George v Council of the King's School - Suppression and Confidentiality Orders

Original Word Document (106.7 KB) Federal Court of Australia

George v Council of the King’s School [2026] FCA 394

| File number: | NSD 2428 of 2025 |

| Judgment of: | WIGNEY J |

| Date of judgment: | 9 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – whether suppression and non-publication orders in respect of all documents filed in the proceeding should be made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) following confidential settlement – whether suppression and non-publication orders are necessary to prevent prejudice to the proper administration of justice – where originating application and concise statement were used in open court but other filed documents were not – whether confidentiality orders under r 2.32(3)(a) of the Federal Court Rules 2011 (Cth) should be made – grounds for making suppression and non-publication orders not made out – confidentiality orders made in respect of documents that were not used in open court |

| Legislation: | Fair Work Act 2009 (Cth) ss 340, 341, 342

Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AI

Federal Court Rules 2011 (Cth) rr 2.32, 8.05

Children’s Guardian Act 2019 (NSW) s 159 |

| Cases cited: | Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44

Giddings v Australia n Information Commissioner [2017] FCAFC 225

John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101

Lee v Deputy Commissioner of Taxation [2023] FCAFC 22

McLaughlin v Glenn [2020] FCA 679

Ogawa v President of the Australian Human Rights Commission [2022] FCAFC 160

Patterson v Westpac Banking Corporation [2024] FCA 629

Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818

Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Russell v Russell (1976) 134 CLR 495; [1976] HCA 23

Saw v Seven Network (Operations) Ltd [2024] FCA 1210

Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30

Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 |

| Division: | Fair Work Division |

| Registry: | New South Wales |

| National Practice Area: | Employment and Industrial Relations |

| Number of paragraphs: | 92 |

| Date of hearing: | 16 March 2026 |

| Counsel for the Applicant: | Mr S McIntosh |

| Solicitor for the Applicant: | Gillis Delaney Lawyers |

| Counsel for the Respondent: | Ms K Eastman SC with Mr G Gee |

| Solicitor for the Respondent: | MinterEllison |

| Counsel for the Interested Party: | Ms G Rubagotti |
ORDERS

| NSD 2428 of 2025 |

| BETWEEN: | ANTHONY GEORGE

Applicant | |
| AND: | THE COUNCIL OF THE KING’S SCHOOL
(ABN 24 481 364 152)

Respondent | |

| order made by: | WIGNEY J |
| DATE OF ORDER: | 9 April 2026 |
THE COURT ORDERS THAT:

1. The following documents be taken to be confidential for the purposes of r 2.32 of the Federal Court Rules 2011 (Cth) (Rules):

(a) the affidavit of Anthony James Jeffries filed 29 December 2025 and exhibit AJJ-1;

(b) the affidavit of Gareth Frank Jolly filed 30 December 2025 and exhibit GJ-1;

(c) the applicant’s particulars of exercise of workplace rights dated 30 December 2025;

(d) the chronology filed by the respondent on 30 December 2025;

(e) the applicant’s amended particulars of exercise of workplace rights dated 9 January 2026;

(f) the affidavit of the applicant filed 9 January 2026 and exhibit ALG-1;

(g) the affidavit of Gary Honan filed 9 January 2026;

(h) the submissions filed by the applicant on 10 January 2026;

(i) the submissions filed by the respondent on 12 January 2026;

(j) the submissions filed by the respondent on 13 January 2026;

(k) the affidavit of Kenneth McCathie Chapman filed 13 January 2026 and exhibit KC-1;

(l) the affidavit of Gregory John Alderson filed 13 January 2026;

(m) the confidential affidavit of Kenneth McCathie Chapman filed 14 January 2026 and confidential exhibit KC-2;

(n) the submissions in reply filed by the applicant on 15 January 2026;

(o) the affidavit of the applicant filed 15 January 2026 and exhibit ALG-2;

(p) the respondent’s submissions on setting aside three notices to produce;

(q) the respondent’s objections to evidence;

(r) the affidavit of Gareth Frank Jolly filed 23 January 2026;

(s) the submissions filed by the respondent on 23 January 2026; and

(t) the affidavit of Amy Marian Walsh dated 17 January 2026 and exhibit AW-1.

1. The following parts of the Concise Statement dated 29 December 2025 be taken to be confidential for the purposes of r 2.32 of the Rules and redacted from the version of the Concise Statement that is available for inspection by non-parties pursuant to r 2.32 of the Rules:

(a) references to the legal practitioner’s name (in paragraphs 7 lines 1 and 2; paragraph 9 line 1; paragraph 10 line 1; paragraph 20b; paragraph 21 line 2; and paragraph 31b); and

(b) references to the practitioner’s gender (paragraph 7 line 3; and paragraph 10 line

1).

1. The respondent’s interlocutory application filed 23 January 2026 be otherwise dismissed.

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

REASONS FOR JUDGMENT

WIGNEY J:

1 The applicant, Mr Anthony George commenced a proceeding in this Court against his then employer, the Council of the King’s School. He claimed, among other things, that the Council had contravened, or was about to contravene, s 340 of the Fair Work Act 2 009 (Cth) because it had taken, or was proposing to take, adverse action against him because he had exercised a workplace right. The adverse action was said to be the termination of his employment as the headmaster of the King’s School and the workplace right he had exercised was said to be the ability to make a complaint about his employment. Mr George also claimed that the Council breached its employment contract with him. The relief sought by Mr George included an injunction permanently restraining the Council from implementing its decision to terminate his employment and damages for breach of contract. He also sought an interlocutory injunction pending the determination of his claim.

2 Mr George’s application for an interlocutory injunction was listed before the duty judge on the day before the termination of his employment was due to take effect. The Council initially opposed, or at least did not consent to, the interlocutory relief sought by Mr George and the application was listed for hearing. An interim suppression or non-publication order was made pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of some of the evidence that Mr George had filed in support of his interlocutory application. Ultimately, however, the parties agreed to settle the proceeding and entered into a confidential agreement and deed of release. The proceeding was subsequently discontinued.

3 That, however, was not the end of the matter. The Council applied for wide ranging suppression and non-publication orders pursuant to s 37AF of the FCA Act the effect of which would be to suppress and prohibit the publication of all the documents that were filed by the parties and all of the information in those documents. The ground upon which those orders were sought was that the orders were necessary to prevent prejudice to the proper administration of justice. The essence of the Council’s contention in that regard was that allowing disclosure or publication of the contents of the filed documents would be “subversive to the settlement of the substantive proceeding” and would undermine the “integrity of the settlement”.

4 Mr George neither consented to nor opposed the orders sought by the Council. Various media organisations that had requested access to some of the filed documents were notified of the Council’s application. While one organisation initially appeared and indicated that it sought to be heard in respect of the Council’s application, that organisation later withdrew that indication. Ultimately no media organisation sought to be heard in respect of the Council’s application. The fact that there was no contradictor does not, however, obviate the need for the Court to carefully scrutinise the application and determine whether any grounds for the making of the proposed suppression or non-publication orders have been made out.

