This memorandum sets out how a media representative
(being a journalist or a person acting on behalf of a
media organisation) may obtain access to one or more
documents in a proceeding in the Federal Court.
1. Access to a document in a proceeding in the Federal
Court is determined in accordance with Order
46 rule 6 of the Federal Court Rules.
2. A media representative may search in a Registry for,
and inspect and copy, any of the following documents
unless the Court or a Judge has ordered that the document
is confidential:
an application or other originating process;
a notice of appearance;
a pleading or particulars of a pleading;
a notice of motion or other application;
a written submission;
a judgment;
an order;
a notice of appeal;
a notice of discontinuance;
a notice of change of solicitors;
a notice of ceasing to act;
in a proceeding to which Order 78 applies:
an affidavit accompanying an application, or
an amended application, under section 61 of the Native
Title Act 1993;
an extract from the Register of Native Title
Claims received by the Court from the Native Title
Registrar.
3. A media representative may only inspect and copy
any of the following documents with the leave of the
Court or a Judge:
an affidavit (other than an affidavit accompanying
an application, or an amended application, under
section 61 of the Native
Title Act 1993);
an unsworn statement of evidence filed in accordance
with a direction given by the Court or a Judge;
interrogatories or answers to interrogatories;
a list of documents given on discovery;
an admission;
evidence taken on deposition;
a subpoena or document lodged with the Registrar
in answer to a subpoena for production of a document;
a judgment, order, or other document that the
Court has ordered is confidential; or
a document filed in the proceeding to support
an application for an order that a document, evidence
or thing be privileged from production.
4. A media representative must not inspect any document
in the proceeding that is not referred to in paragraphs
2 or 3 above except with the leave of the Court or a
Judge, or with the permission of the Registrar.
5. Where leave is necessary in order to inspect and
copy a document, a media representative may seek such
leave by completing the attached application form. Copies
of the form are available from each District
Registry and below.
6. The application form asks for the name and contact
details of the media representative making the request,
and for information about the document or documents the
representative wishes to inspect and copy. The form includes
an agreement by the media representative that
(a) the document or documents will not be provided until
any fees prescribed by the Federal Court of Australia
Regulations have been paid; and
(b) the document or documents will only be used for
the purpose of reporting on the proceeding; and
(c) no part of the document or documents will be copied
or made available to any other person except for that
purpose; and
(d) any additional conditions specified by the presiding
Judge will be complied with.
7. The application form must be sent to the associate
of the presiding Judge.
8. Upon receiving the application, the Judge may
(a) approve the request, either in whole or in part,
and subject to any additional conditions the Judge considers
appropriate; or
(b) ask the representative to send a copy of the application
form to the parties to the proceeding with an invitation
to them to comment on the request; or
(c) refuse the request.
9. As a general approach, leave to access a document
referred to in paragraph 3 or 4 above, including an exhibit,
will be granted where the document has (or the relevant
parts of the document have) been admitted into evidence
or read out in open court. However, there may be cases
where leave to access a document may be refused on the
basis that
(a) only parts of the document have been admitted into
evidence or read in open court; and
(b) it would be unduly burdensome for Court staff to
provide a redacted version of the document showing
only those parts that are in evidence or have been
read out.
10. Once the Judge’s decision is made, a copy
of the form signed by the Judge will be returned to the
media representative. The original form will be kept
by the Court. The Judge’s decision to refuse or
approve the request, and any additional conditions, will
be set out in the spaces provided on the application
form.
11. If approval is given, the representative must
(a) arrange with the relevant Registry to inspect and
copy the document or documents to which the approval
applies; and
(b) pay to the Registry any fees prescribed by the
Federal Court of Australia Regulations.
12. If the request is not approved, the media representative
may make an application to the Court for an order under
Order
46 subrules 6(3), (4) or (5) of the Federal Court
Rules (depending on the document or documents the subject
of the request).
