1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Rebecca Johnson
v
Benex Civil Pty Ltd
(U2021/3143)
COMMISSIONER SPENCER BRISBANE, 18 FEBRUARY 2022
Application for a suppression order related to an unfair dismissal application – related
jurisdictional objection decision – high income threshold – legal representation – suppression
order – granted in part.
INTRODUCTION
[1] This application for a confidentiality order relates to the unfair dismissal application by
Ms Rebecca Johnson (the Applicant) in relation to the termination of her employment by Benex
Civil Pty Ltd (the Respondent/ the company). Mr Benjamin Johnson was the Director of the
company and had terminated the Applicant’s employment from the Respondent company. A
separate decision ([2022] FWC 338), relates to the high income threshold jurisdictional
objection.
CONFIDENTIALITY ORDERS
[2] During the determinative conference in relation to the jurisdictional objection, the
Respondent’s Solicitor’s applied for a confidentiality order to suppress the identity of the
parties; and the name of the Respondent’s Director, as well as matters contained in material that
had been filed by the parties. Accordingly, Directions were issued in relation to the filing of
material for the suppression order, sought pursuant to s.594(1)(a) to (d) of the Act.
[3] The Applicant in the proceedings was employed by the Respondent as an Office
Manager (later renamed to be Commercial Manager). The Director of the Respondent’s
company, Mr Benjamin Johnson, was at the time of the dismissal, the Applicant’s husband. The
termination of employment was for allegedly altering passwords in relation to accounts on the
Respondent company’s server. The Applicant denied this and set out that these were her
passwords and that a register of other passwords remained for the continued use by other
employees and the Director. The Applicant further set out that she had deleted her passwords,
in order to protect herself from other parties conducting business with her passwords. These
actions occurred at a time when the Applicant and Director (husband) were undertaking a
marital separation. The business, marital and employment relationships provide relevant
context to the proceedings.
[2022] FWC 339
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 339
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LEGAL REPRESENTATION
[4] Ms Merna Aziz, Lawyer of Gorval Lynch, sought permission pursuant to s.596 of the
Act to appear on behalf of the Respondent in the proceedings. The Applicant, who was self-
represented throughout the proceedings, objected to the legal representation. Directions were
issued for the parties to provide submissions on the matter of legal representation.
[5] In response to those directions, the Respondent’s representative submitted that the
present matter involved a degree of complexity, in that it required a determination of a
jurisdictional objection, and that the matter was also interwoven with Family Court proceedings
involving the Respondent’s Director and the Applicant. The parties were also subject to an
Apprehended Domestic Violence Order (ADVO) which restricted their direct contact. A copy
of this ADVO was provided to the Commission, by the Respondent’s solicitors in support of
their s.596 application.
[6] The Respondent’s representative submitted that the granting of legal representation
would assist the Commission in efficiently and effectively determining the complex factual and
legal matrices, in this proceeding and accommodating the ADVO.
[7] The Applicant objected to the legal representation on the basis that the ADVO does
allow for contact under certain circumstances, such as for the purposes of legal proceedings.
However, the Applicant was willing to agree to any legal documentation that would confirm
communication at this hearing and not be classed as a breach of the order. The Applicant also
submitted that she has no experience before the Commission.
[8] Having considered the parties submissions, legal representation was granted pursuant to
s.596(2)(a) of the Act, to assist with the efficient conduct of the matter, taking into account the
restrictions in the ADVO and also the significant volume of documents filed.
RELEVANT LEGISLATION
[9] The power of the Commission to make orders about the confidentiality of evidence is
contained in s.593 and s.594 of the Act. Section 593 relevantly states:
“Hearings
(1) The FWC is not required to hold a hearing in performing functions or exercising
powers, except as provided by this Act.
(2) If the FWC holds a hearing in relation to a matter, the hearing must be held in public,
except as provided by subsection (3).