5 For the reasons that follow, I am not satisfied that the Council has established any grounds for the making of suppression and non-publication orders in respect of effectively all of the documents filed by the parties. I am not satisfied that the orders sought by the Council are necessary to prevent prejudice to the proper administration of justice. I am, however, satisfied that it is appropriate to order that all but two of the filed documents be taken to be confidential for the purposes of r 2.32(3)(a) of the Federal Court Rules 2011 (Cth). The two documents that I do not consider should be treated as confidential for the purposes of that rule are the originating application and the concise statement filed by Mr George. I will, however, make an order the effect of which will be that small parts of the concise statement will be redacted from the version that will be available for inspection by non-parties.

Relevant provisions and principles – Suppression and non-publication orders

6 Section 37AF(1) of the FCA Act relevantly provides as follows:

Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

…

(iv)    information lodged with or filed in the Court.

7 A “non-publication order” is an order that “prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)” and a “suppression order” is an order that “prohibits or restricts the disclosure of information (by publication or otherwise)”: s 37AA of the FCA Act.

8 Section 37AG(1)(a) of the FCA Act relevantly provides as follows:

Grounds for making an order

(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[.]

9 Section 37AE of the FCA Act provides that “[i]n 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”.

10 The general principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are well settled. They were summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [7]:

Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

11 The onus on the party seeking to persuade the Court to make an order pursuant to s 37AF is a “very heavy one”: Giddings v Australian Information Commissioner [2017] FCAFC 225 at 25.

12 The reference in s 37AE to the “public interest in open justice” reflects the common law understanding of that term: Saw v Seven Network (Operations) L td (2024) 305 FCR 340; [2024] FCA 1210 at [21]; Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142 at [67]. Without in any way intending to be exhaustive, the common law principle of open justice is that proceedings in a court should be conducted “publicly and in open view” and that proceedings be “fully exposed to public and professional scrutiny”: Russell v Russell (1976) 134 CLR 495 at [520]; [1976] HCA 23. Open justice “ensures public confidence in the administration of justice” (Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32]) and “facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken”: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22 at [84].

13 Importantly, however, the “principle of open justice is not engaged at the time of the filing of the proceedings” and it is “only when relevant material is used in court that it becomes relevant”: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 at 65. The principle of open justice at common law is therefore “silent” in respect of access to documents on a court file, including pleadings, if those documents have not been used in open court: Saw at [21]; see also Pigozzo at [67].

14 Suppression or non-publication orders in respect of filed documents, including pleadings, may be necessary to prevent prejudice to the proper administration of justice where the parties have reached a confidential settlement at an early stage of the proceedings. The basis upon which it has been said to be appropriate to make orders in those circumstances is that the “finality” achieved by the parties through agreement “may be undermined if a third party has access to and could report on matters which the parties seek to keep confidential”: McLaug h lin v Glenn [2020] FCA 679 at [27].

15 Suppression or non-publication orders in respect of filed documents have also been made where the parties are engaged in settlement discussions or the proceeding has been referred to mediation on the basis that the “lack of access [to the Court file] may enhance the prospects of the parties’ [settlement] negotiations”: Patterson v Westpac Banking Corporation [2024] FCA 629 at [21]; see also Saw. If the proceedings in fact settle, the suppression or non-publication orders have then been continued on the basis that if such orders were not made “it would mean that in future cases of this kind, a settlement could not be achieved because the respondent would have no incentive to settle where it was going to be exposed to a blizzard of bad press even if it did”: Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 (Saw Post-Settlement) at [5]. Similarly, in Patterson v Westpac Banking Corporation (No 2) [2024] FCA 818 at 21 it was said that allowing third-party access to the Court file after settlement in those circumstances would “erode public confidence in private bargains being maintained in circumstances where settlement is reached at an early stage in the proceedings”. In both Saw Post-Settlement and Patterson No 2 there was evidence that the settlement was contingent on the making of suppression or non-publication orders, or that the parties would support or join-in an application for such orders.

16 It should be noted in this context, however, that “[m]ere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order”: McLaughlin at [20]; see also Ogawa v President of the Australian Human Rights Commission (2022) 294 FCR 221; [2022] FCAFC 160 at [27]; Rinehart at [54].

The course of the proceeding

17 It is necessary to provide some further detail in respect of the course of the proceeding. That is particularly so given that, as discussed earlier, an important consideration in determining the application of the principle of open justice in respect of access to filed documents is whether the documents have been used in open court.

18 As noted earlier, the proceeding was commenced on 29 December 2025 upon the filing by Mr George of an originating application and a concise statement. It was open to Mr George to commence the proceeding by filing, along with the originating application, a concise statement rather than a statement of claim: see r 8.05(1) of the Rules and Central Practice Not e: National Court Framework and Case Management (CPN-1) at [6.8]-[6.10]. Mr George also filed an affidavit affirmed by his solicitor, Mr Anthony Jeffries, in support of his application.

19 The relief sought by Mr George in the originating application included final relief, urgent interim relief and urgent interlocutory relief. As noted earlier, the final relief included an injunction restraining the Council from implementing its decision to terminate Mr George’s employment with effect from 31 December 2025. Mr George also sought a declaration that the Council had contravened s 340 of the Fair Work Act; a declaration that the Council had breached its employment contract with Mr George; and damages.

20 The urgent interim relief sought by Mr George included various procedural orders concerning the time for service of documents and the listing of the applications for urgent interim relief and urgent interlocutory relief. Mr George also sought to have the proceeding referred to a mediator prior to the proposed date for the hearing of the application for urgent interlocutory relief. Mr George also applied for an interim suppression or non-publication order in respect of the exhibits or annexures to Mr Jeffries’ affidavit and “any other information that might tend to identify the student”.

21 The urgent interlocutory relief sought by Mr George included an interlocutory injunction restraining the Council from dismissing him or “otherwise acting against [him] in the absence of providing [him] with” certain specified “information and material”. The specified information included, in general terms, the “underlying evidence” upon which certain “preliminary findings” and “purported final findings” against Mr George had been made and various “investigation reports”.

22 Mr George’s application for urgent interim and interlocutory relief was listed for hearing before the duty judge on 30 December 2025, the day after the proceeding was commenced. It is apparent that the Council, which was represented by counsel at the hearing, had been put on notice of Mr George’s application and had been served with the originating application, the concise statement and Mr Jeffries’ affidavit. It is equally apparent from what transpired at the hearing that the Council had told Mr George that it did not consent to the urgent interim and interlocutory relief sought by Mr George and that it was not prepared to give any undertaking that would obviate the need for a contested interlocutory hearing.

