Access to Documents and Transcripts Practice Note (GPN-ACCS)

J L B Allsop, Chief Justice 25 October 2016

General Practice Note

1. Introduction and Definitions

1.1 This practice note provides guidance in respect of requests for access to documents contained in a file relating to a proceeding in the Court,[1] and in respect of access to transcripts of a proceeding.

1.2 The practice note takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing.

1.3 The meaning of the following terms used in this practice note is set out below:

Access Applicant

means the person making the Request.

Request

means a request for access to documents in the proceeding, being either a Party Request (ie. made by a party or a representative of a party to the proceeding) or a Non-Party Request (ie. made by any member of the public, or someone on behalf of the person who is not a party to the proceeding).

Unrestricted documents

means the documents in a proceeding listed in r 2.32(2) of the Federal Court Rules 2011 (Cth) ("Federal Court Rules"). These documents may usually be inspected, but exceptions may apply (see r 2.32 generally).

Restricted documents

means the documents in a proceeding not mentioned in r 2.32(2) of the Federal Court Rules, and may include, for example: certain affidavits, exhibits, unsworn statements of evidence, subpoena material and confidential material. Subject to exceptions, parties may inspect these documents however, non-parties require leave of the Court.

2. General Approach

2.1 The principle of "open justice", including justice being seen to be done and ensuring that nothing is done to discourage the making of fair and accurate reports of proceedings, is an overarching principle which guides the Court in its judicial and procedural operations. This principle, which extends to questions of access to Court documents, is reflected in the Federal Court of Australia Act 1976 (Cth)[2] ("Federal Court Act") and Federal Court Rules, particularly r 2.31 "Custody of Documents" and r 2.32 "Inspection of Documents", and other rules in specialist areas (eg. bankruptcy, corporations, admiralty or criminal proceedings).

2.2 However, the principle of open justice is not absolute, and must be balanced with the need of the Court to act at all times in the "interests of justice" and avoid prejudice to the administration of justice or avoid other potential harm.

2.3 "Interests of justice" is a broad concept that gives rise to many matters that the Court must consider when assessing a Request, including the interests of all parties (eg. questions of confidentiality and privacy), the community, the application of any Commonwealth law, and any reasonably necessary requirements to ensure the just and fair administration of justice. Further, the Court must consider whether a Request may be unreasonably burdensome on the administration of justice.

2.4 This open justice approach requires parties to be mindful that (subject to the requirements of the Federal Court Act, the Federal Court Rules and the discretion of the Court) upon a Request, any document that they have filed in the Court may potentially be made available to any member of public, including the media.

3. Considerations Before Making a Request

Freely Accessible Court Documents

3.1 Before making a Request, an Access Applicant should bear in mind that it may be possible to access a document in a proceeding or related information freely. For example, certain types of documents are available to be accessed by parties and non-parties without a fee through the Commonwealth Courts Portal ("CCP").

3.2 Parties may access all documents in a proceeding through the CCP other than those that are confidential or otherwise restricted, subject to appropriate registration and other Court requirements. Further, they may opt-in to activity notifications via email from the CCP to "track" a case. These notifications advise when a new listing date is added, a document is lodged or an order has been uploaded. Non-parties may access judgments and orders through the CCP. A user-guide about effective use of the CCP is available on the Court's website.

3.3 Further, certain information about a proceeding is available to anyone (without the need to register) through Federal Law Search (in the CCP), which provides case information, including:

  • court events - past and future (when known);
  • a list of documents filed by parties;
  • orders of the Court (in full-text from 2004 - 2005);
  • dates relating to judgment delivery (when known), with links to judgments;
  • names of parties and lawyers.

3.4 The Federal Law Search database may also be relied upon to carry out certain required searches under legislative instruments,[3] such as a required search in relation to bankruptcy. Further information on the Federal Law Search, checking the progress of cases and finding future listings is available on the Court website.

Obligations of the Access Applicant

3.5 Prior to making any Request, the Court expects that the Access Applicant will have acted on, or given careful consideration to:

(a) whether the Request is the most efficient method possible to access the documents;

(b) whether the documents can more easily and cost effectively be obtained from an original or other source, if the Court is not such a source (eg. a report of a Government agency freely available on that agency's website);

(c) framing the Request in a concise and accurate manner, drafted as narrowly as practicable to achieve the Access Applicant's aim (eg. rather than requesting all affidavits on a file, requesting those relevant to a person or particular period of time);

(d) whether the Access Applicant anticipates that there may be a likelihood for controversy to arise due to the Request (for example, if the material sought is commercially sensitive, confidential or intended to be used in another proceeding); and if so, the Access Applicant should, where it is practical and appropriate to do so, consider seeking the relevant party's views in relation to the Request.

