Loxias Technologies Pty Ltd and Curatherapy Distribution Pty Ltd; (Ex Parte) - [2002] FMCA 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOXIAS TECHNOLOGIES PTY LTD & CURATHERAPY DISTRIBUTION PTY LTD
(EX PARTE)

[2002] FMCA 107

PRACTICE AND PROCEDURE – Application to search the records of the Court in relation to proceedings in the Federal Magistrates Court – discretion of the Court to grant access.

Federal Magistrates Court Rules 2001, Part 2, r 2.08
Supreme Court of New South Wales Practice Notes, No. 97

Curacel International Pty Limited v Department of Health and Aged Care [2002] FMCA 15

First Applicant:

LOXIAS TECHNOLOGIES PTY LIMITED

Second Applicant

CURATHERAPY DISTRIBUTION PTY LIMITED

File No:

SZ 273 of 2002

Delivered on:

31 May 2002

Delivered at:

Sydney

Hearing Date:

31 May 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr R W Evans

Solicitors for the Applicant:

Baldwin Shelston Waters Law

ORDERS

Grant access to the applicants to search file number BZ474 of 2001 and copy the following affidavits (including all exhibits and annexures to those affidavits):
(a)Affidavits of Dr Cham dated 20 September, 4 October and
14 November 2001;
(b)Affidavit of Robert William Hignett dated 6 November 2001;
(c)Affidavit of Eric Phillip McIntosh dated 6 November 2001;
(d)Affidavit of Pio Nicholas Cesarin dated 26 October 2001; and
(e)Affidavit of Barry Joseph Cosgrove sworn 21 January 2002.
Grant access to the applicants to search file number BZ474 of 2001 and copy any exhibits which were tendered at the hearing.
Affidavits and exhibits to be read and copied subject to the Registrar ensuring that any part of the affidavits which have been excluded from evidence are masked so as to be unreadable and uncopiable and if such procedure involves costs, those costs are to be paid by the applicants prior to delivery of the copies of the documents.
This Order is made without prejudice to any rights that may exist in the respondents to matter number N166 of 2001 in the Federal Court of Australia to object to the documentation being placed into evidence in those proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 273 of 2002

LOXIAS TECHNOLOGIES PTY LIMITED

First Applicant

And

CURATHERAPY DISTRIBUTION PTY LIMITED

Second Applicant

REASONS FOR JUDGMENT

In this matter two companies, Loxias Technologies Pty Limited and Curatherapy Distribution Pty Limited applied to the court pursuant to Federal Magistrates Court Rules Part 2, rule 2.08 to search the record and obtain copies of certain affidavits that were given in evidence in a case named Curacel International Pty Limited v Department of Heath and Aged Care that had matter number BZ 474 of 2001. The applicants are parties to proceedings in the Federal Court of Australia against Curacel International Pty Limited and its director, Dr Cham. An affidavit was sworn by Robert John Holmes who says he is the general manager of the applicants.
The affidavit, apart from giving advice concerning the existence of the Federal Court Proceedings then goes on to refer to the concerns that Mr Holmes himself had upon reading the judgment which is found at [2002] FMCA 15. That judgment refers to Mr Holmes, or more accurately to the fact that references were made to Mr Holmes, in the course of the proceedings.
I assume it was the applicants who made some application to the Federal Magistrates Court in Brisbane for the right to search the records pursuant to rule 2.08. That rule sets out the persons who have a right to search records in sub-paragraph (1) and then sub-paragraph (2) says:
“Leave may be granted to a person who demonstrates a proper interest in searching records or inspecting a document and may be granted subject to conditions.”
As Mr Evans, who appears on behalf of the applicants points out, these are unique rules, apparently giving the court more discretion as to who may or may not search records for documents than is found in other courts and in particular, the Federal Court and the Supreme Court of New South Wales. There is a reason for this, and that is that the Federal Magistrates Court has a jurisdiction which covers not only general federal law matters but also family law matters. I believe that if Mr Evans looked in the rules of the Family Court of Australia he would find somewhat more restrictive conditions in relation to the records of that court.
This case is not a family law case. I think it is appropriate that when giving consideration to the exercise of any discretion this should be borne in mind and the procedures followed in civil courts which do not have family law jurisdiction should be applied. Mr Evans referred me to practice note 97 of the Supreme Court of New South Wales which is of some assistance in giving an indication of when access to material in proceedings would be granted to non-parties. Paragraph 2 of the practice note is as follows:
“(2) Access will normally be granted to non-parties in respect of:
(a)pleadings and judgments in proceedings that have been concluded, except insofar as an order has been made that they or portions of them be kept confidential;
(b)documents that record what was said or done in open court;
(c)material that was admitted into evidence; and
(d)information that would have been heard or seen by any person present in open court,
unless the Judge or Registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a Registrar or Judge is satisfied that the exceptional circumstances exist.
The practice note goes on to explain at paragraph 5 that:
“Access to material that is read or included in pleadings may not be seen, because, for example, it contains scandalous material that has been struck out, or material that needs to be kept confidential by statute, or it refers to public interest immunity matters.”
In paragraph 6 the practice note goes on to say:
“The doubtful cases should be referred to the Chief Justice or a Judge nominated by the Chief Justice and the Judge may notify interested parties before dealing with the application.”
In this case the applicants were permitted by the Registrar to take a copy of the transcript which they purchased for a considerable amount of money. Though what Mr Evans says, and he says this with some force, is that it is like a puzzle. He has a document which deals with everything that was done in open court except those affidavits which were read but not read onto the transcript.
The practice of courts to admit evidence by way of affidavit and not to read it onto the transcript has increased in recent times in order to save the courts time and costs. The practice was not commenced, and is not continued with in order to prevent people with a legitimate interest in proceedings from understanding what has gone on and it should not be so used.
I can quite understand that it would be very difficult to completely comprehend what had occurred in the court by reference only to the transcript especially where, as in this transcript, there is continual reference to affidavits and exhibits. I am therefore prepared to give leave to the applicants to search the file and to take copies on the following basis. The applicant may have leave to view affidavits sworn in the proceedings as follows:
a)
Affidavits of Dr Cham dated 20 September, 4 October and

14 November 2001;
b)Affidavit of Robert William Hignett dated 6 November 2001;
c)Affidavit of Eric Phillip McIntosh dated 6 November 2001;
d)Affidavit of Pio Nicholas Cesarin dated 26 October 2001; and
e)Affidavit of Barry Joseph Cosgrove sworn 21 January 2002.
Those affidavits may be read and copied subject to the Registrar of this court ensuring that any part of the affidavits which have been excluded from evidence are masked so as to be unreadable and uncopiable. If this involves any costs, such costs are to be paid by the applicants prior to delivery of the copies of the documents. This order is also made without prejudice to any rights that may exist in the respondents to matter number N166 of 2001 to object to that documentation being placed into evidence in those proceedings.
This order will not come into effect until this judgment has been finalised and the order prepared and the Brisbane Registry of this court has been given an opportunity to carry out the excision of deleted material.
For the avoidance of doubt, the orders which I have made will include access to any material exhibited to, or annexed to, the affidavits of those persons to whom I have referred and the exhibits which were tendered at the hearing with the same caveat concerning any material that may have been excluded.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: