Federal Court of Australia

Sharma v Northern Territory of Australia [2026] FCA 315

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ interlocutory application dated 26 February 2026 be dismissed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant, Superintendent Sachin Sharma, is a police officer in the Northern Territory. By his originating application in these proceedings, he seeks declarations against the respondents, the Northern Territory and the Commissioner of Police for the Northern Territory (Commissioner), to the effect that they contravened certain provisions of the Fair Work Act 2009 (Cth), compensation, and pecuniary penalties. Superintendent Sharma has filed a statement of claim comprising 68 paragraphs. The statement of claim pleads various factual allegations, including in relation to alleged conduct of named persons who are officers of the Northern Territory Police Force (NTPF) and who are not themselves parties to the proceedings.

2    The proceedings were listed for first case management hearing on 11 February 2026. That listing appeared on the court list published on the Court’s website on 10 February 2026. Ahead of the scheduled first case management hearing, the parties provided consent minutes of order. On the morning of 11 February 2026, I made consent orders in chambers, vacating the scheduled first case management hearing, setting a timetable for the filing of defences and a reply, and listing the matter for first case management hearing on 2 April 2026. The consent orders made in chambers are publicly available on the Commonwealth Courts Portal.

3    On 25 February 2026, each of the Northern Territory and the Commissioner filed a defence to the statement of claim in accordance with the orders made on 11 February 2026. On 18 March 2026, while judgment was reserved on the respondents’ interlocutory application, Superintendent Sharma filed replies to the respondents’ defences.

4    After the first case management hearing originally listed for 11 February 2026 was vacated, a journalist from the Australian Broadcasting Corporation (ABC) applied pursuant to r 2.32(4) of the Federal Court Rules 2011 (Cth) for leave to inspect the originating application, the statement of claim and the defence. The parties were informed of the fact that the application had been made.

5    On 26 February 2026, the respondents filed an interlocutory application, seeking an order that documents filed in the proceedings be confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules and not be disclosed to any person other than the parties to the proceedings and their legal representatives, until the completion of a mediation. The documents to which the order sought relates are:

(a)    the originating application filed on 23 December 2025;

(b)    the statement of claim filed on 23 December 2025;

(c)    the defences filed on 25 February 2026;

(d)    any reply to the defences that may be filed by Superintendent Sharma;

(e)    the interlocutory application itself; and

(f)    the affidavit of Melissa Small affirmed on 26 February 2026, filed in support of the interlocutory application.

6    Following consultation with the parties, I made orders to facilitate the ABC journalist and legal representatives of the ABC being provided with copies of the interlocutory application and the affidavit of Ms Small, for the purpose of enabling the journalist and the ABC to decide whether they wished to be heard on the interlocutory application. I made an interim order that those documents not be published to any person other than the journalist and any legal representative of the ABC.

7    Argument on the interlocutory application was heard on 11 March 2026. Superintendent Sharma supported the interlocutory application. The ABC appeared by counsel and was heard in opposition to it. At the completion of the interlocutory hearing, I reserved my judgment on the interlocutory application and made further interim orders preventing the further disclosure of the interlocutory application, the affidavit of Ms Small, the respective written submissions of the respondents and the ABC at the interlocutory hearing, and the transcript of the interlocutory hearing.

8    For the reasons explained below, I am not satisfied that the respondents have established that the orders they seek are necessary to prevent prejudice to the proper administration of justice, or should otherwise be made. I therefore will dismiss the interlocutory application.

Relevant legislative provisions

9    The interlocutory application seeks an order that the documents to which it relates be confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules and that they “not be disclosed (by publication or otherwise) to any person other than the parties to this proceeding and their legal representatives”.

10    Part VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) deals with the making of “suppression and non-publication orders”. In s 37AA, a “suppression order” is defined to mean “an order that prohibits or restricts the disclosure of information (by publication or otherwise)”. The order sought by the respondents is, at least in part, an order of that kind. Section 37AE provides:

Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

11    The power of the Court to make suppression orders and non-publication orders is found in s 37AF of the FCA Act, which provides:

Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(a)    information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

(ii)    information obtained by the process of discovery; or

(iii)    information produced under a subpoena; or

(iv)    information lodged with or filed in the Court.

