FEDERAL COURT OF AUSTRALIA Clark v Digital Wallet Pty Ltd [2020] FCA 877 File number: NSD 592 of 2020 Judge: ABRAHAM J Date of judgment: 24 June 2020 Catchwords: PRACTICE AND PROCEDURE – application for suppression and non-publication orders – where proceedings have been discontinued – where information sought to be suppressed relates to the business affairs of the first respondent Legislation: Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG, 37AG(1)(a) Federal Court Rules 2011 (Cth), rr 2.32, 2.32(2), 2.32(3) Cases cited: Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756 Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384 Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293 R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 Re Japara Holdings Pty Ltd [2010] VSC 361 Rinehart v Welker [2011] NSWCA 403 Date of hearing: 18 June 2020 Registry: New South Wales Division: Fair Work National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 38 Counsel for the Applicant: Mr J. Willis Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First, Second, Third and Fourth Respondents: Mr D. B. Studdy with Mr I. Furlan Solicitor for the First, Second, Third and Fourth Respondents: Gilbert & Tobin Lawyers Counsel for the Fifth Respondent: Mr P Kulevski Solicitor for the Fifth Respondent: Clayton Utz Media Interests: Mr B. Butler appeared on behalf of Guardian Australia Ms C. Caulfield appeared on behalf of Lawyerly Media ORDERS NSD 592 of 2020 BETWEEN: ANGELA CLARK Applicant AND: DIGITAL WALLET PTY LTD First Respondent JAMES TATE Second Respondent DAVID SINGH Third Respondent KIM ANDERSON Fourth Respondent COMMONWEALTH BANK OF AUSTRALIA (ACN 123123124) Fifth Respondent THE GUARDIAN AUSTRALIA LAWERLY MEDIA Media Interests JUDGE: ABRAHAM J DATE OF ORDER: 24 June 2020 THE COURT ORDERS THAT: 1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until 31 December 2020 or such earlier time as notified in accordance with order 5, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) and their publication or disclosure be prohibited (other than to the parties and their solicitors and counsel): (a) the parts of the statement of claim filed on 26 May 2020 identified in schedule 1 annexed to this order; (b) the parts of the annexure to the originating application filed on 26 May 2020 identified in schedule 2 annexed to this order; and 2. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the orders are necessary to prevent prejudice to the proper administration of justice, until 31 December 2020 or such earlier time as notified in accordance with order 5, the following information filed in the Court be ordered confidential within the meaning of r 2.32(1)(b) and r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) and their publication or disclosure be prohibited (other than to the applicant's solicitors and counsel, the first respondent and the first respondent's solicitors and counsel): (a) Confidential Exhibits KM-1, KM-2, and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020. 3. Pursuant to r 2.32 until 31 December 2020 or such earlier time as notified in accordance with order 5: (a) the statement of claim filed on 26 May 2020 and the originating application filed on 26 May 2020 be designated as confidential documents; and (b) any person who is not a party to these proceedings may not inspect the statement of claim and may only inspect the redacted version of the statement of claim; and (c) any person who is not a party to these proceedings may not inspect the originating application and may only inspect the redacted version of the originating application; and (d) Confidential Exhibits KM-1, KM-2 and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020 be designated as confidential documents; and (e) any person, other than the applicant's solicitors and counsel, the first respondent and the first respondent's solicitors and counsel, may not inspect Confidential Exhibits KM-1, KM-2 and KM-3 to the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020. 4. The first respondent is to file, by 4pm on 24 June 2020, the following documents: (a) a redacted version of the originating application, redacting the parts of the annexure to the originating application referred to in order 1(b) above; and (b) a redacted version of the statement of claim, redacting the parts of the statement of claim referred to in order 1(a) above. 5. The first respondent must notify the Court, within 5 working days of the completion of the transaction referred to in paragraph 5(d) of the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020, that the transaction has completed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 Schedule 1 1. Paragraph [21](d). 2. The particulars to paragraph to [21]. 3. Paragraphs [52](a). 4. In paragraph [56] the words, in the first line after "19 November 2019" up until "sent an email" be replaced with "Person X". In the second line, the words after "conflict of interest" up to the end of that line. In the third line, the words before "Conflict of Interest" be replaced with "Person X". In the fourth line, the two words before "Conflict of Interest" be replaced with "Person X". 5. The particulars to paragraph [56]. 6. In paragraph [57] the words, in the first line after "forwarded the" up until "Conflict of Interest Email" be replaced with "Person X". In the third line, the words after "outlined in the" up until "Conflict of Interest Email" be replaced with "Person X". In the fourth line, the words before "Conflict of Interest Inquiry" be replaced with "Person X". 7. In the particulars to paragraph [57] the words, in the first line after "19 November 2019. The" be replaced with "Person X". In the fifth line, the words after "(1)" up until "was subject to" be replaced with "Person X". In the eighth line, the words after "the" up until "Conflict of Interest" be replaced with "Person X". 8. In paragraph [60] the words, in the first line after "20 November 2019" up until "sent an email" be replaced with "Person X". 9. In paragraph [60](a) the words, in the first line before "stated how" be replaced with "Person X". In the first line, the words after "conflicts of interest" up until, in the second line, the words "in which he proposed". 