Keeping Damaging Allegations Out Of The Headlines: Confidentiality Orders In Employment Litigation

Employment litigation can move quickly from private workplace disputation to a public and brand-damaging problem.

Employees frequently commence proceedings with a pleading containing serious, damaging and untested allegations about the employer, its executives, HR decision-makers, colleagues or even third parties. Those allegations are filed before the employer has put on any response, before the Court has tested their veracity, and before the parties have had any real opportunity to mediate. 

For employers, that creates an obvious problem: by the time the allegations are tested, corrected or answered, the reputational damage is already done. That is particularly true where media organisations seek access to the Court file at an early stage – sometimes within days of the application being filed.

That context explains why employers are increasingly considering confidentiality, suppression and non-publication orders as part of their early litigation strategy. 

It is clear however that these orders are not there simply to spare an employer embarrassment. The cases show a more nuanced picture. Employers are having some success where they can show that publication would likely prejudice the proper administration of justice, especially by imperilling a mediation or undermining an early confidential settlement. They are far less likely to succeed where the concern is reputational discomfort, workplace disharmony, or where the material has already been used in open court. 

What does an employer need to show?

The threshold is high.

The starting point is open justice. Open justice is the principle that Court proceedings should generally be conducted publicly, and that Court documents and decisions should be open to scrutiny unless there is a proper legal basis for restricting access. 

Section 37AG of the Federal Court of Australia Act 1976 (Cth) recognises there are some circumstances where the open justice principle is outweighed by other competing grounds – including where the order is "necessary" to prevent prejudice to the proper administration of justice.

“Necessary” is a demanding standard. The Full Court has stated that suppression and non-publication orders should only be made in exceptional circumstances, that necessary is a “strong word”, and that the onus on the party seeking the order is a very heavy one.¹

For this reason, it is important to be precise about the type of order being sought:

• A suppression order restricts or prohibits disclosure of information. 
• A non-publication order restricts or prohibits publication of information. 
• A confidentiality order under r 2.32 of the Federal Court Rules 2011 operates differently: it restricts non-party inspection or copying of documents on the Court file. 

The distinction matters because the broader the restraint sought, the more carefully the order will need to be justified and confined.

What do the recent cases tell us?

The recent cases do not establish any general entitlement for employers to keep damaging workplace allegations out of the public domain. The starting point remains open justice. Suppression or non-publication relief will only be available where the statutory threshold is met – in particular, where the order is necessary to prevent prejudice to the proper administration of justice.

The strongest recurring theme in the recent authorities is mediation prejudice: employers have had the most success where they can show a real connection between publication of untested allegations and damage to the prospects of an early confidential resolution.²

But the cases also show that a general preference for a quieter mediation will not be enough. The application should not be framed as a reputational clean-up exercise: embarrassment, reputational discomfort, workplace disharmony or inconvenience will not ordinarily justify suppression or non-publication orders. Where the asserted impact on mediation is speculative, or where the real concern is conflict, unrest or adverse publicity, the Court is unlikely to be satisfied that the order is necessary.³ A straight line must be drawn between publicity and the prospects of settlement.

A related, but distinct, point arises once the proceeding has settled. Settlement will assist most where the proceeding has resolved at an early stage and where confidentiality of the pleaded allegations formed part of the settlement bargain. In those circumstances, publication may undermine the value of the bargain by depriving the parties of the confidentiality that helped facilitate resolution in the first place. But a confidential settlement deed will not, without more, justify keeping the allegations out of the public domain. To justify a court ruling on suppression or non-publication, the evidence must show that confidentiality of the allegations themselves – as opposed to the settlement terms – was integral to the resolution of the dispute. ⁴

Timing and procedural posture matter. If no defence or response has been filed, access may give the public only one side of the dispute and place the respondent at a forensic disadvantage. If a defence has been filed, that argument may be harder to maintain because a fair report can refer to the respondent’s answer to the allegations.⁵

Whether the material has already been used in open court may also be decisive. Once the originating application, concise statement or other pleaded material has been deployed in open court, open justice carries weight, and the Court may be reluctant to suppress that material later.⁶

The authorities also show that the Court may draw distinctions between different types of relief. Even where broad suppression or non-publication orders are refused, narrower confidentiality orders may still be available for documents that have not been used in open court. By contrast, removal of documents from the Court file is likely to be a more difficult step to justify than restricting publication, disclosure or inspection.⁷

Separate grounds may support targeted protection where genuinely confidential or privileged material is involved. If disclosure would risk destroying the benefit of legal professional privilege before the privilege claim is determined, that may prejudice the proper administration of justice.⁸ The Court may also be prepared to protect third-party complainants or employees where publication of identifying details creates a substantial risk of vilification or harassment.⁹

Finally, any order should be tightly framed and time limited. The Court has scrutinised the duration of confidentiality, suppression and non-publication orders, including by rejecting indefinite or overly open-ended orders and imposing shorter fixed periods or end dates tied to mediation.¹⁰

The employer takeaway

The recent cases give employers a useful but careful pathway.

