McVeigh v Retail Employees Superannuation Pty Ltd

1. The non-party application for access to a restricted document on the Court file be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This proceeding was settled between the parties on 2 November 2020 prior to going to trial. The Court has now received an application from a non-party to access a document contained on the Court file. The document in question is the Applicant's Outline of Submissions which was filed on his behalf on 28 October 2020 in advance of the hearing. While the Applicant has no issue with non-party access to their submissions, the Respondent opposes access being granted. 2 Access to documents contained on the Court file is governed by r 2.32 of the Federal Court Rules 2011 (Cth) ('FCR'). Rule 2.32 distinguishes between documents which non-parties are entitled to access (such as pleadings and orders) - so-called unrestricted documents - and other documents which require the Court's leave to be made available (known as restricted documents). Submissions fall within the latter category and therefore cannot be accessed by the public without a grant of leave from the Court. I do not think that this is a case where such leave should be granted. 3 The Court's approach to granting non-party access requests is guided by considerations of open justice: Castle v United States [2018] FCA 1079 at [16]; Minister for Immigration and Border Protection v Egan [2018] FCA 1320 at [4]. This is reflected in the Court's general approach of releasing any documents that have been used in open court: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; 148 FCR 1 at 9 [27]; Baptist Union of Queensland - Carinity v Roberts [2015] FCA 1068; 241 FCR 135 at 144 [36]. 4 However, notions of open justice do not necessarily support access to Court file documents where there has never been a public hearing: Dallas Buyers Club, LLC v iiNet Limited (No 1) [2014] FCA 1232 at [14]. In this case, the submissions in question contain a number of statements which are critical of the Respondent. One of the reasons the Respondent settled the case, so it submits, was to avoid the adverse publicity a hearing in open court might engender. Although one can never be too definitive about this, it seems to be legitimate in considering how the discretion under r 2.32 FCR should be exercised to take into account the public interest in the settlement of litigation and the legitimate expectation that a party who settles a case may have of avoiding adverse publicity: Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 at [24]; Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 at [30]. It seems to me that to allow access to documents in this case following a settlement would undermine these matters. Although the interests of open justice are important they are less so where there has been no hearing to which the interests directly relate and where the release of the material would undermine the values to which I have referred. 5 I note for completeness that the Applicant was content for his submissions to be released. It was submitted on his behalf that any prejudice that might be caused by the release of his submissions could be cured by releasing the Respondent's submissions. This submission proves the point made in the preceding paragraph. What would then exist would be the debate which the parties settled to avoid having. 6 In these circumstances, I refuse the application for access to the Applicant's submissions. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.