10. In paragraph [60](b) the words, in the first line before "stated that" be replaced with "Person X". 11. The first sentence of the particulars to paragraph [60]. In the fourth line, the words after "such as the" and before "Conflict of Interest" be replaced with "Person X". 12. In the particulars to paragraph [61] the words, in the fifth line after "Term): (1)" up until "was subject to" be replaced with "Person X". 13. In paragraph [68] all the words in the first line after "to the Directors" up until, in the second line, the words "in relation to". 14. In paragraph [69] all the words in the first line after "the Directors" up until, in the second line, the words "in relation to". 15. In paragraph [78](a) in the first line, the two words appearing before "remaining a" and replacing those words with "Person X". In the first line, removing all the words up until "Person X". In the fifth line, the word appearing before "Concerns" and replacing that word with "Person X". In the second line, removing all the words from "Alternate Director Proposal" up until, in the fifth line, the words "(the Person X Concerns)". 16. In particular (i) to paragraph [78], all the words from "by reason of the" up until "Concerns" be replaced with the words "Person X". 17. In paragraph [85](a) all the words, in the second line after "relating to" up until "being a reference to" be replaced with the words "certain directors of Beem It". In the third line, all the words from "alia, the" up until "Concerns, the Naffah CBA Concerns" be replaced by the words "Person X". 18. In the second particular (i) to paragraph [85] all words, in the fourth line after "by reason of the" up until "Concerns" in the fifth line be replaced by the words "Person X". 19. In paragraph [110] all the words, in the second line appearing before "Conflict of Inquiry" by replaced by the words "Person X". 20. In paragraph [135](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 21. In paragraph [137](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 22. In paragraph [139](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 23. In paragraph [141](d) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 24. In paragraph [143](c) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 25. In paragraph [145](c)(iv) all the words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 26. In paragraph [151] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". 27. In the particulars to paragraph [151] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". In the last line, the two words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 28. In paragraph [187] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". 29. In the particulars to paragraph [187] all the words, in the first line appearing after "knowledge of the" up until "Conflict of Interest Inquiry" be replaced with "Person X". In the last line, the two words appearing before "Conflict of Interest Inquiry" be replaced with "Person X". 30. In paragraph [214](b) all the words, in the first line appearing after "Alternate Director Proposal" up until "being an officer" be replaced with "Person X". 31. In the particulars to paragraph [214] all the words, in the second line from "implementation arose principally from" up until "remaining a Director" be replaced with "Person X". In the third line all the words appearing after "Alternate Director Proposal" up until "and continuing to receive" in the fourth line. In the fifth line all the words after "Beem It strategy" up until "While" in the sixth line. In the sixth line all the words after "While" up until the words "was a Director" be replaced with "Person X". 32. In paragraph [219](a) all words, in the second line after "by reason of the" up until "Concerns" be replaced with "Person X". 33. In paragraph [219](b) all the words in the first line after "reason of the" up until "Concerns" be replaced with "Person X". In the first line all the words after "Concerns," up until "being an officer" be replaced with "Person X". 34. In the particulars to paragraph [219] all the words, in the first line after "in relation to the" up until "Concerns" be replaced with "Person X". In the second line all the words after "principally from" up until "remaining a Director" be replaced with "Person X". In the third line all the words after "Alternate Director Proposal" up until "and continuing to receive" in the fourth line. In the fifth line all the words after "Beem It strategy" up until "While" in the sixth line. In the sixth line all the words after "While" up until "was a Director" be replaced with "Person X". 35. In paragraph [224](a) all the words, in the second line from "by reason of the" up until "Concerns" be replaced with "Person X". 36. In paragraph [224](b) all the words, in the first line after "by reason of the" up until "Concerns" be replaced with "Person X" and the words after "Concerns," up until "being an officer" be replaced with "Person X". 37. In the particulars to paragraph [224] all the words, in the first line after "in relation to the" up until "Concerns" be replaced with "Person X". In the second line all the words after "principally from" up until "remaining a Director" be replaced with "Person X". In the third line all the words after "Alternate Director Proposal" up until "and continuing to receive" in the fourth line. In the fifth line all the words, from "Beem It strategy" up until "While" in the sixth line. In the sixth line all the words after "While" up until "was a Director" be replaced with "Person X". 38. In the particulars to paragraph [229] all the words, in the fourth line from "Concerns Inquiry, the" up until "Conflict of Interest" be replaced with "Person X". 39. In the particulars to paragraph [237] all the words, in the fourth line from "Concerns Inquiry, the" up until "Conflict of Interest" be replaced with "Person X". Schedule 2 In relation to the letter dated 7 February 2020 annexed to the Originating Application filed on 26 May 2020: 1. In the second paragraph all words, in the fourth line after "regarding the" up until "in which case". 