Broad Construction Services (WA) Pty Ltd v the Construction, Forestry, Mining and Energy Union of Workers

[2007] WASC 133

BROAD CONSTRUCTION SERVICES (WA) PTY LTD -v- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS & ANOR [2007] WASC 133

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 133
Case No:	CIV:1285/2007	Heard:	19 JUNE 2007
Coram:	LE MIERE J	Delivered:	20/06/07
No of pages:	23	Judgment Part:	1 of 1
Result:	Application granted
Category:	A
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Parties:	BROAD CONSTRUCTION SERVICES (WA) PTY LTD THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS JOSEPH McDONALD
Catchwords:	Civil practice and procedure Application to inspect and copy affidavit and annexure under O 67 r 11 and court's inherent jurisdiction Principles of open justice
Legislation:	Building and Construction Industry Improvement Act 2006 (Cth), s 57 Federal Court Rules 1979 (Cth), O 46 r 6 Rules of the Supreme Court 1971 (WA), O 67 r 11 Uniform Civil Procedure Rules 2005 (NSW), r 36.12
Case References:	Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609; ATPR 41-873 Australian Securities & Investments Commission v Rich [2002] NSWSC 198 Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168 De Hass v Mercia & Associates, unreported; SCt of WA (Templeman J); Library No 980633, 14 September 1998 Hammond v Scheinberg [2000] 52 NSWLR 49 R v Davis (1995) 57 FCR 512 Re Guardian Newspapers Ltd [2005] All ER 155 Re her Honour Chief Judge Kennedy Ex Parte West Australian Newspapers Ltd [2006] WASCA 172 Russell v Russell (1976) 134 CLR 495 Seven Network Ltd v News Ltd (No 2) (2005) 148 FCR 1 Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BROAD CONSTRUCTION SERVICES (WA) PTY LTD -v- THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS & ANOR [2007] WASC 133 CORAM : LE MIERE J HEARD : 19 JUNE 2007 DELIVERED : 20 JUNE 2007 FILE NO/S : CIV 1285 of 2007 BETWEEN : BROAD CONSTRUCTION SERVICES (WA) PTY LTD

Plaintiff

AND

THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
First Defendant

JOSEPH McDONALD
Second Defendant

Catchwords:

Civil practice and procedure - Application to inspect and copy affidavit and annexure under O 67 r 11 and court's inherent jurisdiction - Principles of open justice

(Page 2)

Legislation:

Building and Construction Industry Improvement Act 2006 (Cth), s 57

Federal Court Rules 1979 (Cth), O 46 r 6
Rules of the Supreme Court 1971 (WA), O 67 r 11
Uniform Civil Procedure Rules 2005 (NSW), r 36.12

Result:

Application granted

Category: A

Representation:

Counsel:

Plaintiff : Mr M C Hotchkin
First Defendant : Mr P G McGowan & Mr G S MacLean
Second Defendant : Mr P G McGowan & Mr G S MacLean

Solicitors:

Plaintiff : Hotchkin Hanly
First Defendant : Gavin MacLean
Second Defendant : Gavin MacLean

Case(s) referred to in judgment(s):

Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609; ATPR 41-873
Australian Securities & Investments Commission v Rich [2002] NSWSC 198
Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168
De Hass v Mercia & Associates, unreported; SCt of WA (Templeman J); Library No 980633, 14 September 1998
Hammond v Scheinberg [2000] 52 NSWLR 49
R v Davis (1995) 57 FCR 512
Re Guardian Newspapers Ltd [2005] All ER 155
Re her Honour Chief Judge Kennedy Ex Parte West Australian Newspapers Ltd [2006] WASCA 172
Russell v Russell (1976) 134 CLR 495

(Page 3)

Seven Network Ltd v News Ltd (No 2) (2005) 148 FCR 1
Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192


(Page 4)

1 LE MIERE J: The applicants Channel 7 Perth Pty Ltd and Swan Television Pty Limited broadcast on television channels 7 and 9 respectively throughout the metropolitan area of Perth. The applicants Nationwide News Ltd, West Australian Newspapers Ltd and John Fairfax Holdings Ltd publish newspapers circulating throughout Australia or Western Australia. The sixth applicant, the Australian Broadcasting Corporation, broadcasts on radio and television throughout Australia. Each of the applicants seeks leave to inspect and be provided with a copy of the affidavit of Marcus Thomas Clarke sworn in this action on 1 May 2007 and the annexures to that affidavit. I will sometimes refer to that affidavit and the annexures as the affidavit and the annexures respectively. I will first outline the proceedings and Mr Clarke's affidavit.

