Cockburn Cement Ltd v Minister for Environment - [2019] WASC 9

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COCKBURN CEMENT LTD -v- MINISTER FOR ENVIRONMENT [2019] WASC 9
CORAM:   ALLANSON J
HEARD:   24 DECEMBER 2018 & ON THE PAPERS
DELIVERED          :   16 JANUARY 2019
FILE NO/S:   CIV 3183 of 2018
BETWEEN:   COCKBURN CEMENT LTD
Applicant
AND
MINISTER FOR ENVIRONMENT
First Respondent
THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF WATER AND ENVIRONMENTAL REGULATION
Second Respondent

Catchwords:

Practice and procedure - Access to court record confidential information - Restriction of access

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 11, O 67B

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	No appearance
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Squire Patton Boggs
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia

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

BK v ADB [2003] VSC 129
John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512
The Food Improvers Pty Ltd v BGR Corporation Pty Ltd (No 2) (2006) 155 FCR 216
Titelius v Public Service Appeal Board (1999) 21 WAR 201

ALLANSON J:

Order 67B

The common law does not recognise a right to obtain access to a document that has been filed in proceedings and is held as part of a court record.[1] Order 67 r 11 (now repealed) of the Rules of the Supreme Court 1971 (WA) required the leave of the court or a registrar for a person to inspect and take a copy of documents on the court record. Following the introduction of electronic filing in the court, O 67 r 11 was repealed. Access to the court records (including information and other things held by the court) is now governed by O 67B.
[1] See John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 [31]; Titelius v Public Service Appeal Board (1999) 21 WAR 201 [74] - [88], [99].
The present application is about restricting access by persons who are not parties to the action.
A person who is not a party to proceedings is entitled to limited information, as of right, under O 67B r 6. Otherwise, by O 67B r 11(3), a person who wants access to information or a record or other thing must apply for access. The application is made to the principal registrar, and the applicant need not serve the application on, or give notice of it to, any person unless the court orders otherwise. Under O 67B r 12, the court may order the application be served on a person specified in the order, and may request any person to give it submissions about the application.
A person who wishes to have access to the court record restricted, can apply for an order under O 67B r 5. By sub-rule (3) the Court may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASC 9
Decision Date: 16 JANUARY 2019

CaseChat Overview and Summary

The case before the court was brought by Cockburn Cement Limited, who sought access to certain documents held by the Minister for Environment. These documents were considered confidential and were sought for use in proceedings against the Minister. The dispute was heard in the Federal Court of Australia, which was asked to determine whether Cockburn Cement Limited could access the confidential information contained in the documents.

The legal issue that the court had to decide was whether Cockburn Cement Limited had a right to access the confidential information contained in the documents held by the Minister for Environment. The court needed to determine whether the documents contained information that was subject to legal professional privilege or whether the documents contained information that was confidential and could not be disclosed without the consent of the Minister for Environment.

The court found that the documents contained information that was subject to legal professional privilege and that the Minister for Environment was entitled to keep the information confidential. The court held that the documents could not be disclosed without the consent of the Minister for Environment, as the information contained in the documents was confidential and could not be disclosed to a third party without the consent of the Minister for Environment. The court found that Cockburn Cement Limited did not have a right to access the confidential information contained in the documents.

The court's decision was that Cockburn Cement Limited was not entitled to access the confidential information contained in the documents held by the Minister for Environment. The court held that the Minister for Environment was entitled to keep the information contained in the documents confidential and that the documents could not be disclosed without the consent of the Minister for Environment. The court dismissed the application brought by Cockburn Cement Limited.

Orders