FEDERAL COURT OF AUSTRALIA Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756 File number: NSD 543 of 2020 Judge: SNADEN J Date of judgment: 1 June 2020 Date of publication of reasons: 2 June 2020 Catchwords: PRACTICE AND PROCEDURE – originating application under the Fair Work Act 2009 (Cth) alleging dismissal in contravention of a general protection – interlocutory application for orders that documents filed by the applicant in the proceeding be deemed confidential – requests by media representatives for access to documents – originating application discontinued before being served upon the respondents – whether circumstances justify exclusion of public access – whether departure from principles of open justice warranted – application dismissed PRACTICE AND PROCEDURE – application for leave to intervene by media representative – leave to intervene for the purpose of opposing application for confidentiality orders – leave granted Legislation: Fair Work Act 2009 (Cth) pt 3-1; ss 365, 366 and 370 Federal Court of Australia Act 1976 (Cth) pt 5AA; s 37AG Federal Court Rules 2011 (Cth) r 2.32 Cases cited: Central Equity Ltd v Chua [1999] FCA 1067 David Syme & Co v General Motors-Holden's Ltd [1984] 2 NSWLR 294 John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131 Keyzer v La Trobe University [2019] FCA 646 R v Davis (1995) 57 FCR 512 Date of hearing: 1 June 2020 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: Mr R Potter Solicitor for the Applicant: Kennedys Law Counsel for the Respondents: The Respondents did not appear Solicitor for the Intervener: Mr S White of Fairfax Media Publications Pty Ltd ORDERS NSD 543 of 2020 BETWEEN: HERBERT ANDREW APPLEROTH Applicant AND: FERRARI AUSTRALASIA PTY LIMITED (ACN 160 706 141) First Respondent FERRARI N.V. Second Respondent FERRARI S.P.A Third Respondent FAIRFAX MEDIA PUBLICATIONS PTY LTD Intervener JUDGE: SNADEN J DATE OF ORDER: 1 JUNE 2020 THE COURT DIRECTS THAT: 1. Until the close of business on Thursday, 4 June 2020, the registry not grant access to, or permit the inspection of, documents filed herein. THE COURT ORDERS THAT: 1. The applicant's interlocutory application dated 28 May 2020 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SNADEN J: 1 By an interlocutory application dated 28 May 2020, the applicant, Mr Appleroth, moves the court for orders under r 2.32 of the Federal Court Rules 2011 (Cth) (hereafter, the "Rules") that the documents that he has filed herein to date be designated as confidential documents, such that they may not be inspected as that rule otherwise contemplates. Those orders are sought in response to media requests that have been made of the court to permit inspection of those documents. 2 Given the potential public interest that attends the application, it was listed and heard as quickly as was possible. At the hearing, Mr Potter, of counsel, appeared for Mr Appleroth. Mr Sam White sought and was granted leave to make submissions on behalf of his client, Fairfax Media Publications Pty Ltd ("Fairfax"). That leave was limited to the applicant's interlocutory application, which Fairfax opposed. After hearing from Mr Potter and Mr White, the court dismissed the interlocutory application. I undertook to give brief reasons for doing so, which are set out herein. 3 The proceeding to which the application relates is no longer extant. It was commenced by means of the originating application, which was lodged with the court on 15 May 2020, the same day as the statement of claim. It was discontinued on 27 May 2020, prior to the originating application having even been served upon the respondents (referred to, collectively and hereafter, as "Ferrari"). 4 Mr Appleroth is a former employee of the third respondent, Ferrari S.p.a. (or, alternatively, the first respondent—Ferrari Australasia Pty Ltd). The claim that, by the proceeding, Mr Appleroth sought to agitate concerned the termination of his employment. Of particular relevance presently, it concerned certain allegations that Ferrari levelled against him as reasons that were said to justify his dismissal. It is not necessary that I should recite those reasons: it suffices to note that some of them were of a personal nature, involving a relationship to which Mr Appleroth was party and his conduct toward the other party to that relationship. Also raised within the confines of his proceeding was information concerning Mr Appleroth's remuneration. 