Federal Court of Australia

Falco v Zscaler Australia Pty Ltd (No 2) [2026] FCA 837

ORDERS

THE COURT ORDERS THAT:

1.    Until 4 July 2031, 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 dated 15 September 2025 and filed on 16 September 2025 (including the letter enclosed with the originating application);

(b)    paragraphs 5 to 11, 12 and 14 of the concise statement dated 15 September 2025 and filed on 16 September 2025;

(c)    paragraphs 5 to 10, 14 and 21 of the concise statement in response dated 18 December 2025; and

(d)    paragraph 8 of the affidavit of Nicholas David Turner affirmed on 22 October 2025.

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

(a)    the originating application;

(b)    the concise statement;

(c)    the concise statement in response; and

(d)    the affidavit of Nicholas David Turner

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

3.    By 10 July 2026, copies of the following documents be emailed to the associate to Justice Bromwich for upload to the court file for the purpose of meeting any access request:

(a)    the concise statement, redacted in accordance with order 1(b);

(b)    the concise statement in response, redacted in accordance with order 1(c); and

(c)    the affidavit of Nicholas David Turner, redacted in accordance with order 1(d).

4.    The parties have leave to apply for an extension of these orders prior to their expiry on 4 July 2031.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The first respondent, Zscaler Australia Pty Ltd, was the employer of the applicant, Mr Antonie Falco, for about 14 months between April 2024 and June 2025. On 28 January 2026, on the first respondent’s application, I made confidentiality and non-publication orders, to be in force until the later of 1 May 2026 or 7 days after the termination of a mediation process that had been ordered one day earlier. I gave short ex tempore reasons: Falco v Zscaler Australia Pty Ltd [2026] FCA 22. These reasons are to be read with those earlier reasons.

2    Mr Falco made allegations of adverse action under a number of provisions of the Fair Work Act 2009 (Cth). He sought declarations of contravention, compensation and civil penalties. The allegations of adverse action were denied by both respondents. The second respondent is an individual who holds the position of Global Vice President at Zscaler Inc.

3    The earlier reasons concluded by observing that, whatever the outcome of the mediation, if any further suppression and/or non-publication orders were sought by any party, a fresh application would need to be made, with the orders allowing time for that application to be made. On 11 June 2026, Mr Falco applied for confidentiality and suppression orders (rather than non-publication orders). Zscaler supports the application, as it is obliged to do by the terms of the Settlement Deed that was executed following a successful mediation.

4    The confidentiality orders are sought under r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) (the Rules); and the suppression orders are sought under s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act), upon the ground in s 37AG(1)(a), namely that the orders are “necessary to prevent prejudice to the proper administration of justice”.

5    Following the hearing, the parties conferred and provided an updated set of proposed orders. The scope of those orders covers the originating application (including an annexed letter), certain paragraphs of the concise statement and the concise statement in response, as well as a particular paragraph of an affidavit filed in support of a previous application for confidentiality and non-publication orders.

6    I was assisted by the decision of Perram J in Saw v Seven Network (Operations) Ltd [2024] FCA 1210; 305 FCR 340 on the last occasion and I have again been assisted by that decision today. I remain in agreement with his Honour’s reasoning and conclusions at [4] to [21], noting that his Honour’s observations in that case remain mostly applicable to the circumstances of this case. I adopt that reasoning and those conclusions for the purpose of these reasons.

7    As I observed in AxiCorp Financial Services Pty Ltd v CABC (No 3) [2025] FCA 1658 at [2], a decision concerning a settlement-related application of this kind, I am called upon to strike an appropriate balance between:

(a)    on the one hand, the mandatory consideration of a primary objective of the administration of justice being to safeguard the public interest in open justice, as described in s 37AE of the Federal Court of Australia Act; and

(b)    on the other hand, the public interest in the administration of justice by advancing the overarching purpose of this Court’s civil practice and procedure provisions in facilitating the just resolution of disputes, as described in s 37M(1) of that Act.

