Federal Court of Australia

DIZ18 (by her litigation representative DJA18) v Minister for Home Affairs (No 4) [2026] FCA 1664

ORDERS

THE COURT ORDERS THAT:

1. Until Friday, 2 November 2029 or further order, pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and on the ground that it is necessary to prevent prejudice to the proper administration of justice, the Deed of Settlement being “Annexure BM-4” to the affidavit of Bridie Murphy affirmed 13 July 2023, be treated as confidential to the parties to this proceeding, be marked as confidential to the parties on the Court’s Electronic Court File, and not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

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

REASONS FOR JUDGMENT

SNADEN J:

1 More than three years ago, the parties to the present matter agreed terms as to its settlement.  For reasons that needn’t be particularised, those terms required the consent of the court, which was granted by orders made on 3 November 2023.  In order that it could endorse what had been agreed, it was necessary that the court have before it evidence of the terms for which the parties had bargained.  That evidence was led; and the court was then asked to and did make orders under pt VAA of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”), by which that evidence was rendered confidential as between the parties and made unavailable for public inspection or disclosure.  The bases upon which those orders were made were exposed within the court’s written reasons for judgment:  DIZ18 (by her litigation representative DJA18) (No 3) v Minister for Home Affairs [2023] FCA 1350 (Murphy J).  The pt VAA orders were—or, at the least, the one of present significance was—expressed to apply until 3 November 2026.

2 By an interlocutory application filed on Friday, 30 October 2026, the respondent moves for an order to extend one of the orders that was made three years ago under pt VAA of the FCA Act.  There does not appear to be a good reason why that application was made so close to the expiry of the existing order but nothing turns upon that.  Tuesday, 3 November 2026 was Melbourne Cup Day and a public holiday in Victoria.  Notoriously, many Victorians—and, one might presume, a great many Victorian public servants—do not work on the Monday preceding that public holiday (this year being Monday, 2 November 2026).  Perhaps for that reason, the respondent’s interlocutory application somewhat generously sought to have the matter heard on Wednesday, 4 November 2026; that is to say, after the existing order’s expiry.  The court indulged that request and the application came before me as the court’s general duty judge.  It was the subject of a brief hearing on Wednesday, 4 November 2026.  Ms Taylor, solicitor, appeared for the respondent (upon whose application the court was moved).  DJA18 appeared on his own behalf (in his capacity as the applicant’s litigation representative).

3 It is appropriate to record some context as to the respondent’s request.  It emerges from an affidavit affirmed in support of the present application by Mr Rodger Prince, solicitor, on Friday, 30 October 2026.  The applicant is one of a number—perhaps somewhere in the order of 60—who commenced proceedings against the respondent in connection with their treatment whilst at an overseas immigration processing facility.  Many of those claims are, so the court was told, ongoing; and many (or, at least, some) are earmarked for mediation in the near or not-too-distant future.  The respondent submits that its ability to negotiate potential settlements of those matters will be prejudiced if the terms upon which it settled the present matter are, by reason of the court’s usual processes, made available to the public.  As is common, one of the terms of that settlement was that it was confidential as between the parties.

4 DJA18 opposed the extension for which the respondent moves.  He expressed that opposition briefly and politely at the hearing of the application, explaining that he had been given little time to consider what the respondent requests; but did not, in any event, feel that it was appropriate for the matter to remain confidential beyond the scope of the original orders.

5 His frustrations as to the former might immediately be understood.  Again and without wishing to point fingers at anybody in particular, the Minister’s decision to make the application on the Friday before Melbourne Cup Day was suboptimal.  It has left both the applicant and the court in the position of having limited opportunity to digest what stands to be digested.

6 Fortunately, there is not really any room to doubt that an extension of the order should be made.  It should be made because it is necessary to prevent prejudice to the proper administration of justice.  That prejudice inheres in the prospect that confidential terms of settlement might be made public because of the unusual circumstances of this case (requiring, as it did, the court’s approval of the terms that were agreed).  In the normal course, evidence relied upon in court is open to be accessed by inspection of the court’s record.  Those processes should not present as a vehicle by which to circumvent (and, thereby, to undermine) standard settlement terms; and to let them serve in that regard would be to bring the proper administration of justice into disrepute.  The prospect of public inspection is real, especially given that there are other, similar matters that remain on foot.

7 In saying so, it is unnecessary to traverse the principles that are apt to guide the exercise of the power that the court is now called upon to exercise.  I acknowledge and take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.  The relevant principles are otherwise set out in the court’s reasons for judgment from three years ago (at [51]-[62]) and there is no need for me to add to what is there recorded.

8 The order that is sought is necessary to prevent the prejudice described above from being realised and I will make it on that basis.  As best as the evidence permits of assessment, the other similar matters that are being waged against the respondent are likely to continue for another few years.  I will, as the docket judge (or former docket judge—his Honour has since retired) did three years ago, make orders that will subsist for a further three years (or slightly under, to account for the Melbourne Cup public holiday).  In the event that a further extension is required, it is to be hoped that it might be applied for a little more expeditiously than this one was.

9 The respondent wisely declined to seek any order as to costs and none will be made.

Associate:

Dated:    5 November 2026