Zaydan v Experian Australia Pty Ltd (No 3)

This Federal Court decision sits at the intersection of settlement confidentiality and open justice. It did not determine whether the applicant's underlying allegations were true. Instead, it dealt with a later procedural question after the parties had already settled their dispute.

The proceeding was brought by Bernadette Zaydan against Experian Australia Pty Ltd and three individual respondents. The Court said the case arose from an application under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) concerning alleged contraventions of the Sex Discrimination Act 1984 (Cth). The judgment does not set out the full factual background of those allegations, so the public lesson from this case is mainly about court process and confidentiality.

Early in the proceeding, the Court made interim suppression orders over documents filed in the case while the parties went to mediation. The reason was practical and procedural. The Court accepted that maintaining confidentiality at that stage was necessary to prevent prejudice to the proper administration of justice because it would help facilitate the prospects of an early settlement.

That strategy worked. The mediation succeeded, the parties entered into a confidential settlement, and the proceeding was dismissed with no order as to costs. The settlement contemplated ongoing confidentiality of filed documents and required the parties to seek consent orders to preserve that confidentiality.

But there was a complication. Before the settlement, the respondents had already brought an interlocutory application to strike out paragraph 17 of the applicant's Amended Statement of Claim. That application was heard in open court. The judge later gave reasons allowing the strike-out in Zaydan v Experian Australia Pty Ltd (No 2) [2025] FCA 1614. Those reasons had temporarily been kept confidential while mediation was still underway.

Once the mediation ended and the case settled, the Court had to decide what should happen to those earlier reasons. That is the issue resolved in Zaydan v Experian Australia Pty Ltd (No 3) [2026] FCA 634.

The key point for business readers is that No 3 was not about the merits of the discrimination claim. It was about whether the Court's own reasons for an earlier interlocutory ruling should remain confidential after the parties had settled.

That distinction matters. Businesses often think of litigation confidentiality as one broad concept, but courts separate different categories of material. Here, there were already suppression orders over documents filed in the proceeding. However, the Court said those orders did not cover the reasons for judgment in No 2. A separate decision had to be made about whether those reasons should stay confidential.

The parties asked the Court to make orders under s 37AF and s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), and under r 2.32 of the Federal Court Rules 2011 (Cth), so that the No 2 reasons would remain confidential and not be disclosed to anyone other than the parties and their legal representatives except by leave.

The Court therefore had to confront a direct tension. On one side was the confidential settlement and the existing suppression regime over filed documents. On the other side was the principle of open justice, especially the public interest in seeing reasons that explain how and why a court exercised judicial power.

The judge also noted an important procedural fact. The strike-out application had been heard in open court, and the applicant's attempt at the end of that hearing to suppress matters disclosed during the hearing had already been refused. That history made it harder to justify broad secrecy later.

The Court refused to keep the whole of the No 2 judgment confidential. Instead, it ordered that the reasons be published with limited redactions. Specifically, paragraphs 7 to 12 inclusive, and certain words in paragraph 13, were to be redacted. The unredacted reasons were to remain confidential until further order under r 2.32 of the Federal Court Rules.

The judge accepted that suppression or non-publication orders can only be made where they are necessary for a permitted purpose under the legislation. The Court repeated that it is not enough to show secrecy would be desirable or convenient for the parties, or that publication would cause embarrassment, inconvenience or annoyance. The threshold is necessity.

The Court also emphasised that a primary objective of the administration of justice is to safeguard the public interest in open justice. That includes allowing the public to scrutinise how courts decide cases and to understand why decisions are made. Ordinarily, that points strongly toward public availability of court materials, and even more strongly toward publication of reasons for judgment.

In this case, the judge considered that the reasons in No 2 explained the basis on which orders had been made in the exercise of judicial power on the respondents' strike-out application. The Court said the determination of that application required consideration of questions of principle relating to the scope of vicarious liability under s 106 of the Sex Discrimination Act and the relevance of allegations concerning workplace culture and patterns of conduct. Because of that, the public interest in publication weighed overwhelmingly in favour of releasing the reasons, subject only to redactions of confidential material that was not essential to understanding the ruling.

The Court was not persuaded that secrecy was necessary simply because the struck-out allegation had not been tested at trial or answered by a defence. The judge referred to authority stating that ordinary members of the public understand the difference between allegations made in court and findings made by a court.

