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Super Retail Group puts up fight over suppression orders
Super Retail Group – the company in a dispute with its former chief legal counsel – may appear before a full court bench to appeal against a decision to have its suppression order application tossed out because it was contrary to the principles of open justice.
Naomi Neilson
In a decision handed down late last month, Justice Michael Lee of the Federal Court found the attempt to shield media from an alleged settlement agreement was done “unnecessarily and hence wrongly”.
SRG, owner of major brands Supercheap Auto, rebel, BCF and Macpac, flagged it would appeal Justice Lee’s decision.
Appearing before Justice Michael Wigney on Thursday (19 September), SRG counsel Zoe Hillman said that no matter which way the substantive proceedings conclude, the suppression order would be important to shield the parties’ confidentiality.
“The circumstances arise for the SRG parties because if Farrell is found to be correct … then in her own case, the parties entered into an enforceable settlement agreement, which included a term that the agreement be kept confidential,” Hillman said.
Hillman added that if details were given to media, Farrell would allegedly not be able to perform her obligations to that agreement.
On the other hand, Hillman said that if the substantive proceedings found there was no such agreement, “without prejudice communications” about it could make its way into the hands of the media.
Hillman said that if leave to appeal is allowed and can take place before a full court bench, there would be “short, crisp legal arguments”.
In response, Farrell’s counsel, Shane Prince SC, said the proposition that Hillman’s concerns were not addressed by Justice Lee in his original suppression order judgment was “not right”.
“His Honour clearly addressed the proposition that there was something unique about the settlement discussion,” Prince said.
Prince pointed to one paragraph, in which Justice Lee said a point about evisceration after disclosure “does not have any substance”.
Justice Lee said that if it was ultimately found that there was a bargain struck, “the loss of confidentiality of the terms secured by the bargain will be lost for one reason alone: it will be the result of the SRG parties acting wholly inconsistently with the bargain, despite its existence, and requiring it to be specifically enforced”.
Prince said the matter does not “warrant a referral to a full court”.
Counsel from Fairfax Media and Nationwide News have been granted leave to intervene in the suppression appeal proceedings.
Justice Wigney said that while he regretted the “trouble and expenses” it may cause, he reserved his decision to make inquiries about whether a full court bench can be convened at “very short notice” to deal with what he said is a “fairly narrow issue”.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
