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[2009] FCA 123
procedural. The Court treated the listed documents as available for public inspection, granted access to the specified affidavits read in open court, and declined the applicant's request for an interim order...
1 cited instrument linked from this judgment.
Mansfield J ruled on who could inspect documents in the Court file. The Court allowed inspection of listed procedural and submissions documents, and also allowed access to affidavits that had already been read and relied on in open court. It considered that there was no identified reason to prevent access, including no identified prejudice to the administration of justice or apparent disclosure of the applicant's or his wife's taxation affairs. The Court did not temporarily block access while the applicant sought legal advice.
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2,095 words · generated 30/09/2026
In Nicholls v Australian Federal Police (No 2) [2009] FCA 123, Mansfield J dealt with a procedural question: public access to documents on the Federal Court file. The parties were Arthur Christopher Nicholls, the Australian Federal Police and the Deputy Commissioner of Taxation. The ruling did not determine the substantive merits of the proceeding. It addressed inspection of filed documents and affidavits, and a request for temporary restraint of access.
The respondents did not oppose public access to documents governed by O 46 r 6(2), or to documents read in open court in connection with an interlocutory application. The ruling records that the latter material comprised 12 affidavits ([2]). Mansfield J said that, for the reasons given in Deputy Commissioner of Taxation v Nicholls [2009] FCA 122, O 46 rr 6(1) and (2) should operate to make specified documents on this file available for inspection ([2]). The reasons in that other decision are not reproduced in full in the supplied text, so this ruling does not support a fuller account of its reasoning.
The listed documents included the originating and amended applications, orders, a notice of objection to competency, written outlines and submissions, and a judgment dated 15 January 2009 ([2]). The remaining issue was inspection of affidavits read in open court on behalf of the applicant ([3]). Mansfield J considered the access principle, the absence of an identified reason to withhold access, and the applicant's request for an interim order. The Court permitted public access to 12 identified affidavits ([9]) and declined the interim restraint ([10]).
The ruling distinguishes between documents covered by O 46 rr 6(1) and (2), and other file documents, including affidavits, governed by O 46 r 6(3). As to the first group, the Court said the relevant rules should make the listed documents available for inspection, relying on its reasons in the related decision cited at [2]. The ruling does not set out the text of those rules, so the basis for the result should be described no more broadly than Mansfield J's statement.
For affidavits and other documents within O 46 r 6(3), leave was required before inspection ([4]). Mansfield J drew on the approach described in Seven Network Ltd v News Ltd (No 2), where Sackville J said that the Court ordinarily considers that the public should have access to material admitted into evidence unless the interests of justice require otherwise ([4]). The quoted explanation was practical: if evidence was given in open court, members of the public could have heard it, and the same considerations applied where documentary evidence or affidavits were read in court. Mansfield J connected that approach with the proposition that the administration of justice should take place in open court, citing R v Davis ([4]).
The Court treated access as the starting point, not as an automatic result in every case. Mansfield J noted that an order under s 50 of the Federal Court of Australia Act 1976 (Cth), or another legislative provision requiring information to be treated as confidential, would probably displace the starting point ([5]). The ruling does not decide the scope or operation of s 50. It identifies that kind of order or statutory direction as a possible reason for a different result.
On the facts described, the applicant had not sought an order to keep the information confidential when the affidavits were read and addressed in submissions ([6]). The Court recorded that he had not identified a basis, even an arguable one, for concluding that public inspection would prejudice the administration of justice ([6]). Mansfield J considered the circumstances pointed the other way: the affidavits had already been read and relied on in open court, and it was difficult to see how preventing later access would serve the administration of justice ([6]). There was also no suggestion that the applicant or his counsel had failed to understand that the proceeding was being conducted in open court ([7]).
The Court separately considered whether the affidavits disclosed taxation affairs. Despite an invitation to identify relevant content, the applicant had not identified any passage disclosing his or his wife's taxation affairs. Mansfield J described the material as generally concerning the circumstances in which a search warrant was issued and executed in relation to documents of the applicant, his wife or associated entities, and said that, so far as he could determine, it contained no information about their taxation affairs ([8]). That assessment was confined to the material before him.
The applicant sought an interim order restraining access while he sought legal advice. Mansfield J said he would have granted interim relief if there were an arguable case that the applicant might ultimately be entitled to such an order. He declined to do so because the applicant had been represented by counsel at material times and because the material had become public by being read and relied on in open court ([10]).
This ruling does not purport to change the law. It applies procedural rules and an open-court approach to access to court-file material. The relevant distinction in the reasons is between documents that the Court treated as inspectable under O 46 rr 6(1) and (2) ([2]), and other documents, including affidavits, which required leave under O 46 r 6(3) ([4]).
For the latter category, the ruling describes an ordinary starting point of public access to material admitted into evidence in open court, subject to a reason grounded in the interests of justice or another relevant basis for confidentiality ([4]-[5]). The reasoning attributes the formulation about access to admitted evidence to Sackville J in Seven Network and links it to open justice through R v Davis ([4]). It also identifies a statutory confidentiality direction or an order under s 50 as examples that could probably displace the starting point ([5]).