23 At the commencement of the hearing before the duty judge, senior counsel for Mr George outlined the general nature of the proceeding and the interim and interlocutory relief sought by Mr George. Given that at this point the Council had apparently indicated that it did not consent to the interlocutory relief sought by Mr George and was not prepared to give any undertaking, counsel for Mr George then proceeded to take the duty judge through the originating application. In relation to the interim suppression or non-publication order, senior counsel noted that the order was sought for the benefit of the Council “as well” and that Mr George had thought it prudent to allow the Council to review the annexures to Mr Jeffries affidavit to ensure that there was nothing further that the Council thought should be the subject of confidentiality orders.

24 The duty judge indicated that she had perused the concise statement and Mr Jeffries’ affidavit but only had a “broad brush” understanding of the issues. That prompted Mr George’s counsel to provide a general outline of the factual allegations that were said to support his claim that the Council had taken, or had proposed to take, adverse action against Mr George because he had exercised a workplace right. It is neither appropriate nor desirable in the circumstances to refer in any detail to what counsel told the duty judge in that regard. It is sufficient to note that the workplace rights that Mr George alleged that he had exercised comprised his ability to make a complaint in relation to his employment (cf s 341(1)(c) of the Fair Work Act) and that the adverse action was said to be his dismissal or proposed dismissal (cf s 342 (item 1) of the Fair Work Act).

25 While the outline of the factual allegations that Mr George’s counsel gave to the primary judge was not specifically cross-referenced to the concise statement, it is tolerably clear that those factual allegations were at least loosely based on the factual allegations in the concise statement. That said, in response to the outline of factual allegations given by Mr George’s counsel, counsel for the Council directed the duty judge’s attention to the concise statement and submitted that the articulation by Mr George’s counsel of the “set of grievances in respect of what is said to be the workplace rights don’t appear anywhere in the concise statement”. The duty judge was then directed to the paragraph of the concise statement that identified the workplace rights that Mr George alleged that he was exercising. The Council’s counsel then applied for an order that Mr George provide further particulars of the workplace rights that “are alleged to be breached”. Mr George’s counsel did not oppose that application, though he took issue with the contention that he had not given an accurate summary of the workplace rights identified in the concise statement.

26 For reasons that it is unnecessary to go into, the hearing of Mr George’s application for interim and interlocutory relief did not proceed on 30 December 2025. Rather, the application was listed for hearing the following day. The duty judge made some procedural orders to facilitate that hearing, including an order that Mr George provide further particulars of the workplace rights referred to in the concise statement. An interim suppression and non-publication order in the terms sought by Mr George was also made. As noted earlier, that order was limited to the annexures to Mr Jeffries’ affidavit and any other information that might tend to identify the student. The Council did not apply for an interim suppression or non-publication order in respect of any other information or document. Most notably, the Council did not apply for an interim suppression or non-publication order in respect of the originating application and concise statement.

27 The Council’s attitude to the interim relief sought by Mr George apparently changed overnight or at least by the next morning. The Council agreed to extend the effective date of the termination of Mr George’s employment to 5.00pm on 19 January 2026 and Mr George’s application for urgent interlocutory relief was listed for hearing on 19 January 2026. The proceeding was also referred to mediation. The orders made by the duty judge on 31 December 2025 also included interim suppression and non-publication orders in respect of the concise statement, Mr Jeffries’ affidavit, Mr George’s written submissions dated 30 December 2025, an affidavit sworn by the Council’s solicitor and a chronology prepared and filed on behalf of the Council. The interim suppression and non-publication orders did not include the originating application.

28 The proceeding did not settle at the mediation which occurred in early January 2026. Mr George’s application for interlocutory relief was accordingly listed for hearing before a different duty judge on 19 January 2026. When the matter was called on for hearing, however, the parties advised the duty judge that they were having further discussions and asked that the matter be stood down. The duty judge was subsequently told that the parties had agreed to resolve the proceeding on “confidential terms” and was provided with short minutes of consent orders. The orders made by the duty judge included an interim suppression and non-publication order that encompassed a number of documents, including documents identified by reference to tabs in a Court Book. The list of documents presumably included the concise statement. The Council was also ordered to file a notice of discontinuance by 21 January 2026 and to file any application for final suppression and non-publication orders pursuant to s 37AF of the FCA Act by 23 January 2026.

Relevant information in the public domain

29 Some of the events and circumstances which preceded the termination of Mr George’s employment as headmaster of the King’s School have been the subject of public discussion and debate amongst members of the school community. So too has Mr George’s commencement of this proceeding and the confidential settlement. The events and circumstances that led to the termination of Mr George’s employment and the commencement and confidential settlement of this proceeding have also been the subject of some media stories and commentary. The fact that some of the information in the documents which are covered by the suppression and non-publication orders sought by the Council is in the public domain is of some relevance to the question whether those orders are necessary to prevent prejudice to the proper administration of justice.

30 One of the incidents that features in the concise statement is an incident involving Mr George and a student which occurred in mid-2025 during a class held in a school building called Futter Hall. The school subsequently commenced an investigation into that incident and Mr George took personal leave while that investigation proceeded. The identity of the student involved in that incident was the subject of the interim suppression and non-publication order referred to earlier. The so-called “Futter Hall incident”, the school’s investigation into it and Mr George’s extended leave was the subject of media commentary and correspondence involving the school community.

31 Mr George’s dismissal and his commencement of this proceeding was also the subject of correspondence emanating from the school and some media commentary in early January 2026. The media articles concerning the commencement of this proceeding referred to Mr George’s dismissal and alluded to the Futter Hall incident, but otherwise contain very little, if any, details of the factual or legal basis of Mr George’s action concerning his dismissal. That was no doubt in part due to the fact that the media had been unable to access the documents that had been filed in respect of the proceeding, most notably the concise statement. One media article stated that “[c]ourt filings reveal confidentiality orders, an urgent hearing and a looming mediation” concerning Mr George’s dismissal. Many of the media articles focussed on complaints by a group of parents of boys at the school about the school’s lack of transparency concerning Mr George’s dismissal.

32 The settlement of the proceeding was the subject of a joint public statement by Mr George and the Council. That statement included an assertion that the “public commentary surrounding these matters has not reflected the correct or complete facts”, though the joint statement did not seek to correct or complete the facts. The settlement was also the subject of considerable media reporting. The media reporting tended to focus on the fact that Mr George had agreed to step down after a “secret deal”. The media articles concerning the settlement of the proceeding again contained no information concerning the underlying nature and legal basis of the proceeding. That was again no doubt a product of the fact that the interim suppression and non-publication orders had prevented the media from accessing any of the documents filed in the proceeding, including the originating application and concise statement.

