Armet v CFC Consolidated Pty Ltd (No 2)
[2022] FedCFamC2G 648
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648
File number(s): PEG 52 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 12 August 2022 Catchwords: PRACTICE AND PROCEDURE – Transcript – where request for provision of hard copy transcript free of charge – considerations in relation to provision of transcript free of charge – whether in the interests of justice or the administration of justice that litigant be provided with a copy of the transcript – nature of and complexity of issues – whether litigant is impecunious – right to inspect and read transcript on a computer in the Registry
INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – general protections application
Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.11, 12.01
Federal Court Rules 2011 (Cth) r 6.11
Cases cited: Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 211 ALR 523
Chan v Harris (No 3) [2011] FCA 341
Darley and Darley [2019] FamCAFC 238
Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580; (1976) 50 ALJR 509; (1976) 8 ALR 649
Forbes v Bream [2008] FamCAFC 189; (2008) 222 FLR 96
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507
Huang v University of New South Wales & Anor [2008] FMCA 1578
Karsten v Federal Republic of Germany [2008] FCA 331
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No. 4) [2013] FCCA 133; (2013) 275 FLR 475
O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 1191
O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 964
See v Granich & Associates [2008] FMCA 27
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 702
SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of hearing: 10 June 2022 Place: Perth Applicant: In person (by telephone) Counsel for the Respondent: Mr T Barrie Solicitor for the Respondent: Barry.Nilsson.Lawyers ORDERS
PEG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHANE ARMET
Applicant
AND: CFC CONSOLIDATED PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.The applicant’s oral application made on 10 June 2022 for the provision to him of a hard copy of the transcript of proceedings at the Court’s expense in this matter be dismissed.
2.The applicant have leave:
(a)to inspect an electronic copy of the transcript of any available transcript of proceedings in this matter in the Perth Registry of the Court, by appointment; and
(b)to make notes of the content of, but not to make copies of, any available transcript of proceedings.
3.Costs, if any, be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
On 10 June 2022 the Court had before it an application in a proceeding in this matter, which was dismissed: see Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467 (“Armet (No 1)”). During the hearing of that application in a proceeding the applicant, Mr Armet, made what amounted to an oral application in a proceeding for the provision of a hard copy transcript of proceedings in this matter ("Transcript") to him free of charge, that is, at the Court's expense.
In the course of the hearing on 10 June 2022 Mr Armet submitted that:
(a)he had made an application to Auscript (the Commonwealth’s commercial transcript provider) for the Transcript but that they had asked him to “pay the full price” and indicated that they did not “accept any reduced fees”: Transcript, 10 June 2022, p 3, and that they sought to charge him $250 for the Transcript of the directions hearing on 20 May 2022: Transcript, 10 June 2022, p 5;
(b)this Court is the only Court in the State which does not provide a transcript of proceedings to self-represented litigants;
(c)he sought an order from the Court for access to the Transcript;
(d)in response to the Court's invitation to come in and look at any Transcript that the Court held on the electronic court file (“ECF”), Mr Armet responded that:
You don’t understand. I need a copy. Do you understand, a copy? I need a copy in paper to see what you write and what you say you English, so I can understand, and the people that I will send it to them, they will see and understand what you are doing when you are at court.
(Transcript, 10 June 2022, pp 4-5)
(e)when the Court indicated that if it orders the Transcript it would be uploaded to the ECF and that Mr Armet could view it, Mr Armet said:
I don’t need to view it, your Honour. Don’t you understand? I will repeat myself again for the last time. I need a paper - the paper proof of what you are doing in the court. I don't need to see it. I need to …
…
… attach it to other paper, so I can send it to whoever I want.
(Transcript, 10 June 2022, p 5)
(f)he did not have a problem with paying for the Transcript, “but not the full price”, and that Auscript wanted to charge $250 “for 16 minutes that we are together on 20 May, and this is impossible because I am on the bloody dole”: Transcript, 10 June 2022, p 5;
(g)what was occurring was "another violation of human rights" and that the Court was “reducing my capacity to access my rights in the courts”: Transcript, 10 June 2022, p 5; and
(h)he had asked the Perth Registry of the Court more than once to provide him with a copy of the Transcript, and had been told that before he could be provided with a copy the Court had to make an order that he be provided with a copy: Transcript, 10 June 2022, p 6,
and the Court made an order that the issue of the provision of hard copies of the Transcript, free of charge, to Mr Armet, be reserved for further consideration by the Court.
LITIGATION HISTORY
In order to assist in explaining the Court's ultimate conclusion with respect to the provision of Transcript, and to assist, in particular, Mr Armet as a self-represented litigant in understanding the Court's reasons, the Court will set out the litigation history of this matter in significantly more detail than would ordinarily be the case.
Orders and referral made prior to 10 June 2022
On 15 April 2021 at the First Court Date the Court (differently constituted) made orders in the following terms:
1.The applicant have leave to file and serve a statement of claim.
2.The matter be adjourned for further directions on 29 April 2021 at 11.30am.
3.Costs be reserved.
4.Liberty to apply.
On 30 April 2021 at a directions hearing the Court (differently constituted) made the following orders:
1.The applicant have leave to file and serve the affidavit that accompanied his statement of claim filed on 15 April 2021.
2.The respondent file a response by 14 May 2021.
3.The matter be referred to mediation before a Registrar of this Court on a date to be fixed by that Registrar.
4.If the mediation referred to in order 3 above is unsuccessful, the matter be listed for further hearing before the Court on a date to be fixed.
5.Costs, if any, be reserved.
6.Liberty to apply.
The matter was the subject of mediation, seemingly by telephone, on 11 August and 23 September 2021, and the mediation was unsuccessful in resolving the matter.
