Case: Loughnan (Principal Registrar, Family Court of Australia) v Altman [1992] FCA 580 ; (1992) 39 FCR 90
Outcome: discussed
In Loughnan (Principal Registrar, Family Court of Australia) v Altman [1992] FCA 580 ; (1992) 39 FCR 90 , the Full Court dealt with an appeal from a decision of the Tribunal, constituted by its then President, O'Connor J, in Re Altman and Family Court of Australia (1992) 27 ALD 369. Her Honour had reached the conclusion that an unrevised transcript of reasons for judgment pronounced in open court by a judge of the respondent was a document that the respondent was required to give access to under s 5 of the FOI Act . Because the unrevised transcript was produced by the agency responsible for providing transcript of court proceedings, the case turns largely on the meaning of the expression "a document of the court" in s 5 , and is therefore of little relevance to the present case. In the course of the Full Court's judgment, at 95, the Court did approve the conclusion of O'Connor J that the unrevised transcript was not a document of an administrative nature. Clearly, the giving of reasons for judgment and the practice of revising the transcript of those reasons for publication as the reasons for judgment are at the very heart of the judicial process, and the ready availability of the unrevised transcript to the public could undermine the independence of the judiciary. 70 Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765 , Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor's notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 , Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words "relates to matters of an administrative nature" in s 5 of the FOI Act in the following terms: The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document's general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.