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.
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.
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:
(a) an application or other originating
process;
(b) a notice of appearance;
(c) a pleading or particulars of a pleading;
(d) a notice of motion or other application;
(e) a judgment;
(f) an order;
(g) a notice of appeal;
(h) a notice of discontinuance;
(i) a notice of change of solicitors;
(j) a notice of ceasing to act;
(k) in a proceeding to which Order 78 applies:
(i) an affidavit accompanying
an application, or an amended application, under section
61 of the Native Title Act 1993;
(ii) an extract from the Registrar of Native Title Claims
received by the Court from the Native Title Registrar.
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:
(a) an affidavit (other than
an affidavit accompanying an application, or an amended
application, under section 61 of the Native Title Act
1993);
(b) an unsworn statement of evidence filed in accordance
with a direction given by the Court or a judge;
(c) interrogatories or answers to interrogatories;
(d) a list of documents given on discovery;
(e) an admission;
(f) evidence taken on deposition;
(g) a written submission;
(h) a subpoena or document lodged with the Registrar in
answer to a subpoena for production of a document;
(i) a judgment, order, or other document that the Court
has ordered is confidential; or
(j) a document filed in the proceeding to support an application
for an order that a document, evidence or thing be privileged
from production.
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 nonparty must not inspect
any document in the proceeding that is not referred to
in paragraphs 3 and 4 above.
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.
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.
