In civil litigation before the Federal Court of Australia there is a process through which parties “may inspect documents” that are discovered in the proceedings, subject to very few exceptions. Non-parties who for whatever reason are interested in inspecting documents relevant to a proceeding before the Federal Court also enjoy a limited right to inspect them.
Rule 2.32 – Federal Court rules – request to inspect documents
Rule 2.32 of the Federal Court Rules 2011 (Cth) provides:
“(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.“
From the above rule it is clear that nearly every document filed in a proceeding will be made available to a party related to that matter. The position is not so clear, however, when the person seeking to inspect a document filed in a proceeding is not a party to that proceeding.
Non-party request to inspect documents
Non-parties to proceedings similarly enjoy substantial rights to inspect particular documents filed in the registry, including per rule 2.32(2):
- an originating application or cross-claim;
- a notice of address for service;
- a pleading or particulars of a pleading or similar document;
- a statement of agreed facts or an agreed statement of facts;
- an interlocutory application;
- a judgment or an order of the Court;
- a notice of appeal or cross-appeal;
- a notice of discontinuance;
- a notice of change of lawyer;
- a notice of ceasing to act;
- reasons for judgment; and
- a transcript of a hearing hear in open court.
What is not included in the above list are affidavits filed in proceedings. This is an interesting omission because affidavits generally contain direct evidence of the parties or persons related to the proceeding. Expert reports can be attached as exhibits to affidavits. It could be the case that, absent having access to inspect an affidavit, particularly interesting information on the Court file might be missed by a non-party seeking to inspect documents.
In order to access affidavits and other documents not mentioned in the above list, a non-party may apply to the Court for leave to inspect a document that they are not otherwise entitled to inspect.[1] In determining whether to grant leave to a non-party to inspect a document not covered by rule 2.32(2), the Court in Conway v Fernandez (No 2) [2018] FCA 1975 considered (at [8]) section 17(1) of the Federal Court of Australia Act 1976 (Cth) (Act) which provides:
“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.”
The Court read that section together with section 37AE of the Act, entitled safeguarding public interest in open justice, which 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.”
The end result of that consideration by the Court seems to be that the principles of open justice are of paramount importance to the court. The opportunity for the public, including non-parties, to be able to view, understand and scrutinise the court’s processes was held to be essential to public trust and confidence in the court.[2]
In the case of Baptist Union of Queensland v Roberts [2015] FCA 1068 the Court held at [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.”
Returning to the example of an affidavit, the Court in Deputy Commissioner of Taxation v Hawkins [2016] FCA 164 made an interesting distinction between material which have been read in Court and those which haven’t, holding at [16]:
“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.”
This case is interesting because it provides two (2) scenarios where the strong presumption of being granted leave to appear may not apply. The first is where the material has not been read (which indicates that it has not been relied upon in open Court) and the second is where it would be against the interests of justice to allow the public to scrutinise the document.
Takeaways about inspection of documents
A party to legal proceedings may inspect almost any document on the Court file without the need to seek the leave of the Court prior to doing so. A non-party to the proceedings enjoys a right to inspect some documents, but not all. Such non-party will generally be granted leave to inspect a document which they do not have a general right to inspect if that document has been considered or read in open Court.
Links and further references
Legislation
Federal Court Rules 2011 (Cth)
Acts Interpretation Act 1954 (Qld)
Cases
Baptist Union of Queensland v Roberts [2015] FCA 1068
Conway v Fernandez (No 2) [2018] FCA 1975
Deputy Commissioner of Taxation v Hawkins [2016] FCA 164
Further information about inspection of documents
If you need advice on inspection of documents in a litigious matter before the Federal Court of Australia, contact us for a confidential and obligation-free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
[1] Federal Court Rules 2011 (Cth) r 2.32(5).
[2] Hogan v Hinch [2011] HCA 4, at [20]; Conway v Fernandez (No 2) [2018] FCA 1975, at [11].
Related insights about inspection of documents
-
Federal Court requirements for electronic discovery and metadata
Electronic discovery in the Federal Court of Australia (FCA) is nothing new. From July 2014, the FCA began implementing the Court’s electronic court file (ECF) across its Australian registries. This enabled the Court to embrace the use of technology in proceedings, including the use of electronic discovery, eLodgement, eTrials, eCourtroom, and video conferences.
-
Is a proposed settlement fair and reasonable – Federal Court
Class action lawsuits commonly resolve in a settlement between the members of a class and the respondents to a claim. However, there are strict requirements to proposed settlements, including that they are ‘fair and reasonable’, which will be subject to judicial oversight.
-
Is a proposed settlement fair and reasonable – what will the Federal Court consider?
Parties seeking to settle a class action must apply to the Federal Court for approval. Judges will assess the fairness of the settlement by examining factors such as the best possible recovery, risks of litigation, class reaction, and independent advice.
-
Legal costs – discontinuing by consent in the Federal Court
Businesses must take care when making forecasts, as potential legal consequences may arise if records of the basis for them are not kept.
-
What is standard discovery in the Federal Court?
This article provides an in-depth look into the requirements of standard discovery in the Federal Court of Australia. Learn more about the relevance of documents, what constitutes ‘readily accessible’ documents, and relevant case law for narrowing the scope of discovery for a just resolution of disputes.
-
Inspection of documents in the Federal Court
Document inspection in civil litigation before the Federal Court of Australia: rights of parties, rights of non-parties, court rules, and the two exceptions to presumption of access for non-parties.
-
Essentials for proving service in the Federal Court
Applicants must serve documents on Respondent personally. If evaded, can apply for Deemed or Substituted Service, with proof of attempts, and leave to serve outside Australia if overseas.
-
Class actions in the Federal Court – what’s required?
This article provides an overview of the mechanics behind a Class Action in the Federal Court of Australia. It covers the requirements to commence the action, the ability for members to opt out, and the limits on Class Actions, giving readers a comprehensive understanding of the process and obligations.
-
Worldwide asset freezing order by Federal Court – are they possible?
The High Court’s decision in Deputy Commissioner v Huang [2021] HCA 43 confirms the Federal Court may make worldwide asset freezing orders. This is an important development in Australian law.
