FEDERAL COURT OF AUSTRALIA

Kelly v Hall & Wilcox (Suppression and Separate Questions) [2026] FCA 750

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and on the grounds referred to in s 37AG(1)(a) of the FCA Act, from the date of this order, the “Confidential Information” (as defined in Appendix A to these orders) not be published or disclosed to or by any person or entity and not be disclosed in the open part of any Court transcript, and be restricted to:

(a)    the parties;

(b)    the parties’ legal representatives;

(c)    any independent expert witnesses for the parties;

(d)    any person who is appointed as a referee pursuant to an order for a reference;

(e)    staff of the Department of Employment and Workplace Relations, Commonwealth of Australia, responsible for administering the Fair Entitlements Guarantee Scheme;

(f)    King’s Counsel or Counsel briefed by the Respondent in proceedings no. VID1277/2017, VID237/2022, VID41/2023; and

(g)    necessary Court staff.

2.    Prior to the tender of any part of any original or copy of any document forming part of the Confidential Information, such documents be marked on each page with the words “Confidential Information for use in Court proceedings NSD336/2025”.

3.    The transcript containing any Confidential Information be redacted by agreement of the parties within three business days of the transcript becoming available to the parties, with the scope of such redactions to be approved by the Court either on the next business day thereafter that the Court sits in the hearing of these proceedings or otherwise via email between the parties and the presiding judge’s Associate.

4.    Orders 1, 2 and 3 shall operate until 4:00pm on 12 February 2027 or until further order.

5.    The Applicants have liberty to apply to the Court to extend the date referred to in order 4, provided that any such application is filed with the Court at least one month before the time expires.

6.    The Applicants file and serve redacted copies of the documents referred to at items 1-12 of Appendix A to these orders.

7.    The matter be listed for a case management hearing on 17 September 2026 at 9:30am.

THE COURT NOTES THAT:

A.    The Court’s reasons for judgment (Kelly v Hall & Wilcox [2026] FCA 567), redacted in accordance with item 13 and table 8 of Appendix A to these orders, will be published 48 hours after the making of these orders, and an unredacted copy will be published after 4:00pm on 12 February 2027 unless the liberty to apply provided for in order 5 has been exercised.

B.    The matter is listed provisionally for a five-day hearing on separate questions, commencing 26 October 2026 at 10:15am.

C.    The separate questions to be determined by the Court prior to the referral to the costs assessor are set out in Appendix B to these orders.

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

REASONS FOR JUDGMENT

NEEDHAM J

Background

1    This matter came before me on 9 April 2026 for a contested hearing on case management. The question raised was whether I should make an order to appoint an expert costs assessor as a referee to inquire into, and determine, the fairness and reasonableness of costs charged by the respondent to the applicants, and the timing of that reference. I reserved my decision.

2    Following that case management hearing, I made an interim suppression order over the affidavits of Colleen Platford and Wayne Kelcey, sworn 14 August 2025 and 31 October 2025 respectively (and their exhibits), as well as the parties’ submissions. I also ordered that by 30 April 2026, the parties file and serve any interlocutory application for a final order pursuant to s 37AF of the Federal Court Act 1976 (Cth) (FCA Act), and any further affidavit evidence and outlines of submissions in support.

3    On 29 April 2026, due to illness in the applicants’ legal team, the applicants emailed my chambers seeking an extension of two weeks to file and serve their interlocutory application and supporting materials (IA). I granted an extension until 13 May 2026.

4    On 8 May 2026, I delivered judgment in relation to the contested hearing on case management (Kelly v Hall & Wilcox [2026] FCA 567 (judgment)). Shortly afterwards, before publishing my reasons for judgment, my Associates received an email from the applicants seeking that I defer publication until after I had considered their IA (which had yet to be filed). The applicants anticipated that they would “likely be instructed to seek that certain passages of the judgment be redacted … prior to it being published to the world at large”. In these circumstances, I agreed to postpone publication of the judgment.

5    As a result of the judgment, I made an order that the parties provide draft orders (either agreed or marked-up to identify disagreement) setting out the separate questions to be heard by the Court and noted that I would determine it on the papers.

