Hammond v Scheinberg

[2001] NSWSC 568

Reported Decision: 52 NSWLR 49

New South Wales

Supreme Court

CITATION:	Hammond & Ors v Scheinberg & Ors [2001] NSWSC 568
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4887/98; 4936/98
HEARING DATE(S):	29 June & 4 July 2001
JUDGMENT DATE:	6 July 2001
PARTIES :	4887/98 Paul Aaron Hammond (P1) Ronite Anne Hammond (P2) Marc Adrian Hammond (P3) Barney Richard Scheinberg (D1) Michael Dunkel (D2) Agnes Ginges (D3) Berel Ginges (D4) 4936/98 Julian Hammond (P) Barney Richard Scheinberg (D1) Michael Dunkel (D2) Agnes Ginges (D3) Berel Ginges (D4)
JUDGMENT OF:	Hamilton J

COUNSEL :	4887/98 A Scotting (P1) M K Meek (P2) Dr C Birch SC & K Pierce (P3) D E Grieve QC & J E Needham (D1-4) 4936/98 J B Whittle SC & B J Burke (P) D E Grieve QC & J E Needham (D1-4)
SOLICITORS:	4887/98 Teece Hodgson & Ward (P1) Windeyer Dibbs (P2) Maurice Harrison & Associates (P3) Denes Ebner (D1-4) 4936/98 Richard M Trayer (P) Denes Ebner (D1-4)
CATCHWORDS:	EVIDENCE [256] - Prohibition of publication of evidence - Power of court - Principle that administration of justice should be open - PROCEDURE [16] [31] - Courts and judges generally - Judges - Power to control proceedings - Miscellaneous powers - Power to grant access to representatives of press to affidavits which have been read into evidence - Proceedings in open court or in camera - Principle that administration of justice should be open
LEGISLATION CITED:	Supreme Court Act 1970 s 23 Supreme Court Rules 1970 Part 65 r 7 Practice Note 97
CASES CITED:	ASIC v Rich [2001] NSWSC 496 eisa Ltd v Brady [2000] NSWSC 929 Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 R v Davis (1995) 57 FCR 512 Scott v Scott [1913] AC 417 Taylor v Attorney General [1975] 2 NZLR 675 Ritchie’s Supreme Court Procedure NSW [s23.3], [s23.5] The Hon J J Spigelman, Seen to be Done: The Principle of Open Justice (2000) 74 ALJ 290 and 378
DECISION:	Application that parties be given notice of further applications by representatives of the press for access to affidavits which have been read in Court refused.

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HAMILTON J

FRIDAY, 6 JULY 2001

4887/98 PAUL AARON HAMMOND & ORS v BARNEY RICHARD SCHEINBERG
4936/98 JULIAN HAMMOND v BARNEY RICHARD SHEINBERG & ORS

ESTATE OF JOHN HAMMOND

JUDGMENT

1    This judgment is in relation to an application made on behalf of the plaintiff Julian Hammond that I give notice to the parties before allowing further access to representatives of the press to affidavit evidence read in Court in these proceedings. Affidavits have already been inspected pursuant to access granted by me. The plaintiff Marc Hammond has joined in the application, but not the other two plaintiffs or the defendants.

2 The proceedings are two sets of proceedings each commenced by summons and respectively brought by three grandchildren and one grandchild of the late John Hammond to obtain orders that provision be made for them from his estate under the Family Provision Act 1982. The proceedings are by order of the Court being heard together. 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 had 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.

3    At the time that application was made to me through members of my staff by representatives of the press for access to the affidavits I did not inform the parties or their counsel of the application and I granted the access without hearing them or their having any opportunity to be heard. The application was made and granted on the first day of the trial, which has proceeded for three days before me and has now been stood over part heard to a later date for further hearing. I should say that on the second day of the trial a story appeared in the “Sydney Morning Herald” concerning the first day. On the third day of the trial stories concerning the trial appeared in both the “Sydney Morning Herald” and the “Daily Telegraph”. The plaintiffs or some of them apparently took umbrage at the terms of these stories.

4 The grounds on which the application was made to me on the third day of the trial to give the parties notice before allowing further access to the affidavits by representatives of the press were that the access was granted under Part 65 r 7 of the Supreme Court Rules 1970 (“the SCR”); that the procedure under that rule must be in accordance with the dictates of Practice Note 97; that I was not a Judge nominated by the Chief Justice in accordance with the Practice Note to deal with the matter; and that the access was granted without power and ought not have been granted in the circumstances. When the application was made I indicated that further access to the affidavits would not be allowed to journalists until I had delivered judgment upon the application, which I now do.