The practical effect in this proceeding was to allow inspection of the specified file documents and affidavits. The decision does not establish that every affidavit filed in a proceeding is automatically open to inspection. It expressly recognises that O 46 r 6(3) requires leave for other documents, and its reasoning concerns affidavits read in open court and relied on in submissions ([4]-[9]). Nor does the ruling set out a comprehensive test for all confidentiality claims. It records why the grounds advanced or identified in this matter did not persuade the Court to prevent access.
At [4], Mansfield J quoted Sackville J's statement that if evidence was given in open court, the public could have heard it and there was no reason why its record should not also be available. In plain English, a document does not necessarily become inaccessible merely because it records evidence already presented publicly. The passage supports access to evidence read in court, while retaining the qualification that the interests of justice may require a different result.
At [5], Mansfield J said it was appropriate to permit access to affidavits read on both sides unless there was good reason not to do so. He then identified a possible statutory or court-ordered confidentiality basis that could displace the starting point. In plain English, the Court approached access as the normal position for this publicly used evidence, but recognised that a proper confidentiality ground could alter it.
At [6], the Court said the applicant had not identified any basis, even arguably, for finding that access would prejudice the administration of justice. In plain English, the ruling turned on the absence of a substantiated justice-based reason for withholding the material, as well as the fact that the material had been read and relied on publicly.
At [8], Mansfield J said he could not determine that the affidavits contained information about the applicant's or his wife's taxation affairs. The Court's observation was limited: the material generally related to the circumstances of the search warrant and associated documents. It should not be read as a general finding about the contents of documents outside the specified affidavits.
At [10], Mansfield J declined the interim restraint because the applicant had been represented by counsel at the material times and the affidavits had become public through their use in open court. In plain English, the Court did not consider a temporary block appropriate on the circumstances recorded in the ruling.
The ruling is most directly relevant to a request for public inspection of affidavits or other evidence that has already been read and relied on in open court. Its reasoning focuses on the public character of the proceeding, the ability of members of the public to hear the evidence, and whether there is a specific reason why later access would prejudice the administration of justice ([4]-[6]).
It is also relevant where a party contends that publicly used affidavit material contains sensitive taxation information. Here, the Court invited identification of any such content, and the applicant did not identify it; Mansfield J's own review did not reveal it ([8]). That is a fact-specific assessment, not a general rule that tax-related information can never justify restrictions.
The decision also addresses a distinction between file documents within O 46 rr 6(1) and (2), and other documents requiring leave under r 6(3) ([2], [4]). A person considering the ruling in another case would need to identify which category applies and whether the evidence was in fact read in open court. The decision does not resolve access to every filed document merely because it is part of a court file.
Finally, the ruling identifies possible reasons that may affect access, including an order under s 50 of the Federal Court of Australia Act 1976 or another legislative confidentiality provision ([5]). It also records the significance of whether confidentiality was sought when the material was used in court ([6]-[7]). It does not decide what result would follow if such an order existed, or if a concrete risk of prejudice had been established.
The supplied judgment contains no later decisions discussing or applying Nicholls (No 2). It was delivered on 19 February 2009, and its reasons refer to earlier authorities rather than later treatment. On the material provided, it is not possible to state whether later courts followed, distinguished or otherwise treated this ruling.
The authorities Mansfield J did mention are part of the ruling's own reasoning. Seven Network is cited for the ordinary public-access approach to evidence admitted in court; R v Davis is cited for the open-court proposition; Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations is given as an example supporting access to affidavits read in court; and Churche v Australian Prudential Regulation Authority (No 3) is cited regarding a possible statutory or court-ordered confidentiality exception ([4]-[5]). The ruling also relies on the related decision Deputy Commissioner of Taxation v Nicholls [2009] FCA 122 for its treatment of documents under O 46 rr 6(1) and (2) ([2]). The text supplied does not provide the later history of any of these authorities.
The ruling does not decide how the access starting point would apply where affidavit material was filed but not read or relied on in open court. It distinguishes those other documents as requiring leave under O 46 r 6(3), but the circumstances before Mansfield J concerned affidavits read in open court ([3]-[5]).
It also does not provide a detailed test for what amounts to a good reason to withhold access. It refers to the interests of justice, potential prejudice to the administration of justice, an order under s 50 and other legislation directing confidentiality, but does not examine a contested claim under any of those bases ([4]-[6]).
The ruling does not explain what evidentiary material would be needed to establish prejudice or confidentiality in a different case. Its conclusion followed from what the applicant did, and did not, identify about these affidavits ([6]-[8]). Nor does it determine the scope of any statutory protection relating to taxation information; it records only its assessment of the affidavit material before it ([8]).
Finally, the decision does not provide a general rule for interim restraints while a party seeks legal advice. Mansfield J's reasoning on that request was tied to representation by counsel at material times and the fact that the affidavits had already become public through their use in open court ([10]).