At the same time, the Court accepted that some parts of the No 2 reasons merely summarised the broader allegations in the Amended Statement of Claim and were not necessary to understand the strike-out application or the basis of the orders. Those parts could therefore be redacted consistently with the existing suppression orders over filed documents.

The commercial lesson is not that confidentiality is impossible. It is that confidentiality has limits once a dispute is before a court. A business may be able to obtain suppression orders over filed documents in particular circumstances, especially where confidentiality is necessary to support mediation or give effect to a settlement. But that does not mean the Court will also suppress its own reasons for judgment.

This distinction is critical for employers, larger corporates and any business facing sensitive allegations. If a pleading dispute, strike-out application or other interlocutory issue is argued in open court, the Court may later publish reasons explaining what happened and why. Even if some background allegations are redacted, the existence of the dispute, the parties' identities and the legal reasoning may still become public.

The case also shows that timing matters. The interim suppression orders here were made while mediation was underway and were justified on the basis that confidentiality would facilitate settlement. After settlement, the Court was prepared to continue suppressing filed documents for seven years or until further order. But when it came to the No 2 reasons, the Court treated publication as the default and asked whether any narrower redactions could adequately protect confidential material.

For business owners, that means confidentiality should be built into litigation strategy from the start. Consider what allegations are truly necessary in pleadings. Think carefully before running or resisting interlocutory applications that may require an open court hearing. If a suppression application is contemplated, make sure there is a real legal basis for saying secrecy is necessary, not merely commercially attractive.

There is also a reputational management point. The Court said the public generally understands the difference between allegations and findings. That may be legally correct, but businesses still need to plan for the practical reality that publicity around allegations can affect staff, customers, investors and counterparties. Legal strategy and communications strategy should therefore be aligned early.

One of the most useful parts of this decision is the way it separates three different sources of publicity risk.

First, there are documents filed in the proceeding. In this case, the Court made interim suppression orders over filed documents during mediation, and later made further suppression orders over filed documents, including documents tending to disclose the allegations or claims in the proceeding, for seven years or until further order.

Second, there is what happens in open court. The strike-out application was heard in open court, and the judge refused an application made at the end of that hearing to suppress matters disclosed during the hearing. That procedural history shows that once material is aired in open court, later attempts to contain it may face difficulty.

Third, there are reasons for judgment. The Court treated these as especially important because they explain the basis on which judicial power was exercised. That is why the public interest in publication was so strong. The Court accepted limited redactions where some background summary of allegations was not necessary to understand the ruling, but it would not suppress the whole judgment.

For businesses, this framework is practical. If you are assessing confidentiality risk in litigation, do not ask only whether documents can be suppressed. Also ask what might be said in open court and whether a judge may later need to publish reasons that explain a contested procedural ruling.

The timeline helps explain the Court's approach. Interim suppression orders were made on 29 October 2025 while mediation was underway. The strike-out application was later heard in open court, and on 18 December 2025 the Court struck out paragraph 17 of the Amended Statement of Claim in No 2. Those reasons were kept confidential temporarily because mediation was still pending.

After the mediation succeeded and the parties settled, the Court made further suppression orders on 1 April 2026 over filed documents for seven years or until further order. The remaining issue was whether the No 2 reasons should also stay confidential. That issue was heard on 8 May 2026 and decided on 21 May 2026 in No 3.

The result was a mixed position. Filed documents remained subject to suppression orders, but the No 2 reasons were to be published with limited redactions. The unredacted version remained confidential until further order.

Does a confidential settlement guarantee privacy? No. It may support suppression orders in some circumstances, but the Court still applies the statutory test and gives strong weight to open justice.

Can the Court publish reasons even if the parties agree it should not? Yes. Party agreement is relevant but not decisive. The Court must be satisfied confidentiality is necessary for a permitted purpose.

If allegations were never proved, does that mean they must stay secret? Not necessarily. The Court said that ordinary members of the public understand the difference between allegations and findings, and that point alone did not justify suppressing the whole judgment.

Is redaction a middle ground? Often yes. This case shows the Court may redact material that is confidential and not necessary to understand the ruling, while still publishing the substance of its reasons.

What should a business do in practice? Get advice early on pleadings, suppression strategy, hearing exposure and settlement drafting. Once a matter has been argued in open court, the scope for later secrecy may be narrower than expected.