FEDERAL COURT OF AUSTRALIA

Conway v Fernandez (No 2) [2018] FCA 1975

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to rule 2.32(4) of the Federal Court Rules 2011 (Cth), David Marin-Guzman, journalist of The Australian Financial Review, have leave to inspect the following documents –

(a)    affidavit of Paul Conway affirmed 30 November 2018;

(b)    affidavit of Antonia Sakkas affirmed 3 December 2018;

(c)    second affidavit of Antonia Sakkas affirmed 3 December 2018.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

1    On Tuesday 4 December 2018, I made interlocutory orders in this proceeding following the hearing of an application for interim relief under s 164(4) of the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act): Conway v Fernandez [2018] FCA 1949. The hearing had taken place the previous afternoon, Monday 3 December 2018. Only the applicant and the first respondent had appeared upon that application.

2    On 5 December 2018, a journalist employed by The Australian Financial Review made a written application to the Court for access to an affidavit of the applicant sworn 30 November 2018, and two affidavits of the applicant’s solicitor sworn 3 December 2018. All three affidavits were received into evidence at the hearing of the applicant’s interlocutory application for interim relief under s 164(4) of the RO Act.

3    Upon receiving the application for access to documents, the Court requested the lawyers for the applicant and the first respondent to indicate whether those parties had any objection to the non-party having access to the documents, and if so, to indicate what the objection was. The Court received notification from the lawyers for the applicant and from the lawyers for the first respondent objecting to access being given to the non-party. The applicant’s objection was that the second to twentieth respondents, whom the applicant advised have now been formally served, had not yet had an opportunity to be heard on the matter. The applicant stated that consideration of the question whether the non-party be given access be deferred to the case management hearing which has been listed for 18 December 2018.

4    The objections made on behalf of the first respondent were as follows –

(a)    there are 19 other named respondents who have not yet appeared in the proceeding and who have not been provided opportunity to object;

(b)    the proceedings relate to an ongoing disciplinary process, and public comment may make a difficult process more difficult;

(c)    the material was provided on an interim application, and has not been subject to challenge, and its reporting may be unfair on the first respondent and others at such a preliminary stage;

(d)    the material involves an internal dispute within a union, and there is no significant public interest in publicity, but a real possibility of reputational damage to the union, the first respondent and other members of the Federal Council of the union.

5    The Court also received a separate email from the National Industrial Officer of the Union which made the substantially similar objections on behalf of the 21-member Federal Council of the union.

6    In the circumstances, I listed the objections for hearing with notice by email to the parties, and to the journalist. The hearing took place at 11.30am yesterday, 6 December 2018. The applicant, the first respondent, and the 5th and 7th respondents were represented by counsel. There was no appearance on behalf of the other respondents, or the journalist.

7    Rule 2.32(2) of the Federal Court Rules 2011 (Cth) permits a person who is not a party to a proceeding to inspect a number of different types of documents in a proceeding. The types of documents that are listed in r 2.32(2) do not include affidavits. Rule 2.32(4) provides that a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

8    Section 17(1) of the Federal Court of Australia Act 1976 (Cth) provides that –

Except where, as authorised by the Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court.

9    This provision is to be read together with Part VAA of the Act, which concerns suppression and non-publication orders. Section 37AE of the Act, which is within Part VAA, provides –

In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

10    A suppression order or non-publication order may be made on one of the four grounds that are specified in s 37AG(1), which are as follows –

(a)    the order is necessary to prevent prejudice to the proper administration of justice;

(b)    the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security; 

(c)    the order is necessary to protect the safety of any person;

12    No application for a suppression order, or a non-publication order was made by any of the parties at the hearings on 3 and 4 December 2018. However, I shall treat the parties’ objections to access to the affidavits as applications for a suppression or non-publication order pursuant to s 37AH(1) of the Federal Court of Australia Act, as Rangiah J did in similar circumstances in Baptist Union of Queensland v Roberts (2015) 332 ALR 79 at 82 [9]. In that case, Rangiah J stated at 88 [36] that –

There is a strong presumption that any member of the public should be given leave to inspect a document which has been read in open court.

