FEDERAL COURT OF AUSTRALIA Rossi v Qantas Airways Limited [2020] FCA 573 File number: NSD 1549 of 2019 Judge: GLEESON J Date of judgment: 1 May 2020 Catchwords: PRACTICE AND PROCEDURE – third party application for leave to inspect statement of claim – whether a document unrestricted under Federal Court Rules 2011 r 2.32(2), in advance of leave to make application to Federal Court under Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)(a) – application granted Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO(1), (3A)(a) Federal Court Rules 2011 rr 2.32(2), (4); 34.163 Cases cited: Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101 Reynolds v JP Morgan Administrative Services Australia Limited (No 2) and Another [2011] FCA 489; (2011) 193 FCR 507 Date of hearing: 23 April 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: K Edwards Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the First Respondent: E Raper SC with A Smorchevsky Solicitor for the First Respondent: Ashurst Australia Counsel for the Second and Third Respondents: R Davern Solicitor for the Second and Third Respondents: K&L Gates Solicitor for The Age Company Limited: S White of The Age Company Limited Solicitor for Specialist News: B Burke of Banki Haddock and Fiora ORDERS NSD 1549 of 2019 BETWEEN: SARA ROSSI Applicant AND: QANTAS AIRWAYS LIMITED First Respondent MAURICE BLACKBURN PTY LTD TRADING AS MAURICE BLACKBURN CASHMAN FORMERLY KNOWN AS MAURICE BLACKBURN CASHMAN GIPPSLAND LAWYERS PTY LTD Second Respondent JOHN MCCRISTAL Third Respondent JUDGE: GLEESON J DATE OF ORDER: 1 MAY 2020 THE COURT ORDERS THAT: 1. Leave be granted to Specialist News and The Age Company Limited to inspect the statement of claim filed on 11 February 2020, pursuant to r 2.32 of the Federal Court Rules 2011. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GLEESON J: 1 The applicant (Ms Rossi) has commenced this proceeding under the Australian Human Rights Commission Act 1986 (Cth) (Act), principally seeking to make an application to this Court alleging unlawful discrimination by the respondents pursuant to s 46PO(1). 2 In addition, Ms Rossi seeks orders relating to a deed, described as "[t]he Deed of release purporting to settle any and all claims the Applicant had in respect of the employment, signed in respect of the Applicant's Claim brought in the County Court of Melbourne No CI 07-03600". In particular, Ms Rossi seeks orders to the effect that the deed be declared void or set aside. 3 By s 46PO(3A)(a) of the Act, Ms Rossi's application must not be made unless this Court grants leave to make the application. 4 In accordance with r 34.163 of the Federal Court Rules 2011 (Rules), the proceeding was commenced by an originating application, in accordance with Form 116, accompanied by a copy of the original complaint to the Australian Human Rights Commission (Commission) and a notice of termination of the complaint given by the President of the Commission. Form 116 requires the applicant to "[d]escribe the discrimination you are complaining of". Mr Rossi's originating application sets out the nature of the alleged discrimination by each of the respondents and states: Further details of the Applicant's claims are set out in the Complaint to the Australian Human Rights Commission dated 21 December 2018, which is attached to this Application. Further details of the Applicant's claims will be set out and pleaded in a Statement of Claim. 5 On 24 October 2019, the first case management hearing was held. Relevantly, Ms Rossi proposed that she file a statement of claim prior to the hearing of the leave application and senior counsel for Qantas, Ms Raper SC, submitted that Qantas needed a statement of claim in order to understand the case that was put, and that the originating application appropriately foreshadowed provision of a statement of claim. Consequently, the Court's orders included an order that Ms Rossi file and serve a statement of claim on or before 28 January 2020. 6 Ms Rossi filed a statement of claim on 11 February 2020. Application by media to inspect statement of claim 7 Two media organisations, Specialist News and The Age Company Limited (The Age) have sought leave to inspect the statement of claim. 8 Ms Rossi's position in relation to their requests was neutral. 9 The respondents submitted that the Court should refuse the requests. 10 In support of this submission on behalf of Qantas, Ms Raper SC argued: (1) Although the statement of claim has been filed, Mr Rossi has not yet obtained leave to make her application alleging unlawful discrimination. Accordingly, the statement of claim is in the nature of evidence or submissions in support of Ms Rossi's leave application and should not be treated as a "pleading" within the meaning of r 2.32(2). Rather, any application to inspect the statement of claim should be made at the leave hearing. (2) The statement of claim makes allegations which relate to incidents which allegedly occurred over two decades ago. The allegations include allegations against numerous former employees of the first respondent (Qantas) and employees who are presently stood down. (3) Ms Rossi now seeks to amend her statement of claim, to make additional allegations against the second respondent. (4) The respondents have not filed defences in the proceeding, as is appropriate, where Ms Rossi has not yet been granted leave to make her application. Consequently, the media does not have access to defences that might otherwise be available to permit a balanced account. 11 On behalf of the second and third respondents (Maurice Blackburn parties), Ms Davern also submitted that it is not in the public interest to grant access to the statement of claim prior to the grant of leave to bring proceedings in this Court because the statement of claim is analogous to a complaint to the Commission, which is confidential. 12 On behalf of Specialist News, Mr Burke submitted that its publication "Workplace News" is published to subscribers with an interest in industrial relations and human resources issues. Mr Burke argued that, in the absence of any restriction, the principle of open justice applied. The Court has a process for providing inspection of documents which Specialist News has invoked for the purpose of reporting the fundament issues involved in the proceeding, and for informing people in the sector as to developments in the law and what is happening in cases directly relevant to their work. Specialist News seeks to cover all matters of relevance to its subscribers. 13 On behalf of The Age, Mr White adopted Mr Burke's submissions. Mr White argued that the starting position is that the proceeding can be reported on, and access should be granted to evidence that is before the Court. Legal framework 14 By r 2.32(2) of the Rules, a person who is not a party may inspect specified types of documents in a proceeding in the proper Registry including, relevantly, "a pleading or particulars of a pleading or similar document". Relevantly, a statement of claim is a "pleading". 