Federal Court of Australia Mirabella v Mirabella International Pty Ltd [2024] FCA 820 File number: VID 739 of 2022 Judgment of: SNADEN J Date of judgment: 26 July 2024 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for suppression or non-publication orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – whether an order is necessary to prevent prejudice to the proper administration of justice – whether an order is necessary to protect the safety of any person – whether court documents and transcript should be marked confidential pursuant to r 2.32(3) of the Federal Court Rules 2011 (Cth). Legislation: Fair Work Act 2009 (Cth) s 340 Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG, 37AI Federal Court Rules 2011 (Cth) r 2.32 Cases cited: Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188 Hogan v Australian Crime Commission (2010) 240 CLR 651 Naude v DRA Global Limited [2023] FCA 493 StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCA 1271 The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377 Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 25 Date of hearing: 22 July 2024 Counsel for the Applicant: Mr J Ryan Solicitor for the Applicant: Velocity Legal Counsel for the Respondents: Ms R Preston Solicitor for the Respondents: Gadens Lawyers ORDERS VID 739 of 2022 BETWEEN: GIORGIO MIRABELLA Applicant AND: MIRABELLA INTERNATIONAL PTY LTD First Respondent ANGELICA LONGHITANO Second Respondent order made by: SNADEN J DATE OF ORDER: 26 july 2024 THE COURT ORDERS THAT: 1. The order made herein on 22 July 2024 cease to have effect. 2. Pursuant to (and for the purposes of) r 2.32(3) of the Federal Court Rules 2011 (Cth), each of the following, namely: (a) the respondents' interlocutory application of 17 July 2024; (b) the affidavit sworn by the second respondent on 17 July 2024; and (c) the transcript of the hearing of 22 July 2024, is, by this order, confidential. 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 17 July 2024, the respondents move the court for orders under pt VAA of the Federal Court of Australia Act 1976 (Cth) (the "FCA Act"); specifically, for orders to prevent the publication and disclosure of information that is described in an affidavit sworn by the second respondent on that same date. 2 Following a brief hearing on 22 July 2024, at which the parties advanced helpful oral submissions, the court made interim orders pursuant to s 37AI of the FCA Act. For the reasons that follow, I am not minded to make equivalent orders on an ongoing basis. The interlocutory application will be dismissed and the interim orders shall, thereupon, cease to have effect. 3 The information that is the focus of the respondents' application concerns what are said to have been some representations made by the applicant, who is the second respondent's brother, about various members of his family. Some context is required. The applicant is a former employee of the first respondent, a corporation whose sole director is the second respondent. His (the applicant's) employment was summarily terminated in October 2022, apparently for reasons that are said to have included that he had engaged in threatening or hostile conduct. 4 By his substantive application, the applicant seeks relief related to his dismissal. In particular, he contends that it was effected in contravention of s 340(1) of the Fair Work Act 2009 (Cth) (the "FW Act"), in that it was actuated on account of his having made certain complaints or inquiries in relation to his employment. He also prosecutes a claim for payment in lieu of notice of his dismissal, which necessarily rests upon his assertion that there was no proper basis summarily to dismiss him. 5 The affidavit sworn by the second respondent has been filed and served upon the applicant. It is unnecessary—indeed undesirable—that I should particularise its content in these reasons, save to observe that it contains evidence that, if accepted, would or might tend to support the respondents' contentions that the applicant's employment was terminated for the reasons that they maintain; and, perhaps more importantly for present purposes, properly without notice. 6 Section 37AF of the FCA Act confers upon the court the power that the respondents seek to invoke. It provides as follows: 37AF Power to make orders (1) The Court may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of: (a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or (b) information that relates to a proceeding before the Court and is: (i) information that comprises evidence or information about evidence; or (ii) information obtained by the process of discovery; or (iii) information produced under a subpoena; or (iv) information lodged with or filed in the Court. (2) The Court may make such orders as it thinks appropriate to give effect to an order under subsection (1). 