The proceedings

2 The plaintiff is a construction company carrying out construction work on land known as the Star Car Park situated in Northbridge (the plaintiff's building site). The first defendant is an organisation of employees, or trade union, registered under the Industrial Relations Act 1979 (WA). The second defendant is employed by the first defendant as an assistant secretary.

3 The plaintiff commenced this action by writ of summons issued on 20 March 2007. The plaintiff's claim indorsed on the writ is that the defendants trespassed upon the plaintiff's building site on 24 August 2006 and on 16 March 2007. The plaintiff claimed an injunction restraining the second defendant from entering any site in Western Australia occupied or controlled by the plaintiff and an injunction restraining the first defendant from causing, permitting or allowing the second defendant to enter any site in Western Australia occupied or controlled by the plaintiff. The plaintiff also claimed damages.

4 The plaintiff applied for interlocutory relief. Its application came on for hearing before Master Sanderson on 27 March 2007. Master Sanderson granted an injunction until further order restraining the second defendant from entering any site in Western Australia occupied or controlled by the plaintiff. Master Sanderson made no order against the first defendant.

5 The matter first came before me on 17 April 2007. On that and subsequent occasions I made directions as to the conduct of the action. On 14 June 2007 I heard an application by the plaintiff for an injunction against the first defendant. In support of that application the plaintiff filed the affidavit together with the annexures. On 14 June 2007 I also heard an

(Page 5)

application by the defendants to strike out paragraphs of the statement of claim and to strike out, or alternatively remove from the file, the affidavit on the basis that it is irrelevant or otherwise oppressive.

Application to strike out paragraphs of statement of claim

6 On 14 June I first dealt with the defendant's application to strike out paragraphs of the statement of claim. In par 11 of the statement of claim the plaintiff pleads that on 16 March 2007 the second defendant entered the plaintiff's building site without lawful authority or permission thereby trespassing on the land. Paragraph 12 of the statement of claim pleads that the first defendant is vicariously liable for the conduct of the second defendant. The plaintiff then gives particulars of the first defendant's vicarious liability. The vicarious liability of the first defendant for the conduct of the second defendant is pleaded to be inferred from, or imposed upon the first defendant by, the totality of the matters set out in subparagraphs 12(a) to (h). The defendants applied to strike out subparagraphs 12(f) - (h). No objection was taken to subparagraphs 12(a) - (e). Subparagraph 12(g) states that the first defendant has implicitly authorised the second defendant to generally conduct himself in such a way as to trespass on building sites, as evidenced by the extent of his trespassing conduct, by entering the following sites on the following dates without statutory authority or permission. There then follows a list of 11 occasions on which it is stated the second defendant trespassed upon identified building sites between 30 January 2006 and 24 April 2007.

7 The defendants submitted that the matters pleaded in subparagraph 12(g) of the statement of claim are irrelevant to any issue in the action because none of the alleged trespasses involve the plaintiff or are the subject of the alleged trespass that is the cause of action in the present proceedings. I refused to strike out subparagraph 12(g) of the statement of claim because I was not satisfied that the pleading was irrelevant. I held that it is arguable that subparagraph 12(g) goes to establishing a sufficient connection between the second defendant's employment, his functions and what he does and has done for some time in the course of his employment and the conduct of the second defendant on 16 March 2007 such that subparagraph 12(g) is relevant to the question of whether or not this conduct occurred in the course of the second defendant’s employment or otherwise is conduct for which the first defendant is vicariously liable.