If an employee files a pleading containing damaging allegations, and media access is sought before the employer has responded or before mediation has occurred, an application for confidentiality, suppression or non-publication orders may be worth considering. The best applications are made early, are supported by specific evidence, and explain why disclosure would prejudice the proper administration of justice rather than merely embarrass the employer.

The cases also show the limits. Courts will not suppress allegations simply because they are unpleasant, reputationally damaging or inconvenient. Open justice remains a powerful consideration, especially where material has already been used in open court or the dispute involves public officials or public funds.

For employers, the practical message is this: if confidentiality is going to matter, move quickly, be precise, and carefully consider the legal grounds being relied on. A broad plea to keep damaging allegations out of the media will not suffice. 

 Footnotes

1 See Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, where the Full Court emphasised the primacy of open justice and the stringent nature of the “necessary” requirement for suppression and non-publication orders. See also Hogan v Hinch (2011) 243 CLR 506, where the High Court described “necessary” as a strong word in this context. See further Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52 and Rinehart v Welker [2011] NSWCA 403; (2011) 93 NSWLR 311 on the exceptional nature of orders derogating from open justice.

2 See: McGrane v Seven Network (Operations) Pty Ltd [2025] FCA 944 (McGrane), where orders were made over pleadings and supporting material until the later of a fixed date or seven days after mediation terminated because disclosure would likely imperil mediation. Falco v Zscaler Australia Pty Ltd [2026] FCA 22 (Falco), where media access was sought two days after commencement, before any employer response and with mediation ordered. Neve v LVMH Perfume & Cosmetics Group Pty Limited (Suppression Order) [2026] FCA 108 (Neve), where publication was found to risk mediation because confidentiality can matter to negotiation dynamics. 

3 See: McGrane where workplace disharmony or reputational discomfort was not enough and the compelling basis was protecting the pending mediation. Sharma v Northern Territory of Australia [2026] FCA 315 (Sharma), where mediation prejudice, conflict, unrest and reputational concerns were found to be speculative and insufficient. 

4 See: Saw v Seven Network (Operations) Ltd (Post-Settlement Suppression Orders) [2025] FCA 30 (Saw), where interim confidentiality preserved the pleadings as a settlement bargaining chip and the settlement was contingent on further suppression or non-publication orders. Hyland v Havas Media Australia Pty Ltd [2025] FCA 1562 (Hyland), where the matter settled before the first case management hearing under a confidential deed and publication was found to undermine early private settlement. Devlin v Commonwealth Bank of Australia [2025] FCA 1632 (Devlin), where the proceeding settled confidentially before the first case management hearing and before the respondent had an opportunity to answer the allegations. Cf: George v Council of the King’s School [2026] FCA 394 (George), where broad suppression and non-publication orders were refused despite a confidential settlement because the Court distinguished between confidentiality of the settlement terms and confidentiality of the pleaded allegations, and aspects of the material had already been ventilated in open court.

5 See: Hyland, where no defence had been filed and access would present only one side of the dispute. Devlin, where the matter settled before the respondent had an opportunity to answer the allegations. Cf: Sharma, where defences had been filed and any fair report would need to refer to the respondents’ answers to the allegations. 

6 See: George, where the originating application and concise statement had already been used in open court, making open justice a weighty consideration supporting access. 

7 See: Hyland, where publication and disclosure were restricted but removal from the Court file was refused. George where broad suppression and non-publication orders were refused but confidentiality orders were made under r 2.32 for documents not used in open court.

8 See: AxiCorp Financial Services Pty Ltd v CABC [2025] FCA 144 (AxiCorp), where the Court accepted that disclosure of information potentially subject to legal professional privilege could destroy the benefit of privilege and prejudice the administration of justice.

9 See: Lattouf v Australian Broadcasting Corporation [2025] FCA 62 (Lattouf), where the Court protected complainants’ names, identities, contact details and addresses because there was a substantial risk of vilification and harassment.

10 See: Saw, where the Court imposed a five-year order rather than an indefinite or 10-year order. Neve, where the Court rejected an order lasting as long as mediation remained on foot and imposed a shorter fixed end date with liberty to apply. McGrane and Falco also involved time-limited orders tied to a fixed date or the period shortly after mediation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.