FEDERAL COURT OF AUSTRALIA

Burragubba on behalf of the Wangan and Jagalingou Peoples v State of Queensland (No 2) [2018] FCA 1031

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 8 June 2018 is dismissed.

2.    There is no order as to costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    These reasons concern an interlocutory application dated 8 June 2018 brought by the applicant, in the following terms:

1.    That pursuant to rule 24.24, the Registrar is directed to produce documents falling within the description in the letter from Ms Andrea Olsen dated 23 May 2018 (the Applicant Letter) at the Brisbane Registry of the Court within 28 days of the date of this Order.

2.    That the solicitor on the record for the Applicant may attend at the Brisbane Registry of the Court, on such dates and at such times as agreed with the Registry staff, to inspect and copy any or all of the documents produced pursuant to Order 1.

3.    In the alternative to Orders 1 and 2, that, pursuant to rule 2.32(4), the Applicant be granted leave to inspect and copy documents falling within the description in the Applicant letter.

4.    That, for the purposes of Orders 1 – 3, the entitlement to inspect and copy documents may be satisfied by the Registry delivering electronic copies of any or all of the relevant documents to the solicitor on the record for the Applicant.

The interlocutory application stated that it was not intended to serve any other party, but the Court notified the active respondents that the interlocutory application, the affidavit in support and the applicant’s written submissions were available on the Commonwealth Courts Portal for the parties to read.

2    The letter dated 23 May 2018 was in the following terms:

…

I refer to the above proceedings pending in the Queensland Registry of the Federal Court.

Pursuant to r 24.24(1) of the Federal Court Rules 2004 (sic) (Cth), the applicant in the above proceedings seeks production of the following documents in the custody of the Court:

(1)    Any document entitled or styled as an “expert report” (or words to that effect) filed by any party in a proceeding listed in the Schedule;

(2)    Any affidavit annexing or exhibiting any document entitled or styled as an “expert report” (or words to that effect) filed by any party in a proceeding listed in the Schedule, including any annexures and exhibits attached to any such affidavit.

The applicant requests the proceeding be listed for a directions hearing, without notice to any other party, before a Judge of the Federal Court at Brisbane on 7 or 8 June 2018. The applicant further requests that, pursuant to r 24.24(2), you produce the aforementioned documents in Court at such hearing as listed.

Upon your production of the aforementioned documents, the applicant intends to seek directions from the Court for the applicant’s legal representatives to have permission to inspect and copy those documents.

…

3    The Schedule was in the following terms, listing some 161 matters:

4    This was said to be a list of the current and historical native title determination applications and approved determinations of native title which Ms Andrea Lynn Olsen, a solicitor employed by Queensland South Native Title Services Limited (QSNTS) and the solicitor on the Federal Court record for the present native title determination application (QUD 85 of 2004), compiled from the information provided to her by Mr Jeff Harris, a cartographer, as explained in [6] of Ms Olsen’s affidavit affirmed 8 June 2018, set out at [7] below.

5    As I have said, the active respondents to the present proceedings were notified of the interlocutory application but none chose to appear at the hearing of it. The parties to the applications listed in [3] were not so notified although, perhaps, government parties to those proceedings were aware of the interlocutory application because they were also parties to the present proceedings.

The statutory provisions

6    The two rules of the Federal Court Rules 2011 (Cth) referred to in the interlocutory application are in the following terms:

24.24    Documents and things in custody of Court

(1)    A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing, identifying the document or thing.

(2)    If the document or thing is in the custody of the Court, the Registrar must produce the document or thing:

(a)    in Court or to any person authorised to take evidence in the proceeding, as required by the party;

(b)    as the Court directs.

(3)    If the document or thing is in the custody of another court, the Registrar must:

(a)    ask the other court to send the document or thing to the Registrar; and

(b)    after receiving it, produce the document or thing:

(i)    in Court or to any person authorised to take evidence in the proceeding as required by the party; or

(ii)    as the Court directs.

2.32    Inspection of documents

(1)    A party may inspect any document in the proceeding except:

(a)    a document for which a claim of privilege has been made:

(i)    but not decided by the Court; or

(ii)    that the Court has decided is privileged; or

(b)    a document that the Court has ordered be confidential.

