Hasna v Crown Melbourne Limited

The Parties' submissions 9 Upon receipt of the access request, the Court notified the parties of the access request and invited the parties to provide any objections to the request by way of email addressed to chambers. The representatives for the applicant informed the Court that their client neither supported nor opposed the access request. Crown's legal representatives informed the Court that their client opposed the request, for the following reasons. 10 First, Crown submitted that the open justice principle does not apply to restricted documents that have not been admitted into evidence or read out in open court. It referred to Spigelman CJ's reasons in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [29]-[31] in support of this argument. 11 Second, Crown emphasised that its genuine steps statement has not been and is not likely to be admitted into evidence or read in open court. In connection with this point, Crown referred to the decision of Rangiah J in Baptist Union of Queensland - Carinity v Roberts [2015] FCA 1068; 241 FCR 135 as authority for the proposition that the Court's general practice is to grant third-party access to a restricted document once it has been admitted into evidence or read out in open court. Crown also referred to Austin J's reasons in Australian Securities and Investments Commission v Rich [2001] NSWSC 496; 51 NSWLR 643 as an example in which a court has refused access to documents on a court file where they have not yet been raised in court. 12 Third, Crown submitted that, because genuine steps statements describe the fact, content and outcome of without prejudice communications before the commencement of the proceeding, their disclosure could impact adversely on further without prejudice communications between the parties.

Resolution 13 The CDR Act drew on recommendations from the National Alternative Dispute Resolution Advisory Council in its report entitled The Resolve to Resolve - Embracing ADR to improve access to justice in the federal jurisdiction (November 2009). The Explanatory Memorandum to the Bill which became the CDR Act describes the Act as complementing the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth), which amended the Federal Court of Australia Act 1976 (Cth) and introduced the "overarching purpose" requirement into s 37M of the Federal Court Act. That purpose is to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible 14 At [7], the Explanatory Memorandum to the CDR Act's Bill, describes the overall aims of the CDR Act as: • to change the adversarial culture often associated with disputes • to have people turn their minds to resolution before becoming entrenched in a litigious position, and • where a dispute cannot be resolved, ensuring that if a matter does progress to court, the issues are properly identified, ultimately reducing the time required for a court to determine the matter. 15 At [8], the Explanatory Memorandum notes no specific steps are prescribed to be undertaken by parties before commencing a civil proceeding. Rather: [the CDR Act] is intentionally flexible to enable parties to turn their minds to what they can do to attempt to resolve the dispute. This is to ensure that the focus is on resolution and identifying the central issues without incurring unnecessary upfront costs, which has been a criticism of compulsory pre-action protocols. 16 At [20], the Explanatory Memorandum states: The confidentiality of discussions, negotiations or ADR is not in issue as the requirement to provide a genuine steps statement does not require or authorise parties to seek to adduce evidence of confidential negotiations. This is crucial, as the confidentiality of such discussions and ADR processes is generally seen as one of the reasons why they can be effective; allowing parties to discuss issues frankly with a view to resolution, rather than having to assert rights and protect positions. 17 That statement is consistent with the terms of s 6 of the CDR Act, where the focus is on the steps taken to resolve a dispute prior to the commencement of proceedings, rather than the content of discussions which may have occurred as part of those steps. 18 Section 7 prescribes the obligation of a respondent where an applicant has filed a genuine steps statement: (1) A respondent in proceedings who is given a copy of a genuine steps statement filed by an applicant in the proceedings must file a genuine steps statement before the hearing date specified in the application. (2) A genuine steps statement filed under subsection (1) must: (a) state that the respondent agrees with the genuine steps statement filed by the applicant; or (b) if the respondent disagrees in whole or part with the genuine steps statement filed by the applicant - specify the respect in which, and reasons why, the respondent disagrees. 19 Section 17A provides: To avoid doubt, this Act does not exclude or limit the operation of a law of the Commonwealth, a law of a State or Territory, or the common law (including the rules of equity), relating to the use or disclosure of information, the production of documents or the admissibility of evidence. 20 The Court's other powers to grant leave to third parties to inspect restricted documents are thus not expressly or impliedly constrained by the CDR Act. 21 Nevertheless, given the purposes of the CDR Act and the genuine steps statements, it is likely there may well be occasions where the appropriate exercise of discretion is to refuse leave to a third party to inspect such documents. That may especially be so in the early stages of a proceeding, and prior to any mediations conducted as part of the Court's processes. The Court's legislative scheme, its policies and procedures maintain a strong emphasis on mediation and resolution of proceedings without trial. It is appropriate to bear this emphasis in mind when considering the discretion to grant leave to inspect restricted documents, especially documents parties are required to file and which have as their objective the resolution of disputes without the need for adversarial proceedings. 22 These factors weigh in favour of refusing leave to inspect. 23 While I do not accept all the reasons advanced by Crown, I do accept that in some circumstances, granting third party access to genuine steps statements is capable of having a chilling effect on other prospective parties' without prejudice communications prior to the commencement of proceedings. However, as the extract at [16] above confirms, genuine steps statements are about the steps the parties have taken, and not the actual content of any confidential discussion. Nevertheless, I accept this matter raised by Crown is a factor to be considered in the exercise of the discretion. I turn now to Crown's other submissions. 