Employment disputes commonly have confidential or sensitive information front and centre of the matters in issue. Information such as personal details, medical conditions, disciplinary records, family circumstances, commercially sensitive information and workplace dynamics including harassment, bullying or discrimination, or scandalous material seemingly deployed for the purpose of damaging individual reputations – to highlight a few.
The disclosure of this information through the proceedings, and subsequent reporting in the media, can sometimes result in more harm for a litigant – and particularly an employer - than the proceedings themselves.
It is possible to protect information of this nature by way of non-publication or suppression orders. However, there has typically been a reluctance of the courts to do so with the competing need of transparency and the administration of justice often being cited as a more critical factor to protect.
Against this backdrop, there is one exception that is becoming more frequently deployed. Specifically, non-publication or suppression orders in general protections (adverse action) claims in the Federal Court of Australia and Federal Circuit and Family Court of Australia where such an order may facilitate settlement discussions at an early stage of the proceedings.
In employment related matters, non-publication or suppression orders have historically been limited primarily for sexual harassment matters in order to protect the identity of complainants and victims and to facilitate settlements discussions. In these types of matters, there is a tendency to have suppression or non-publication orders after a settlement to prevent reputational risk to the alleged harasser or to respect the plaintiff’s privacy. The recent decisions have occurred in the context of general protections matters and at earlier stages of proceedings before a settlement has been reached .This article looks at some of these recent cases in the Federal jurisdiction and commentary on this issue by Chief Justice Mortimer.
Access to court documents
The Federal Court’s Access to Documents and Transcripts Practice Notice released in early 2023 (Practice Note) provides that the principle of open justice is not absolute and must be balanced to avoid prejudice or other potential harm. The Practice Note observes the publication of claims and allegations, and the improper use of the Court’s processes, can create unfairness.
The Practice Note also provides that prior to the first directions/case management hearing, a non-party will not be able to access documents without permission from the court but following this non-parties can access key documents filed in the proceedings, particularly the pleadings, unless they are otherwise confidential or restricted.
The Practice Note signalled a change in approach by the Federal Court to non-party access to documents and transcripts from an “entitlement to access” by non-parties to an “application process” as described by Chief Justice Mortimer in a speech given earlier this month on open justice.[1]
This change in approach has not been without criticism – particularly from the media with respect to administrative burden and the uncertainty of how and when leave is granted. In this respect, Chief Justice Mortimer has recognised there is room for improvement in the process for seeking leave and that the Federal Court is committed to alleviating delays and complexity. However, that it will remain faithful to the new approach.[2]
When can the Court make an order?
Because of the competing interests of transparency and the administration of justice, the Federal courts are constrained to making a non-publication or suppression order in limited circumstances.[3]
Despite this, recent decisions suggest a movement towards parties in employment disputes seeking an order where it is argued to be necessary to prevent prejudice to the administration of justice.
In deciding whether to make a suppression or non-publication order, the Federal courts must take into account the primary objective of the administration of justice, which is to safeguard the public interest in open justice.[4] Therefore, any prejudice to the proper administration of justice must be balanced against the importance of having open justice.[5]
What is trending in this space?
Recently, the Federal Court considered an application for a suppression order in a general protections (adverse action) dispute in Saw v Seven Network (Operations) Ltd [2024] FCA 1210.
The Applicant, who was employed as a journalist by the Seven Network (Network), made a general protections application against the Network. The exact details of the general protections application are unknown because they are the subject of a non-publication and suppression order.
Shortly after the Applicant filed her claim, the Network applied for a temporary suppression or non-publication order of all materials in the matter, to prevent the pleadings coming into the public domain. It is understood the Applicant’s claim contains allegations about the Network which are sensitive and refer to conduct of persons that are not parties to the proceedings.
The primary consideration in this matter was whether the suppression or non-publication order could increase the potential for a settlement.
As discussed above in the context of sexual harassment cases, non-publication or suppression orders have previously been made after the proceeding has been settled. The purpose of this is to assure parties that settled proceedings, and any settlement discussions, remain confidential.
