FEDERAL COURT OF AUSTRALIA Reynolds v JP Morgan Administrative Services Australia Ltd [2010] FCA 1243 Citation: Reynolds v JP Morgan Administrative Services Australia Ltd [2010] FCA 1243 Parties: KYLIE REYNOLDS v JP MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED and BRIAN JOHNSON File number: NSD 1325 of 2010 Judge: RARES J Date of judgment: 29 October 2010 Catchwords: PRACTICE AND PROCEDURE – confidentiality orders – principles of open justice – alleged unlawful discrimination – question whether attachments to Form 167 filed in accordance with O 81 r 5 of the Federal Court Rules are documents open for public inspection within O 6 r 6(2)(a) or (c), or are documents for which leave to inspect is required under O 46 r 6(4) Legislation: Australian Human Rights Commission Act 1986 (Cth)s 46PO Federal Court of Australia Act 1976 (Cth) Date of hearing: 29 October 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 8 Solicitor for the Applicant: MD Harmer of Harmers Workplace Lawyers Counsel for the First Respondent: K Eastman Solicitor for the First Respondent: Allens Arthur Robinson Counsel for the Second Respondent: J Trew Solicitor for the Second Respondent: Toomey Pegg IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1325 of 2010 BETWEEN: KYLIE REYNOLDS Applicant AND: JP MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED First Respondent BRIAN JOHNSON Second Respondent JUDGE: RARES J DATE OF ORDER: 29 OCTOBER 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Until further order, the Registrar refer to the docket judge, or another judge, any application to inspect the Form 167 in these proceedings or the documents accompanying it. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1325 of 2010 BETWEEN: KYLIE REYNOLDS Applicant AND: JP MORGAN ADMINISTRATIVE SERVICES AUSTRALIA LIMITED First Respondent BRIAN JOHNSON Second Respondent JUDGE: RARES J DATE: 29 OCTOBER 2010 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 These are proceedings commenced in the Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The applicant, Kylie Reynolds, has sued her employer, JP Morgan Administrative Services Australia Ltd and Brian Johnson, an officer of JP Morgan, in respect of alleged unlawful discrimination for the purposes of the Act. 2 The question has arisen as to whether the attachments to the Form 167 filed by Ms Reynolds in accordance with O 81 r 5 of the Federal Court Rules 1979, fall within the descriptions in O 46 r 6(2)(a) or (c) of an application, other originating process or a pleading. If they do, Mr Johnson will seek to argue that they should not be open to inspection by any person. 3 The following provisions of the Federal Court Rules are relevant: "Order 4 Commencement of proceedings 1 Commencement by application — Form 5 (1) Except as otherwise provided in these Rules all proceedings in the Court's original jurisdiction shall be commenced by filing an application. (2) An application shall be in or substantially in the form numbered 5 in Schedule 1. 6 Affidavit or statement of claim — Form 7 (1) The applicant shall file and serve with the application either an affidavit in accordance with Form 20, or a statement of claim in accordance with Form 7, whichever is appropriate. Order 46 Registries 6 Inspection of documents (1) A person may search in the Registry for, and inspect, a document in a proceeding that is specified in subrule (2), unless the Court, or a Judge, has ordered that the document is confidential. (2) For the purposes of subrule (1), the documents are: (a) an application or other originating process; .... (c) a pleading or particulars of a pleading; (3) Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding: (a) an affidavit ... (4) Except with the leave of the Court or a Judge, or with the permission of the Registrar, a person who is not a party to a proceeding must not inspect any document in the proceeding that is not referred to in subrule (2) or (3). Order 81 Human Rights Proceedings 5 Commencement of proceeding (1) A proceeding alleging unlawful discrimination must be commenced by filing an application in accordance with Form 5. Note See section 33C of the Federal Court of Australia Act 1976 and Order 6, rule 2 in relation to representative proceedings and joinder of parties. (2) The application must: (a) be accompanied by a claim in accordance with Form 167; and (b) include details of any claim that is made in addition to the allegation of unlawful discrimination." 4 Ms Reynolds and JP Morgan do not oppose the application made by Mr Johnson that the claim identified in the Form 167 and the two documents required by item 16 in that form, to accompany the application, namely the original complaint to the Commission, if available, and the notice of termination of the complaint given by the President of the Commission or her delegate, should not be available for public inspection. 5 No person has applied to inspect the Form 167 or either of the accompanying documents. Mr Johnson's immediate concern is that the two accompanying documents that have been filed not be available for inspection without the question of whether they are caught by O 46 r 6(2)(a), (c) or (4), being determined. If the accompanying documents fall within the scope of O 46 r 6(2)(a) or (c) then Mr Johnson must demonstrate why they should not be open to inspection by any person as of right. 6 At the moment there appears to be an arguable basis upon which Mr Johnson may be able to establish that the accompanying documents, and indeed the Form 167, are more in the nature of an affidavit that accompanies an application, and therefore falls within O 46 r 6(4), rather than in the nature of a statement of a claim or other pleading, that falls within O 46 r 6(2)(a) or (c). 7 Because this matter is arguable and there is no authority on this point, I think the better course is to direct that the Registrar refer to the docket judge or another judge any application to inspect the Form 167 in these proceedings or the documents accompanying it. That way, if an application is made to inspect the documents, then there will be a proper controversy created in which a determination can be made as to the part of O 46 r 6 into which Form 167 and the accompanying documents fall. While that remains uncertain, and given that there are arguments that may be made either way, it is, in my view, better to deal with that controversy in a contested application. 8 I am not prepared to go as far to order, as was originally sought in the notice of motion, but is no longer pressed, that the two accompanying documents be placed in a sealed envelope marked "Not to be opened without the leave of a Judge of the Court". I think the question as to whether or not they are actually open to inspection is one that ought be the subject of proper consideration after a detailed argument, having regard to the importance of the right of the public to inspect all documents referred to in O 46 r 6(1) and (2). This right is recognised in O 46 r 6 as an incident of the requirement that the Court exercise its jurisdiction and powers in open court in the ordinary course (see also s 17(1) of the Federal Court of Australia Act 1976 (Cth)). For these reasons I will make the direction I have indicated. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 12 November 2010