24 First, and with respect, I do not agree that John Fairfax Publications stands for the proposition Crown submits it does. The passages in Spiegelman CJ's reasons to which Crown refers concern whether there was a common law right of access by a third party to a document filed with the Court and held as part of the Court's records, or whether an implied right of access existed. It was in that context his Honour made the observations relied upon by Crown. In contrast, the Federal Court Rules provide a right of access to unrestricted documents, and a right to seek access to restricted documents. Amongst other factors, the guiding principle of open justice expressed in ss 17(1) and 37AE of the Federal Court Act are important considerations. 25 Second, while it is correct as Crown submits that the genuine steps statement has not been admitted into evidence and is unlikely to be admitted, and while admission into evidence might well be a basis on which access to restricted documents is granted (see Baptist Union at [28]), the Court's rules about the grant of access are not restricted to such material. In other words, the Rules contemplate access might be given to documents which are not admitted in evidence. Contrary to what might seem implicit in Crown's submissions; namely that third party access to genuine steps statements ought never be granted, in Baptist Union Rangiah J granted access to a genuine steps statement: see [22]. While that was on the basis that the parties did not object to access being granted, I do note, however, that the access request in Baptist Union (by a journalist) occurred at an early stage of the proceeding. There had been a directions hearing, and some affidavits read at that directions hearing, but there had been no trial. Thus, as I have observed above, there is no hard and fast rule that a genuine steps statement, despite the purpose of such documents, is a document to which third party access must or should be denied. Each access request must be considered in the particular circumstances in which it is made; that is the nature of a judicial discretion such as the one conferred by r 2.32(4). 26 Third, it is correct that access to some documents was refused in Rich. But Rich was a very different situation, concerning an ex parte application by ASIC for a number of restraining orders, the appointment of a receiver and coercive orders about filing affidavits as to assets. As Austin J's reasons reveal, there was considerable media interest in the ex parte application, and the material which was relied upon in respect of what orders should be made. However, I accept, as Austin J observes at [23], that "free access" to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court. 27 I adhere to the views I expressed in Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; 241 FCR 397 at [24]-[28]: The power to permit inspection of a document under r 2.32(4) is discretionary. In exercising that discretion, it is appropriate for the Court to consider first, the delineation apparent in the terms of r 2.32(2) and other documents which may be on the court file. Subject to the operation of ss 37AE to 37AL and r 2.32(3), the delineation is this. A non-party (and therefore, any member of the public) is entitled to know who the parties to a proceeding in this Court are, and to have an address (through a notice of address for service) for those parties. A member of the public is entitled to see those documents which will enable that person to understand what a proceeding in this Court is about, and how the parties' respective cases are framed: namely, the originating application and the pleadings. The public is entitled to be able to follow the course of the proceedings through processes such as interlocutory applications, appeals and discontinuances. The public is entitled to be able to see the Court's reasons for the disposition of a proceeding. If there is a transcript of a hearing held in public on the Court's file, then by r 2.32(2)(m) that document may be inspected. The rationale for that document being available as of right would appear to be to mirror the ability of the public to be present in court and to listen to the evidence and argument in the course of a proceeding. The entitlement of the public to be present when evidence is given in a proceeding (read with the underlying principles apparent in ss 17 and 37AE of the Federal Court Act) would suggest, subject to any competing discretionary considerations, that an affidavit which is "read" in a proceeding, and thus treated as if that evidence had been given orally in open court, should be made available for inspection: see Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [6]-[10], per Edelman J. An affidavit which is read is thus in no different position to oral evidence-in-chief given by a witness. To permit inspection of such an affidavit is consistent with inspection of transcript being available without leave under r 2.32(2)(m). An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person's evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection. An AHRC complaint falls into none of the categories which I have so far traversed. Indeed, it generally forms no part of a proceeding in this Court at all. Rather, its existence is a precondition to, and a constraint on, this Court's jurisdiction under the AHRC Act. The function it performs as a document within the records of the Court is thus a limited one. 28 Genuine steps statements are more closely related to a proceeding in this Court, but are in a quite different category from, for example, pleadings or affidavits. As the CDR Act makes clear, they are intended to encourage dispute resolution. Where this proceeding is in its early stages, and mediation remains an important aspect of the proceeding, and although the third party seeks access only to Crown's statement, I consider it is not in the interests of the administration of justice for either party's genuine steps statement to be released. I do not consider this is incompatible with open justice principles, and indeed it is compatible with other objectives of civil proceedings, as I have explained. Later in the proceeding, there may well come a time when the factors to which I have given weight have less weight. 29 Accordingly, access will be refused. This decision will not prevent renewal of the request at a later stage, including if the third party disagrees with the decision and wishes to be heard on the matters Crown has raised, and that the Court has referred to in its decision. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.