On 8 October 2021 the matter came before the Court as presently constituted and orders were made in the following terms:
1.The matter be adjourned to a further directions hearing on 6 December 2021 at 11.00 am AWST.
2.Costs, if any, be reserved.
On 11 October 2021 the Court issued a referral certificate under r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“FCFCOA GFL Rules”), that it was in the interests of the administration of justice that Mr Armet be referred for legal assistance. The nature of the legal assistance for which the referral was made was set out in the referral certificate as follows:
1.Assistance in drafting a Statement of Claim.
2.Appearance at the next direction[s] hearing, listed 6 December 2021.
On 6 December 2021 a consent order was made in the following terms:
1.The directions hearing listed for Monday, 6 December 2021, be adjourned to a directions hearings on a date not before 4 February 2022.
2.The Respondent's costs, if any, be reserved.
On 24 March 2022 a consent order was made by the Court in the following terms:
1.The directions hearing listed for Friday, 25 March 2022, be adjourned to a directions hearing on a date not before 25 April 2022.
2.The Respondent's costs, if any, be reserved.
On 20 May 2022 the parties appeared at a directions hearing before the Court as presently constituted and the following orders were made:
1.By 4pm on 17 June 2022 the Respondent shall file and serve its defence.
2.By 4pm on 15 July 2022 the Applicant shall file and serve any reply.
3.By 4pm on 12 August 2022 the Applicant shall file and serve any further affidavits.
4.By 4pm on 9 September 2022 the Respondent shall file and serve any affidavits.
5.By 4pm on 7 October 2022 the Applicant shall file and serve an outline of submissions.
6.By 4pm on 4 November 2022 the Respondent shall file and serve an outline of submissions.
7.By 4pm on 2 December 2022 the Applicant shall file and serve an outline of submissions in reply;
8.The matter be listed for hearing for two days at 10.00am on 20 and 21 February 2023.
9.Costs if any be reserved.
10.There be liberty to apply on three days' notice.
Refusal of the application in a proceeding on 10 June 2022
As indicated at [1] above the Court dismissed an application in a proceeding on 10 June 2022. That application in a proceeding was to amend hearing dates and was dealt with extempore and dismissed for the following reasons, which for reasons already set out at [3] above, are set out more fulsomely than would usually be the case, from Armet (No 1)at [2]-[13] per Judge Lucev, as follows:
2.By order made on 20 May 2022, this matter was listed for hearing for two days on 20 and 21 February 2023. In the intervening period, that is, between May 2022 and February 2023, there was a requirement for compliance with various programming orders, that is, the filing of, consecutively, a defence, a reply, any further applicant's affidavits, respondents' affidavits, the applicant's outline of submissions, the respondents' outline of submissions, and the applicant's outline of submissions in reply. The last filing date for the applicant's outline of submissions in reply was 2 December 2022.
3.By way of the Application in a Proceeding, filed 30 May 2022, Mr Armet seeks to compress the programming orders by:
(a)providing for Mr Armet to file submissions, a book of documents and affidavits at the same time on 12 August 2022;
(b)having the respondent file submissions and affidavits at the same time on 9 September 2022; and
(c) having the matter listed for hearing before the end of 2022.
4.The orders that are proposed in the Application in a Proceeding are impracticable, in the sense that they require submissions filed at the same time as affidavits. The purpose of submissions is to assist the Court to understand both the evidence and the legal issues which arise in a proceeding. To have submissions filed by Mr Armet in advance of the respondent's affidavits and submissions cannot possibly assist the Court in that regard, and even more so here where Mr Armet is self-represented. Further, in this case, the Court provided for an outline of submissions in reply to assist Mr Armet, who is self-represented, to enable him to deal with and put before the Court - once again, to assist the Court - by way of reply to the respondent's submissions, any matters which, as a self-represented litigant, he might not have anticipated would be raised by the respondent. In submissions today, Mr Armet says that there will be nothing that will be said by the respondent to which he might wish to reply, but that, with respect to him, anticipates the position of the respondent, and is unfair to Mr Armet as a self-represented litigant, for the reasons that the Court has just given above.
5.Submissions are particularly important in this case where not only is there a Fair Work general protections claim, but very many other matters raised which may or may not be within the Court's associated jurisdiction under s 134 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and numerous matters related to alleged applications involving international conventions, which may or may not form part of Australian domestic law, depending upon their enactment or otherwise in Australian domestic law, and the Court refers to Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; (1995) 69 ALJR 423; (1995) 128 ALD 353; (1995) 39 ALD 206, CLR at [286]-[287] per Mason CJ and Deane J.
6.The orders sought to be made in the Application in a Proceeding are also impracticable, because this Court simply cannot accommodate the requested 2022 hearing. When the orders were made on 20 May 2022, Mr Armet was given the first available two-day timeslot, which was in February 2023, for a Fair Work hearing by the docket judge. This case is not one, with respect, of sufficient urgency that it requires an expedited hearing. Save for Mr Armet's self-imposed complexity in relation to questions of associated jurisdiction and the application of international conventions, this is - if the Court can put it this way - a common, garden-variety Fair Work general protections matter, and nothing in the jurisdictional or convention matters raised by Mr Armet warrants expedition, and it is not apparent from any evidence presently before the Court that there is any other reason for expedition, but as the Court has already indicated, there is simply no time available, in any event, prior to the current February 2023 listing.
7.Mr Armet also complains in the Application in a Proceeding that by the time the hearing is to be heard, it will be over 700 days or approximately 23 months from the time of filing to the date of hearing. That is not unusual, and, in fact, is common and probably about the average time that Fair Work matters take to come to hearing in the Perth Registry of this Court. In this matter, there have been no particularly long delays, save for one matter that the Court will come to in relation to pro bono legal advice.
