Federal Court of Australia

Johnson v H&M Hennes & Mauritz Pty Ltd [2026] FCA 834

ORDERS

THE COURT ORDERS THAT:

1.    The respondent pay the applicant’s costs of and incidental to dealing with the respondent’s interlocutory application filed on 23 March 2026 seeking suppression and non-publication orders, including the preparation of submissions in relation to that application, as agreed or taxed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION

1    This case raises an interesting issue, notwithstanding that it is a costs judgment in a proceeding brought by Ms Javena Johnson against H&M Hennes & Mauritz Pty Ltd (H&M) under the Fair Work Act 2009 (Cth) (Act).

2    The issue presently before the Court arises from an interlocutory application filed by H&M on 23 March 2026 seeking final suppression and non-publication orders under Div 2 of Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

3    That interlocutory application is no longer pressed. The remaining controversy is whether the filing and maintenance of the application constituted an unreasonable act for the purposes of s 570 of the Act and, if so, whether an adverse costs order ought to be made against H&M.

B    BACKGROUND

4    Ms Johnson commenced this proceeding by originating application filed on 27 February 2026. The claim is a general protections proceeding arising from the termination of her employment by H&M. Ms Johnson also filed a concise statement and the originating application was accompanied by the certificate issued under s 368 of the Act.

5    The matter received a return date of 10 April 2026 before a Registrar of the Court. Rather than attend the hearing fixed before the Registrar, the parties presented consent orders in chambers. They were in the following terms:

1.    The case management hearing listed on 10 April 2026 be vacated.

2.    Pursuant to section 37AI(1) of the Federal Court of Australia Act 1976 (Cth), an interim suppression order be made pending the final determination of the Respondent’s interlocutory application dated 23 March 2026 (Suppression Application).

3.    The Respondent file and serve a concise response, and an outline of submissions in support of its Suppression Application, by 17 April 2026.

4.    The Applicant file and serve an outline of submissions and any affidavits in response to the Suppression Application by 27 April 2026.

5.    The Respondent file and serve any affidavits and submissions in reply, in support of the Suppression Application, by 8 May 2026.

6.    The Suppression Application and further case management of the hearing of the Suppression Application be referred to a judge of the Court for hearing on a date to be fixed not before 8 May 2026.

7.    Liberty to apply.

6    Without the benefit of any argument, the Registrar acceded to the joint request to make the orders which, as is apparent, foreshadowed the making of orders concerning H&M’s interlocutory application filed on 23 March 2026. That application sought final suppression and non-publication orders under Div 2 of Pt VAA of the FCA Act, including ss 37AF and 37AG.

7    It was said that the orders were necessary to “prevent prejudice to the proper administration of justice”, being the ground relied upon under s 37AG(1)(a) of the FCA Act. H&M sought orders that the whole of the originating application, concise statement, certificate under s 368 of the Act, any concise response, and “any information contained in those documents or derived from those documents” be prohibited from disclosure, except to those involved in the litigation or the Court, until seven days after the conclusion of the first mediation in this proceeding.

8    Why did H&M consider it was appropriate to adopt such a course?

9    The Court has prepared a general practice note entitled Access to Documents and Transcripts Practice Note (GPN-ACCS). It provides, relevantly:

2.4    This open justice approach requires parties to be mindful that (subject to the requirements of the Federal Court Act, the Federal Court Rules and the discretion of the Court), any document that they have filed in the Court may potentially be made available to any member of the public, including the media.

…

4.11    Subrule 2.32(2) establishes the first directions hearing or hearing (whichever is earlier) as the point in time at which non-parties are – in the absence of other orders – generally permitted to inspect unrestricted documents. That is because it is contrary to the administration of justice for respondents to learn of the case made against them, whether through the media or other publication, before they are served or before they have a reasonable opportunity to protect their legitimate interests by seeking properly founded suppression or non-publication orders. However, the Court does expect parties to lodge any application seeking suppression or non-publication orders promptly.

4.12    Recognising the importance of accurate reporting of court proceedings, r 2.32(2) does not expand the processes or basis of suppression or non-publication, or merely enable a party to avoid embarrassment. It is about ensuring that the rules of the Court are not used, knowingly or innocently, as an instrument of injustice.