(Page 6)

8 It is not necessary to refer further to the application to strike out subparagraphs 12(f) and 12 (h).

The affidavit

9 Mr Clarke is employed by the Australian Building and Construction Commissioner ("the ABC Commissioner") as an investigator. He is an inspector appointed pursuant to s 57 of the Building and Construction Industry Improvement Act 2006 (Cth) ("the BCII Act"). In his affidavit Mr Clarke refers to proceedings in the Australian Industrial Relations Commission in which the Commission revoked the second defendant's right of entry permit issued under the Workplace Relations Act (1996) (Cth) and to proceedings in the Commission in which the Commission on 28 October 2005 dismissed an application by the first defendant for a right of entry permit to be issued to the second defendant. In par 21 of his affidavit Mr Clarke swears that subsequent to the decision of the Australian Industrial Relations Commission on 28 October 2005 the ABC Commissioner has become aware of a number of unauthorised entries onto site by the second defendant. In the following paragraphs of his affidavit Mr Clarke describes the alleged trespasses by the second defendant that are pleaded in subparagraph 12(g) of the statement of claim.

10 One of the alleged trespasses sworn to by Mr Clarke occurred on 22 February 2007 at the Pindan Construction site at 18 - 32 Parliament Place, West Perth. Mr Clarke attended the building site. Mr Clarke went to the top floor of the construction site and activated the video camera that he was carrying. He observed the second defendant and continued to video his presence continuously until the second defendant departed from the site. A CD copy of the video is annexure MTC1 to Mr Clarke's affidavit.

11 Mr Clarke also swears to an alleged trespass by the second defendant on 24 April 2007 at the Q-Con construction site, 22 St George's Terrace, Perth. Mr Clarke swears that he attended the site with Ian Wolsoncroft, another investigator employed by the ABC Commissioner. Mr Wolsoncroft videoed the second defendant on the site and what the second defendant said to representatives of the site occupier. Annexure MTC2 to Mr Clarke's affidavit is a CD copy of the video taken by Mr Wolsoncroft.

(Page 7)

The hearing of the plaintiff's application for an injunction against the first defendant

12 After I had dealt with the defendant's application to strike out paragraphs of the statement of claim I then heard the plaintiff's application for an interlocutory injunction against the first defendant. The plaintiff relied, amongst other things, on the affidavit of Mr Clarke and the annexures. The affidavit and annexures had been filed and were on the court file. I had read the affidavit and watched the videos privately in my chambers before the hearing. Counsel for the plaintiff requested that the CD copy of the video of what occurred at the Pindan Construction site in West Perth be played in open court. Counsel for the defendants submitted that the video should not be played. The following exchange then occurred with Mr Hotchkin, counsel for the plaintiff:

"LE MIERE J: … I have, as is my usual practice, viewed the [videos], just as I have read the affidavit before coming into court. In the usual course, I do not require the affidavit to be read out loud and I do not require the [videos] to be shown because I have seen them and unless there is some particular reason, there's no purpose to be served in playing them. So that's the course I propose to follow unless you wish to follow a different course and persuade me that some different course should be taken.

HOTCHKIN, MR: The only forensic purpose of having them aired in court is for me simply to demonstrate the point I was making earlier where I indicated to your Honour the movements and the circumstances in which Mr McDonald took authority, took charge of the workplace in effectively subordinating other union officials to his demand and control. I just wanted to identify they way in which he did that. Other than that, I didn't have anything more to say to your Honour.

LE MIERE J: All right. I don't see a need to view them at this time. I will review that if there is something that Mr McGowan says in the course of his submissions which gives rise to some issue to which a point you make might go."

13 As I have said, the defendants had applied by chamber summons to strike out the affidavit of Mr Clarke or alternatively for the affidavit to be taken off the file on the basis that it is irrelevant or otherwise oppressive. Counsel for the defendants had earlier stated that the outcome of the defendants’ application to strike out the statement of claim would
(Page 8)

determine the defendants' application to strike out the affidavit of Mr Clarke.

14 I admitted the affidavit and annexures into evidence. In accordance with the usual practice in this Court I did not require counsel to read the affidavit or to play the videos annexed to the affidavit. I took the affidavit as read. In the course of the hearing counsel for the plaintiff referred to the affidavit and to the videos. Counsel relied upon the contents of the affidavit and the videos. I considered those matters in making my decision to grant an interlocutory injunction.

