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Introduction

Case: Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756.

A person makes a General Protections application to the Fair Work Commission, and then later withdraws the application. The media smell a juicy story and seek to attain the material filed with the FWC by seeking an order for its release to the Federal Court.

This is a matter that deals with the issue of “open justice” and confidentiality.

This case also serves as cautionary tale, when apply for or defending a legal matter: does the relief sought outweigh your public reputation?

Background

The person who made the application and subsequently withdrew it in the FWC sought from the Federal Court to respect his confidentiality in that the documentation relating to the application is not made publicly available. Fairfax Media disagreed and sought that the Court release the information in interests of “open justice”.

In what must have been a very interesting news story, the court heard the matter it listed the matter at the earliest possible time.

A former employee of the respondent whose employment was terminated which led to the Protected Action application in the FWC, concerned “certain allegations” that his former employer levelled against him. Reasons that were said to justify his dismissal. Whilst not revealing the allegations, the court said:

“…it suffices to note that some of them were of a personal nature, involving a relationship to which [the former employee] was party and his conduct toward the other party to that relationship. Also raised within the confines of his proceeding was information concerning [the former employee’s] remuneration”.

As summarised by the Court, the former employee contends that the particulars of the allegations that are summarised above are not known outside of his former employer and some of its employees. Having reflected upon its potential ramifications, the former employee has been led to conclude that it was not in his or his family’s best interests that the proceeding continue. His decision to discontinue it was, at least in part, animated by a desire to avoid media speculation. Notwithstanding its discontinuance, there has remained some media interest in accessing documents that have been filed with the court.

Confidentiality is discretionary

The court’s power to grant relief in the nature of the orders that are sought is not in question. Relief of that nature is discretionary. That discretion must be exercised judicially. Doing so requires that the court take account of the matters that incline in favour of the orders that the documents filed to date remain beyond public reach; and that those matters be weighed against others that incline the other way.

The former employee’s argument

The former employee argued that under the Court’s rules, the court’s discretion to make an order of the kind sought are similar to—but not wholly aligned with—those that inform the making of non-publication orders and suppression orders under the Federal Court of Australia Act 1976 (Cth), if it considers that there is good reason to do so. citing Central Equity Ltd v Chua [1999] FCA 1067, [20] (Weinberg J). He submitted that the circumstances that prevail presently warrant that outcome because:

  • the detail (or some of the detail) contained within the documents in question is of a personal nature, or is otherwise confidential to him;
  • some of that information concerns other parties, whose privacy and confidences ought to be preserved;
  • the proceeding is no longer extant and was never served on his former employer;
  • The former employee did not have the normal amount of time that litigants typically have before they must commence proceedings to reflect upon whether or not it was in his or his family’s interests to do so; and
  • having discontinued the action, he has now effectively forfeited his rights to vindicate his position (that is to say, to answer the allegations that were levelled against him) in court.

“Open justice”

Fairfax submitted that access to documents was an important manifestation of the principle of open justice and that the circumstances of this case were not sufficient to keep them from the public. Citing R v Davis (1995):

“Whatever their motives in reporting, [the media’s] opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them”.

The court noting that it is only in exceptional and special cases that courts are entitled to exclude public access to the processes with which they deal (citation omitted):

“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms…A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported”. [Emphasis added].

And in another matter, citing:

“…it is an inevitable feature of litigation in open court that persons who are mentioned in passing may suffer embarrassment and distress. But that is a price the community has to pay for the undoubted benefit of court proceedings being, except in very exceptional circumstances, conducted in public”.

Former employee seeks to shield himself

For reasons that might readily be understood, the former employee seeks to shield himself and others from the potential distress and embarrassment that public consumption of his short-lived suit against his former employer might occasion. Although not unmoved by the former employee’s circumstances, the court did not consider that the former employee’s circumstances amounted to reason enough to depart from the foundational principle of open justice.

Open justice trumps confidentiality

The court, in this case, was not persuaded that it is appropriate to suppress the information and so granted Fairfax access to the documentation.