Federal Court of Australia

AxiCorp Financial Services Pty Ltd v CABC (No 3) [2025] FCA 1658

ORDERS

THE COURT ORDERS THAT:

1. In AxiCorp Financial Services Pty Ltd’s interlocutory application dated 24 October 2025:

(a) proceedings NSD134/2025 and NSD189/2025 be consolidated, and

(b) the present applications for relief in those proceedings be heard together.

2. All versions of the following documents be removed from the Court file, and replaced as per order 3 below:

(a) Affidavit of Jack Pembroke-Birss affirmed 4 February 2025; and

(b) Affidavit of Jack Pembroke-Birss affirmed 12 February 2025.

3. The New South Wales District Registrar is to cause the documents referred to in paragraph 2 of these Orders to be placed into an envelope marked ““NSD134/2025 AxiCorp Financial Services Pty Ltd v CABC” removed from the Court file pursuant to orders made on 19 December 2025. Not to be opened or made available for inspection by the public other than by leave of the Court.”

4. The envelope referred to in order 3 of these Orders be sealed and stored by the New South Wales District Registrar in the New South Wales District Registry in a manner and location as decided by the New South Wales District Registrar.

5. The documents referred to in paragraph 2 of these Orders be replaced by redacted versions as follows:

(a) The Affidavit of Jack Pembroke-Birss affirmed 4 February 2025 be replaced by a version that redacts the matter that is highlighted in the version of the affidavit provided to my chambers on 16 December 2025; and

(b) The Affidavit of Jack Pembroke-Birss affirmed 12 February 2025 be replaced by a version that:

(i) redacts annexure JPB-14 in the same manner as that document is redacted in accordance with order 5(a) above; and

(ii) otherwise redacts the matter that is highlighted in the version of the affidavit provided to my chambers on 16 December 2025.

6. There be no order as to the costs of the interlocutory application dated 24 October 2025.

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

ORDERS

THE COURT ORDERS THAT:

1. The following documents be removed from the Court file:

(a) Statement of Claim filed 11 February 2025; and

(b) Affidavit of Jack Pembroke-Birss affirmed 26 February 2025.

2. The New South Wales District Registrar is to cause the documents referred to in paragraph 1 of these Orders to be placed into an envelope marked ““NSD189/2025 CABC v AxiCorp Financial Services Pty Ltd” removed from the Court file pursuant to orders made on 19 December 2025. Not to be opened or made available for inspection by the public other than by leave of the Court.”

3. The envelope referred to in order 2 of these Orders be sealed and stored by the New South Wales District Registrar in the New South Wales District Registry in a manner and location as decided by the New South Wales District Registrar.

4. The Statement of Claim be replaced by a version of that document that redacts the matter that is highlighted in the version of the document provided to my chambers on 16 December 2025.

5. CABC be granted leave to:

(a) discontinue this proceeding with no order as to costs, and

(b) file a notice of discontinuance within seven days of these orders on that basis.

6. There be no order as to the costs of the interlocutory application dated 24 October 2025.

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

REASONS FOR JUDGMENT

BROMWICH J:

1 The parties to these two related proceedings seek orders to be made by consent in aid of the settlement of the entirety of the litigation between the parties, which are designed to suppress information in relation to the two proceedings.  The precise nature of what is sought to be suppressed has evolved as a result of me indicating certain preliminary views on the merits of what was originally sought in the interlocutory application dated 24 October 2025.

2 At the core of what is now before me is striking an appropriate balance between:

(a) on the one hand, the mandatory consideration of a primary objective of the administration of justice being to safeguard the public interest in open justice, as described in s 37AE of the Federal Court of Australia Act 1976 (Cth); and

(b) on the other hand, the public interest in the administration of justice by advancing the overarching purpose of this Court’s civil practice and procedure provisions in facilitating the just resolution of disputes, as described in s 37M(1) of that Act.

I return to that issue below.

3 The first proceeding in time, NSD 134 of 2025, was an anticipatory strike by AxiCorp Financial Services Pty Ltd to prevent a former employee, who has been given the pseudonym CABC, from disclosing confidential information in the form of communications protected by legal professional privilege.  While that injunctive relief was not opposed, AxiCorp eventually brought an application for the suppression of the same information and certain other information when access to the pleading, process and evidence relied upon to obtain that relief had been sought by a media organisation.  That suppression application came before me as duty judge.  I granted much of the relief that was sought, but only until 7 days after the conclusion of the general protections proceeding, discussed below: AxiCorp Financial Services Pty Ltd v CABC [2025] FCA 144.  I also made costs orders: AxiCorp Financial Services Pty Ltd v CABC (No 2) [2025] FCA 698.  Those costs orders are the subject of an outstanding appeal.

4 The second proceeding in time is the substantive general protections application brought by CABC against AxiCorp, NSD 189 of 2025, which is supported by a statement of claim.

5 The general protections proceeding was successfully mediated and CABC and AxiCorp have entered into a deed of settlement.  I have seen and marked for identification that deed, and admitted into evidence a portion of it which records the agreement that settlement is contingent upon a consent order satisfactory to the parties being made.

6 I have carefully considered the decision of Jagot J, when a member of this Court, in Porter v Australian Broadcasting Corporation [2021] FCA 863, and had particular regard to her Honour’s approach to balancing the competing considerations described at [2] above.  Noting that the parties in Porter had already filed a version of the defence which redacted three schedules and a version of the reply which redacted corresponding paragraphs dealing with those schedules, her Honour made orders of the kind contemplated by r 2.28(3) or r 2.29(4) of the Federal Court Rules 2011 (Cth), requiring the unredacted versions of the defence and reply to be removed from the Court file and stored.  Along with other considerations detailed at [106], at [109] Jagot J had regard to the fact that this degree of redaction was a limited infringement on the principle of open justice.  The parties to these proceedings ultimately sought a similar regime to the one that was in place in Porter involving replacement and storage, but in relation to a statement of claim and two affidavits that had been read before me in the injunction proceeding.  One affidavit that had been filed but not read in the general protections proceeding was sought to be removed without being replaced with redacted versions because, not having become evidence in the proceeding, they did not engage the open justice principle.

7 After some debate, the proceeding was adjourned for several hours to permit further consideration to be given to the redactions that would be sought.  That resulted in colour coded highlighted versions of the statement of claim and two affidavits that had been read being provided to my chambers for review.  Different colours were used to reflect different reasons for seeking redaction, including legal professional privilege, identification and other factors relevant to securing settlement.  Upon resumption a number of those redactions were revisited. The end result is that I am satisfied that the appropriate balance has been struck, and that the infringement on open justice arrived at is sufficiently confined relative to the securing of the settlement in the proper advancement of the administration of justice.  I was therefore prepared to make the orders sought but gave the parties some additional time to finalise the redactions and provide an updated copy of the redacted documents to my chambers.

8 These are the reasons for making the final orders.

Associate:

Dated:    19 December 2025