Federal Court of Australia

Zaydan v Experian Australia Pty Ltd (No 3) [2026] FCA 634

ORDERS

THE COURT ORDERS THAT:

1.    The reasons for judgment in Zaydan v Experian Australia Pty Ltd (No 2) [2025] FCA 1614 be published with the following redactions:

(a)    paragraphs [7] to [12] inclusive; and

(b)    the words in paragraph [13] between “Paragraph 17 of the ASOC” and “alleges as follows”.

2.    Pursuant to r 2.32(1)(b) and (3)(a) of the Federal Court Rules 2011 (Cth), the unredacted reasons for judgment in Zaydan v Experian Australia Pty Ltd (No 2) [2025] FCA 1614 be treated as confidential until further order.

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

REASONS FOR JUDGMENT

HORAN J:

1    On 29 October 2025, I made interim suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in relation to documents filed in this proceeding, until the termination or other conclusion of a mediation process between the parties: Zaydan v Experian Australia Pty Ltd [2025] FCA 1318 (Zaydan (No 1)). Those orders were sought by the applicant, and were made with the consent of the respondents, on the ground that they were necessary to prevent prejudice to the proper administration of justice within s 37AG(1)(a) of the FCA Act, in that the maintenance of confidentiality would facilitate the prospects of settlement of the proceeding at an early stage.

2    The mediation proved to be successful, and the parties entered into a confidential settlement on terms that contemplated the ongoing confidentiality of documents filed in the proceeding, and required the parties to seek consent orders to maintain the confidentiality of those documents. As a consequence of the settlement, orders were ultimately made to dismiss the proceeding with no order as to costs.

3    As anticipated by the settlement agreement, the respondents filed an interlocutory application by which they sought further suppression orders in similar terms to those made on 29 October 2025, but with ongoing effect. The applicant consented to such orders being made.

4    On 1 April 2026, I made further suppression orders in respect of documents filed in the proceeding, including any documents that contain information tending to disclose the allegations or claims that are the subject of the proceeding, for a period of seven years or until further order. In the particular circumstances of the present case, I considered that such orders were necessary to prevent prejudice to the proper administration of justice within s 37AG(1)(a) of the FCA Act. The orders sought by the parties were consistent with the basis on which the interim suppression orders had been made, and were appropriate and adapted to giving effect to the outcome of the mediation process which had resulted in the confidential settlement of the proceedings at an early stage: see, e.g., Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 at [5] (Perram J); cf. George v Council of the King’s School [2026] FCA 394 at [14]–[15] (Wigney J).

5    However, that was not the end of the matter.

6    Between the making of the interim suppression orders and the settlement of the proceeding, the respondents had made an interlocutory application for an order striking out a paragraph in the applicant’s Amended Statement of Claim (ASOC). That application was heard in open court. Indeed, I refused an application made by the applicant at the conclusion of the hearing to suppress matters disclosed in the course of the hearing in relation to the allegations raised in the proceeding.

7    On 18 December 2025, I allowed the respondents’ interlocutory application and struck out paragraph 17 of the ASOC pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth): Zaydan v Experian Australia Pty Ltd (No 2) [2025] FCA 1614. In the light of the interim suppression orders and the pending mediation, my reasons for judgment were ordered to be confidential until the termination or other conclusion of the mediation process between the parties, or further order: Zaydan (No 2) at [34].

8    The mediation process having concluded, it remains necessary to address what further orders, if any, should now be made in respect of the reasons for judgment in Zaydan (No 2). The suppression orders made on 1 April 2026 in respect of documents filed in the proceeding do not cover those reasons for judgment.

9    In such circumstances, the parties sought an order pursuant to ss 37AF and 37AG(1)(a) of the FCA Act and r 2.32(1)(b) and (3)(a) of the Rules that the reasons for judgment in Zaydan (No 2) remain confidential, and not be disclosed to any person other than the parties and their legal representatives, except by leave of the Court.

