Naude v DRA Global Limited

• Jurisdiction: Australia Federal only
• Judgment Date: 19 May 2023
• Neutral Citation: [2023] FCA 493
• Date: 19 May 2023
• Court: Federal Court

Federal Court of Australia

Naude v DRA Global Limited [2023] FCA 493

File number:	WAD 43 of 2023
Judgment of:	SNADEN J
Date of judgment:	19 May 2023
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application for non-publication orders pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth) – where statement of claim alleged to disclose information subject to without-prejudice privilege – where pleading in part alleged to be scandalous, vexatious or containing bare allegations – whether non-publication orders necessary to protect against prejudice to the administration of justice – application dismissed
Legislation:	Fair Work Act 2009 (Cth) s 570 Federal Court of Australia Act 1976 (Cth) Pt VAA ss 37AA, 37AE, 37AI, 37AF, 37AG Federal Court Rules 2011 (Cth) r 2.32
Cases cited:	Appleroth v Ferrari Australasia Pty Ltd[2020] FCA 756 Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd[2021] FCAFC 188 David Syme & Co v General Motors-Holden’s Ltd[1984] 2 NSWLR 294 Herald & Weekly Times Ltd v Williams(2003) 130 FCR 435 Hogan v Australian Crime Commission(2010) 240 CLR 651 Huikeshoven v Secretary, Department of Education, Skills and Employment[2021] FCA 1359 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court (NSW) (1991) 26 NSWLR 131 Keyzer v La Trobe University (2019) 165 ALD 93 Pigozzo v Mineral Resources Ltd[2022] FCA 1166 R v Davis(1995) 57 FCR 512 Reynolds v JP Morgan Administrative Services Australia Ltd (No 2)(2011) 193 FCR 507 The Country Care Group Pty Ltd v Director of Public Prosecutions (Cth)(No 2) (2020) 275 FCR 377 Williams v Forgie (2003) 54 ATR 236
Division:	Fair Work Division
Registry:	Western Australia
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	40
Date of last submissions	10 May 2023 (First to Sixth Respondents) 16 May 2023 (Applicant)
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr A Pollock
Solicitor for the Applicant:	Bennett Law
Counsel for the First, Second, Third, Fourth, Fifth and Sixth Respondents:	Mr I Taylor SC with Ms H Millar
Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Respondents:	HWL Ebsworth Lawyers
Counsel for the Seventh, Eighth and Ninth Respondents:	Mr J Healy
Solicitor for the Seventh, Eighth and Ninth Respondents:	Clyde & Co
Solicitor for the Tenth Respondent:	Mr C Hood, Hamilton Locke

ORDERS

		WAD 43 of 2023
BETWEEN:	ANDREW JAMES NAUDE Applicant
AND:	DRA GLOBAL LIMITED First Respondent ; PETER JOHN MANSELL Second Respondent ; KATHLEEN BOZANIC (and others named in the Schedule) Third Respondent

order made by:	SNADEN J
DATE OF ORDER:	19 May 2023

THE COURT ORDERS THAT:

1. The first-to-sixth respondents’ amended interlocutory application dated 28 April 2023 be dismissed.

2. Orders 5 and 7 of the orders made herein on 2 May 2023 be vacated with effect from 9:00 am (AWST) on Monday, 22 May 2023.

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

REASONS FOR JUDGMENT

SNADEN J:

1. On Tuesday, 2 May 2023, the court made orders on the application of the first-to-sixth respondents under s 37AI of the Federal Court of Australia Act 1976 (Cth) (the “FCA Act”). By those orders, the court temporarily prohibited publication of identified passages contained within the statement of claim herein and gave the parties a short window of time within which to make submissions as to whether or not permanent orders of that nature should be made pursuant to s 37AF(1) of the FCA Act. Those submissions have since been filed (the latest on Tuesday, 16 May 2023) and, in accordance with the position adopted by the parties, the substantive application is to be determined on the papers.

2. For the reasons that follow, the first-to-sixth respondents’ application for orders under s 37AF(1) of the FCA Act (hereafter, the “NPO Application”) will be dismissed. The interim orders made on 2 May 2023 will be dissolved.

Background

3. The applicant is a former employee of the first respondent’s. The other respondents hold various offices within the first respondent. By an originating application and statement of claim (each dated 23 February 2023) the applicant makes various claims concerning his employment and its termination, including claims based upon provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).

4. After its commencement, the matter was listed for a case-management hearing to be conducted on Tuesday, 2 May 2023. The NPO Application was filed a few days prior to that hearing, on Thursday, 27 April 2023 (and was the subject of refinement prior to 2 May 2023). At the hearing of Tuesday, 2 May 2023, the parties were agreed that some time should be afforded to them to prepare and advance submissions as to why the orders that were sought should or should not be made. In the interim, it was accepted that the court should make orders under s 37AI of the FCA Act to preserve the status quo.

5. That is the course that played out. Orders were made pursuant to s 37AI(1) of the FCA Act prohibiting publication of identified passages in the applicant’s statement of claim. The first‑to-sixth respondents were directed to file with the registry a redacted version of that document (that is, a version in which the offending passages were redacted) and the non‑redacted version was declared “confidential” for the purposes of r 2.32(3) of the Federal Court Rules 2011 (Cth) (the “FCA Rules”).

6. During the course of the hearing of 2 May 2023—which was conducted by remote means—the court was moved to field submissions from a journalist, Mr Prior. Perhaps more accurately, Mr Prior was moved to ask some questions about the operation of the interim orders that were then foreshadowed. Those matters needn’t here be particularised; it suffices to note that no opposition was raised against the making of the orders that the court then proceeded to make.

7. The NPO Application focuses upon two aspects of the applicant’s statement of claim. The first concerns the matters that are pleaded at paragraphs 58 and 59 thereof. Those paragraphs relate to discussions that are said to have been had with the applicant about the terms upon which his employment with the first respondent would (or might) end. It is submitted that those discussions were in the nature of “legally privileged without prejudice communications”, the publication of which would constitute a form of prejudice to the administration of justice. The second concerns matters that are spelt out in particulars that appear later in the statement of claim; and which relate to measures in which it is alleged that certain non-parties engaged in connection with the applicant’s employment or with matters that the applicant...