Mashni v The Herald and Weekly Times Pty Ltd

Mashni v The Herald and Weekly Times Pty Ltd [2026] FCA 545 is a Federal Court decision about anonymity in litigation. It is not a final ruling on the underlying discrimination claims. The immediate question was whether the third to sixth applicants could keep using pseudonyms and obtain non-publication orders so their identities would not be publicly disclosed in the proceeding.

McEvoy J refused the ongoing orders. The Court held that the evidence did not show the orders were necessary either to protect safety or to prevent prejudice to the proper administration of justice. The judgment is a strong restatement of open justice in the Federal Court. For business readers, the practical point is that court proceedings are generally public, and a party seeking anonymity needs evidence that meets a strict statutory test.

The broader proceeding was brought against major media outlets. The applicants alleged unlawful discrimination under Commonwealth legislation, saying the respondents had published or broadcast, or caused to be published or broadcast, discriminatory content. The applicants identified as Palestinian, of Palestinian background, or Palestinian Australian.

Before the substantive case could progress, a separate fight broke out about identity protection. The third to sixth applicants wanted to continue under pseudonyms and sought related non-publication orders. They said anonymity was necessary to protect their safety and mental health and to allow them to participate fully in the case. Their affidavits referred to fears of harassment, hostility, threats, violence, public opprobrium and a chilling effect on their willingness to give evidence or continue with the proceeding.

There had already been temporary protection. A Registrar had made interim orders on 1 April 2026 assigning pseudonyms to the third to seventh applicants and suppressing the originating process and supporting affidavit on the court file. By the time of the hearing before McEvoy J, the seventh applicant no longer pressed the application. The third to sixth applicants wanted the interim protection to continue in substance as an ongoing arrangement.

The respondents opposed that outcome. Their position was that the evidence did not satisfy the statutory requirement of necessity and that the Court should adhere to open justice. They also relied on evidence showing that the relevant applicants had already been publicly associated with pro-Palestinian advocacy through public roles, interviews, social media, writing and rallies. The Court therefore had to decide whether this was one of the exceptional situations where the ordinary public nature of court proceedings should give way.

The legal framework came from the Federal Court of Australia Act 1976 (Cth). Section 17 states the starting point that the Court's jurisdiction is exercised in open court. The judgment described this as reflecting the fundamental common law principle of open justice. Section 37AG allows suppression or non-publication orders on specified grounds, including where the order is necessary to prevent prejudice to the proper administration of justice, and where the order is necessary to protect the safety of any person.

The applicants relied on both of those grounds. They argued that anonymity was necessary because disclosure of their identities could expose them to harassment, hostility, threats and violence, and because disclosure would deter them from participating fully and frankly in the proceeding.

The Court emphasised several principles. First, orders of this kind are exceptional. Secondly, "necessary" is a strong word. The Court said an order is not necessary merely because it would be convenient, reasonable, sensible or desirable. The Court also said it is not performing a broad balancing exercise between competing interests. Instead, there must be material before the Court that allows it to conclude that the order is actually necessary on the statutory ground relied on.

That point is important for business readers. A confidentiality application in the Federal Court is not won by showing that privacy would be helpful. It is won, if at all, by evidence showing that without the order there is a real problem of the kind recognised by the statute, and that the order is needed to address it.

On the safety ground, the Court referred to the need to assess risk and consequences, sometimes described in the authorities as a calculus of risk. But even under that approach, the Court still had to be satisfied on the balance of probabilities that the order sought was necessary to protect safety. The Court also noted that the enquiry includes whether the order would likely prevent or minimise the risk and whether there are alternative responses.

On the administration of justice ground, the applicants argued that without anonymity they would be deterred from giving full and frank evidence and from participating honestly and freely in the proceeding. The Court accepted that deterrence from participation can in rare cases support some form of suppression. But it rejected any suggestion of a general principle that a party can obtain pseudonym or non-publication orders simply by saying they would prefer not to litigate openly. The Court considered that such an approach would fundamentally undermine open justice.

The Court dismissed the application by the third to sixth applicants for ongoing pseudonym and related non-publication orders. McEvoy J held that the evidence did not demonstrate that the orders were necessary either to protect safety under s 37AG(1)(c) or to prevent prejudice to the proper administration of justice under s 37AG(1)(a).

On safety, the Court found that each of the relevant applicants had given evidence of subjective concern about harassment, hostility, threats and public discourse if identified as an applicant in the proceeding. But the Court accepted the respondents' submission that there was no objective evidence showing that such a risk existed in the way required. The concerns were described as speculative.

