FEDERAL COURT OF AUSTRALIA

Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149 

Citation:	Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149	
		
Parties:	SHELLEY OLDHAM v CAPGEMINI AUSTRALIA PTY LTD and PAUL THORLEY 	
		
File number:	VID 582 of 2014	
		
Judge:	MORTIMER J	
		
Date of judgment:	26 October 2015	
		
Catchwords:	PRACTICE AND PROCEDURE – third party application for leave to inspect documents – third party sought leave to inspect Australian Human Rights Commission complaint attached to originating application and referred to in statement of claim for potential use in overseas criminal proceeding – no inspection as of right of documents referred to in statement of claim – consideration of relevant factors including principle of open justice, confidentiality of proceedings before the Commission and apparent failure to utilise other available measures to compel disclosure – application refused 

HUMAN RIGHTS – third party application for leave to inspect Australian Human Rights Commission complaint attached to originating application and referred to in statement of claim – consideration of relevant factors including confidentiality of proceedings before the Commission – application refused 	
		
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46PK, 46PO, 49
Federal Court of Australia Act 1976 (Cth) ss 17, 37AE, 37AF, 37AG, 43, Pt VAA Div 2

Federal Court Rules 2011 (Cth) rr 2.32, 2.32(2), 2.32(4), 16.02, 16.04, 34.163, Sch 1

Criminal Disclosure Act 2008 (NZ) ss 6, 24 to 29  	
		
Cases cited:	Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573
Knight v F.P. Special Assets Limited [1992] HCA 28; 174 CLR 178 
Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455  	
		
Date of hearing:	Heard on the papers	
		
Date of last submissions:	12 October 2015	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	59	
		
Counsel for the applicant:	Mr C Gunst QC with Mr M Champion	
		
Solicitor for the applicant:	Holding Redlich	
		
Counsel for the respondents:	The respondents did not seek to be heard on the third party application	
		
Solicitor for the non-party applicant on the third party application:	Lennon Mazzeo Lawyers	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 582 of 2014	
 
BETWEEN:	SHELLEY OLDHAM
Applicant
	
AND:	CAPGEMINI AUSTRALIA PTY LTD 
First Respondent

PAUL THORLEY
Second Respondent

JUDGE:	MORTIMER J	
DATE OF ORDER:	26 October 2015	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The interlocutory application by Mr Lewis Scott, made on 17 September 2015, is refused.
2.	There be no order as to costs in respect of the application.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 582 of 2014	
 
BETWEEN:	SHELLEY OLDHAM
Applicant
	
AND:	CAPGEMINI AUSTRALIA PTY LTD 
First Respondent

PAUL THORLEY
Second Respondent

JUDGE:	MORTIMER J	
DATE:	26 October 2015	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
1		This is an application by Mr Lewis Scott for orders permitting him, as a non-party to this proceeding and through his counsel in criminal appeal proceedings in New Zealand, to inspect the complaint made by Ms Oldham, the applicant in this proceeding, to the Australian Human Rights Commission (the AHRC Complaint). A copy of Ms Oldham’s AHRC complaint was lodged with the originating application in this proceeding, in accordance with the requirements of r 34.163 of the Federal Court Rules 2011 (Cth).
2		For the reasons I set out below, the application is refused.
Material considered on this application  
3		In May 2015 counsel, on Mr Scott’s behalf, initially made an application to the Victorian Registry for inspection, which I refused on an ex parte basis on 22 May 2015, with short reasons. The reason given for seeking access related to the asserted relevance of the contents, or some of the contents, of Ms Oldham’s complaint, to Mr Scott’s criminal appeal proceedings, which were said to be listed for 9 July 2015. My chambers informed counsel that if his client sought to re-agitate the application for inspection, he should do so through an interlocutory application, the parties would be heard in relation to that application, and it would then be determined on the papers.
4		On 17 September 2015, well after the nominated date for his appeal, Mr Scott, through his solicitors, made such an interlocutory application.
5		The orders sought were:
1. 	An order allowing access to the Applicant’s Human Rights Complaint (referred to as the ‘statement’ in the Applicant’s Statement of Claim dated 24 December 2014).

