Federal Court of Australia

JYE26 v KAB26 [2026] FCA 1250

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1.    The proceeding is dismissed.

2.    There be no order as to costs in the proceeding.

THE COURT ORDERS THAT:

3.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (Act), on the ground referred to in s 37AG(1)(a) of the Act, the following documents filed in the Court are ordered to be confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication and inspection (except to the parties’ legal representatives) be prohibited:

(a)    Originating Application filed on 18 November 2025, including accompanying documents;

(b)    Statement of Claim filed on 18 November 2025;

(c)    Defence filed on 22 January 2026; and

(d)    Reply filed on 12 February 2026.

4.    By 4:00pm AEST on 31 August 2026, the parties advise whether any redaction or suppression of the reasons for judgment delivered on 27 August 2026 is necessary to prevent prejudice to the proper administration of justice, and if so, provide complete particulars of any redaction or suppression sought, accompanied by supporting submissions of not more than two pages.

5.    Pursuant to s 37AI of the Act, there be no publication of the reasons for judgment delivered on 27 August 2026 before 31 August 2026, or until further order.

6.    In the event that the parties do not advise that any redaction or suppression is necessary pursuant to order 4, the reasons for judgment delivered on 27 August 2026 be published after 31 August 2026.

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

REASONS FOR JUDGMENT

MEAGHER J

introduction

1    By an interlocutory application filed on 21 April 2026 (Suppression Application), the respondent in this proceeding seeks orders (Suppression Orders), pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act), on the ground referred to in s 37AG(1)(a) of the FCA Act, that the following documents filed be ordered to be confidential within the meaning of r 2.32(1)(b) of the Federal Court Rules 2011 (Cth) and their publication and inspection (except to the parties’ legal representatives) be prohibited:

(1)    The applicant’s originating application filed on 18 November 2025 (Originating Application).

(2)    The applicant’s statement of claim filed on 18 November 2025 (Statement of Claim).

(3)    The respondent’s defence filed on 22 January 2026 (Defence).

(4)    The applicant’s reply filed on 12 February 2026.

2    The Originating Application attaches a copy of the original complaint to the Australian Human Rights Commission (AHRC) and the notice of termination of complaint given by a delegate of the President of the AHRC.

3    On 19 December 2025, Horan J made interim orders pursuant to s 37AI of the FCA Act that the documents referred to at [1(1)] and [1(2)] above are confidential within the meaning of r 2.32(1)(b) of the Rules, and that their disclosure be prohibited.

4    The respondent seeks the Suppression Orders on the basis that such orders are “necessary to prevent prejudice to the proper administration of justice after the parties settled the proceeding at an early stage on confidential terms, but a media outlet has previously sought access to the originating application and statement of claim”. The respondent’s overarching submission is that such orders have been made in similar circumstances, and there is no reason to depart from that line of authority.

5    The respondent relies on affidavits of Mr Gunningham filed on 8 December 2025 (First Gunningham Affidavit) and 21 April 2026 (Second Gunningham Affidavit) and the Suppression Application. Much of the background set out below is derived from the uncontradicted evidence contained in the First and Second Gunningham Affidavits. The applicant does not rely on any material, and supports the making of the Suppression Orders. The parties also jointly seek the dismissal of the proceeding by consent, with no order as to costs.

background

6    By the Originating Application and Statement of Claim, the applicant commenced this proceeding. On 20 and 25 November 2025, the Court received non-party access requests from Lawyerly Media and the Australian Financial Review, respectively, in respect of the Originating Application and Statement of Claim. On 13 March 2026, the parties attended a mediation pursuant to orders made on 4 December 2025. During that mediation, the parties agreed to settle the proceeding upon the terms of a deed (Deed). The Deed includes an obligation that each party must keep confidential the fact, making and terms of the Deed, and all matters, negotiations, communications or discussions preceding its execution, and must not, at any time, reveal any of those matters or things to any person. This obligation prohibits the parties from publishing details regarding the allegations made during the course of the proceeding, with limited exceptions. An exception is that the parties may provide the above-mentioned information to the Court for the purpose of the Suppression Application. No copy of the Deed is before the Court; however, the relevant contents (above) are deposed to in the Second Gunningham Affidavit.

