Messenger v Commonwealth of Australia

[2017] FCA 879

FEDERAL COURT OF AUSTRALIA

Messenger v Commonwealth of Australia [2017] FCA 879

File number(s):

TAD 28 of 2017

Judge(s):

KERR J

Date of judgment:

2 August 2017

Catchwords:

PRACTICE AND PROCEDURE – Federal Court Rules 2011 r 2.32(3) – restriction of access to statement of claim by non-parties – originating application not yet served on Respondents – order restricting access limited until after affected party has notice of relevant matters

Legislation:

Federal Court of Australia Act 1979 (Cth), s 17

Federal Court Rules 2011 (Cth), r 2.32

Registry:

Tasmania

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

3

Table of Corrections

2 August 2017

In Order 2, the words ‘First Respondent’ have been replaced with ‘Second Respondent’.

In Order 3, the words ‘First Respondent’ have been replaced with ‘Second Respondent’.

In paragraph 1 the words ‘First Respondent’ have been replaced with ‘Second Respondent’.

In paragraph 2 the words ‘First Respondent’ have been replaced with ‘Second Respondent’.

In paragraph 3 the words ‘First Respondent’ have been replaced with ‘Second Respondent’.

ORDERS

TAD 28 of 2017

BETWEEN:

ROBERT DESMOND MESSENGER

Applicant

AND:

COMMONWEALTH OF AUSTRALIA

First Respondent

JACQUILINE LOUISE LAMBIE

Second Respondent

JUDGE:	KERR J
DATE OF ORDER:	2 AUGUST 2017

THE COURT ORDERS THAT:

1.Pursuant to r 2.32(3)(b) of the Federal Court Rules 2011 the Statement of Claim be restricted from publication to persons other than parties in this proceeding.

2.Unless extended by further order, this order expires at 4.00 pm on the day following the Second Respondent filing a Notice of Address for Service.

3.Upon the Second Respondent filing a Notice of Address for Service, the Registrar is to advise the Second Respondent of this order.

4.Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KERR J:

1. The Applicant has filed, but has not yet served, an originating application and a statement of claim in these proceedings. Pursuant to r 2.32(2) of the Federal Court Rules 2011, both documents would, absent an order by this Court, be available for inspection by a person who is not a party. That is consistent with the general principles of open justice as expressed by s 17 of the Federal Court of Australia Act 1976. However r 2.32(3) gives the Court power to restrict access to such materials in appropriate, albeit exceptional, circumstances. In the present matter the Registrar has drawn my attention to certain matters pleaded in the statement of claim in reference to the Second Respondent which could be contended to be inconsistent with r 16.02(2) or otherwise engage the power in r 2.32(3).

2. Ordinarily it would be for a respondent in these proceedings to make an application that the Court exercise such a power, but as noted, the Respondents have yet to be served. The Second Respondent is unaware of any circumstances which might, if so advanced, lead her to seek such orders. 

3. To preserve the position until the Second Respondent has been served and has filed a notice of address for service I have made interim orders as the relevant duty Judge, restricting access by non-parties to the statement of claim but not the originating application. My orders will expire automatically following that event unless the Court is satisfied that it is necessary in the interests of justice to make a further order. In the ordinary course such documents are available for inspection by non-parties. I express no view as to whether these orders can or ought be further extended. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.

Associate:

Dated:        2 August 2017