Confidential evidence in hearings
(3) The FWC may make the following orders in relation to a hearing that the FWC
holds if the FWC is satisfied that it is desirable to do so because of the confidential
nature of any evidence, or for any other reason:
(a) orders that all or part of the hearing is to be held in private;
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#this_act
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s26.html#subsection
[2022] FWC 339
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(b) orders about who may be present at the hearing;
(c) orders prohibiting or restricting the publication of the names and addresses
of persons appearing at the hearing;
(d) orders prohibiting or restricting the publication of, or the disclosure to some
or all of the persons present at the hearing of, the following:
(i) evidence given in the hearing;
(ii) matters contained in documents before the FWC in relation to the
hearing…”
[10] Section 594 states:
“Confidential evidence
(1) The FWC may make an order prohibiting or restricting the publication of the
following in relation to a matter before the FWC (whether or not the FWC holds a
hearing in relation to the matter) if the FWC is satisfied that it is desirable to do so
because of the confidential nature of any evidence, or for any other reason:
(a) evidence given to the FWC in relation to the matter;
(b) the names and addresses of persons making submissions to the FWC in
relation to the matter;
(c) matters contained in documents lodged with the FWC or received in
evidence by the FWC in relation to the matter;
(d) the whole or any part of its decisions or reasons in relation to the matter…”
BACKGROUND
[11] In assessing applications to suppress names, details, documents or parts of a decision
from the public record, it is noted that even though the Commission is given broad powers by
the legislature, the open justice principle assists in ensuring those powers are not exercised in a
“cloistered process”. The powers within ss.593(3) and 594(1) are “not intended to lie dormant”
but are to be exercised “albeit infrequently and with caution”.1
[12] The principles of open justice and its application to matters dealt with by the
Commission, (in the context of an application for orders to stop bullying), were set out by Vice
President Hatcher in Amie Mac v Bank of Queensland Limited & Ors (Amie Mac).2 These
principles have been adopted by the Commission in other matters since.3
[13] The Vice President, in that decision stated that “the principle of open justice will usually
be the paramount consideration in determining whether a confidentiality order of the type
1 Matter of Worker A and Ors [2016] FWC 6524 [19]–[21]
2 [2015] FWC 774.
3 See for example Application by Krcho [2020] FWC 181 at [11]; Luke Maxitanis v Department of Justice and Community
Safety [2020] FWC 902 at [5]
[2022] FWC 339
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sought by the Respondents ought be made”. Vice President Hatcher quoted Pembroke J in Seven
Network (Operations) Limited v Warburton (No 1)4 as follows:
“[3] There are limited exceptions to the principle of open justice. Where those
exceptions apply, the courts will restrict access where appropriate. But departure from
the principle of open justice is only justified where observance of the principle would
in fact frustrate the administration of justice by unfairly damaging some material private
or public interest. To that end, an order restricting the public availability of information
will only be made if it is really necessary to secure the proper administration of justice.
Such an order must be clear in its terms and do no more than is necessary to achieve the
due administration of justice. Furthermore, there must be some material before the Court
upon which it can reasonably reach the conclusion that it is actually necessary to make
an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales
(1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal
Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v
National Australia Bank [2001] NSWSC 1024 (Einstein J).
[4] The consequence of the principle of open justice is that embarrassing, damaging and
inconvenient facts may occasionally come to light. That consideration has never been
regarded as a reason in itself for the suppression of evidence or for an order restricting
access to documents: John Fairfax Group Pty Ltd (Receivers& Managers Appointed) v
Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P)
Equally, it is common for sensitive issues to be litigated and for information that is
extremely personal or confidential to be disclosed. This is sometimes an unavoidable
by-product, and a necessary consequence, of the application of the principle.”
[5] To avoid the consequences that sometimes follow from the conduct of proceedings
publicly and in open view, parties can, and frequently do, choose to litigate their disputes
by private commercial arbitration. But if they choose to litigate in court, they must
accept the necessity for the Court to conduct its proceedings openly and with
transparency.”5
[14] Vice President Hatcher considered that the above passage is equally applicable to a
tribunal such as this Commission, which conducts its processes in a quasi-judicial fashion.
