In the matter of ORIX Australia Corporation Limited

[2022] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of ORIX Australia Corporation Limited [2022] NSWSC 577
Hearing dates:	21 March 2022
Date of orders:	12 May 2022
Decision date:	12 May 2022
Jurisdiction:	Equity - Corporations List
Before:	Williams J
Decision:	See [61].
Catchwords:	CIVIL PROCEDURE – files from Local Court and District Court criminal proceedings produced to Court pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13. – files include Crown Case Statement produced pursuant to ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) – Crown Case Statement includes extracts or purported extracts of transcripts of telephone conversations recorded pursuant to warrant obtained under Telecommunications (Interception and Access) Act 1979 (Cth) or Surveillance Devices Act 2007 (NSW) – whether Crown Case Statement tendered in Local Court and District Court criminal proceedings – where transcripts of telephone conversations not tendered in those proceedings – where accused discharged prior to conclusion of criminal proceedings – where accused in criminal proceedings are defendants in civil proceedings in this Court – where substantial overlap between Crown case in the criminal proceedings and plaintiff’s allegations in civil proceedings in this Court – where plaintiff sought order permitting it to access the Crown Case Statement in the Local Court and District Court files – open justice principle – Practice Note SC Gen 2 – whether Court should exercise discretion to grant or refuse access to the plaintiff
Legislation Cited:	Practice Note SC Gen 2 Surveillance Devices Act 2007 (NSW), s 40 Telecommunications (Interception and Access) Act 1979 (Cth), ss 5, 5B, 63, 75A Uniform Civil Procedure Rules 2005 (NSW), r 33.13
Cases Cited:	Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 In the matter of Festival Corp Pty Ltd [2020] NSWSC 1637 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 R v Gallagher [2012] NSWSC 484 Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558
Category:	Procedural rulings
Parties:	ORIX Australia Corporation Limited (Plaintiff) John Joseph Carter (First Defendant) George Georgiou (Second Defendant) Chubb Insurance Australia (Second Cross Defendant)
Representation:	Counsel: D Williams SC with P G Bolster and A Zheng (Plaintiff) M Ashhurst SC with D Mackay and S Scott (First Defendant) S Golledge SC with W Burton (Second Defendant) Solicitors: Clayton Utz (Plaintiff) Diamond Conway (First Defendant) MacDougall & Hydes Lawyers (Second Defendant) Gilchrist Connell (Second Cross Defendant) Second Cross Defendant did not wish to be heard in relation to the applications.
File Number(s):	20/174863
Publication restriction:	N/A

Judgment

Introduction

1. In these proceedings, the plaintiff (ORIX Australia Corporation Limited) seeks to recover from the first defendant (Mr Joseph Carter) and the second defendant (Mr George Georgiou) losses that it claims to have suffered as a result of alleged breaches of directors’ duties, fiduciary duties and contractual duties by the defendants. Mr Carter is the former Managing Director and Chief Executive Officer of the plaintiff. Mr Georgiou is the plaintiff’s former Managing Director – Fleet.

2. Messrs Carter and Georgiou were charged with criminal offences, including dishonestly obtaining a financial advantage by deception. Following a hearing in the Local Court at Burwood on 18 and 19 December 2017, each of them waived their right to committal proceedings and they were committed to stand trial in the District Court. When the trial commenced on 9 September 2019, Mr Carter and Mr Georgiou pleaded not guilty to the charges against them. This was followed by several days of hearings addressing pre-trial issues. On the morning of the fifth day, before a jury had been empanelled, the Crown prosecutor informed the Court that there had been a direction that there be no further proceedings against Mr Carter and Mr Georgiou on all counts. Mr Carter and Mr Georgiou were immediately discharged.

3. It is common ground that there is substantial overlap between the subject matter of the present proceedings and the subject matter of the criminal proceedings.

4. On 19 November 2021, the plaintiff made an application to the Registrar of this Court under r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to request the Local Court and the District Court to produce the files in relation to the criminal proceedings. The plaintiff sought a general access order in respect of those files, once produced.

5. The files from the criminal proceedings have now been produced to this Court. The defendants initially opposed an order for access being made in favour of the plaintiff in respect of any material in those files. A Registrar of this Court made directions requiring the defendants to file notices of motion opposing the general access order sought by the plaintiff. Each defendant filed a notice of motion on 21 and 22 February 2022, without prejudice to their contention that the plaintiff bears the onus of establishing that an access order should be made in its favour.