6    On 13 May 2026, the applicants lodged their IA seeking orders under s 37AF of the FCA Act and confirmed they were content for it to be dealt with on the papers. The respondent did not oppose this course, or the IA more generally.

7    For the reasons that follow, I am satisfied that the suppression and non-publication orders sought are necessary to prevent prejudice to the proper administration of justice. I have also determined the scope of the separate questions.

Suppression order IA

8    Section 37AF of the FCA Act reads:

37AF 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).

9    The principles pursuant to which an order under s 37AF can be made are not in dispute and are helpfully summarised by Wigney J in Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 1) [2026] FCA 431 at [17]-[29]. In brief, the party seeking such orders bears the “very heavy” onus of persuading the Court to make them, which it will only do in exceptional circumstances. Section 37AF is informed by the grounds in s 37AG of the FCA Act, one of which is that the order is necessary to prevent prejudice to the proper administration of justice. The primary objective of the administration of justice is to safeguard the public interest in open justice, which provides that proceedings should be conducted “publicly and in open view” and “fully exposed to public and professional scrutiny”. As his Honour also noted at [7], the Court must ensure that the grounds for the making of suppression or non-publication orders have been made out, even where the other party does not oppose them.

10    It is well-accepted that a suppression or non-publication order over confidential commercial documents or information may be necessary to prevent prejudice to the proper administration of justice. The test is whether the disclosure or publication of the confidential information is “reasonably likely” to result in commercial harm and unfairness to the party seeking the order such that the administration of justice requires its suppression.

Should a suppression order be made?

11    The applicants seek an order prohibiting the disclosure to persons outside the proceedings, and the publication, of confidential information in various documents until 12 February 2027. Those documents are identified in Schedule B of the applicants’ IA and include the affidavits of Ms Platford and Mr Kelcey referred to above at [2] and their respective exhibits; the parties’ written submissions up to and including those filed on 22 April 2026; and parts of my reasons for judgment dated 8 May 2026. The applicants seek that the confidential information not be disclosed in the open part of any Court transcript, as well as an order that any part of any document forming part of the confidential information, prior to it being tendered, be marked on each page with the words “Confidential Information for use in Court proceedings NSD336/2025”. They further seek an order that any transcripts containing confidential information be redacted by agreement of the parties, with the scope of such redactions to be considered by the Court on the next hearing date or otherwise by email to my chambers.

12    Much of the confidential information represents a subset of that which was the subject of the interim suppression order and, in the applicants’ submission, comprises or refers to four categories of material: (1) material in the nature of legal advice; (2) affidavit evidence, written submissions, and a judgment that summarises or refers to that legal advice; (3) time-entry narratives in the respondent’s itemised invoices to the applicants for legal services performed that would disclose the substance of confidential and privileged information; and (4) confidential litigation funding agreements entered into between the applicants, the liquidator, and the Commonwealth, and associated applications for funding.

13    I understand from Ms Platford’s affidavit of 13 May 2026 (Second Platford Affidavit) that aspects of VID1277 of 2017 (Hastie Group Ltd (in liquidation) & Ors v Multiplex Constructions Ply Ltd & Ors) (the Main Proceedings) remain extant despite the judgments delivered by Middleton J in November and December 2022, which had the effect of dismissing various of the applicants’ and liquidator’s claims but not of disposing of the whole of the proceedings. In particular, there remains a question as to the applicants’ entitlement to recover sums from one or more of the respondents in those proceedings, having regard to the parties’ competing claims and allowing them to be set off against one another. Ms Platford has indicated that settlement negotiations in respect of the Main Proceedings are on foot and progressing, but it may be another three to six months before the outstanding claims are resolved.

14    Given the above, the applicants contend that a s 37AF order is necessary because disclosure or publication of the confidential information would create a risk of prejudice to the settlement negotiations by giving the relevant respondents an unfair forensic advantage in those negotiations (and the Main Proceedings themselves, should the negotiations fail). I agree; it seems to be reasonably likely that the confidential information would, if disclosed or published, prejudice the Main Proceedings, as it would give the relevant respondents insight into the applicants’ case which would not (and should not) ordinarily be available to an opponent in litigation. In coming to this view I have had close consideration to the principle of open justice, and note that the information sought to be the subject of a suppression order is limited to that material which would be reasonably likely to give rise to the above prejudice.