2.	Such further or other order as the Court deems appropriate.

6		In support of the application, an affidavit by Mr Michael Smith, who had acted as defence counsel for Mr Scott at trial, was filed. In it, he deposed to his experience as a criminal defence counsel in New Zealand and his representation of Mr Scott in criminal trial proceedings in New Zealand. Although he was not counsel on the appeal, he deposed to what he considered to be the relevance of Ms Oldham’s complaint to Mr Scott’s appeal. 
7		The respondents informed the Court they did not wish to be heard on the application.
8		Ms Oldham sought to be heard and opposed the orders sought by Mr Scott. She filed an affidavit dated 2 October 2015 giving details about why she opposed Mr Scott’s application.
9		Submissions on her behalf were also filed, and Mr Scott then filed submissions in response.
Factual background
10		I make the following findings of fact, based on the evidence adduced in this application, and by reference to the material filed in the proceeding itself, including the initial application for inspection.
11		This proceeding concerns allegations of conduct by or on behalf of the respondents said to contravene the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). The conduct is alleged to have occurred in the course of Ms Oldham’s employment with the first respondent, including conduct alleged to have occurred in New Zealand. Ms Oldham also alleges breaches of her contract of employment with the first respondent. The period covered by the allegations is unclear, but appears to be from approximately the middle of 2012 to the middle of 2013.
12		Mr Scott is serving a sentence of imprisonment in New Zealand, having been convicted of three serious criminal offences in June 2014. As I have noted above on the material before the Court, his appeal was scheduled to be heard on 9 July 2015.
13		Disclosure in these reasons of the detailed factual circumstances in which this inspection application is made could reveal matters that appear to have been the subject of orders protecting those matters from disclosure by the New Zealand courts, through a variety of methods. It is unnecessary to the determination of the inspection application to make any such detailed disclosure. For that reason, although I have read and considered them carefully, I do not set out, or refer to, the details of the affidavit material provided on the application by Mr Smith and by Ms Oldham.
Relevant provisions
14		Where a person wishes to bring a proceeding in this Court relying on the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), the making of a complaint to, and the termination of that complaint by, the Australian Human Rights Commission is a precondition to the filing of an application in this Court: see s 46PO of the AHRC Act.
15		Rule 34.163 of the Federal Court Rules provides:
(1)	A person who wants to start a proceeding under the Human Rights Act must file an originating application, in accordance with Form 116.

(2)	The originating application must be accompanied by:

(a)	a copy of the original complaint to the Commission; and

(b)	a notice of termination of the complaint given by the President of the Commission.

(3) 	The originating application must include any other claim that the person has, in addition to the claim of unlawful discrimination.

Note:   	The Registrar will fix a date and time and place for hearing and endorse those details on the originating application.

16		One of the reasons for this rule is that this Court’s jurisdiction is limited by s 46PO(3) of the AHRC Act which provides:
(3)	The unlawful discrimination alleged in the application:

(a) 	must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) 	must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

17		Therefore, in order to ascertain the extent of its jurisdiction in any particular proceeding, and deal with any objections to its jurisdiction, it is necessary for the Court to have before it a copy of the complaint made to the Commission. The nature and content of the complaint may of course have other forensic uses or purposes during a proceeding in this Court, but those uses or purposes do not explain the existence of r 34.163.
18		The Court’s Rules also contain provisions recognising that courts administer justice in public, as ss 17 and s 37AE of the Federal Court of Australia Act 1976 (Cth) make clear. Amongst those provisions are those relating to the inspection of documents filed in a proceeding. Enabling access to the documents which are the foundation of a proceeding is an important aspect of justice being done in public.
19		For that reason, r 2.32(2) provides:
A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

(a)	an originating application or cross-claim;

(b) 	a notice of address for service;

(c)	a pleading or particulars of a pleading or similar document;

(d)	a statement of agreed facts or an agreed statement of facts;

(e)	an interlocutory application;

(f)	a judgment or an order of the Court;

(g)	a notice of appeal or cross-appeal;

(h)	a notice of discontinuance;

(i)	a notice of change of lawyer;

(j)	a notice of ceasing to act;

(k)	in a proceeding to which Division 34.7 applies:

(i)	an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

(ii)	an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

(l)	reasons for judgment;

(m)	a transcript of a hearing heard in open Court.

Note:   	Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

20		Parties have broader rights of access to documents: see r 2.32(1).
21		The Court’s powers to identify documents and evidence which should be, in accordance with applicable principles, subject to suppression or non-publication (now located in ss 37AE to 37AL of the Federal Court Act) are recognised in r 2.32(3) which provides:
However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

(a)	be confidential; or

(b)	is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note: 	For the prohibition of publication of evidence or of the name of a party or witness, see sections 37AF and 37AI of the Act.

