FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Cassimatis (No 4)

[2015] FCA 465

THE COURT ORDERS THAT:

1.    Inspection of four affidavits permitted.

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

REASONS FOR JUDGMENT

1    Levitt Robinson Solicitors act for Applicants in Lock v Australian Securities and Investments Commission NSD 1307/2014. They have applied under rule 2.32(4) of the Federal Court Rules 2011 (Cth) to inspect five affidavits filed in this proceeding brought by ASIC against Mr and Mrs Cassimatis. Although four of the affidavits were read in open court and the bulk of the fifth affidavit contains a transcript of a hearing in open court, Mr and Mrs Cassimatis oppose the inspection.

2    The application is made by reference to documents described on the court file. Based on the electronic record and dates on the court file the application seeks:

(1)    first affidavit filed by the Respondents dated 22 April 2015;

(2)    second affidavit filed by the Respondents dated 23 April 2015;

(3)    first affidavit filed by the Applicant dated 22 April 2015;

(4)    third affidavit filed by the Respondents dated 1 April 2015; and

(5)    second affidavit filed by the Applicant dated 13 March 2015.

3    The affidavits described at (1) and (2) were read in open court by senior counsel for the Respondents on 1 May 2015 (ts 14). The affidavit described at (3) was read in open court at the same hearing by senior counsel for the Applicant (ts 2). The affidavit described at (4) was described on 1 May 2015 in the respondents’ list of material provided in court as an affidavit filed on 2 April 2015. That was a reference to the affidavit at (4). Senior counsel for the respondents also read that affidavit in open court (ts 14).

4    The only affidavit that does not appear to have been read in open court is the affidavit at (5).

5    The solicitors for Mr and Mrs Cassimatis filed written submissions in opposition to the application for inspection. His submissions are essentially twofold:

(1)    Levitt Robinson Solicitors should have asked the solicitors for Mr and Mrs Cassimatis for the documents and provided the solicitors with information about the details of the request, the nature and issues involved in the Lock proceeding and the basis upon which the documents were sought. The solicitors for Mr and Mrs Cassimatis would then have sought assurances and undertakings from the solicitors for Mr and Mrs Cassimatis;

(2)    Some of the affidavit material contains information involving sensitive financial and personal circumstances of Mr and Mrs Cassimatis which is confidential in nature and ought not be in the public domain.

6    As to (1), remarks have been made on a number of occasions in these proceedings, both in court and in judgments, about the need for the legal representatives to consider carefully the proportionality of their actions taken including the potential legal costs incurred. The course that the solicitors for Mr and Mrs Cassimatis suggest (at (1) above) would have the potential effect of a substantial cost to their client and to Levitt Robinson Solicitors. In contrast, rule 2.32(4) of the Federal Court Rules 2011 (Cth) permits a person to apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. There is a simple form to complete. The procedure is designed to minimise cost. It might reasonably have been supposed by Levitt Robinson Solicitors that an application for inspection of affidavits which had been read in open court would not be opposed, especially in circumstances in which Rule 2.32(2)(m) entitled them, without leave, to inspect a transcript of a hearing in open court.

7    As for objection (2) made by Mr and Mrs Cassimatis’ solicitors, the bald assertion of confidentiality was not particularised in any respect. No reference was made to any paragraph of any affidavit which was said to be confidential. No explanation was made for why the information that it was said “ought not be in the public domain” had been read in open court. No submission was made about why no part of any of those affidavits was sought to be redacted or marked confidential when they were read in open court. No justification was asserted for why inspection should be refused for the whole of the four affidavits read in open court even though there might be some (unspecified) confidential information in them.

8    It may be that there was some misunderstanding by the solicitors (although not senior counsel who appeared and read the affidavits) about the common practice of counsel announcing in court that an affidavit was “read”. Historically, an affidavit was required not to contain any “unnecessary matter” at the penalty of a costs order (Chitty T (ed), Archbold’s Practice of the Court of Queen’s Bench (7th ed, Sweet and Stevens, 1840) p 1208). Nevertheless, the mass of material often contained in affidavits gave rise very early to a compromise in civil proceedings between efficiency and wholly open justice. Joseph Chitty observed in 1835 (Chitty J, The Practice of Law in all its Departments (Henry Butterworth, 1834) p 547) that since 1816 in King’s Bench a compromise was that:

the practice of any officer or counsel reading the affidavits verbatim to the Court had ceased, excepting that Topping KC still insisted, in weighty or important cases, in continuing the practice; and on the Crown side, where parties are brought up for judgment, the affidavits for and against the prosecution are still usually read to the Court.

9    The approach which persists today in civil proceedings is that when counsel announces in open court that an affidavit will be “read” the judge will rarely require counsel to read aloud every paragraph of the affidavit. Instead, the announcement that the affidavit is “read” will usually be taken by the judge as deeming all the words in the affidavit to be treated as though they had been read aloud. This permits the efficient conduct of litigation, although it has the effect that a person sitting in open court might find it difficult to follow the detail of the proceeding.

10    Inspection should be permitted of affidavits (1) to (4), which were “read” in open court, and about which there was no suggestion in court of any confidentiality. Mr and Mrs Cassimatis did not, and do not, apply for any of the material in the affidavits to be removed or redacted. The concept of open justice generally requires transparency and accessibility of legal proceedings. Non-parties who wish to follow a proceeding should usually be able to attend the court and follow the detail of the affidavits that are “read” in open court.

11    As for affidavit (5), it is difficult to see why inspection of this document is opposed by Mr and Mrs Cassimatis. The bulk of the document is a transcript of a directions hearing on 9 December 2014. Levitt Robinson Solicitors are entitled to inspect that transcript under Rule 2.32(2)(m). However, the affidavit also exhibits correspondence between the legal representatives about the discovery process and it may be that a decision was made, for some forensic reason rather than merely reasons of efficiency, not to read this affidavit in court. I will not grant leave for document (5) to be inspected.

Associate:    

Dated:    14 May 2015