The present application

15 Each of the applicants now applies by motion for an order that it have leave to inspect and take a copy of the affidavit and the annexures.

Power to give access to documents

16 The court has an inherent power to make material admitted into evidence or produced to the court available on request: Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609; ATPR 41-873 per Finkelstein J at 44,956. The court has made rules to facilitate making material on the court file available. Order 67 r 11 is:

"(1) Any person shall, on payment of the prescribed fee, be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Central Office, namely –

(a) the copy of any writ, and the statement of claim (if any) indorsed thereon under Order 6 rule 3;

(b) any originating application made under the Corporations Act 2001 of the Commonwealth;

(ba) any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005;

(c) any judgment or order given or made in court or the copy of any such judgment or order; and

(d) with the leave of the court of a Registrar, any other document."

(Page 9)

17 Order 67 r 11 does not set out the criteria for the court to grant leave for a person to inspect and take a copy of any document not specified in subparagraphs (a) - (c) of r 1.

18 Other jurisdictions have adopted rules for making material in the possession of the court available to parties or to non-parties. In New South Wales Uniform Civil Procedure Rules 2005, r 36.12(2) provides:

"(2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the Registrar:

(a) must furnish to any party to any proceedings, and

(b) may furnish to any other person appearing to have a sufficient interest in the proceedings,

a copy of any pleading or other document that has been filed in the proceedings."

19 A New South Wales Supreme Court Practice Note SC Gen 2 (Supreme Court – Access to Court Files) that commenced on 1 March 2006 prescribes the procedures surrounding the provision of access to court files. The Practice Note includes the following paragraphs:

"6. Access to material in any proceedings is restricted to parties, except with the leave of the court.

7. Access will normally be granted to non-parties in respect of:


• Pleadings and judgments in proceedings that have been concluded, except insofar as an order has been made that they or portions of them be kept confidential;

• Documents that will record what was said or done in open court;

• Material that was admitted into evidence; and

• Information that would have been heard or seen by any person present in open court,

(Page 10)

unless the Judge or Registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a Registrar or Judge is satisfied that exceptional circumstances exist."

20 In the Federal Court Rules, ("FCR") O 46, r 6 provides:

"(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

(b) a notice of appearance;

(c) a pleading or particulars of a pleading

(d) a notice of motion or other application'

(e) a judgment;

(f) an order;

(g) a written submission;

(h) a notice of appeal

…

(l) in a proceeding to which Order 78 applies:


(i) an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993;

(ii) an extract from the Register of Native Title Claims …


(m) reasons for judgment

(Page 11)

(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 (other than an affidavit mentioned in subparagraph (2)(l)(i);

(b) an unsworn statement of evidence filed in accordance with a direction given by the court or a judge;

(c) interrogatories or answer to interrogatories;

(d) a list of documents given on discovery;

(e) an admission;

(f) evidence taken on deposition;

(g) a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document;

(i) a judgment, order, or other document that the court has ordered is confidential.


(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).

(5) Except with the leave of the court or a judge, a party to a proceeding or other person must not search in the Registry for, or inspect:


(a) a transcript of the proceedings; or

(b) a document filed in the proceeding to support an application for an order that a document, evidence or thing be privileged from production.


…"

(Page 12)

The applicants' submissions

21 The applicants submit that these applications are to be determined first and foremost by reference to the principles of open justice. The applicants adopt the following statement of Barrett J in Australian Securities & Investments Commission vRich [2002] NSWSC 198 at [9]:

"… decisions about access to documents in court files are to be determined first and foremost by reference to principles of open justice and the due administration of justice that require an appropriate measure of cooperation by the court with those sections of the media which seek to report proceedings before the court. Those principles focus most sharply on the situation where a trial has taken place or is at least in progress. The proceedings which must be open and to which access in the public interest must be guaranteed are proceedings that actually take place in court. It is in that context that the court has an undoubted and clear role to play in assisting the media to obtain a full and fair understanding of what has transpired so that informed reporting can occur without incomplete appreciation of source materials and in a way which enables the various matters which have come out in court, whether or not actually spoken aloud, to be understood in the full context of the case."