8.The originating application was filed in March of 2021. It was ordered to go to mediation, which it did in August and September 2021, and that delay of four to five months is entirely usual. Mr Armet does complain in the Application in a Proceeding that the mediation was, "Against the victim's will and best interests", but as the judgment in Broad Spectrum Training Pty Ltd v Bidding Buzz Ltd [2010] FMCA 932; (2010) 244 FLR 335 makes plain, mediation of disputed matters under the provisions of the Federal Magistrates Act 1999 (Cth), as it then was, and now likewise under the provisions of ss 157 to 160 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), it is mandatory for the Court to advise the parties about alternate dispute resolution, and as a matter of practice Fair Work matters are, almost without exception, referred to mediation.
9.In October 2021, that is, within a month of the completion of the mediation, the matter was referred to a Registrar for a pro bono referral for Mr Armet to receive legal assistance. That was made because of the complexities, again, primarily of Mr Armet's making, to see whether or not a lawyer might assist him in the drafting of a statement of claim in proper form.
10.The various exchanges which subsequently occurred between the pro bono lawyers, who eventually came on board in December of 2021 - and, again, it is not unusual for a delay of about two months before pro bono lawyers come on board - over the period subsequently of about six months were, on Mr Armet's account, at least, such that they resulted in Mr Armet not receiving any assistance from the pro bono lawyers with respect to the drafting of a statement of claim. The relationship and conduct of matters between the pro bono lawyers and Mr Armet are not matters for which the Court is responsible or becomes involved and, indeed, if pro bono lawyers withdraw from a matter, the practice is not to inform the Court as to the reasons why pro bono lawyers withdraw.
11.The matter was subsequently the subject of a directions hearing on 20 May 2022, at which the orders were made for the hearing nine months later. That period between the making of a detailed programming order and the listing for hearing, a period of about nine months, is neither unusual nor extraordinary in this Court.
12. In the circumstances, nothing put by Mr Armet, today:
(a) warrants bringing forward the hearing date;
(b)in any event, there is no available date for a two-day hearing before the Court, as presently constituted, before the presently listed date for the hearing,
and therefore nothing warrants amending the other programming orders in the order of 20 May 2022.
13.So, for those reasons, the Application in a Proceeding as filed is dismissed. In relation to the question of costs, they will be reserved. The Court indicates that if any costs are to be awarded - and costs are not ordinarily awarded in Fair Work matters, see s 570 of the Fair Work Act 2009 (Cth), except on the conditions there prescribed - those matters might best be determined at the conclusion of the proceedings, when the matter can be viewed in its totality.
TRANSCRIPT RELEVANT RULES, POLICIES, INFORMATION AND JUDGMENTS
Rules of Court
The Court notes that the FCFCOA GFL Rules are silent about the provision of transcript aside from r 2.11(5) of the FCFCOA GFL Rules which precludes transcript from being a document that a person is entitled to inspect, and the subsequent Note to which provides that:
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.
A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court.
Information on the Court's website
This Court does not appear to have either a practice note or policy concerning access to, or the provision of, transcript to parties (including impecunious litigants). There is, however, information on this Court's website which provides as follows:
Court recording and transcription services
The Federal Circuit and Family Court of Australia's recording and transcription contract is with Auscript Australasia Pty Limited.
All matters listed before a judge of the Court are recorded. Registrar events are not recorded by default, unless expressly requested by the Court.
A party to a proceeding or their lawyer may purchase a full or partial copy of the transcript from Auscript. The person placing the order will be required to pay for the transcript. The rate of charge is fixed in the Court's contract with Auscript. The rates vary according to a number of factors, including a higher rate for transcripts required urgently. The transcript provider shall give details of the estimated cost of the transcript upon request.
A person who is not a party to family law proceedings cannot purchase a copy of the transcript without the leave of the Court. In general federal law proceedings non-parties may, in some circumstances, obtain access to a copy of the whole or part of the transcript of a proceeding.
See: Access to Court documents and transcript on the Federal Court website.
Under its current records retention policy, the Court retains recordings for 10 years. Accordingly, requests for transcript of proceedings beyond 10 years cannot be processed.
When requesting a transcript, parties need to be aware that they will be provided with only the transcript of proceedings that does not include judgments, rulings or orders.
See: Transcripts Order Form (Auscript web site)
Provision of transcript to parties by the Court
The Court does not provide transcripts to litigants at the Court's expense.
In limited circumstances, if the Court has already obtained a transcript, you may be permitted to peruse (but not copy) the Court's transcript in the court registry. The Court does not order transcript for all events so access to the transcript on the Court file may not always be available.
Occasionally the transcript of proceedings will constitute the reasons. In such instances, if reasons are required for the purposes of an appeal, the Court may provide a copy of the transcript, or portions of the transcript, to the parties and the Appeal Court for the purpose of the appeal.
In some instances parties may be provided with the transcript of oral reports by family consultants undertaken pursuant to section 11F of the Family Law Act 1975. This is at the discretion of the presiding judicial officer.
It is pertinent to observe that the information on the Court's website set out above in respect of general federal law proceedings (of which this is one) directs the reader to that part of the Federal Court's website dealing with access to transcript.
Federal Court Rules
Rule 6.11(3) of the Federal Court Rules 2011 (Cth) provide that:
A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court.
Federal Court Practice Note and policies
The Federal Court has a general practice note entitled "Access to Documents and Transcripts Practice Notice (GPN-ACCS)" ("Access Practice Note") and an Impecunious Litigants Policy, both of which deal with the provision of transcript.
Access Practice Note
The Federal Court's Access Practice Note provides at [6] as follows (footnotes and hyperlink omitted):
6. TRANSCRIPTS
6.1 For the purpose of this Part:
Authorised Transcript Provider means any Authorised Transcript Provider, authorised to provide transcript for the Court. Contact details of the Court's Authorised Transcript Providers is available on the Court's website.
