Federal Court of Australia

Szyssko v Gucci Australia Pty Limited [2026] FCA 109

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 2.32(3)(a) of the Federal Court Rules 2011 (Cth):

(a)    the originating application filed on 19 November 2025;

(b)    the statement of claim filed on 19 November 2025;

(c)    the affidavit of Kellie-Ann McDade affirmed 11 December 2025 (including annexure KM1); and

(d)    the respondent’s outline of submissions filed on 16 December 2025 in support of the interlocutory application

are ordered to be confidential, and thus restricted from publication to or inspection by persons other than parties to this proceeding.

2.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground referred to in s 37AG(1)(a) of that Act, there be no disclosure, by publication or otherwise, of:

(a)    the originating application filed on 19 November 2025;

(b)    the statement of claim filed on 19 November 2025;

(c)    paragraph 8 and annexure KM1 of the affidavit of Kellie-Ann McDade affirmed 11 December 2025; and

(d)    the second sentence of paragraph 2 of the respondent’s outline of submissions filed on 16 December 2025 in support of the interlocutory application.

3.    Order 2 operates for a period of five years.

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

REASONS FOR JUDGMENT

OWENS J:

1    These proceedings were commenced by the applicant pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). Shortly after they were filed, the parties agreed upon terms to settle their dispute. Those terms included a condition that the settlement would only become effective if the Court made particular orders directed to ensuring that the details of the allegations made by the applicant in these proceedings do not become publicly known.

2    To that end, the respondent subsequently filed an interlocutory application seeking the orders agreed by the parties. The applicant supports the making of the orders sought.

3    The primary position of the parties was that the originating application and statement of claim should be “permanently removed from the Federal Court’s record and the Commonwealth Courts electronic portal” (as the argument developed, it became clear that the parties also sought to remove various other documents on the Court’s file). In the alternative, they sought a non-publication order in respect of documents on the Court file under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), along with an order for the purposes of rule 2.32(3)(a) of the Federal Court Rules 2011 (Cth) that those documents be confidential.

4    Before turning to consider whether any of the relief sought by the parties is appropriate, it is useful to describe the circumstances in which the proceedings were commenced and settled:

(a)    The applicant was only able to commence these proceedings because an earlier complaint that she had filed with the Australian Human Rights Commission was terminated on the ground that there was no reasonable prospect of the matter being settled by conciliation (see s 46PO(3A) of the AHRC Act).

(b)    Although the complaint was terminated on that basis, the parties continued to negotiate to resolve their dispute after the Commission issued its certificate. Those negotiations were ongoing when the statutory time limit for the commencement of proceedings in this Court (being 60 days following notice of termination of the complaint: s 46PO(2) of the AHRC Act) began to loom large. Three days before that time limit would have expired, the applicant commenced these proceedings.

(c)    In accordance with rule 34.163 of the Federal Court Rules, the applicant attached a copy of her original complaint to the Australian Human Rights Commission and the notice of termination of that complaint to her originating application.

(d)    Shortly after the proceedings were commenced, two media organisations applied for leave to inspect the originating application and statement of claim. Those requests were not approved at that time.

(e)    Following the commencement of these proceedings, the parties continued their negotiations. Two weeks later, the parties reached their agreement to resolve the proceedings. That agreement was reached before the respondent was required to file a defence in these proceedings.

5    I did not consider that it was appropriate to determine this application in chambers. Fundamentally that is because an application of this kind implicates the public interest in the proper administration of justice. It is a matter in relation to which persons other than the parties may have an interest in being heard, and as to which any exercise of the Court’s powers should be fully transparent: see, e.g.: Porter v Australian Broadcasting Corporation [2021] FCA 863 at [46], [71], [82], [90] and [95] (Jagot J); Jara-Saba v MoneyMe Financial Group Pty Ltd [2021] FCA 1482 at [1] (Jagot J); Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142 at [2] and [35] (Feutrill J).

6    Accordingly, I directed that notice of the application be given to the two media organisations who had made access requests, and then listed the application for hearing. As it happened, neither access applicant appeared at the hearing, or otherwise sought to make submissions in relation to the interlocutory application.