7    The Suppression Application was heard before me on 4 June 2026. The representatives of Lawyerly Media and the Australian Financial Review were notified, prior to the hearing, of their right to appear pursuant to s 37AH(2) of the FCA Act. The representative of the Australian Financial Review indicated that he did not intend to appear. No response was received from the representative of Lawyerly Media.

principles

8    Sections 37AE, 37AF and 37AG of the FCA Act provide as follows:

37AE Safeguarding public interest in open justice

In deciding whether to make a suppression order or non-publication 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.

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).

37AG  Grounds for making an order

(1)     The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)     the order is necessary to prevent prejudice to the proper administration of justice;

(b)     the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)     the order is necessary to protect the safety of any person;

(d)     the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

(2)     A suppression order or non-publication order must specify the ground or grounds on which the order is made.

9    Rule 2.32 of the Rules provides as follows:

2.32  Inspection of documents

(1)     A party may inspect any document in the proceeding except:

(a)     a document for which a claim of privilege has been made:

(i)     but not decided by the Court; or

(ii)     that the Court has decided is privileged; or

(b)     a document that the Court has ordered be confidential.

(2)     A person who is not a party may, after the earlier of the first directions hearing and the hearing, inspect the following documents in a proceeding in the proper Registry:

(a)     an originating application or cross-claim;

(b)     a pleading or particulars of a pleading or similar document;

(c)     an interlocutory application;

(d)     in a proceeding to which Division 34.7 applies:

(i)     an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)     an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar.

…

(3)     However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)     be confidential; or

(b)     is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note: For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

…

10    In Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; 275 FCR 377, the Court at [7] – [9] stated as follows:

The relevant principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are fairly well settled.

Suppression or non-publication orders should only be made in exceptional circumstances. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle.

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”. It is nevertheless not to be given an unduly narrow construction. 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. There is no exercise of discretion or balancing exercise involved.

(References omitted.)

11    These principles were affirmed by the Full Court in AHG WA (2015) Pty Ltd v Mercedes-Benz Australia/Pacific Pty Ltd (No 2) [2025] FCAFC 97 at [10].

submissions

12    The respondent refers to the following cases as authority for the making of suppression and non-publication orders in respect of Court documents after the early settlement of a proceeding: Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818; Ryan v Transurban Ltd [2024] FCA 994; Saw v Seven Network (Operations) Ltd [2024] FCA 1210; 305 FCR 340 at [8] (Saw (Pre-Settlement Suppression Orders)); McLaughlin v Glenn [2020] FCA 679 at [15], [31]; Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 at [9]; Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 (Saw (Post-Settlement Suppression Orders)); Szyssko v Gucci Australia Pty Ltd [2026] FCA 109. In particular, the respondent relies by analogy on Patterson, Ryan, Saw (Post-Settlement Suppression Orders) and Szyssko.

The Suppression Orders are necessary to prevent prejudice to the proper administration of justice

13    The respondent submits that a suppression order in relation to documents containing details of the allegations between the parties is necessary to prevent prejudice to the proper administration of justice. First, this proceeding has settled at an early stage, namely shortly after the close of pleadings. Neither party has filed evidence or submissions, and the Court has not adjudicated any allegations. There is a public interest in the settlement of litigation at an early stage, and discouraging such settlements would prejudice the proper administration of justice, for the reason that part of the parties’ settlement is an agreement to keep the allegations set out in the documents filed with the Court confidential, and such an agreement would be undermined if the documents became publicly available. An additional reason is that it would erode public confidence in the negotiation if private bargains settling litigation cannot be maintained due to confidentiality not being maintained. The “proper administration of justice” therefore includes potential frustration or subversion of the private agreement to settle the proceeding.