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REASONS FOR RULING 1 The issue has arisen as to public access to search this file. 2 The parties were notified of the issue and have made submissions. The respondents do not oppose the public having access to the documents on the file which are governed by by O 46 r 6(2) of the Federal Court Rules (Cth), or the documents which have been read in open Court in relation to an interlocutory application of the respondent. Those documents comprise 12 affidavits. For the reasons given in Deputy Commissioner of Taxation v Nicholls [2009] FCA 122, a copy of which I attach to these reasons, I consider that O 46 r 6(1) and (2) should operate so as to make the documents on this file to which it refers available for inspection. Those documents are: · Application of 2 June 2008 · Order of FM Brown of 17 July 2008 · Order of FM Simpson of 22 August 2008 · Order of FM Simpson of 29 August 2008 · Amended Application of 9 September 2008 · Order of FM Simpson of 9 September 2008 · Notice of Objection to Competency of 17 September 2008 · Respondent's Outline of Submissions on Notice of Objection to Competency and on Application for an Order Dismissing Proceedings of 27 November 2008 · Applicant's Outline of Contentions of 23 December 2008 · Applicant's Further Outline of 9 January 2009 · Respondent's Outline of Submissions of 13 January 2009 · Applicant's Reply to Respondent's Outline of Submissions of 15 January 2009 · Judgment of Mansfield J of 15 January 2009. 3 There remains the issue as to affidavits read in open Court on behalf of the applicant. 4 Under O 46 r 6(3), other documents on the file including affidavits may not be inspected without the leave of the Court or a judge. In Seven Network Ltd v News Ltd (No 2) (Court's "Seven Network Ltd v News Ltd" Judgment No 9) (2005) 148 FCR 1, Sackville J at [27] said that ordinarily, unless the interests of justice require otherwise, the Court takes the view that a member of the public should have access to material admitted into evidence. The reason for that is clear enough. If the evidence was given in open court, so that any member of the public may have been present and have heard it, there is no reason why the record of it should not also be available. If the evidence was documentary, or given by the reading of an affidavit, the same considerations apply. That approach reflects the proposition that the administration of justice should take place in open court: R v Davis (1995) 57 FCR 512 at 514. 5 It is, therefore, appropriate to permit access to the affidavits read on the applicant's and respondents' behalf unless there is good reason not to do so: see, eg Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 606. An order under s 50 of the Federal Court of Australia Act 1976 (Cth), or if there was some other legislative provision which directed that certain information be regarded as confidential, would probably displace that starting point: Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168. 6 At the time the affidavits referred to were read in Court, and addressed in submissions, the applicant through his counsel did not apply for any order that the information should be confidential on any basis. The applicant has been unable to identify any basis upon which, even arguably, the availability of that material for inspection to the public, who may have been present in Court when it was read and relied upon, would cause prejudice to the administration of justice. The contrary is the case. As it has now been read in open Court and relied upon, it is difficult to see how it could be in the interests of the administration of justice to prevent further access to it. 7 There is no suggestion that the applicant or his counsel at the time did not apprehend that the proceeding was being conducted in open Court. 8 Moreover, despite the invitation to do so, the applicant has not identified any content in any of that affidavit material which discloses the taxation affairs of himself or his wife. It generally relates to the circumstances in which a search warrant came to be issued and executed in relation to documents of the applicant or his wife, or of entities with which they are associated. So far as I can determine, it does not contain any information about the taxation affairs of the applicant or his wife. 9 For those reasons, I consider that it is appropriate under O 46 r 6(3) to permit the public access to the affidavits on this file which have been read in open Court. They are as follows: · Affidavit of Arthur Christopher Nicholls sworn 2 June 2008 · Affidavit of David Mien Wei sworn 27 June 2008 · Affidavit of William Joseph Allen sworn 3 July 2008 · Affidavit of Jegathisen Puranachandran sworn 9 July 2008 · Affidavit of Adrineh Houspian sworn 9 July 2008 · Affidavit of Hammish Henry Cullen Cameron sworn 9 July 2008 · Affidavit of Adrian Mark Heinjus sworn 9 July 2008 · Affidavit of Steven Paul Illett sworn 25 July 2008 · Affidavit of Adrian Mark Heinjus sworn 6 August 2008 · Affidavit of Jegathisen Puranachandran sworn 15 August 2008 · Affidavit of Gregory Camilos sworn 20 August 2008 · Affidavit of Arthur Christopher Nicholls sworn 28 November 2008 10 The applicant sought an interim order restraining access to those documents whilst he sought legal advice. Were there some arguable case that, ultimately, he might be entitled to such an order, I would have granted the interim order. However, I decline to do so because at material times, he was represented by counsel and because that material has now become public by having been read and relied upon in open Court. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mansfield.
Associate: Dated: 19 February 2009 Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondents: Australian Government Solicitor
Date of Written Submissions: Applicant's: 3 February 2009 and 11 February 2009 Respondents': 4 February 2009
Nicholls
Australian Federal Police
The Court treated the listed documents as available for public inspection, granted access to the specified affidavits read in open court, and declined the applicant's request for an interim order restraining access.