7    As I have indicated, the respondent’s primary contention was that documents containing the applicant’s allegations be removed from the Court’s file. The power to do that was said to be found in rule 2.28 of the Federal Court Rules, although the precise part of that rule said to be engaged was not identified.

8    Rule 2.28 provides as follows:

(1) A document which has been accepted for filing will be removed from a Court file if:

(a) the Court has ordered that the document be removed from the Court file:

(i) on its own initiative; or

(ii) on the application of a party under rule 6.01 or subrule 16.21(2); or

(b) for an affidavit—the Court has ordered that the affidavit be removed from the Court file:

(i) on its own initiative; or

(ii) on the application of a party under subrule 29.03(2); or

(c) the Court is satisfied that the document:

(i) is otherwise an abuse of process of the Court; or

(ii) should not, under rule 2.27, have been accepted for filing.

(2) A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.

9    The provisions relating to the Court acting on its own initiative are plainly not relevant here.

10    Nor has any party made an application under any of rules 6.01, 16.21(2) or 29.03(2). So neither rule 2.28(1)(a)(ii) nor rule 2.28(1)(b)(ii) is applicable. (Counsel for the respondent did at one point suggest that the applicant’s allegations were “scandalous”, but properly accepted that that was not so in the sense in which that word is used in the rules: see, e.g., Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 at [104] (Wigney J).)

11    There was no suggestion that any of the documents in question constitute an abuse of the process of the Court, or should not have been accepted for filing. It follows that rule 2.28(1)(c) is not applicable.

12    Reliance was, instead, placed generally on the authority of Porter and those cases that have followed it as authorising the removal of documents from the Court file in connection with a settlement of proceedings. Particular emphasis was given in submissions to the similarity of the circumstances of the present case to those in Jara-Saba.

13    I am not, however, convinced that Porter stands for the proposition that rule 2.28 confers a general power to remove documents from the Court file (save when the Court acts on its own initiative), divorced from an application of the kind specified in rules 2.28(1)(a)(ii), 2.28(1)(b)(ii), or 2.28(2).

14    In Porter, the dispute that was resolved by the parties’ agreement included an allegation that three schedules of the respondents’ defence was liable to be struck out under rule 16.21(1)(a), (b), (c) and (f) of the Federal Court Rules (along with an application that those schedules be removed from the Court file under rule 16.21(2)). The existence of that dispute (and its compromise) was plainly a significant factor in her Honour’s reasoning (see, e.g., at [38], [100]-[102]). As her Honour said (at [102]):

As submitted by Mr Walker SC, just as parties may compromise a substantive claim or the entirety of a proceeding, so too parties may compromise an interlocutory application, in this case Mr Porter’s application for Sch 1, 2 and 3 of the defence to be struck out and removed from the Court’s file (and the respondent’s response that if Sch 1, 2 and 3 of the defence are struck out and removed from the Court’s file, paras 2(ll) to (pp) and 8 of the reply to the defence should also be struck out and removed from the Court’s file). For the Court to refuse to make proposed consent order 3, in these circumstances, would be to undermine the lawful contractual bargain which the parties struck to compromise all of their claims.

15    Critically, her Honour went on to say (at [115], emphasis added):

My power to make proposed consent order 3 is not dependent on the making of such a finding [i.e., that the schedules were in fact liable to be struck out]. Under r 2.28(1)(a)(i) and (ii) and r 2.29(1)(a)(i) and (ii) of the Court Rules the Court may make such an order on its own initiative or on the application of a party under r 6.01 and r 16.21(2). In this case, there is an undetermined application for removal under r 16.21(2). The rules do not condition the power on the Court being satisfied that the document should be struck out. As I have said, in a case such as the present where the removal is a part of the agreed settlement of the proceeding, I consider the proper approach is to decide if the removal of the document from the Court file is necessary to prevent prejudice to the proper administration of justice, in common with the making of a non-publication or suppression order under s 37AF(1)(a) of the Court Act.