(2)    The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

12    Section 37AG of the FCA Act provides:

Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)    the order is necessary to protect the safety of any person;

(d)    the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)    A suppression order or non-publication order must specify the ground or grounds on which the order is made.

13    The only ground on which the respondents rely in the present case is that identified in s 37AG(1)(a). Before the Court can make a suppression order, therefore, it is necessary for the respondents to establish that the order sought is “necessary to prevent prejudice to the proper administration of justice”.

14    Section 37AH(5) is also relevant to the exercise of the power to make a suppression order. It provides:

(5)    A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

15    The inspection by non-parties of documents filed in proceedings in the Court is governed by r 2.32 of the Federal Court Rules. Insofar as it is relevant to the present application, r 2.32 provides:

Inspection of documents

…

(2)    A person who is not a party may, after the earlier of the first directions hearing and the hearing, inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross-claim;

(b)    a pleading or particulars of a pleading or similar document;

(c)    an interlocutory application;

…

(2A)    A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)    a notice of address for service;

(b)    a statement of agreed facts or an agreed statement of facts;

(c)    a judgment or an order of the Court;

(d)    a notice of appeal, notice of contention or notice of cross-appeal;

(e)    a notice of discontinuance;

(f)    a notice of change of lawyer or notice of ceasing to act;

(g)    a consent to act as trustee or consent to act as liquidator;

(h)    reasons for judgment;

(i)    a transcript of a hearing heard in open Court.

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)    be confidential; or

(b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

(4)    Subject to subrule (3), a person may apply to a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect.

(5)    A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

(a)    is entitled to inspect the document; and

(b)    has paid the prescribed fee.

(Notes omitted.)

16    In circumstances where a first case management hearing had initially been listed but was vacated and re-listed for a later date because the parties had agreed on procedural orders, the documents to which the interlocutory application relates are currently covered by r 2.32(2), and that would appear to be so even though there has now been an interlocutory hearing in the proceedings, which was held in open court. Persons who are not parties to the proceedings may thus only inspect those documents with leave. Given the nature of the documents and the fact that the time when the matter was first scheduled for first case management hearing has passed, it is likely that leave to inspect those documents would now be granted, unless the interlocutory application is upheld.

The interrelationship between Part VAA of the FCA Act and r 2.32(3)(a) of the Federal Court Rules

17    Rule 2.32(3)(a) of the Federal Court Rules contemplates that the Court may make an order that a document be “confidential”. The consequence of such an order is that a person who is not a party is not entitled to inspect such a document, and cannot obtain leave from a registrar to do so: see r 2.32(4).

18    The effect of an order that a document be confidential may not be identical in every respect to the effect of a suppression order that prohibits the disclosure or publication of that document. In the context of r 2.32 of the Federal Court Rules, an order that a document be confidential operates to direct registry staff not to permit inspection or copying of a document by non-parties to the proceedings, but such an order would not seem to impose any enforceable obligation on other persons who are not parties to the proceedings. On the other hand, a suppression order binds non-parties to proceedings and imposes a prohibition on disclosure of documents, and potential consequences for a non-party who discloses information in contravention of such an order. However, the making of an order that a document be confidential will usually have an equivalent practical effect to a suppression order, as far as the capacity of non-parties to the proceedings to access documents and the capacity of the public to know about the content of documents that have been filed in court proceedings is concerned.

19    It has been held that, in a case where an order is sought that a document be confidential for the purposes of r 2.32(3) of the Federal Court Rules, and where that order would have a substantive effect that is equivalent to a suppression order, such an order should be made only if the Court is satisfied that it would be appropriate to make a suppression order or non-publication order under Part VAA of the FCA Act: see Porter v Australian Broadcasting Corporation [2021] FCA 863 (Porter) at [44], [88]-[91]; Ferguson v Tasmanian Cricket Association (trading as Cricket Tasmania) [2021] FCA 1507 at [8]; Szyssko v Gucci Australia Pty Ltd [2026] FCA 109 at [19].

20    However, in Saw v Seven Network (Operations) Ltd (2024) 305 FCR 340; [2024] FCA 1210 (Saw) at 347-8 [25]-[27], Perram J doubted whether this approach should be adopted in circumstances where the documents of which inspection was sought had not been used in open court. That was because the common law “open justice principle” was said not yet to have been “engaged”.