13    In support of that presumption, Rangiah J cited: Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609; Seven Network Ltd v News Ltd (No 9) (2005) 148 FLR 1; and Brown v Health Services Union (No 4) [2012] FCA 1376, where Flick J stated at [44] that where affidavit evidence has been read in open court, access to such material should normally be allowed.

14    Counsel for the applicant stated that the applicant’s principal concern was that the other respondents who had not appeared at the hearing on Monday and Tuesday should have an opportunity to be heard. Counsel accepted that that opportunity had now been given, so that the applicant’s objection fell away.

15    Counsel for the first respondent submitted that there were considerations favouring at least withholding access to several exhibits to the affidavits, which it was submitted were relevant only to the underlying dispute between the parties which was the subject of the disciplinary process that was the subject of the interim orders, and which were not directly relevant to the issue that had been before the Court.

16    Counsel for the first respondent cited to me the decision of Pagone J in Deputy Commissioner of Taxation v Hawkins (2016) 341 ALR 255. In that case, a non-party sought access to documents that had been read by the Court for the purpose of ex parte proceedings. At p 259 [9] Pagone J stated –

Affidavits and exhibits which have been read in proceedings are treated as evidence that has been given orally in open court and should generally be available for inspection by anyone wishing to do so unless the interests of justice require otherwise. An affidavit which has not been read in open court is treated differently because it may never be admitted into evidence and may contain untested prejudicial material that would be unfair to a party to be available for inspection by virtue only of the fact that it had been filed in a court registry.

17    Pagone J then quoted from the reasons for judgment of Mortimer J in Oldham v Capgemini Australia Pty Ltd (2015) 241 FCR 397 at 401 [24]-[27] before stating –

The purpose and rationale for allowing inspection is at least in part to enable members of the public to see why and how the Court had disposed of matters before it. That will usually mean that materials which have been used or deployed by the court will be available for inspection by any member of the public unless there is a countervailing reason not to allow inspection: see Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [25]–[27]. Inspection will be allowed not because the party seeking inspection can show a right to the documents as against a party to the proceedings but because the workings of the Court should be open whatever may be the motive for the request to inspect.

18    Counsel for the first respondent also cited the decision of McLure J in Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192. In that case, McLure J identified at [27] the following factors that her Honour considered to be relevant to the exercise of a discretion under O 67 r 11(1)(d) of the Rules of the Supreme Court 1971 (WA) to permit a non-party to inspect and take copies of documents on a court file –

(a)    whether and if so to what extent the document has been referred to in open court;

(b)    the stage reached in the proceedings;

(c)    the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party);

(d)    the nature of the proceedings;

(e)    whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process;

(f)    the purpose for which access is required.

19    I note that applications to the Western Australian Supreme Court of the type made in Van Stokkum would now be governed by Order 67B of the Rules of the Supreme Court, which commenced on 1 March 2018. Under that Order, there are specific criteria for the consideration of an application by persons, including media representatives, for permission for access to information on court files. Under O 67B r 9, subject to some exceptions, the Court must give permission if satisfied that the application “relates to information or a record or other thing that was considered by the Court in the proceeding to which the application relates”.

20    Counsel for the first respondent developed submissions referrable to the factors identified by McLure J in Van Stokkum which, in summary, were as follows. First, at the hearing on 3 December 2018, counsel did not go to the substance of the charges against the applicant, and they were not specifically referred to in open court. Second, as to the stage of the proceeding, the hearing was an interlocutory hearing, and the evidence was unchallenged. Third, as to the content of the documents, the content was such that there may be damage to the private interests of a party, and public disclosure may have an impact on the private resolution of the matters in issue between the parties. Counsel also submitted that there may be injury to the reputation of the first respondent. Fourth, as to the nature of the proceedings, the content of the underlying allegations was not of prime relevance to the issues in dispute before the Court. Counsel noted that the Court’s reasons for judgment did not detail the content of the charges. Fifth, access to the documents was not necessary to understand the issues before the Court.