15    The applicants further submit that a portion of the confidential and privileged documents and information the subject of the IA before me is also the subject of a suppression order made by Black J in the Supreme Court of New South Wales on 16 August 2024, extracted at paragraph 23 of the Second Platford Affidavit, and that I should therefore make the suppression and non-publication orders sought so as to uphold the efficacy of that order.

16    In these circumstances, I am prepared to make the orders sought in the applicants’ IA.

Separate questions

17    In relation to the separate questions to be determined prior to the referral to the costs assessor, I made an order that the parties provide draft orders (either agreed or marked-up to identify disagreement) setting out the separate questions to be determined by the Court. They each provided written submissions in support of their respective version. I am aided by Annexure A to the respondent’s submissions, which sets out the revised proposed questions (marked-up to identify points of disagreement between the parties).

18    It is common ground that the following groups of issues should be determined at a separate hearing before me:

(a)    identification of the terms of the retainer between the Hastie Group and/or its General Purpose Liquidators, and the respondent;

(b)    prospects of success of each of the Receivables Case, the Bank Guarantee Case, and the Appeal Proceedings (three proceedings) at relevant points in time; and

(c)    identification and reasonableness of any advice as to prospects.

19    The parties are agreed on the questions in respect of [18](a) and (b) above. However, they disagree on the framing of the questions on the reasonableness of advice, and of those that flow on from this (should I find that the advice given by the respondent and/or their counsel was not reasonable) regarding the reasonableness of the costs incurred.

20    The questions in dispute are (with the respondent’s additions in underline):

Reasonableness of advice

Costs that are not fair and reasonable

21     The parties’ positions are, respectively:

(a)    For the applicants:

(i)    on the reasonableness of advice – that the sub-questions proposed by the respondent regarding the instructions given to it and the litigation objectives of the Commonwealth/Liquidators invite the Court to determine reasonableness prematurely. In other words, before the exchange of evidence is complete and before the Court has considered all circumstances relevant to the reasonableness of the advice and any warning given (of which instructions and litigation objectives may be one factor).

(ii)    on the fairness and reasonableness of the costs incurred – that the applicants’ questions 10 and 11 provide the Court with more flexibility and give better effect to the matters set out in paragraph [38] of the judgment.

(b)    For the respondent:

(i)    on the reasonableness of advice – that its proposed sub-questions are necessary additions because the Commonwealth/Liquidators are experienced and sophisticated litigants, whose instructions and litigation objectives would impact the nature and reasonableness of the advice provided, and be relevant to the question of whether legal work should have been undertaken in the way that it was and ultimately whether costs were reasonably charged.

(ii)    on the fairness and reasonableness of the costs incurred – that its proposed question 9, which asks the Court to determine which legal costs are to be referred to a costs assessor, assists to define the scope of the reference. The respondent says that the Court is likely to be in a position, having answered proposed questions 1-8, to indicate if the costs assessor ought to assess all Legal Costs and, if not, to specify which should be excluded from the assessment. The respondent refers to the overarching purpose and submits that question 9 would help ensure that the scope of the reference is appropriately targeted. It further submits that question 9 does not cause any prejudice to the parties. On the applicants’ proposed questions 10 and 11, which ask the Court to assess whether costs incurred were not fair and reasonable having regard to its view on the reasonableness of advice, the respondent contends these are not appropriate for the Court to determine. In its submission, given the specialised nature of costs assessment, the question of whether costs were reasonable is a matter for an expert “armed with the benefit of the Court’s findings in response to the separate questions”.

What questions should be the subject of the hearing?

22    The respondent’s additions to questions 6, 7, and 8 seek to limit the question of the “reasonableness” of the advice in relation to the three proceedings to the instructions and litigation objectives of the Liquidators and/or the Commonwealth. I agree with the applicants that it should not be so limited. The fact that each of them were “experienced and sophisticated litigants” does not mean that there are no other aspects in determining the reasonableness of the advice apart from their instructions and litigation objectives. The questions should be included without the marked-up additions.