Transcript Request Form means the approved form set by the Authorised Transcript Provider, to be lodged directly with the relevant Authorised Transcript Provider. Copies of the form are available from the Authorised Transcript Provider's website, contact details of the relevant Authorised Transcript Providers is available on the Court's website.
6.2Copyright in all transcripts belongs to the Commonwealth of Australia and, subject to the Federal Court Rules and any order or direction of the Court, transcripts cannot be shared between parties or distributed to any other recipients. It should also be noted that a party or person must not use a recording device for the purpose of making a transcript or record of the evidence or submissions at a hearing (r 6.11(3) of the Federal Court Rules).
6.3A party or non-party (including the media) may purchase the whole, or a part, of a transcript in a proceeding from the Court's Authorised Transcript Provider, unless the Court has ordered or directed that a transcript:
(a)is, in whole or in part, confidential or the subject of restrictions on access; or
(b) may not be published or reproduced without leave of the Court.
6.4Subject to such restrictions, a transcript will be provided if a formal request for a transcript is submitted to the Court's Authorised Transcript Provider using the approved form and after payment of the relevant charge set by the Authorised Transcript Provider. The various forms of the Authorised Transcript Provider can be accessed via the Court's website.
The Access Practice Note was issued by the Chief Justice of the Federal Court on 25 October 2016.
Impecunious Litigants Policy
The Federal Court's Impecunious Litigants Policy provides as follows (original emphasis):
Background
The Court has entered into commercial arrangements with transcript provider, Auscript Australasia Pty Ltd (Auscript), to ensure that a record is ordinarily taken of Federal Court proceedings, from which a transcript can be produced if required by the Court or the parties.
Litigants obtain a transcript from Auscript, and not from the Court
The Court acknowledges that there are circumstances in which litigants who are genuinely unable to afford transcript need to be provided with access to it, such as to avoid injustice to a disadvantaged party, or to enable the Court to perform its function properly and efficiently.
In those circumstances, with transcript being provided by Auscript in electronic format, such litigants in a proceeding should be afforded the same equality of access to an electronic version of the transcript which is searchable, from which segments can be copied and pasted for submissions, and which is portable and inexpensive to produce and use.
Role of the Court
It is for the Court, and not the transcript provider, to decide whether a particular litigant is in need of assistance with respect to transcript. In determining whether a litigant is to be provided access to transcript at no cost to the litigant, there are two key criteria:
1.The Court is satisfied that, by reason of the litigant's circumstances or any other factor, the litigant cannot reasonably be expected to pay the commercial price for a copy of the transcript (see Determining access to transcript below); and
2.The Court is satisfied that it is in the interests of the administration of justice that the litigant be provided with an electronic copy of the transcript.
Determining access to transcript
There is no established test for determining whether a party is sufficiently deserving of assistance with respect to transcript. A legitimate concern of the transcript providers is that judges might become so generous in making transcript available as to provide an incentive to some legal practitioners to attempt to obtain free transcript when the means of their clients did not justify such assistance.
In determining whether a litigant should be assisted to have access to the transcript, judges might consider:
•whether the litigant is impecunious: such factors include whether Court fees have been waived (bearing in mind that the circumstances in which Court fees are waived are not limited to impecuniosity), the litigant's circumstances and ability to meet the costs of a transcript, and/or whether the litigant has legal representation (noting that impecunious litigants are not confined to those without legal representation. They may be able to afford some form of legal representation, but the cost of transcript may be beyond them. They may be represented under a scheme for free legal assistance. It may be necessary for a judge to consider whether transcript should be made available to an eligible party's legal representative).
•the nature and complexity of the issues in the case and the degree of assistance likely to be required by the Court in argument about them;
•the interest the Court has in the continued commercial viability of the transcript provider and the continued provision of high quality transcript in an efficient and timely manner.
Providing access to transcript for an impecunious litigant
Fundamental to the operation of the impecunious litigants policy is the principle that somebody needs to have paid for a copy of the transcript.
The contract with Auscript states that: Where the Court or a Litigant have ordered and paid for a Transcript, that Transcript may be provided to an impecunious litigant free of charge as ordered or directed by the Court.
In other words, "someone" has to have ordered and paid for the transcript for a copy to be provided to the impecunious litigant. Due to the commercial nature of the contract, the Court cannot make an additional copy of the Court's complimentary or free transcript and provide it to the impecunious litigant.
Where neither the Court nor a party has paid for the transcript, in the event that the Court determines that the litigant should be assisted to have access to the transcript, the Court will be required to pay for that copy of the transcript for the impecunious litigant. The cost of that transcript to the Court is given at a reduced rate (10% discount on the commercial rate).
Judges should not feel dissuaded from making orders, should the above criteria be met, because of the cost of transcript to the Court, but need to be mindful that there will be costs incurred by the Court.
Practically, the policy requires the following:
1.The Court needs to be satisfied that the litigant is impecunious and that in the interests of justice they should be provided with a copy of the transcript;
2.If satisfied, the Court is to enquire whether another party has ordered and paid for a copy of the transcript (these enquiries can be made with Auscript);
3.If another party has purchased the transcript, then that party can provide - by order or direction of the Court - a copy of that transcript to the impecunious litigant;
4.If no other party has purchased the transcript, then the Court can order or direct, and pay for an additional copy of the transcript on behalf of the impecunious litigant at the 10% discounted rate.
Unless Auscript is advised otherwise, where the Court purchases transcript on behalf of the impecunious litigant and
•the Transcript has already been produced, Auscript will provide the transcript to the impecunious litigant directly (details to be provided by the Court) within 24 hours or as soon as practicable; or,
•the Transcript has not already been produced, the default turnaround time will be 10 days, unless Auscript is advised otherwise. [Note: quicker turnaround times incur a higher cost to the Court]
Sample orders are outlined below. Alternatively, a judge may make a direction or, given the administrative nature of this policy, have chambers staff advise Auscript in writing that a litigant has requested access to the transcript and the Court has either granted or allowed that request.