21    In Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 (Hogan), the High Court accepted that the interests of open justice were “not engaged” by evidential material which was on the court file but which had not been tendered and admitted into evidence, but that when such material had been admitted into evidence, “the interests of open justice are engaged”. The High Court did not indicate whether, or at what point in time, an originating application or pleadings should be regarded as engaging the public interest in open justice.

22    Until recently, it appears generally to have been accepted that the public availability of pleadings was properly regarded as serving the public interest in open justice. In Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357, Wigney J said (at 514 [189]):

… [T]he [Federal Court Rules] provide that the pleadings filed by a party are ordinarily available for public inspection. That is an important part of the system of open justice. As Rares J pointed out in Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 … at [29], the reason that the pleadings may be inspected by the public is so that the public “may see what is the controversy brought to the court for resolution by it in its ordinary function as a court constituted under Chapter III of the Constitution”.

23    In Ryan v Transurban Ltd [2024] FCA 994, Rangiah J expressed the view (at [30]) that s 37AE did not confine the objective of safeguarding the public interest in open justice within the “bounds of the open justice principle”, which he said (at [27]) “is only engaged in respect of filed material when the material is used in court”. In Saw at 346-7 [20]-[21], Perram J disagreed, expressing the view that the principle of “open justice” relevant to Part VAA of the FCA Act “does not require access to a document on a court file unless that document has been used in open court”. His Honour held that the principle of open justice had “no work to do” in that case and that the principle of open justice was “silent in relation to the pleadings in this case”.

24    Although differing views have been expressed on this issue, I would incline to the view that the principle of open justice may be relevant in relation to an originating application that has commenced proceedings in a court, and pleadings that have been filed in court. Open justice serves the purposes of facilitating public scrutiny of the way in which courts decide cases, as well as enabling the public to understand how the justice system works and the basis on which decisions are made: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22 at 291 [84]. The originating application and pleadings serve to identify the contentions which the parties submit to public determination in the exercise of judicial power. They are important steps in the judicial process to which the principle of open justice applies. While a distinction between evidence which has been tendered in open court and evidence which is intended to be used but which has merely been filed in court can readily be appreciated, it is less clear what it means to “use” an originating application or pleadings in open court. Of course, originating applications and pleadings may become the subject of argument that takes place in open court, such as on an application for summary judgment or for pleadings to be struck out, but it would be surprising if the availability of information about the parties’ cases, as reflected in documents filed in court for the purpose of stating those cases, were only to be regarded as engaging the public interest in open justice if and when a party sought to have them struck out, or at the commencement of a trial.

25    My view that the availability for inspection of an originating application and pleadings should be regarded as capable of being relevant to the principle of open justice does not depend on the fact that r 2.32(2) of the Federal Court Rules provides that those documents may normally be inspected “after … the first directions hearing”. The principle of “open justice” is an institutional value or aspiration which may be contributed to in a variety of ways. It need not have a fixed and absolute content, such that the availability to non-parties of every document on a court file is to be characterised in a binary fashion as either “engaging” or “not engaging” the principle of open justice. Permitting persons who are not parties to proceedings to inspect an originating application and pleadings is capable of serving the public interest in open justice, even if it cannot be said that the principle of justice “requires” that such documents be accessible to non-parties. Rule 2.32(2) reflects a recognition that permitting public access to the content of originating applications and pleadings may contribute to the achievement of open justice, rather than providing specific content to the statutory expression “the public interest in open justice” as it appears in s 37AE of the FCA Act.

26    I would not regard the approach which I favour as requiring that the word “confidential” in r 2.32(3)(a) of the Federal Court Rules be read as meaning “necessary to prevent prejudice to the proper administration of justice”: cf Saw at 347-8 [26]. The point is simply that the power to make an order that a document on the court file “be confidential” should not be exercised in a way that cuts across the evident purpose of the provisions of Part VAA of the FCA Act, by producing a practical impediment to disclosure or publication of information relating to parties or witnesses in circumstances where the statutory requirements for the making of a suppression order are not met. The expression “confidential” is, in effect, a label which is attached to a document as the outcome of an exercise of power under r 2.32, and which then has consequences for the application of r 2.32(3) with respect to that document; whether a document is in fact “confidential” is not the test for the making of an order.