[15] Further, Deputy President Gostencnik observed in Bowker & Ors v DP Work Melbourne
Limited t/a DP World & Ors6 that the question of whether to make a confidentiality order
involves balancing the considerations of open justice and the interests of fairness and justice,
taking into account how the order would affect each side. He further noted that “...these
considerations are not to be applied in a vacuum and need to be considered in the context of the
express power to prohibit or restrict publication of certain material having regard to its
confidential nature or for any other reason and the circumstances of a particular case...”7
4 [2011] NSWSC 385.
5 Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 at [6] cited in Eric Owenhall v Aerocare Flight Support
Pty Ltd T/A Aerocare [2018] FWC 2478 at [26]
6 [2015] FWC 4542 at [20]
7 Ibid at [15]
[2022] FWC 339
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Procedural history
[16] It is necessary to briefly outline the procedural history of this matter. The Respondent
first raised its jurisdictional objection that the Applicant’s earnings exceeded the high income
threshold, in the F3 response filed by the Respondent’s Director, Mr Johnson. He was self-
represented at that time. Directions were issued for the filing of material in relation to the high-
income threshold jurisdictional objection. Material regarding the jurisdictional objection was
filed accordingly. At the initial conference the Respondent relied on a range of expenditure
made by the Applicant on a company credit card. The Respondent purported this to be
expenditure for the Applicant, that should be taken into account as part of her earnings. The
Applicant rejected this and stated that the expenditure related to items bought for all of their
family and their home and should not be attributed to her earnings.
[17] This expenditure material was comprehensively examined with the parties at the initial
conference. Both parties were self-represented at this point. The visa records were the subject
of detailed assessment with the parties. The expenditure clearly related to domestic purchases
for the family as a whole, and were not payments in line with s.332(a) that could be determined
in advance. As a result, the Respondent concluded such and withdrew the jurisdictional
objection. He later sought additional time to seek legal advice for the arbitration of the s.394.
An extension to the Directions was granted.
[18] The Respondent’s lawyer then gave notice for permission to appear, pursuant to s.596
of the Act, by the filing of a Form F53. On the same day the Respondent’s representative sent
correspondence to chambers which identified that the matter still involved a question of
jurisdiction, requiring submissions on the applicable case law, and they sought to revisit the
high income threshold issue. The Respondent’s representative, noted that the current Directions
at the time dealt with the substantive matter for arbitration, as the jurisdictional objection had
been dealt with. The Respondent advised that they then were electing to revisit the jurisdictional
objection (in terms of the high income threshold). The Respondent was then directed to set out
the particular basis that they relied upon for jurisdictional objection as previously advised. Prior
correspondence had informed the parties that if the Respondent elected to further pursue the
jurisdictional objection, given the lapse of time and the jurisdictional matter had already been
considered, any submissions would need to be provided in accordance with the dates set on the
Directions.
[19] Accordingly, given the additional time afforded to the Respondent to seek legal advice,
the Respondent filed its material relevant to both the jurisdictional objection and the merits of
the matter. The Respondent did not object to this but sought for a jurisdictional decision first.
The Directions had already been framed with the Respondent providing their s.394 material
first, (as the Applicant had been dismissed for serious misconduct), in order that the Applicant
was aware of the case that she was answering. The Respondent did not object to filing both sets
of material at this time. It is noted that the Respondent, did not reagitate the jurisdictional
objection on the basis of the visa expenditure, but on a separate issue. The Respondent, in filing
the material, did not separate the jurisdictional and merits documents.
[20] The matter was listed, by consent, for a determinative conference by telephone, dealing
with the jurisdictional matter only.
[2022] FWC 339
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Consideration of submissions
Relevance of materials filed
[21] The Respondent submitted that in light of the procedural history, the majority of the
evidence filed in the Commission by the parties dealt with both the jurisdictional objection and
the merits of the matter. The Respondent did not specifically delineate the material filed
between the jurisdictional objection and the s.394 matter.