Alternative option
‘Right to Inspect’: Allowing a litigant to read transcript on a computer in the registry, or by remote access technology
Steps can be taken to ensure that the computer terminal cannot be used to make alterations to the transcript, or to access other Court data. It will be necessary to bear in mind the hours during which the registry is open, and the possibility of the need for supervision - whether accommodated in person or remotely.
The Impecunious Litigants Policy also deals with other issues such as the maintenance of records of those who have been provided with transcripts and sets out sample orders. The Impecunious Litigants Policy was published by the Federal Court in October 2021.
Cases
The following are a sample of cases determined in this Court (previously styled as the Federal Circuit Court of Australia and before that the Federal Magistrates Court of Australia), and the former Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1): see Federal Circuit and Family Court of Australia Act 2021 (Cth), s.8), and the Federal Court.
This Court
In Huang v University of New South Wales & Anor [2008] FMCA 1578 this Court (then the Federal Magistrates Court) refused to provide transcript observing at [30] per Cameron FM as follows:
30.The applicant also seeks an order that transcripts of the hearing of these proceedings be obtained and placed on the Court file. The applicant submitted that, at the conclusion of the new trial, she would wish to peruse a transcript of the proceedings before preparing her final submissions. She said that a transcript was too expensive for her to purchase and she wished the Court to do it instead. This is not a request to which the Court will accede. The cost of litigation is to be borne by the litigants or bodies providing litigation funding. The Court's limited budget does not extend to the provision of transcripts to parties.
In O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 964 (“O’Donoghue (No 1)”) the Federal Magistrates Court dismissed an application for the provision of the transcript of a directions hearing sought to “clarify” what happened at the directions hearing and for “completeness” of the record in the event of an appeal, in relation to which the Court observed at [17]-[20] per Lucev FM as follows:
17.The transcript of the directions hearing of 8 October 2012 is of a 13 minute hearing, running to six pages (including the cover sheet) in respect of a first directions hearing at which orders were made, without any real objection, in terms of the minute of proposed orders then proposed by the MRT.
18. It must be borne in mind that:
“a)?the orders of this Court are, and were on this occasion, reduced to writing by the Court, signed by the presiding Federal Magistrate, sealed and sent by post and email to the parties; and
b)? the directions hearing on 8 October 2012 gives rise to:
i)?no issue of legal controversy, or no other complex or difficult issue; and
ii)?no issue at all, other than the subsequent requests in Mr O'Donoghue's Letter.”
19.There are good reasons why Mr O'Donoghue should not be given a copy of the transcript. First, no party has a right at law, or otherwise, to be given a copy of the transcript of proceedings in this Court. Second, parties, if they wish, can order copies of transcript, and pay for the transcript ordered. Third, there is plainly no need in the circumstances for Mr O'Donoghue to receive a copy of the transcript, as no issue arose from the 8 October 2012 directions hearing, or could arise for the purposes of an appeal, to which the transcript might be relevant. Fourth, it would set a most undesirable precedent for the Court to start distributing, at the taxpayer's expense, transcripts of first directions hearings in respect of matters where there was no objection to the orders made and no legal issues either at all, or of any consequence, arising in the directions hearing itself.
20.There is simply no basis on which Mr O'Donoghue can establish any entitlement, either at all, or in his particular circumstances, to be given a copy of the transcript of the first directions hearing in this Court on 8 October 2012.
In O’Donoghue v Administrative Appeals Tribunal & Ors [2012] FMCA 1191 (“O’Donoghue (No 2)”) the Federal Magistrates Court, differently constituted to O’Donoghue (No 1), having dismissed the substantive application at final hearing went on to observe at [34] per Lindsay FM as follows:
34.Lucev FM gave reasons why he thought it appropriate to refuse a request for an order for transcript of a procedural hearing on 8 October 2012 in his decision of 22 October 2012. I understand his reasons for so doing. Those circumstances are different to here, of course, where there has been a final hearing of the matter, and especially given the circumstances of Mr O'Donoghue's incarceration, it seems to me reasonable for the Court to order the provision of transcript.
It is necessary to observe that what was said in O’Donoghue (No 2) at [34] per Lindsay FM was that the Court would order the transcript, not that it would be supplied to Mr O'Donoghue.
In Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No. 4) [2013] FCCA 133; (2013) 275 FLR 475 (“Naroth (No. 4)”) this Court (then styled the Federal Circuit Court of Australia) dealt with an application to peruse the transcript of the proceedings, and cited O’Donoghue (No 1) at [19] per Lucev FM as set out at [24] above and also referred to Karsten v Federal Republic of Germany [2008] FCA 331 before observing at [32]-[35] per Judge Lucev as follows:
32.The Court has had regard to the judgment in Karsten. That was a case involving a self-represented litigant facing extradition who had evidently appeared at a directions hearing or hearings by way of video from wherever his place of detention then was. Significantly, the Federal Court refused access to the transcript in that case and did so, notwithstanding the fact that the applicant was self-represented, that he alleged that the video quality was poor, but did so, it must be said, on the basis that what was said to have transpired at the directions hearing was not presently relevant to the motion before the Court which involved a challenge, of some type, to an order made by a State Magistrate in respect of the extradition proceedings.
33.At [62] of Karsten the Federal Court did say, that in an appropriate case, arrangements might be made to provide a litigant access to a transcript. The Federal Court indicated that it would do so, or may do so, in circumstances where a litigant is unable, financially, to obtain their own copy of a transcript or where it is necessary in the administration of justice that a copy be made available. The Court also said that the utility of making such arrangements needed to be identified otherwise it remained difficult to consider why such orders or arrangements should be made.