The Council’s contentions

33 The key planks of the Council’s argument that it was necessary to make suppression and non-publication orders in respect of virtually all the filed documents in order to prevent prejudice to the proper administration of justice may be summarised as follows.

34 First, the Council contended there has been no case management hearing in the proceeding and none of the documents covered by the proposed order have been used in open court. The Council accordingly maintained, in effect, that the documents are therefore not able to be inspected by non-parties pursuant to r 2.32 of the Rules.

35 Second, the Council submitted that, because the proceeding had settled at an early stage and on a confidential basis, allowing access to any of the documents that had been filed in the proceeding would be “subversive” to the settlement and the “integrity of the settlement will be undermined”. In the Council’s submission, if suppression and non-publication orders are not made, future cases may not settle because the parties would have no incentive to settle if the allegations would be exposed to media analysis in any event. The Council’s submissions in this respect relied heavily on the reasoning in Saw.

36 Third, the Council contended that, if the filed documents are “made public”, the contents of some or all those documents “will be widely reported”.

37 Fourth, the Council relied on the fact that the proceeding had settled before it had been required to file any response to Mr George’s concise statement. It argued that in those circumstances the concise statement provides an “incomplete position” disclosure of which will prejudice the Council. It was also submitted that the concise statement includes factual allegations that are not relevant to, or not appropriately linked to, the legal basis of the claim.

38 Fifth, the Council contended that the affidavits and submissions filed by Mr George contain “purportedly privileged material”, material that is not referred to in the concise statement and allegations against individuals who will not have an opportunity to respond to those allegations.

Are the orders sought by the Council necessary to prevent prejudice to the proper administration of justice?

39 I am not satisfied that the Council has discharged the heavy onus of establishing that the wide-ranging suppression and non-publication orders it applied for are necessary to prevent prejudice to the proper administration of justice. As will be seen, however, it does not necessarily follow that non-parties will be able to access all the documents that were the subject of the proposed orders.

40 In addressing the question whether the orders sought by the Council are necessary to prevent prejudice to the proper administration of justice, it is necessary to distinguish between two classes of documents that are covered by the proposed orders: first, those documents that have been used in open court; and second, those documents that have not been used in open court. The reason that it is necessary to distinguish between those two categories of documents was adverted to earlier. The principle of open justice clearly applies to the former category. It does not apply to the latter category.

The originating application and the concise statement

41 The Council contended that none of the documents on the court file had been used in open court. That is incorrect. As the earlier discussion of the course of the proceeding indicated, both the originating application and the concise statement were used in open court. Both those documents were referred to and were the subject of submissions at the interlocutory hearing before the duty judge on 30 December 2025. Contrary to the Council’s submission, it matters not that on that occasion the originating application and concise statement were only deployed in the context of Mr George’s application for interim or interlocutory relief and not in a case management hearing or a hearing which addressed the “substantive allegations”. It is apparent that senior counsel for Mr George in effect opened Mr George’s case for interim and interlocutory relief by reference to the originating application and concise statement. Had the hearing not been adjourned to the following day at the Council’s request, and had the Council not then agreed to extend the effective date of Mr George’s termination so as to allow the interlocutory hearing to proceed on a still later date, Mr George’s interlocutory application would have been heard and possibly determined on the first hearing day.

42 Because both the originating application and concise statement were used in open court, in considering whether suppression and non-publication orders should be made in respect of those documents, or information contained in them, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. In my view, that is a weighty consideration in the particular circumstances of this case. Given the deployment of the originating application and concise statement in open court, the principle of open justice will be facilitated and advanced by permitting interested third parties to access those documents and thereby ascertain and understand the legal and factual basis of the proceeding and the course the proceeding took. Conversely, suppressing or prohibiting the disclosure or publication of those documents will tend to stymie or subvert the principle of open justice because that part of the proceeding that took place in open court would not be fully exposed to public and professional scrutiny.

43 I do not accept the Council’s contention that suppression and non-publication orders in respect of the originating application and concise statement are necessary to prevent prejudice to the proper administration of justice. In particular, I am unable to accept that the confidential settlement of the proceeding will somehow be subverted or undermined if orders are not made suppressing or prohibiting the publication of the originating application and concise statement, particularly in circumstances where some of the information in those documents was referred to in open court on 30 December 2025. The terms of the settlement agreed between Mr George and the Council will remain confidential even if the originating application and concise statement are able to be inspected by third parties. All that will occur if those documents are able to be inspected is that interested third parties will be able to ascertain the factual allegations and legal basis of Mr George’s case against the Council. The legal basis of Mr George’s case and some of the factual allegations upon which he relied were exposed to some extent in open court on the first day of the interlocutory hearing.

44 The facts and circumstances of this case are far removed from the facts and circumstances of cases such as Patterson, Saw, Patterson No 2 and Saw Post-Settlement. There are several distinguishing features.

45 First, and most significantly, in both the Saw and Patterson proceedings suppression and non-publication orders were applied for and made before the metes and bounds of the dispute had been aired in open court by reference to the originating application and pleading or other supporting documents. As has already been explained, that is not the case in this proceeding.

46 Second, in both those cases final suppression and non-publication orders were applied for before the proceedings were mediated on the basis that the prospects of success of the mediation would be imperilled or adversely affected by the anticipated media coverage that would follow from the disclosure of the pleadings. In this case, interim non-publication orders which presumably covered the originating application and concise statement were made on the second hearing day. Final suppression and non-publication orders were not applied for until after the (unsuccessful) mediation and after the eventual settlement of the proceeding. Moreover, while there has been some media commentary in respect of this case, I am not persuaded that permitting non-parties to access the originating application and concise statement will necessarily or even likely result in a “blizzard of bad press” as was apparently thought to be the case in the Saw proceeding: cf Saw Post-Settlement at [21].

47 Third, and relatedly, the allegations contained in the pleadings in both the Saw and Patterson proceedings appear to have been particularly serious, sensitive and scandalous (though not necessarily in the sense in which the word scandalous is used in r 16.21(a) of the Rules) such that it was accepted by the Court that the mediation would be imperilled if the pleadings were not suppressed: Patterson at [23]; Patterson No 2 at [17]; Saw at [14], [22]; Saw Post-Settlement at [5]. It does not appear to me that the allegations in the originating application and concise statement are nearly as serious or sensitive as those which were the subject of the Saw and Patterson proceedings. In any event, the general nature and substance of Mr George’s allegations have already been articulated in open court. The dispute between Mr George and the Council has also already been the subject of some public and media commentary.

