Resolution
24 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.
25 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.
26 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).
27 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.
28 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.
29 As Ms Oldham submits, proceedings before the Commission are private (see for example s 46PK) and confidential between the parties to the complaint. Section 49 of the AHRC Act imposes significant non-disclosure obligations on the Commission and its staff, subject to exceptions (see s 49(3)) which would, for example, permit a member of the Commission's staff to forward a complaint to this Court so it could accompany an application under s 46PO:
(1) A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not, either directly or indirectly:
(a) make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or
(b) make use of any such information as is mentioned in paragraph (a); or
(c) produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.
Penalty: 50 penalty units or imprisonment for 1 year, or both.
(2) A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not be required:
(a) to divulge or communicate to a court any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or
(b) to produce in a court a document relating to the affairs of another person of which the first-mentioned person has custody, or to which that person has access, by reason of that person's office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission;
except where it is necessary to do so for the purposes of this Act.
(3) Nothing in this section prohibits a person from:
(a) making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made for the purposes of or pursuant to that Act;
(b) divulging or communicating information, or producing a document, to an instrumentality of a State in accordance with an arrangement in force under section 16; or
(c) divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act.
Note: A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Nothing in subsection (2) prevents a person being required, for the purposes of or pursuant to an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced.
(4A) Subsection (1) does not prevent the Commission, or a person acting for or on behalf of the Commission, from giving information or documents in accordance with paragraph 20(4A)(e).
Note: A defendant bears an evidential burden in relation to a matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).
(4B) Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so:
(a) in the performance of a duty under or in connection with this Act; or
(b) in the course of acting for or on behalf of the Commission.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal Code).
(5) In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
30 One of the consequences of an applicant deciding to bring a proceeding in this Court under the AHRC Act is that the privacy and confidentiality which attended the Commission's handling of the complaint does not continue in the way this Court deals with the subject matter of the complaint. That fact does not mean, in my opinion, that the complaint as the foundation document in the Commission should not continue to be afforded some protection in this Court, subject always to the considerations relevant in each given case.
31 The Commission deals with complaints of unlawful discrimination under a number of federal statutes. Often, the subject matter of those complaints is intensely personal. Many complainants are not legally represented. They may, to use a colloquialism, "pour their hearts out" in a complaint to the Commission. However they express their complaints, they do so in the confidence of a private process, designed to facilitate resolution of complaints through confidential conciliation. Once a person elects to proceed to this Court, she or he has a fresh choice about the subject matter of the claim made in this Court, and how it is expressed. She or he cannot materially change or exceed the subject matter complained of before the Commission, but it can be narrowed and circumscribed. It can be couched in different language. In my opinion it would generally be inimical to the purpose and structure of the AHRC Act, which is based around confidentiality as between complainants, the Commission and respondents, for an AHRC complaint to be made available for public inspection in this Court.
32 In the present case, I consider that principle is applicable. I reach that conclusion not without some hesitation because although I have said above that "generally" an AHRC complaint forms no part of the proceeding in this Court, that is not the case with Ms Oldham's AHRC Complaint. Ms Oldham's AHRC Complaint consists of two documents. The first is a nine page letter from her legal representatives to the Commission which sets out a summary of the facts of her complaint, the legal issues and the outcomes she sought before the Commission. The second is a forty-five page statement by Ms Oldham, which attaches various documents such as contemporaneous email messages. The statement bears Ms Oldham's name but is not in the form of an affidavit or statutory declaration.
33 The statement contains sensitive and personal material, not just about Ms Oldham, but about other people. It goes into considerable detail about the background to her complaint, her employment with the first respondent and the conduct she alleges contravenes the Sex Discrimination Act and the Disability Discrimination Act.
34 In this Court, Ms Oldham's statement of claim is expressly framed by reference to her statement to the Commission. Her statement which formed part of her AHRC Complaint is referred to in the particulars to various paragraphs of the statement of claim, and is there described as "Statement". For example, I extract below the first two subparagraphs of paragraph [7] of the statement of claim:
In the course of performing his duties and functions as the CEO and as Ms Oldham's career counsellor, Mr Thorley:
a. did not arrange for Ms Oldham to undergo a thorough and detailed Capgemini induction, in contrast to the former employees of Satyam, who were all men, including Mr Nangia, he caused to be hired shortly thereafter;
Particulars
Statement at [7]
b. failed and/or refused to conduct Ms Oldham's performance reviews in accordance with Capgemini protocol;
Particulars
Statement at [23]
c. …
35 The statement of claim is replete with further pleadings of this nature. In that way, Ms Oldham's private and confidential statement to the Commission has been expressly relied on in the pleadings in this Court. It was this pleading technique which no doubt encouraged the current inspection application.
36 Pleadings are available for inspection by third parties as of right under r 2.32(2). The Dictionary in Sch 1 to the Rules defines "pleading" as including a statement of claim. There is no definition of "statement of claim". I am not satisfied that a document to which reference is made in a statement of claim necessarily forms part of the statement of claim for the purposes of the inspection rules. A statement of claim (or defence) may refer, especially in the giving of particulars, to a number of different kinds of documents - for example correspondence, contractual documents or documents created by third parties. Those documents do not become part of the statement of claim itself. The statement of claim consists of the allegations of law and fact made in it. The material facts are to be contained in the pleading itself and not in the particulars: see r 16.02(1)(d). See also r 16.04 concerning documents to which a pleading refers. Whether Ms Oldham's statement of claim complies with the Rules is not relevant to the present application and does not affect the conclusions I have reached.