34.It is clear on the face of the judgment in Karsten that the general rule, not lightly be departed from, is that transcript is not provided to litigants other than through the normal process of their paying for that transcript upon order.
35.From the refusal it can be inferred that that case, which involved a self-represented litigant facing extradition, was not one whereby the provision of transcript was necessary in the interests of the administration of justice.
In Naroth (No. 4) the Court concluded at [43] per Judge Lucev that the applicant would not be allowed to peruse the transcript in the Registry, having observed at [38]-[40] per Lucev FM as follows:
38. It is not otherwise in the interests of the administration of justice that a transcript be provided. This is, with great respect to the parties, an ordinary commercial case involving a self-represented litigant (which is not an unusual fact in cases in any court nowadays) in respect of which the applicant has been unsuccessful.
39.The applicant has not put before the Court any real reasons why it is in the [interests of the] administration of justice that such an ordinary case involving ordinary litigants, both the applicant and the respondents, ought to result in the provision at expense to the Commonwealth taxpayer for the labour and materials involved in the production of a copy of the transcript so that the applicant can better prepare her appeal, it would seem, or at least better prepare herself with respect to the argument on costs in this matter.
40.In that regard, as the Court adverted to in the course of argument, the costs schedule in this Court is an events-based schedule and there is no great complexity with respect to it, other than perhaps in this case, some apportionment of costs for the degree to which the applicant was partially successful in her case. Again, that is not a matter of great complexity. It is a matter of submission and ultimately a matter of discretion for the Court under s 79 of the Federal Circuit Court of Australia Act 1999 (Cth).
Family Court of Australia
A Full Court of the former Family Court of Australia (now the Federal Circuit and Family Court of Australia (Division 1) observed in Forbes v Bream [2008] FamCAFC 189; (2008) 222 FLR 96 (“Forbes”) at [28]-[36] per Bryant CJ, Boland and Stevenson JJ as follows (italics in original):
28.From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
29.There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth) (the Rules) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 states that the "appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing". In contrast, r 22.24 enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if "exceptional hardship" would otherwise be caused to the appellant. However, the note to r 22.24 clarifies that even if the appellant is excused from preparing the appeal books because of “exceptional hardship”, the obligation remains upon the appellant to obtain the transcript of proceedings pursuant to r 22.23.
30.It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the father states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to order provision of a transcript at the Court's expense in such circumstances.
31.It has been assumed (without ever being decided) by this Court in several cases that such a discretion exists: see eg Andrews v Andrews (2007) 37 Fam LR 358 and Oakley v Cooper (2008) 219 FLR 431, but compare S and S (unreported, Full Court, Family Court, Lindenmayer, Kay, Gee, 20 June 1994) and In Marriage of Zabaneh (1991) 14 Fam LR 904.
32.In D v K (1998) 72 ALJR 1323 a majority of the High Court (McHugh J, with whom Callinan J agreed) said the following (at [4]):
“In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.”
33. However, in the same case, Kirby J said (at [7]-[9]):
“In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
1.Waive strict compliance with its rules relating to the filing of transcript in an appeal;
2.Order the provision of a transcript by Auscript if that were required in the interests of justice;
3. Dispense with filing of appeal papers in a formal sense; or
4.Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules , r 15(2).]
Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed … ”
34.The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although rr 22.23 and 22.24 place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
35.If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum v Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour's explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
36.We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court's expense if the parties are impecunious.
More recently the former Family Court in Darley and Darley [2019] FamCAFC 238 at [17] per Kent J quoted from Forbes at [34]-[36] per Bryant CJ, Boland and Stevenson JJ as set out above and continued as follows at [18]-[27] per Kent J (italics in original):
18.In Sampson & Hartnett (2013) FLC 93-542( Sampson ) the Full Court observed at [14], by reference to cases including Forbes , that a line of authority had emerged supportive of an approach that the Court may fund the cost of transcript “where the interests of justice required the provision of transcript so an appeal could be adequately prosecuted.” That Full Court observed at [16]:
“16.Although in Forbes & Bream (supra) the Court indicated that it did not need to define the circumstances in which the discretion of the Court to provide the transcript at its expense should be exercised, it seemed to us that it would be of assistance to the applicant in this case to have some indication of the matters about which she would need to satisfy the Court in support of her application. We did so cognisant of the fact that this is a discretionary decision which will require consideration of the circumstances of each case and that the matters relevant to exercise of discretion cannot be circumscribed. However, there will be common factors identifiable in many such cases. We thought it would be helpful to identify these whilst acknowledging the weight to be attributed to any particular factor will vary from case-to-case. While the list of factors is not closed, those that we think may be of relevance in support of such an application are:
(a) Whether the case is a financial or parenting case.
(b)Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c)The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d)The proportionality of the cost of the transcript to the appellant's anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e) The prima facie merits of the appeal.
(f)Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.”
19. On the approach taken by the Full Court in Forbes, it can be seen that the question of the Court itself funding the provision of transcript only arises if the appellant (or cross-appellant) cannot afford the cost of transcript, that is, the party is impecunious. In contrast, arguably the approach of the Full Court in Sampson is to the effect that the appellant's ability to afford the cost of transcript is one factor (the list of factors not being closed) relevant to the exercise of discretion, rather than being a threshold question before the discretion arises.