(2)    A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)    an originating application or cross claim;

(b)    a notice of address for service;

(c)    a pleading or particulars of a pleading or similar document;

(d)    a statement of agreed facts or an agreed statement of facts;

(e)    an interlocutory application;

(f)    a judgment or an order of the Court;

(g)    a notice of appeal or cross appeal;

(h)    a notice of discontinuance;

(i)    a notice of change of lawyer;

(j)    a notice of ceasing to act;

(k)    in a proceeding to which Division 34.7 applies:

(i)    an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)    an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

(l)    reasons for judgment;

(m)    a transcript of a hearing heard in open Court.

Note:    Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

(3)    However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)    be confidential; or

(b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note:    For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

(4)    A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

(5)    A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

(a)    is entitled to inspect the document; and

(b)    has paid the prescribed fee.

Note 1:    For the prescribed fee, see the Federal Court of Australia Regulations 2004.

Note 2:    If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.

Note 3:    For proceedings under the Trans-Tasman Proceedings Act, see also rule 34.70.

The evidence

7    The evidence in support of the application, the affidavit of Ms Andrea Lynn Olsen affirmed 8 June 2018, stated:

…

2.    On 1 December 2016, the Applicant filed in Court the affidavit of Mr Ray Wood, Consultant Anthropologist. Annexed to the affidavit was Mr Wood’s report entitled “Anthropological Report: Wangan-Jagalingu Native Title Application” and dated 29 November 2016 (“Wood 2016”).

3.    At paragraph 52 of Wood 2016, Mr Wood states his opinion that the area claimed in the Proceeding falls within an area he refers to as the “Maric bloc”. A depiction of the claim area within the broader Maric bloc is included in paragraph 52 and is labelled “Map 1: Maric Queensland (after Dixon 2004) and Claim Area” (“Maric Qld Map”). A copy of the Maric Qld Map as it appears in Mr Wood’s report is annexed to this affidavit and marked “ALO-1”.

4.    On 17 May 2018, the Proceeding was listed for a case management hearing before Justice Jagot. At the hearing, her Honour, advised the parties of an idea for a process of early neutral evaluation of the Proceeding.

…

6.    On 23 May 2018, I asked Mr Jeff Harris, a cartographer employed by QSNTS to provide information on all current and historical native title determination applications and all approved determinations of native title within the area depicted in the Maric Qld Map. I am informed by Mr Harris, and I believe it to be true, that Mr Harris obtained the information requested by conducting a spatial analysis of the Maric Qld Map against the National Native Title Tribunal’s (“the Tribunal”) National Native Title Register, the Tribunal's current schedule of applications and the historical native title applications held by the Tribunal as at the date they were dismissed or withdrawn or otherwise finalised.

…

8    According to the uncorrected transcript her Honour said, in the course of a Case Management Hearing on 17 May 2018:

Now, the last thing- and this really is - it will be totally left field from the parties’ point of view, and, really, this is just a germ of an idea in my mind, and I’m not asking the parties to do anything other than take away this germ of an idea and at some appropriate point, which probably will not be until you’ve actually go the next joint report, think about it. Now, I’m aware that this matter has been heavily mediated and had a lot of case management before various registrars. Certainly, when I read the last joint report, an idea that occurred to me - and it may not be appropriate, having regard to the further evidence and whatever is going to happen - is that would this be a matter where the technique of a form of neutral evaluation on the basis of some agreed position, taking the applicant’s evidence at its highest, in theory, might be appropriate.

Now, that’s just the idea. It would have to be before some external person who would be willing to do it and appropriate to do it, but there are various possibilities for that. I’m not aware that this technique has been used in native title matter, but this might be a matter that calls for it. Now, that links into another germ of an idea, which is that as I understand it, there are possibly - well, this matter may raise issues of the regional nature of societies up in that area, and there are a number of other matters in the court which are not quite as far advanced as this matter which may well raise the same kind of issues, that is, the regional society and how possibly a subset of that regional society might relate to a particular area within a broader region.

I don’t say anything more than that because we’re getting more evidence, and, frankly, I hadn’t had a chance to go through even the existing evidence to any great extent, other than the joint report. But that issue, if it exists in a way that is critical, then maybe neutral evaluation might be a good idea, possibly, for this matter, which is further advanced than the other matters. I can’t really say any more than that at this stage, but there may be benefit in that. Anyway, so that will be an idea that I keep in mind once we get all the further material, have all had an opportunity to read it and work out where we sit. Now, have you got another - you've got the - so, yes. That’s fine. Well, look, we will work out - we will work out a date for the next case management hearing after we’ve all go the reports and had a chance to read them.