48 Fourth, and significantly, it is readily apparent from both Patterson No 2 and Saw Post-Settlement that retaining the secrecy or confidentiality of the applicants’ factual allegations were critical considerations for the respondents when it came to settling the proceedings. The settlement in the Saw litigation was contingent on the Court making suppression and non-publication orders: see Saw Post-Settlement at [3]. It was a term of the settlement of the Patterson litigation that Ms Patterson would support the respondent’s application for suppression and non-publication orders: Patterson No 2 at [15], [16] and [19]. I am not persuaded that the evidence in this case supports the proposition that the maintenance of the confidentiality of the allegations in the originating application and concise statement was a particularly significant consideration in the settlement negotiations or agreement. While it is clear that the terms of the settlement were to remain confidential and appear to have included a term which prevented the parties from further commenting on their dispute other by way of a joint statement, there is no indication that the settlement was contingent on the Court making suppression or non-publication orders. The terms obviously did not require Mr George to support or join in the application for suppression or non-publication orders. As noted earlier, Mr George’s position was that he neither consented to nor opposed the orders sought by the Council.

49 It may be accepted that, as the proceeding has settled at an early stage of the proceeding, the Council has not been required to, or had the opportunity to, file a response to Mr George’s concise statement. That tends to weigh in favour of keeping the contents of the concise statement confidential. In the particular circumstances of this case, however, I do not consider that to be a particularly significant or weighty consideration. That is because, as has already been discussed, the substance or general nature of Mr George’s allegations have already been aired in open court. They do not appear to me to be particularly serious, sensational or sensitive and, in any event, the media and the public at large will in my view understand that the contents of the concise statement comprise no more than Mr George’s allegations, as opposed to statements of fact.

50 As noted earlier, the Council criticised various aspects of the concise statement. I see little if any merit in those criticisms and in any event have difficulty in seeing how those criticisms bear significantly on the question whether the relevant ground for the making of suppression and non-publication orders has been made out. Most of those criticisms ignored the fact that a concise statement is not a pleading and is therefore not bound or constrained by the strictures or formalities that apply to pleadings. In those circumstances, I see little if any merit in the Council’s claim that the chronology of factual allegations contained in the concise statement was not appropriately linked or cross-referenced to the legal basis of the Mr George’s claim. I would also reject the contention that the concise statement includes wholly irrelevant facts or the content of privileged communications.

51 For all the foregoing reasons, I am not persuaded that suppression or non-publication orders should be made in respect of the originating application and concise statement in their entirety. I am not satisfied that such orders would be necessary to prevent prejudice to the proper administration of justice.

52 For essentially the same reasons I am also not satisfied that those documents should be ordered to be confidential for the purposes of r 2.32 of the Rules. Rule 2.32 of the Rules is discussed in more detail later in these reasons. It suffices for present purposes to note that, at least in the case of documents that have been used in open court, it is difficult to see how confidentiality orders under r 2.32 could be appropriate in circumstances where the Court is not satisfied that a ground for making a suppression or non-publication order pursuant to s 37AF of the FCA Act has been made out.

53 It is, however, necessary to consider whether certain specific information in the concise statement should be the subject of suppression and non-publication orders, or should otherwise be redacted from the version of the documents that are available for inspection by non-parties. That information, broadly speaking, mostly concerned the identity of three individuals who were peripherally or tangentially involved in the factual matrix of Mr George’s dispute with the Council. Those individuals are also named in some of the affidavits and submissions that are encompassed by or included in the Council’s proposed suppression and non-publication orders. The question whether specific suppression and non-publication orders should be made in respect of that specific information, or whether that information should be redacted, is addressed later after consideration is given to whether the orders sought by the Council in respect of the documents other than the originating application and concise statement should be made.

Documents not used in open court

54 The suppression and non-publication orders sought by the Council include or cover several affidavits that were filed but not read or otherwise used in open court. Those affidavits include two affidavits that appear to have been filed in respect of, or at the time of, Mr George’s application for interim and interlocutory relief on 30 December 2025. One of those affidavits, the affidavit affirmed by Mr Jeffries, was briefly referred to during the hearing on 30 December 2025, but was not formally read and its content was not otherwise disclosed. The other, an affidavit of the Council’s solicitor, was not read or referred to at the hearing. The affidavits covered by the proposed suppression and non-publication orders also include several affidavits filed in January 2026. It may be inferred that they were filed predominantly for the purposes of the mediation, or potentially for the purposes of the hearing of Mr George’s interlocutory application on 19 January 2026. They were not formally read or referred to in open court.

55 The proposed suppression and non-publication orders also include or cover written submissions or similar documents (such as chronologies and lists of objections) which are dated or were clearly filed after the interlocutory hearing on 30 December 2025. Most of those documents were filed in January 2026. It may therefore be inferred that they were filed solely or at least predominantly for the purposes of the mediation or for the purposes of the hearing of Mr George’s interlocutory application on 19 January 2026.

56 I am satisfied that none of the affidavits and none of the submissions (or like documents) that are included or covered by the proposed suppression orders were relevantly used in open court. The principle of open justice therefore does not apply to them or support their potential disclosure. It does not necessarily follow from that fact alone, however, that it is necessary to make suppression or non-publication orders in relation to those documents to prevent prejudice to the proper administration of justice. Indeed, the necessity to make suppression and non-publication orders in respect of such documents is somewhat questionable in circumstances where non-parties have no automatic right to inspect affidavits and written submissions that were not used in open court. The Court also has the general power to prevent non-party access to such documents by declaring them to be confidential for the purposes of the Rules. Can suppression or non-publication orders be said to be necessary if non-parties are unable to inspect or access the documents in any event?

57 Rule 2.32 of the Rules relevantly provides as follows:

Inspection of documents

(1)    A party may inspect any document in the proceeding except:

(a)    a document for which a claim of privilege has been made:

(i)    but not decided by the Court; or

(ii)    that the Court has decided is privileged; or

(b)    a document that the Court has ordered be confidential.

(2)    A person who is not a party may, after the earlier of the first directions hearing and the hearing, inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross-claim;

(b)    a pleading or particulars of a pleading or similar document;

(c)    an interlocutory application;

(d)    in a proceeding to which Division 34.7 applies:

(i)    an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)    an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar.

58 As can be seen, the affidavits and submissions that are covered by the Council’s proposed suppression and non-publication orders do not fall within any of the categories of documents in r 2.32(2) or (2A) of the Rules. They therefore cannot be inspected by a non-party unless a Registrar grants the non-party leave. It is difficult to see how or why a Registrar could or would grant a non-party leave to inspect the relevant affidavits and submissions in this case given that they were not used or relied on in open court and the principle of open justice therefore does not apply to them. In any event, as can also be seen, the Court has the power to order that a document be confidential for the purposes of r 2.32. The effect of such an order in respect of a document is that a non-party is not entitled to inspect the document.