27    For these reasons, I am inclined to think that an order that documents be confidential for the purpose of r 2.32(3)(a) of the Federal Court Rules should be made in this case only if it would be appropriate to make a suppression order under s 37AF of the FCA Act. That is, an order that documents should be confidential should not be made unless I am satisfied that the order is necessary to prevent prejudice to the proper administration of justice.

28    However, in circumstances where the arguments of the parties only lightly touched on this issue, I express the above views only tentatively. It is not necessary for me to reach a concluded view about the issue because, as explained at [46] below, in this case I would come to the same decision in relation to the exercise of the power to order that documents be confidential, whether or not it is open to the Court to exercise that power even where the preconditions for making a suppression order under Part VAA of the FCA Act are not met.

The interlocutory application

29    In support of their interlocutory application, the respondents rely on the affidavit of Ms Small, a solicitor who acts for both respondents. Ms Small summarises the features of the statement of claim on which the respondents rely as relevant to the interlocutory application:

The [statement of claim] contains serious allegations against the Respondents, including involving conduct of other currently serving members … and former members of the NTPF, who are either named in the pleading or otherwise caught by the subject matter of the allegations, but who are not parties to the proceeding …

30    Ms Small explains the basis on which the confidentiality and suppression orders are sought in the following paragraphs of her affidavit:

The pleadings filed in the Substantive Application contain matters sensitive to the Respondents.

The [Commissioner’s] concerns include the disclosure prior to any court facilitated mediation of materials which contain allegations regarding a referral to the Northern Territory Independent Commissioner Against Corruption … , and the selection of members of the NTPF for appointments to senior ranks and posts within the NTPF arising from a NTPF recruitment process … . Those allegations name persons who are fellow members of the NTPF with the Applicant, and the nature of the allegations also relate to other persons who are not named but also fellow members of the NTPF with the Applicant.

In the circumstances, the [Commissioner] instructs me that the maintenance of confidentiality in the proceeding is something which is important to him generally and would be of value heading into any mediation, including where the Applicant is a current member of the NTPF. I am instructed that wider knowledge of what is alleged and the persons named at various parts of the [statement of claim] or who may be covered in some way by the nature of the allegations may cause conflict and/or unrest within the NTPF or among some parts or members of it, which may render it more difficult for resolution to be possible at mediation.

The [Commissioner] also instructs me that the publication of the materials filed and to be filed in the Substantive Application and Interlocutory Application … would be prejudicial to the administration of justice in the matter, as any such publication is likely to affect the course of negotiations, and put at risk the success of any upcoming mediation.

The [Northern Territory] shares the concerns of the [Commissioner] in circumstances where the NTPF performs core functions which are of significant importance to the [Northern Territory].

31    In relation to the originating application and the pleadings, Superintendent Sharma submits that prejudice to the proper administration of justice can be avoided by making an order that those documents be confidential, so as to prevent any non-party to the proceedings obtaining access to them, and that it may not be necessary to make a suppression order in relation to those documents.

32    In the present case, no order has been made in relation to mediation, but the Court has been informed by the parties that they hope and expect to engage in a mediation soon after the close of pleadings. I proceed on the basis that, where the parties agree that a court-ordered mediation should occur after the close of pleadings, it is highly likely that the Court would make such an order in due course.

33    Speaking of the predecessor of s 37AG, s 50 of the FCA Act, the High Court in Hogan at 664 [30] observed that “‘necessary’ is a strong word”, and endorsed the proposition that “the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’”. The Court said (at 664 [31]):

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

(Footnote omitted.)

34    It has often been said that suppression or non-publication orders should only be made in “exceptional circumstances”: Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 (Country Care) at 379 [8]. The question of whether an order is “necessary” will depend on the particular circumstances of the case. Although it has sometimes been said that there is no “balancing” involved, it is difficult to see how the Court can give effect to the requirement in s 37AE – to “take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice” – without assigning weight to the public interest in open justice as part of the process of assessment of whether an order is “necessary”. However, it is clear that, once the Court is satisfied that an order is “necessary”, the order should be made, and there is no “discretion” to be exercised: Hogan at 664 [33]; Country Care at 379 [9].

