1. This protocol sets out the general approach that
might be taken when the Federal Court considers a request
by a person who is not a party to a proceeding in the
Court for access to one or more documents in the file
relating to the proceeding.
2. 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.
3. Pursuant to Order 46 subrules 6(1) and (2), a non-party
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.
4. Pursuant to Order 46 subrules 6(3) and (5), a non-party
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.
5. Pursuant to Order 46 subrule 6(4), except with the
leave of the Court or a Judge, or with the permission
of the Registrar, a non-party must not inspect any document
in the proceeding that is not referred to in paragraphs
3 and 4 above.
6. Normally, access to a document referred to in paragraph
4 or 5 above, including an exhibit, would be granted
where the document (or the relevant parts of the document)
has been admitted into evidence or read out in open court.
7. However, there may be cases where it would be appropriate
to refuse access to a document 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.