8    As Mr Falco points out in his written submissions, while he bears the onus of persuading the Court that the order is necessary to prevent prejudice to the proper administration of justice, once the Court is satisfied that an order is necessary it is an error not to make it, citing The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; 275 FCR 377 at [9] (Allsop CJ, Wigney and Abraham JJ). He also correctly points out that although, per s 37AE of the Act, a primary objective of the administration of justice is to safeguard the public interest in open justice, that objective is not engaged in this case because the documents sought to be suppressed have not been used in open court, citing Saw at [21].

9    On this issue, I was also assisted by the subsequent decision of Perram J in Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30, a decision after Saw, made after the parties in that case had completed a successful mediation and negotiated further suppression and non-publication orders as a condition of settlement. After citing Young v Accenture Australia Pty Ltd [2024] FCA 1013 at [76] (Goodman J) and Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 at [55] (Lee J), Perram J further observed at [5]:

The question now is whether the allegations should remain confidential to give effect to the settlement the parties have reached. That the Court can make suppression and non-publication orders in that circumstance is not in doubt: Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at [19]-[21] per Raper J; Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 at [74]-[75] per Lee J. Not every case is the same. However, in this case the settlement has been reached early in the life of the litigation and it is clear that the nature of what is alleged is connected to the fact of the settlement. If suppression and non-publication orders are not made, it would mean that in future cases of this kind, a settlement could not be achieved because the respondent would have no incentive to settle where it was going to be exposed to a blizzard of bad press even if it did. In that circumstance, I accept that the orders proposed are necessary in the requisite sense.

I consider that the circumstances of the case before me make it appropriate to apply those observations to this application.

10    Mr Falco submits that the orders he seeks are necessary to prevent prejudice to the proper administration of justice for three reasons, based on the affidavit evidence filed in support of the application:

(a)    The settlement is contingent upon the Court making orders in the form that he seeks (or orders which are substantially similar), and if those orders are not made, this condition will not be satisfied. This would risk undermining the finality of the settlement reached between the parties.

(b)    If the orders sought are in substance made, the case would be resolved at an early stage of the proceedings, avoiding the necessity of the Court using its finite resources to determine the dispute, noting that no substantive evidence or submissions have been filed in the matter.

(c)    The settlement has been reached on a confidential basis. If the Court were to permit access to the information which is the subject of the application, it would be subversive to the confidential settlement reached by the parties.

11    Upon the basis of the affidavit evidence before me, and the submissions made by Mr Falco (especially those summarised in the preceding paragraph), I am satisfied that the disclosure of the information contained in the documents sought to be suppressed would be prejudicial to the proper administration of justice because it would stand in the way of maintaining the settlement that has been reached. I am therefore satisfied that suppression orders and confidentiality orders expressed by reference to r 2.32(3) of the Rules should be made. So that the information which is not subject to these orders but is contained in the same documents is not effectively rendered inaccessible by third parties, I will also require the parties to provide redacted versions of each document removing the suppressed information which can be provided to third parties upon request.

12    As to duration, the parties initially sought the orders upon a cascading basis of 15 years, or alternatively 10 years, or alternatively 5 years. Recently, in Nicolson v Naizmand (duration of non-publication order) [2026] FCA 635 at [37(c)], I observed that s 37AJ(2):

… provides that the Court, in deciding the period for which [a non-publication order] is to operate, must ensure that it operates no longer than is reasonably necessary to achieve the purpose for which it was made. This reinforces the safeguarding of the public interest in open justice as a mandated primary objective, and builds on the order being necessary in the first place. Duration may be understood to be an element of necessity, or at least a consideration relevant to necessity. …

13    I consider that the two longer periods sought are longer than is “necessary” in the sense of what that word conveys in these circumstances. The duration of 5 years adequately meets the description of necessity. The orders will apply until 3 July 2031, with the parties being given leave to seek to extend them before they expire.

Associate:

Dated:    3 July 2026