9    The orders made by her Honour on 17 May 2018 were, relevantly:

1.    …

Connection material - Applicant

2.    By (8 June 2018) the Applicant must file a further list of witnesses (both lay and expert):

(a)    identifying all additional witnesses (both expert and non-expert) upon whose evidence the Applicant will rely for any issue apart from extinguishment that are not identified in the list filed on 27 October 2017; and

(b)    identifying any witnesses included in the 27 October 2017 list that the Applicant no longer intends to rely upon.

3.    On or before (8 June 2018) the Applicant must provide to the State the material requested by the State in correspondence from Crown Law dated 15 May 2018.

Expert Witness Conference

4.    On or before (8 June 2018) the Applicant must provide to the State a list of issues for consideration by the expert witnesses at an experts conference to be convened on a date to be fixed pursuant to order 11.

5.    On or before (29 June 2018) the State must provide to the Applicant a response to the list of issues prepared pursuant to order 4, including any additional issues it seeks to be considered.

6.    On or before (6 July 2018) the Applicant and the State are to identify to each other as to which expert witnesses ought attend and participate in the experts conference.

7.    The Applicant and the State are to use their best endeavours to reach agreement in relation to the list of issues and the experts to participate in the conference of experts.

8.    By (13 July 2018) the Applicant and the State must provide to the Registrar of the Court:

(a)    an agreed list of issues;

(b)    if there is not agreement on the content of the list of issues, each party is to provide the list of issues it submits should be provided to the expert witnesses for consideration;

(c)    an agreed list of which experts ought attend and participate in the conference of experts;

(d)    if there is not agreement as to which experts ought attend and participate in the conference of experts, each party is to provide the list of experts who it submits should attend and participate in the conference

9.    To the extent that order 8(b) and/or 8(d) applies the matter will be listed for a case management hearing before the trial Judge to settle the list of issues for, and participants in, the joint conference of experts.

10.    The State may file a further expert report by Dr Pannell or an expert either agreed pursuant to order 8(c) or the subject of an order contemplated by order 9 two weeks before the conference of experts required by order 11.

11.    On or before 31 August 2018, the expert witnesses who are to attend a two day conference(s) of experts (in accordance with the expert evidence Practice Note), whether pursuant to order 8(c) or an order contemplated by order 9, must attend at and participate in such a conference before a Registrar of the Court for the purpose of narrowing or removing any differences in their relevant opinions, and the experts with the assistance of the Registrar shall produce for the use of the parties and the Court a joint report identifying with respect to matters and issues within their expertise:

(a)    the matters and issues about which their opinions are in agreement;

(b)    the matters and issues about which their opinions differ; and

(c)    where their opinions differ the reasons for their difference.

12.    After the joint conference convened pursuant to order 11, no party may file any further expert report without leave of the Court.

13.    The proceeding be listed for a case management hearing before the trial judge on a date to be fixed by the Court and notified to the parties, no earlier than fourteen days after delivery to the Applicant and State of the joint report referred to in order 11.

The applicant’s submissions

10    In written submissions on behalf of the applicant dated 8 June 2018, it was submitted as follows.

11    Reasoning by analogy to the hearing by the Court of an application for leave to issue a subpoena under r 24.01, upon production by the Registrar of any documents requested under r 24.24(1), the Court may make directions for access (by way of inspection or copying) without more, or the Court may conclude it should hear from any other person or party before granting such access, or the Court may grant access subject to any notice from any party objecting to such access following service by the requestor by a certain date. Those courses turn upon any particular directions to be made by the Court, however, and only upon the Court first hearing from the requestor on any question of what directions should be made.

12    Further, the applicant submitted, in the circumstances of the present case, the applicant was conscious of statements made by this Court affirming the need to observe the requirements of s 37M of the Federal Court of Australia Act 1976 (Cth) in native title proceedings in particular: Agius v South Australia (No 4) [2017] FCA 361 at [84]-[85] per Mortimer J. Given the costs which might be unnecessarily borne by other parties should they be required to attend at the first mention of its application for directions under r 24.24, the applicant sought the listing of the hearing without notice.