14    Second, serious allegations agitated in the applicant’s Originating Application and pleadings remain untested, and the persons in respect of whom they are made have not had an opportunity to defend themselves. Therefore, any publication would give an incomplete account of the dispute.

The Suppression Orders should operate indefinitely

15    The respondent seeks that any suppression order made operate indefinitely. The respondent identifies three sources of prejudice from the cases primarily relied upon:

(1)    The potential frustration of the private agreement of the parties in this case to settle the proceeding, containing obligations of confidentiality.

(2)    The erosion of the freedom of parties to litigation to conduct negotiations and achieve a settlement because they may not be able, and would not be incentivised by the prospect of trying, to ensure their allegations remain confidential.

(3)    The publication of an incomplete account of the dispute.

16    It submits that the causes of prejudice continue to exist after the making of a non-publication order, and therefore imposing any operational period on a non-publication order is incompatible with the proper administration of justice, having regard to the above-mentioned sources of prejudice. The confidentiality obligations will apply indefinitely, so imposing an operational period could frustrate these obligations by allowing publication. Permitting publication at some later date would still erode other litigants’ incentive to negotiate a confidential settlement. Any publication based on the Court documents would still be incomplete.

17    In the alternative, the respondent seeks that if an indefinite operational period is not granted, the Suppression Orders operate for five years.

consideration

18    I consider that the Suppression Orders sought should be made for an indefinite period.

The Suppression Orders are necessary to prevent prejudice to the administration of justice

19    I agree that the Suppression Orders are necessary in this proceeding to prevent prejudice to the proper administration of justice.

20    In Patterson, Raper J ordered, pursuant to s 37AF of the Act, that several documents, including the applicant’s originating application and statement of claim, be confidential within the meaning of r 2.32(1)(b) of the Rules and their publication and inspection prohibited: at [5]. The proceeding had been settled at an early stage by a deed of settlement imposing strict confidentiality obligations on all parties save for an agreed statement to be used in response to third-party enquiries: at [8] – [9]. No pleadings had been exchanged and no adjudication of the relevant issues had occurred: at [9]. Her Honour recognised that when determining the necessity of preventing prejudice to the administration of justice, it may be relevant that the lack of access to the Court file may enhance the prospect of negotiations: at [17]. Further, there is a very significant public interest in early settlement of proceedings: at [18].

21    Her Honour accepted that prejudice to the proper administration of justice was established on the basis that the proceeding had settled at an early stage, by way of a deed maintaining confidentiality regarding the allegations made in the documents which included the originating application and statement of claim. Allowing access to these documents would subvert the parties’ settlement. It would also give an incomplete account of the dispute, given that no defences, substantive evidence or submissions had been filed: at [19], [27]. The resolution would likely be undermined by third-party access. Therefore, the relevant prejudice included the possible frustration of the parties’ freedom to conduct negotiations and achieve a settlement, and their attempts to achieve finality in the proceeding: at [20]. Therefore, allowing access would erode public confidence in private bargains being maintained, in circumstances where settlement had been reached at an early stage: at [21]. Finally, the principles of open justice were not infringed because the Court had not been required to adjudicate any issue: at [23]. No exercise of judicial power, save for referral to mediation and the determination of an interim suppression application, had occurred: at [24].

22    In Ryan, Rangiah J made orders pursuant to s 37AF of the FCA Act and r 2.32(1)(b) of the Rules that, inter alia, the originating application, statement of claim and defence be ordered to be confidential and their publication prohibited. In that case, the proposed settlement of the proceeding was subject to a confidentiality clause: at [37]. At [24] – [27], his Honour referred to the rationale of the “open justice principle”, namely that “court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances”: Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 255 CLR 46 at [44]. His Honour noted that the objective of s 37AE of the Act in safeguarding the public interest in open justice encompassed the open justice principle: at [25]. Then, his Honour considered that, in light of the weight of authority, the open justice principle was only engaged in respect of filed material when that material was used in court: at [26] – [27].

