Federal Court of Australia

Ritter v Savills (Aust) Pty Ltd (No 2) [2026] FCA 1169

ORDERS

THE COURT ORDERS THAT:

1.    The respondents have leave to file and serve their Further Amended Interlocutory Application dated 4 August 2026, in the terms of the document emailed to the associate to the case managing judge on 4 August 2026 at 10.50 am.

2.    Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground referred to in s 37AG(1)(a) of the Federal Court Act, subject to any later order of the Court that may vary or vacate this order, the documents (or parts of documents) identified in Schedule A of this order be ordered to be confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication (except to the parties' legal representatives) be prohibited for a period of 20 years.

3.    Pursuant to s 37AF(1) of the Federal Court of Australia Act, on the ground referred to in s 37AG(1)(a) of the Federal Court of Australia Act, subject to any later order of the Court that may vary or vacate this order, the documents (or parts of the documents) identified in Schedule B of this order be ordered to be confidential within the meaning of r 2.32(1)(b) of Federal Court Rules and their publication (except to the parties' legal representatives) be prohibited until the commencement of the trial of the applicant's claims.

4.    The lawyers for the respondents as soon as reasonably possible provide to the associate to the case managing judge copies of the documents referred to in Schedule A and B redacted so as to accord with paragraphs 2 and 3 of these orders.

5.    The costs of the respondents' further amended interlocutory application dated 4 August 2026 and the respondents' interlocutory application filed 8 April 2026 be reserved.

6.    There be liberty to apply on 14 days' notice.

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

Schedule A

Schedule B

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Shelley Ritter has brought proceedings in this Court against two companies in which she seeks a declaration of unlawful discrimination, damages and costs. She alleges that the companies were responsible for the conduct of other employees when she worked for Savills, a property advisory business. By her statement of claim, Ms Ritter provided particulars of the alleged conduct of those employees over the period 2007 to 2019. The respondent companies (Savills Entities) brought an interlocutory application to dismiss the proceedings as an abuse of process. They contended that the proceedings had been so delayed that they were oppressive or otherwise brought the administration of justice into disrepute. Most of the claims that related to conduct that was alleged to have occurred in the period prior to 2013 were permanently stayed. Ms Ritter was ordered to file and serve a substitute statement of claim. As to these matters see Ritter v Savills (Aust) Pty Ltd [2026] FCA 996 (Stay Reasons).

2    In the meantime, the Savills Entities had applied for non-publication orders to be made if their application for a permanent stay of the proceedings was successful. The proposed orders would keep the materials confidential from third parties seeking to inspect the Court file and would otherwise restrict publication, except to the parties' legal representatives, for a period of 20 years. The Court had also received a media request for access to a copy of the application and statement of claim in the proceedings. In those circumstances, when the Stay Reasons were delivered, general publication of those reasons was deferred until after the hearing of the application for non-publication orders.

3    The Savills Entities sought leave to amend their interlocutory application for suppression. Broadly speaking, they proposed non-publication orders as to two categories of matters referred to in the documents on the Court file in the proceedings, namely:

(1)    References to matters that had been the subject of the permanent stay;

(2)    References in the affidavit material to allegations that it was submitted were not referable to any claim made in the proceedings.

4    On 4 August 2026, I heard the application for non-publication orders.

The relevant principles

5    Provision is made for the making of suppression or non-publication orders in Part 5AA of the Federal Court of Australia Act 1976 (Cth). Relevantly, for present purposes, such orders may be made where they are necessary to prevent prejudice to the proper administration of justice. The principles to be applied are well established.

6    It is insufficient that the making of a suppression order appears to be convenient, reasonable or sensible. Further, consideration by the Court as to whether to make a suppression order does not involve a balancing exercise in which views as to what may be in the public interest are weighed against each other. Rather, the question is whether the Court is satisfied that the suppression order is necessary. If it is so satisfied, the order should be made. If not, it should be refused: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [31]‑[33] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).

7    In context, the use of the word 'necessary' to describe the criterion to be met for making a suppression order is a strong word: Hogan at [30]. Whether the order is necessary is to be measured by reference to the fact that it is to be made as part of the procedures to be followed in the exercise of judicial power, a task that is fundamentally one that should take place openly such that it can be subjected to public scrutiny. In deciding whether to make a suppression order 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.

8    The nature of the requirement that the order be 'necessary' has led to the onus on the application for a suppression order being described as a heavy one: Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170 at [22] (Gleeson J).

9    As was explained in The Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377 at [9] (Allsop CJ, Wigney and Abraham JJ):

The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

Category (1): matters that had been the subject of the permanent stay

10    I was persuaded that it was in the interests of justice to make a non-publication order as to the claims that were the subject of the permanent stay. The stay had been granted on the basis of a determination that the passage of time meant that any prospective trial would be unfair or so unjustifiably oppressive as to amount to an abuse of process. Publication of matters relating to the conduct of court proceedings enjoys absolute privilege: Mann v O'Neill (1997) 191 CLR 204 at 211-212 (Brennan CJ, Dawson, Toohey and Gaudron JJ). In consequence, if the order sought was not made, the allegations could be published even though the Court had determined that a fair trial of the defence of the allegations could not be conducted. The effectiveness of the stay order as a protection of the integrity and fairness of the process for the administration of justice conducted by the Court would be thereby undermined.