59 In Saw, Perram J referred (at [25]) to authority which tended to suggest that an order cannot or should not be made under r 2.32(3)(a) to the effect that a document is confidential unless one of the grounds for making an order under s 37AG of the FCA Act is made out: cf Valentine v Fremantlemedia Australia Pty Ltd [2013] FCA 1293 at [22]. His Honour nevertheless expressed the view (albeit a “preliminary” view given that the issue was not argued and it was unnecessary for it to be decided) that, while the Court ought not make an order under r 2.32(3)(a) in respect of a document which has been used in open court unless it would be willing to make an order on a ground in s 37AG of the FCA Act, it nevertheless would be open to the Court to make such an order in respect of a document that had not been used in open court on the basis that it included confidential information even if the Court was not satisfied that there were grounds for making an order under s 37AF of the FCA Act.

60 While the view outlined by Perram J in Saw concerning the circumstances in which the Court can make an order declaring a document that has not been used in court confidential for the purposes of r 2.32(3)(a) of the Rules was not a concluded view, I agree with that view and with his Honour’s reasons for arriving at it. If the principle of open justice does not apply in respect of access to a document that has not been used in open, I am unable to see why r 2.32(3)(a) should be construed in a way that would constrain the Court from declaring such a document to be confidential unless satisfied that one of the grounds in 37AG of the FCA Act had been made out. As Perram J pointed out in Saw, the word used in r 2.32(3)(a) is “confidential”, and there is no contextual or other reason to construe that word as bearing anything other than its ordinary meaning. The ordinary meaning of “confidential” does not align with the words “necessary to prevent prejudice to the proper administration of justice” in s 37AG(1)(a) of the FCA Act.

61 Returning then to the issue in this case, it may not be strictly necessary to make an order under r 2.32(3)(a) declaring that the relevant affidavits and submissions that were filed by the parties, but not used in open court, are confidential for the purposes of r 2.32. That is because, as has already been noted, non-parties have no automatic right to inspect those documents under r 2.32(2) or (2A) of the Rules in any event. I also consider it to be most unlikely that a Registrar would be likely to grant a non-party leave to inspect the documents under r 2.32(4) of the Rules. To put the issue beyond doubt, however, I propose to make an order that the affidavits and submissions that were not used in open court are to be treated as confidential for the purposes of r 2.32(3)(a) of the Rules. It is in my view appropriate to make that order in the circumstances of this case because the documents contain some confidential information and, more importantly, the documents were prepared and filed for the sole purpose of the proceeding but were not ultimately used in Court because the proceedings settled at an early stage. I also consider that it is open to me to make such an order irrespective of whether a ground for making a suppression or non-publication under s 37AF of the FCA Act has been made out.

62 Given that I propose to make an order declaring that the relevant affidavits and submissions are confidential for the purposes of r 2.32(3)(a) of the Rules, the question arises whether it can be said that it is necessary to make suppression and non-publication orders in respect of those documents so as to prevent prejudice to the proper administration of justice. Why, it might be asked rhetorically, would such orders be necessary if non-parties are unable to inspect the documents under the Rules in any event by reason of the order declaring them to be confidential?

63 The Council pressed its application for suppression and non-publication orders in respect of the affidavits and submissions on the basis that such orders would give it “finality” and “certainty” in respect of the confidential settlement of the proceeding. The Council submitted that, unlike confidentiality orders under r 2.32(3)(a) of the Rules, which would simply prevent any non-party access to the documents, suppression and non-publication orders would prohibit the disclosure and publication of any information in the relevant documents. It followed, so it appeared to be submitted, that any further public discussion or consideration of the “subject matter” of the proceeding would be brought to an end. It was in that respect that the Council contended that suppression and non-publication orders would allow it to achieve finality and certainty.

64 I am not persuaded that the fact that suppression and non-publication orders will or might secure finality and certainty in that respect means that those orders are necessary to prevent prejudice to the proper administration of justice. Indeed, if anything, the Council’s submissions point to a potential problem in making suppression and non-publication orders in this case. It also tends to suggest a degree of overreach in the Council’s application.

65 The potential problem is that, for the reasons given earlier, I am not satisfied that the Council has made out the relevant ground for making suppression and non-publication orders in respect of the originating application and concise statement. I am also not satisfied that those documents can or should be declared to be confidential for the purposes of r 2.32 of the Rules given that they were used in open court. It follows that the originating application and concise statement can be inspected by non-parties. The public interest in open justice also permits or demands that if any non-parties inspect the documents, they should be free to disclose and publish the contents of the documents should they choose to do so. There is no sound basis to prevent them from doing so. If the broad ranging suppression and non-publication orders sought by the Council in respect of the affidavits and submissions are made, however, the effect may be to constrain those non-parties from disclosing or publishing the contents of the originating application and concise statement. That is because non-parties will not know whether some of the information in those documents is covered by the suppression and non-publication in respect of the affidavits and submissions.

66 Even putting that potential problem to one side, the Council’s application for suppression and non-publication orders was, as discussed earlier, primarily based on the argument that, because the proceeding was settled at an early stage on a confidential basis, permitting access to the filed documents and the information in them would undermine the integrity of the settlement. That argument, however, largely falls away in respect of the affidavits and submissions that were not used in open court in circumstances where non-parties are not in any event permitted to inspect or access those documents. The argument becomes even less tenable if the documents are declared to be confidential for the purposes of r 2.32 of the Rules.

67 There may be cases where the contents of documents that have been filed by a party, or by the parties, contain such sensitive, confidential or scandalous information that suppression and non-publication orders should be made even though the documents cannot be inspected by non-parties pursuant to r 2.32 of the Rules. In my view, however, this is not such a case. Save perhaps for the information concerning the identity of certain individuals which is discussed later, I was not taken to any particular information in any of the affidavits and submissions that was particularly sensitive, confidential or scandalous such as to warrant the making of suppression or non-publication orders. My perusal of those documents tended to suggest that the Council’s claims concerning the need to keep the information in those documents confidential tended to be overblown.

68 I am not, in all the circumstances, satisfied that the suppression and non-publication orders sought by the Council in respect of the documents that were not used in open court are necessary to prevent prejudice to the proper administration of justice for the purposes of s 37AG(1)(a) of the FCA Act. The documents will not, however, be able to be inspected by any non-party given that I propose to make an order that those documents are to be taken to be confidential under r 2.32(3)(a) of the Rules. In those circumstances, the Council’s fears that the integrity of the confidential settlement will somehow be undermined because the documents or the information in them will be the subject of disclosure or publication by the media, or anyone else for that matter, are effectively groundless.

69 While I am satisfied that it is appropriate to order that the documents be treated as confidential for the purposes of r 2.32 of the Rules, particularly as they were not used in open court, I am not persuaded that the contents of the documents are such that it is necessary to take the further step of making suppression and non-publication orders in respect of the documents or the information in them. Nor am I persuaded that the Council’s desire to achieve certainty or finality in respect of the settlement of the proceeding by obtaining suppression and non-publication orders in respect of the information in the documents satisfies the requirement that the orders are necessary to prevent prejudice to the proper administration of justice. Any non-parties, including the media, who may choose to inspect the documents that were used in open court – the originating application and concise statement – should be free to disclose or publish the content of those documents should they want to do so.