13    Rule 24.12(2)(b) prohibited the issuance of a subpoena requiring the production of a document or thing in the custody of the Court. Rule 24.24 “provides an alternative procedure to the issuing of a subpoena where the relevant documents are already in the custody of the Court”: Fewin Pty Ltd v Burke [2016] FCA 503 at [70(3)] per Markovic J.

14    The applicant submitted there was scant relevant case law by reference to which the criteria for the making of directions permitting a requesting party access to documents in the custody of the Court itself, as opposed to the custody of a different court, had been set down. In Graham v Colonial Mutual Life Assurance Society Ltd [2013] FCA 1213; 216 FCR 458, McKerracher J considered factors relevant to exercising the power with respect to requesting documents from the Family Court in a child-related proceeding. The approach of the Court in that case was plainly distinguishable on that basis.

15    In International Litigation Partners Pte Ltd v Commissioner of Taxation [2014] FCA 671; 317 ALR 708, Jagot J dismissed a request by the Commissioner to inspect documents from the Family Court in relation to documents that also involved child-related issues. Her Honour stated (at [14]):

While I accept, in accordance with Graham and the authorities referred to therein, that the test is not one of relevance, the exercise of discretion must still involve weighing the likelihood of the Family Law file disclosing to the commissioner anything of any real utility against the interest in preserving the confidential and personal nature of the documents contained in the file. In this respect, particular regard must be had to the fact that Mr Lindholm is not a party to this proceeding. While he is referred to in and relevant to the proceeding, he is not a party. This is a relevant distinguishing factor from the circumstances in Darling [Commissioner of Taxation v Darling [2014] FamCAFC 59; 285 FLR 428]…

16    The applicant submitted that while it was not necessary for the applicant to demonstrate the relevance of the documents sought in the applicant’s letter, it was plain, having regard to the comments made by Jagot J, there was concern about the level at which the description of “society” was pitched in this proceeding, and how that society might be constituted. The documents sought were expressly relevant to further consideration of the nature and extent of the relevant society in the context of the broader region.

17    The applicant submitted there was a strong likelihood that the expert reports filed in the proceedings listed in the schedule to the applicant’s letter would be of “real utility” to those issues, and to the matters in issue in the applicant’s case. In contrast to the position in International Litigation Partners, the Court was not concerned with “preserving the confidential and personal nature of the documents”. The expert reports would necessarily be the product of anthropological research, generally premised on sources already publicly available, and prepared and authored in the expectation that its contents would be made public.

18    Leave to inspect documents was not the language of the rule. The language of “leave” was common in rules of court and r 24.24 appeared to be a deliberate departure from that language. Had such a requirement been contemplated, such language could have been used. While an applicant for directions under r 24.24(2) might have a practical and persuasive onus to obtain a favourable exercise of the discretion to make directions in the terms sought, such an applicant need not surmount a hurdle of obtaining permission to inspect the documents.

19    The applicant submitted that given the apparent difficulty with the procedure under r 24.24, the applicant now sought leave under r 2.32(4). The rule stated: “A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.”

20    There was no requirement, the applicant submitted, to serve any other party to the present proceeding, or any party to any of the proceedings in which the document for which leave was sought was filed. Rule 2.32 itself was premised on the notion that a “person”, rather than a “party”, may make an application, such that it may even be made outside the context of a pending case.

21    Having regard to the Olsen affidavit, the applicant submitted there were four categories into which the named proceedings might be allocated:

(a)    Proceedings determined by judgment following trial;

(b)    Proceedings determined by consent determination;

(c)    Proceedings currently pending before the Court;

(d)    Proceedings terminated prior to any determination by the Court.

22    The applicant submitted that the power to permit inspection under r 2.32(4) was discretionary: Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; 241 FCR 397 at [24] per Mortimer J. The prima facie position under r 2.32(4), therefore, was that some reason needed to be shown for the grant of leave: Mann v Malaysian Airline System Berhard [2017] FCA 1118 at [5](a) per Perram J.

23    The open justice principle would provide sufficient reason where an affidavit had been “used” or “deployed” in open court, and that would usually have occurred where an affidavit was “read”, insofar as an announcement that an affidavit is “read” was usually taken as deeming all the words in the affidavit to be treated as though they had been read aloud: Baptist Union of Queensland v Roberts [2015] FCA 1068; 241 FCR 135 at [28] per Rangiah J. See also Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [8]-[9] per Edelman J.

