Federal Court of Australia Super Retail Group Limited v Farrell [2024] FCA 1214 Appeal from: Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 File number(s): NSD 1178 of 2024 NSD 1191 of 2024 Judgment of: WIGNEY J Date of judgment: 14 October 2024 Date of publication of reasons: 18 October 2024 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where primary judgment dismissed application for suppression order – leave to appeal granted – suppression orders made until hearing of appeal or further order Legislation: Fair Work Act 2009 (Cth) Federal Court of Australia Act 1976 (Cth) s 37AF Cases cited: DĂ©cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA; (1991) 33 FCR 397 Ex parte Bucknell (1936) 56 CLR 221 Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954 Johnson Tiles Pty Ltd v Esso Australia Pty Limited (2000) 104 FCR 564 Division: Fair Work Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 13 Date of hearing: 14 October 2024 Counsel for the applicants: Mr J Sheahan KC with Ms Z Hillman and Mr D A Ward Solicitor for the applicants: Allens Counsel for the respondents: Mr S Prince SC with Ms T Wong Solicitor for the respondents: Harmers Workplace Lawyers Appearing for Fairfax Media Publications Pty Ltd Ms L Alick Appearing for Nationwide News Pty Ltd Mr B M Regattieri ORDERS NSD 1178 of 2024 BETWEEN: SUPER RETAIL GROUP LTD Applicant ANTHONY HERAGHTY Second Applicant KEVIN FIGUEIREDO (and others named in the Schedule) Third Applicant AND: REBECCA FARRELL First Respondent AMELIA BERCZELLY Second Respondent NSD 1191 of 2024 BETWEEN: SUPER RETAIL GROUP LIMITED Applicant AND: EVO24 Respondent EVP24 Second Respondent MICHAEL DANIEL HARMER (and others named in the Schedule) Third Respondent order made by: WIGNEY J DATE OF ORDER: 14 October 2024 THE COURT ORDERS THAT: 1. Leave be granted to the applicants to appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954. 2. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order or until 4.15pm on the day of the hearing of the appeal from the decision in Farrell v Super Retail Group Limited (Confidentiality Applications) [2024] FCA 954, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, there be no disclosure, by publication or otherwise, of the information referred to in the schedule to this order (Suppressed Information) other than by disclosure by the parties or their legal representatives: (a) to any mediator, for the purposes of a confidential mediation in which the first applicant in NSD1178/2024 (SRG) and one or both of Rebecca Farrell and Amelia Berczelly are participants; (b) with the prior written consent of SRG; (c) to the legal representatives of Nationwide News Pty Limited and Fairfax Media Publications Pty Limited, but only for the purpose of making submissions in these proceedings; (d) by the filing in the Registry of any process or other document that contains any of the Suppressed Information; or (e) to the Australian Securities and Investment Commission (ASIC), but only if, and only to the extent that, ASIC compels such disclosure of Suppressed Information. 3. For the avoidance of doubt: (a) the content of negotiations relating to the terms comprising the Suppressed Information are themselves Suppressed Information; and (b) information is not Suppressed Information merely because it appears in a document along with Suppressed Information. 4. Liberty to apply at short notice. 5. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE (NSD 1178/2024 and NSD 1191/2024) 1. The information in paragraphs [21(a)], [21(d)], [21(e)], [21(g)], [21(h)], and [21(i)] of the Statement of Claim dated 29 July 2024 filed in NSD 1009 of 2024. REASONS FOR JUDGMENT (Revised from transcript) WIGNEY J: 1 Super Retail Group Limited and several of its officers or employees are the respondents to an application by Ms Rebecca Farrell in which she applies for certain relief pursuant to the Fair Work Act 2009 (Cth) and for specific performance of what she alleges was a binding settlement agreement between her and Super Retail. One of the terms of that alleged agreement was that the terms of the settlement would be confidential. Super Retail admits that it engaged in confidential and without prejudice settlement negotiations with Ms Farrell but denies that those negotiations resulted in a binding agreement. That part of the proceeding relating to the alleged settlement agreement is apparently listed for hearing before the primary judge in December. 2 Before the primary judge, Super Retail applied for a suppression order pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The effect of that order, if made, would have been to prohibit the disclosure, including by publication, of certain "material" which disclosed the terms of the alleged settlement agreement, save for a few of those terms, including that the settlement would be confidential. The primary judge held that Super Retail had not made out the articulated ground for the suppression order, that ground being that the order was necessary to prevent prejudice to the proper administration of justice. His Honour rejected Super Retail's contention that disclosure of the terms of the settlement would either: operate as a specific disincentive to the resolution of the dispute between the parties; or operate as a disincentive to parties generally to resolve litigation by non-curial means; or undermine related proceedings in the Fair Work Commission involving Super Retail and another former employee. His Honour accordingly dismissed Super Retail's application. 3 The primary judge did, however, make a suppression order which was to remain in force for a short period to permit Super Retail to file an application for leave to leave to appeal. Super Retail in due course filed an application for leave to appeal and the suppression order was extended. A suppression order was also made during a recent hearing before the primary judge in relation to an application that Ms Farrell's solicitors be disqualified. That suppression order essentially operated to keep information concerning the relevant terms of the settlement negotiations, or the alleged settlement agreement, confidential. 4 Super Retail's application for leave to appeal was opposed by Ms Farrell. I granted leave to two media organisations, Nationwide News Pty Limited and Fairfax Media Publications Pty Ltd, to appear and make submissions in respect of Super Retail's application for leave to appeal. Both media organisations opposed the grant of leave to appeal and filed written submissions. 5 I have received and heard detailed and helpful submissions from both parties and the media organisations. For the brief reasons that follow, I have determined that it is appropriate to grant Super Retail leave to appeal the judgment of the primary judge. While the Court does not always give reasons when granting leave to appeal, I consider that it is appropriate to provide some brief reasons if only to explain why I consider that, having granted leave, it will also be necessary to make a suppression order to effectively preserve the subject matter of the appeal. 