3.6 The Court understands that it may not always be possible (for example due to urgency) or necessary to satisfy each of the above obligations.

3.7 Equally, the Court recognises that the relative obligations of an Access Applicant will be influenced by the nature of the Request and the purpose underpinning the Request. By way of illustration only, a Request by a lawyer on behalf of a client to access a document for use in future litigation against the party that filed it may give rise to a greater obligation to undertake preliminary enquiries with that party than a similar Request by a journalist who seeks the document based on genuine public interest grounds.

4. Access to Documents Generally

4.1 This Part does not apply to transcripts. In respect of transcripts, see Part 6 of this practice note.

4.2 Generally, the inspection and removal of documents from the Court is governed by Division 2.4 of the Federal Court Rules. The right to inspect a document in a proceeding is, in part, determined by whether the Access Applicant is a party or non-party and whether the document is an unrestricted document or a restricted document (see r 2.32 of the Federal Court Rules). The Court will also take into consideration the principles of justice described in Part 2 of this practice note.

Request by a Party

4.3 Subject to any order or direction of the Court and certain exceptions (regarding privilege and confidentiality), a party may inspect any document in the proceeding (rr 2.31 and 2.32(1) of the Federal Court Rules).

4.4 A party may apply to the Court for leave to inspect a document that the party is not otherwise entitled to inspect (r 2.32(4) of the Federal Court Rules).

Request by a Non-Party

4.5 Subject to any order or direction of the Court and certain exceptions (regarding confidentiality and restriction from publication), a non-party may inspect the "unrestricted" documents set out in r 2.32(2) of the Federal Court Rules. These include documents such as originating applications, pleadings (or particulars of a pleadings), certain formal notices and reasons for judgment.

4.6 Any document in a proceeding falling outside the categories set out in r 2.32(2) of the Federal Court Rules is, essentially, a "restricted" document. A non-party requires the leave of the Court to inspect such documents (r 2.32(4) of the Federal Court Rules).

Lodging a Request

4.7 Depending on whether an Access Applicant is a party or a non-party, the respective Request form available on the Court's website should be used to make the Request.

4.8 The Court prefers to receive a Request electronically, via email. Information about how to make a Request by email or how to otherwise contact the relevant registry is available on the Court's website.

Consideration of a Request

4.9 Some Requests are not straightforward, and the Court may require further information from an Access Applicant or certain steps to be taken by the Access Applicant before making a decision about the Request. It is therefore in the interests of the Access Applicant to include important relevant information in the Request, so as to minimise delays in considering the Request.

4.10 In considering a Request, the Court will consider a range of factors, including (but not limited to):

(a) whether the Access Applicant is a party or non-party;

(b) whether the documents fall initially within a restricted or unrestricted category;

(c) the context surrounding, and purpose underpinning, the Request;

(d) the nature of the documents sought (eg. whether the documents have been admitted into evidence or read out in open court, whether the documents are confidential, restricted from publication, the subject of legal privilege, contain scandalous material etc);

(e) the principles set out in Part 2 of this practice note, including whether the Request may result in an undue burden on the Court.

4.11 If, in the opinion of the Court, circumstances warrant it - including due to the nature of the documents in question (eg. potential confidentiality issues arise), then the Court may require the Access Applicant to communicate with relevant persons or parties connected with the documents in the proceeding about the Request, inviting such parties to comment on the Request (or the Court may do so itself).

4.12 The Court will take a practical approach to processing a Request by, for example, wherever it is practicable to do so, determining any simple aspect of a Request and releasing any documents approved, while a more complex part of the Request is awaiting determination. This may not be possible in all such circumstances.

4.13 While the Court will endeavour to process a Request as soon as practicable, Access Applicants should note that the time that it takes to process a Request may depend on many variables, including:

(a) how much, and what type, of information has been provided by the Access Applicant to allow the Court to properly understand the Request;

(b) how broad the Request is (and how many restricted documents are sought);

(c) whether the documents sought are contained within paper or electronic court files or current or completed files, and whether a completed file is archived (as, for example, certain Native Title files are required to be) in which case the request may also involve liaison between the Court and the National Archives of Australia; and

(d) whether the matter needs to be referred to a District Registrar and/or a Judge; and

(e) whether obtaining the views of other parties or persons may be necessary.

