In this matter the Court ordered that the interlocutory application be dismissed. [1] These reasons concerned an interlocutory application dated 8 June 2018 brought by the applicant, in the following terms:
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.
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.
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.
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 submission were available on the Commonwealth Courts Portal for the parties to read.
[2] The letter dated 23 May 2018 was in the following terms:
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:
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;
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 listed some 161 matters all of which are set out within this paragraph. [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 paragraph [6] of Ms Olsen’s affidavit affirmed 8 June 2018, set out at [7]. The active respondents to the present proceedings were notified of the interlocutory application but none chose to appear at the hearing of it.
The applicant’s submissions
[11] Reasoning by way of 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 the 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 r24.24, the applicant sought the listing of the hearing without notice.
The applicant submitted:
[14] that 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.
[16] While it was not necessary for the applicant to demonstrate the relevance of the documents sought in the applicant’s letter, 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.
The applicant further submitted at [17] that 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.
[18] The Court held that 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 and 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.
[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. [21] Having regard to the Olsen affidavit, the applicant submitted there were four categories into which the named proceedings might be allocated:
Proceedings determined by judgment following trial;
Proceedings determined by consent determination;
Proceedings currently pending before the Court;
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. [23] The Court observed that 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. [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.
Consideration
[32] The Court observed that 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. [33] Next, Robertson J was not persuaded that the purpose of the request by the applicant was forensically related to an issue that has arisen in the present proceedings. Indeed it was not clear to his Honour how the applicant would be advantaged by having access to all the reports and affidavits in the Schedule that the applicant seeks. Robertson J further noted that the orders made on 17 May 2018, which he reproduced at [9], did not provide for the applicant to file a fresh expert report. Additionally, it was 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] Thirdly his Honour found that it was 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
[36] – [38] Robertson J found that it is clear that the Registrar is not required to produce the document to the party seeking production of the document in the custody of the Court. Second, the Court has 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 v Colonial Mutual Life Assurance Society Limited [2013] FCA 1213 and International Litigation Partners Pte Ltd v Commissioner of Taxation [2014] FCA 671. Third, in his Honour’s 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.
[44] Robertson J found for the reasons provided at paragraphs [32]-[34] above, the Registrar should be excused from producing the documents in Court or at all. If the documents were to be produced, his Honour 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 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 v Capgemini Australia Pty Ltd [2015] FCA 1149, 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 substantively elaborates at [26]-[27]. 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.
[51] Robertson J accepted 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: however in this respect he repeated what he said at [33] above.
[52] The issue in the present case came 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] Robertson J found that 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. [54] Further, his Honour found that the request was disproportionate to its asserted purpose. [56] For these reasons His Honour refused leave to the applicant to inspect the documents listed in the Schedule and [58] dismissed the interlocutory application. Given the nature of the application and the non-participation in this application of the other parties to the present proceedings, His Honour made no order as to costs.