Federal Court of Australia

Turner v Macleod Group Limited (Interim Suppression Order) [2025] FCA 1599

ORDERS

THE COURT ORDERS THAT:

Interlocutory Applications

1.    The interlocutory application filed on 5 December 2025 (5 December Application) and the interlocutory application filed on 11 December 2025 (11 December Application) be stood over to 10.15am on 12 February 2026.

Case management and Pre-trial Steps

2.    By 15 December 2025, the applicant file and serve a Statement of Claim.

3.    By 2 February 2026, the respondents file and serve any evidence and submissions in relation to the 5 December Application, 11 December Application and the final relief in the Applicant’s Statement of Claim.

4.    By 9 February 2026, the applicant file and serve any evidence and submissions in reply.

5.    The matter be listed for hearing at 10.15am on 12 February 2026.

Court Book and Joint Bundle of Authorities

6.    By 12.00pm on 11 February 2026, the parties are to confer between themselves as to the contents of a Court Book, and the respondents are to cooperate in filing and serving, and providing by email to the NSW Registry, a Court Book in electronic form, prepared so that each page opens at a zoom of 125%, is text searchable and formatted in Format 1 in accordance with cl 4 of the Court’s eBooks Practice Note (GPN-eBOOKS).

7.    By 12.00pm on 11 February 2026, the parties are to confer between themselves as to the contents of a Joint Bundle of Authorities, and the respondents are to cooperate in filing and serving, and providing by email to the NSW Registry, a Joint Bundle of Authorities in electronic form, prepared so that each page opens at a zoom of 125%, is text searchable and formatted in Format 1 in accordance with cl 7 of the Court’s eBooks Practice Note (GPN-eBOOKS).

Suppression and non-publication

8.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1967 (Cth), the publication and disclosure of the confidential affidavit of Michael Russell dated 5 December 2025, marked Confidential Exhibit 1A, be prohibited to any person or entity except the Court save for disclosure to:

(a)    the Court and its staff, and any person performing services for the Court, acting in the course of their duties;

(b)    the parties and their legal representatives.

9.    The first respondent serve a copy of Confidential Exhibit 1A on the parties by 1.00pm on 12 December 2025.

10.    Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until the 11 December Application is determined, the documents set out in the Schedule to the 11 December Application, are not to be published or otherwise disclosed to any person or entity except the parties and their legal representatives.

11.    The costs of today are reserved.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This matter came before me for its first case management hearing on 12 December 2025. Mr Turner, the applicant, appeared in person, and each of the first, the second to fourth, and the fifth defendant was represented.

2    Two interlocutory applications were filed by the respondents prior to the first case management hearing. The first respondent filed an interlocutory application on 5 December 2025 (5 December Application) to set aside or strike out the Originating Application dated 27 October 2025 as against the first respondent, and the second, third, and fourth respondents (BHP respondents) filed an interlocutory application on 11 December 2025 (11 December Application) seeking suppression orders and redactions of documents on the Court file. Each of the respondents, and the applicant to some extent, sought timetabling orders, including that a Statement of Claim be filed. The applicant sought that the Court note various matters (of which there is currently no supporting evidence filed except Mr Turner’s affidavit in support of his Originating Application) and timetabling orders for any interlocutory applications.

3    The 5 December Application seeks that the Originating Application be set aside as against the first respondent as an abuse of process, “in that it seeks to relitigate matters that have been settled and where earlier litigation that deals with similar matters has been concluded”. Alternatively, it seeks that the Originating Application be struck out as failing to disclose a reasonable cause of action. After discussion, Mr Turner accepted that a Statement of Claim was appropriate, and was ordered to file it by Monday 15 December 2025. Mr Turner assured the Court he could meet this deadline, and on 15 December 2025, he filed his Statement of Claim. Accordingly, the first respondent accepted that its application to strike out the Originating Application should not proceed that day, given that I had ordered that the applicant file a Statement of Claim.

4    The first respondent also sought confidentiality orders in relation to an affidavit of Mr Russell dated 5 December 2025, annexing a Deed of Release executed by the applicant. I made those orders and gave short reasons on transcript. I ordered that that affidavit be served on each of the other parties subject to those orders by 1.00pm on 12 December 2025.