22		Rule 2.32(4) provides a mechanism by which, in the exercise of its discretion, the Court may permit inspection of a document outside the categories in r 2.32(2):
A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

23		It has been held that a complaint to the Commission does not form part of the originating application, and therefore leave is required to inspect such a document: see Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; 105 FCR 573. The terms of r 34.163 (that the originating application must be “accompanied by” the AHRC complaint) also make it clear, in my opinion, that the complaint is to be treated under the Rules as a document separate from the originating application itself. Rule 2.32(2)(a) does not say, for example, “an originating application and any documents the Rules require to be attached to it, or to accompany it”.
Resolution
24		The power to permit inspection of a document under r 2.32(4) is discretionary. In exercising that discretion, it is appropriate for the Court to consider first, the delineation apparent in the terms of r 2.32(2) and other documents which may be on the court file. Subject to the operation of ss 37AE to 37AL and r 2.32(3), the delineation is this. A non-party (and therefore, any member of the public) is entitled to know who the parties to a proceeding in this Court are, and to have an address (through a notice of address for service) for those parties. A member of the public is entitled to see those documents which will enable that person to understand what a proceeding in this Court is about, and how the parties’ respective cases are framed: namely, the originating application and the pleadings. The public is entitled to be able to follow the course of the proceedings through processes such as interlocutory applications, appeals and discontinuances. The public is entitled to be able to see the Court’s reasons for the disposition of a proceeding.
25		If there is a transcript of a hearing held in public on the Court’s file, then by r 2.32(2)(m) that document may be inspected. The rationale for that document being available as of right would appear to be to mirror the ability of the public to be present in court and to listen to the evidence and argument in the course of a proceeding.
26		The entitlement of the public to be present when evidence is given in a proceeding (read with the underlying principles apparent in ss 17 and 37AE of the Federal Court Act) would suggest, subject to any competing discretionary considerations, that an affidavit which is “read” in a proceeding, and thus treated as if that evidence had been given orally in open court, should be made available for inspection: see Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [6]-[10], per Edelman J. An affidavit which is read is thus in no different position to oral evidence-in-chief given by a witness. To permit inspection of such an affidavit is consistent with inspection of transcript being available without leave under r 2.32(2)(m).
27		An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person’s evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection.
28		An AHRC complaint falls into none of the categories which I have so far traversed. Indeed, it generally forms no part of a proceeding in this Court at all. Rather, its existence is a precondition to, and a constraint on, this Court’s jurisdiction under the AHRC Act. The function it performs as a document within the records of the Court is thus a limited one. 
29		As Ms Oldham submits, proceedings before the Commission are private (see for example s 46PK) and confidential between the parties to the complaint. Section 49 of the AHRC Act imposes significant non-disclosure obligations on the Commission and its staff, subject to exceptions (see s 49(3)) which would, for example, permit a member of the Commission’s staff to forward a complaint to this Court so it could accompany an application under s 46PO: 
(1)	A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not, either directly or indirectly:

(a) 	make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or

(b) 	make use of any such information as is mentioned in paragraph (a); or

(c) 	produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty: 50 penalty units or imprisonment for 1 year, or both.

(2)	A person who is, or has at any time been, a member of the Commission or a member of the staff referred to in section 43 or is acting, or has at any time acted, for or on behalf of the Commission shall not be required:

(a)	to divulge or communicate to a court any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission; or

(b)	to produce in a court a document relating to the affairs of another person of which the first-mentioned person has custody, or to which that person has access, by reason of that person’s office or employment under or for the purposes of this Act or by reason of that person acting, or having acted, for or on behalf of the Commission;

except where it is necessary to do so for the purposes of this Act.

(3)	Nothing in this section prohibits a person from:

(a)	making a record of information that is, or is included in a class of information that is, required or permitted by an Act to be recorded, if the record is made for the purposes of or pursuant to that Act;

(b) 	divulging or communicating information, or producing a document, to an instrumentality of a State in accordance with an arrangement in force under section 16; or

(c) 	divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be, if the information is divulged or communicated, or the document is produced, for the purposes of or pursuant to that Act.

Note: 	A defendant bears an evidential burden in relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4)	Nothing in subsection (2) prevents a person being required, for the purposes of or pursuant to an Act, to divulge or communicate information, or to produce a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by that Act to be divulged, communicated or produced.

(4A) 	Subsection (1) does not prevent the Commission, or a person acting for or on behalf of the Commission, from giving information or documents in accordance with paragraph 20(4A)(e).