23    However, his Honour considered that s 37AE of the FCA Act did not confine the public interest in open justice to the common law open justice principle, and that this was recognised by r 2.32(2) of the Rules, which gives an entitlement to a member of the public to inspect the filed documents referred to therein after the first case management hearing, subject only to a contrary order, regardless of whether they had been used in court: at [31] – [33]. On the basis that the “public interest in open justice” encompassed the entitlement to inspect documents pursuant to r 2.32(2) of the Rules, his Honour considered that s 37AE of the FCA Act required that any detraction from that entitlement be taken into account when deciding whether to grant a suppression order: at [33]. In Saw (Pre-Settlement Suppression Orders), Perram J at [20] differed from this view, on the basis that (1) delegated legislation in the form of r 2.32(2) of the Rules could not affect the meaning of “the public interest in open justice” in s 37AE of the FCA Act, and (2) an intermediate appellate Court had accepted that “open justice” in the equivalent to s 37AE of the Act was a reference to the open justice principle at common law: Rinehart v Welker [2011] NSWCA 403; 93 NSWLR 311 at [32] (Bathurst CJ and McColl JA). On that basis, the open justice principle had “no work to do” in the proceeding because that principle did not require access to a document unless it had been used in open court. There, the pleadings had not yet been relied upon in open court: at [21].

24    In Ryan, the statement of claim contained allegations of sexual harassment and victimisation by named employees of the respondent, none of whom were parties or had had an opportunity to answer the serious allegations and defend themselves. His Honour considered that it would be unfair to allow the public to access and publish these untested allegations, and redacting their names would not adequately protect their identities given the surrounding factual circumstances pleaded: at [38] – [39]. A suppression order in respect of the statement of claim was therefore necessary to prevent prejudice to the proper administration of justice: at [40]. That position was the same as regards the defence: at [41]. His Honour also considered that it was necessary to suppress an affidavit annexing the statement of claim, the defence, and correspondence from the AHRC providing reasons for its decision to terminate the applicant’s complaint. Those reasons attached the applicant’s complaint made against both the respondent and an employee not party to the proceeding: at [42]. His Honour relied on the remarks of Mortimer J (as her Honour then was) in Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [28] that “the confidentiality of the AHRC process, with its concomitant public interest considerations, would be significantly undermined by the release of an AHRC complaint, unless an applicant consents”.

25    As to whether a non-publication order should be made with respect to the applicant’s originating application, his Honour noted that r 34.163(2) of the Rules required an originating application commencing a proceeding under the Australian Human Rights Commission Act 1986 (Cth) to be “accompanied by” a copy of the original complaint to the AHRC and a notice of termination of the complaint: at [44]. His Honour noted the decision of McLaughlin, where Abraham J had held that the AHRC complaint accompanying an originating application does not form part of the originating application. Her Honour there considered that it therefore did not fall within a third-party access request to inspect the originating application, or fall within any other category of documents in r 2.32(2) that might be obtained by a third party as of right: at [12]. Rangiah J considered that suppressing the originating application would serve no useful purpose because it would reveal no more than that a proceeding had been commenced alleging unlawful sexual harassment and victimisation, in respect of which the respondent was vicariously liable. There was no suggestion that the terms of the settlement prohibited this: at [47]. This would also be revealed by the transcript of the hearing, which a non-party could access under r 2.32(2)(m) of the Rules, and in respect of which no non-publication order was sought: at [48]. However, his Honour ordered that the originating application be suppressed, on the applicant’s undertaking to file an originating application redacting the name of the relevant employee which the originating application referred to, who was the subject of the allegation of victimisation: at [49].

26    In Saw (Post-Settlement Suppression Orders), the parties had settled the proceeding following mediation, such settlement being contingent on the Court making suppression and non-publication orders over, inter alia, the statement of claim, defence and reply: at [3]. There, Perram J considered that the orders were necessary to prevent prejudice to the administration of justice on the basis that settlement had been reached early in the proceeding, especially in light of the nature of the allegations made: at [5]. Further, if the orders were not made, in future cases the parties would not be incentivised to settle if the respondent would “be exposed to a blizzard of bad press” even if it did settle: at [5].

