FEDERAL COURT OF AUSTRALIA

Nyangatjatjara Aboriginal Corporation & Ors v Registrar of Aboriginal Corporations

[2006] FCA 606

PRACTICE AND PROCEDURE – applications by non-parties to inspect documents on court file pursuant to Federal Court Rules, O 46 r 6 – principle of open justice –  public interest in proceedings – no exceptional circumstances justifying refusal of leave to inspect – leave granted.

Aboriginal Councils and Associations Act 1976 (Cth), ss 71, 73, 75

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 15(1)(a)

Federal Court of Australia Act 1976 (Cth), ss 17, 50

Federal Court Rules 1979, O 46 r 6

Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No 3) [2002] FCA 609 referred to

Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 referred to

Williams v Forgie [2003] FCA 991 referred to

Seven Network Ltd v News Ltd (No 9) (2006) 225 ALR 256 referred to

NYANGATJATJARA ABORIGINAL CORPORATION & ANOR v REGISTRAR OF ABORIGINAL CORPORATIONS

SAD 73 of 2006

BESANKO J 

23 MAY 2006 

ADELAIDE

THE COURT ORDERS THAT:

1.         Leave be granted to the Australian Broadcasting Corporation to inspect the affidavits of Mr Schrader dated 29 April 2006 and 3 May 2006, Mr Harbord dated 29 April 2006 and 3 May 2006 and Mr Armstrong dated 4 May 2006.

2.         Leave be granted to the Centralian Advocate to inspect the affidavit of Mr Armstrong dated 4 May 2006.

3.         Subject to payment of the prescribed fee, copies of the affidavits referred to in orders 1 and 2 of these orders be made available.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 1 May 2006, the Nyangatjatjara Aboriginal Corporation (“the Corporation”) and members of its governing committee brought an application for an order for review against a decision made by the Registrar of Aboriginal Corporations appointing an administrator to the Corporation under s 71 of the Aboriginal Councils and Associations Act 1976 (Cth) (“the Act”).  The application is brought pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”).

2                     Upon the appointment of an administrator, the office of the public office of the Corporation and all offices of the governing committee of the Corporation become vacant: s 73 of the Act.  The Administrator is responsible for the conduct and the affairs of the Corporation and, in addition, has the function and duties of the Public Officer: s 75 of the Act. 

3                     The decision of the Registrar is challenged on the grounds that it involved an error of law, was an improper exercise of the power conferred by s 71 of the Act and was made in breach of the rules of natural justice.

4                     The Corporation and other applicants applied for a suspension of the operation of the decision pending the determination of the application.  The Court is given the power to suspend the operation of the decision in s 15(1)(a) of the ADJR Act.

5                     I have granted interim suspensions of the operation of the decision, pending the filing of affidavits and the presentation of argument.  Both the applicants and the respondent have filed affidavits on the application for the suspension of the operation of the decision.  There were hearings on 1, 5 and 17 May 2006.  Those hearings were conducted in public, and there was no application to close the Court or restrict the publication of particular evidence (pursuant to ss 17 and 50 of the Federal Court of Australia Act 1976 (Cth)).

6                     Two non-parties applied for inspection of documents under O 46 of the Federal Court Rules 1979.  The Australian Broadcasting Corporation, by request dated 4 May 2006, sought leave to inspect the application for an order of review and the affidavits filed by both parties to that date, and the Centralian Advocate, by application dated 8 May 2006, sought leave to inspect the affidavits served by the Registrar.  To that point, the Registrar had filed one affidavit, namely the affidavit of Mr Peter Armstrong sworn on 4 May 2006.  Mr Armstrong was the delegate of the Registrar who made the decision to appoint an administrator to the Corporation.

7                     I heard argument on the applications on 5 May 2006.  The Corporation and other applicants opposed the applications.  On their behalf, it was submitted that the Corporation did not receive any government monies, and therefore there was little public interest in its application.  It was also submitted that one of the matters relevant on the balance of convenience in relation to its application for the suspension of the operation of the decision is the adverse publicity the appointment will have on the business interests of the Corporation and its related corporations.  An inspection of the documents and subsequent publication may cause similar harm and therefore prejudice that application. 

8                     The Registrar did not support or oppose the application, but her counsel helpfully referred me to three authorities relevant to the determination of the issue.

9                     On 17 May 2006, I granted leave to the Australian Broadcasting Corporation to inspect the affidavits of Mr Glendle Schrader, sworn on 29 April 2006 and 3 May 2006, Mr Graham Harbord, sworn on 29 April 2006 and 3 May 2006, and Mr Armstrong, sworn on 4 May 2006.  I also granted leave to the Centralian Advocate to inspect the affidavit of Mr Armstrong, sworn on 4 May 2006.

10                  The application by the Australian Broadcasting Corporation to inspect the application for an order of review presents no difficulty.  Under O 46, r 6(1) and (2), a person may search for an inspect an application or other originating process unless the court or a judge has ordered that a document is confidential.  Nothing was put forward by the Corporation or other applicants to support a conclusion that the application for an order of review should be considered confidential.

11                  With respect to the affidavits, O 46, r 6 provides that a non-party may not inspect an affidavit unless that party has the leave of the court or a judge.

12                  It should be noted at the outset that each of the affidavits that were the subject of my orders was relied upon by one or other of the parties to the application for a suspension of the operation of the decision.

13                  In Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No 3) [2002] FCA 609, Finkelstein J said (at [7]):

‘The question that I must resolve is what principle should be applied when deciding to allow inspection in cases where leave is required.  In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge.  In such a case, I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course.  It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved.  Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence.  Inspection should only be refused in exceptional circumstances.  I think that the position is fortiori when the material has been read by the judge in private and is not read out in court.  If that material is not made available for inspection then the manner in which the case is being conducted will only be known to the parties.  That is an unacceptable position.’

14                  This statement of approach has been referred to with approval in a number of cases: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408; Williams v Forgie [2003] FCA 991; Seven Network Ltd v News Ltd (No 9) [2006] 225 ALR 256. 

15                  The affidavits the subject of the order constitute material relied on by me.  The hearings have been open to the public and, in fact, a representative of the Australian Broadcasting Corporation was present in court on 5 May 2006.  There is a legitimate public interest in the Registrar’s decision to appoint an administrator to the Corporation, and in the issue as to whether the operation of that decision should be suspended.  The non-parties may publish a fair and accurate report of the proceedings which have taken place in court, and there is a good deal to be said for the submission made that access to the affidavits will only assist in terms of the fairness and accuracy of the report.  The affairs of the Corporation have already been the subject of publicity.  In that regard, I refer to the articles which have appeared in the Alice Springs News and the Centralian Advocate in late February and early March 2006.

16                  In light of these factors, the matters advanced by the Corporation and other applicants cannot be considered to be exceptional circumstances justifying a refusal of leave.

17                  It was for these reasons that on 17 May 2006 I granted leave for the inspection of the affidavits referred to above.

Associate:

Dated:              23 May 2006