5    The BHP respondents sought confidentiality and non-publication or suppression orders over the documents listed in the Schedule to its 11 December Application. The applicant resists those orders. At the case management hearing I told the parties that I would make orders on 12 December and provide short reasons for those orders later. These are those reasons.

6    Order 1 of the orders sought by the BHP respondents in the 11 December Application is:

1.    Until after the Second, Third and Fourth Respondents have filed a Defence, pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the ground in s 37AG(1)(a) of the Act that the order is necessary to prevent prejudice to the proper administration of justice, the documents set out in the Schedule of this Application be ordered confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) (Rules) and their publication (except to the parties' legal representatives) be prohibited.

7    The Schedule to the 11 December Application reads:

SCHEDULE

1.     Originating Application filed on 28 October 2025.

2.     Affidavit of Simon Alexander Turner filed on 28 October 2025.

3.     Second, Third and Fourth Respondents' Interlocutory Application filed on 11 December 2025 (Application).

4.     Affidavit of Trent Forno affirmed on 11 December 2025 in support of the Application.

5.     Any outline of submissions and evidence filed by the parties or any Access Applicant in respect of the Application.

8    As I have said, Mr Turner objected to this order on open justice principles and also because he said the information was in the public domain (including in Hansard).

9    Mr Turner seeks relief relating to his employment and the identity of his employer, and declarations as to his entitlements and payments of those entitlements (this summary is necessarily brief). The background to the 11 December Application, and the first respondent’s application to strike out the Originating Application, is that there have apparently been various proceedings brought and discontinued by Mr Turner, and in the context of the above-mentioned Deed of Release. I made orders timetabling that issue for a hearing on 12 February 2026.

10    Section 37AI of the Federal Court of Australia Act 1976 (Cth) provides:

37AI  Interim orders

 (1)     If an application is made to the Court for a suppression order or non-publication order, the Court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the Court, until the application is determined.

(2)     If an order is made as an interim order, the Court must determine the application as a matter of urgency.

11    The BHP respondents’ concern is that, as Mr Turner’s Originating Application alleges unlawful actions such as bad faith, concealment of Mr Turner’s employment terms, and “false, misleading and unlawful” actions, and given the position expressed by the first respondent as to the proceedings being an abuse of process, it would give a misleading impression for the documents to be able to be reported upon without the claim being properly pleaded and a Defence put on by each of the respondents.

12    As the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 said at [8]-[9]:

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].

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].

13    The onus is on the applicant for the orders – in this case, the BHP respondents – to persuade the Court that an order should be made.

14    An affidavit of Mr Trent Forno dated 11 December 2025 was read in support of the application. It goes into some detail as to Mr Turner’s litigious history and sets out an extract from Hansard which canvasses Mr Turner’s complaints in relation to the Mount Arthur Coal Mine and what is said to be a “lack of enforcement of the Fair Work Act”.

15    Mr Turner submitted, effectively, that no such order was “necessary”.

16    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; Patterson v Westpac Banking Corporation [2024] FCA 629; Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818. I have considered Mr Forno’s affidavit, as well as Mr Turner’s submissions (written and oral) and the issues raised by the other parties to the action.

17    I have reached a point of satisfaction that, on the very limited material available to me, the respondents’ position as to the overlap between various historical litigation between the parties is not unarguable. Accordingly, it may be that for the documents currently on the court file to be released would give a misleading or incomplete version of the conduct of the respondents in relation to Mr Turner.

18    I have therefore determined that while open justice is an important consideration, it is not the only consideration in making these kinds of orders. In my view, the public interest may be undermined if settlement documents which are otherwise confidential can be viewed and reported on where the parties have agreed that terms should be confidential as part of the terms of their settlement: Porter v Australian Broadcasting Corporation [2021] FCA 863 at [84], [99]-[105]; McLaughlin v Glenn [2020] FCA 679 at [27]. Allowing third party access to the documents where there is an arguable case for a strikeout may erode public confidence in private bargains being maintained in circumstances where the full picture is not available.

19    The BHP respondents seek only an interim order. I will make the order sought but only up until the resolution of the 11 December Application, which is listed for hearing on 12 February 2026, at which time the order can be revisited. Should Mr Turner wish to make further submissions or bring further evidence as to any orders in the 11 December Application, he has been directed to do so by 9 February 2026.

Associate:

Dated:    17 December 2025

SCHEDULE OF PARTIES