Applicable Fees

4.14 On making a Request, the Access Applicant must pay the fee for inspection of the documents and any applicable fees if copies are requested.[4] Photocopying fees may be exempted only if the person liable to pay is entitled to a general or financial hardship exemption in the proceedings generally.[5] Information on how to make payment of the Request fee  (which may be paid online) is available on the Court's website.

The Court's Response to a Request

4.15 The Court may approve or refuse a Request (either in whole or in part) and may approve a Request subject to any conditions that the Court may consider appropriate (see generally r 2.31 of the Federal Court Rules).

4.16 Once the Court has made a decision on the Request, the Access Applicant will be notified about the outcome of the decision. Depending on the circumstances, this will usually occur via email.

4.17 If a Request is approved and the relevant fee has been paid the Court will provide the documents in the manner that it considers will be the most efficient and cost-effective. This will often be in electronic form via email. However, in some circumstances it may be more appropriate to provide the documents in person at the registry of the Court.

5. Research Requests

5.1 Requests for access to Court data or information for the purposes of research can broadly be divided into two categories:

(a) statistical information readily generated by the Court's case management system; and

(b) more detailed research projects requiring access to Court data, files or other records, either within a single registry or across multiple registries.

5.2 Generally speaking, where it has the resources to do so, the Court will endeavour to assist with research requests from government agencies associated with legal services and policy development, and requests associated with academic research projects that are sponsored and supervised by recognised tertiary institutions.

5.3 The Court's current policy in respect of research requests is available on the Court's website.

6. Transcripts

6.1 For the purpose of this Part:

Authorised Transcript Provider

means any Authorised Transcript Provider, authorised to provide transcript for the Court. Contact details of the Court's Authorised Transcript Providers is available on the Court's website.

Transcript Request Form

means the approved form set by the Authorised Transcript Provider, to be lodged directly with the relevant Authorised Transcript Provider. Copies of the form are available from the Authorised Transcript Provider's website, contact details of the relevant Authorised Transcript Providers is available on the Court's website.

6.2 Copyright in all transcripts belongs to the Commonwealth of Australia and, subject to the Federal Court Rules and any order or direction of the Court, transcripts cannot be shared between parties or distributed to any other recipients. It should also be noted that a party or person must not use a recording device for the purpose of making a transcript or record of the evidence or submissions at a hearing (r 6.11(3) of the Federal Court Rules).

6.3 A party or non-party (including the media) may purchase the whole, or a part, of a transcript in a proceeding from the Court's Authorised Transcript Provider, unless the Court has ordered or directed that a transcript:

(a) is, in whole or in part, confidential or the subject of restrictions on access; or

(b) may not be published or reproduced without leave of the Court.[6]

6.4 Subject to such restrictions, a transcript will be provided if a formal request for a transcript is submitted the Court's Authorised Transcript Provider using the approved form and after payment of the relevant charge set by the Authorised Transcript Provider.[7] The various forms of the Authorised Transcript Provider can be accessed via the Court's website. 

7. Further Information and Resources

7.1 Further information about access to documents and transcript requests is available on the Court's website. Otherwise, general queries concerning the matters noted in this practice note should be raised with your local registry. Contact details for your local registry  are available on the Court's website.

7.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

J L B ALLSOP
Chief Justice

25 October 2016


[1] Note: the right to inspect or seek leave to inspect is not absolute, and relates to documents "in a proceeding". This does not mean every document on a court file but does usually include filed documents such as applications, pleadings, notices and so on.

[2] See s 17 – Exercise of jurisdiction in open court and in chambers.

[3] The database may be relied upon for the purposes of a search in relation to: a bankruptcy notice (r 4.04 of the Federal Court (Bankruptcy) Rules 2016 (Cth)); the Register of Caveats Against Arrest (r 39 and form 13 of the Admiralty Rules 1988 (Cth)); the Register of Caveats Against Release (rr 51 and 52 and Forms 18 and 19 of the Admiralty Rules 1988).

[4] The current fees for the request, production of and copying of Court file documents are set out in Schedule 1, Item 123 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth), which is available on the Court's website.

[5] See regulation 2.04(2) Federal Court and Federal Circuit Court Regulation 2012 (Cth).

[6] See relevantly, Part VAA of the Federal Court Act generally in respect of suppression and non-publication order.

[7] See also 2.32(5) of the Federal Court Rules.