Inspection of documents in the Federal Court process

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

Hogan v Hinch [2011] HCA 4

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:

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].

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