15 By r 2.32(4), a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. 16 The Court's Access to Documents and Transcripts Practice Note (GPN-ACCS) provides guidance in respect of requests for access to documents contained in a file relating to a proceeding in the Court. Paragraph 4.10 provides that, in considering a requestion, the Court will consider factors including, but not limited to, relevantly: (a) whether the documents fall initially within a restricted or unrestricted category, that is, whether or not it falls within r 2.32(2); (b) the context surrounding, and purpose underpinning, the request; (c) 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.); (d) 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 proceeding, which must be balanced against 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. 17 In Reynolds v JP Morgan Administrative Services Australia Limited (No 2) and Another [2011] FCA 489; (2011) 193 FCR 507, Rares J concluded that the relevant documents were not pleadings. At [26], his Honour stated: The mere fact that a document is on the Court file is not a sufficient reason to permit or grant leave for its inspection by a person, such as Fairfax, who is not a party. The jurisdiction of the Court ordinarily must be exercised in open court: s 17(1) of the Federal Court of Australia Act 1976 (Cth); Dickason v Dickason [1913] HCA 77; (1913) 17 CLR 50 at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ. The interests of open justice are not engaged simply because material is on the Court file that has not been tendered or admitted into evidence and ordinarily leave to inspect such material under O 46 r 6(3) will not be granted: Hogan v Australian Crime Commission (2010) [2010] HCA 21; 240 CLR 651 at 667 [40]-[41] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ (affirming what Emmett J had held: P v Australian Crime Commission [2008] FCA 1336; (2008) 250 ALR 66 at 70 [19]-[20]). 18 At [27], his Honour concluded that, where the relevant documents played no role in the conduct of the proceedings in open court, there was no occasion to justify granting access to a non-party such as the relevant media organisation as an incident to the operation of the principle of open justice. 19 In Oldham v Capgemini Australia Pty Ltd (No 2) [2016] FCA 1101, Mortimer J refused an application by a non-party for access to a complaint to the Commission. At [14], her Honour noted: [A] complaint made to the AHRC is a private and confidential document, strictly protected under the AHRC legislation, which does not become part of the "pleadings" in this Court and does not lose its private and confidential character because the Federal Court Rules 2011 (Cth) require that it (and the Commission's notice of termination) are to be filed with any initiating process as proof of satisfaction of the precondition to this Court's jurisdiction under s 46PO ...". 20 Her Honour considered that those propositions tended against granting access to the complaint. Her Honour then considered whether there was material before the Court such as to make it appropriate, in the interests of the administration of justice, that access be granted to the complaint. 21 At [19], her Honour noted that the complaint had not been deployed in open court (although it was extensively cross-referenced in the statement of claim), and that there was no aspect of the principles of open justice which favoured the release of the complaint. Consideration 22 The respondents did not suggest that the statement of claim is not a pleading in the sense that it does not have the usual characteristics of a pleading. 23 I have read the statement of claim, which was prepared by Ms Rossi's lawyers and includes the usual certification that the available factual and legal material provides a proper basis for each allegation in the pleading. 24 On its face, the statement of claim is a typical pleading in that it identifies material facts relied upon by Ms Rossi to support her claims for relief, and ostensibly seeks to convey to the respondents the case that Ms Rossi seeks to bring against the respondents. It contains allegations of nine sets of incidences of sex discrimination, four allegations of sexual harassment (one which might be described as systemic, one which involves unidentified perpetrators and two which involve identified perpetrators), and allegations of disability discrimination and unconscionable conduct and duress by the Maurice Blackburn parties. 25 In my view, the statement of claim is a pleading, filed pursuant to an order to file a statement of claim within the meaning of the Rules, on its face intended to serve the purpose of a pleading, and consequently falls initially in the unrestricted category of documents in r 2.32(2). The statement of claim is not relevantly analogous to a complaint to the Commission, in that it is not a private and confidential document and is not protected under the Act. 26 The purposes for which the media parties seek access to the statement of claim are legitimate. Essentially, they seek to pursue fair and accurate reporting of the proceeding. 27 Part of the context of the request is the significant passage of time since the incidents that are the subject of Ms Rossi's claim. As against Qantas, the allegations cover the period from 1990 to April 2003. As against the Maurice Blackburn parties, the allegations principally concern the period from about October to December 2008. These are not matters that would ordinarily tell against granting access to a pleading within the meaning of r 2.32. 28 There was no suggestion that the statement of claim contains scandalous or confidential material. However, the statement of claim contains allegations against numerous named employees or former employees of Qantas. The contents of the statement of claim have not been referred to in open court and neither the respondents nor any of the individuals named in the statement of claim have yet had an opportunity to respond to the allegations in the statement of the claim in the proceeding. Further, if the leave application fails, the respondents will not be required to file any defence. I accept that these are matters that tend against the grant of access. 29 On balance, I am satisfied that it is appropriate in the interests of justice to grant access to the statement of claim because it is a document which falls within the scope of r 2.32(2) and the document is sought for the legitimate purpose of fair and accurate reporting of the proceeding. The factors which tend against granting access are not sufficiently compelling to warrant a different result in the circumstances of the impending hearing of the leave application, now listed on 29 May 2020, where the statement of claim will be deployed on Ms Rossi's behalf. Conclusion 30 I will grant leave to Specialist News and The Age to inspect the statement of claim. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 1 May 2020