22 Barrett J was considering an application for access to the plaintiff's statement of claim under rules of court that provided that a person shall not search in a registry for or inspect any document or thing in any proceedings without the leave of the court. At the time there was in force a practice note, par 2 of which was in the same terms as par 7 of Practice Note SC Gen 2 to which I have already referred.

23 The applicants submit that there is a strong presumption in favour of allowing inspection of any document or thing that has been put into evidence, and inspection should only be refused in exceptional circumstances. The applicants say that is all the more so where, as here, material has been read by the judge in private and is not read out in court: see Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (supra) at 44,956 per Finkelstein J. Finkelstein J there considered an application by a non-party for access to a statement of agreed facts and joint submissions to determine whether it would bring an action to recover losses it considered it had suffered as a result of the contraventions of the Trade Practices Act 1974 (Cth) the ACCC alleged in the action that the respondent had

(Page 13)

engaged in. The application was brought under FCR, O 46 r 6 to which I have already referred.

The submissions of the plaintiff

24 The affidavit and annexures were filed by the plaintiff. The plaintiff does not object to access or copies of the affidavit and videos being provided to the applicants.

The submissions of the ABC Commissioner

25 Mr Clarke is, as I have said, employed by the ABC Commissioner as an investigator and is an inspector appointed under the BCII Act. Counsel for the Commissioner submitted that the videos belong to the Commissioner although others may claim some interest in them or copies of them. The Commissioner does not oppose access to the affidavit and videos or copies being made available to the applicants. Counsel submitted that there may be circumstances where access to an affidavit or videos such as these should not be provided but there were no such circumstances in this case.

The submissions of the defendants

26 The defendants oppose the applications. Counsel for the defendants submitted that a non-party is not entitled to access to the affidavit in the absence of leave being granted by the court. Counsel for the defendants referred to the following passage at [67.11.1A] in Civil Procedure Western Australia:

"Pursuant to r 11(1)(d) a registrar may also grant leave to search, inspect or copy other documents provided very cogent reasons are provided. A letter is usually a sufficient form of request. If the registrar permits a member of the public to inspect documents in that category without very cogent reasons, his or her order may be set aside and the court may of its own motion grant injunctions compelling the return of the documents and restraining the member of the public from making any further use of the information which they contain: De Hass v Mercia &Associates, unreported; SCt of WA (Templeman J); Library No 980633, 14 September 1998."

27 In De Hass Templeman J heard an appeal from a decision of the Probate Registrar. A firm of solicitors had requested that they be provided with a copy of the statement of assets and liabilities of the deceased's estate filed pursuant to r 9B(1) of a non-contentious probate
(Page 14)

rules. The solicitors sought access to the document on behalf of their client who claimed that the estate was liable to them in damages and that they intended to give the executor notice of the claim. That is a very different case from this one. In that case the document in question had been filed but had not been read or referred to in any court hearing.

28 Counsel for the defendants submitted that it was necessary for a person seeking leave under O 67 r 11(1)(d) to establish why they should be given leave to inspect and copy the documents and that the applicant should state the purpose for which access is required. Counsel submitted that the applicants had failed to state on oath the basis upon which leave to access the documents is sought.

Some relevant cases

29 In Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192, at [27] McLure J referred to factors relevant to the exercise of the discretion under O 67 r 11(1)(d):

"Where an application for access under O 67 r 11(1)(d) of the Rules is based on the principle of open justice it is necessary to have regard to the purpose and rationale of that principle and how it informs and affects related legal principles. Factors relevant to the exercise of the discretion in such circumstances include:

(a) whether and if so to what extent the document has been referred to in open court;

(b) the stage reached in the proceedings;

(c) the contents of the document (to assess the nature and seriousness of any allegations made and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party);

(d) the nature of the proceedings;

(e) whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process;

(f) the purpose for which access is required."