Note: 	A defendant bears an evidential burden in relation to a matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

(4B)	Subsection (1) does not prevent a person from making a record of, divulging, communicating or making use of information, or producing a document, if the person does so:

(a) 	in the performance of a duty under or in connection with this Act; or

(b)	in the course of acting for or on behalf of the Commission.

Note: 	A defendant bears an evidential burden in relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal Code).

(5) 	In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

30		One of the consequences of an applicant deciding to bring a proceeding in this Court under the AHRC Act is that the privacy and confidentiality which attended the Commission’s handling of the complaint does not continue in the way this Court deals with the subject matter of the complaint. That fact does not mean, in my opinion, that the complaint as the foundation document in the Commission should not continue to be afforded some protection in this Court, subject always to the considerations relevant in each given case.
31		The Commission deals with complaints of unlawful discrimination under a number of federal statutes. Often, the subject matter of those complaints is intensely personal. Many complainants are not legally represented. They may, to use a colloquialism, “pour their hearts out” in a complaint to the Commission. However they express their complaints, they do so in the confidence of a private process, designed to facilitate resolution of complaints through confidential conciliation. Once a person elects to proceed to this Court, she or he has a fresh choice about the subject matter of the claim made in this Court, and how it is expressed. She or he cannot materially change or exceed the subject matter complained of before the Commission, but it can be narrowed and circumscribed. It can be couched in different language. In my opinion it would generally be inimical to the purpose and structure of the AHRC Act, which is based around confidentiality as between complainants, the Commission and respondents, for an AHRC complaint to be made available for public inspection in this Court.
32		In the present case, I consider that principle is applicable. I reach that conclusion not without some hesitation because although I have said above that “generally” an AHRC complaint forms no part of the proceeding in this Court, that is not the case with Ms Oldham’s AHRC Complaint. Ms Oldham’s AHRC Complaint consists of two documents. The first is a nine page letter from her legal representatives to the Commission which sets out a summary of the facts of her complaint, the legal issues and the outcomes she sought before the Commission. The second is a forty-five page statement by Ms Oldham, which attaches various documents such as contemporaneous email messages. The statement bears Ms Oldham’s name but is not in the form of an affidavit or statutory declaration.
33		The statement contains sensitive and personal material, not just about Ms Oldham, but about other people. It goes into considerable detail about the background to her complaint, her employment with the first respondent and the conduct she alleges contravenes the Sex Discrimination Act and the Disability Discrimination Act.
34		In this Court, Ms Oldham’s statement of claim is expressly framed by reference to her statement to the Commission. Her statement which formed part of her AHRC Complaint is referred to in the particulars to various paragraphs of the statement of claim, and is there described as “Statement”. For example, I extract below the first two subparagraphs of paragraph [7] of the statement of claim:
In the course of performing his duties and functions as the CEO and as Ms Oldham’s career counsellor, Mr Thorley:

a.   	did not arrange for Ms Oldham to undergo a thorough and detailed Capgemini induction, in contrast to the former employees of Satyam, who were all men, including Mr Nangia, he caused to be hired shortly thereafter;

Particulars

Statement at [7]

b. 	failed and/or refused to conduct Ms Oldham’s performance reviews in accordance with Capgemini protocol;

Particulars

Statement at [23]

