Minister for Immigration and Border Protection v Egan

[2018] FCA 1320

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Egan [2018] FCA 1320

Appeal from:

SYYD v Minister for Immigration and Border Protection (Citizenship) [2017] AATA 2705

File number:

NSD 2261 of 2017

Judge:

ALLSOP CJ

Date of judgment:

28 August 2018

Catchwords:

PRACTICE AND PROCEDURE – request by non-party for access of documents on the Court file – restricted documents – objection by the respondent – principle of open justice – reliance on requested documents in open court – no confidentiality orders or suppression orders – no basis for refusing leave to access requested documents  

Legislation:

Federal Court of Australia Act 1976 (Cth), ss 17, 37AE, 37AG

Federal Court Rules 2011 (Cth), rr 2.31, 2.32

Cases cited:

John Fairfax Group v Local Court of NSW (1992) 26 NSWLR 131

Australian Competition and Consumer Commission v Cascade Coal (No 1) [2015] FCA 607

Date of last submissions:

27 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

13

Solicitor for the Appellant:

A Markus of Australian Government Solicitor

Solicitor for the Respondent:

W Ahmed of Buttar, Caldwell & Co

ORDERS

NSD 2261 of 2017

BETWEEN:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Appellant

AND:

FINIAN JAMES EGAN

Respondent

JUDGE:	ALLSOP CJ
DATE OF ORDER:	28 AUGUST 2018

THE COURT ORDERS THAT:

1.Leave be granted to Mr Keith Moor to inspect and copy the following documents on the Court’s file for this proceeding:

(a)The written submissions of the appellant filed on 2 August 2018.

(b)The written submissions of the respondent filed on 9 August 2018.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1. On 14 August 2018, a non-party filed a request for access to Court documents in respect of this matter. This non-party is a journalist, Mr Keith Moor of the Herald Sun.

2. Two documents were sought to be inspected: the written submissions of the Minister filed 2 August 2018, and the written submissions of the respondent dated 9 August 2018 (requested documents). Both of these documents fall under the category of “restricted” documents. That is, leave of the Court is required before they can be inspected and copied by non-parties.

3. The request for access was brought to my chambers’ attention on 24 August. On that day, an email was sent seeking the views of the parties. The solicitor for the appellant informed us that the appellant had no objection to the request for access being granted. The solicitor for the respondent noted that the respondent objected to “the release of any submissions to a non-party in these proceedings.”

4. The principle of open justice is one of the overarching principles in the administration of justice, in this Court and all others. It lies at the heart of the exercise of judicial power as part of the wider democratic process. The principle involves justice being seen to be done. A key part of this task is enabling accurate and fair public reports of proceedings. Open justice is not an absolute concept, unbending in its form. It must on occasion be balanced with other considerations, including but not limited to considerations such as the avoidance of prejudice in the administration of justice or the protection of victims. Nevertheless, an order restricting the ordinary open justice approach is not lightly made. This balancing exercise is reflected in ss 17, 37AE and 37AG of the Federal Court of Australia Act 1976 (Cth), as well as in the Federal Court Rules 2011 (Cth): see e.g. rr 2.31, 2.32.

5. Given the above, on 27 August 2018, my chambers emailed the following to the solicitors representing the parties in this matter:

   The Chief Justice has indicated that, given the principles of open justice and the fact that the requested documents were relied upon in Court, any objection to the release of the requested documents is to be accompanied by short submissions of no more than half a page in length.

6. The solicitor for the respondent replied with the following on the same day:

   We are instructed to advise the Court that our client is and continues to be subjected to personal trespass along with trespass on his property by members of the media due to this matter. Whilst we have explained the issue of open justice to him, we are instructed to request the Respondent submissions are kept private as our client fears for his personal safety due to ongoing nuisance by the media noting his age and health.

   We otherwise leave this matter in the hands of the Court.

7. It is regrettable that the respondent feels he is faced with media intrusion into his personal life and that he fears for his safety. His desire to withhold the documents is understandable. However, there is no reason to justify withholding the requested documents. This is for a number of reasons.

8. First, to the extent that the requested documents were relied upon in Court as submissions, their substance will be present in the transcript of the Court proceedings. These transcripts are publicly available through the Court’s Authorised Transcript Provider, Auscript. As a result, the substance of the information contained in the requested documents is already available for public consumption subject to a formal application and payment of a relevant charge.

9. Secondly, no part of the requested documents is confidential or suppressed. Nor have any orders been sought by the respondent to make them confidential or suppressed.

10. Thirdly, the requested documents do not contain scandalous material, other than what is already publicly known about the respondent’s criminal convictions. As explained by Kirby P in John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131, 142:

    It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms…

11. In this case, any additional embarrassment, inconvenience, or annoyance that the respondent may experience due to media attention is marginal at most and is not sufficient a reason to justify detracting from the open nature of court proceedings: see e.g. Australian Competition and Consumer Commission v Cascade Coal (No 1) [2015] FCA 607, [30].

12. Finally, although the Administrative Appeals Tribunal proceedings from which this matter is appealed anonymised the respondent’s identity, his identity in the proceedings in this Court have been made public, pursuant to the orders of Perram J made on 9 July 2018.

13. In light of the above reasons, I make the following order:

    (1)Leave be granted to Mr Keith Moor to inspect and copy the following documents on the Court’s file for this proceeding:

    (a)The written submissions of the appellant filed on 2 August 2018.

    (b)The written submissions of the respondent filed on 9 August 2018.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.

Associate:    

Dated:        28 August 2018