Suppression or non-publication orders in respect of specific information

70 The Council contended that, if suppression and non-publication orders were not to be made in respect of the concise statement in its entirety, there was certain specific information in that document which should be the subject of suppression and non-publication orders. That information mainly concerned information that might tend to reveal the identity of certain individuals who were involved in various incidents at the school. The Council referred to those individuals as the “relevant student” and the “relevant employee”. The concise statement also includes allegations by Mr George in respect of the Council’s legal representative at the time. That legal representative appeared by counsel at the hearing of the Council’s application and sought orders that those allegations and the legal practitioner’s name be redacted from the version of the concise statement that may be able to be inspected by non-parties. The Council supported that application. The Council also contended that suppression and non-publication orders should be made in respect of certain information that was said to be privileged, as well as certain information the disclosure of which would, so it was submitted, contravene s 159 of the Children’s Guardian Act 2019 (NSW).

Information concerning the identity of the relevant student

71 The concise statement refers to an incident involving Mr George and a student at the school. That incident was the so-called Futter Hall incident, discussed earlier, that had been the subject of media reports and correspondence involving the school community. That incident was the subject of an investigation by the school, conducted by an external entity, to determine whether the incident comprised or constituted “reportable conduct” under the Children’s Guardian Act. The concise statement does not identify the student who was involved in the incident. Nor, on my assessment, does it contain any information that would tend to reveal the identity of the student.

72 The concise statement does, however, contain information which was said to have been conveyed to Mr George in respect of the outcome of the investigation into the Futter Hall incident. That information was said to be relevant to the legal basis of Mr George’s claim against the Council. That is because one of Mr George’s complaints, which he claimed involved his exercise of a workplace right, was that he had not been provided with certain information he had requested in respect of the investigation. The Council contended that suppression or non-publication orders should be made in respect of two paragraphs of the concise statement that referred to the outcome of the investigation because those paragraphs tended to identify the relevant student and “because of the requirements of s 159 of the Children’s Guardian Act.

73 I am not persuaded that the two paragraphs of the concise statement that were identified by the Council tend to identify the relevant student. They simply report the outcome of the investigation, which was said to be that the incident did not amount to or constitute reportable conduct within the meaning of the Children’s Guardian Act. One of the paragraphs also outlines the general nature of the incident. The general nature of the incident has in any event been the subject of correspondence involving the school community and media commentary.

74 As for the Council’s contentions concerning s 159 of the Children’s Guardian Act, that section of the Act provides that a person who “discloses information obtained in connection with the administration or execution of the Act is guilty of an offence” unless the disclosure is made in certain specified circumstances. I am unable to see how the disclosure in the concise statement of the general outcome of the investigation, which was to the effect that the Futter Hall incident did not involve any reportable conduct, could constitute an offence under s 159 of the Children’s Guardian Act. The Council told Mr George of the outcome of the investigation. He did not acquire that information “in connection with the administration or execution of the Act”. I am in those circumstances unable to see how or why s 159 of the Children’s Guardian Act would support the making of a suppression or non-publication order in respect of the very general information contained in the concise statement about the investigation and its outcome.

75 While I would accept as a general proposition that it is important to avoid the disclosure of any information that might tend to identify the student who was involved in the Futter Hall incident, the fact is that the originating application and the concise statement do not include any information that might tend to identify the student. While there might be some information in some of the affidavits (including annexures and exhibits) and submissions that were filed by the parties which might tend to identify the student (though I was not taken to any such information), those documents will be the subject of confidentiality orders under r 2.32(3)(a) and therefore will not be open to inspection by non-parties. There is no evidence of any other risk of disclosure of information which might tend to identity the student. I am therefore not persuaded that it is necessary to make suppression or non-publication orders to protect against the disclosure of any such information.

Information concerning the relevant staff member

76 The concise statement contains information concerning an incident which allegedly involved words spoken by Mr George at a farewell speech for a former staff member at the school. During that speech, Mr George was said to have recounted an occasion when the former staff member had said something to a student which might be considered by some to be controversial. Mr George was then said to have given his opinion in respect of the staff member’s actions. That incident was the subject of a “workplace investigation” in respect of Mr George’s words or actions, though apparently not the words or actions of the former staff member. The former staff member is named in the concise statement. The precise outcome of that investigation is not detailed in the concise statement, though it appears to have been adverse to Mr George and appeared to form part of the Council’s decision to terminate Mr George’s employment.

77 This particular incident appeared to be relevant to Mr George’s claim. Mr George alleged that his complaints that were said to constitute his exercise of workplace rights included his complaints about the Council’s refusal to provide him with documents and information about the workplace investigation concerning this incident.

78 The Council applied for a suppression or non-publication order in respect of the paragraph of the concise statement that identifies the relevant incident and the former staff-member’s name. The former staff member was advised of the Council’s application, though he did not appear or communicate any opposition to the disclosure of his name in the concise statement.

79 I am unable to see how it could be concluded that a suppression or non-publication order in respect of the paragraph of the concise statement which names the former staff member is necessary to prevent prejudice to the proper administration of justice. The former staff member himself appeared to be unconcerned about the potential disclosure of his name or the general details of the incident involving him. Even if he was concerned, the mere fact that he might be embarrassed by the disclosure of the incident would not in any event provide a proper basis for the making of a suppression or non-publication order.

80 While I would accept that in some circumstances the administration of justice might be brought into disrepute if the Court arbitrarily and unnecessarily permitted the disclosure of adverse information about third-parties who were not directly involved in the proceedings, I am not persuaded that the circumstances surrounding the disclosure of the information about the former staff member falls within that category of case. The allegations concerning the incident and the investigation into it were relevant to Mr George’s claim. I do not consider that the disclosure of that information in the concise statement could be said to be arbitrary or unnecessary. Nor could the disclosure seriously be said to be likely to cause any prejudice to the proper administration of justice. The information itself could scarcely be said to be scandalous, at least insofar as the former staff member is concerned, which perhaps may account for why he did not seek to be heard in respect of its disclosure. I am also not persuaded that the former staff member’s name should be redacted from the concise statement, particularly in the absence of any application by the former staff member himself.

Information concerning the Council’s legal representative

81 The position is slightly different in relation to the disclosure of the name of the Council’s legal representative, if only because that legal practitioner appeared by counsel at the hearing and sought an order to the effect that certain paragraphs of the concise statement be redacted. Those paragraphs were: six paragraphs which identified the legal practitioner by name (paragraphs 7, 9, 10, 20b, 21 and 31b); a paragraph (paragraph 7) which referred to a criticism that Mr George had caused to be conveyed to the legal practitioner concerning the quality of the legal services that the practitioner had provided; and three paragraphs (paragraphs 20b, 21 and 31b) which referred to Mr George’s communicated concerns in respect of the practitioner’s ongoing participation in the Council’s deliberations concerning Mr George’s position and the Council’s response to those concerns.