[22] The Respondent’s case was that if all of the parties’ material was admitted, this would
be contrary to the swift administration of justice and contrary to the objects set out in the Act
and s.381 of the Act. The Respondent submitted that if all of the evidence filed was to be
admitted for the purpose of a determination of the jurisdictional objection, suppression orders
would be sought in relation to other documents, which are irrelevant to the jurisdictional
objection.
[23] The Respondent (at the determinative conference) further contended that it objected to
other documents, (previously filed) on the basis, that the material breaches the implied
undertaking given by the parties to the Family Court, as set out in the High Court decision of
Hearne v Street.8 The Respondent’s Director, Mr Johnson and the Applicant were involved in
Family Court proceedings related to their marital separation. The Respondent submitted that
the cited decision, sets out that parties have an implied undertaking to the Family Court, not to
disclose or use documents or information obtained in the Family Court from another party for
any other purpose, without leave of the Court. It was not clear on either parties’ documents,
what material was filed in the Family Court proceedings.
[24] The Respondent also relied on s.121 of the Family Law Act 1975 (Cth) which provides
a restriction on the publication of family court proceedings.
[25] Again, the Respondent had not at the time of filing their material, clearly identified in
their material or in that of the Applicant’s, which documents formed part of the Family Court
proceedings. The Respondent’s lawyers had introduced a copy of the ADVO arising from the
Family Court proceedings, in arguing that the Respondent should be legally represented. It is
noted that the Respondent’s lawyers, in the final determinative conference, clarified that their
client was the company entity, Benex Civil Pty Ltd, and she was instructed by Mr Ben Johnson.
However, throughout the Respondent’s lawyer’s submissions, references to their client
interchanges between the company and Mr Johnson. For example, where they noted in their
submission that ‘the Applicant and Respondent had previously been in a marital relationship
and employment relationship’,9 the reference was to Mr Johnson, and not Benex.
[26] Importantly, the Respondent’s representative only raised the suppression of documents
at the commencement of the determinative conference. They had not foreshadowed
confidentiality issues prior to this point and had not taken issue at the time that the documents
were filed. The Respondent’s representative could not particularise the documents or classes of
8 [2008] HCA 36.
9 Respondent’s submissions seeking permission to appear, at [8.b].
[2022] FWC 339
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such that they were seeking to suppress with any specificity. Accordingly, chambers produced
a court book for the parties to assist with the identification of the significant number of
documents.
[27] The Respondent has requested that the Commission suppress the following:
(a) the Applicant, the Respondent and the Respondent director’s names or any names
that would otherwise identify the Applicant and/or Respondent in anyway.
Additionally, any details or information that would identify the Applicant,
Respondent and/or the Respondent’s director in anyway;
(b) any matters contained in the documents provided to the Commission that would
have a detrimental impact on the Respondent’s business such as financial records,
statements, client names, processes, procedures, passwords, account details and
revenue details; and
(c) any matters contained in the documents provided to the Fair Work Commission that
would have a sensitive, confidential, and personal information into the Applicant,
the Respondent and the Respondent directors marital and personal relationship or
that otherwise breaches the implied undertaking provided to the Family Court by the
parties.
[28] The Respondent submitted that the basis for the request is that the Respondent’s director
and the Applicant have a personal relationship outside of the employment context. Additionally,
the Respondent holds concerns regarding privacy and the prejudicial effect on the Family Law
proceedings currently on foot, and on their young child. They argued for the suppression of the
sensitive, personal and confidential materials that were irrelevant to the current proceedings
and connected to the Family Law proceedings and the confidential business records such as
passwords and account details. The Respondent submitted that the Applicant has filed material
obtained from the Family Law proceedings. The Respondent did not specifically identify this
material at the time it was filed, nor did they object at that time. The court book runs to more
than 700 pages of documents.
