Commissioner of the Australian Federal Police v Kirk, William Bruce

[1997] FCA 251

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY  No QG 175 of 1987
GENERAL DIVISION

BETWEEN:COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Applicant

AND:WILLIAM BRUCE KIRK (also known as WILLIAM ALBERT JENKINS)

First Respondent

AND:RICHARD SHIERK LEETH (also known as JAMES ROBERT DELANEY)

Second Respondent

AND:DALE STEWART KIRK (also known as DONALD PATTERSON)

Third Respondent

AND:MICHAEL ALAN BOCKOFF

Fourth Respondent

AND:DONNA JANE SCHLINKERT (also known as DONNA JANE PATTERSON)

Fifth Respondent

AND:VALERIE ELIZABETH SCOTT

Sixth Respondent

AND:ROBYN ANNE GUNDERS

Seventh Respondent

AND:PAUL JOSEPH DONOVAN

Eighth Respondent

AND:TERRE REBECCA TUCKER

Ninth Respondent

AND:CAROL ANN POWELL

Tenth Respondent

CORAM:                   SPENDER J
PLACE:  BRISBANE
DATE:  25 MARCH 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.   Pursuant to O 46 r 6, leave is granted to search and inspect the Federal Court file No 175 of 1987, for all affidavits filed of Mr Anthony H. H. Bailey.

2.   Copies of all documents inspected may be taken, at the cost of the applicant.

3.   The motion be otherwise dismissed.

4.   The applicant on the motion to pay the costs of and incidental to the motion, to be taxed if not agreed.

THE COURT NOTES THAT:

1.        all documents on the file for which leave is not required may be inspected:

(i)pleadings;

(ii)transcript - other than those which have been ordered confidential;

(iii)exhibits - other than those which have been ordered confidential;

(iv)Praecipe for subpoena;

(v)Court Register; and

(vi)index on the cover of the file;

unless Registrar considers any such document should remain confidential under O 46 r 6(1)(h).

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY  No QG 175 of 1987
GENERAL DIVISION

BETWEEN:COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Applicant

AND:WILLIAM BRUCE KIRK (also known as WILLIAM ALBERT JENKINS)

First Respondent

AND:RICHARD SHIERK LEETH (also known as JAMES ROBERT DELANEY)

Second Respondent

AND:DALE STEWART KIRK (also known as DONALD PATTERSON)

Third Respondent

AND:MICHAEL ALAN BOCKOFF

Fourth Respondent

AND:DONNA JANE SCHLINKERT (also known as DONNA JANE PATTERSON)

Fifth Respondent

AND:VALERIE ELIZABETH SCOTT

Sixth Respondent

AND:ROBYN ANNE GUNDERS

Seventh Respondent

AND:PAUL JOSEPH DONOVAN

Eighth Respondent

AND:TERRE REBECCA TUCKER

Ninth Respondent

AND:CAROL ANN POWELL

Tenth Respondent

CORAM:                   SPENDER J
PLACE:  BRISBANE
DATE:  25 MARCH 1997

REASONS FOR JUDGMENT

I have before me a notice of motion filed on 18 March 1997 by the Australian Broadcasting Corporation (‘the ABC’) which seeks orders that its solicitors, Messrs Biggs and Biggs, be granted leave pursuant to O 46 r 6 of the Federal Court Rules to inspect the documents on Federal Court file No QG175 of 1987, including orders, affidavits, and exhibits, and further that they have leave to procure copies of the same.

When my attention was drawn to this motion by the Registrar last week, I indicated that, having regard to the affidavit of Mark Ian Jones filed in support of the motion, it was apparent that the inspection of whatever documents which were to be the subject of leave was in connection with a trial listed in the Supreme Court of Queensland to commence on 2 April 1997, being defamation proceedings instituted by Anthony Harold Hyde Bailey under Supreme Court writ No 1303 of 1993 against the Australian Broadcasting Corporation and one Christopher Masters.

