Federal Court of Australia Wilson Security v Gucic [2022] FCA 477 File number: VID 58 of 2022 Judgment of: ANASTASSIOU J Date of judgment: 29 April 2022 Catchwords: PRACTICE AND PROCEDURE – whether non-party is entitled to inspect documents pursuant to s 2.32 of the Federal Court Rules 2011 (Cth) – whether principle of open justice is engaged only when the relevant material is "used" or "deployed" in open court – leave refused Legislation: Federal Court Act 1976 (Cth), s 17 Federal Court Rules 2011 (Cth), r 2.32 Cases cited: Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135 Brown v Health Services Union (No 4) [2012] FCA 1376 Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 61 NSWLR 344 Seven Network Limited v News Limited (No 9) [2005] FCA 1394 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 15 Date of last submissions: 11 March 2022 Date of hearing: Determined on the papers Solicitor for the Defendants: HWL Ebsworth Lawyers ORDERS VID 58 of 2022 BETWEEN: WILSON SECURITY PTY LTD (ACN 127 406 295) Plaintiff AND: MICHAEL GUCIC First Defendant CERTIS SECURITY AUSTRALIA PTY LTD (ACN 003 762 150) Second Defendant order made by: ANASTASSIOU J DATE OF ORDER: 29 April 2022 THE COURT ORDERS THAT: 1. The non-party search request filed by the Australian on 18 February 2022 for leave to inspect the following documents in this proceeding be refused: (a) the affidavit of Jimmy Li sworn 7 February 2022; (b) the Plaintiff's outline of submissions filed on 14 February 2022; (c) the affidavit of Greg Watson affirmed on 14 February 2022; and (d) the affidavit of service of Samantha Fitzgerald sworn on 10 February 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ANASTASSIOU J: 1 On 7 February 2022, the Plaintiff, Wilson Security Pty Ltd, filed proceedings against the Defendants, Mr Michael Gucic and Certis Security Australia Pty Ltd. 2 Wilson Security is a private security company, which provides a range of security services including security personnel and mobile patrols. Its clients include those operating in the commercial real estate, education, finance and banking, government, healthcare, resources, retail, transport and utilities/telecommunications sectors. 3 Mr Gucic was formerly employed by Wilson Security as the State Manager of Victoria before commencing employment with Certis Security. It suffices to say that Certis Security is one of Wilson Security's main commercial competitors. 4 This proceeding was filed by Wilson Security to restrain the Defendants, among other things, from contravening s 183 of the Corporations Act 2001 (Cth), and from breaching contractual and equitable obligations owed to the Plaintiff. 5 The Originating process was accompanied by an affidavit of Jimmy Li sworn on 7 February 2022 (7 February 2022 Affidavit). 6 On 8 February 2022, the matter was referred to me in my capacity as Commercial and Corporations Duty Judge. 7 On 11 February 2022, I made orders, by consent, setting out a timetable for the filing and service of evidence and listed the matter for hearing on 18 February 2022. In broad compass, the purpose of that listing was to hear and determine the Plaintiff's interlocutory application for an order to restrain the First Defendant from engaging in work, or being directly or indirectly involved or associated with the Second Defendant. 8 Pursuant to those orders, the Plaintiff filed an outline of submissions on 14 February 2022 (Plaintiff's Submissions) and an affidavit of Greg Watson (General Manager, Regional Operations, Wilson Security) affirmed on 14 February 2022 (14 February 2022 Affidavit). The Plaintiff also filed an affidavit of service of the Originating Process Samantha Fitzgerald sworn on 15 February 2022 (Affidavit of Service). 9 The hearing of the Plaintiff's interlocutory application was ultimately vacated after I was notified that the parties had reached an in-principle agreement to resolve the proceeding in its entirety. On 21 March 2022, I entered orders by consent that the proceeding be discontinued with no order as to costs, subject to various undertakings from the First Defendant. 10 The present reasons relate to a non-party access request filed by the Australian on 18 February 2022 for leave to inspect the following documents: (1) the 7 February 2022 Affidavit; (2) the 14 February 2022 Affidavit; (3) the Plaintiff's Submissions; and (4) the Affidavit of Service. (collectively, the Requested Documents). 11 It is well understood that r 2.32(2) of the Federal Court Rules 2011 (Cth) permits a person who is not a party to a proceeding to inspect a number of different types of documents in a proceeding. However, the documents listed in r 2.32(2) do not include affidavits or submissions. In those circumstances, r 2.32(4) provides that a person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect. 12 A foundational principle informing the grant of leave is that of open justice, which has been described as "one of the most fundamental aspects of the system of justice in Australia": John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 61 NSWLR 344 at [18] (Spigelman CJ). That principle is enshrined in s 17(1) of the Federal Court Act 1976 (Cth), which provides as follows: Except where, as authorized by this Act or another law of the Commonwealth, the jurisdiction of the Court is exercised by a Judge sitting in Chambers, the jurisdiction of the Court shall be exercised in open court. 13 However, the principle of open justice does not confer any legal right on a non-party to have unfettered access to Court records or the Court file: Brown v Health Services Union (No 4) [2012] FCA 1376 at [44] (Flick J). Relevant to the present instance, this Court has adopted the consistent position that the principle of open justice does not provide access to documents which have not been "used" or "deployed" in Court: Seven Network Limited v News Limited (No 9) [2005] FCA 1394 at [26] (Sackville J); Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 at [9], [14] (Pagone J). 14 These principles were succinctly articulated by Rangiah J in Baptist Union of Queensland – Carinity v Roberts [2015] FCA 1068; 241 FCR 135, in which his Honour said at [28]-[28]: A further limitation is that the principle of open justice is engaged only when the relevant material is "used" or "deployed" in open court: John Fairfax Publications Pty Ltd v Ryde Local Court per Spigelman CJ at [32], [65], Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [26] per Sackville J. An affidavit can be described as "used" or "deployed" when it is "read" in open court: see John Fairfax Publications Pty Ltd v Ryde Local Court at [66]–[68]. An announcement that an affidavit is "read" is usually taken as deeming all the words in the affidavit to be treated as though they had been read aloud: Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [9], per Edelman J. At the directions hearing held on 29 May 2010 the parties read some, but not all, of the affidavits that had been filed. The journalists should not have access to affidavits which have been filed in the proceedings but not yet read... [Emphasis added] 15 In this instance, none of the Requested Documents have not been 'used or deployed' by a party to the proceeding. It follows that the principle of 'open justice' is not engaged and the application for leave by The Australian for access to the Requested Documents should be denied. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. Associate: Dated: 29 April 2022