However, the Federal Court accepted in this matter that the same principle can be applied prior to a settlement where the aim of seeking one is to secure a settlement. On this basis, the Federal Court found that it can be in the interests of the administration of justice to issue a suppression or non-publication order before a mediation to increase the likelihood of settlement.
Ultimately in this case, the Network was able to convince the Court to grant the order on the basis that:
- the matter was in its infancy;
- any details released would be widely reported (particularly given the Network’s prominence in the media landscape in Australia, and that there had already been some media interest in the claim); and
- the upcoming mediation was more likely to succeed if non-publication and suppression orders were in place. Interestingly, the Court accepted the Applicant could use the risk of the matter becoming public, and the risk of negative publicity, as a bargaining chip at the mediation.
The decision follows on from two decisions earlier this year which concerned a similar issue.
In Patterson v Westpac Banking Corporation [2024] FCA 629 it was held that early negotiations could be inhibited where the details of the allegations were fully in the public domain. For those reasons a suppression and non-publication order was issued firstly on an interim basis to enable the parties to engage in mediation and then on a final basis once the parties had settled the proceeding on terms requiring the matter to remain confidential.
In comparison, in Young v Accenture Australia Pty Ltd [2024] FCA 1013, the Federal Court declined to make a non-publication and suppression order. While the Federal Court noted it is important to facilitate the settlement of litigation early, there was no basis to make such an order in the particular circumstances because the majority of the information in the pleadings were already in the public domain and it would not help facilitate settlement.
To contrast these decisions further, Justice Lee in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 recently condemned the practice of seeking suppression or non-publication orders and citing a ‘very heavy’ onus before a court should issue one. In this instance, Justice Lee considered there was already enough information in the public domain that there was no benefit to settlement discussions to issue a suppression or non-publication order. However, His Honour did issue a temporary suppression order to allow time for any appeal to his decision, and there is in fact an appeal currently pending.
Are there any lessons to be learnt?
It is clear that the Federal Court remains committed to the principle of open (and accessible) justice by striking the balance between public access and what is fair.[6] Her Honour Chief Justice Mortimer has commented on this balance by noting the media’s “race to file news copy” must never become the business of the courts, and that it is important to remember that “there is a human being who may be personally affected by the suppression decisions that courts make.”[7]
In this context, when an organisation is faced with an employment dispute and the allegations, or other information before the Court, is confidential, commercially sensitive or otherwise damaging to the organisation or their people, consideration should be given to whether an interlocutory application for a suppression or non-publication order may be an effective strategy.
In weighing up whether to seek an order, relevant factors to take into account include:
- whether the information is already in the public domain. If it is not, the Courts are appearing more likely to entertain a temporary suspension or non-publication order in an attempt to help settle the dispute early;
- the potential reputational damage that may be suffered by an organisation if the information is made publicly available. Depending on the nature of the organisation, adverse media reports may result in more harm to an organisation than the fine or damages awarded by the Federal courts. This factor needs to be balanced against the potential scrutiny that may be drawn to the litigation by the non-publication / suppression proceedings themselves;
- whether the organisation has any obligations under the Corporations Act 2001 (Cth) and ASX Listing Rules regarding disclosure, and ensuring that any announcements associated with the proceedings comply with these rules while not compromising the organisation’s position with respect to a prospective suppression or non-publication order;
- the orders are typically made where both parties to the litigation support the order being made and are more difficult to achieve without consent – although Saw v Seven Network (Operations) Ltd is an exception; and
- media organisations seeking to access the court documents will typically oppose the making of confidentiality orders and the mere making of an application is likely to attract media scrutiny
If your organisation is facing this type of claim and there are concerns about the sensitivity of the claim, please reach out to us to explore the options available.
Chief Justice Debbie Mortimer, ‘Reflections on the Concept of “Open Justice”’ (Speech, Melbourne Law School, 2 October 2024) (‘Mortimer’).
Mortimer [76], [79].
Federal Court of Australia Act 1976 (Cth) s 37AG(1).
Federal Court of Australia Act 1976 (Cth) s 37AE.
Albeit, and interestingly, Chief Justice Mortimer has recently observed that perhaps a more appropriate phrase may be “accessible justice” rather than “open justice”. Mortimer [25].
Mortimer [32].
Mortimer [34], [74].
