Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 27 October 2021
• Neutral Citation: [2021] FCAFC 188
• Date: 27 October 2021

Federal Court of Australia

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd [2021] FCAFC 188

File number:	NSD 172 of 2021
Judgment of:	BROMBERG, WHEELAHAN AND SNADEN JJ
Date of judgment:	27 October 2021
Catchwords:	PRACTICE AND PROCEDURE – third-party application for suppression order prohibiting publication or disclosure of evidence and submissions pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth) – order sought on the basis that disclosure or publication would undermine confidentiality orders made by the Fair Work Commission, prejudice government tendering processes and cause potential breaches of copyright – order sought found not to be necessary to prevent prejudice to the proper administration of justice
Legislation:	Fair Work Act 2009 (Cth) ss 172, 593, 594 Federal Court of Australia Act 1976 (Cth) Pt VAA, ss 37AE, 37AF, s 37AG
Cases cited:	Hogan v Australian Crime Commission (2010) 240 CLR 651 Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	23
Date of hearing:	Determined on the papers
Solicitor for the Applicant:	Hall Payne Lawyers
Solicitor for the First to Third Respondents:	Australian Business Lawyers and Advisors
Solicitor for the Fourth and Fifth Respondents:	The Fourth and Fifth Respondents filed a submitting notice
Solicitor for Transport for NSW (non-party):	Transport for NSW

ORDERS

		NSD 172 of 2021
BETWEEN:	AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION Applicant
AND:	BUSWAYS NORTHERN BEACHES PTY LTD First Respondent ; BUSWAYS EASTERN SUBURBS PTY LTD Second Respondent ; BUSWAYS NORTH WEST PTY LTD (and others named in the Schedule) Third Respondent

order made by:	BROMBERG, WHEELAHAN AND SNADEN JJ
DATE OF ORDER:	27 October 2021

THE COURT ORDERS THAT:

1. The interlocutory application of 13 August 2021 made by Transport for NSW is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. In this proceeding, the applicant (ARTBIU) seeks judicial review of a decision made by the Fair Work Commission (FWC) to approve an enterprise agreement to which the respondents (Busways) are parties. The enterprise agreement was approved as a “greenfields agreement” which satisfied the requirements of s 172(2)(b) of the Fair Work Act 2009 (Cth) (FW Act). The central issue in the proceeding is whether a jurisdictional fact required by s 172(2)(b), being whether the “agreement relates to a genuine new enterprise that [Busways] are establishing or propose to establish”, existed. For the purpose of the proceeding, various documents dealing with several “Request for Tender” processes conducted by a New South Wales statutory corporation called Transport for NSW (request for tender documents) were tendered at the hearing. Some were tendered by Busways and others by the ARTBIU.

2. By an interlocutory application of 13 August 2021, Transport for NSW seeks leave to appear in the proceeding and seeks orders that would suppress (subject to an exception for the legal representatives of the parties) the request for tender documents, as well as extracts of affidavit evidence and written submissions filed in this Court and an unredacted copy of the reasons for judgment of the FWC, each of which refers to information in the request for tender documents (Documents).

3. Transport for NSW is or has been in the process of outsourcing bus services in regions of Greater Sydney. To facilitate this, Transport for NSW has been conducting tender processes for several of those regions. Busways tendered for the contract to provide bus services for some of these regions. As part of the request for tender processes, Transport for NSW provided Busways with information about the services that would be required under the relevant bus services contract, information about the tendering requirements and a draft contract. That information was provided to Busways subject to confidentiality undertakings and through a secure virtual “data room” in which all persons who accessed the data room were required to sign confidentiality deeds in favour of Transport for NSW confirming that they would maintain the confidentiality of the documents accessed.

4. Most, but not all, of the request for tender documents were tendered by Busways in the proceeding before the FWC. On the application of Busways, the FWC made an order on 24 November 2020 (FWC Order) to the effect that the documents tendered by Busways and those parts of the written outline of submissions filed by the parties in that proceeding which refer to or republish any of the content of the documents tendered not be published or otherwise disclosed other than to the legal representatives of any party to the proceeding and one other named individual.

Leave to appear

5. The interlocutory application made by Transport for NSW has been made in circumstances where the Court essentially invited it to be made if Transport for NSW considered it to be warranted. At the hearing of the application for judicial review, an application for the Documents to be suppressed pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (Act) was made by Busways broadly on the basis that the Documents contained confidential information of Transport for NSW. That application was rejected but on the basis that the Court would provide Transport for NSW an opportunity to seek a suppression order in relation to the Documents, should it seek to do so. It follows that leave to appear should be granted in order for Transport for NSW to make its application.

Should a suppression order be made?

6. The Court is empowered by s 37AF of the Act to make a suppression or non-publication order to prohibit or restrict the publication or other disclosure of information including information that comprises evidence or information about evidence. That power is only to be exercised on the basis of the permitted grounds under Pt VAA of the Act. Relevantly those grounds are set out in s 37AG(1) as follows:

(1) The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice;

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c) the order is necessary to protect the safety of any person;

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).

7. Furthermore and as s 37AE provides, in deciding whether to make a suppression order or non‑publication order, the Court “must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

8. In Hogan v Australian Crime Commission (2010) 240 CLR 651, the High Court considered the predecessor provision to s 37AG(1)(a) of the Act. The Court emphasised that the word “necessary” in the phrase “necessary in order to prevent prejudice to the administration of justice” is “a strong word” (at [30]). As the Court further observed at [31], the making or continuation of an order that appears “to be convenient, reasonable or sensible, or to serve some notion of the public interest” is not a sufficient basis for the making of a suppression or non‑publication order.

9. The...