Nicholls v Australian Federal Police

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.