[29] The Respondent accepted that the Commission is required to balance the considerations
of open proceedings and the interests of fairness and justice. Having regard to the broad
concerns raised above, the Respondent submitted that its request for such orders would not
offend the principle of open justice. If the Commission is of the view that it does undermine the
principle of open justice, the Respondent relied on the limited exceptions to the principle of
open justice cited by Vice President Hatcher in the case of Amie Mac,10 (referred to above). The
Respondent’s position is that its request is not to shield it, [from disclosure of allegations or
from any embarrassment, discomfort or inconvenience that might arise from public scrutiny]
but instead is to protect its private and confidential dispute with the Applicant on a personal
level outside of the employment context. This submission is not clear, given the lawyers for the
Respondent in the matter before the Commission, have declared their client to be the Company.
That Company is not a named party in the Family Court proceedings and separate lawyers were
engaged to represent Mr Johnson in the Family Law proceedings.
10 Later cited in the case of Eric Owenhall v Aerocare Flight Support Pty Ltd T/A Aerocare [2018] FWC 2478 at [3]
[2022] FWC 339
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[30] The Applicant did not dispute the Respondent’s request to have the identities of the
Applicant, Respondent’s Director or family suppressed, including child contact and financial
information. However, the Applicant submitted that she “does not see a reason why the name
of the Respondent (Benex Civil Pty Ltd) needs to be suppressed”.
[31] In the Applicant’s written submissions in response to the confidentiality orders, the
Applicant agreed to the “majority” of documents that the Respondent sought to supress.
However, should the matter proceed to the merits arbitration, it was raised that the documents
may again “come into play”. Specifically, the Applicant submitted that the following documents
are relevant to the jurisdictional objection, although the Respondent submitted that they are not:
(a) Item 6A: Documents annexed to A’s submissions (including but not limited to):
(i) Account Transactions_Rav4 (GG), the Respondent did not actually
object to the document being considered, they only sought the
suppression of the identity of the Applicant and Respondent.
(ii) Prado Order_FleetPlus (HH), the Respondent did not actually object to
the document being considered, they only sought the suppression of the
identity of the Applicant and Respondent.
(iii) High Income Threshold_Salary Calculations (HHH) the Respondent did
not object to the relevance of document. The Respondent claimed it
should be suppressed.
(iv) Prado Cost per Km (III), no objection by Respondent, the document was
not referred to in submissions.
(b) Item 8B: Ben Johnsons Affidavit Comments related to Parenting – Dated 25/8/21 –
on the basis that this includes information which is relevant to the Milage
spreadsheet.
[32] It is noted that in the Applicant’s submissions, the Applicant has listed several
documents that she identified as being relevant to the jurisdictional objection, with the caveat,
“including but not limited to”. Without any further clarification from the Applicant, the list
provided in her submission is taken to be exhaustive. The documents identified by the Applicant
as relevant to the jurisdictional objection, largely relate to her use of the new company vehicle,
which became the predominant matter in dispute in the jurisdictional objection. On review of
the documents, it is noted that the Respondent has objected to one of the documents. The
affidavit of Mr Johnson, being the document in dispute between the parties.
[33] The Applicant further submitted that:
(a) Item 26: Witness Statement of Benjamin Paul Johnson - The Respondent should
only be able to rely on paragraphs 16,17 and 18 and related annexures for the
Jurisdictional Objective. If the Applicant is unable to provide history surrounding
the relationship and her addition to being purely classed as an employee, then the
Respondent should also be treated under the same conditions.
- Note: correct reference is Item 16. The Respondent has submitted that
paragraphs [1] – [27], 47, 56, 59, 64(b), 66, 68, 70, 73, 74, 75, 77, 86 of Mr
Johnson’s statement are relevant to the jurisdictional objection. [1]-[27]
[2022] FWC 339
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deals with the background to the matter, including the breakdown of the
personal relationship between the Applicant and Respondent’s director, the
AVO, the company and Applicant’s employment.
- The Respondent has submitted that only [41]-[49] of the Applicant’s
statement/submissions is admissible. [1] – [30] of the Applicant’s
submissions deal with background to the matter, her relationship with the
director etc.