10    I was informed from the Bar table that the motivation for filing the suppression application was a concern as to whether what occurred before the Registrar, in making orders in chambers, amounted to a “first directions hearing” for the purposes of the access regime contemplated by GPN-ACCS. I accept that confusion as to whether the “first directions hearing” stage had been reached was part of the context in which the application was filed.

11    It might be thought superficially that the filing of the application was not unusual. There have been several decisions of this Court in which judges of the Court have been persuaded to make final suppression or non-publication orders pending the conduct of an early mediation. Properly understood, the common thread running through those cases is that, by reason of the nature of the allegations made in the proceeding, there was a perception that the prospect of settlement on a confidential basis at mediation would be destroyed (or at least materially diminished) if the allegations aired in the filed initiating documents became the subject of pre-mediation publicity.

12    But, as can be seen from the nature of the allegations in this proceeding, the allegations in the present case are a world away from the nature of the allegations made in cases where such orders have been made. The material sought to be suppressed is, on its face, far from scandalous or salacious; nor does it involve confidential information in any ordinary sense; nor does it involve any other type of material one could conceive of as being necessary to suppress for the purposes of the administration of justice.

13    Moreover, there is also a further curiosity about H&M seeking such a suppression order in this case. There is unchallenged evidence before me that a solicitor for H&M communicated with a solicitor acting for the applicant when the case was started and represented that H&M was prepared to defend the proceeding “the entirety of the way”; that it intended to seek costs against the applicant if she commenced proceedings; that H&M had “no concern about media reporting or its reputation”; and that it was the applicant who stood to suffer reputational harm.

14    In any event, I referred above to this case raising an interesting issue: that is, the terms and effect of the orders that were made by consent. The Registrar cannot be faulted, having been presented with consent orders and not having been given the benefit of submissions. But, as can be seen from the orders extracted above, the orders left in place an interim suppression order for a very lengthy period and provided what can only be described as a leisurely timetable for the filing of submissions. Indeed, the suppression application was only to be referred to a judge of the Court for a hearing well over a month after the making of the order. The parties both ought to have known this was unacceptable. Urgent means urgent. To proceed otherwise is to allow an interim order to assume the practical effect of a final order. That is inimical to the foundational principle of open justice.

15    Again, I make no criticism of the Registrar. But such an order was, in my view, impossible to reconcile with the mandatory requirement in s 37AI(2) that, if an interim order is made, the Court “must determine the application as a matter of urgency”.

16    I only became aware of the interim suppression order when the matter was drawn to my attention shortly before the 16 June 2026 listing. The matter was then listed as promptly as possible, consistently with the statutory obligation to resolve whether a final order should be made.

17    In the result, after it was listed, H&M no longer pressed its interlocutory application. By correspondence dated 15 June 2026, H&M proposed orders dissolving the interim order, dismissing the interlocutory application, referring the proceeding to mediation, and making no order as to costs.

18    The applicant agreed with these orders save as to costs, hence the need for these reasons.

C    The costs application

19    The applicant read the affidavit of Ms Mia Pantechis affirmed on 16 June 2026 and the affidavit of Ms Layla Cachalia affirmed on 28 April 2026. H&M read the affidavit of Ms Brittany Byrne affirmed on 11 May 2026. There was no cross-examination.

20    The applicant seeks costs under s 570 of the Act. Relevantly, s 570(2)(b) permits the Court to make a costs order where satisfied that a party’s unreasonable act caused the other party to incur costs.

21    The unreasonable act was originally put by Mr Mahendra, who appeared with Ms Gooch for the applicant, by reference to the principles explained by Jackson J in Sivwright v St Ives Group Pty Ltd [2022] FCA 136 (at [8]–[15]). His Honour there referred to PIA Mortgage Services Pty Ltd v King (No 2) [2020] FCAFC 53, where the Full Court said (at [15]):

Unreasonableness may, however, arise by reason of the nature of the contention that is withdrawn or the circumstances in which that withdrawal occurs (or both). A litigant who fails until the proverbial eleventh hour to withdraw a speculative contention might more readily be thought to have committed an unreasonable omission for the purposes of s 570(2)(b) of the FW Act than would a litigant who withdraws an arguable contention at the same point or earlier. Similarly, the failure to withdraw a contention before the eleventh hour might more readily qualify as an unreasonable omission if there is reason to think that the party withdrawing it could, with proper care, have withdrawn it more promptly. In combination, the timing of the withdrawal, the quality of the withdrawn contention and the circumstances in which the withdrawal was effected inform whether a particular withdrawal trespasses into the realm of unreasonableness. It is, in that sense, that unreasonableness is a question of impression and degree, to be assessed by reference to the particular circumstances of a given case: Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574, 582 [28] (Tamberlin, Gyles and Gilmour JJ).