2. In the third paragraph all words, in the second line after "in relation to the" up until "has been unsatisfactoy". In the last line, all words after "in relation to the". REASONS FOR JUDGMENT ABRAHAM J: 1 On 26 May 2020, Ms Clarke, employed as the Chief Executive Officer of the first respondent company from 6 May 2019 to 7 February 2020, filed an originating application and statement of claim alleging various actions arising from that employment under the Fair Work Act 2009 (Cth) and the Corporations Act 2001 (Cth). Ms Clarke sought compensation and the award of pecuniary penalties. 2 On 4 June 2020 the applicant discontinued the proceedings against the fifth respondent, and on 10 June 2020 discontinued the proceedings against the remaining respondents. 3 By an amended interlocutory application dated 11 June 2020 the first respondent seeks orders pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and r 2.32 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that certain identified material in the statement of claim and the originating application not be published or disclosed and be kept confidential. The basis of the application is that disclosure of that material would result in confidential information of the first respondent relating to its commercial affairs coming into the public domain which it was submitted has the potential to cause very significant damage to the first respondent. The order was sought until 31 December 2020. 4 The first respondent read the affidavit of Kaushalya Mataraaratchi affirmed on 12 June 2020 (Mataraaratchi affidavit), and tendered the exhibits thereto in support of the application. A non-publication and suppression order is also sought over Confidential Exhibits KM-1, KM-2 and KM-3 to that affidavit. No such application is made in relation to the body of the affidavit. 5 The Court has received a number of third party access requests from journalists (access requests) in relation to the originating application and the statement of claim filed in these proceedings. Access has not been provided pending resolution of this application. The journalists seeking access were notified accordingly, and provided with the date of the hearing of the non-publication application, and were invited if they wished to do so, to provide written submissions in advance of the hearing and to make oral submissions at the hearing. 6 The matter was listed for hearing on 18 June 2020 with submissions being made by the applicant and first respondent. In addition submissions were received from two media organisations who had sought access to the statement of claim and originating application. 7 For the reasons below the application for non-publication and suppression orders is granted. Submissions 8 The application was made for a non-publication and suppression order pursuant to s 37AG(1)(a) of the Federal Court Act, and/or a confidentiality order pursuant to r 2.32 of the Federal Court Rules, over certain material in the statement of claim and originating application, which material was identified in the schedule and annexures to the application. 9 As noted above, the basis on which the order is sought is to preserve the confidentiality of identified information relating to the business affairs of the first respondent. The information comprises the identity of a party to a commercial transaction currently taking place and the details and nature of that transaction. The first respondent submitted that the evidence establishes that the information is not in the public domain, and it is valuable. It was submitted that if the information were to be revealed now, there is a real risk that the transaction could be jeopardised which would threaten the first respondent's sources of funding and even its existence. 10 The remaining parties in the substantive proceedings made no submissions on the application. 11 Mr Butler, a journalist with The Guardian, Australia provided a written submission in advance of the hearing and made oral submissions. 12 Mr Butler submitted in his written submission, after he had addressed some general principles, that while commercial confidentiality may be a ground for suppression, the bar is again high and a mere assertion of "inherent confidentiality" is insufficient, citing Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 (Hogan) at [38], [43]. He submitted that suppression requires a demonstration "that the party would be seriously compromised or adversely affected if confidentiality was not retained": Re Japara Holdings Pty Ltd [2010] VSC 361 (Japara) at [10]. He submitted that the redaction of a particular name in the statement of claim was futile as the person can be easily identified. He submitted that as to the company, it is already referred to as Company A and although he does not have all the information it does not appear that this material discloses anything that would seriously compromise or adversely affect the first respondent. He observed that the applicant has made significant efforts to ensure no truly confidential information is contained in the statement of claim, including by referring to "Company A". Mr Butler also submitted that reliance on r 2.32 and the judgment in Appleroth v Ferrari Australasia Pty Limited [2020] FCA 756 do not assist the first respondent's argument as respect must still be had for "the foundational principle of open justice": Appleroth at [15]. 13 Mr Butler orally addressed particular matters raised by the first respondent and reiterated aspects of his written submission. In doing so he emphasised the relevant principles, in particular the high bar that must be satisfied before an order can be made. In relation to the identity of Person X he again submitted that the order was futile. In respect to the length of the order, he submitted that if, contrary to his submission it was made, it should be for the shortest time appropriate. Mr Butler acknowledged that he was not aware of the evidence relied on by the first respondent and that he understood "how details of the transaction itself might be commercially valuable, especially in the space that [the first respondent] works which is a highly competitive space" but could not understand how the identity of the company itself could have the effect contended for. 14 Ms Caufield from Lawyerly appeared and adopted the submissions of Mr Butler. The only additional submission made was that the matter ought to be dealt with promptly, citing Rares J in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293. 