7 A "suppression order" is an order that prohibits or restricts the disclosure of information, whether by publication or otherwise: FCA Act, s 37AA. A "non-publication order" is an order "…that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)": FCA Act, s 37AA. "Publish" means to disseminate or provide access to the public or a section of the public by any means: FCA Act, s 37AA. 8 The circumstances in which a court might entertain an order under pt VAA of the FCA Act are relatively well-known and well-settled. Chief amongst the considerations of which the court must take account is that a primary objective of the administration of justice is to safeguard the public interest in open justice: FCA Act, s 37AE. 9 In Naude v DRA Global Limited [2023] FCA 493, I had occasion to survey the principles that guide applications under pt VAA of the FCA Act. I made the following observations (at [13]-[15]), which are presently apt: 13 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. 14 The exclusion of public access to the processes with which a court deals is only to be effected in exceptional cases: The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [8] (Allsop CJ, Wigney and Abraham JJ; hereafter "Country Care Group"); 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 (Receivers and Managers Appointed) 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. 15 It is well accepted that "…mere embarrassment, inconvenience or annoyance will not suffice to ground an application for suppression or non-publication": Keyzer v La Trobe University (2019) 165 ALD 93, 99 [29] (Anastassiou J). It is a feature of open justice that those to whom court processes refer may thereby suffer embarrassment or 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": Williams v Forgie (2003) 54 ATR 236, 239 [14] (Heerey J). 10 A suppression or non-publication order may be made only if it is necessary to achieve one of the objectives listed in s 37AG(1) of the FCA Act. For present purposes, only s 37AG(1)(a) and (c) are relevant. Those subparagraphs provide as follows: 37AG Grounds for making an order (1) The Court may make a suppression order or non‑publication order on one or more of the following grounds: (a) the order is necessary to prevent prejudice to the proper administration of justice; … (c) the order is necessary to protect the safety of any person; … 11 The word "necessary" in those subparagraphs is a strong one: The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377, 379 [9] (Allsop CJ, Wigney and Abraham JJ). That an order might be convenient, reasonable or sensible, or otherwise might serve some notion of public interest is not enough: Hogan v Australian Crime Commission (2010) 240 CLR 651, 664 [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188, [8] (Bromberg, Wheelahan and Snaden JJ). 12 In StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCA 1271, [105]-[106], I had occasion to consider when circumstances might suffice to invoke s 37AG(1)(a) of the FCA Act: 105 The authorities recognise that there is a risk that prospective litigants might feel deterred from taking legal action to vindicate their rights if doing so should require that they disclose information that is commercially sensitive (or, indeed, sensitive in some other way). It is accepted that that deterrence can qualify as a form of prejudice to the proper administration of justice: Huikeshoven v Secretary, Department of Education, Skills and Employment [2021] FCA 1359, [57]-[58] (Jackson J) and the authorities to which his Honour there refers. 106 In Porter v Australian Broadcasting Corporation [2021] FCA 863, Jagot J observed (at [84]): …The administration of justice may be prejudiced in a variety of ways. If, for example, people cannot come to a court confident that some kinds of information can be protected from disclosure if necessary (such as commercially confidential information valuable to a person or a third party, or sensitive information about a person's health, or personal information about parties or third parties of no more than prurient interest to others) then public confidence in and access to justice may itself be undermined. 13 Presently, the second respondent deposes to her concerns about relying upon the matters described in her affidavit of 17 July 2024. Again, it is prudent to record them only at a headline level: the second respondent deposes to being concerned that, if the information in question were to be made public, there may be reason to think that there could be some "safety implications" either for her or for others (including the applicant). Respectfully, those implications are not particularised in a manner that permits a clear understanding as to the basis for that concern. 14 Nonetheless, the second respondent also deposes that, unless an order under pt VAA of the FCA Act is made in relation to the information in question, she will not seek to lead evidence of it at trial. 15 There can be little doubt that the matters to which the second respondent deposes are directed to invoking s 37AG(1)(a) and (c) of the FCA Act. As to the latter, she seeks to impress upon the court that the order that she seeks is necessary to protect her safety (and, it seems, the safety of others). As to the former, she seeks to impress upon the court that, unless an order is made, she will refrain from leading the evidence in question and that that will lead inexorably to prejudice the respondents' defence of the substantive application. 