5 The relevant provisions of Part 65 r 7 of the SCR are as follows:

“(1) A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court.
(2) ……… [S]ubrule (1) does not apply to a party to the proceedings ……”

Practice Note 97, which was promulgated by the then Chief Justice in 1998, is as follows:

“Access to Court files by non-parties:

1. Access to material in any proceedings is restricted by Pt 65 r 7 of the Supreme Court Rules 1970 to parties, except with the leave of the Court.

2. Access will normally be granted to non-parties in respect of:
(a) pleadings and judgments in proceedings that have been concluded, except in so far as an order had been made that they or portions of them be kept confidential;
(b) documents that record what was said or done in open court;
(c) material that was admitted into evidence; and
(d) information that would have been heard or seen by any person present in open court;
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.

3. It should not be assumed that material held by the Court comes within par 2. Affidavits, and witness statements, that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. Part 65, r 5 allows the Court to order this type of matter to be struck out of a document.

4. If access to material is given prior to the conclusion of proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings.

5. Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access. Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would be otherwise unobjectionable, it may contain matters that are required to be kept confidential by statute (for example, the Criminal Records Act 1991) or by public interest immunity considerations (for example, applications to authorise listening devices, affidavits in support of suppression orders).

6. Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form [not attached here] to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a judge nominated by the Chief Justice. The registrar or judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Inquiries may be made to the Court's Public Information Officer.

7. The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying.”


In his submissions Mr Whittle, of Senior Counsel for the plaintiff Julian Hammond, relied upon the recent decision of Austin J in ASIC v Rich [2001] NSWSC 496. In that case his Honour had received nomination by the Chief Justice to deal with applications for access in the matter.

6 In my view the application proceeds upon a number of misapprehensions. These include the propositions that there is no power in the Court to permit access by the press to affidavits other than that provided by Part 65 r 7 of the SCR and that Part 65 r 7 and Practice Note 97 govern the present situation. In my view it is a basic proposition that the conduct of the trial of civil proceedings in this Court and questions of access to evidence given at the trial are in the control of the trial Judge and the trial Judge has power in the inherent jurisdiction of the Court or under s 23 of the Supreme Court Act 1970 (“the SCA”) to determine all matters relating to access to be given to any person to the material in evidence in the trial, including documentary material by way of transcript of oral proceedings, affidavits which have been read or exhibits which are in evidence: see Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 27 - 28; Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555 at 568 - 569; Taylor v Attorney General [1975] 2 NZLR 675 at 682 - 683; and the cases collected in Ritchie’s Supreme Court Procedure NSW [s23.3], [s23.5]. It is my view that the direction that I have made for the giving of access is within those general powers of the Court and is justified by those powers quite independently of Part 65 r 7. If I am wrong concerning that, however, power to grant access is conferred by Part 65 r 7 upon the Court. For the purposes of a trial the Court is constituted by a single Judge and during the course of the trial that single Judge constitutes the Court for the purposes of the trial, including purposes of determining who may have access to any of the material recording the trial or tendered in evidence at it. Even if the Practice Note does apply when a trial or hearing is proceeding and so applies to this situation, it cannot deprive the Court so constituted of the power conferred by the rule. But in my view the Practice Note (and probably the rule) applies only in circumstances where application is made for access to material in the file by representatives of the media or other persons who are not party to the proceedings while the file is held in the Registry and a trial is not proceeding. In those circumstances the Practice Note provides a general mechanism for the determination of such an application. These conclusions appear to me to flow from a perusal of the terms of the Practice Note. Application must be made to the Registrar by a form prescribed by the Practice Note and a day’s notice must be given before access is required. The application may be determined by a Registrar without notice to the parties but in case of doubt there should be a judicial determination. If a trial or hearing is not proceeding at the time, then no Judge is seized of the matter and a mechanism is provided for the matter to be brought before a Judge by reference by the Registry of the matter to the Chief Justice, who will then nominate a Judge to deal with the matter. Access under the Practice Note will not usually be granted until the trial is concluded.