35    Safeguarding the public interest in open justice is a primary objective of the administration of justice, but there are other primary objectives as well. The other objectives include the objective identified in s 37M of the FCA Act, namely, “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”: Porter at [83].

36    The respondents referred to a number of cases in which confidentiality and/or suppression orders in respect of pleadings have been made in circumstances where the parties sought to explore the possibility of an early resolution through mediation: Neve v LVMH Perfume & Cosmetics Group Pty Ltd [2026] FCA 108; Falco v Zscaler Australia Pty Ltd [2026] FCA 22; Zaydan v Experian Australia Pty Ltd [2025] FCA 1318; McGrane v Seven Network (Operations) Pty Ltd [2025] FCA 944; Saw; Patterson v Westpac Banking Corporation [2024] FCA 629.

37    These cases demonstrate that the Court has accepted that the early settlement of cases by agreement is an important component of the administration of justice, and that, in some circumstances, the disclosure of the content of pleadings which is not otherwise in the public domain could make that more difficult. A clear statement of why that might be the case appears from the judgment of Perram J in Saw at 344 [14]:

… The continued maintenance of confidentiality is something which may be of value to Seven at any mediation and hence also to Ms Saw. To be crude about it, keeping the details of Ms Saw’s allegations out of the news is something Ms Saw can offer to Seven in their settlement negotiations. Once the allegations are public, on the other hand, that bargaining chip will be off the table. Thus, I accept that there is a risk – which I would rate as significant – that the publication of the pleadings will deleteriously affect the prospects of the mediation succeeding.

38    In the cases to which reference has been made, it has been accepted that, in some circumstances, a reduction in the prospect of a case being settled by agreement at an early stage may amount to “prejudice to the proper administration of justice”, and that a suppression order may be “necessary” to avoid such prejudice. Although confidentiality or suppression orders were made in these cases, the Court has repeatedly emphasised that (a) the making of suppression orders is reserved for “exceptional circumstances” and (b) an evaluation must be made in the circumstances of each individual case.

39    The Commissioner (supported by the Northern Territory) regards the allegations in the statement of claim, which relate to the alleged conduct of officers of the NTPF, as “sensitive”, and would prefer that they remain confidential and not be publicly disclosed. However, a desire on the part of a public authority to avoid the public disclosure of allegations that may cause conflict or unrest is not itself a consideration that is self-evidently relevant to the question of whether a suppression order is necessary to prevent prejudice to the proper administration of justice. Nor is any desire to protect the identities or reputations of, or avoid embarrassment to, public officers who are named in the statement of claim and who are not themselves parties to the proceedings. These considerations may be indirectly relevant insofar as they demonstrate that public disclosure of information about the proceedings may affect the parties’ conduct of a mediation and, consequently, the prospect of an agreed resolution of the proceedings.

40    When pressed in the course of the interlocutory argument, the respondents were not able to further elaborate on the basis on which the Commissioner asserts that the publication of the filed material would affect the course of negotiations and “put at risk” the success of any mediation in the proceedings. The respondents were at pains to eschew any suggestion that they were more likely to offer a favourable settlement in order to avoid public scrutiny of what was alleged to have occurred in the NTPF. It was simply submitted that the Commissioner is of the view that there is “utility in the parties being able to mediate or participate in potential settlement discussions … without there being content in the media”.

41    I accept that matters such as the potential for hardship to police officers and unrest within the NTPF are considerations that could legitimately bear on the respondents’ conduct of the mediation. It is possible that, if the allegations are not publicly disclosed before a mediation or settlement negotiation, the respondents may be prepared to make a more generous offer to Superintendent Sharma to settle the proceedings in exchange for a promise to keep the allegations confidential. The availability of that “bargaining chip” could increase the likelihood of a settlement agreement being reached. On the other hand, even if the allegations as revealed by the pleadings were publicly known, concerns about the welfare of police officers and potential unrest in the NTPF are factors that may well continue to provide a substantial incentive for the respondents to settle the proceedings, including on terms requiring the parties to keep certain matters confidential.

