Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (No 2)

[2019] FCA 1797

FEDERAL COURT OF AUSTRALIA

Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales (No 2) [2019] FCA 1797

File number:

NSD 6020 of 2001

Judge:

ROBERTSON J

Date of judgment:

4 November 2019

Catchwords:

PRACTICE AND PROCEDURE – application by non-party for leave to inspect affidavit – where affidavit relied on in support of application for determination of native title by consent – where affidavit not subject to privilege claim, confidentiality order or non-publication order

Legislation:

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

Native Title Act 1993 (Cth) ss 87, 94A

Federal Court Rules 2011 (Cth) r 2.32

Cases cited:

Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609

Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465

Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135

Burragubba on behalf of the Wangan and Jagalingou Peoples v Queensland (No 2) [2018] FCA 1031

Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232

Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255

Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503

Hartnell v Commissioner of Taxation (No 1) [2009] FCA 230; 254 ALR 71

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 527

Oldham v Capgemini Aus Pty Ltd [2015] FCA 1149; 241 FCR 397

Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) [2006] FCA 407; 232 ALR 398

Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; 222 FCR 580

Rich v Harrington [2007] FCA 1979; 99 ALD 297

Russell v Russell [1976] HCA 23; 134 CLR 495

Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1

Y v University of Western Australia (No 2) [2006] FCA 466; 151 FCR 322

Other material cited:

Access to Documents and Transcripts Practice Note (GPN-ACCS)

Date of hearing:

Application determined on the papers.

Registry:

New South Wales

Division:

General Division

National Practice Area:

Native Title

Category:

Catchwords

Number of paragraphs:

19

ORDERS

NSD 6020 of 2001

BETWEEN:

DULCIE NICHOLLS, NORMAN GRAHAM, STANLEY KAY, JUDITH DAVIES, BRIAN KELLY, AND YVONNE STEWART ON BEHALF OF THE BUNDJALUNG PEOPLE OF BYRON BAY

Applicant

AND:

ATTORNEY GENERAL OF  NEW SOUTH WALES

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

BYRON SHIRE COUNCIL (and others named in the Schedule)

Third Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	4 NOVEMBER 2019

THE COURT ORDERS THAT:

1.Mr Stephen Hall of the Brunswick Valley Historical Society Inc have leave to inspect the affidavit of Ms Alexandra Donaldson (née Crowe) affirmed on 9 April 2019.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1. On 30 April 2019, I made a determination of native title by consent of the parties and pursuant to ss 87(2) and 94A of the Native Title Act 1993 (Cth): see Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 527.

2. Part of the material filed in support of the application was an affidavit by Ms Alexandra Donaldson (née Crowe) affirmed on 9 April 2019 (the affidavit).  The affidavit expressed Ms Donaldson’s opinion as to who constitutes the Bundjalung People of Byron Bay, those peoples’ law and custom and connection to country.  The affidavit was considered in my reasons at [26]–[32], where I accepted the evidence contained in it. 

3. On 17 July 2019, a third-party, Mr Stephen Hall of the Brunswick Valley Historical Society Inc (BVHS) sought access to the affidavit.  In his access request form, Mr Hall said:

   We at BVHS often get queries on local Aboriginal history, and to this end have put together a comprehensive archive and permanent exhibit at our museum, in addition to a brief summary of key historical events at our webpage ‘First People of the Brunswick’, viewable at under ‘Miscellaneous Historical’.

   If Ms Donaldson’s ‘overview’ is not bound by any confidentiality agreements we would be grateful for a copy, as such a document would be a valuable addition to our archive, enabling us to keep abreast of Aboriginal historical research in our bailiwick.

4. Ms Mishka Holt of NTSCORP (legal representative of the applicant) consulted with the applicant and Ms Donaldson in respect of the request.

5. The applicant opposed access being granted, for reasons which may be summarised as follows:

   •Brunswick Valley Historical Society was not a party to the proceedings;

   •The deponent’s evidence provides an overview of her opinions, based on a significant volume of anthropological research. The respondent parties to the proceedings had the benefit of legal representation by experienced native title practitioners and a contextual understanding of the native title proceedings and in some instances, access to the evidence, when considering the affidavit filed. As a non-party, the Brunswick Valley Historical Society, may not have sufficient context to properly consider the affidavit evidence;

   •As is the case with most historical societies, Ms Crowe’s affidavit (if provided) is likely then to become accessible to a larger number of people, possibly with even less sufficient context to consider the affidavit evidence;

   •The Applicant considers that if the Brunswick Valley Historical Society would like to “better address queries about local Aboriginal history”, that it should do so by making contact with the Bundjalung of Byron Bay (Arakwal) Aboriginal Corporation (‘the Corporation’) and developing a relationship with the native title holders concerned, or by referring those seeking information about local Aboriginal history to the Corporation.

6. In my opinion, because the affidavit was read or deployed in support of the consent determination and was not subject to any claim for privilege, or to a confidentiality order or an order that it not be published, then it ought to be accessible to the public, including to Mr Hall of the BVHS.

7. I consider that none of the matters put forward by the legal representative of the applicant constitutes a reason why access to this material should be denied.  I would not accept the contention that the applicant for access, or the “larger number of people” to whom the affidavit may become accessible, may not understand the affidavit.  Even if I did accept that contention, it would not constitute a reason to deny access to the affidavit.  The exchange of information and ideas is not limited to those who may be thought to adequately or best understand them, and access to the courts and what occurs in the course of court proceedings is not to be so limited.

