Appleroth v Ferrari Australasia Pty Limited (No 5) [2023] FCA 744

Appleroth v Ferrari Australasia Pty Limited (No 5) [2023] FCA 744

Because the clinical psychologist's evidence remained that public identification of the interested persons in connection with the substantive application would be harmful to their mental health and wellbeing, and because there remained some prospect of media interest, it was appropriate and necessary to make non-publication orders under s 37AF(1) on the ground in s 37AG(1)(c). Indefinite or five-year orders would not appropriately balance protection and open justice, so the orders were limited to a further two-year period; the same period was applied to confidentiality of the first interested person's affidavits.

Jurisdiction
Australia
Judgment Date
03 July 2023
Procedural Posture
Interlocutory Application for Non Publication and Confidentiality Orders / Application to Extend Non Publication Orders and Maintain Confidentiality of Affidavits
Outcome
Application granted in part; non-publication and confidentiality orders made for a further two years rather than indefinitely or for five years.
Legal Topics
['non Publication Orders' 'confidentiality of Court Records' 'open Justice' 'mental Health Impacts of Media Exposure']
['practice and Procedure' 'employment and Industrial Relations'] ['non Publication Orders' 'confidentiality of Court Records' 'open Justice' 'mental Health Impacts of Media Exposure']

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Procedural Posture

Interlocutory Application for Non Publication and Confidentiality Orders / Application to Extend Non Publication Orders and Maintain Confidentiality of Affidavits

Legal Issues

  1. 1 ['Whether the 2021 non-publication orders should be extended under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth).' 'Whether publication of information identifying or tending to identify the interested persons should be prohibited on the ground in s 37AG(1)(c) of the Federal Court of Australia Act 1976 (Cth).' 'Whether affidavits of the first interested person dated 4 June 2020 and 9 June 2021 should remain confidential under r 2.32(3) of the Federal Court Rules 2011 (Cth).' 'What duration of suppression and confidentiality orders appropriately balances protection of the interested persons and open justice.']

Ratio Decidendi

Because the clinical psychologist's evidence remained that public identification of the interested persons in connection with the substantive application would be harmful to their mental health and wellbeing, and because there remained some prospect of media interest, it was appropriate and necessary to make non-publication orders under s 37AF(1) on the ground in s 37AG(1)(c). Indefinite or five-year orders would not appropriately balance protection and open justice, so the orders were limited to a further two-year period; the same period was applied to confidentiality of the first interested person's affidavits.

Court Disposition

Application granted in part; non-publication and confidentiality orders made for a further two years rather than indefinitely or for five years.

Orders

  • ['Pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), until further order or 4pm on Thursday, 3 July 2025, whichever occurs first, publication of information that identifies or tends to identify either interested person by name or as connected with the applicant or the subject matter of the...