[9] … until further order, I order that there be no publication of the names of any person referred to in the list which will become an annexure to this order in the context of their being named in the particulars and categories of discovery which are the subject of the applications before the court.
[10] Separately, I note that Mr Hodgkinson [counsel for the Clutz defendants/respondents] sought an order that there be no publication of the fact or content of this application, but that application was not pressed and, accordingly, there is no restraint on the publication of the making of this order, subject always to the obligation of the members of the press to fairly report the context in which the orders have been made.
We hope what follows gives fair reportage of the context. If such a suppression-suppression order were made, it would be one of the first (known) instances of a so-called “super injunction”, which as many of you will know are all the rage over in the UK at the moment. What distinguishes a super-injunction from a regular injunction is that it prohibits mention of not just the subject matter of the injunction, but also the fact that the injunction was made.
Properly understood, neither the 14 October orders nor the 7 June orders were super-injunctions. Read on for details.
Accordingly, we report them in full, with the prohibited matter excluded:
[6] I am concerned that in order properly to assess and weigh the prejudice likely to be suffered by any of the named individuals, I will have, in effect, to consider much of the material which I will have to consider and assess in any event in order to determine the applications before the court.
[7] In those circumstances, I consider it appropriate and in accordance with the overriding purpose to take a practical approach to the present application, namely, to grant the order very much on an interim basis so that I can in effect hear the application for continuation of the non-publication order at the same time as proceeding to determine the substantive issues brought before the court for determination today. …
[9] On that basis, until further order, I order that there be no publication of the names of any person referred to in the list which will become an annexure to this order in the context of their being named in the particulars and categories for discovery which are the subject of the applications before the court.
On 14 October, McCallum J ordered in chambers that the interim suppression order be continued, but deleted four defendant-related parties’ names from the confidential annexure. We have seen the four names, none of whom appear to be current Clutz employees. We are confident that, with enough Googling or Twittering, you could find them out. But we respect the order of the Court and will refrain from publishing the names. We ask that commenters do the same.
That being said, this is still an extraordinary order. If mention of the parties concerned would truly be “irrelevant” or “embarrassing”, as counsel claimed, what can be the prejudice in not making the order? Why were several days of the Court’s time wasted in arguing the point? According to one report, a reason given against publication was that “the prospect of sensational reporting is high”. Really, is that it? The risk of excessive freedom of speech?
We can only describe it as sensible for McCallum J not to suppress the order itself. That way we at least stand some chance at complying with it. As her Honour notes at paragraph 4:
[4] [The submissions] properly acknowledge that the principle of open justice is a fundamental value of our legal system and that non-publication orders should not lightly be made.
With respect, it’s more than a “fundamental value”. It’s an inviolable axiom upon which the entire system is premised. We are heartned to see McCallum J not throw away this value as lightly as some English judges recently did.
We are hosting a full copy of the order here, with the confidential annexure removed obviously. Based on the interpretation of multiple lawyers at FS who read it, we all believe that we are complying with the order in so publishing it.
The order certainly puts this recent comment from a Sydney spy in perspective:
In court one afternoon I spied Styles’ legal team (her barrister and a young chap I assume is her solicitor) all guns blazing against the Clutz cannons. Looks like Clutz they had Senior Counsel, at least 2 junior counsel, 3 solicitors from their newly appointed firm of solicitors (looked like Freehills folders on the trollies they were rolling in – with folders in a number not seen since C7) and a group representing from Clutz (must have been there giving instructions). There were about a dozen lawyers there defending Clutz’ interests by my count – although I didn’t see anyone writing anything much down. Seems a bit of disproportionate presence for an interlocutory hearing. Seemed like the kind of thing you guys/girls might be interested in.
We certainly are! It’s hardly surprising that Clutz are so keen to win this one. It can’t look good in the grad prospectus. The question is: will they?
It’s worth noting that one of the other arguments put to the Court by Clutz — that the mention of these defendants might prejudice their parallel jury trial for defamation of Ms Styles — didn’t seem to apply to Ms Styles herself, who remains unprotected by the order. Of course, she did invoke the jurisdiction of the court by bringing the claim, which was her choice — but arguably she suffers far greater prejudice than the defendants who we can’t name.
But don’t worry, we may not be able to publish (or, presumably, direct you to find) the names mentioned in the order. But we can publish something much, much better:
The ClizzoBridgetz montage – exhibit 2 in the proceedings.
It’s blurry as hell, but the original photocopy lodged with the Court is apparently of pretty poor quality and it gives a pretty good flavour of the kind of evidence being led in the case.
Can you say: caption contest!
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Tort of Intentional Harm – I’ve been expected to work long hours, don’t get to catch a cab home, get teased for sleeping with a colleague, suffer depression and then cut my finger.
IMHO, it simply appears to be throwing good after bad.
How is Clutz going to look if the combined efforts of Clutz and Freehills ultimately destroy this poor girl through protracted tactically-fought litigation?
Sure, they may not have an official black notch in their belt, but what does it say to a young lawyer contemplating applying to, or having already commenced work at, the firm?
Sexual harassment complaints are not filed lightly, it takes an awful lot of courage and self-sacrifice to do so. All that is clear from Clutz’s counduct, is that the firm is not going to seek an amicable outcome if they (or the counterparty) dispute the basis for a formal sexual harassment claim. Thus the question is begged, why would an individual, in such a situation, want to proceed with trying to seek redress (or at least a resolution of their complaint) when they know that Clutz, if pressed, will respond with all of the fury of Zeus and then some? The only option available, if the individual could not keep it to themselves and ‘carry on’ (which they should never be expected to do), is to pack up and leave – how unsatisfactory.
It’s lose-lose from here on in, and a sad situation for all involved. The parties should have settled long before this interlocutory hearing.
Can anyone read the text on the Exhibit? I would love to know what it says.
Does anyone know what the montage is meant to represent?
Who made it and why?
Clutz would not be defending themselves in this way if they were truly in the wrong. As a previous poster has said, they are many things but they are not stupid. And if they have done nothing wrong why shouldn’t they fight?
Humm yes Clayton Utz aren’t stupid. They don’t have a reputation for fighting for the sake of fighting. And everyone knows cigarettes are good for you and that the tooth fairy exists.
The montage is referred to in the judgement of the recent interlocutory application. It was (allegedly) created for Mr Izzo when he went on a secondment. The text contains reference to Mr Izzo’s own (alleged) high opinion of his self. Weird stuff…
I’m a bit disappointed that Clutz didn’t shred the montage. The matter is in NSW.
And in a related matter, the same office is losing their recently made up (thank you A&O defections) junior Energy and resources partner with a rockstar first name and last name to, yep, Norton Rose Australia. Another one bites the dust for clutz!
You would have thought that Clutz management would have learnt its lesson with the Michael Mitchell saga. Lawyers are trained to manage risk and high profile litigation represents an abject failure to manage risk. Any talented lawyer, or lawyer with a pulse for that matter, doesn’t want to put their reputation on the line to defend management’s dirty deeds. No coincidence that a number of the original A&O defectors including Grant Fuzi himself were involved in the “trench” war. Lawyers are trained to draft affidavits not swear them.