Federal Court of Australia

Berryman v NextDC Limited [2026] FCA 1065

ORDERS

THE COURT ORDERS THAT:

1.    The respondent have liberty to provide to the Associate to Justice Lee on 28 July 2026 proposed orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) confined to information in the concise statement filed on 24 June 2026 which is said to constitute trade secrets or other commercially sensitive information, and the requirement to file a further interlocutory application be dispensed with.

2.    Pursuant to s 53A of the FCA Act, the whole of the proceeding be referred to mediation, with such mediation to be conducted by a mediator agreed by the parties or, failing agreement, by a Registrar of the Court, and with the mediation to take place as soon as practicable.

3.    The proceeding be listed for a case management hearing at 9:30am on 28 August 2026.

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 proceeding was commenced by originating application filed on 24 June 2026. The applicant, an employee of the respondent, seeks declarations that his employer contravened s 323 of the Fair Work Act 2009 (Cth) by failing to pay him in full in relation to the performance of work. He also seeks compensation and the imposition of pecuniary penalties.

2    At the first case management hearing on 28 July 2026, the respondent pressed an interlocutory application filed on 22 July 2026 seeking suppression and non-publication orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). By late afternoon on the day before the hearing, the parties had agreed to refer the proceeding to mediation. The respondent then recast the proposed suppression and non-publication orders as “interim” relief. The applicant did not oppose that course.

3    Having indicated immediately that an “interim” order was inappropriate (for reasons I will explain below), the question eventually argued before me today was whether, until the mediation process was terminated, it was necessary to prohibit publication of the whole of the applicant’s concise statement and the whole of a concise response (which had not yet been filed).

4    For the reasons that follow, I was not satisfied that the order sought, in the terms it was sought, was appropriate (let alone necessary, being the statutory standard required).

B    OPEN JUSTICE AND THE STATUTORY SCHEME

5    In Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 (Farrell), I emphasised that the principle of open justice is an indispensable feature of the Australian judicial system. But, as I went on to note at [4]:

…despite these sorts of exhortations, it is an everyday occurrence to see practitioners, even highly experienced practitioners, seeking suppression and non-publication type orders of various types on an impermissibly broad and infirm basis. Moreover, one sometimes comes across examples, particularly in duty matters, of extensive suppression and non-publication orders being proposed (and sometimes made) by consent without the benefit of detailed submissions or analysis – despite the caution of Lord Woolf MR that it is when both sides agree that information should be kept from the public that the Court should be “most vigilant”: R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966 (at 977).

6    In Farrell (at [5]), I also lamented at the widespread practice of seeking inappropriate or unjustifiably broad confidentiality or suppression orders. What occurred in this matter is a further example of that phenomenon.

7    The statutory scheme reflects the primacy of open justice. Section 37AE of the FCA Act requires the Court, in deciding whether to make a suppression or non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The power in s 37AF may be exercised only on a ground specified in s 37AG. The sole ground relied upon here was that the order was necessary to prevent prejudice to the proper administration of justice: s 37AG(1)(a).

8    Section 37AI of the FCA Act permits the Court to make an interim order without determining the merits of the application, but, if such an order is made, the application must be determined as a matter of urgency: s 37AI(2). Interim orders are just that. They are not to be put in place so as to achieve the practical outcome of a final order. I criticised that practice in Johnson v H&M Hennes & Mauritz Pty Ltd [2026] FCA 834 (at [14]–[15]). This is what the so-called “interim” order proposed in this case would have achieved.

9    Moreover, it was also concerning that I was asked to make the order in chambers. Part VAA of the FCA Act also establishes a procedure for the making of such an order. Among those entitled to appear and be heard are a news publisher and any person who, in the Court’s opinion, has a sufficient interest in the question whether the order should be made: s 37AH(2)(d)–(e). The notion that such orders should be sought after hours, in chambers and by consent, without the benefit of argument received in open court, is itself irreconcilable with principles of open justice. The agreement of the parties does not relieve the Court of its independent obligation to be satisfied of the statutory necessity for making the orders.

10    Senior counsel explained that the interlocutory landscape changed late, on the day before the hearing, when the parties agreed to mediation and that the proposed “interim” orders had been prepared in haste. As I have already noted, at the hearing, senior counsel sensibly did not press the interim order and instead sought a final order in the terms of proposed order 4 of the document marked MFI-1. The order ultimately pressed at the hearing was expressed to operate until the mediation process was terminated and extended to all of the filed concise statement and all of the respondent’s future concise response.