15 In reply the first respondent took issue with the submission as to the futility of the order in relation to Person X, and made submissions in support of that in the context of the evidence in this case. Consideration 16 A person who is not a party may inspect an originating application and statement of claim: r 2.32(2), unless such a document is confidential or forbidden or restricted from publication: r 2.32(3). 17 Section 37AF provides that the Court may, by making a suppression order or non-publication order, prohibit or restrict the publication or disclosure of, inter alia, information lodged with or filed in the Court: s 37AF(1)(b)(iv). Such orders can be made at any time during a proceeding or after a proceeding has concluded: ss 37AF(1), 37AH(3). 18 One of the grounds upon which a Court is permitted to make such an order is that "the order is necessary to prevent prejudice to the proper administration of justice": s 37AG(1)(a). In deciding whether to make a suppression 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: s 37AE. 19 The relevant principles in relation to the making of suppression or non-publication orders under s 37AF are well settled. The question in this instance 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": Hogan at [30], although it is not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52; (2012) 293 ALR 384 at [8], citing Hodgson JA in R v Kwok [2005] NSWCCA 245; (2005) 64 NSWLR 335 at [13]. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21]. The onus to persuade the court to make the order has been described as "a very heavy one": Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8]. 20 Mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11]. 21 It is well established that commercial in confidence or commercially sensitive information may form a sufficient basis for the grant of a confidentiality order: Hogan at [38]-[39]; Rinehart v Welker [2011] NSWCA 403 at [37]; Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [35]. 22 The question whether an order is necessary will depend on the particular circumstances of the case. 23 The first respondent placed particular emphasis on the observations of Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [9]: The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication. The interest in confidential information can be different if the disclosure of that information could "become a vehicle for advantaging or prejudicing trade rivals": Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 [148] (Katzmann J); Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082 [23] (Greenwood J); see also Yara Australia Pty Ltd v Burrup Holdings Limited (No 2) [2010] FCA 1304 [25] (Barker J). 24 The first respondent submitted that the description of the information becoming a vehicle for advantaging or prejudicing trade rivals in that passage aptly fits this case. 25 In Australian Competition & Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 cited in that passage above, Katzmann J stated at [148]: It is not in the interests of the administration of justice that the proceedings "become a vehicle for advantaging or prejudicing trade rivals": Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010) FCA 1082 at [23]. It is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished. Otherwise, the parties and members of the public might lose confidence in the Court and the Court's processes "might open the way to abuse": Australian Broadcasting Commission v Parrish [1980] FCA 33; (1980) 29 ALR 228; (1980) at 230; 43 FLR 129 at 134. 26 As noted above, Mr Butler relied on Japara at [10] to submit that to obtain a suppression order requires a demonstration "that the party would be seriously compromised or adversely affected if confidentiality was not retained". At [10] the Court observed: There is another reason why I reject the application with respect to material contained in those affidavits. It is one thing to point to content which it is claimed is confidential. But for the purposes of r 28.05(2) the fact that it is confidential is not in my view sufficient to justify the Court curtailing what is the entitlement of a person who is not a party to the proceeding to inspect and obtain a copy of any document as provided for in r 28.05(1). It is incumbent on the party seeking an order to do more than simply show that what is contained in documents on the Court file is confidential. It is necessary to go further and demonstrate that the party would be seriously compromised or adversely affected if confidentiality was not retained. There is no evidence before the Court to that effect, although counsel for the plaintiffs made the submission that the disclosure of the material in respect of which the order is sought has the potential to cause damage to the plaintiffs. 27 However, that is not this case. 28 I have considered the evidence relied on in support of the application. Although the affidavit sets out in general terms the basis of the application, the confidential exhibits provide the detailed factual basis of the application and explain, by reference to each proposed redaction, why the order is sought over the particular material. The description of the evidence in these reasons is necessarily circumscribed by my conclusion that the orders sought ought to be made. 29 The evidence establishes that the first respondent was incorporated in February 2018 and has been reliant on funding from its shareholders to operate. It has funding to continue to operate until 30 September 2020. A further funding notice will be issued to the shareholders in around August 2020 to seek funding so that the first respondent can continue to operate. The shareholders and a third party company (Company A) entered into