5 The proceeding was commenced under (or partially under) the provisions of pt 3-1 of the Fair Work Act 2009 (Cth) (the "FW Act"). Those provisions require that an application thereunder relating to the termination of an employee's employment be first referred for conciliation by the Fair Work Commission: FW Act, s 365, 370. That referral occurs by means of an application made by the employee, which, generally speaking, must be made within 21 days after the dismissal took effect: FW Act, s 366(1)(a). Only in the event that the Fair Work Commission certifies that its attempt at conciliation has failed to resolve the employee's grievances can an application be made to this court: FW Act, s 370(a)(i). That must occur within 14 days after the Fair Work Commission so certifies: FW Act, s 370(a)(ii). It is the case, then, that proceedings in this court under pt 3-1 of the FW Act that involve allegations of dismissal are subject to a much shorter limitation period than most other causes of action. 6 In support of the present application, Mr Appleroth contends that the particulars of the allegations that are summarised above are not known outside of Ferrari and certain of its employees. Having reflected upon its potential ramifications, Mr Appleroth 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. 7 In support of his application, Mr Appleroth read two affidavits: one that he swore on 28 May 2020 and one sworn by his solicitor, Mr Justin Le Blond, on that same day. Fairfax opposed the application. 8 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. 9 Mr Appleroth submitted that the matters that should inform the court's discretion to make an order of the kind sought under r 2.32 of the Rules are similar to—but not wholly aligned with—those that inform the making of non-publication orders and suppression orders under pt 5AA of the Federal Court of Australia Act 1976 (Cth) (hereafter, the "FCA Act"). Whereas the latter requires satisfaction of one or more of the criteria enumerated in s 37AG(1) of the FCA Act, the former does not. He submitted that the court may exercise its discretion under r 2.32 of the Rules if it considers that there is good reason to do so: Central Equity Ltd v Chua [1999] FCA 1067, [20] (Weinberg J). He submitted that the circumstances that prevail presently warrant that outcome because: (1) the detail (or some of the detail) contained within the documents in question is of a personal nature, or is otherwise confidential to him; (2) some of that information concerns other parties, whose privacy and confidences ought to be preserved; (3) the proceeding is no longer extant and was never served on Ferrari; (4) Mr Appleroth 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 (5) 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. 10 Fairfax submitted that access to documents under r 2.32 of the Rules was an important manifestation of the principle of open justice and that the circumstances of this case were not sufficient to warrant the relief sought. 11 In R v Davis (1995) 57 FCR 512 (Wilcox, Burchett and Hill JJ), this court observed (at 514): 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. 12 It is only in exceptional and special cases that courts are entitled to exclude public access to the processes with which they deal: David Syme & Co v General Motors-Holden's Ltd [1984] 2 NSWLR 294, 299 (Street CJ), 307 (Hutley AP, Samuels JA agreeing). In John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131, Kirby P (in dissent but not on this issue) said (at 142-143): 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. 13 More recently, this court has noted (albeit in the context of orders under pt 5AA of the FCA Act) that "…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication": Keyzer v La Trobe University [2019] FCA 646, [29] (Anastassiou J). 14 In Williams v Forgie [2003] FCA 991 (Heerey J), the court observed that: …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. 15 For reasons that might readily be understood, Mr Appleroth seeks to shield himself and others from the potential distress and embarrassment that public consumption of his short-lived suit against Ferrari might occasion. Although I am not unmoved by the circumstances that Mr Appleroth identifies as reasons for granting the relief that he seeks—and I accept his submission that the court's task under r 2.32 is not the same as its task under pt 5AA of the FCA Act—I do not consider that the circumstances here amount to reason enough to depart from the foundational principle of open justice. 16 I am not persuaded that it is appropriate to grant the relief that Mr Appleroth seeks. For that reason, his interlocutory application dated 28 May 2020 stands dismissed. Mr Appleroth sought an order to stay my judgment for a short period to allow him to consider whether or not he should seek leave to appeal it. Fairfax did not oppose that course. I did not consider that there was anything that could be stayed, so will instead direct the registry to withhold access to the documents filed herein until the close of business of Thursday, 4 June 2020. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden. Associate: Dated: 2 June 2020