[34] The Applicant therefore argues that given the parties’ circumstances, the use of the new
vehicle, the kilometres associated with the post-separation conduct and the relocation, the
material is admissible.
FURTHER CONSIDERATION
[35] The difficulty in suppressing the names of the parties to this matter, is that it prevents
the clear identification of the relevant nature of the personal, employment and business
relationships, which is applicable to the background and consideration of the matter. The
suppression of this material, as argued, does not fall within one of the exceptions to open justice.
Relevance and admissibility of materials filed
[36] The Respondent has objected to the admission of material that has been filed, that does
not deal with the jurisdictional objection. However, they have not appropriately particularised
the documents, amongst the volume of papers filed, nor submitted cogent reasons for the
suppression of material that identifies the parties.
[37] Section 591 of the Act states that the Commission is not bound by the rules of evidence
and procedure. Whilst it is well established that the Commission is not bound by the rules of
evidence, they cannot be ignored, if that would cause unfairness between the parties.11 It has
also been said that the rules of evidence ‘provide general guidance as to the manner in which
the Commission chooses to inform itself’.12 In light of these considerations, the general
principles of admissibility of evidence are referred to. The starting position is that all evidence
which is sufficiently relevant to the issue before the Court or tribunal is admissible (subject to
exceptions). All evidence that is irrelevant, or insufficiently relevant, is excluded.13 Without
engaging in consideration of unnecessary technicalities, I accept that the documents agreed
between the Applicant and Respondent as being ‘irrelevant’ to the jurisdictional objection,
(which is the subject of the current proceedings), should be suppressed by consent. The
documents identified as relevant to the jurisdictional objection, were set out in the Respondent’s
submissions.14 The Applicant has indicated that she agrees with the suppression of these
documents. Any of the documents relevant to the jurisdictional objection, such as those that
deal with wages, superannuation, the vehicles, expenses and health insurance are relevant to
the jurisdictional objection, and are not supressed.
11 Re: Construction, Forestry, Mining and Energy Union, PR935310
12 Australasian Meat Industry Employees’ Union v Dardanup Butchering Company Pty Ltd (2011) 209 IR 1 [28]; citing Hail
Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 [47]‒[50]
13 Hollington v F Hewthorn and Co Ltd [1943] KB 587 at 594; [1943] 2 All ER 35 at 39
14 Paragraph [38] – [39] of the Respondent’s submissions on the suppression orders.
[2022] FWC 339
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(a) Identity of the Applicant, Respondent, Respondent’s Director and their child
[38] The Respondent made the submission that the matters covered in the application, are
sensitive and personal. Simply submitting such by reference that a personal relationship exists
between the Applicant and the Respondent’s Director, is insufficient to enliven an exception to
the open justice principle. The employment relationship overlaps this marital relationship and
provides the relevant background to the jurisdictional issue.
[39] Neither party has provided any material to suggest that disclosure or publication of the
names of the Applicant, Respondent, or Respondent’s Director may result in some form of
retribution, harassment or intimidation.15 The Respondent has submitted that publishing the
identity of the parties, would have an adverse impact on the Family Law proceedings, by
disclosing information of a personal nature. The matters under consideration relate to an unfair
dismissal application and a jurisdictional objection to the application, on legislative and
relatively technical grounds. I am not satisfied that publishing the names of the parties will
prejudice the Family Law proceedings on grounds that the information contained in the
jurisdictional objection decision is “personal in nature”. However, it is conceded that it is
unnecessary to publish or make reference to their child’s name.
[40] Accordingly, reference to the name of the Director’s young child will be suppressed.
The young child is not a party to the matter and has had no involvement in the proceedings. As
noted by Justice Pembroke in the decision in Seven Network, “departure from the principle of
open justice is only justified where observance of the principle would in fact frustrate the
administration of justice by unfairly damaging some material private or public interest”.16 I am
satisfied that identification of the young child is unnecessary in the employment related
decision. An Order will issue to supress the child’s name.
