FEDERAL COURT OF AUSTRALIA Castle v United States [2018] FCA 1079 File number: VID 1415 of 2017 Judge: MORTIMER J Date of judgment: 19 July 2018 Catchwords: PRACTICE AND PROCEDURE – request for access to documents on the Court file by a non-party – objections by applicant and first respondent in the proceeding to the release of documents – principle of open justice – no basis for the making of suppression or non-publication orders – no basis for refusing leave to access restricted documents – request for access to documents granted Legislation: Extradition Act 1988 (Cth), ss 19(9), 21 Federal Court of Australia Act 1976 (Cth), ss 17, 37AE, 37AF, 37AG Migration Act 1958 (Cth), s 91X Federal Court Rules 2011 (Cth), r 2.32 Cases cited: Baptist Union of Queensland - Carnity v Roberts [2015] FCA 1068; 241 FCR 13 Castle v United States [2018] FCA 931 Hogan v Hinch [2011] HCA 4; 243 CLR 506 John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 Russell v Russell [1976] HCA 23; 134 CLR 495 SRD v Australian Securities Commission [1994] FCA 549; 52 FCR 187 Date of last submissions: 11 July 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Commonwealth Attorney-General's Department Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make save as to costs ORDERS VID 1415 of 2017 BETWEEN: JAMES CHRISTOPHER CASTLE Applicant AND: UNITED STATES First Respondent JUDGE RIETHMULLER Second Respondent JUDGE: MORTIMER J DATE OF ORDER: 19 JULY 2018 THE COURT ORDERS THAT: 1. Leave is granted to Mr Tom Cowie to inspect and copy the following documents on the Court's file for this proceeding: (a) The reply filed by Mr Castle on 4 April 2018. (b) The affidavit filed by the United States on 19 March 2018. (c) The outline of submissions filed by the United States on 19 March 2018. (d) The notice of address for service filed by the United States on 12 January 2018. (e) The originating application for judicial review filed by Mr Castle on 22 December 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR RULING MORTIMER J: 1 These are my reasons for a ruling in relation to a request by a non-party to the proceeding for access to court documents dated 21 June 2018. BACKGROUND 2 This proceeding concerns an application by Mr Castle for review of a determination by the second respondent that Mr Castle is eligible for surrender for extradition. 3 Mr Castle is self-represented. He is currently in custody pursuant to an order of committal made under s 19(9) of the Extradition Act 1988 (Cth). Arrangements have been put into place with the assistance of the representatives for the United States and Corrections Victoria to enable Mr Castle to communicate effectively with the Court and the legal representatives for the United States. 4 This matter was listed on 10 April 2018 for hearing of a preliminary objection by Mr Castle to the jurisdiction of the Federal Circuit Court judge to make orders in respect of him under s 19 of the Extradition Act, and to the jurisdiction of this Court under s 21 of the Extradition Act. This objection was dismissed by orders made on 19 June 2018, see: Castle v United States [2018] FCA 931 (the jurisdiction reasons). The proceeding has now been listed for a hearing pursuant to s 21 of the Extradition Act. This ruling should be read with the jurisdiction reasons. REQUEST FOR ACCESS BY NON-PARTY 5 On 21 June 2018, a request was made by a journalist from The Age newspaper to inspect and photocopy a number of documents on the Court file. 6 The documents requested are: (a) The reply filed by Mr Castle on 4 April 2018. (b) The affidavit filed by the United States on 19 March 2018. (c) The outline of submissions filed by the United States on 19 March 2018. (d) The notice of address for service filed by the United States on 12 January 2018. (e) The originating application for judicial review filed by Mr Castle on 22 December 2017. 7 The reason given for the request for access was as follows: I am preparing to write a news story for The Age. As the judicial review matter is closed I seek access to restricted documents. SUBMISSIONS BY THE PARTIES 8 On receipt of the request for access, and notwithstanding that some of the documents were ones to which a non-party might have access as of right on an application, the parties were given leave to file any written submissions that they wished to make in relation to the request, limited to 3 pages. I took that course because Mr Castle has consistently expressed views that much of the material he has relied on is "top secret" (Mr Castle's term). 9 The United States provided its submissions on the request for access by email dated 10 July 2018. It stated that while it had no objection to access to material being granted to the non-party media organisation, it requested that the "form of access" to the affidavit filed on behalf of the United States and affirmed on 19 March 2018, be limited. The basis for this request was that the affidavit annexes material, being diplomatic correspondence known as "notes verbale", provided by the United Nations to Australia for official use only and marked "with the exception of the proceedings…[the note] is not to be made public in any form…without further express written authorization by the United Nations." The United States submitted that in these circumstances "access only should be granted to the non-party to the affidavit in accordance with Federal Court Rule 2.32(4)." An excerpt of a note verbale also appears in the submissions of the United States dated 19 March 2018 (ie document c)). 10 Mr Castle provided hand-written submissions in relation to the request for access. While these submissions exceeded the page limit imposed, this is understandable given they are hand-written rather than typed, due – on Mr Castle's contention – to difficulties he had in accessing a printer in prison. Mr Castle submits that the request for access to documents should be denied to "any/all media". His submissions do not distinguish between the documents that are the subject of the request for access and other documents on the Court file. His submissions also extend beyond the present request, asking the Court to "make the finding needed to maintain full confidentiality of the entire proceeding at this time". 