I directed that I would hear the motion but only on notice to Mr Bailey.  Today, Mr Morris of Queen's Counsel with Mr Barlow, appeared for Mr Bailey.  It is apparent that none of the parties in proceedings No QG175 of 1987 have been served with this application, and an immediate question arises as to whether in fact the court should grant leave pursuant to O 46 r 6 in the absence of notice to the parties to the proceedings in respect of which inspection is sought. 

Order 46 rule 6(1) provides:

“  Except with the leave of the Court or a Judge a person who is not a party to the proceeding may not search in the Registry for or inspect -

(a)any judgment, order, transcript of a proceeding, or other document which the Court has ordered remain confidential;

(b)any affidavit;

(c)interrogatories or answers to interrogatories;

(d)lists of documents given on discovery;

(e)admissions;

(f)evidence taken on deposition;

(g)any subpoena or any documents lodged with the Registrar in answer to a subpoena for production of documents; or

(h)any other document which the Registrar considers ought to remain confidential to the parties.”

There is no authority to which I have been referred which deals expressly with the question of whether the parties to the proceeding ought to be served with an application under O 46 r 6.

In Tradestock Pty Ltd v TNT (Management) Pty Ltd 50 ALR 461, Smithers J referred to the history of the matter which had led to the application before him. At page 463 his Honour notes that various parties had made written submissions to the District Registrar as to the terms upon which inspection should be granted. The District Registrar had then intimated to all parties that he proposed to grant access to documents in his custody to parties and non-parties. The documents which he proposed to grant access included all transcripts and all exhibits, the index on the cover of court files, and the pleadings and other documents filed. The judgment of Smithers J notes at 464:

“  The District Registrar informed the parties that if any of them objected to the course which he proposed to follow, they should file a summons returnable before a single judge of the court seeking an order to the contrary. The summonses now before me were filed in consequence of the District Registrar's intimation.”

It appears that in Tradestock, the parties to the proceedings were advised in respect of the application that was made before Smithers J; that the application was not a summons seeking leave to inspect documents, but rather seeking an order that a number of documents remain confidential to the parties.  What there occurred would appear to be the reverse of what is contemplated by O 46 r 6 of the Rules.

At 465 Smithers J said:

“  In relation to O 46, r 6 Franki J [in proceeding No. 44 of 1978 by a judgment dated 2 June 1983] stated that no leave was required for inspection of the pleadings, transcript (other than that in respect of which an order for confidentiality has been made), any exhibit (other than that for which an order of confidentiality has been made), any praecipe for a subpoena, the Court Register and the index on the cover of the file unless the Registrar considers any such document should remain confidential under O 46, r 6(1)(h).”

The parties to the present application are in agreement in relation to the District Registrar's decision as to access to documents referred to in parts B and C of annexure “A”, the only qualification being that the applicant ask this court to restrict access to documents in Part C to the parties’ legal advisers.”

It seems to me that the observations by Franki J referred to above reflect the fundamental principle that courts conduct their business in public, and that people should be entitled to have access to what occurs, or has occurred in open court.  Thus it is consistent with the policy of open justice that there should be a right to inspect the transcript and exhibits which have not been the subject of any order for confidentiality, without any requirement for leave.

The general principle was referred to by Smithers J at 468 in these terms:

“  The freedom of access to the court, particularly of persons who are sued, to pursue their defence according to the procedures of the court without fear that that process will expose them to the risk that the court will assist persons having interests adverse to them by giving access to information in documents held by the court during the currency and for the purposes of the litigation, must, to my mind, be very precious as an aspect of public policy.”

His Honour earlier said:

“  I do not think that it can be said that there is anything in the nature of a right in a person who has a potential claim against another to use the court, including the court in its capacity as the custodian of documents during and for the purpose of particular litigation, as a source of information to be used by him in some respect adverse to his interests.”

At 469 his Honour continued:

“  It appears to be the intention of rr 5 and 6 of O 46 that with respect to documents in the custody of the Registrar other than those referred to in paras (a) to (g) of sub-r (1) it is the duty of the Registrar on being requested to permit a stranger to the litigation to search in his registry for, or to inspect, documents to consider whether it would be appropriate for him to permit such search and inspection.  He would be required to consider whether such documents should be treated as confidential to the parties.  Such a question could only be decided by reference to the legitimate interests of the parties to the litigation in the maintenance of privacy against the person seeking to search and inspect.”