A critical part of the reasoning was the applicants' existing public profile. The third applicant had formal roles in Palestinian Australian relief and advocacy organisations, was active in professional bodies, and had published a book titled From the River to the Sea. The fourth applicant had acted as a spokesperson for a Palestinian solidarity organisation, given multiple local media interviews and maintained publicly accessible social media profiles linked to advocacy. The fifth applicant had previously been the subject of media reporting about pro-Palestinian rallies. The sixth applicant had attended rallies, been involved with a Palestinian Australian advocacy organisation, appeared in publicly accessible interviews and had previously been named in connection with a public action in Brisbane.

For most of those applicants, the Court noted that the evidence did not show concrete harassment, threats or other adverse consequences flowing from that prior public identification. In the fourth applicant's case, the Court said it could not give material weight to references to hostile online communications because the actual communications were not put before the Court. Concerns about impacts on a child's medical care were regarded as tenuous. In the sixth applicant's case, evidence about a house break-in in 2024 was not linked by evidence to advocacy activities, and concerns about impacts on a child were treated as highly speculative and remote.

The Court also noted that there had already been reporting of the proceedings identifying the first applicant, Mr Mashni, and that the applicants' solicitors had issued a media release in November 2025 advertising that complaints had been accepted by the Australian Human Rights Commission. The Court observed there was no evidence that Mr Mashni or the other named applicants had suffered harassment, abuse, vilification, threats or other adverse reaction as a result of that public identification.

On the administration of justice ground, the Court rejected the idea that a party can secure anonymity simply by asserting they would be deterred from litigating openly. The Court said the present circumstances were not ones where suppression on that basis would be appropriate. It also noted that the substantive proceeding did not turn on the personal identities of the third to sixth applicants themselves, and that the case could continue much the same way if they withdrew as applicants. If they later wished to give evidence, any future suppression application could be considered on its own merits at that time.

Although the main application failed, the Court still made limited interim orders. This is an important procedural detail. The Court ordered that there be no disclosure of the names of the third to sixth applicants until 5:00 pm on 5 May 2026, or, if one or more of them applied for leave to appeal against the dismissal of the anonymity application, until that leave application and any appeal were finalised or withdrawn.

The Court also ordered that if any of the third to sixth applicants filed a notice of discontinuance before 5:00 pm on 5 May 2026, their names were not to be published, with that protection to continue until 12 months from the final judgment in the proceedings unless a further order was made.

These orders were not a partial win on the main issue. They were temporary protective measures designed to preserve practical rights after the refusal of the substantive application. The judgment explains that the applicants sought this relief so they could seek leave to appeal with anonymity and so their identities would not be disclosed immediately if they wished to discontinue. The respondents did not oppose that course.

For businesses, this distinction matters. A court may refuse lasting confidentiality but still grant short-term procedural protection to avoid making appeal rights or discontinuance rights meaningless. That does not change the underlying principle that ongoing anonymity requires proof of necessity.

This case is most useful as a guide to litigation planning. If your business, founder or staff member is considering Federal Court proceedings and hopes to stay unnamed, this judgment shows how demanding that application can be. Open justice is the default. The Court will want evidence, not assumptions.

First, gather evidence early if there is a genuine safety concern. That may include records of threats, abusive messages, prior incidents, police reports, medical evidence where relevant, and a clear explanation of how identification in the proceeding would create or materially increase the risk. The Court in this case drew a sharp distinction between subjective fear and objective evidence.

Secondly, think carefully about prior public conduct. If the person seeking anonymity has already spoken publicly, appeared in media, posted on social media, attended public events, or otherwise associated themselves openly with the subject matter of the dispute, the Court may ask why identification in the proceeding is materially different. In this case, that issue was central.

Thirdly, align legal strategy with communications strategy. The judgment noted prior reporting and a media release issued by the applicants' solicitors. If a dispute is already being publicised, it may become harder to persuade the Court that anonymity is necessary. Businesses should decide early whether they are pursuing a public campaign, a private resolution strategy, or a court process that may become public.

Fourthly, be realistic about the administration of justice ground. Saying that a person will be less comfortable, less candid or less willing to participate if named will not automatically justify suppression. The Court treated that proposition as one that, if accepted too readily, would undermine open justice across many cases.

Finally, remember what this case does not say. It does not decide the underlying discrimination allegations. It does not create a rule that anonymity can never be granted in sensitive proceedings. It says that on these facts, and on this evidence, the applicants did not prove necessity. Businesses should therefore read it as a practical warning about evidence and expectations, not as a blanket rule against confidentiality orders.