11 Mr Castle objects to the release of documents on the Court file relating to the proceedings against him in the United States on the basis that these are being treated as confidential documents ("under seal") in that jurisdiction. He also objects to the release of documents admitted into evidence during the jurisdiction hearing and which were, he contends, "provided to this Court by representatives of other nations and sovereigns" on the basis that they would be kept confidential. He submits these documents are "top secret". Finally, he objects on privacy grounds to the release of "personal and family information", "personal identifying information" and "contact information" relating to himself, his family, his associates and in relation to individuals who are alleged to be the victims of his conduct in the proceedings on foot in the United States. Mr Castle's submissions otherwise take issue with findings in the judgment on the jurisdiction question, and with the publication of the Court's reasons and seek what he considers to be inaccurate statements to be corrected in the Court's reasons and in media articles. He submits that information on the Court file should not be released to the media as this will result in the need for himself and his family to defend themselves in the public domain and to take steps to correct errors on the public record. 12 In addition to Mr Castle's submission, the Court received email correspondence purporting to be from the "International Treasury Control", and from one Ms Ann Draper, said to be a United States Attorney. I have not read this correspondence, consistent with the position previously explained to Mr Castle that any correspondence from third parties purporting to be provided on behalf of, or in support of, Mr Castle will not be read by the Court and will be either deleted (if electronic) or returned to sender (if in hard copy). RESOLUTION: 13 Access should be granted to the documents sought. The documents fall into two categories: (1) Those within r 2.32(2) of the Federal Court Rules 2011 (Cth), commonly referred to as "unrestricted documents". In the absence of orders providing for their confidentiality, such documents can be inspected by a non-party without leave of the Court. (2) Those outside r 2.32(2), commonly known as "restricted" documents. Leave of the Court is required before they can be inspected and copied by non-parties. 14 Documents d) and e) are "unrestricted documents" within r 2.32(2) of the Rules. At present, there is no suppression order or non-publication order over these documents under Part VAA of the Federal Court of Australia Act 1976 (Cth) and thus no leave is required for access to these documents to be provided to a non-party. 15 The remainder of the documents – that is, documents a), b) and c) – are "restricted" documents and leave of the Court is required for access to be provided to a non-party. 16 The Court's approach to determining requests for access to Court documents by non-parties is guided by the principle of "open justice". This principle is expressed in s 17(1) of the Federal Court Act, which provides that the jurisdiction of the Federal Court shall be exercised in open court except where it is permitted by law to be exercised by a judge sitting in Chambers. It is further reflected in the terms of Part VAA of the Federal Court Act, and in particular ss 37AE and 37AG. Section 37AG sets out a limited series of grounds on which a suppression order or non-publication order may be made and requires that any such order specify the ground or grounds on which it is made. Section 37AE provides: 37AE Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 17 French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [20] observed that an essential characteristic of courts is that they sit in public. The principle of "open justice" allows the public to know accurately what and who is the subject of the court's proceedings, in order to ensure the maintenance of public confidence in the fair operation of the courts: see also Russell v Russell [1976] HCA 23; 134 CLR 495 at 520 (Gibbs J); SRD v Australian Securities Commission [1994] FCA 549; 52 FCR 187 (Hill J). To protect this public interest, evidence and court proceedings should be conducted in public unless there is good reason, related to the interests of justice, for it to be otherwise. 18 Thus, where an affidavit has been "read" in open court, there is a strong presumption that any member of the public should be given leave to inspect it: see Baptist Union of Queensland - Carnity v Roberts [2015] FCA 1068; 241 FCR 135 at [28]-[29], [33]-[40] (Rangiah J) and the authorities there cited. The same can be said for written outlines of submissions filed by parties and relied on in Court. Where court proceedings are entirely oral, as occurred in superior courts more frequently in the past, then the evidence would have been spoken in open court, and the submissions would have been made orally in open court. All present could hear them, repeat them and report on them, so long as the reporting was fair and accurate. The move to giving evidence, and making submissions, in writing should not obscure the fact that evidence and submissions are still presumptively treated as being given in open court. 19 To date, no application for a suppression order or non-publication order has been made by the parties in this proceeding, although I acknowledge that Mr Castle has consistently said that he wishes for confidentiality to be maintained over the proceeding and the Court file and now requests that I "make the finding needed" to maintain such confidentiality. 20 In his submissions, Mr Castle also objects to my reasons for judgment dated 19 June 2018 being made publically available. Orders of the Court, and reasons for judgment, are "unrestricted documents" within the meaning of r 2.32(2) of the Rules. Contrary to Mr Castle's impression, orders and reasons are public documents, and the circumstances in which a court would suppress its reasons for decision on a question such as jurisdiction are rare indeed. Objections to a court's jurisdiction, and the Court's reasoning on that objection, are the very kinds of arguments and deliberations that should be held in public, and available to the public. The jurisdiction of a court marks the boundaries of the exercise of judicial power, and it would be an exceptional case where it was in the interests of the administration of justice, and in the public interest for those arguments and deliberations to occur behind closed doors, and to be kept from the Australian community. Courts must be seen to explain and justify how they come to exercise judicial power. That is especially so where, as in Mr Castle's case, a person's liberty is at stake, and his exposure to criminal prosecution in another jurisdiction is in issue. 