in oral submissions, appeared to suggest the posts were commercially sensitive because they covered commercially sensitive information, that cannot be accepted. There is no evidence directed to establishing that proposition. The applicant ultimately submitted that the posts cannot be divorced from the commercially sensitive information in the pleadings, and therefore the whole of the document must be suppressed. I do not accept that submission. Further, as already explained the posts are public and will remain so regardless of whether the orders sought are made.

34    In any event, there is no adequate evidence identifying what is the commercially sensitive information or how the applicant would be “seriously compromised or adversely affected if confidentiality was not retained”: Japara at [10].

35    This case is far removed from cases such as Clark where I concluded that the material sought to be the subject of the order is limited having regard to the content of the originating application and statement of claim. Further, in Clark I concluded that the redaction of the material the subject of the suppression order would not have any material effect on a reader’s understanding of the substance of the claims made in the originating application and statement of claim.

36    As to the safety of the applicant’s family, Mr Boysen provides no evidence as to how this creates a risk to his family’s safety in the manner necessary for the orders sought. The only evidence relied on is that of Mr Boysen. Again, the evidence is very general. Some posts are plainly distasteful and offensive. That said, as the respondent points out, although the applicant takes them to relate to his family, that is not apparent (at least in some) on the face of the post. In any event, assuming they relate to Mr Boysen, it is understandable how he and his family may feel harassed by them. Regardless, that does not address the criteria for an order of the breadth sought for the safety of his family. The posts are already public. They will remain so. In any event, it is assumed the fears expressed relate to the respondent as no other source is identified. Indeed, the only basis seemingly put by the applicant to demonstrate the risk is not hypothetical is that Mr Price has continued to post personal attacks. There is no evidence of third-party involvement. The suppression of the documents filed in this proceeding containing references to the posts, cannot impact on the applicant’s stated risk. The posts the applicant relied on which have been posted since the proceeding commenced also fall within this category. Yet those posts will remain online even if the suppression order is granted.

37    During the hearing the applicant submitted that if the material sought was not supressed it would defeat the purpose of the proceeding. In doing so the applicant referred to W v M [2009] NSWSC 1084; Central Equity Ltd v Chua [1999] FCA 1067 (Chua); and Richards (a pseudonym) v Jones (a pseudonym) [2025] NSWSC 5 (Richards). There are a number of observations to be made. First, this is not the basis on which the suppression application is made, nor is it referred to in the written submissions. Second, there is no evidence in support of this basis. Third, what is apparent from the cases referred to is that each case turns on its own facts. In this case, much of the content of the documents sought to be supressed (e.g. the posts of the respondent) is currently publicly accessible and would remain so even if an order is made. This case is factually distinguishable from those referred to by the applicant.

38    For example, the applicant relied on W v M, in particular referring to [24]:

In my judgment, publication of the fact, existence, pendency and/or subject matter of the present proceedings, or information derived from them, such as to permit or facilitate identification of W, would defeat the ends of justice. Publication of the imputations in that context would adversely affect her reputation …

39    The Court explained at [20]-[23] what it described as an “exception” to open justice being for circumstances where the exercise of the Court’s jurisdiction would otherwise be defeated, citing blackmail and extortion cases as an example.

40    The facts of that case are different to what is before this Court. As is plain from [25]:

I accept that protection of W from embarrassment is of itself insufficient ground for the order sought, which should be made only if absolutely necessary in the interests of justice, and not merely to protect litigants or witnesses from embarrassment. However, publication of the imputations would defeat the very purpose of the proceedings, in which W seeks a final injunction (having already obtained an interlocutory injunction) prohibiting their publication [cf Chappell v TCN 9]. It would vindicate the conduct of M, by promulgating the very imputations he threatened to publish to apply improper pressure to W and indirectly to her husband. It would frustrate the efficacy of the orders already made against the defendants.

41    I note the Court concluded that it is “not necessary to suppress the fact, existence and pendency of the proceedings – and their subject matter, to the extent that it is already in the public domain”: at [26].

42    Chua is also factually a very different case to what is involved in this application. The case was not an application for suppression, but rather related to an order of confidentiality relating to the particulars of the claim that had been filed separately to the statement of claim: at [27]. The order was to “operate temporarily” and be kept consistently under review at the directions hearing of the matter: at [29]. There was no suppression order sought or any consideration of the principles relevant thereto that apply in this proceeding. The applicant submitted the order sought in this case is also temporary, being for five years which was said to be the length of time these proceeding may go for. However, as is clear from the written submission, what is sought is five years after the date on which judgment is delivered. That submission ignores the facts in Chau, and the context in which the description of “temporary” was used, and the ordinary meaning of that word. Further, any non-publication or suppression order made under s 37AF is required to have an end date, and therefore on the applicant’s reasoning, all such orders would appear temporary.