22    The applicant submitted that H&M’s “capitulation” on the eve of the hearing supported the conclusion that the interlocutory application was unreasonable because it lacked merit. Ms Johnson also submitted that the interlocutory application was, from the outset, misconceived.

D    Consideration

23    I do not think the late abandonment of the application provides the soundest basis for the making of a costs order. The delay in bringing the final suppression application to hearing was at least partly attributable to the applicant having consented to orders which, as I have explained, fly in the face of the need for final applications for suppression or non-publication orders to be determined with celerity.

24    The real and determinative question is whether the decision to file and thereafter maintain the application seeking final suppression and non-publication orders (until immediately before the application could be heard) was one that constituted an unreasonable act within the meaning of s 570 of the Act.

25    H&M’s evidence filed in support of the application did not take the matter very far. The highest the evidence rose was that publication of the allegations at this stage of the proceeding and prior to mediation would, in some unexplained way, “compromise” the prospects of resolving the matter. That evidence was expressed at such a level of generality (and was in such sharp contrast with the other representations made concerning the effect of publicity by the solicitor for H&M (see [13] above)) that the evidence did not provide, and could never have provided, any concrete basis for concluding that the statutory test of necessity could be satisfied.

26    I accept that the access to documents regime in r 2.32 of the Federal Court Rules 2011 (Cth) and GPN-ACCS explains why parties may, in some cases, seek to preserve the status quo before the first directions hearing. But that does not answer the present point. The application made by H&M was not merely an application to preserve the status quo for a short period before the first return date. It sought wide-ranging final suppression and non-publication orders until seven days after the conclusion of the first mediation.

27    It contemplated a blanket and indiscriminate suppression of a range of material which, on its face, was anodyne. With respect, I do not understand how anyone could have ever thought that material of this kind was information which it was necessary, in the interests of justice, to suppress.

28    I suspect that H&M’s belated decision to abandon the application was the result of receiving the benefit of experienced senior counsel’s advice. That was a sensible course to take, but the relevant question is whether it was unreasonable to file and maintain the application in the first place.

29    Having regard to the breadth of the orders sought, the initial position represented by H&M as to publicity, the nature of the material the subject of the application, and the absence of a cogent evidentiary basis to make out the statutory requirement of necessity, I do not consider that there was any reasonable basis for ever thinking that a final suppression or non-publication order would have been necessary.

30    In my view, the bringing of the application amounted to an unreasonable act within the meaning of s 570 of the Act.

31    It is evident, however, by reference to the authorities, that even if the Court is satisfied there has been an unreasonable act or omission, the Court retains a discretion not to proceed to make a costs order.

32    In exercising my discretion, it is well to bear in mind that the limitation in s 570 on adverse costs orders is important. It reflects a legislative policy concerning access to justice in Fair Work proceedings and ensuring that fear of an adverse costs order does not deter litigants from pursuing valid claims: see Mutch v ISG Management Pty Ltd (No 2) [2020] FCA 954.

33    On balance, however, I consider that an order should be made. But it should be carefully calibrated. It should compensate the applicant for the costs caused by the unreasonable act, while reflecting the overall justice between the parties.

34    The order should therefore be confined to Ms Johnson’s costs of dealing with H&M’s interlocutory application seeking suppression and non-publication orders, including the preparation of submissions in relation to that application. It should not extend to any other costs.

E    ORDERS

35    For these reasons, I will order that the respondent pay the applicant’s costs of and incidental to dealing with the respondent’s interlocutory application filed on 23 March 2026, including the preparation of submissions in relation to that application, as agreed or taxed.

Associate:

Dated: 26 June 2026