c. 	…

35		The statement of claim is replete with further pleadings of this nature. In that way, Ms Oldham’s private and confidential statement to the Commission has been expressly relied on in the pleadings in this Court. It was this pleading technique which no doubt encouraged the current inspection application.
36		Pleadings are available for inspection by third parties as of right under r 2.32(2). The Dictionary in Sch 1 to the Rules defines “pleading” as including a statement of claim. There is no definition of “statement of claim”. I am not satisfied that a document to which reference is made in a statement of claim necessarily forms part of the statement of claim for the purposes of the inspection rules. A statement of claim (or defence) may refer, especially in the giving of particulars, to a number of different kinds of documents – for example correspondence, contractual documents or documents created by third parties. Those documents do not become part of the statement of claim itself. The statement of claim consists of the allegations of law and fact made in it. The material facts are to be contained in the pleading itself and not in the particulars: see r 16.02(1)(d). See also r 16.04 concerning documents to which a pleading refers. Whether Ms Oldham’s statement of claim complies with the Rules is not relevant to the present application and does not affect the conclusions I have reached. 
37		A proceeding in this Court may be commenced by originating application and affidavit. An affidavit, even if it is the one on which the proceeding is founded, is not available for inspection as of right under r 2.32(2). I do not see why, for the purposes of the inspection rules, a document referred to in a statement of claim should be in any more vulnerable position. It may or may not form part of the evidence adduced at trial; it is not yet fully within the principles of open justice.
38		Therefore, despite the express references in the particulars to the statement of claim to Ms Oldham’s AHRC Complaint, I do not consider the pleading in this form affects the approach I would otherwise take, and the conclusions I have otherwise reached, on this application.
39		It is also appropriate for the Court to consider the reason access is sought. In a given case, a person’s reasons for requesting access to a document may provide a powerful discretionary consideration. I do not consider Mr Scott’s reason outweighs the considerations against the grant of access to which I have referred above.
40		The reason given by Mr Scott for seeking access to the complaint is stated in Mr Smith’s affidavit, and in the initial correspondence to the Victorian Registry by his counsel on his appeal. It relates to the asserted relevance of the contents of the complaint to grounds for an appeal by Mr Scott to the New Zealand Court of Appeal from a serious criminal conviction in June 2014, with the appeal scheduled for 9 July 2015. It is apparent from Mr Smith’s affidavit and the submissions filed on behalf of Mr Scott that Mr Smith considers the contents of the applicant’s statement of claim in this proceeding may be of assistance to Mr Scott in an appeal.
41		Currently, there is no evidence whether the appeal was heard on that date or not, nor whether there has been any disposition of the appeal. There is no explanation as to why it took until 17 September 2015 for the interlocutory application to be filed. There is no evidence therefore about the current utility of granting access to the AHRC Complaint, in terms of its use in any appeal. There is no evidence whether such a ground has in fact been raised on the appeal, nor whether the New Zealand Court of Appeal has been informed about this application. In my opinion, it is apparent that Mr Smith can articulate from the contents of the statement of claim the basis of an appeal ground which he considers may be available to Mr Scott. 
42		That being the case, I accept Ms Oldham’s submissions that if this matter is to be pursued, it can be pursued in the New Zealand courts. Ms Oldham points to the provisions of the Criminal Disclosure Act 2008 (NZ) and a procedure by which a New Zealand court may compel a person or agency to disclose information that may assist a defendant properly to defend a criminal charge made against her or him.
43		I have examined those provisions, in particular ss 24 to 29. So far as I understand them, they appear to apply principally in the conduct of a criminal trial, rather than appellate proceedings. However, the term “criminal proceedings” is defined in s 6 to include any appeal against conviction or sentence. Accordingly, the processes for which ss 24 to 29 provide may well apply to an appeal. Mr Scott’s reply submissions did not respond to this aspect of Ms Oldham’s submissions, even though Mr Smith would be the person best placed to have assisted the Court in understanding whether the procedures under the Criminal Disclosure Act, or any comparable procedures, were available on an appeal from a conviction. There is also the issue of their extra-territorial operation.
44		It would be a matter for Mr Scott to persuade a New Zealand court on appeal that there was a sufficient basis for it to make a coercive disclosure or production order in relation to Ms Oldham’s AHRC Complaint. It is plain that an order could be sought against Ms Oldham herself, or the Commission, and certainly need not be sought against this Court, or the Registry of this Court. Seeking the AHRC Complaint from this Court is a somewhat indirect route. As Mr Scott’s submissions amply demonstrate, that basic argument (if it is in fact to be made at all) can be made on the basis of the statement of claim, to which he has a right of access and has in fact accessed through his legal representatives. Any further process for access to the AHRC Complaint could properly occur at a time when the relevance of the AHRC Complaint to Mr Scott’s interests is more than hypothetical: that is, where there is an appeal on foot, and a ground of appeal exists which is capable of bearing a relationship to the AHRC Complaint.
