Federal Court of Australia

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Public Access to Court Documents

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.

8. In the case of application for access by a media representative, the procedure is set out in the “Protocol for Media Access to Court Documents”.

February 2005