20. From the inception of this Court it has never been routine that transcript is obtained by a judge at first instance and it has never been the practice for the Court to routinely provide transcript to parties. The Court has never been funded, or provided with any budget, to facilitate trial judges receiving transcript as a matter of course, nor is there any budget for the Court to routinely fund transcript being obtained from the commercial provider engaged by the Federal Courts to provide transcript to parties. In Forbes, the Full Court specifically noted that the cost of providing transcript was not provided for in the Court's budget and that incurring that cost “would impinge on other necessary expenditure for the proper operation of the Court.” Without the need to descend into the detail of this, it can fairly be observed that in the period of a little over a decade since Forbes was decided the budgetary constraints upon this Court's operations have dramatically tightened. The limitations expressed by the Full Court in Forbes have thus markedly reduced, such that it is all the more the case today to conclude that any cost incurred by the Court to provide transcript for an appeal necessarily impinges on the Court's ability to perform its functions.
21. Rule 22.18(1) of the FLR which imposes upon an appellant the responsibility for obtaining any transcript required for an appeal is a reflection of the reality that the Court does not have the resources to routinely provide transcript for appeals.
22. Of course, the Full Court which ultimately hears these appeals is not in any way bound by the determination made by me as a single judge determining this application, and thus the Full Court may revisit this conclusion. In my judgment, on the approach in Forbes, any discretion the Court has to, itself, fund the obtaining of transcript only arises if the appellant cannot afford the cost of transcript in circumstances where the interests of justice require the availability of transcript for the appeal to be adequately prosecuted. In short, the applicant would have to demonstrate impecuniosity for the discretion to arise. The mother does not establish that threshold.
23. If, on the approach in Sampson, inability of the appellant to afford the cost of transcript is not a threshold question, but is one factor in the exercise of discretion, then for myself it is difficult to envisage a case where it is not to be treated as a factor of determinative significance. In my judgment, impecuniosity of an applicant must be established to justify this Court taking the exceptional approach of funding the provision of transcript for an appeal.
24. In the present case, for the reasons already outlined, the applicant mother does not establish impecuniosity or that she cannot afford the cost of obtaining the relevant transcripts. Indeed, it can be seen that the likely cost of obtaining the full transcripts relevant to the contravention appeal and the s 102QB appeal is relatively modest vis-à-vis the mother's financial resources and the capital available to her. The mother apparently intends to represent herself in these proceedings and will thus not incur legal costs.
25. On this basis, I determine that there ought not be any order for the Court to fund the provision of any transcript for these appeals. As already noted, fortuitously, transcript is already available with respect to the parenting and property appeal.
26. In the event that the Court was not minded to fund provision of any transcript, the mother sought the opportunity to consider the audio recordings to determine whether something less than the whole of the transcript was necessary for her to prosecute each of the contravention appeal and the s 102QB appeal.
27. It is reasonable that the mother have that opportunity and I therefore ordered that the Registrar facilitate the mother having access to the audio for the contravention application heard on 2 April 2019, and the hearing with respect to the s 102QB order on 10 June 2019, by making an appointment, or multiple appointments as necessary, at the convenience of the Registry for this purpose. The question then of the mother obtaining less than a full transcript of either hearing can be revisited when this matter is reviewed by me on 9 January 2020.
Federal Court
In Chan v Harris (No 3) [2011] FCA 341 leave to appeal an earlier judgment of the Federal Court refusing to make an order providing Mr Chan with copies of transcript of various directions hearings and the proceeding itself was refused, the Federal Court observing at [47]-[51] per Katzmann J as follows:
47.The purported notice of appeal also complained about his Honour's decision to refuse to make an order providing Mr Chan with copies of the transcript of the various directions hearings and the argument on 17 August as well as transcripts of the Tran proceeding. In his notice of appeal Mr Chan alleges that his Honour failed to give any reasons for his decision. In general, a judicial officer is obliged to give reasons and a failure to do so will be an error of law: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 per Mahoney JA, at 279 per McHugh JA. The allegation, however, is baseless. His Honour dealt with the issue of the provision of transcript on three occasions: At [22] his Honour noted:
“It was explained to Mr Chan that it was not the policy of this Court to provide parties, at the Court's expense, with a copy of the transcript, nor was it the policy of the Court to allow the transcript to be photocopied. The Court however informed Mr Chan that he would be allowed to inspect the transcript in the Registry if he needed to have access to the transcript in order for him to make his submissions.”
48 At [29] his Honour repeated:
“ … it was pointed out to Mr Chan that he had been told on a previous occasion of the Court's policy and that the transcript had been available to him for inspection at the Registry … “
49 These were his Honour's reasons.
50 I note that in his judgment his Honour also pointed out that he had arranged for a copy of the transcript relating, not just to this matter, but also to the previous matter in which Mr Chan was a party, to be placed on the Court file in sufficient time to enable him to inspect them and make whatever submissions he wished based on them.
51This decision, too, is not attended by sufficient doubt to warrant a grant of leave.
PRESENTLY AVAILABLE TRANSCRIPT
The Court notes that the Transcript of:
(a)a directions hearing on 20 May 2022 totalling six pages from an 11 minute hearing; and
(b)the application in a proceeding on 10 June 2022, totalling seven pages and recording a hearing which lasted 28 minutes,
are both on ECF. No transcript of the earlier first court date and directions hearing held on 15 and 30 April 2021 or a directions hearing on 8 October 2021 have been uploaded to ECF.
CONSIDERATION
The various practices and policies of the federal courts set out above do not bind this Court in the exercise of its discretion as to whether or not to provide the Transcript in hard copy free of charge to Mr Armet. The past judgments of the federal courts (including this Court) are, however, a different matter, and whilst the judgments of the superior federal courts might not be strictly binding given the subject matter, this Court, as a matter of comity, ought to have regard to and give effect to the considered judgments of the superior federal courts in relation to the relevant subject matter: Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580; (1976) 50 ALJR 509; (1976) 8 ALR 649, CLR at 591 per Barwick CJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobsen and Lander JJ; See v Granich & Associates [2008] FMCA 27 at [17] per Lucev FM.