8. It is to be borne in mind that, by s 17 of the Federal Court of Australia Act 1976 (Cth), the jurisdiction of the Court is ordinarily to be exercised in open court and that where the Parliament has expressly made provision for a suppression order or a non-publication order in s 37AG of that Act it has done so by reference to whether an order is necessary.  In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30]-[31], the High Court said about the then s 50 of the Federal Court of Australia Act:

   As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

   It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics.

   (Footnotes omitted.)

9. There has been no claim for privilege in relation to the affidavit.  The Court has not ordered that the document be treated as confidential or that it not be published.  I note also that no claim has been made by reference to copyright in the affidavit or underlying material, although it is not apparent that such a claim would have been relevant to what is presently at issue. 

10. Although Mr Hall, as a non-party, is not “otherwise entitled to inspect” the affidavit, he may apply to the Court, as he has done, for leave to inspect the affidavit: see r 2.32(4) of the Federal Court Rules 2011 (Cth).

11. There is a General Practice Note, Access to Documents and Transcripts Practice Note (GPN-ACCS), issued by the Chief Justice on 25 October 2016.  That Practice Note refers to the principle of “open justice” as an overarching principle which guides the Court in its judicial and procedural operations.  It explains that that principle is not absolute, and must be balanced with the need of the Court to act at all times in the “interests of justice” and avoid prejudice to the administration of justice or avoid other potential harm.  It states that the open justice approach requires parties to be mindful that, upon a request, any document that they have filed in the Court may potentially be made available to any member of the public.

12. In Russell v Russell [1976] HCA 23; 134 CLR 495 at 520, Gibbs J said:

    It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v. Scott [1913] A.C. 417, at p. 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure” (McPherson v. McPherson [1936] A.C. 177, at p. 200).

    See also, to similar effect, Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20] and [22] per French CJ.

13. As explained in Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 at [7] per Pagone J:

    The ability of members of the public, whether or not they have an interest, to have access to court documents is an important aspect of the general principle of open justice. … The ability to enjoy the incidents of open justice, including the right to (sic) ability to inspect documents, is not dependent upon a person having a specific legal right in relation to the proceeding or in relation to the parties to the proceeding. Similarly the enjoyment of those incidents is not limited to those with a disinterest (sic) curiosity in the proceeding or the administration of justice more generally.

14. In my opinion, the dominant factor in relation to the present request is that the affidavit has been admitted into evidence and is not confidential, restricted from publication, or the subject of a claim for privilege.

15. Outside those circumstances, I do not consider that there is any general principle, whether in proceedings under the Native Title Act or otherwise, whereby access to material deployed in open court should be denied to a non-party, at least where allowing access would not impose a substantial and disproportionate burden on the limited resources of the Court: see, eg, Burragubba on behalf of the Wangan and Jagalingou Peoples v Queensland (No 2) [2018] FCA 1031 at [52]-[54].

16. An announcement in court that an affidavit is “read” is usually taken as deeming all the words in the affidavit to be treated as though they had been read aloud: Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [9] per Edelman J. An affidavit which is read is thus in no different position to oral evidence in chief given by a witness, and to permit inspection of such an affidavit is consistent with inspection of a transcript being available without leave under r 2.32(2)(m): Oldham v Capgemini Aus Pty Ltd [2015] FCA 1149; 241 FCR 397 at [26] per Mortimer J.

17. Although, speaking generally, in making a consent determination affidavits or other material relied on by the parties and in the judgment are not formally read or deployed in open court, I regard the appropriate principle, the principle of “open justice”, as requiring the same approach.  In effect, any member of the public is entitled to “hear” the evidence on which the determination is made, and the mere fact that the evidence may be written and not read out, or taken to be read, is not a reason to restrict access, whether at the time of the hearing or subsequently.  It may be that the position is a fortiori when material has been read by the judge in private and is not read out in court because, as Finkelstein J said in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 at [7], denying access to such material would produce the “unacceptable position” that “the manner in which the case has been conducted will only be known to the parties.”

18. Because of the principle of open justice, it is the Court’s usual practice to release material which has been used in open court or otherwise used by a judge in equivalent circumstances: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1 at [27]; ABB Transmission and Distribution at [4]; Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; 222 FCR 580 at [31]-[33]; Rich v Harrington [2007] FCA 1979; 99 ALD 297 at [23]; Y v University of Western Australia (No 2) [2006] FCA 466; 151 FCR 322 at [46]; Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) [2006] FCA 407; 232 ALR 398 at [18]; Hartnell v Commissioner of Taxation (No 1) [2009] FCA 230; 254 ALR 71 at [9]; Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232; Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135 at [34]-[36]; Deputy Commissioner of Taxation v Shi (No 2) [2019] FCA 503 at [15]-[26].

19. For these reasons I grant the request for access to the affidavit.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       4 November 2019

SCHEDULE OF PARTIES

NSD 6020 of 2001
Respondents
Fourth Respondent:	JALI LOCAL ABORIGINAL LAND COUNCIL
Fifth Respondent:	NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Sixth Respondent:	TWEED BYRON LOCAL ABORIGINAL LAND COUNCIL