21    Counsel for the fifth and seventh respondents adopted the submissions of counsel for the first respondent.

22    I do not, with respect, consider that the guidance given by McLure J in relation to applications under O 67 r 11(1)(d) of the Western Australian Rules of the Supreme Court, as then in force, should be a starting point, or otherwise control the evaluation of applications made under r 2.32(4) of the Federal Court Rules. I consider that in evaluating an application under r 2.32(4) of the Federal Court Rules I should be guided by decisions of this Court. The decisions of this Court emphasise that access should ordinarily be given if a document has been read, or acted upon in open court. In my view, if an affidavit has been read in open court, consistency, and coherence of principle require that a contested application for access to the affidavit should ordinarily be guided by whether a non-publication or suppression order would be justified. This is why I am prepared to treat the parties’ opposition to giving access to the documents to the non-party as being applications for a suppression or non-publication order.

23    The only condition in s 37AG(1) of the Federal Court of Australia Act that reasonably falls for consideration in this case is whether a suppression or non-publication order is necessary to prevent prejudice to the proper administration of justice. It has been said on a number of occasions that the onus on a party seeking to persuade the Court to make an order on this ground is a heavy one. The precursor to Part VAA of the Federal Court of Australia Act was s 50 (now repealed) of the Act, which provided –

The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.

24    In Hogan v Australian Crime Commission (2010) 240 CLR 651 at 664 [30], the High Court said of the use of the word “necessary“ in s 50 of the Act, that it is “a strong word”. The Court cited the statement of Bowen CJ in Australian Broadcasting Corporation v Parish (1980) 29 ALR 228 that “[t]he collocation of the alternative phrase ‘security of the Commonwealth’ suggests Parliament was not dealing with trivialities.” That collocation remains in s 37AG(1)(a) and (b) of the Act. The High Court stated that “the administration of justice” spoken of in s 50 of the Act (cf, s 37AG(1)(a)) was that involved in the exercise by the Federal Court of the judicial power of the Commonwealth, and that this was a more specific discipline than broader notions of the public interest. The Court continued at [31] as follows –

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise“, the order appears to have one or more of those characteristics…

25    It has been said many times that mere embarrassment, inconvenience, annoyance, or unreasonable or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal (No 1) [2015] FCA 607 at [30]; Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 at [11]. As Perram J stated in Solahart Industries Pty Ltd v Solar Shop Pty Ltd (2011) 281 ALR 544 at 571 [116] in relation to s 50 of the Act and the risk of prejudice to the administration of justice (which in that case was the disclosure of commercially sensitive information)  –

[T]his risk must be real and the evidence compelling because the order reversing the ordinary principle of open justice is not to be made lightly. The requirement of s 50 is not inconvenience or suspicion or concern; it is necessity and only proof positive of necessity will enliven the power.

26    In this case, I am not satisfied that a suppression or non-publication order is necessary in the interests of the administration of justice to the high standard explained by the authorities. There was no evidence before me that directly addressed why a suppression or non-publication order would be necessary. The submissions made by counsel for the first respondent touched upon why publication might be inconvenient, or injurious to reputation, or why it might affect the parties’ consideration of the issues between them. But the case for the respondents did not focus on necessity in the interests of the administration of justice. I accept that, to an extent, the affidavits, and in particular the annexures that were the focus of the submissions in this application do not need to be available in order to understand the nature of this proceeding, because it was concerned with legal error and the arguments by the parties and the issues before the Court may appear sufficiently from the reasons: Conway v Fernandez [2018] FCA 1949. However, establishing that proposition falls short of demonstrating that it is necessary in the interests of the administration of justice to suppress the affidavits and annexures.

27    In my view, the grounds advanced by the respondents by way of objection to the non-party having access to the affidavits, would not be a sufficient basis upon which to make a suppression, or a non-publication order in relation to that affidavit evidence, or in relation to the annexures to the affidavits on which the submissions focussed. There is therefore no reason why the three affidavits and annexures, which have been received into evidence and acted upon in proceedings in open court, should not be made available.

28    I will therefore order pursuant to rule 2.32(4) of the Federal Court Rules that David Marin-Guzman, journalist of The Australian Financial Review, have leave to inspect the following documents –

(a)    affidavit of Paul Conway affirmed 30 November 2018;

(b)    affidavit of Antonia Sakkas affirmed 3 December 2018;

(c)    second affidavit of Antonia Sakkas affirmed 3 December 2018.

Associate:

Dated:    7 December 2018

SCHEDULE OF PARTIES