21 In support of his arguments, Mr Castle relies on, among things, s 91X of the Migration Act 1958 (Cth) which provides for confidentiality measures for the protection of visa applicants, the Court's Access to Documents and Transcripts Practice Note (GPN-ACCS) which I do not consider in fact supports the reference he makes to it, and the Australian Law Reform Commission Report on Australian Privacy Law and Practice (ALRC Report 108, published on 12 August 2008). None of these references support Mr Castle's contention that material in this proceeding should not be publicly available. 22 The majority of the documents that Mr Castle objects to being released are documents that are not the subject of the non-party request, although some are referred to in the submissions of both parties. Therefore, his submissions about those documents are only tangentially relevant to my decision on this particular access request. However, in relation to all the material to which he refers, Mr Castle consciously elected to put that material, and the arguments that he has made in reliance on it in his submissions, before the Court as part of his argument about the Court's lack of jurisdiction. Even as an unrepresented party, he was aware (or ought reasonably to have been) that the proceeding was being held in open Court, and was being transcribed. He was aware no confidentiality or suppression orders had been made. He was informed that he would be given an opportunity to be heard before any non-party was given access to the documents for which leave was required, and that has occurred. 23 Rule 2.32 authorises, and expressly contemplates, that a notice of address for service (such as document d)) and an originating application (such as document e)) will be accessible as of right. There is nothing in these documents which would support the making of orders under s 37AF of the Federal Court Act, even if I were to treat Mr Castle as having, in substance, made some wide-ranging application for a suppression or non-publication order. 24 Document b) is an affidavit read in open court, and documents a) and c) are submissions that were filed and relied on by Mr Castle and by the United States during the course of the hearing of the jurisdiction question on 10 April 2018 and on which the Court's public reasons are based. Again, even if, generously to Mr Castle, I were to treat him as having made some kind of wide ranging application for a suppression or non-publication order because of the content of his submissions, I am not satisfied that any matter he has raised supports the making of such orders in the interests of the administration of justice. 25 While I accept Mr Castle would prefer to keep the allegations against him out of the public eye, and may also prefer to keep his claims about the existence of the International Treasury Control and his role in it away from media scrutiny, his preferences in this respect do not justify the making of an order. As Kirby P said in John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 142: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms… 26 There is a public interest in allowing information concerning extradition processes, and the competing claims made during proceedings under the Extradition Act, to be publically available. Such information is not inherently private or personal: rather it concerns the allegations made against Mr Castle, his wife and his alleged associates as part of the processes within the United States criminal justice system, and whether the requirements of the Extradition Act for an exercise of public power by an Australian authority are satisfied. 27 For the same reasons, I decline also to refuse access to the notes verbale annexed to the affidavit of the United States filed on 19 March 2018. If the United States sought suppression or confidentiality orders in relation to its affidavit, or to this material specifically, then such an application could and should have been made at the time that the affidavit was read in Court. Although there may be blanket assertions on the face of the notes verbale about limits on access without authorisation, I see nothing in their contents which would justify an order being required in the interests of the administration of justice, and the United States did not point to any such consideration. It did not submit, for example (even if it could have done so without supporting evidence) that public access to the notes verbale would inhibit future cooperation of this kind by United Nations agencies. To the contrary, it may be seen to promote the integrity of the United Nations for communications about the alleged existence of organisations such as the International Treasury Control to be publicly confronted and denied. 28 If there had been any contact details (such as personal telephone numbers or email addresses), or irrelevant personal information (such as persons' dates of birth or health conditions) in the documents that are the subject of the non-party request, I would have been prepared to consider redacting such details. So far as I have been able to ascertain, there are none. CONCLUSION 29 Orders will be made for access to inspect and copy these documents to be provided to the non-party who has made the request. While orders in relation to documents d) and e) are not strictly necessary, they will be included in the scope of the orders made for avoidance of doubt, and to recognise that the Court did inform Mr Castle he would be given an opportunity to be heard before any access was granted. In relation to documents that are unrestricted, I do not propose to give the parties an opportunity to be heard again if further non-party requests are made. They will be given that opportunity if any further requests for restricted documents are made. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Mortimer. Associate: Dated: 19 July 2018