24    The applicant submitted that in circumstances where documents played no role in the conduct of proceedings in open court, in contrast, there was generally no occasion to justify granting access to a non-party to any of that material: Reynolds v JP Morgan Administrative Services Australia Ltd (No 2) [2011] FCA 489; 193 FCR 507 at [27] per Rares J; Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [18] per Mortimer J. That was not, however, an absolute prohibition. With respect to affidavits filed in a proceeding that were not read in open court, the applicant referred to Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; 241 FCR 397 at [27] per Mortimer J. See [46] below.

25    As to the category in [21(a)] above, the applicant submitted the judge who published reasons for judgment in determination of the proceedings would have had regard to the affidavit evidence of those experts called by the parties. Such affidavits having been read in open court, there should be no prohibition against access to them.

26    As to the category in [21(b)] above, the applicant referred to Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 at [10] and submitted that at least with respect to determinations of native title made by consent under either ss 87 or 87A of the Native Title Act 1993 (Cth), where the Court published reasons for judgment to demonstrate its satisfaction as to the matters stated in those provisions, it was implicit if not explicit the relevant Judge would have had regard to the expert reports filed, or annexed to affidavits filed, in those proceedings. This was so even if the Court did not expressly identify those affidavits in its reasons. On that basis, the applicant should be granted access to such expert reports, irrespective of whether the Court had expressly referred to them, or otherwise incorporated them by reference, into the reasons for judgment.

27    As to the category in [21(c)] above, the applicant referred to Healey v Rubynet Pty Ltd [2015] FCA 695, especially at [23]. The applicant submitted that although the judgment did not delve into any relevant discussion of principle, there may be some analogy between the proper approach of the Court in native title proceedings and those in patent proceedings, such as in Apotex Pty Ltd v Pfizer Ireland Pharmaceuticals [2014] FCA 1150; 109 IPR 422.

28    With due circumspection in drawing such an analogy, both types of proceedings were directed to rights having a public dimension, such that the proper ventilation of claims might transcend any individual proceeding. Further, in Hawkins Pagone J distinguished Hewson v Gothard [2014] FCA 320; 222 FCR 59 at [71] where inspection was declined by Foster J. Although an analogy might be drawn between the paradigm expressed by Foster J and native title proceedings (insofar as “X” might be construed to refer to the State), having regard to the special nature of native title proceedings recognised by the Court, and especially the nature of the resultant determination as a judgment in rem rather than in personam, the purpose and function of such proceedings might be properly distinguished from Hewson.

29    To the contrary, the applicant submitted, there was every reason to think the circumstance that the State otherwise had access to such documents that the applicant should, to be put on an even footing, have due access to expert reports filed but not yet read. Such a factor ought to militate in favour of the exercise of the discretion to permit inspection. On that basis, the applicant should be granted leave to inspect documents yet to be read in pending proceedings.

30    The applicant withdrew its written submission as to the State having broad access to such documents and submitted orally that once the implied undertaking was disengaged, the State could use the material in other litigation. A non-party would have no knowledge of the existence of that document but should be on an even footing in that respect.

31    As to the category in [21(d)] above, the applicant submitted that similar observations may be made with respect to such proceedings as advanced with respect to pending proceedings. Indeed, the applicant submitted, it was often the case that one particular native title proceeding might be terminated, but a substantially similar claim re-agitated under the guise of different proceedings. The same factors that militated in favour of the grant of leave in relation to pending cases applied equally in the context of terminated proceedings.

Consideration

32    The first matter to be noticed is the very large number of files listed in the Schedule to the 23 May 2018 letter, some 161 matters: see [3] above.

33    Next, I am not persuaded that the purpose of the request by the applicant is forensically related to an issue that has arisen in the present proceedings. Indeed it is not clear to me how the applicant would be advantaged by having access to all the reports and affidavits in the Schedule that the applicant seeks. I note that the orders made on 17 May 2018, which I have reproduced at [9] above, do not provide for the applicant to file a fresh expert report. Additionally, it is not clear that whatever it may be the applicant may seek to establish could not be established more efficiently and economically by other evidentiary means.

34    Third, it is not suggested that the non-government parties to the proceedings listed in the Schedule have been consulted. It is not known whether any of the material sought is or is claimed to be confidential.

Rule 24.24

35    I turn first to consider r 24.24 of the Federal Court Rules.

36    One thing that is clear about the rule is that the Registrar is not required to produce the document to the party seeking production of the document in the custody of the Court.