16    As I read her Honour’s reasoning, it remained essential to the enlivening of the power under rule 2.28(1)(a)(ii) that an application pursuant to rule 6.01 or rule 16.21(2) had been made. Her Honour was simply saying that the exercise of the power, once enlivened, was not conditioned on a finding that the pleadings in question were in fact liable to be struck out; the power could also be exercised if doing so was necessary to prevent prejudice to the proper administration of justice.

17    The same approach, I think, may be observed in Pigozzo. In that case there was an application pursuant to rules 2.28(1)(a)(ii), 2.28(1)(b)(ii) and 2.28(1)(c) before Feutrill J, in relation to which the parties all agreed that the documents sought to be removed from the Court file “contain material that is one or more of scandalous, vexatious, oppressive, evasive, ambiguous or an abuse of process” (at [52]; see also at [90] and [112]). It is apparent that his Honour, like Jagot J, did not regard it as necessary that he determine the correctness of that agreement in order for the power to remove the documents from the Court file to be enlivened (see, e.g., at [113]). But I can discern nothing in his Honour’s reasons that would support the conclusion that, independently of the Court acting on its own initiative, rule 2.28 confers a free-standing power to remove documents from the Court file.

18    It thus seems to me that, unless the Court is acting on its own initiative, the existence of an application under rules 6.01, 16.21(2), 29.03(2) or 2.28(2) (but not its substantive determination) is necessary to enliven the power to remove documents from the Court file. Where such an application has been made, but is then compromised on terms that documents be removed from the Court file, the question will be whether making such an order is appropriate for reasons including that doing so is necessary to prevent prejudice to the proper administration of justice.

19    The incorporation of that standard into the power conferred by rule 2.28 has been explained on the basis that, although the Federal Court Rules do not specify that, where their requirements are otherwise satisfied, an order that would have a substantive effect equivalent to an order made pursuant to s 37AF of the Federal Court Act may not be made unless considerations and restrictions equivalent to those found in, for example, ss 37AE, 37AG, 37AH and 37AJ of the Federal Court Act are satisfied or have been complied with, such an order will not be made save in such circumstances: Porter at [44], [83]-[97] (Jagot J); Pigozzo at [56] (Feutrill J).

20    I accept that it is possible that the decision in Jara-Saba might suggest a broader view of the rule 2.28 power. The published reasons for decision do not refer to the existence of any application pursuant to rules 2.28(2), 6.01, 16.21(2) or 29.03(2) – but equally the relevant background is described only at a very high level of generality, so it is not possible to be sure. Nevertheless, Jagot J did say this, which is consistent with an understanding of the rule 2.28 power being limited as I have described (at [5], emphasis added):

There is a public interest both in members of the public being able to understand the processes of litigation in the Court and in the Court maintaining a complete record of Court files. This said, there is a capacity in the Rules for the removal of a document from the Court file either on the initiative of the Court or on an application by a party, but rule 2.28 contemplates that an application by a party will be limited to circumstances where the documents sought to be removed constitute some form of abuse of process. Alternatively, there is the power in the Act (s 37AF) to require a document to be suppressed, relevantly on grounds set out in s 37AG, which include in s 37AG(1)(a) that the order is necessary to prevent prejudice to the proper administration of justice.

21    There are other decisions of this Court too, that are arguably consistent with a broader understanding of the scope of the rule 2.28 power (see, e.g., AxiCorp Financial Services Pty Ltd v CABC (No 3) [2025] FCA 1658).

22    Ultimately I do not consider it to be necessary to determine precisely the scope of the rule 2.28 power. If nothing else, the Court always has the power to make any order it considers appropriate in the interests of justice, including by dispensing with compliance with the rules, or making an order inconsistent with them: rules 1.32, 1.34 and 1.35. Here, though, even assuming the existence of the power to remove the relevant documents from the Court file, I am not persuaded that it would be appropriate to do so in the present case.

23    The principal practical additional protection that is offered by an order removing a document from the Court file, as opposed to making a suppression order, is that “if an order for removal is made, then there is no risk in the future that the documents could be accessed by a member of the public, either by reason of accident or otherwise”: Jara-Saba at [8] (Jagot J).

