Federal Court of Australia

Roberts-Smith v Fairfax Media Publications Pty Ltd (Suppression Orders) [2026] FCA 34

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ amended interlocutory application dated 5 November 2025 be dismissed.

2.    The respondents pay the appellant’s costs of the interlocutory application.

3.    Orders 8 and 9 of the orders made on 30 April 2025 continue in force until:

(a)    The expiry of 14 days from the date of these orders, being 16 February 2026; or

(b)    If an application for special leave to appeal is filed within 14 days from the date of these orders, the final determination of that application if special leave not be granted or, if special leave be granted, the subsequent final determination of any appeal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ amended interlocutory application dated 5 November 2025 be dismissed.

2.    The respondents pay the appellant’s costs of the interlocutory application.

3.    Orders 8 and 9 of the orders made on 30 April 2025 continue in force until:

(a)    The expiry of 14 days from the date of these orders, being 16 February 2026; or

(b)    If an application for special leave to appeal is filed within 14 days from the date of these orders, the final determination of that application if special leave not be granted or, if special leave be granted, the subsequent final determination of any appeal.

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

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ amended interlocutory application dated 5 November 2025 be dismissed.

2.    The respondents pay the appellant’s costs of the interlocutory application.

3.    Orders 8 and 9 of the orders made on 30 April 2025 continue in force until:

(a)    The expiry of 14 days from the date of these orders, being 16 February 2026; or

(b)    If an application for special leave to appeal is filed within 14 days from the date of these orders, the final determination of that application if special leave not be granted or, if special leave be granted, the subsequent final determination of any appeal.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The respondents to the appeal now seek suppression orders over a deed of settlement between, on the one hand, Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and Mr Nick McKenzie (‘the Fairfax Parties’) and, on the other, Person 17. The respondents seek orders with a 50-year duration. Interim orders preventing disclosure are presently in place. The background to the interim order is set out in the reasons of the Court in Roberts-Smith v Fairfax Media Publications Pty Ltd (Interlocutory Rulings) [2025] FCA 504.

2    The orders are opposed by the appellant. Person 17, who is not a party to the proceeding, does not oppose the orders although she does seek a variation to them that would allow disclosures to be made under cl 3.1.1 of the deed of settlement. Two media companies, Nationwide News Pty Ltd and West Australian Newspapers Limited, intervened on the application to oppose the making of the orders.

3    The affidavit of Person 17 was dated 29 April 2025 and had exhibited to it the confidential deed of settlement between Person 17 and the Fairfax Parties. Person 17’s affidavit was removed from the Court file on 30 April 2025. Before that occurred, it had been served on the parties to the litigation along with the confidential exhibit. On 30 April 2025, to preserve the confidentiality which the deed contemplated I made interim suppression orders which were to expire 6 months later. I was also concerned that the Court’s subpoena powers had been abused.

4    Just before the six-month period expired, the orders were extended until further order to permit consideration of the respondents’ application for suppression orders with a 50-year duration.

5    The orders should now be discharged. The information in the deed has entered the public domain in the form of a number of news articles which were published between 4 May 2025 and 7 May 2025. Compendiously, these articles reveal the substance of the contents of the deed of settlement. They remain available on the world wide web even now. The respondents do not seek orders requiring these stories to be taken down and it is likely, given the profile of the case, that they have been viewed by a large number of persons.

6    There is no evidence that these articles were posted in contravention of the suppression orders. Indeed, as the two media companies correctly submitted, the chronology of events on 30 April 2025 makes it quite possible that the information in the articles left the courtroom before the making of the suppression orders.

7    In those circumstances, the extension of the suppression orders would lack utility when the information is publicly available on the world wide web. Where a suppression or non-publication order will not be effective, then it will generally not be the case under s‍ 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) that the making of such an order will be ‘necessary to prevent prejudice to the proper administration of justice’: Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 468F-G per Lord Russell of Killowen; Oreb v Australian Securities and Investments Commission [2016] FCAFC 192; 247 FCR 316 at [18]-[23] per Rares, Davies and Gleeson JJ.

8    I will grant further interim orders to permit the respondents to challenge this conclusion should they be so advised.

9    I make the following orders:

(1)    The respondents’ amended interlocutory application dated 5 November 2025 be dismissed.

(2)    The respondents pay the appellant’s costs of the interlocutory application.

(3)    Orders 8 and 9 of the orders made on 30 April 2025 continue in force until:

(a)    The expiry of 14 days from the date of these orders, being 16 February 2026; or

(b)    If an application for special leave to appeal is filed within 14 days from the date of these orders, the final determination of that application if special leave not be granted or, if special leave be granted, the subsequent final determination of any appeal.

Associate:

Dated:    2 February 2026

SCHEDULE OF PARTIES