37    Second, the Court has a discretion whether or not to allow access to the document to the party seeking production. It was the question of whether inspection should be allowed which was addressed in Graham and in International Litigation.

38    Third, in my view it follows from the terms of r 1.34 that the Court may dispense with compliance with the rule and lift what would otherwise be the Registrar’s obligation under r 24.24 to produce the document in Court or as the Court directs. If there be an analogy between r 24.24 and a subpoena, then r 1.34 would stand in the place of r 24.15 whereby the Court may set aside a subpoena in whole or in part. Rule 1.40 provides that the Court may exercise a power mentioned in these Rules on its own initiative.

39    I note that in A2 v Australian Crime Commission [2006] FCA 27, a decision under the previous rule, order 27 rule 13, Allsop J proceeded by reference to a discretion and by reference to forensic purpose. His Honour refused the application for production of affidavits from the Local Court of New South Wales saying, at [4]: “I am not persuaded at all that there is any real issue by way of factual debate or dispute which has been identified which would justify the step of the production of the documents before the issuing officer”, being the officer who issued certain search warrants.

40    In Graham, the question was whether access should be given to a file held by the Family Court of Western Australia, the Principal Registrar of that court having forwarded the file to the Federal Court in response to a request from a Deputy Registrar of the Court pursuant to r 24.24. Justice McKerracher refused the application to inspect the Family Court of Western Australia file. His Honour said at [11(e)] that it must be clear that some specific utility would be produced by the inspection.

41    International Litigation also concerned access, being access to documents in proceedings in the Family Court of Australia. The proceedings in the Federal Court were a tax appeal. The file was produced to the Federal Court following a request by the Commissioner. The Family Court file was in proceedings between Mr Paul Lindholm and his former wife. Justice Jagot requested the Registrar of the Federal Court to notify both Mr Lindholm and his former wife of the Commissioner’s application. Mr Lindholm’s former wife did not object to access being granted but Mr Lindholm opposed the Commissioner’s application. The Commissioner submitted that there was utility in his being able to inspect the Family Court file “as it may shed light on Mr Lindholm’s activities.”

42    At [14], Jagot J said that the exercise of discretion involved weighing the likelihood of the Family Court file disclosing to the Commissioner anything of any real utility against the interest in preserving the confidential and personal nature of the documents contained in the file. Her Honour said that particular regard must be had to the fact that Mr Lindholm was not a party to the tax appeal. Her Honour said, at [15], it was pure speculation on the Commissioner’s part to surmise that the file might contain some relevant information. At [16], her Honour said as follows:

For these reasons, I am not satisfied that the commissioner has presented a rational foundation for inferring that such additional utility as there might be in the commissioner inspecting the Family Law file outweighs the interest of Mr Lindholm in maintaining the confidential status of that file or, indeed, the public interest that must exist in such confidentiality being maintained. The fact that Mr Lindholm’s former wife does not object to access is a relevant consideration, but the fact also remains that Mr Lindholm does object to that access, and his grounds of objection, in all of the circumstances, are persuasive.

43    It does not appear that A2 v Australian Crime Commission was cited to their Honours in either Graham or International Litigation. Nevertheless, I see no inconsistency in approach. A2 seems to have concerned an earlier procedural stage in that the file had not then been produced to the Federal Court.     This distinction is not of present relevance in that the files in question are files of this Court.

44    In my opinion, in the circumstances outlined in [32]-[34] above, the Registrar should be excused from producing the documents in Court or at all. If the documents were to be produced, I would refuse leave to the applicant to inspect those documents.

Rule 2.32

45    Rule 2.32(1) applies to a party in the proceeding. The present applicant is not a party to any of the proceedings listed in the Schedule. Neither are the present non-government respondents. However, a person who is not a party may inspect documents of the kind specified in r 2.32(2). It was accepted by counsel for the applicant that none of the documents sought, that is, any “expert report” filed by any party in a proceeding listed in the Schedule, or any affidavit annexing or exhibiting any “expert report” filed by any party in a proceeding listed in the Schedule, falls within r 2.32(2). This leaves to be considered r 2.32(4), which confers a discretion on the Court to grant leave to a non-party to inspect a document that that person is not otherwise entitled to inspect.

