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Super Retail Group wins leave to appeal suppression decision
Super Retail Group has been granted leave to appeal a Federal Court decision to toss out a suppression order that covered an agreement between it and an ousted chief legal counsel.
Naomi Neilson
Justice Michael Wigney granted Super Retail Group (SRG) leave to appeal an order made by Justice Michael Lee in August to toss out a suppression order application on the grounds it was contrary to public interest and was made “unnecessarily and hence wrongly”.
Justice Wigney said he was persuaded “it was at least arguable” Justice Lee had erred in finding the suppression order was unnecessary and the “sufficient doubt” warranted reconsideration.
Appearing on behalf of SRG – which owns brands like Supercheap Auto and rebel – John Sheahan KC pointed to several alleged errors in Justice Lee’s decision, including a claim that the type of suppression order was “unprecedented” in the Federal Court.
“The decision of the primary judge was not only flawed, and was not only one that causes us substantial injustice, but it raises questions of general importance, at least insofar as it denies the power of the court to make an order in respect of proceedings for specific performance of a confidential settlement,” Sheahan said.
Sheahan also took issue with Justice Lee’s claim that the loss of confidentiality – if it was found to have been struck – could only be because SRG had acted “wholly inconsistently with the bargain, disputing its existence, and requiring it to be specifically enforced”.
“If the plaintiff seeks to protect what it claims to be a valuable trade secret, it would be wrong to deny it suppression just because that question was put in issue and it might fail at the end of the trial.
“The right thing to do would be to make an order protecting its claimed valuable trade secret until the determination of that question in the trial,” Sheahan submitted on Monday (14 October).
On behalf of Farrell and corporate legal Amelia Berczelly, Shane Prince SC disputed a proposition by the SRG parties that his clients have sought to publish the alleged material.
He also told the court there was no “sufficient doubt” to interfere with any part of Justice Lee’s August decision.
“There is a tension between the SRG parties endeavouring to have the benefit of the agreement, and using that benefit as a basis for the application for suppression orders and the assertion of rights it serves to protect. [Justice Lee] was alive to that,” Prince said.
Farrell and Berczelly were ousted from SRG after the two released a media statement with their solicitors at Harmers Workplace Lawyers, which was said to be in response to a statement published by SRG on the Australian Securities Exchange.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