82 It was submitted on behalf of the relevant legal practitioner that the relevant paragraphs should be redacted because: the paragraph (paragraph 7) that recounts the alleged discussion concerning the quality of the practitioner’s provision of legal services was disputed; that paragraph contained “unsubstantiated and scandalous allegations” against the legal practitioner which are not only “degrading and offensive” but also irrelevant; the allegations concerning Mr George’s concerns about the practitioner’s ongoing participation in the Council’s deliberations concerning his position were irrelevant to the relief sought by Mr George; and the legal practitioner is not a party to the proceeding and has not had an opportunity to respond to the allegations.

83 Some of the submissions advanced on behalf of the legal practitioner were, in my view, overstated. In particular, it is difficult to accept that the allegations concerning the legal practitioner could seriously be said to be degrading and offensive and, while it could fairly be said that the relevance of the allegations is not clearly articulated in the concise statement, they do appear to form part of Mr George’s general case that he was dismissed because he exercised workplace rights in the form of the ability to complain about the conditions of his employment. Mr George’s expressed concerns about the legal practitioner and the practitioner’s ongoing involvement in the Council’s consideration of Mr George’s continuing employment appeared to form part of his case in that regard.

84 I am nevertheless persuaded that it would be appropriate to redact the version of the concise statement that is available for inspection by non-parties by: redacting all references to the legal practitioner’s name (in paragraphs 7 lines 1 and 2; paragraph 9 line 1; paragraph 10 line 1; paragraph 20b; paragraph 21 line 2 and paragraph 31b); and redacting references to the practitioner’s gender (paragraph 7 line 3; paragraph 10 line 1). The redaction of the legal practitioner’s name and gender will not have any material effect on the principle of open justice as the nature of Mr George’s claim against the Council will still be readily apparent from the redacted version of the concise statement.

85 I am not persuaded, however, that it is necessary to redact that part of paragraph 7 that identifies the concern that Mr George expressed about the legal services that had been provided by the legal practitioner. I do not accept that the implicit allegation concerning the quality of the legal services provided by the legal practitioner is irrelevant to Mr George’s articulated case against the Council. While I accept that the legal practitioner, who is not a party to the proceeding, has not had any opportunity to respond to that potentially damaging allegation, I do not accept that the allegation is particularly sensitive, serious or scandalous such as to warrant redaction in all the circumstances. In my view the position of the legal practitioner is sufficiently protected by the redaction of the legal practitioner’s name and gender.

86 I should perhaps note that the redactions that I consider should be made to the concise statement will be made pursuant to r 2.32(3)(a) of the Rules. While r 2.32(3)(a) in terms only appears to empower the Court to order the entirety of a document to be confidential for the purposes of r 2.32, in my view that power extends to ordering that a part of a document be taken to be confidential. That part of the document would then not be available for inspection, but the balance of the document would. It would be odd and unfortunate if the Court was limited to declaring the entirety of a document to be confidential for the purposes of r 2.32 of the Rules if the Court considered that only part of the document should not be open to inspection by non-parties. The relevant rule should be construed in such a way as to permit the Court in such circumstances to allow as much of the document as possible to be available for inspection.

87 Given that the Court can order that the concise statement be redacted pursuant to r 2.32(3)(a) of the Rules to prevent the inspection of the impugned information, it is in my view not necessary to make suppression or non-publication orders in respect of that information. I do not consider that there are any grounds for the making of such orders.

88 It remains to consider the Council’s claim that the concise statement contains privileged information. Those claims may be dealt with shortly. The Council claimed that two paragraphs of the concise statement (paragraphs 9 and 10) disclosed communications that are subject to legal professional privilege. Those paragraphs, however, only indicate that a communication occurred between Mr George, the Chair of the Council and the legal practitioner. They do not disclose the content, substance or effect of those communications. The balance of the privilege claims concern paragraphs of the concise statement (paragraphs 29, 30, 32, 33 and 34) that are said to disclose the content of settlement negotiations. I am not satisfied, however, that the paragraphs disclose the content, substance or effect of any settlement negotiations. Rather, they disclose no more than Mr George’s request that a mediation occur. That request that was not accepted by the Council. While two members of the Council communicated some support for Mr George’s request (see paragraphs 30 and 33) that hardly constitutes the conduct of any settlement negotiations. While there was one without prejudice discussion (paragraph 34), the content of that discussion is not disclosed. I accordingly reject the Council’s contention that the concise statement should be redacted to remove any reference to privileged communications.

Conclusion and disposition

89 I am not satisfied that the Council has established that there are any grounds for the making of suppression or non-publication orders in respect of any of the filed documents.

90 No such orders should be made in respect of the originating application and concise statement as those documents were used or deployed in open court. The principle of open justice applies to those documents, and I am not satisfied that the Council has established that it is necessary to make suppression or non-publication orders in respect of those documents to prevent prejudice to the proper administration of justice. That is so even though the proceeding subsequently settled and the Council did not have any formal opportunity to respond to the allegations made in those documents.

91 I am, however, satisfied that it is appropriate to make an order pursuant to r 2.32(3)(a) of the Rules, in respect of small parts of the concise statement. The effect of that order is to redact certain information concerning the identity of a legal practitioner from the version of the concise statement that will be made available for inspection by non-parties. That redacted information is in effect to be treated as confidential for the purposes of r 2.32 of the Rules. I am not persuaded that it is appropriate to order that the originating application or the concise statement in its entirety be treated as confidential for the purposes of r 2.32.

92 In relation to the balance of the documents in respect of which the Council sought suppression and non-publication orders, it may be accepted that those documents were not used in open court and the principle of open justice accordingly does not apply to them. I am nevertheless not satisfied that it is necessary to make suppression or non-publication orders in respect of those documents in order to prevent prejudice to the proper administration of justice. That is essentially because those documents cannot in any event be inspected by non-parties without the leave of the Court. It is highly unlikely that the Court would grant leave to a non-party to inspect those documents in the circumstances. I will nevertheless make an order pursuant to r 2.32(3)(a) of the Rules that those documents be taken to be confidential for the purposes of r 2.32. The documents will therefore not be able to be inspected by non-parties. In my view, the making of a confidentiality order pursuant to r 2.32(3)(a) of the Rules in respect of those documents will sufficiently protect the integrity of the confidential settlement and it is unnecessary to take the additional step of making suppression and non-publication orders in respect of those documents and the information in them.

| I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:

Dated:    9 April 2026

Top