(b) Respondent’s business records
[41] The Respondent referred to business documents, identified as potentially confidential:
A. Item 6Y – copy of Mastercard of Applicant
B. Item 6 II – copy of business transaction account
C. Item 6LL – Benex Password register
D. Item 6XX – email chain discloses the Respondents clients and invoicing process
[42] It is recognised that some of these documents provide direct passwords, credit card
numbers, and some have commercially sensitive information for the operation of the business.
Therefore, in relation to A, B, C and D above, the documents will be supressed by Order. This
material was not ultimately relied on in the jurisdictional objection decision.
(c) Documents relevant to family court proceedings
15 cf Application by Worker A, Worker B, Worker C, Worker D and Worker E [2016] FWC 6524 regarding a confidentiality
order that was made to protect the Applicants’ anonymity by supressing their respective names and addresses
16 Cited in Jeremy Butler v Respondent [2015] FWC 8277
[2022] FWC 339
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[43] The Respondent has requested that any matters in the documents filed in the
Commission, that would have sensitive, confidential and personal information in relation to the
Applicant, Respondent and Respondent directors, the marital and personal relationship be
suppressed. The Respondent has raised concerns about its privacy and the prejudicial effect on
the Family Law proceedings between the Applicant and Respondent’s Director that are
currently on foot. The Respondent’s representatives have failed to sufficiently identify the
documents or provide arguments on the basis for their necessary suppression. It is noted that
the Respondent, being the Company entity, is not a party to the Family Law proceedings.
Further, any information filed in this matter that is to be relied on in the Family Law proceedings
will be subject to a separate set of legislative tests and it will be open for the parties to object
to material filed in those proceedings.
[44] It is acknowledged that a departure from open justice principles may be justified in some
circumstances where publication of information would frustrate the administration of justice.
However, in the current circumstances, the breakdown of the marital relationship between the
Applicant and the Respondent’s Director is material to the determination of the aspects of the
jurisdictional objection, such that supressing this related evidence is improper. The Respondent
has also failed to clearly delineate the nature of these documents to be made confidential and
therefore it is neither feasible nor necessary. However, documents that have not formed part of
the consideration of the jurisdictional objection will be suppressed, as set out; for example, in
the documents in 6Y (the credit card information) were not ultimately relied upon by the
Respondent’s solicitor when they re-agitated the jurisdictional objection, and as such, the
documents will be suppressed, given the multiple page contract, its content and credit card
numbers.
[45] The relevance of the current status of the Family Court proceedings is not known to the
Commission, although it is understood that the Respondent’s representatives in the current
proceedings do not act or have instructions in the Family Law proceedings. The Respondent
has referred to an implied undertaking established in Hearne v Street,17 that parties do not
disclose or use documents or information obtained in the Family Court from the other party for
any other purpose, without leave of the Court.
Hearne v Street (‘Harman undertaking’)
[46] In Hearne v Street Hayne,18 Heydon and Crennan JJ formulated the rule thus (at [96]):
“[96] Where one party to litigation is compelled, either by reason of a rule of court, or by
reason of a specific order of the court, or otherwise, to disclose documents or
information, the party obtaining the disclosure cannot, without the leave of the court,
use it for any purpose other than that for which it was given unless it is received into
evidence. The types of material disclosed to which this principle applies include
documents inspected after discovery, answers to interrogatories, documents produced
on subpoena, documents produced for the purposes of taxation of costs, documents
produced pursuant to a direction from an arbitrator, documents seized pursuant to an
17 [2008] HCA 36
18 Ibid.
[2022] FWC 339
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Anton Piller order, witness statements served pursuant to a judicial direction and
affidavits.”19
[47] The Respondent has failed to identify the specific material that would be subject to any
implied undertaking. Discussion about the Applicant and the Respondent Director’s
relationship, potential settlement discussions and references to the separation and subsequent
proceedings as necessarily referred to, and relevant to the matter before the Commission, is
unlikely to be captured by this rule. Further, it is understood that the ‘implied undertaking’ does
not apply to documents given voluntarily to other parties to proceedings, as the current
documents were.