23    The applicants object to question 9. While question 9 is broad, it would be helpful in focusing the attention of the parties and the Court on any aspects of the costs incurred which were plainly untenable. It should be included. Questions 10 and 11, to which the respondent objects, demonstrate the same vice as the proposed sub-questions in 6, 7, and 8; they seek to focus attention on particular aspects of the more general question perhaps to the exclusion of other relevant matters. They should not be included.

24    Accordingly, questions 6 to 9 should read as follows:

Reasonableness of advice

Costs that are not fair and reasonable

Associate:

Dated:    17 June 2026

Appendix A

In these orders, “Confidential Information” means:

1.    the passages of the affidavit of Colleen Anne Platford sworn 14 August 2025 (Platford Affidavit) identified in Table 1 below;

2.    the passages of the affidavit of Wayne William Kelcey sworn 31 October 2025 (Kelcey Affidavit) identified in Table 2 below;

3.    all pages of Confidential Exhibit CAP-2 to the Platford Affidavit;

4.    all time-entry narratives stated in the itemised invoices issued by the Respondent contained at pages 1 to 3620 of Confidential Exhibit CAP-3 to the Platford Affidavit;

5.    all pages of Confidential Exhibit WWK-1 to the Kelcey Affidavit other than:

(a)    pages 1 to 25;

(b)    pages 84 to 279;

(c)    pages 517 to 520;

(d)    page 576;

(e)    pages 587 to 623;

(f)    pages 636 to 646;

(g)    pages 687 to 695;

(h)    pages 1015 to 1078; and

(i)    pages 1086 to 1091;

6.    pages 1 to 143 of Confidential Exhibit WWK-2 to the Kelcey Affidavit;

7.    all time-entry narratives stated in the itemised invoices issued by the Respondent contained at pages 144 to 3531 of Confidential Exhibit WWK-2 to the Kelcey Affidavit;

8.    the passages in the Applicants' written submissions filed 10 March 2026 identified in Table 3 below;

9.    the passages of the Respondent's written submissions filed 25 March 2026 identified in Table 4 below;

10.    the passages of the Applicants' written submissions in reply filed 7 April 2026 identified in Table 5 below;

11.    the passages of the Respondent's further written submissions filed 15 April 2026 identified in Table 6 below;

12.    the passages of the Applicants' further written submissions filed 22 April 2026 identified in Table 7 below;

13.    the passages of the Court's judgment in Kelly v Hall & Wilcox [2026] FCA 567 identified in Table 8 below; and

14.    all information contained in the documents, or parts of documents, referenced in paragraphs 1 to 13 above.

Appendix B

In these orders, the separate questions to be determined prior to the referral to the costs assessor are as follows:

Terms of retainer

1.    What were the terms (express or implied) of the retainer between the General Purpose Liquidators and/or the Hastie Group, and Hall & Wilcox in respect of each of the Three Proceedings?

Prospects

2.    What were the prospects of success of the Receivables Case:

(a)    as at the commencement of the Main Proceeding, being 14 November 2017; and

(b)    from the date on which Hamersley v Forge was handed down, being 21 September 2018.

3.    What were the prospects of the Bank Guarantee Case?

4.    What were the prospects of the Appeal Proceedings?

Advices as to prospects

5.    What advice was given by Hall & Wilcox and/or Counsel:

(a)    concerning the prospects and the pursuit of the Receivables Case;

(b)    concerning the prospects and the pursuit of the Bank Guarantee Case;

(c)    concerning the prospects and pursuit of the Appeal Proceedings,

and for each instance when advice was given, when was such advice given?

Reasonableness of advice

6.    Was reasonable advice given by Hall & Wilcox and/or Counsel, at appropriate time(s) concerning the prospects and pursuit of the Receivables Case?

7.    Was reasonable advice given by Hall & Wilcox and/or Counsel, at appropriate time(s) concerning the prospects and pursuit of the Bank Guarantee Case?

8.    Was reasonable advice given by Hall & Wilcox and/or Counsel, at appropriate time(s) concerning the prospects and pursuit of the Appeal Proceedings?

Costs that are not fair and reasonable

9.    Having regard to the answer to Questions 2-8 above, which Legal Costs are to be referred to a referee for a costs assessment?

SCHEDULE OF PARTIES