Current position with respect to provision of transcript in this Court and other federal courts
To the extent that there is information available concerning access to transcript in this Court on the Court's web site it is plain that it indicates that:
(a)the Court does not provide litigants with a copy of any transcript at the Court's expense; and
(b)litigants may be permitted to peruse (or inspect) but not copy, any available transcript in a Registry of the Court.
It is apparent from the cases cited above that it is not the case that any of the federal courts have ever routinely provided the transcript of proceedings to parties free of charge. It would appear that, as with the information available on this Court's web site, that the federal courts do not provide litigants with a copy of any transcript at the Court's expense, but do provide for litigants to be permitted to peruse (or inspect, but not copy), any available transcript in the Registry of the respective courts where the transcript has already been ordered by the court or one of the parties, save perhaps where impecunious litigants require transcript for the purposes of an appeal (which is not this case).
Whether in the interests of justice, or the administration of justice, for the Transcript to be provided
It is necessary to consider the interests of justice: as to which see BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400; (2004) 79 ALJR 348; (2004) 211 ALR 523, and the interests of the administration of justice, the latter being broader than the interests of justice by reason of its administrative aspect: Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM.
At present, the matter has been the subject of a first court date, two directions hearings, and the hearing of an application in a proceeding for the bringing forward of the hearing date, which application in a proceeding was dismissed: see Armet (No 1). The issues dealt with have been essentially procedural, and are reflected in the orders made by the Court on each of those occasions, as set out above.
The Transcript which is available indicates little. That is because nothing of any substance, substantively, has been determined thus far in these proceedings. And whilst the Court has taken the time in Armet (No 1) (and here) to deal more fulsomely than would ordinarily be the case with such procedural issues, it does not alter the fact that provision of the Transcript is unlikely to aid Mr Armet in relation to the substantive issues in these proceedings. Indeed, the substantive issues in the proceedings have thus far not been dealt with, and only briefly adverted, and then only in part, to in Armet (No 1) at [5] per Judge Lucev (cited at [12] above).
There can be no doubt that numerous issues have been raised by Mr Armet in either his pleadings, which have sometimes been “amended” under cover of an affidavit, and the five affidavits and annexures (totalling 388 pages) already filed by him, but save as indicated in Armet (No 1) at [5] per Judge Lucev, and save for referring - albeit ultimately unsuccessfully - Mr Armet for pro bono legal assistance in the formulation of an amended statement of claim because of the numerous issues raised by him, it remains the case that those issues raised by Mr Armet have not been discussed in any substantive way in the presently available Transcript.
Whilst it is evident that English is not Mr Armet’s first language he professes to be “fluent [in] both spoken and written” English: Affidavit of Stephane Armet, sworn 8 April 2021, page 4 of the Annexures. Mr Armet has not requested an interpreter be used in the proceedings.
Mr Armet asserts that:
(a)he is on the “dole”: Transcript, 10 June 2022, p 5; and
(b)he can afford to pay for the Transcript, but not the full commercial fee that Auscript seek to charge him.
In relation to the issue of impecuniosity the Court notes that the Federal Court’s Impecunious Litigant's Policy does not seem to provide, in any event, for the provision of a hard copy of transcript, but rather, where it is necessary to provide transcript by reason of impecuniosity, a party is afforded the opportunity to inspect an electronic copy of a transcript which has already been paid for by either the Commonwealth (in that case, the Federal Court) or another party.
Because this matter arose as an oral application in a proceeding in the course of a different application in a proceeding there is no particular evidence in relation to Mr Armet’s income, assets or other financial means. Ultimately, it is of no particular moment that there is no such evidence, in circumstances where the Court has concluded that provision of the Transcript serves no particular purpose given that the matters dealt with to date have been essentially procedural, and that Mr Armet can inspect an electronic copy of the Transcript in the Perth Registry.
Mr Armet is not legally represented. The fact that he is not legally represented is not unusual in proceedings of this type, and there is indeed no right to legal representation in this Court: SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J, and although the fact that Mr Armet is self-represented and does not have a lawyer to assist him might be a matter to be taken into consideration when the Court exercises a discretion, the lack of legal representation in this instance is immaterial where what is being sought is the Transcript of earlier proceedings in the Court.
The Court notes that in submissions Mr Armet evinced an intention to forward the Transcript to others if it were to be provided. It is difficult to imagine what useful purpose would be served by the forwarding to “others” the Transcript of a directions hearing and the hearing of an application in a proceeding to bring forward hearing dates previously set which Mr Armet says he does not need to see: see [2(e)] above. Furthermore, it is plain, that insofar as this Court might follow the Federal Court's policy with respect to access to transcript, that the purpose of allowing a party access to transcript where that access is permitted is not for the purpose of forwarding it on to “others”, save perhaps where those “others” are a party's legal representative subsequently appointed by a previously self-represented litigant.
Any perceived injustice by reason of not being provided with a hard copy of the Transcript free of charge can be avoided by allowing Mr Armet to come into the Perth Registry and be provided with access to an electronic copy of the Transcript.
CONCLUSION AND ORDERS
The Court has concluded that provision of the Transcript, whether in hard copy or electronic format, is strictly unnecessary in relation to the earlier procedural hearings and the hearing of the application in a proceeding in this case. That is because the matters dealt with were, as set out above, procedural, and the provision of the Transcript will serve no useful purpose in the proceedings.
The Court has therefore concluded that it is not in the interests of justice, or the administration of justice, for Mr Armet to be provided with the Transcript in hard copy form free of charge. Mr Armet may, however, by appointment inspect the Transcript in the Perth Registry, if he so wishes, and make notes of, but not make copies of, the content thereof. Having regard to s 570 of the Fair Work Act 2009 (Cth) costs, if any, will be reserved. There will be orders accordingly.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 August 2022
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