The right of members of the public to inspect documents that are public documents was referred to by Byrne J in Smith v Harris [1996] 2 VR 335. While in a different context, (the case was concerned with the question of whether absolute or qualified privilege applied to the particular document in question, or to the publication of the particular document in question), his Honour made a detailed review of the authorities concerning, amongst other things, any privilege that might attach to court documents that were not “deployed” in court, and he construed the circumstances in which privilege might operate narrowly.

At page 348, dealing with the right of access to public documents, his Honour found that pleadings are not documents for which leave is required. 

His Honour concluded that there was no right conferred by statute or rule to inspect documents filed in the Magistrates Court or any record of its proceeding.

That seems not to be the position under O 46 r 6 of the Rules.

The position in the present case is difficult.  It seems to me that there is no reason why the ABC cannot inspect the documents on the file in respect of which leave is not required.

As a matter of principle, there is no reason why leave should not be granted in respect of any affidavit which has been read in open court, or in respect of exhibits which have been tendered in open court and which are not the subject of any order for confidentiality.  A fortiori, it seems to me, that any person is entitled to inspect any judgment, order or transcript in respect of which no court order exists that it remain confidential.

But in the absence of the parties to the proceedings being heard, it seems to me that the court has to be extremely careful before granting leave in respect of matters other than those to which I have just referred.  In the circumstances of this case and, in particular in the absence of service on those parties, it seems to me that I ought not to grant leave to the ABC to inspect, or take copies of, any document on the court file G175 of 1987, except any of the matters referred to in (a) to (g) inclusive of O 46 r 6.

It would be a task of some difficulty to determine from inspection of the file whether any affidavit in that file has been “deployed” in court, to use the expression of Byrne J.  To sort out those which have been so used from those which have not been so used would be a task of some difficulty.

What I propose to do is to grant limited relief to the ABC in respect of its application, by granting leave for the ABC to inspect and take copies of any affidavit filed in proceedings G175 of 1987 by Mr Anthony Harold Hyde Bailey.

Therefore the ABC will be able to inspect and take copies of each and every of those affidavits of Mr Bailey’s, as well as inspect the documents on the file for which no leave is required.  That is to say that the ABC may inspect the pleadings, transcripts (other than in respect of which an order for confidentiality has been made), any exhibit (other than that for which an order for confidentiality has been made), any praecipe for a subpoena, the index on the cover of the file and the court register, if it is other than the index on the cover of the file.

Subject to that grant of leave in respect of the affidavits of Mr Bailey, the motion is dismissed.

It seems to me that I ought to order that the applicant on the motion pay the costs of Mr Bailey of and incidental to the motion, to be taxed if not agreed.  I do that because the application by the ABC (which was brought very late in the day) is an application which misunderstood the nature of O 46 r 6 of the Rules and what documents were able to be inspected without leave.  In respect of those matters which are the subject of leave, it seems to me that the limited access for which I have granted leave merely reflects what is likely to be the situation that has already taken place by way of discovery or informal inspection.

The failure to consider the interests of the other persons who are the parties to the principal proceedings is a significant factor in my conclusion that there was some misconception as to the nature of the application.

In relation to inspection of the matters for which leave is not required and in respect of the affidavits, the ABC is entitled to take copies of those documents at its own cost.  I ought to say that expressly because there is nothing in the rule which deals with the question of taking a copy, and I think that it is foolish to have people dictating the contents of documents by preventing them from taking photocopies at no cost to the court.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

25 March 1997  Associate

Counsel for the applicant on the motion

motion (Australian Broadcasting

Corporation)  :     Ms R Atkinson

instructed by  :     Biggs & Biggs

Counsel for the respondent to the

motion (Anthony Harold Hyde Bailey)   :     Mr A J H Morris QC

with Mr A C Barlow

instructed by  :     Russell & Company

Date of hearing  :     25 March 1997