30 Her Honour characterised the application before her as being in substance an application by the plaintiffs for them, by their agent, to
(Page 15)

publish pleadings, particulars of pleadings, interlocutory applications and affidavits in support thereof, outlines of submissions and the transcript of court proceedings to the world at large. In this case, the applicants seek leave to inspect and copy only an affidavit and annexures that have been received in evidence and referred to in open court.

Open justice

31 The principle of open justice is that court proceedings should be conducted publicly and in open view. This principle enables court proceedings to be scrutinised as without such scrutiny abuses may flourish. The public administration of justice tends to maintain confidence in the integrity and independence of the courts: see Russell v Russell (1976) 134 CLR 495 at 520; Re her Honour Chief Judge Kennedy Ex Parte West Australian Newspapers Ltd [2006] WASCA 172, Steytler P at [36].

32 In Australian Securities & Investments Commission v Rich (supra), Austin J said at [26]:

"The principle of open justice entails, in my view, that when the Court makes quite significant orders on an ex parte application, the basis for the making of those orders must be available so that the court is accountable for what it has done after it has considered the information provided to it."

33 In R v Davis (1995) 57 FCR 512 the Full Federal Court said at 514:

"Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them."

34 Those matters are the reason for the courts to adopt the open justice principle. But it does not follow that the principle of open justice only applies if the applicant seeks access in the particular case for the specific purpose of scrutinising the manner in which the court conducted the
(Page 16)

proceedings or to understand the court proceedings and make a full and more informed report of the proceedings.

35 In ReGuardian Newspapers Ltd [2005] All ER 155, the parties to an action had reached a settlement and orders were made staying the proceedings except for the purpose of carrying out the terms of settlement. The action concerned the claim for commission alleged to be due in relation to the sale of military vehicles. On one day during the trial a reporter from the Guardian newspaper had been present and had obtained a copy of the claimant's skeleton argument. The newspaper considered that certain matters mentioned in the skeleton concerning the sale were potentially newsworthy. The matters were potentially newsworthy but were of no real significance in the case. After it discovered that the dispute had been settled the newspaper requested that the court make available the witness statements in the case. Under Civil Procedure Rules 5.4(5)(b) a person who was not a party to proceedings could, if the court gave permission, obtain from the records of the court, amongst other things, a copy of documents filed by a party. Parker J granted access. Parker J said at [36] – [42]:

"Mr Ritchie has of course put a number of other arguments to me in opposition to The Guardian's application and I will describe and comment on them. He says, and I agree, that in many cases and in non-judicial writings, the principle of open justice has been supported primarily on the ground that it serves a public interest in that it operates as a form of scrutiny of how the judicial system operates. In a passage from Buxton LJ's judgment in Lilly Icos Ltd v Pfizer Ltd (No 2) [2002] 1 All ER 842 at [25], which I have not quoted yet, he writes:

' … as Lord Diplock put it in Home Office v Harman [1982] 1 All ER 532 at 537, [1983] 1 AC 280 at 303, citing both Jeremy Bentham and Lord Shaw of Dunfermline in [Scott (otherwise Morgan) v Scott [1913] AC 417, [1911-13] All ER Rep 1]:

"Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.'"
The cases also refer to the ability of the press to provide fair and accurate reports of court proceedings. That is another important purpose which the principle of open justice is intended to serve.

(Page 17)

Mr Ritchie says that in this case The Guardian does not want to see the documents which it requests in order to place the judicial system under scrutiny, or to keep it under scrutiny. Nor does The Guardian want to publish a fair and accurate report of the case between Mr Chan and Alvis down to the time that it was settled. What it wants is to explore the newsworthy story which its reporters perceived from some of the contents of Mr Chan's skeleton: a story which was of little or no relevance to Mr Chan's claim or to Alvis's defence. I repeat the point that Mr Chan was claiming against Alvis that he was entitled to a commission. Mr Ritchie says that The Guardian is manifestly not interested in the ins and outs of whether Mr Chan may or may not have been entitled to his commission.

Factually I agree with what Mr Ritchie says in those respects. I also agree with him that The Guardian over-egged the pudding by saying in its application notice that it wished to inspect and copy the document 'because GNL wished to prepare a fair and accurate report of the proceedings'. In my judgment that was not the real reason. Mr Evan's e-mail to my clerk indicated what the real reason was. So did his letter a few days earlier to Alvis's parent company. However, I do not think that I should refuse the order simply because the reason which The Guardian expressed in the application notice can be shown not to give an accurate impression.