45		Mr Scott contends, in the submissions filed on his behalf, that the “touchstone is the interests of justice”. That contention is too broadly expressed. This Court must be guided in the exercise of its discretion in r 2.32(4) by the interests of the administration of justice in this Court, and looks for guidance to any applicable common law principles, to the Federal Court Act and to the Rules. In my opinion, the interests of the administration of justice in this Court as between the parties to the proceeding, the public who are the beneficiaries of the open justice principle and (if they be relevant) the interests of other litigants in this Court, do not favour the release of the AHRC Complaint for inspection by Mr Scott, or by his legal representatives on his behalf. I have set out at [24] to [38] above where I consider those interests lie.
46		The interests of the administration of justice in relation to Mr Scott are a matter for the New Zealand courts, fully seized of a relevant proceeding, and fully informed of the asserted relevance and context of the AHRC Complaint.
47		Mr Scott submitted that the AHRC Complaint could be appropriately redacted by the Court before release. That is an impractical and inappropriate suggestion. It is not the Court’s function to speculate about which parts of the AHRC Complaint may be of assistance to Mr Scott and which may not.
48		Finally, in the material in support of the application there are references to Mr Scott having a terminal illness. How that fact affects his criminal appeal process is a matter for the New Zealand courts. While not wishing to appear unsympathetic to Mr Scott if those are his circumstances, this fact in my opinion has no relevance to the inspection application. Even if it did, it would not in my opinion outweigh the matters I consider tell against access.
Suppression and/or non-publication orders
49		Orders under s 37AF of the Federal Court Act were sought by Ms Oldham, in relation to her affidavit and outline of submissions on the inspection application. Reliance was placed on certain grounds set out in s 37AG(1). 
50		To be effective, any such order would need to extend to Mr Smith’s affidavit and Mr Scott’s outline of submissions.
51		It has been possible to deal with this application, and the evidence adduced to support and oppose it, without disclosing any details of the evidence relied on in this application, or information which might contravene existing protections within the New Zealand criminal justice system.
52		Neither the affidavits nor the submissions will be available for inspection as of right under r 2.23(2), although Mr Scott’s interlocutory application will be available, as will these reasons for judgment. Any person who wishes to inspect the affidavits and submissions would have to go through the kind of process Mr Scott has undertaken, and persuade the Court to exercise its discretion in r 2.32(4) favourably to permit inspection of the material accompanying the interlocutory application. That being the case, I do not consider that there is a real basis for a suppression or non-publication order on any of the grounds set out in s 37AG of the Federal Court Act.
Conclusion
53		The interlocutory application for leave to inspect the AHRC Complaint made by Ms Oldham must be refused, based on the current material before the Court. There is of course nothing to preclude a further application, on new or different material.
54		Ms Oldham submits Mr Scott should pay the costs of the application. The application has been unsuccessful and the usual order is that costs would follow that event. In reply, Mr Scott did not make any submissions about the appropriate costs orders.
55		It is unlikely that if the application had been successful, I would have ordered Ms Oldham (who actively resisted the application) to pay the legal costs of Mr Scott. The question is whether it is appropriate to order Mr Scott to pay Ms Oldham’s legal costs.
56		Section 43 of the Federal Court Act empowers the Court to make orders for costs “in a proceeding”. That power extends to an order for costs against a non-party, although in such circumstances the power “must be exercised judicially and in accordance with general legal principles pertaining to the law of costs”: see Knight v F.P. Special Assets Limited [1992] HCA 28; 174 CLR 178 at 192, citing with approval the Court of Appeal of British Columbia in Oasis Hotel Ltd v Zurich Insurance Co (1981) 124 DLR (3d) 455 at 462. The non-parties against whom costs orders might be made generally have some discernible connection to the proceeding, such as legal practitioners or receivers of a party.
57		Although this application is made “in” the proceeding between Ms Oldham and the respondents, in substance the subject matter and purpose of the application is completely divorced from this proceeding.
58		Mr Scott was entitled to apply for leave under r 2.32(4), and did so in compliance with the manner the Court required. Ms Oldham chose to participate in the application but was not required to. Since she is legally represented in this proceeding and the submissions on her behalf were signed by senior and junior counsel, it is fair to infer she may have incurred legal costs by reason of her participation. In the circumstances as revealed by the evidence, it is understandable why she chose to participate. However, those are not costs which on any view it would be reasonable at the end of this proceeding (and in the event she is successful) to require the respondents to compensate her for. Rather she must bear them herself, or Mr Scott must bear them.
59		The matter is finely balanced, but I have decided it is not appropriate to award costs against Mr Scott on this application. The distance between his interests and those of the parties to this proceeding have told against him on the exercise of discretion under r 2.32(4), and, in his favour, that distance suggests he should not be subject to an adverse costs order in the proceeding. Further, in the exercise of the costs discretion, it is appropriate that I take into account the fact he sought inspection for the purpose of advancing an appeal against a criminal conviction. There would be some injustice in making a costs order against him, where his application was said to inform part of the exercise of his right to appeal a conviction and to pursue all lawfully available grounds in that appeal.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.	

Associate:  	

Dated:	26 October 2015