Background
Ms Javena Johnson commenced a general protections proceeding against H&M Hennes & Mauritz Pty Ltd under the Fair Work Act 2009 (Cth), arising from the termination of her employment. By consent orders made by a Registrar on 10 April 2026, the parties obtained an interim suppression order pending determination of H&M’s interlocutory application for final suppression and non-publication orders filed on 23 March 2026.
H&M sought wide-ranging suppression orders under the Federal Court of Australia Act 1976 (Cth) covering the originating application, concise statement, and all information derived from those documents. The suppression was sought until seven days after the conclusion of the first mediation, on the ground that disclosure would “compromise” settlement prospects and “prevent prejudice to the proper administration of justice.” A leisurely timetable was set for submissions, with the application not scheduled for hearing until after 8 May 2026.
The Court’s Holding
Justice Lee found that H&M’s decision to file and maintain the suppression application constituted an unreasonable act within the meaning of s 570(2)(b) of the Fair Work Act. The judge rejected the application on several grounds. First, the allegations in the case were “far from scandalous or salacious” and involved no confidential information of any kind—the material sought to be suppressed was “anodyne” on its face and could never reasonably have been thought necessary to suppress for the administration of justice. Second, H&M had previously represented to Ms Johnson’s solicitor that it had “no concern about media reporting or its reputation” and that Ms Johnson stood to suffer reputational harm, directly contradicting the basis for seeking suppression. Third, H&M’s evidence provided only vague, generalized claims that publication would “compromise” settlement, without any concrete factual basis satisfying the statutory test of necessity.
The judge also criticized the interim suppression order itself, noting that the leisurely timetable and lengthy period of suppression allowed the interim order to assume the practical effect of a final order, violating the mandatory requirement in s 37AI(2) of the Federal Court Act that such applications be determined as a matter of urgency. H&M abandoned the application immediately before the hearing date set by the judge, which the court reasonably interpreted as evidence the application lacked merit.
Key Takeaways
- Suppression and non-publication orders must be based on concrete, specific evidence of necessity for the administration of justice, not vague assertions that publication would be inconvenient or prejudicial to settlement.
- Material that is innocuous, non-confidential, and uncontroversial cannot satisfy the statutory test for suppression, regardless of a party’s tactical preferences.
- Prior inconsistent representations by a party (here, H&M’s statement that it had no reputation concerns) can rebut later claims that suppression is necessary.
- Interim suppression orders must be determined urgently; a leisurely timetable allowing an interim order to function as a final order violates the statutory urgency requirement and the open justice principle.
- Even after finding an unreasonable act, courts retain discretion whether to award costs, but will do so when the application was filed and maintained without reasonable foundation.
Why It Matters
This decision reinforces the foundational principle of open justice in Australian federal courts and cautions against the abuse of suppression applications as tactical tools. While suppression orders serve important purposes in cases involving genuinely sensitive material, the decision makes clear that parties cannot invoke suppression merely to avoid embarrassment, adverse publicity, or the impact of allegations on settlement negotiations. The judgment reflects judicial concern that consent orders—even when unopposed—must still comport with statutory requirements of urgency and the public interest in open justice, and that parties should not expect a Registrar to rubber-stamp procedural orders without critical scrutiny.
The decision also illustrates the cost consequences for litigants who file weak interlocutory applications late in litigation. Though s 570 of the Fair Work Act limits adverse costs orders to preserve access to justice, the court will award costs when an application was filed and maintained without reasonable foundation and imposed unnecessary work on the opposing party.