42    These possibilities are speculative. The assessment of whether the precondition specified in s 37AG(1)(a) is met necessarily involves an evaluative judgement. In the circumstances of this case, I am not satisfied that the possible effect on the respondents’ mediation or negotiation strategy has been shown to provide a sufficient basis to conclude that a confidentiality order pursuant to r 2.32 of the Federal Court Rules or a suppression order pursuant to s 37AF of the FCA Act is necessary to prevent prejudice to the proper administration of justice.

43    Insofar as the pleadings make reference to a referral to the Northern Territory Independent Commissioner Against Corruption, the parties were not able to assist the Court to identify which particular statutory provisions would apply to the disclosure of information about that referral. While there may potentially be statutory prohibitions on the disclosure or publication of some information of that kind, that is not a matter that appears to me to bear on the question of whether a suppression order is necessary to prevent prejudice to the proper administration of justice. Indeed, if a separate statutory prohibition on publication were applicable to certain information, that would suggest that a suppression order in respect of any such information was not necessary. Any person reporting on the pleadings would need to take care to ensure that their reporting did not contravene any relevant statutory prohibition.

44    The principles of open justice are clearly engaged in connection with the interlocutory application and the affidavit of Ms Small, given that the interlocutory application was heard in open court and the affidavit of Ms Small was read into evidence in the course of and for the purpose of that interlocutory hearing. Given my conclusion that a suppression order should not be made in relation to the originating application and the pleadings, I would also not make a suppression order pursuant to s 37AF of the FCA Act in relation to the interlocutory application or the affidavit of Ms Small.

45    As explained at [17]-[27] above, I am inclined to think that an order that documents be confidential for the purpose of r 2.32(3)(a) of the Federal Court Rules should be made in this case only if I were satisfied that it would be appropriate to make a suppression order under s 37AF of the FCA Act. In particular, an order that documents be confidential should only be made if I am satisfied that the order is necessary to prevent prejudice to the proper administration of justice. For the reasons explained above, I am not so satisfied.

46    Even assuming that it is open to make an order that the documents be confidential under r 2.32(3)(a) in this case despite the fact that I am not satisfied that such an order is necessary to prevent prejudice to the proper administration of justice, I would not make such an order. There is a public interest in the media being able to report on, and the public being able to be made aware of, alleged conduct of public officials acting in their official capacities, and on the question, which is raised by the pleadings in this case, of whether the Fair Work Act has application to officers of the NTPF. That is so whether or not the proceedings settle. Further, I note that defences have been filed by the respondents, and that any fair report of the allegations made in the statement of claim would necessarily also need to refer to the respondents’ answers to those claims. The public generally would understand that any allegations made in these proceedings that are published are merely allegations and have not been tested. There is also a public interest in the opportunity for public awareness of the nature of allegations which may be settled by agreement, including on terms that may involve the payment of public funds. I accept that the disclosure of information about the allegations may cause some embarrassment or hardship to officials who are named in the statement of claim, and who are not themselves parties to the proceedings, although that is a consequence that will occur in time anyway, if the proceedings do not settle at mediation. The respondents have not established that there is a substantial risk of real prejudice to the proper administration of justice. Weighing all these considerations, on the assumption that I have a discretion to order that the documents the subject of the respondents’ interlocutory application be confidential under r 2.32(3)(a), I would decline to make such an order in all the circumstances of this case.

Conclusion

47    For the reasons given, I am not satisfied that it is necessary to make a suppression order pursuant to s 37AF of the FCA Act in respect of the documents the subject of the respondents’ interlocutory application to prevent prejudice to the proper administration of justice. Nor am I satisfied that it is appropriate to order, pursuant to r 2.32 of the Federal Court Rules, that the documents the subject of the respondents’ interlocutory application (as well as the written submissions on the interlocutory application and the transcript of the interlocutory hearing) be confidential, so as to prevent non-parties to the proceedings from being permitted to inspect them. The interlocutory application dated 26 February 2026 will therefore be dismissed. The interim suppression orders previously made in these proceedings were expressed to have effect until the determination of the interlocutory application. The dismissal of that application will thus have the effect of discharging the interim orders.

Associate:

Dated:    23 March 2026