37 A proceeding in this Court may be commenced by originating application and affidavit. An affidavit, even if it is the one on which the proceeding is founded, is not available for inspection as of right under r 2.32(2). I do not see why, for the purposes of the inspection rules, a document referred to in a statement of claim should be in any more vulnerable position. It may or may not form part of the evidence adduced at trial; it is not yet fully within the principles of open justice.
38 Therefore, despite the express references in the particulars to the statement of claim to Ms Oldham's AHRC Complaint, I do not consider the pleading in this form affects the approach I would otherwise take, and the conclusions I have otherwise reached, on this application.
39 It is also appropriate for the Court to consider the reason access is sought. In a given case, a person's reasons for requesting access to a document may provide a powerful discretionary consideration. I do not consider Mr Scott's reason outweighs the considerations against the grant of access to which I have referred above.
40 The reason given by Mr Scott for seeking access to the complaint is stated in Mr Smith's affidavit, and in the initial correspondence to the Victorian Registry by his counsel on his appeal. It relates to the asserted relevance of the contents of the complaint to grounds for an appeal by Mr Scott to the New Zealand Court of Appeal from a serious criminal conviction in June 2014, with the appeal scheduled for 9 July 2015. It is apparent from Mr Smith's affidavit and the submissions filed on behalf of Mr Scott that Mr Smith considers the contents of the applicant's statement of claim in this proceeding may be of assistance to Mr Scott in an appeal.
41 Currently, there is no evidence whether the appeal was heard on that date or not, nor whether there has been any disposition of the appeal. There is no explanation as to why it took until 17 September 2015 for the interlocutory application to be filed. There is no evidence therefore about the current utility of granting access to the AHRC Complaint, in terms of its use in any appeal. There is no evidence whether such a ground has in fact been raised on the appeal, nor whether the New Zealand Court of Appeal has been informed about this application. In my opinion, it is apparent that Mr Smith can articulate from the contents of the statement of claim the basis of an appeal ground which he considers may be available to Mr Scott.
42 That being the case, I accept Ms Oldham's submissions that if this matter is to be pursued, it can be pursued in the New Zealand courts. Ms Oldham points to the provisions of the Criminal Disclosure Act 2008 (NZ) and a procedure by which a New Zealand court may compel a person or agency to disclose information that may assist a defendant properly to defend a criminal charge made against her or him.
43 I have examined those provisions, in particular ss 24 to 29. So far as I understand them, they appear to apply principally in the conduct of a criminal trial, rather than appellate proceedings. However, the term "criminal proceedings" is defined in s 6 to include any appeal against conviction or sentence. Accordingly, the processes for which ss 24 to 29 provide may well apply to an appeal. Mr Scott's reply submissions did not respond to this aspect of Ms Oldham's submissions, even though Mr Smith would be the person best placed to have assisted the Court in understanding whether the procedures under the Criminal Disclosure Act, or any comparable procedures, were available on an appeal from a conviction. There is also the issue of their extra-territorial operation.
44 It would be a matter for Mr Scott to persuade a New Zealand court on appeal that there was a sufficient basis for it to make a coercive disclosure or production order in relation to Ms Oldham's AHRC Complaint. It is plain that an order could be sought against Ms Oldham herself, or the Commission, and certainly need not be sought against this Court, or the Registry of this Court. Seeking the AHRC Complaint from this Court is a somewhat indirect route. As Mr Scott's submissions amply demonstrate, that basic argument (if it is in fact to be made at all) can be made on the basis of the statement of claim, to which he has a right of access and has in fact accessed through his legal representatives. Any further process for access to the AHRC Complaint could properly occur at a time when the relevance of the AHRC Complaint to Mr Scott's interests is more than hypothetical: that is, where there is an appeal on foot, and a ground of appeal exists which is capable of bearing a relationship to the AHRC Complaint.
45 Mr Scott contends, in the submissions filed on his behalf, that the "touchstone is the interests of justice". That contention is too broadly expressed. This Court must be guided in the exercise of its discretion in r 2.32(4) by the interests of the administration of justice in this Court, and looks for guidance to any applicable common law principles, to the Federal Court Act and to the Rules. In my opinion, the interests of the administration of justice in this Court as between the parties to the proceeding, the public who are the beneficiaries of the open justice principle and (if they be relevant) the interests of other litigants in this Court, do not favour the release of the AHRC Complaint for inspection by Mr Scott, or by his legal representatives on his behalf. I have set out at [24] to [38] above where I consider those interests lie.
46 The interests of the administration of justice in relation to Mr Scott are a matter for the New Zealand courts, fully seized of a relevant proceeding, and fully informed of the asserted relevance and context of the AHRC Complaint.
47 Mr Scott submitted that the AHRC Complaint could be appropriately redacted by the Court before release. That is an impractical and inappropriate suggestion. It is not the Court's function to speculate about which parts of the AHRC Complaint may be of assistance to Mr Scott and which may not.
48 Finally, in the material in support of the application there are references to Mr Scott having a terminal illness. How that fact affects his criminal appeal process is a matter for the New Zealand courts. While not wishing to appear unsympathetic to Mr Scott if those are his circumstances, this fact in my opinion has no relevance to the inspection application. Even if it did, it would not in my opinion outweigh the matters I consider tell against access.