46    In Oldham [2015] FCA 1149; 241 FCR 397, Mortimer J rejected an application for non-party access to inspect the complaint made by Ms Oldham, the applicant in the proceedings in the Federal Court, to the Australian Human Rights Commission. A copy of Ms Oldham’s complaint was lodged with the originating application in the proceeding in accordance with the requirements of r 34.163 of the Federal Court Rules. Her Honour said, at [24] that a member of the public is entitled to see those documents which will enable the person to understand what a proceeding in this Court is about and how the parties’ respective cases are framed. Her Honour continued, at [26]-[27] as follows:

The entitlement of the public to be present when evidence is given in a proceeding (read with the underlying principles apparent in ss 17 and 37AE of the Federal Court Act) would suggest, subject to any competing discretionary considerations, that an affidavit which is “read“ in a proceeding, and thus treated as if that evidence had been given orally in open court, should be made available for inspection: see Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [6]–[10], per Edelman J. An affidavit which is read is thus in no different position to oral evidence-in-chief given by a witness. To permit inspection of such an affidavit is consistent with inspection of transcript being available without leave under r 2.32(2)(m).

An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person’s evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection.

Her Honour concluded that the complaint fell into none of those categories.

47    Her Honour also took into account, at [39], the reason access was sought, saying that, in a given case, a person’s reasons for requesting access to a document may provide a powerful discretionary consideration.

48    In Hawkins, Pagone J granted non-parties leave to inspect “all documents, including affidavits and exhibits, filed in the proceeding on or before 21 December 2015” and said, at [7] that the ability of members of the public, whether or not they have an interest, to have access to court documents is an important aspect of the general principle of open justice. His Honour continued:

The ability to enjoy the incidents of open justice, including the right to (sic) ability to inspect documents, is not dependent upon a person having a specific legal right in relation to the proceeding or in relation to the parties to the proceeding. Similarly the enjoyment of those incidents is not limited to those with a disinterest (sic) curiosity in the proceeding or the administration of justice more generally.

49    At [8], Pagone J cited Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 where McLure J said at [27]:

Where an application for access under O 67 r 11(1)(d) of the Rules is based on the principle of open justice it is necessary to have regard to the purpose and rationale of that principle and how it informs and affects related legal principles. Factors relevant to the exercise of the discretion in such circumstances include:

(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.

50    This approach expressly involves an examination of the documents in question before permitting inspection.

51    I accept that a party engaged in litigation has a legitimate interest in inspecting documents which contain information relevant to the issues in the litigation which that party is involved: Rambal (atf The Vikas Rambal Family Trust) v Oswal (atf The Burrup Trust) [2014] WASC 86 at [9]. In this respect however I repeat what I have said at [33] above.

52    The issue in the present case comes down to a balance between giving unlimited scope to the principle of “open justice” to which r 2.32 is referable, on the one hand, and to limited resources on the other hand, including the factors in the overarching purpose stated in s 37M of the Federal Court of Australia Act 1976 (Cth).

53    The scope of the request would, on its face, impose very substantial burdens on the Court and on the parties to the litigation listed in the Schedule. Whether or not a party to any litigation listed in the Schedule, once notified of the application, would wish to make or maintain a claim for confidentiality of the whole or part of the material sought by the present applicant is an aspect of the issue of resources to which I have referred. This would not be cured by the applicant’s position that the applicant did not propose to seek access to documents in respect of which there are extant non-publication orders.

54    Further, the request is disproportionate to its asserted purpose. I do not accept that there is reason to think that the society in this case may be better stated or the claim properly put if access were granted to the material sought.

55    Speaking generally, I consider that the wider the scope of an application and the older the material, the less weight may be given to the public interest in open justice: see Van Stokkum at [27(e)] set out at [49] above. In the present case, that balance does not favour the grant to the applicant of leave to inspect the documents listed in the Schedule.

56    For these reasons I refuse leave to the applicant to inspect the documents listed in the Schedule.

General

57    I note that in respect of each rule, counsel for the applicant stated that the applicant was prepared to accept that any documents to which the applicant was given access would be subject to the implied undertaking considered in Hearne v Street [2008] HCA 36; 235 CLR 125, but that proposed undertaking does not affect my analysis.

Conclusion and orders

58    I dismiss the interlocutory application. Given the nature of the application and the non-participation in this application of the other parties to the present proceedings, I make no order as to costs.

Associate:

Dated:    11 July 2018