11    I indicated that view to the parties during the course of the hearing.

Category (2): matters submitted to be not referable to any claim made in the proceedings

12    The second category of matters in respect of which the non-publication order was sought posed a difficulty. It invited some form of interlocutory assessment as to whether particular parts of documents, especially the contents of affidavits that had been filed in answer to the stay application, were relevant to claims made and to be pursued by Ms Ritter in the proceedings. Further, the Court was invited to make that assessment at a time when the Savills Entities were yet to file a defence and well before a trial at which the Court would ordinarily receive evidence.

13    The difficulty arose for two reasons. First, the practice and procedure of the Court required Ms Ritter to file as an appendix to her application a copy of her original complaint to the Human Rights Commission. In her case, the complaint included a detailed outline of her claims and a detailed witness statement. Second, the parties included as annexures to their affidavits on the interlocutory application for a stay of the proceedings, various detailed statements and other documents of a kind that would ordinarily be adduced at trial. This was done for limited purposes, particularly to support submissions as to when claims had first been raised and the extent of detail provided as to those claims. There were also submissions which sought to compare those claims with those which appeared to be raised by the statement of claim. These parts of the affidavits were not advanced for the purpose of inviting the Court to reach any conclusion as to the veracity of these matters.

14    Significantly, at trial, the Court is able to supervise the process for the receipt of evidence and allow for the evidence to be scrutinised by way of cross-examination. Rulings can be made as to admissibility informed by the nature of the case as opened at a final hearing. Parties have rights to challenge the evidence. In the meantime, the Court is concerned to maintain the integrity of the evidence of prospective witnesses. Publication to the world at large of the detailed evidence that might be given by particular witnesses at the final hearing has the potential to undermine the independence of recollections. Usually, statements of the evidence to be given by witnesses should be prepared without taking the witness to the versions of events that have been taken from other witnesses. This form of leading (which may transgress into coaching) is improper.

15    Further, lawyers are subject to professional obligations when it comes to material advanced through witnesses: see Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200-201 (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) (as to abuse of privilege by introducing damaging irrelevant material into a proceeding). Supervision by a judge at trial of the process of receiving evidence will usually be the appropriate way to ensure such obligations are met.

16    Finally, it was apparent from a general consideration of the evidence that had been received on the interlocutory application for a stay of the proceedings that there was the potential for unfairness if the evidence was to be published outside the context of a trial and, consequently, outside of a process in which cross-examination, the presentation of answering evidence and the making of submissions may also occur as part of a public hearing. Also, there were matters to be addressed by the evidence in the proceedings that may require consideration as to whether they were ultimately relevant and were properly to be adduced in the proceedings. I stress that I am not suggesting that I have formed the view that there has been anything improper in how the parties have proceeded or that there is material before the Court that should not be before the Court or that I have particular concerns as to such matters. Rather, I am simply observing that there is the potential for disputes as to such matters that are appropriately addressed at trial, as well as the potential for unfairness if matters were to be released.

17    Additionally, there is the potential for refinement and revision of the matters in issue. Therefore, assessments made now as to whether particular material is or is not relevant may need to be revisited. Considerable time may be taken in considering whether particular material should be the subject of a non-publication order only for there to be a need, at a later stage, to reconsider the position. In the meantime, public access may be given to material which ultimately was not relevant to the issues joined at trial and without the context of a trial and the protections it affords. False impressions may be formed as to the extent of the evidence based upon what is or is not made available for public access.

18    For those reasons, I formed the view that, in the present circumstances where large amounts of evidence of the kind that would usually be presented at trial was before the Court on the interlocutory application, the Court itself had an interest in preserving the confidentiality of that material until trial. Further, there was the potential for unfairness in reaching conclusions at an early stage of the proceedings as to whether particular evidence was relevant (and consequently should be allowed to be the subject of access applications before trial on the basis that the evidence had been relied upon for interlocutory purposes). I was, therefore, persuaded that non-publication orders should be made as to the second category of materials (and some additional materials), but only up until trial.

19    I also indicated those views to the parties during the course of the hearing.

The making of orders as to access

20    The parties were requested to confer as to orders. I have since received a minute of proposed orders. Having considered the terms of the schedules as to the extent of proposed non-publication orders I am satisfied that the schedules reflect the views I had formed as to the extent of those orders. For those reasons, I am persuaded that there should be orders substantially in the terms proposed. They provide for those acting for the Savills Entities to provide redacted versions of the documents to give effect to those orders.

21    In the meantime, the Court has provided a redacted version of the statement of claim in response to the media request. Once a redacted version of the application has been received it will be provided in response to the request.

Cost order

22    Ms Ritter sought an order for costs, relying on s 46PSA of the Australian Human Rights Commission Act 1986 (Cth). It applies to applications brought pursuant to the statutory provision relied upon by Ms Ritter in these proceedings. Section 46PSA provides that 'if the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicants costs'. Ms Ritter sought costs on the basis of a submission to the effect that she had been successful in opposing the application to stay the whole of her application. However, it appears that the ultimate outcome must be known in order for s 46PSA to be applied. The Savills Entities did not accept that Ms Ritter had been successful on the interlocutory application and proposed that there be no order as to costs. In those circumstances, I determined that the appropriate outcome was to reserve the costs.

Associate:

Dated:    20 August 2026