[48] The exception to this may be where the Applicant has extracted part of Mr Johnson’s
affidavit from the Family Court proceedings, which is a document identified in Hearne.
However, the Respondent was legally represented in the FWC proceedings at the time the
document was filed, and did not object to the document being filed.
[49] The Respondent has also cited s.121 of the Family Law Act 1975 which creates a
punishable offence for anyone who publishes or broadcasts any account of any Family Law
proceedings (in whole or in part) which identifies any parties (related or otherwise) and
witnesses in the proceedings.
The prohibition also applies to parties of the proceedings themselves.
There is a serious question about whether any of the material provided by the parties
constitutes “any account of any family law proceedings (in whole or in part).
The Respondent’s submissions refer to material that is ‘private and confidential, and the
parties are subject to a family law dispute”. The submissions generally refer to material
that “references the family dispute between the Applicant and the Respondent” e.g., the
separation and property forming part of the family law proceedings and parenting issues.
These ‘tangential’ references to the property settlement may not constitute an “account
of proceedings”. The only submission that directly refers to the Family Law act is the
affidavit of Mr Johnson.
There are other documents that directly relate to the Family Court proceedings. For
example:
o The ADVO provided to the Commission, by the Respondent, in terms of arguing
that legal representation was warranted, given the restrictions set out between
the parties.
o Item 6EEE – Documentation surrounding usage of ‘personal effects -
correspondence from the Applicant’s lawyer in the proceedings regarding her
husband’s activities.
[50] Both parties referred to the ADVO in relation to the conduct of the jurisdictional
proceedings, as such it will not be supressed. Further, it is not practical to suppress all of Mr
Johnson’s affidavit, given that it makes reference to the jurisdictional matters. This matter has
similarities to other examples of unfair dismissal matters, involving marital or family law
19 Ibid, at [96].
[2022] FWC 339
13
issues, where the Commission has not taken the view that the parties named, or the material
filed in the Commission must be suppressed.20
[51] Accordingly, the submissions do not weigh in favour of suppressing all documents.
However, those documents that relate to the merits of the s.394 application and have not been
tested or relied on for the jurisdictional objection (the Applicant consents to this course) will be
supressed. Those documents that refer to matters relevant to the jurisdictional objection, that
include both vehicles, their usage, the remuneration and the timing of the separation, as it relates
to the circumstances relevant to jurisdiction, will not be suppressed.
[52] Having set these reasons out, the suppression Order accords with the range of documents
that the parties have agreed to suppress.
[53] Accordingly, the following documents have been agreed as relevant to the jurisdictional
objection:
“In relation to the Applicant, the documents relevant to the jurisdictional objection are as
follows:
a. Items, 1, 2, 3, 4, 5 (only paragraphs 41 to 49), 6B, 6M, 6N, 6R, 6V, 6EE,
6FF, 6GG, 6HH, 6OO, 6PP, 6AAA, 6FFF, 6GGG, 6HHH, 6III, 6KKK,
7, 8, 8A, 8C, 8D 8E and 8F.
In relation to the Respondent, the documents relevant to the jurisdictional objection are
as follows:
a. Items, 9, 9A, 9E, 9H, 9J, 9K, 9L, 9P, 10, 14, 15 (paragraphs 1 to 25,
paragraph 22 will be addressed in further submissions), 16 (paragraphs
1 – 27,47, 56, 59, 64 (b), 66, 68, 70, 73, 74, 75, 77, 86 and the annexures
referred to in those paragraphs), Page 671 to 695 of the Digital Court
Book (not itemised) and 17.”
[54] All other documents will be suppressed.
[55] A consent Order (PR738465) will be separately issued.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
20 See for example Maria Ranchod v Dog and Bone Holdings Pty Ltd T/A Dog & Bone [2021] FWC 6093; Sirl v HK Group
Pty Limited [2017] FWC 543 which involved a “bitter marriage breakdown” between applicant and owner’s son.
WORK COMMISSION THE SEAL O
[2022] FWC 339
14
PR738464