7 As I have said, counsel for Julian Hammond has submitted that the decision of Austin J in ASIC v Rich supra is to the contrary of my propositions and that that case demonstrates that application in all cases must proceed under the Practice Note, since it appears that Austin J took care to stipulate in his judgment [18] that he had been nominated by the Chief Justice to deal with applications under Part 65 r 7 in those proceedings. However, it is clear on reading the judgment that that case related to affidavits used upon an ex parte application in Court before Austin J and that that application had been dealt with and completed some time before application was made for access to the affidavit material upon the basis that it had been used during the hearing of that application. In other words, the application in which the material had been used was no longer current when the application for access was made. In those circumstances, the use of the procedure laid down in the Practice Note was clearly applicable. Such is not the case in the present proceedings, where a trial was actually in progress at the time application was made to the trial Judge for access and where, indeed, the proceedings are still part heard before that trial Judge. Whilst at the time that access was granted there had not been cross examination upon the affidavits, all the affidavit material for both plaintiffs and defendants had been read, objections to it had been heard and determined and, there having been opportunity upon the reading of those affidavits to do so, no party had made any application that any of the evidence be the subject of an order for non publication of or non access to that evidence (as to which see Ritchie’s Supreme Court Procedure NSW [s 80.5]. Indeed, application is not now made upon the ground that any of the material is confidential and no application for any order that any material be treated as confidential is coupled with the application or otherwise now made. The sole ground upon which the application is made is that the procedure under Practice Note 97 was not followed. I should add that Mr Whittle informed the Court that inquiry made by him of members of the media bar revealed that the established practice was to proceed under the Practice Note even in relation to cases which were currently being heard. I am not so sure there could be said to be such an established practice, particularly bearing in mind that the Practice Note was promulgated as recently as 1998. But in any event I do not think any such practice should govern the course which I adopt in the circumstances of these proceedings.

8 I should say that if the procedure had been followed and had I been the Judge nominated by the Chief Justice I should undoubtedly have granted the application for access. I find it difficult to conceive that any judicial officer would have determined otherwise. I note the actual decision of Austin J in ASIC v Rich supra in this regard. It is a basic principle of the common law, as stated by the Earl of Halsbury LC in Scott v Scott [1913] AC 417 at 440, “that every Court of justice is open to every subject of the King.” That principle, and the considerations in favour of the publicity of evidence in proceedings as part of the process of open justice, are referred to in authority gathered by Austin J in ASIC v Rich: see John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476 - 477; R v Davis (1995) 57 FCR 512 at 514; eisa Ltd v Brady [2000] NSWSC 929; and the articles by the Hon J J Spigelman, Seen to be Done: The Principle of Open Justice (2000) 74 ALJ 290 and 378. The modern practice of affidavits not being read aloud in Court but formally read and dealt with in the fashion set out in [2] above 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 not 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 witness when called deposes to the truth of upon entering the witness box. It is because of these principles, and the absence of any suggestion that the material was entitled to any order for its non publication, that I granted access to the press to the material read without any reference to the parties. In this regard, I note that the Practice Note, if applicable, does not make notification of the application to the parties mandatory.

9    I should add that I have followed a different course with the exhibit evidence in this case, which is largely contained in the bundle of documents Exhibit A. I was not specifically asked by the representatives of the press for access to that exhibit. I did not therefore grant access to it. Had it been asked for, or were it asked for at this stage, I should not have granted, and should not at this stage grant, access to it. The reason is that, in accordance with a practice that I generally adopt, the bundle of documents has been to this time admitted into evidence only provisionally, and leave has been reserved to the parties to object up to the close of evidence to particular documents in the bundle. This practice saves time being taken up in objections early in the trial, which very often have disappeared by later in the trial. It also permits the documents to be referred to and shown to witnesses during the trial in the convenient form of a paginated bundle. But the possibility remains that documents will be taken out of the bundle and removed from evidence before its form is finally determined. Equally, it is possible that application may still be made for confidentiality orders in respect of certain of the material in the bundle. In those circumstances I should not regard it as appropriate for that material to be made available to representatives of the media at this stage.

10    For the foregoing reasons I refuse the application made to me that I should give notice to the parties before allowing further access to the affidavit material to representatives of the media. The application having now been formally determined and reasons for judgment given, access may again be had by the media to the affidavit material pursuant to the leave already granted. The situation will remain as I have stated in [9] in relation to Exhibit A.

…oOo…

Last Modified: 07/10/2001