C    THE APPLICATION AND EVIDENCE

11    An article concerning this proceeding had apparently been published on 21 July 2026. As I have noted, at 7:52 pm on the evening before the first case management hearing, chambers received a communication from the respondent’s solicitors proposing an interim suppression or non-publication order pending the mediation.

12    The respondent read the affidavit of its Chief Financial Officer affirmed on 22 July 2026. The evidence disclosed three categories of information which were sought to be protected, put in general terms. First, there was price-sensitive information, said to be trade secrets, which could be of benefit to trade rivals. Secondly, there was information concerning the amounts said to be unpaid which might permit conclusions to be drawn about confidential pricing arrangements with a customer and otherwise reveal commercially sensitive material. Thirdly, there was information concerning the amount of commission sought by the applicant and the commercially sensitive way in which it was calculated.

13    The respondent submitted that temporary protection of the two documents would preserve the status quo and facilitate an early settlement at mediation. Reliance was placed upon the decision of Raper J in Patterson v Westpac Banking Corporation [2024] FCA 629.

14    Of course, as explained in Patterson, I accept that there is a public interest in the early settlement of proceedings and that, in an appropriate case, protection from pre-mediation publicity may advance that interest. But the statutory question remains whether the order sought is necessary. This is a fact dependent inquiry and may very much depend on the nature of the allegations made and how necessary suppression may be to a resolution on the evidence adduced.

15    Of central importance, senior counsel frankly accepted that the proposed order pressed was wide and indiscriminate. It was sought as a holding measure pending mediation, even though, irrespective of whether the proceeding settled, the respondent anticipated seeking a more refined and calibrated order directed only to those parts of filed documents which truly amounted to trade secrets or other confidential information. A further curiosity was that the proposed order extended to a document which was not yet in existence or on the Court file.

D    CONSIDERATION

16    Recently, in Forrest v Commonwealth Director of Public Prosecutions [2026] FCAFC 69 (at [68]), I observed (with the agreement of Abraham and Vandongen JJ):

Part VAA of the FCA Act relevantly provides for the making a suppression or non-publication order in relation to “information that comprises evidence or information about evidence” (s 37AF(1)(b)(i)). Any such order should go no further than suppressing that part of the information or that part of the evidence that is necessary and be formulated with “sufficient particularity to ensure” that the order is limited to achieving the purpose for which the order is made” (s 37AH(5)). It necessarily follows that if it is only necessary to suppress some representations contained in a document, the order should be calibrated to ensure that it is only that part of the document that is the subject of suppression.

(emphasis added)

17    Those observations are decisive in the present case. The evidence itself identified particular categories of information in the concise statement said to require protection. The respondent accepted that a more confined order could and should ultimately be framed. In those circumstances, an order prohibiting publication of the whole document was not shown to be necessary merely because it was thought convenient to create a holding pattern pending mediation.

18    Nor could the Court determine whether any, and if so what, information in the future concise response required protection before seeing that document. The Court should not make a suppression or non-publication order in the abstract. If a filed response contains information falling within an established category of commercial sensitivity, an appropriately particularised application can be considered at that time.

19    As to Patterson, I explained in Johnson (at [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.

20    Patterson is an example of such a case. The relief there was sought over specified documents which were then in existence. I do not know enough about those documents to determine whether it was impossible to calibrate the order more finely. I assume, of course, that it was not practicable to do so (because a wider order could not, in my respectful view, be justified). What is fundamental to the principled operation of Pt VAA is that the confidentiality or suppression extend no further than the information which it is necessary to protect.

21    The three categories identified by senior counsel may form the basis of a properly drafted order. I have no difficulty in principle with the protection of genuine trade secrets or other confidential commercial information where the statutory test is met. But that possibility could not justify the indiscriminate order pressed.

E    DISPOSITION

22    I therefore decline to make proposed order 4 in MFI-1. I grant the respondent liberty to provide a further proposed order directed only to those parts of the concise statement that truly require protection as trade secrets or other commercially sensitive information. I will dispense with the need for a further interlocutory application and indicate that, if a properly calibrated proposed order is provided during the course of the day, I am disposed to make it.

23    Separately, and by agreement, I will refer the whole of the proceeding to mediation pursuant to s 53A of the FCA Act, to be conducted as soon as practicable by a mediator agreed by the parties or, failing agreement, by a Registrar of the Court.

Associate:

Dated: 5 August 2026