24    I am not persuaded that that risk is substantial, and certainly not to the point where it would outweigh the countervailing considerations in relation to the maintenance of the Court’s own records in relation to material that is not suggested by anyone constitutes an abuse of process. In circumstances where I am satisfied that, for reasons I will next explain, it would be appropriate to make an order pursuant to s 37AF(1) of the Federal Court Act, I do not consider that the additional step of removal from the Court file is warranted.

25    The principles in accordance with which applications of that kind, in the context of giving effect to settlement agreements, are to be determined have been stated on many occasions, and it is not necessary that I repeat them here. See, for example: Hyland v Havas Media Australia Pty Ltd [2025] FCA 1562 at [4]-[6] (Abraham J); Saw v Seven Network (Operations) Ltd (2024) 305 FCR 340; [2024] FCA 1210 at [7]-[8] (Perram J); Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 (Raper J).

26    Having regard to those decisions, I am satisfied that the following considerations justify a non-publication order in the circumstances of this case:

(a)    The settlement was reached before the first case management hearing, and the documents in question are thus restricted documents: rule 2.32(2) of the Federal Court Rules.

(b)    The proceedings were commenced while the parties were engaged in settlement discussions, solely in order to comply with a statutory time limit.

(c)    Those settlement discussions continued after the proceedings were commenced, and a settlement was reached very shortly thereafter.

(d)    Because the proceedings have settled at a very early stage, the defendant has not had the opportunity to respond to the allegations contained in the originating application and the statement of claim, even in a formal way by filing a defence.

(e)    It follows that the Court has not adjudicated on any of the allegations made in the proceedings.

(f)    There is a very significant public interest in encouraging the settlement of litigation, and in particular at an early stage. The settlement agreed to by the parties included terms relating to confidentiality, and the evidence makes plain that absent such terms the proceedings would not have settled when they did (if at all).

27    It follows that I consider that preventing the disclosure of the substance of the allegations contained in documents filed by the applicant is necessary to prevent prejudice to the proper administration of justice.

28    That does not mean, however, that I consider that relief of the breadth sought by the respondent is appropriate. The interlocutory application identified a number of documents over which the non-publication order was sought, but during oral argument it became clear that the terms of the parties’ agreement made the settlement conditional on the order applying to every document on the Court file. It followed that the settlement would only become effective if the Court made a non-publication order over documents including, for example, the notice of address for service filed by the respondent.

29    At the hearing of the application I indicated to the parties that my preliminary view was that it would be appropriate to make a non-publication order in relation to those documents (or parts of documents) that contained or described the allegations made by the applicant, but that I was presently unpersuaded that any other document (or part of a document) should be so treated.

30    I was also unpersuaded that the term of any non-publication order should be indefinite. It seemed to me that the parties’ legitimate interests would be protected by a nominated term; particularly when, of course, it would always remain open to them to apply to extend it upon demonstration of a proper basis to do so.

31    The difficulty, however, was that the condition upon which the parties had made their settlement depend was that the Court make the orders they were seeking (as opposed, for example, to applying to the Court for such orders, or having the Court make orders substantially in the terms sought). It followed that if I were not prepared to make orders to the full extent sought by the parties, the settlement would not become final, which would in turn remove the justification for making any orders at all.

32    In those circumstances, the parties requested, and I granted, an adjournment to allow them to seek instructions as to whether, if orders were made in the terms I had indicated I was minded to make, they would give effect to their settlement.

33    The parties subsequently indicated that they have agreed to amend the terms of their agreement so that it will become effective if a non-publication order of the scope I indicated I would be inclined to make is made. They submitted, by reference to cases such as Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 at [6] (Perram J), that a five year period was appropriate. I agree that it is.

34    In those circumstances, I am prepared to make orders of the kind I have indicated. (I will also make an order for the purposes of rule 2.32(3)(a) to make pellucid their status on the Court file.) While I am not making orders using the precise verbal formula contained in the interlocutory application (and as varied in accordance with the parties’ revised agreement), that is only because I consider it to be clearer to phrase them in the way that I have. The substance is precisely in accordance with the parties’ revised agreement, and thus satisfies the condition that they have now agreed.

Associate:

Dated:    17 February 2026