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Nicholls v Australian Federal Police (No 2) [2009] FCA 123 (19 February 2009)

Last Updated: 20 February 2009

FEDERAL COURT OF AUSTRALIA


Nicholls v Australian Federal Police (No 2) [2009] FCA 123


ARTHUR CHRISTOPHER NICHOLLS v AUSTRALIAN FEDERAL POLICE and DEPUTY COMMISSIONER OF TAXATION


SAD 138 of 2008


MANSFIELD J
19 FEBRUARY 2009
ADELAIDE


IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY

BETWEEN:
AND:

DATE:
PLACE:

REASONS FOR RULING

  1. The issue has arisen as to public access to search this file.
  2. The parties were notified of the issue and have made submissions. The respondents do not oppose the public having access to the documents on the file which are governed by by O 46 r 6(2) of the Federal Court Rules (Cth), or the documents which have been read in open Court in relation to an interlocutory application of the respondent. Those documents comprise 12 affidavits.

For the reasons given in Deputy Commissioner of Taxation v Nicholls [2009] FCA 122, a copy of which I attach to these reasons, I consider that O 46 r 6(1) and (2) should operate so as to make the documents on this file to which it refers available for inspection. Those documents are:


  1. There remains the issue as to affidavits read in open Court on behalf of the applicant.
  2. Under O 46 r 6(3), other documents on the file including affidavits may not be inspected without the leave of the Court or a judge. In Seven Network Ltd v News Ltd (No 2) (Court’s “Seven Network Ltd v News Ltd” Judgment No 9) [2005] FCA 1394; (2005) 148 FCR 1, Sackville J at [27] said that ordinarily, unless the interests of justice require otherwise, the Court takes the view that a member of the public should have access to material admitted into evidence. The reason for that is clear enough. If the evidence was given in open court, so that any member of the public may have been present and have heard it, there is no reason why the record of it should not also be available. If the evidence was documentary, or given by the reading of an affidavit, the same considerations apply. That approach reflects the proposition that the administration of justice should take place in open court: R v Davis [1995] FCA 1321; (1995) 57 FCR 512 at 514.
  3. It is, therefore, appropriate to permit access to the affidavits read on the applicant’s and respondents’ behalf unless there is good reason not to do so: see, eg Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 606. An order under s 50 of the Federal Court of Australia Act 1976 (Cth), or if there was some other legislative provision which directed that certain information be regarded as confidential, would probably displace that starting point: Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168.
  4. At the time the affidavits referred to were read in Court, and addressed in submissions, the applicant through his counsel did not apply for any order that the information should be confidential on any basis. The applicant has been unable to identify any basis upon which, even arguably, the availability of that material for inspection to the public, who may have been present in Court when it was read and relied upon, would cause prejudice to the administration of justice. The contrary is the case. As it has now been read in open Court and relied upon, it is difficult to see how it could be in the interests of the administration of justice to prevent further access to it.
  5. There is no suggestion that the applicant or his counsel at the time did not apprehend that the proceeding was being conducted in open Court.
  6. Moreover, despite the invitation to do so, the applicant has not identified any content in any of that affidavit material which discloses the taxation affairs of himself or his wife. It generally relates to the circumstances in which a search warrant came to be issued and executed in relation to documents of the applicant or his wife, or of entities with which they are associated. So far as I can determine, it does not contain any information about the taxation affairs of the applicant or his wife.
  7. For those reasons, I consider that it is appropriate under O 46 r 6(3) to permit the public access to the affidavits on this file which have been read in open Court. They are as follows:
  8. The applicant sought an interim order restraining access to those documents whilst he sought legal advice. Were there some arguable case that, ultimately, he might be entitled to such an order, I would have granted the interim order. However, I decline to do so because at material times, he was represented by counsel and because that material has now become public by having been read and relied upon in open Court.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mansfield.

Associate:


Dated: 19 February 2009


Counsel for the Applicant:
The applicant appeared in person


Counsel for the Respondents:
L Chapman


Counsel for the Respondents:
Australian Government Solicitor

Date of Hearing:
9 February 2009


Date of Written Submissions:
Applicant’s: 3 February 2009 and 11 February 2009

Respondents’: 4 February 2009


Date of Ruling:
19 February 2009

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