27    In Szyssko, Owens J made orders pursuant to r 2.32(3)(a) of the Rules and s 37AF of the Act that, inter alia, the originating application and statement of claim be confidential, and that there be no disclosure thereof. Relevant considerations to his Honour’s decision included that the settlement was reached before the case management hearing, very shortly after the proceeding commenced. Further, the defendant had not had an opportunity to respond to the plaintiff’s allegations and the Court had not adjudicated thereon. His Honour recognised the “very significant public interest” in encouraging settlements at an early stage. The evidence established that absent a term relating to confidentiality in the terms of settlement, the proceeding would not have settled when it did, or at all: at [26].

28    The above-mentioned cases emphasise the significant public interest in the early settlement of proceedings. That significant public interest has application to this proceeding, in which the parties reached an in-principle agreement following a mediation held on 13 March 2026, which mediation was set down on 18 December 2025. The parties to the proceeding have filed pleadings, but have not filed evidence or submissions in respect of the substantive allegations. The applicant’s reply was filed on 12 February 2026, approximately one month before the mediation was held.

29    Prejudice to the proper administration of justice in the event that Suppression Orders are not made is demonstrated on the bases outlined by the respondent. First, I accept that not granting the Suppression Orders sought would discourage the early settlement of litigation. The lack of access to the Court file may be an incentive to negotiate and settle proceedings: Patterson at [17]; Saw (Post-Settlement Suppression Orders) at [5]. Second, I accept that the absence of non-publication and suppression orders would undermine the parties’ agreement and would erode public confidence in settlement negotiations. The term of the Deed requiring the parties to maintain confidential the details of this proceeding, and consequently their freedom to negotiate and settle the proceeding, would be subverted: Patterson at [19] – [20]. In this regard, I accept Mr Gunningham’s uncontradicted evidence regarding the confidentiality term in the Deed, and note that the precise terms need not be before the Court for non-publication orders to be made: Patterson at [14].

30    Third, the allegations made in the Originating Application and Statement of Claim (to which the Defence is responsive) remain untested. In particular, the employees of the respondent in respect of whom the conduct the subject of this proceeding is alleged, who are not parties to this proceeding, have not had an opportunity to defend themselves. It would therefore be unfair to them for these untested allegations to be published: Ryan at [38] – [39]; Szyssko at [26] – [27]. It is also relevant that no evidence or submissions have been filed in the substantive proceeding, which also renders the account of the dispute incomplete: Patterson at [19]. I agree that any publication of the documents referred to at [1] would give an incomplete account of the dispute.

31    Finally, whether or not the “public interest in open justice” required to be taken into account under s 37AE of the FCA Act is coextensive with, or goes beyond, the common law open justice principle, I consider that it is necessary to prevent prejudice to the administration of justice to make the Suppression Orders. No exercise of judicial power, save for the referral of the proceeding to mediation and the determination of an interim suppression order, has occurred: Patterson at [24]. The documents referred to at [1] have not been relied on in open court save for the limited purpose of seeking interim and final non-publication and suppression orders. The Court has not adjudicated on the issues in dispute. Therefore, the rationale of the principle of open justice, namely the facilitation of public scrutiny of the way in which courts decide cases and the ability of the public to understand how the justice system works, has not been infringed: Patterson at [23] – [24]. To the extent that the detraction from the entitlement of a member of the public to inspect documents on the Court’s file is relevant (and to the extent that such an entitlement is enlivened in this case), I consider that notwithstanding any such entitlement, it remains necessary to prevent prejudice to the administration of justice to grant the Suppression Orders. The exercise of any entitlement will not shed light on the administration of justice because, as stated above, the Court has not adjudicated any substantive issue in this proceeding.