43    The applicant placed significant reliance on Richards because of the breadth of the order in that case, and that it related to a claim for injurious falsehoods. It was an ex parte hearing. Although orders were made, they were interim orders, which means the merit of the application was not considered. It is apparent that the underlying claim was for an injunction. Although there is little detail in the judgment (with redactions), the nature of the claim is clear at [31]:

It is plain from the communications I have set out that the defendant has threatened harm to each of the plaintiffs; in effect, blackmailing them by seeking money or other recompense in order to avoid publication of allegations of serious criminal activity against children. Having regard to the significant profiles of each of the plaintiffs, I accept that publication of allegations of paedophilia would be extremely detrimental both personally and professionally.

44    The matter came back before the Court a month later: Richards (a pseudonym) v Jones (a pseudonym) (No 2) [2025] NSWSC 27. It was again ex parte. As the court recognised, orders to protect the identity of victims of blackmail is recognised as a case where the principle of open justice may give way: at [23].

45    As is clear from that brief discussion, the cases relied on by the applicant are different from the situation in this proceeding.

46    It also became apparent during the hearing that the applicant’s application is based on a concern that the respondent will use information in the court documents to post further matters. It is claimed he has continued to post matters since the proceedings commenced. So much may be accepted. However, this is not an application for an injunction, and even if the orders sought are made, the current posts will remain online and the respondent could continue to post matters, just not from the court documents filed in this proceeding.

47    In that context, as mentioned above, it is also claimed by the applicant that the information in the documents would be used by Mr Ross because he has written negative articles about the applicant. Mr Boysen says he is concerned that if the suppression orders are not made, information contained in the SOC may be accessed by Mr Ross and/or other journalists “and used as a tool to target Gladiator”. That is, the respondent might disclose information to Mr Ross to target the applicant. Nationwide read an affidavit from Mr Ross which detailed, inter alia, what he said were inaccuracies in the Boysen Affidavit and the nature of his relationship with Mr Price. Mr Boysen’s evidence is disputed. I do not resolve the dispute between the deponents’ affidavits, as neither gave evidence. It is not to the point. The onus is on the applicant to establish its basis for the suppression orders sought. Given neither of the two bases have been established, concerns by Mr Boysen that the media might write negative articles about the applicant, is not an arguable basis.

48    The applicant has not established how the failure to make the orders sought would defeat the purpose of the proceedings. As noted above, the applicant has also not established the suppression of any of the documents is necessary to prevent prejudice to the proper administration of justice or to protect the personal safety of Gladiator’s officers and families.

49    All that said, it may be that there is discrete material in some documents that is commercially sensitive. There may also be features in some documents which may identify Mr Boysen’s family that arguably ought to be redacted. Yet none of that has been identified in the applicant’s claims or material supporting the claims.

50    There is no application before me directed to the suppression or non-publication of discrete aspects of the documents. The applicant said that is its fallback position. The applicant submitted that was not the approach originally undertaken because it would be time consuming, costly, and largely ineffective. However, if an applicant seeks an order for suppression or non-publication, they bear a heavy onus. It must be necessary in the manner already described. It must only relate to information on which the Court can be satisfied suppression or non-publication is necessary. It is difficult to understand the applicant’s submission that the fallback position was not originally undertaken because, in part, it would be largely ineffective if only the material which could properly found an application was sought to be suppressed.

51    Finally, for completeness, I note the respondent raised during the hearing the issue of the application of Hearne v Street [2008] HCA 36; (2008) 253 CLR 125. The parties provided supplementary submissions following the hearing of the application. I have considered the submissions but as they do not affect the outcome of the suppression application, I do not address them in these reasons.

Conclusion

52    The application is dismissed, with costs.

53    The applicant’s fallback position should have been argued at the same time as this application. That said, I am prepared to give the applicant an opportunity to make an application and as such, documents will not be released until after that application is made. Thereafter, those documents containing the information sought to be the subject of an order will not be released until the new application is determined. The Court will consider any non-party access requests to the remaining documents. The date by which any further application is made, or further orders are sought will be discussed at the delivery of this judgment.

Associate:

Dated:    11 December 2025