Moore-Bick J in Dian AO v Davis Frankel & Mead (a firm) [2005] 1 All ER 1074 at [31] has noted that doing justice in public can have consequences which go beyond its primary objects:


'Although … one consequence of observing the principle of open justice is that those who are present at a hearing may obtain access to information that they may be able to use to their advantage in other contexts, that is simply a consequence of doing justice in public. It is not one of its primary objects.'

… in Dian AO v Davis Frankel & Mead (a firm) … Moore-Bick J made an order under the then r 5.4(2)—essentially the same as the present r 5.4(5)(b)—for a non-party to a case to be given access to certain of the documents in the court file. The case had been settled some years previously.

(Page 18)

The non-party did not want the documents out of a desire to scrutinise justice or in order to give a fair and accurate report of the earlier case. It wanted access to them because it was itself involved in current litigation and it thought it possible that the documents from the earlier case, in which it had not been involved, could be useful to it in the current case, in which it was involved. The judge was of the opinion that the applicant did have 'a legitimate interest in obtaining access to documents on the court record in so far as they contain information that may have a direct bearing on issues that arise in the litigation in the Caribbean'. I note that in expanding on what he says there he adds this (at [56]):

'Moreover, I think that in the case of documents that were read by the court as part of the decision-making process, the court ought generally to lean in the favour of allowing access in accordance with the principle of open justice as currently understood …'

…

In this case why should it not be said that The Guardian has an entirely legitimate interest in inspecting the pleadings and witness statements in Chan U Seek v Alvis Vehicles Ltd? The nature of its interest is not related to other legal proceedings in which it is involved, but it is very much related to the core of its business and, as I am sure its editor and reporters would say, the purpose of its existence. The Guardian is a newspaper and a serious newspaper. It publishes stories which it believes to be of interest to its readers and which in some cases, it believes could raise serious issues of public concern. Its reporters consider that, through Mr Chan's skeleton, they have discovered such a story, and they wish to see whether there is more relevant material in documents which passed into the public domain through proceedings in open court. It is not for me to second-guess the reporters on whether the story really is interesting or whether it really does raise serious issues. If a litigant in current proceedings can see identified documents from an earlier court file because they may bear on his current litigation, then it appears to me that a serious newspaper should be able to see identified documents from an earlier court file because they may bear on a current story or article which it is interested in publishing."

(Page 19)

Circumstances of this case favour access

36 In days gone by the court would have required the affidavit to be read out loud and the videos to be played in court. That is, media organisations would have had access to the contents of the affidavit and the videos by listening to and watching them in the course of the hearing in open court. In accordance with the practice of this Court, for the purpose of saving time and costs, I did not require the affidavits to be read out loud or the videos to be played in court. However, the affidavit and videos were received in evidence and should be treated as if the affidavit had been read and the videos had been played in open court. In those circumstances, it is not a necessary condition of leave being granted to inspect and copy the documents that the applicants state on oath the purpose or purposes for which they seek access. That is because the principle of open justice favours the grant of leave to inspect and copy the affidavit and annexures.

37 In any event, counsel for the applicants stated that they sought access to the affidavit and videos to help them understand precisely what happened in court on 14 June, to assess whether they want to make any further report of the proceedings and to make a report of the proceedings. Those are proper purposes. The principle of open justice favours giving the applicants leave to inspect and copy the affidavit and annexures for those purposes.

38 In Australian Securities and Investments Commission v Rich (supra), Austin J set out Practice Note Number 97, which is in substantially similar terms to Practice Note SC Gen 2, and observed that par 2 sets up as a general proposition that access is granted to the material which it designates. Austin J continued at [20]:

"In my opinion, that proposition is of fundamental importance to the administration of justice in this State. It reflects, in my view, the principle of open justice …"

39 At [23] Austin J said:

"Of course, free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court."