an arrangement in July 2019 to explore a commercial opportunity, with a transaction giving effect to that opportunity scheduled to be completed in October 2020. The amount of funding that will be requested from the shareholders at the August 2020 funding event will depend on the status of the transaction at that time. The identity of Company A, the nature and details of the opportunity and the specifics of the transaction are highly confidential. This information is not in the public domain. The information is only known to a limited number of employees and advisors from Company A, the first respondent and the shareholder entities on a "need to know" basis. All employees and advisors who have knowledge of the information have been required to execute strict non-disclosure protocols prior to receiving any information. If the confidential information were to become public, the transaction may be delayed or it may not proceed for at least the following reasons: Company A may withdraw from the transaction; or the transaction may cease to be financially attractive (e.g. it would significantly increase the risk that Company A's competitors would develop a similar competing service and price these services competitively to the disadvantage of both the first respondent and Company A). This could affect then the further allocation of funds to the first respondent by its shareholders in circumstances where there are limited options available to continue funding the first respondent to transform it into an independent revenue-generating and profitable company. It is possible that shareholders may decline allocating any further funds and this would jeopardise the ongoing financial viability of the first respondent which could lead to its winding up. If the portions of the statement of claim and originating application are disclosed to the public, there is a risk that the confidential information will come into the public domain. 30 It appears that the applicant in the statement of claim had been careful in respect to the identity of Company A referring to it as that in the document, one presumes on the basis that it is confidential. A reference then to related information in the letter attached to the originating application appears rather anomalous. That is no doubt explained as it is a letter and not a document drafted by the applicant. Nonetheless, it is plain that steps were taken to avoid identifying Company A. Given the evidence before me (including the evidence and argument in the confidential exhibits), I do not agree with the submission that the order in relation to Person X ought not to be made on the basis that it is futile. Given the basis of this submission, it is important to recall that the order sought is directed to suppression and non-publication of the confidential information. It is directed to preventing the dissemination of that material. 31 The evidence establishes the material sought to be protected relates to the business affairs of the first respondent, in particular in relation to a commercial transaction currently taking place. The material sought to be the subject of the order would lead to the identity of a party to that transaction and the nature of the transaction being able to be established. That material is not in the public domain. I have considered each of the proposed redactions, and am satisfied in respect to each, either singularly or in combination with other material. The evidence establishes that this information or material is of value such that if revealed, there is a real risk the commercial transaction would be jeopardised. It is inappropriate to say more about the detail of the claim, for to do so would be to undermine the application made. 32 The material sought to be the subject of the order is limited material having regard to the content of the originating application and statement of claim. In that context I also accept the first respondent's submission that the redaction of the material would not have any material effect on a reader's understanding of the substances of the claims made in the originating application and statement of claim. 33 The first respondent did not put this material into the proceedings. This application is also in the context where the proceedings have been discontinued against all respondents. 34 The application sought is for a limited time period, until 31 December 2020 as the evidence establishes that the confidential information will come into the public domain no later than that date. 35 I am satisfied in this case, pursuant to s 37AF and s 37AG(1)(a) that an order in relation to the identified material in the statement of claim and originating application is necessary to prevent prejudice to the proper administration of justice. 36 I make the suppression and non-publication order over the material sought but only for a period up until 31 December 2020. It is plain that the order should only be for the period necessary. On the evidence, the transaction may be completed before 31 December 2020, possibly in October 2020. As a result, an order is made that the first respondent must notify the Court within five working days of the completion of the transaction, at which time the orders will cease to have effect. 37 An order is also made over Confidential Exhibits KM-1, KM-2 and KM-3 to the Mataraaratchi affidavit, as otherwise the orders made over the material in the statement of claim and originating application would be undermined. However, those orders are also limited to 31 December 2020 or such earlier time as outlined above. Those documents are also designated as confidential documents pursuant to r 2.32. 38 A necessary consequence of the orders is that the statement of claim and originating application must be designated as confidential documents pursuant to r 2.32. Any third party to these proceedings cannot inspect those documents. Rather, any third party may only inspect the redacted version of those documents which have been filed by the first respondent in accordance with the non-publication and suppression order made. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate: Dated: 24 June 2020