Roberts-Smith v Fairfax Media Publications Pty Ltd (Suppression Orders)

This was a Federal Court decision about whether temporary confidentiality protection should be turned into much longer suppression orders. The respondents to the appeal wanted orders preventing disclosure of a confidential deed of settlement for 50 years. That deed was between Fairfax Media Publications Pty Ltd, The Age Company Pty Ltd and Mr Nick McKenzie, and a non-party referred to as Person 17.

The appellant, Ben Roberts-Smith, opposed the application. Person 17 did not oppose the orders overall, although she wanted a variation allowing disclosures under a clause of the deed. Two media companies, Nationwide News Pty Ltd and West Australian Newspapers Limited, intervened to oppose the orders as well. So the Court was dealing with a live clash between confidentiality, open justice and the practical reality of media reporting.

The immediate background was that Person 17 had sworn an affidavit on 29 April 2025 and exhibited the confidential deed to it. The affidavit was removed from the Court file on 30 April 2025, but before that happened it had been served on the parties together with the confidential exhibit. On the same day, Perram J made interim suppression orders to preserve the confidentiality contemplated by the deed. The judge also recorded concern that the Court's subpoena powers may have been abused.

Those interim orders were originally due to expire after six months. Just before that period ended, they were extended until further order so the Court could decide whether much longer orders should be made. The key factual development by then was that several news articles published between 4 May and 7 May 2025 had already revealed the substance of the deed and remained available online.

The legal question was whether suppression orders should be made under section 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The judgment frames the issue in practical terms. If the information in the deed had already entered the public domain and remained available on the world wide web, would extending the suppression orders achieve anything useful? If the answer was no, could the orders still be described as necessary to prevent prejudice to the proper administration of justice?

That is an important distinction for business readers. The Court was not simply asking whether the deed was confidential in a contractual sense. It was asking whether the requested court order was necessary and effective. Suppression orders are exceptional. The judgment says that where a suppression or non-publication order will not be effective, it will generally not be the case that making the order is necessary under the statutory test.

The Court referred to Attorney-General v Leveller Magazine Ltd and Oreb v Australian Securities and Investments Commission as authority for that approach. In other words, the Court looked beyond the label of confidentiality and focused on utility in the real world.

Perram J held that the suppression orders should be discharged rather than extended. The central reason was lack of utility. The information in the deed had entered the public domain through a number of news articles published between 4 May 2025 and 7 May 2025. Those articles revealed the substance of the deed and remained available on the internet when the Court decided the application.

The respondents did not seek orders requiring those stories to be taken down. The Court also observed that, given the profile of the case, it was likely the articles had been viewed by a large number of people. That mattered because a suppression order is meant to prevent prejudice to the administration of justice, but if the relevant information is already widely accessible, the order may no longer do meaningful work.

The Court further noted there was no evidence that the articles had been posted in breach of the suppression orders. As the intervening media companies submitted, the chronology on 30 April 2025 made it quite possible that the information in the articles had left the courtroom before the suppression orders were made. That point did not itself decide the application, but it reinforced the Court's conclusion that the information was already out and that extending the orders would not restore confidentiality in any practical sense.

On that basis, the Court concluded that extending the suppression orders would lack utility. Where a suppression or non-publication order will not be effective, the judgment says it will generally not be necessary under section 37AG(1)(a) to prevent prejudice to the proper administration of justice.

The Court dismissed the respondents' amended interlocutory application dated 5 November 2025. It also ordered the respondents to pay the appellant's costs of that interlocutory application. So the parties seeking the 50-year suppression orders did not get them, and they were ordered to pay costs on that application.

However, the Court did not immediately remove all protection. Perram J granted further interim orders to allow the respondents time to challenge the conclusion if they wished. Orders 8 and 9 made on 30 April 2025 were continued until 16 February 2026, being 14 days from the date of the judgment, or, if an application for special leave to appeal was filed within that period, until the final determination of that application and any later appeal if special leave were granted.

That procedural detail matters. It shows that a court can reject the substantive confidentiality application while still preserving the position briefly so a party can consider the next appellate step. For businesses, that is a reminder that interim relief and final relief are different questions. A short continuation order may be available even where the longer-term case fails.

If your business uses confidential settlement deeds, this case is a warning against overestimating what a court can fix after disclosure. A deed may be contractually confidential. A court may even grant urgent interim protection. But if the substance of the document is already public and remains accessible online, the court may decide that further suppression orders are not necessary because they will not be effective.

That means confidentiality risk management has to happen before publication, not just after. The judgment highlights several practical pressure points. One is exhibits to affidavits. Another is service on parties before a document is removed from the file. Another is the speed at which information can move into public reporting. Once that happens, the legal question changes from whether the information was confidential to whether any order can still achieve a real protective result.

Businesses should also notice what the respondents did not seek here. The judgment says they did not seek orders requiring the online stories to be taken down. The Court did not say whether such orders would have succeeded, but the absence of that step formed part of the practical context in which utility was assessed. In a live dispute, the available remedies may include contractual enforcement, injunctions, suppression applications or take-down steps, but the usefulness of each option will depend heavily on timing and the extent of publication.

For many businesses, the biggest lesson is operational. Confidentiality clauses are only one layer of protection. The other layer is conduct: who receives the document, how it is stored, whether it is attached to court material, whether redaction or alternative handling is considered, and how quickly legal advisers are engaged if a leak occurs.

The judgment is especially useful for businesses because it links legal outcome to document handling. The deed was not disclosed in the abstract. It was exhibited to an affidavit, served on the parties, then removed from the Court file. Interim suppression orders were made to preserve confidentiality, but the substance of the deed later appeared in online reporting. That sequence shows how confidentiality can be lost through process, not just through deliberate leaking.

In practice, businesses should treat sensitive court documents as a workflow issue. Before filing, ask whether the whole document needs to be exhibited. Before service, ask who will receive it and on what terms. Before relying on confidentiality language, ask what happens if the information is reported publicly within days. The Court's reasoning shows that once information is already on the internet and widely viewed, the argument for long-term suppression becomes much harder.

This does not mean confidentiality protections are pointless. It means they are strongest when paired with disciplined handling. If a document is commercially important, the business should know where it sits, who has it, what court step may expose it, and what urgent action will be taken if publication occurs.

Does this case mean a confidential settlement deed is not really confidential? No. The Court accepted the deed was confidential. The problem was that the substance of the deed had already entered the public domain, so longer suppression orders would not be effective.

Can a court refuse suppression even if disclosure would be embarrassing or commercially damaging? Yes, if the statutory test is not met. This decision shows the Court focuses on necessity and utility, not just sensitivity.

Is an interim order enough protection? Not necessarily. Interim orders can preserve the position for a short time, but they do not guarantee long-term secrecy if the information is already circulating publicly.

What is the main practical risk point for businesses? Often it is the handling of documents in litigation, including exhibits, service and filing steps, rather than the wording of the confidentiality clause alone.

What should a business do first if sensitive material may become public? Get urgent legal advice immediately and assess what practical steps are still available while the information is not yet, or is only partly, in the public domain.

The judgment was delivered on 2 February 2026 by Perram J in the Federal Court of Australia. The matter was determined on the papers. The respondents' amended interlocutory application was dated 5 November 2025. The interim suppression orders originally made on 30 April 2025 were continued only for a short period after judgment, until 16 February 2026, unless a special leave application was filed within 14 days.

The decision therefore stands as a procedural ruling on suppression orders in the appeal, rather than a final statement of the whole underlying litigation. Readers should keep that procedural setting in mind when applying the case to their own circumstances.