6 The applicable principles in respect of applications for leave to appeal are settled and well-known. In short, an applicant for leave to appeal must generally establish both that the judgment of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave to appeal were refused, supposing the decision of the primary judge to be wrong: DĂ©cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA; (1991) 33 FCR 397 at 398. 7 I am satisfied that Super Retail has established both of those factors. 8 As to whether the judgment of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court, I am satisfied that Super Retail's proposed grounds of review are at least reasonably arguable. The arguments advanced by Super Retail in support of those grounds persuade me that it is at least reasonably arguable that the primary judge erred in concluding that the suppression order sought by Super Retail was not necessary to prevent prejudice to the proper administration of justice. I do not propose to discuss or rehearse Super Retail's proposed grounds of appeal and arguments, or the counter arguments advanced by Ms Farrell and the media organisations, given that those arguments will be fully ventilated in due course in the Full Court. 9 I should however, in fairness and with respect to the primary judge, note that the grounds and arguments advanced by Super Retail before me were, with respect, somewhat more refined and focussed than those that were advanced before his Honour. Super Retail's arguments in support of its leave application focussed primarily on the importance to the administration of justice of the maintenance of confidentiality in respect of without prejudice settlement negotiations, even when one of the parties to those negotiations subsequently commences proceedings to enforce a settlement agreement said to have resulted from those negotiations. I was also taken, in that context, to some authorities that Super Retail did not bring to the attention of the primary judge. The explanation for that was said to be that, with his customary diligence and efficiency, his Honour heard the suppression order application on an expedited basis and outside normal sitting hours. As a result, Super Retail did not have those authorities on hand. His Honour also noted that because the application had been heard outside the Court's normal sitting hours and while his Honour was conducting another trial, his reasons in this matter had been prepared in some haste. 10 As for substantial injustice, I am satisfied that Super Retail would suffer substantial injustice if leave to appeal was refused, supposing that the primary judge was wrong to have refused to make the suppression order it sought. The refusal of leave would, in effect, permanently determine the question of whether the suppression order was necessary to prevent prejudice to the proper administration of justice in the circumstances. As a result, the terms of the alleged settlement agreement would almost inevitably be disclosed and the confidentiality of the terms of the agreement, or the confidential settlement negotiations, will be irredeemably compromised. In Johnson Tiles Pty Ltd v Esso Australia Pty Limited (2000) 104 FCR 564 at [43], French J (with whom Beaumont and Finkelstein JJ agreed), citing Ex parte Bucknell (1936) 56 CLR 221 at 225, said that "a prima facie case exists for granting leave to appeal" in circumstances where an order, although interlocutory, has the practical operation of finally determining the rights of the parties. That is effectively the position in the present matter. 11 I am also satisfied that the proposed appeal raises an issue of public importance. That issue, in summary, is whether it may be necessary to prevent prejudice to the proper administration of justice to order the suppression of the content of confidential settlement negotiations in circumstances where one of the parties to those negotiations alleges, and the other party disputes, that the negotiations resulted in a settlement agreement. As has been accepted in some previous cases, it may be necessary to prevent prejudice to the proper administration of justice to preserve the confidentiality of without prejudice settlement negotiations and settlement agreements, including in circumstances where the settlement is required to be approved by a court. Does the fact that one of the parties has commenced proceedings to enforce an alleged settlement agreement, and that evidence of the confidential negotiations can therefore be adduced in those proceedings, mean that the administration of justice no longer requires that the confidentiality of the negotiations or the alleged settlement be preserved? It should be noted that suppression orders have been made in analogous circumstances in some previous cases in this Court and the Supreme Court of New South Wales, though the parties did not draw those cases to the primary judge's attention. 12 I recognise that an unfortunate byproduct of the grant of leave to appeal in this matter is that it will in my view be necessary to make a suppression order, in terms similar to the existing suppression order, to preserve the subject matter of the appeal. That is particularly unfortunate in this case as the likelihood is that the suppression order will remain in force when the primary judge hears that part of the proceeding relating to the specific performance of the alleged settlement agreement. That hearing may have to be conducted in a way which avoids the public disclosure of the confidential terms of the alleged settlement agreement. The manner in which that potential difficulty is handled will obviously be a matter for the primary judge. I acknowledge of course that a primary objective of the administration of justice is to safeguard the public interest in open justice. I am nevertheless of the view that it is necessary to prevent prejudice to the proper administration of justice to make a further suppression order in relation to the confidential terms of the settlement agreement, which will remain in force until at least the hearing of the appeal, or further order. 13 I will hear further from the parties in relation to the appropriate terms of the suppression order. The parties also agreed that the costs of this application should be reserved. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 18 October 2024 SCHEDULE OF PARTIES NSD 1178 of 2024 Applicants Fourth Applicant SALLY PITKIN Fifth Applicant ANNABELLE CHAPLAIN Media Organisations NATIONWIDE NEWS PTY LTD FAIRFAX MEDIA PUBLICATIONS PTY LTD NSD 1191 of 2024 Respondents Fourth Respondent EMMA PRITCHARD Fifth Respondent JENEE SMITH Sixth Respondent JUSTIN HANDISURYA Seventh Respondent MHA NOMINEES LIMITED Eighth Respondent SINCERUTTY MANAGEMENT PTY LTD Ninth Respondent ANTHONY MCCLELLAN Media Organisations NATIONWIDE NEWS PTY LTD FAIRFAX MEDIA PUBLICATIONS PTY LTD