Re an Application by the NSW Bar Association

[2004] FMCA 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RE: AN APPLICATION BY THE NSW BAR ASSOCIATION [2004] FMCA 52

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

PRIVACY – Whether the granting of the application would involve any breach of the Privacy Act considered.

Bankruptcy Act 1966 (Cth), ss.153B, 308
Federal Magistrates Court Rules 2001 (Cth)
Legal Profession Act 1987 (NSW), ss.48B, 48E
Privacy Act 1988 (Cth), Division 1, Part 3

Loxias Technologies Pty Ltd v Curatherapy Distribution Pty Ltd [2002] FMCA 107

Applicant: NSW BAR ASSOCIATION

File No: SYG51 of 2004

Delivered on: 5 February 2004

Delivered at: Sydney

Hearing date: 5 February 2004

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Ms T Virgara
Hicksons

ORDERS

1. The applicant be given photocopy access to files SZ450 of 2001 and SZ795 of 2002.

2. The applicant be given leave to request from Auscript Pty Ltd a copy of transcript of all proceedings before the Court in matter number SZ450 of 2001 and SZ795 of 2002.

3. The applicant be given leave to obtain a certified copy of judgment delivered by Federal Magistrate Driver on 20 August 2002 in proceedings SZ450 of 2001.

4. The applicant be given leave to obtain a certified copy of judgment delivered by Federal Magistrate Driver on 28 November 2002 in proceedings SZ795 of 2002.

5. Photocopy access to files SZ450 of 2001 and SZ795 of 2002 be exercised in the court registry and that the applicant pay any fee required by the Court registry for that photocopy access.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG51 of 2004

NSW BAR ASSOCIATION

Applicant

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application by the New South Wales Bar Association seeking orders granting photocopy access to two files of this Court and access to a certified copy of two judgments of the Court, as well as access to transcript of the former proceedings.  The New South Wales Bar Association seeks this access for the purposes of considering action under the Legal Profession Act 1987 (NSW) (“the Legal Profession Act”) against Mr Peter Alexander Gargan. The Bar Association proceeds on the basis of its application filed on 8 January 2004 and the affidavit of Michael Pelosi filed on the same date. He relevantly deposes as follows:

   I am instructed by the NSW Bar Association to act in respect of alleged breaches by Mr Peter Alexander Gargan of the Legal Profession Act in that Mr Gargan may have acted as a barrister, or solicitor and barrister, without a practising certificate contrary to s.48B of that Act, and/or may have performed general legal work for a fee contrary to the provisions of s.48E of that Act.

   I am instructed that on 20 August 2002 proceedings SZ450 of 2001 were listed for hearing before Federal Magistrate Driver of this Honourable Court.  The proceedings involved a creditor’s petition by Clinch, Neville, Long against Ann Carolyn Teese.

   I am instructed that on 20 August 2002, Mr Peter Alexander Gargan appeared before Driver FM for the respondent, Ann Carolyn Teese, as an agent appointed under s.308 of the Bankruptcy Act 1966 (Cth). I am instructed that Mr Gargan handed up to Driver FM a written authority presumably appointing him as such agent. I am instructed that Mr Gargan made submissions to the Court on behalf of the respondent. On that date Driver FM acceded to the creditor’s petition and various orders were made against the respondent.

   I am instructed that on 5 September 2002 Ms Ann Carolyn Teese filed in this Honourable Court an application under s.153B of the Act for an annulment of her bankruptcy. Those proceedings are numbered SZ795 of 2002. I am instructed that those proceedings were listed for hearing on 28 November 2002 before Driver FM. At that time the proceedings were discontinued.

   I am instructed that my client has received information that that the actions of Mr Peter Alexander Gargan, in his dealings with Ms Teese in relation to the abovementioned proceedings before this Honour Court, may have contravened ss.48B and 48E of the Legal Profession Act.

   It is respectfully requested that this Honourable Court grant the orders sought in the application in order to allow my client to properly investigate and ascertain whether the actions of Mr Peter Alexander Gargan contravened the stated provisions of the Legal Profession Act and if so, allow for the use of those documents in taking appropriate action against Mr Gargan.

2. The Federal Magistrates Court Rules 2001 (Cth) deal with this matter. Rule 2.08 provides as follows:

   1.Subject to any order of the Court, the following persons may search the records of the Court relating to a proceeding or any matter under the Act, the Regulations or these Rules, or inspect a document forming part of such records:

   (a)in relation to a family law or child support proceeding - the Attorney General;

   (b)if the records relate to a particular proceeding - a party, a lawyer for a party or a child representative in the proceeding;

   (c)a person who has been granted leave of the Court or a Registrar to search the records or inspect the document.

   2.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.

3. The proceedings in issue were not family law or child support proceedings. I am satisfied that the interest which the Bar Association advances in its application is established by the affidavit of Mr Pelosi as a proper interest. There is a public interest in advancing the investigation of possible breaches of the Legal Profession Act and the New South Wales Bar Association is an appropriate agency to pursue the investigation. In the circumstances, it is appropriate to grant the leave envisaged in rule 2.08 to the New South Wales Bar Association, and more particularly to grant the orders sought in respect of photocopy access and access to transcript as well as a certified copy of my judgment in the proceedings.

4. The only other issue that occurs to me is whether any issue arises under the Privacy Act 1988 (Cth) (“the Privacy Act”). I note that this Court being a federal court is an agency for the purposes of that Act. I note that there is a general obligation on agencies under the Privacy Act to avoid interference with privacy by observing the information privacy principles prescribed in the Act. However, I have some doubt whether the Act applies to the actions of the Court in the performance of its judicial as opposed to its administrative functions.

5. I make no finding on that issue. However, I do find that if the Privacy Act applies to an action of the Court in the performance of its judicial, as opposed to its administrative functions, there is, in this instance, no interference with privacy for the purposes of Division 1 of Part 3 of the Privacy Act as there is no breach of an information privacy principle. The relevant principles, in my view, would be information privacy principles 10 and 11. The access granted pursuant to the leave of the Court would, in my view, be a disclosure authorised by or under law and the use made of the information would be a use authorised by or under law.

6. In addition, the disclosure and the use for the purposes of principles 10 and 11 would be a disclosure and a use which is reasonably necessary for the enforcement of a law imposing a pecuniary penalty, namely the Legal Profession Act. I will grant orders 1 to 4 sought by the application. I will further order that photocopy access to files SZ450 of 2001 and SZ795 of 2002 be exercised in the court registry and that the applicant pay any fee required by the registry for that photocopy access.

Postscript

1. Since I dealt with this application I have become aware of the decision
   of Federal Magistrate Raphael in Loxias Technologies Pty Ltd v Curatherapy Distribution Pty Ltd [2002] FMCA 107. I note in particular Raphael FM’s observations in paragraphs 5-7 of that decision:

   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.

2. However, the Practice Note, if I had had regard to it in this case, would not have altered the outcome of this application.  This was not a doubtful case and I considered it necessary and appropriate for the Bar Association to be granted access to all documents filed in the proceedings, as well as transcript and my judgments.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  13 February 2004