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 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 written submission;
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 the Federal Court's Internet home
page.
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).
