Background
Antonie Falco was employed by Zscaler Australia Pty Ltd for approximately 14 months between April 2024 and June 2025. In September 2025, Mr Falco commenced proceedings in the Federal Court alleging adverse action under the Fair Work Act 2009 (Cth) and sought declarations of contravention, compensation, and civil penalties. The respondents—Zscaler Australia Pty Ltd and Pamela Kubiatowski (Global Vice President)—denied the allegations. A mediation process was ordered in January 2026, which resulted in a successful settlement contingent upon the Court making suppression and non-publication orders protecting the settlement’s confidential terms.
Justice Bromwich had initially made confidentiality and non-publication orders in January 2026 to protect the mediation process. Following settlement, Mr Falco applied in June 2026 for fresh suppression and confidentiality orders to remain in effect after settlement, with Zscaler supporting the application as required by the settlement deed.
The Court’s Holding
Justice Bromwich granted the application for suppression and non-publication orders under s 37AF of the Federal Court of Australia Act 1976 (Cth), finding they were “necessary to prevent prejudice to the proper administration of justice” under s 37AG(1)(a). The Court suppressed the originating application, identified paragraphs from both the concise statement and concise statement in response, and specified paragraphs of supporting affidavits, preventing their disclosure until 4 July 2031 (a five-year period).
Justice Bromwich adopted reasoning from Saw v Seven Network (Operations) Ltd, holding that suppression orders serve the proper administration of justice in settlement contexts where: (1) settlement is reached early in proceedings; (2) the allegations are intrinsically connected to the settlement; and (3) without suppression, respondents would lack incentive to settle. The Court found that disclosure would undermine the settlement’s finality and confidentality, thereby prejudicing the administration of justice. The Court required parties to lodge redacted versions of suppressed documents to ensure non-sensitive material remains accessible to third parties on request.
Key Takeaways
- Suppression orders following settlement are permissible where they are “necessary to prevent prejudice to the proper administration of justice,” balancing open justice principles against the public interest in early dispute resolution.
- Courts recognise that respondents lack incentive to settle if facing public exposure regardless of settlement, making confidentiality orders essential to facilitating just resolution of disputes.
- The duration of suppression orders must be only as long as “reasonably necessary” under s 37AJ(2); the Court rejected proposals for 15 or 10-year orders in favour of a five-year period.
- Courts can require redaction of sensitive material while allowing public access to non-confidential portions of court documents to maintain open justice principles.
Why It Matters
This decision clarifies that Australian courts will support settlement-related confidentiality agreements by making suppression and non-publication orders early in employment disputes. For employers and employees, the decision confirms that confidential settlements are enforceable through Court-backed suppression orders, removing the risk of post-settlement public disclosure that might otherwise deter settlement negotiations. The decision reinforces that the administration of justice encompasses not only open justice but also the efficient resolution of disputes.
The judgment also signals that duration is a component of the necessity test under s 37AF: orders must be tailored to serve their purpose without extending indefinitely. By selecting a five-year period rather than 10 or 15 years, Justice Bromwich emphasised that suppression must be proportionate and temporary, preserving the principle that confidentiality is the exception and transparency the rule in Court proceedings.