Background
Jordan Craig Berryman, an employee of NextDC Limited, alleged that NextDC contravened s 323 of the Fair Work Act 2009 (Cth) by failing to pay him in full for work performed. He sought declarations, compensation and pecuniary penalties.
At the first case-management hearing, NextDC sought suppression and non-publication orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth). It sought to prevent publication of the entire filed concise statement and a concise response not yet filed, pending mediation, citing alleged trade secrets and commercially sensitive pricing, customer and commission information.
The Court’s Holding
Lee J refused the proposed blanket order. The statutory test required NextDC to show that suppression was necessary to prevent prejudice to the proper administration of justice, while giving primacy to open justice. Convenience in maintaining a confidential “holding pattern” before mediation did not establish necessity.
The proposed order was too broad and indiscriminate. The evidence identified particular categories of information said to be commercially sensitive, and NextDC accepted that a narrower order could be framed. The Court also could not suppress a future concise response in the abstract before it had been filed and assessed. NextDC was given liberty to submit a properly calibrated proposed order confined to genuinely confidential material in the concise statement, without filing a further interlocutory application. By agreement, the proceeding was referred to mediation.
Key Takeaways
- Open justice remains the starting point for suppression and non-publication applications.
- A party seeking protection for commercial information must identify and confine the order to the information genuinely requiring protection.
- Pending mediation does not justify suppressing whole court documents merely to preserve settlement prospects.
Why It Matters
The decision is a practical warning against broad confidentiality applications in commercial and employment disputes. Even where genuine trade secrets or confidential pricing information may warrant protection, parties must propose orders with sufficient particularity and satisfy the statutory necessity test.