32    For these reasons, the Suppression Orders should be made in respect of documents listed at [1(2)], [1(3)] and [1(4)] (i.e., the pleadings). As to the Originating Application, I consider that the relief sought in that document makes sufficiently clear the allegations made in respect of the respondent, such that a third party would be able to understand, in broad terms, what the proceeding is about: cf Ryan at [45]. In these circumstances, I do not think, in contrast to Ryan, that suppressing the Originating Application would serve no useful purpose: see at [48]. While it might be accepted that the original complaint to the AHRC and the notice of termination of complaint given by the delegate of the President of the AHRC, being “accompanying documents”, do not form part of the Originating Application, I consider that suppression of the entirety of the Originating Application is necessary to prevent prejudice to the administration of justice. First, as noted by Rangiah J, relying on Oldham at [28], “the confidentiality of the AHRC process, with its concomitant public interest considerations, would be significantly undermined by the release of an AHRC complaint, unless an applicant consents”. This appeared to be a factor leading to his Honour’s decision that suppressing an affidavit annexing, inter alia, the notice of termination of complaint from the AHRC, was necessary to prevent prejudice to the proper administration of justice. Second, as recognised by Abraham J in McLaughlin at [14] – [15], extending the order to the schedules to the Originating Application will prevent these from erroneously being provided, should a request to inspect the Originating Application be made.

The Suppression Orders should operate indefinitely

33    The respondent recognises a divergence in the above-mentioned authorities as to the operational period of the relevant order.

34    In Patterson, the confidentiality and non-publication orders operated for an indefinite period, whereas in Ryan, the confidentiality and non-publication orders operated for a period of 30 years: at [50]. In Saw (Post-Settlement Suppression Orders), Perram J did not consider an indefinite or 10-year period appropriate because, while the material filed in that proceeding was “topical” at that time, his Honour was sceptical that it would remain so after five years. On that basis, orders were made for a five-year duration, with a right reserved to the parties to apply for a further extension when that period expired: at [6].

35    In Szyssko, Owens J was not prepared to, and ultimately did not, make orders operating for an indefinite period. His Honour considered that the parties’ legitimate interests would be protected by a nominated term, especially where it remained open to the parties to extend the term upon demonstrating a proper basis to do so: at [30]. His Honour ultimately made orders operating for a period of five years: at [33].

36    I agree with the respondent that the Suppression Orders should operate indefinitely. I agree that the sources of prejudice to the proper administration of justice are not mitigated over time. First, there was no indication that the confidentiality obligation in the Deed would expire. Thus, any expiration of the Suppression Orders would frustrate the parties’ agreement to settle the proceeding. Second, I agree that in circumstances such as those in this proceeding, the potential for any suppression and non-publication orders to expire after a period of time would disincentivise parties from negotiating and achieving a settlement. Third, notwithstanding the time elapsed, ultimately the disclosure of the documents at [1] would result in the publication of an incomplete account of the proceeding. Contrary to the position in Saw (Post-Settlement Suppression Orders), I am not satisfied that any decreased risk of publication will reduce the risk of prejudice to nothing; rather, there is still a risk of publication which would give rise to the examples of prejudice to the administration of justice referred to above. In any event, while the risk of publication may lessen over time, the prejudice to the administration of justice flowing from the inspection of the relevant documents under r 2.32 of the Rules does not.

37    Further, in circumstances where the allegations raised are serious, and prejudice to the administration of justice is likely to arise by reason of publication despite the effluxion of time, I do not think it appropriate to make orders for a defined period and invite the parties to extend the term of the orders: cf Szyssko at [30]. To do so would be to fail to recognise that the obligations of confidentiality contained in the Deed will be the same as they are now, such that it would still be necessary to prevent prejudice to the administration of justice. Therefore, I consider that making orders in those terms would also not be consistent with the efficient resolution of disputes and use of judicial resources: see ss 37M and 37N of the FCA Act. Therefore, the appropriate order is that the relevant documents be suppressed for an indefinite period of time.

conclusion

38    For the above reasons, I consider that it is necessary to prevent prejudice to the administration of justice to make the Suppression Orders in the terms proposed by the parties, subject to providing that they apply to the whole of the Originating Application, including any accompanying documents.

Associate:

Dated:    27 August 2026