16 In the absence of a clearer understanding of the "safety implications" to which the second respondent refers, I am not able to find that the orders that are sought are necessary in the sense that s 37AG(1)(c) of the FCA Act contemplates. The concerns to which the second respondent deposes are set out only in vague terms. Beyond speculation, they do not identify why it is or might be that adverse safety consequences might befall her (or anybody else) unless orders are made. They do not extend beyond the cryptic assertion that, if the material that is sought to be made the subject of orders were to be disclosed or published, some unidentified person or people might "react to that", presumably in some way or ways apt to visit some equally unidentified measure of harm. There is no explanation as to why any apprehension of harm could not adequately be protected against by means of police intervention (although the second respondent does depose to having opted against that course due to the "sensitive" nature of the information that she has). 17 Unable to find that an order is necessary to protect anybody's safety, it necessarily follows that there is no occasion to make an order pursuant to the ground set out in s 37AG(1)(c) of the FCA Act. 18 I am, likewise and for related reasons—and notwithstanding the careful submissions of the respondents' counsel—not persuaded that an order should be made on the ground expressed in s 37AG(1)(a) of the FCA Act. If the evidence in question is to be received and accepted; and if the court is ultimately led to accept, partly on account of it, that the respondents' defence to the application should succeed, then the court would be called upon to explain why that were so in its reasons for judgment. The evidence is not of mere prurient interest or otherwise such that the court might be more inclined to protect against its disclosure or publication. 19 The respondents can choose not to rely on the information described in the second respondent's affidavit if they wish; but, absent some clear substantiating basis, they cannot self-elevate their reasons for doing so to a point that warrants subjugation of the court's important commitment to open justice. Orders under pt VAA of the FCA Act ought not, in my view, to be made upon anything other than strong and cogent foundations. Here, with respect, the second respondent's concerns appear to be speculative and indistinct. 20 It follows that I do not accept that orders are necessary under pt VAA of the FCA Act to prevent prejudice to the proper administration of justice. 21 The respondents' interlocutory application of 17 July 2024 should, thus, be dismissed. 22 Invited to indicate what orders might be appropriate if the court were to favour the conclusion to which I am drawn, counsel for the respondents pressed for more modest protections related to her clients' interlocutory application and the affidavit that the second respondent swore in support of it. Specifically, she indicated that the court should make an order under r 2.32(3) of the Federal Court Rules 2011 (Cth) (the "FCA Rules") that those documents, as well as the transcript of the hearing of 22 July 2024, be marked confidential, such that access to them from the court's file should be precluded. 23 I consider that to be appropriate. Those documents will have no bearing upon the determination of the substantive matter. In light of my ruling, the information contained within them extends no further than to matters of "prurient interest". To subject it to the prospect of public consumption would, I think, have a chilling effect upon litigants who might be minded to make applications under pt VAA of the FCA Act. Such an application necessarily entails, if only to the court and other parties, the disclosure of material that is sought to be protected. If, by that disclosure, a litigant risks the very thing that his or her application is designed to avoid, the prospect of failure might lead to applications not being made at all, which in turn might adversely impact the proper administration of justice. 24 In my view, the respondents ought not to be prejudiced by their unsuccessful interlocutory application. It is appropriate to restrict access under the FCA Rules as foreshadowed (noting, of course, that any third party who seeks access to the documents in question may make an application to that end, of which the parties will have proper notice and in respect of which they shall have a proper opportunity to make submissions). 25 Section 570(1) of the FW Act likely precludes the court from making any order for costs. None has been sought and, subject to any further application in that regard, the better course for now is simply not to make any order on that front. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate: Dated: 26 July 2024