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40 It is important that in this case the documents to which the applicants in this case seek access have been admitted into evidence in the course of a hearing in court and should be treated as if they had been read or played in court. I am not called upon to consider whether or in what circumstances a non-party should be given leave to inspect and copy documents on the court file that have not been admitted into evidence or referred to in open court.

41 In Hammond v Scheinberg [2000] 52 NSWLR 49, Hamilton J decided an application on behalf of the plaintiff in proceedings under the Family Provision Act 1982 that the court give notice to the parties before allowing further access to affidavits by the media. At [2] Hamilton J referred to affidavits received in evidence but not read in open court:

"At the time access was granted the affidavit material was in evidence by medium of the affidavits having been 'read' in open court. In accordance with modern practice this has occurred in each case by counsel for the party who relied upon the affidavit announcing to the court that he read the affidavit and objections being taken and ruled upon. The portions not rejected were then treated as in evidence. The old practice whereby affidavits were read aloud in court by counsel has been abandoned in my court and, I believe, almost universally in civil proceedings in this court. This has the beneficial effect of greatly reducing the length of hearings and the cost to the parties. But it has the unfortunate side effect that members of the public present in court do not hear the evidence contained in the affidavits, nor are representatives of the press able, as they were previously, to make their own notes or record of the affidavit evidence."

At [8] Hamilton J referred to the principle of open justice and continued:

"The modern practice of affidavits not being read aloud in court but formally read and dealt with in the fashion set out (at [2] supra) is adopted to save the time of the court, the public purse and the funds of litigants, and not for the purpose of removing from public hearing and scrutiny the affidavit material which would formerly have been read aloud in court and available to that scrutiny. It is in my view of particular importance that it is not to be allowed to have that effect by a side wind. Similar considerations apply to the giving of evidence in proceedings in the commercial list and other proceedings in this court by the use of evidence statements, where the evidence in chief of a witness is reduced to a signed statement in writing which the

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witness when called deposes to the truth of upon entering the witness box."

42 I have already referred to Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) (supra). At 44,956, Finkelstein J said:

"7. The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position."

43 Order 46 r 6 of the Federal Court Rules was recently considered by Cowdroy J in Churche v Australian Prudential Regulation Authority (No 3) [2006] FCA 1168. Cowdroy J considered whether leave should be granted to various media organisations to access parts of the file to which O 46 r 6(3) applies. Cowdroy J referred to the statements of Finkelstein J in ACCC v ABB Transmission and Distribution Ltd (supra)to which I have earlier referred. His Honour referred to the following statement of Sackville J at [27] of Seven Network Ltd v News Ltd (No 2) (2005) 148 FCR 1:

"[I]t seems to me that unless the interests of justice require otherwise, this court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. I say 'ordinarily' because the circumstances of each case will vary and the

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exercise of the discretion under O 46, r 6 of the Rules will have take into account the particular circumstances of the case. I agree … that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence. In general, the application of this principle will serve the interests of open justice. In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the Court's determination of the issues arising in the proceeding."

44 Cowdroy J concluded at [26] that the appropriate course would usually be for leave to be granted to access those affidavits which have been admitted into evidence, but not be otherwise granted. His Honour held that the principle applied to affidavits read on an interlocutory application.

45 The principles referred to by Finkelstein J, Sackville J and Cowdroy J to which I have referred are relevant to the circumstances of this case.

46 The principle of open justice does not require that all documents on the court file should be open to inspection to any person. The principle applies to the judicial process not to the court file. In general, the Court should favour allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence, whether in the course of a trial or an interlocutory hearing. There may be reasons for refusing to exercise the court’s discretion in favour of access but in the absence of any good reason to refuse access the principle of open justice favours access. All the more so when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is contrary to the principle that court proceedings should be conducted publicly and in open view.

47 In this case the only persons to oppose access are the defendants. They have not advanced any good reason why access should not be allowed. In the circumstances of this case each of the applicants should be allowed access to the affidavit and videos and to take copies.

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Conclusion

48 Each of the applicants will have leave to inspect and take a copy of the affidavit of Marcus Thomas Clarke sworn in these proceedings on 1 May 2007 and annexures MTC1 and MTC2 to that affidavit.