10    It may be accepted that suppression or non-publication orders should only be made under s 37AF in exceptional circumstances, and that the Court must be satisfied that the order is “necessary” for the relevant purpose under one or more of the grounds set out in s 37AG(1): see Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377 at [8]–[9] (Allsop CJ, Wigney and Abraham JJ). It is not sufficient merely to show that the restriction of publication or other disclosure would be desirable or convenient for the parties, let alone that publication or disclosure would cause “mere embarrassment, inconvenience or annoyance”: Keyzer v La Trobe University [2019] FCA 646 at [29] (Anastassiou J); see generally Rinehart v Welker (2011) 93 NSWLR 311 at [54] (Bathurst CJ and McColl JA); Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) (2015) 331 ALR 68 at [30] (Foster J); Rush v Nationwide News Pty Ltd (2018) 359 ALR 473 at [187]–[188] (Wigney J); Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221 at [27] (Rares, Perry and Hespe JJ); Clean Energy Regulator v Emerging Energy Solutions Group Pty Ltd [2024] FCA 1310 at [37]–[39] (Horan J); cf. FCA Act, s 37AG(1)(d).

11    Further, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 37AE of the FCA Act; see also Country Care at [29]. Among other things, the principle of open justice “facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken”: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272 at [84] (Thawley, Stewart and Abraham JJ); George at [12] (Wigney J). Ordinarily, this entails the availability to the public of applications made and pleadings filed in a proceeding unless a proper basis for confidentiality is established, and such an approach is reflected in r 2.32 of the Rules: see also Llewellyn v Nine Network Australia Pty Ltd (2006) 154 FCR 293 at [17], [23]–[25], [28]–[29], [35] (Rares J). A fortiori, it envisages the publication of reasons for judgment: see, e.g., r 2.32(2)(l).

12    There is presently no occasion to revisit the suppression orders that were made on 1 April 2026. However, the publication of the reasons in Zaydan (No 2) raises different considerations. Those reasons explain the basis on which orders were made in the exercise of judicial power in the proceeding, on an application brought by the respondents to strike out a part of the ASOC. The determination of that application required the consideration of questions of principle relating to the scope of vicarious liability under s 106 of the Sex Discrimination Act 1984 (Cth) (SDA) and the relevance of allegations concerning “workplace culture” and patterns of conduct. In my view, the public interest in open justice weighs overwhelmingly in favour of the publication of the reasons for judgment, subject only to possible redactions in respect of matters that are otherwise confidential and that are not essential to a proper understanding of the basis on which the orders were made.

13    In this regard, I note that the reasons for judgment in Zaydan (No 1) have already been published. It is clear from those reasons that this proceeding arose from an application made by the applicant under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) in respect of alleged contraventions by the respondents of the SDA. The parties to the proceeding were named in the published reasons, which reduces the utility of a pseudonym order now being made.

14    The reasons in Zaydan (No 2) necessarily descended into the pleadings in greater detail, particularly in relation to the paragraph of the ASOC that was the subject of the strike out application. Nevertheless, in so far as the disclosure of such details is necessary to a proper understanding of the application and the basis on which it was determined, I do not consider that an order to prohibit or restrict the disclosure of those matters is necessary to prevent prejudice to the proper administration of justice, notwithstanding that this might impinge upon the confidentiality that is contemplated by the settlement between the parties.

15    In this regard, I am not satisfied that an order under s 37AF of the FCA Act can be justified simply on the basis that the allegation made in the relevant paragraph of the ASOC that was struck out under r 16.21 of the Rules has not been tested or even answered by way of a defence. For such purposes, as Rares J noted in Llewellyn at [23], “[o]rdinary members of the public are well aware of the difference between allegations made in courts and findings made by courts”.

16    On the other hand, paragraphs [7] to [12] and part of paragraph [13] of the reasons in Zaydan (No 2) set out a more general summary of the allegations contained in the ASOC. While that summary provided some background context to the strike out application, it is not necessary to a proper understanding of the issues raised by the application or the basis on which the orders were made. Accordingly, in the light of the suppression orders made on 1 April 2026, those paragraphs should be redacted from the published reasons for judgment in Zaydan (No 2), and orders should be made that the unredacted reasons for judgment remain confidential for the purposes of r 2.32 of the Rules.

Associate:

Dated:    21 May 2026