6. The notices of motion were listed for hearing on 21 March 2022. By that time, the only issue remaining in dispute between the parties was whether the plaintiff should be granted access to:

1. in the file produced by the Local Court, the Crown Case Statement (CCS) marked as Exhibit A in the Local Court proceedings on 18 December 2017; and

2. in the file produced by the District Court, a CCS included in a four volume bundle of documents marked as Exhibit A in the District Court proceedings on 9 September 2019 (the Crown Bundle).

7. It is common ground that the CCS includes material that is, or purports to be, extracts from transcripts of telephone conversations recorded using a surveillance device. Those transcripts, and the extracts included in the CCS, are “protected information” within the meaning of the Surveillance Devices Act 2007 (NSW) (the SD Act) and/or “lawfully intercepted information” within the meaning of the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act). The inclusion of the extracts in the CCS is the reason why the defendants oppose the plaintiff being granted access to the CCS in the Local Court and District Court files.

8. Section 40 of the SD Act relevantly provides:

“(1)    A person is guilty of an offence if—

(a)     the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b)   the person knows that, or is reckless as to whether, the information is protected information, and

(c)   the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

Maximum penalty—Imprisonment for 2 years.

…

(3)   Subsections (1) and (2) do not apply to—

(a)   the use, communication or publication of—

(i)   any information that has been disclosed in proceedings in open court, or

(ii)   any information that has entered the public domain, or

…”

9. Section 63 of the TIA Act relevantly provides:

“(1)    Subject to this Part and section 299, a person shall not, after the commencement of this Part:

(a)     communicate to another person, make use of, or make a record of; or

(b)     give in evidence in a proceeding;

lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).”

10. Section 75A of the TIA Act provides:

“If information is given in evidence (whether before or after the commencement of this section) in an exempt proceeding under section 74 or 75, that information, or any part of that information, may later be given in evidence in any proceeding.”

11. The Local Court and District Court criminal proceedings were “exempt proceedings” as defined in s 5B(1)(a) of the TIA Act because the defendants were charged with offences that were “prescribed offences” as defined in s 5(1) of the TIA Act, being offences that were punishable by maximum periods exceeding three years.

12. The defendants say that they have not had access to the full transcripts of the telephone conversations and therefore do not know and cannot accept that the extracts in the CCS are accurate.

13. The defendants contend that Practice Note SC Gen 2 applies to the plaintiff’s application for access to this material in the Local Court and District Court files. The plaintiff disputes that the Practice Note applies but accepts that it reflects and articulates the principles applicable to the exercise of the Court’s discretion to grant or refuse access.

14. Practice Note SC Gen 2 relevantly provides (my emphasis):

“2.    This Practice Note applies to the Court of Appeal, the Court of Criminal Appeal, and each of the Divisions of the Supreme Court.

…

4.    The purpose of this Practice Note is to prescribe the procedures surrounding the provision of access to court files.

…

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 in so far as an order has been made that they or portions of them be kept confidential;

•    pleadings in proceedings that have not been concluded with leave of a judge or a registrar;

•    documents that 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, 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.

…

14. It should not be assumed that material held by the Court comes within paragraph 7. 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. UCPR 4.15 allows the Court to order this type of matter to be struck out of a document.

…

16.   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 concern matters that are required to be kept confidential by statute (eg the Criminal Records Act 1991) or by public interest immunity considerations (eg applications to authorise listening devices, affidavits in support of suppression orders).”

15. The plaintiff contends that the CCS was admitted into evidence as Exhibit A in the Local Court proceedings and as part of the Crown Bundle in the District Court proceedings. The plaintiff submits that access should therefore be granted consistently with what would “normally” occur under the Practice Note in relation to material admitted into evidence.

16. The defendants contend that the transcript of the hearing in the Local Court proceedings wrongly records the CCS as having been admitted into evidence when it was merely handed up to assist the Magistrate. Alternatively, if the CCS was admitted into evidence during the Local Court proceedings or as part of the Crown Bundle during the District Court proceedings, then it was wrongly admitted because it is not evidence at all but merely a document that is part of a suite of material prepared by the Crown to comply with its disclosure obligations under ss 141 and 142 of the Criminal Procedure Act 1986 (NSW).

17. For those reasons, the defendants submit that the CCS is neither “material that was admitted into evidence” nor “information that would have been heard or seen by any person present in open court” within the meaning of Practice Note SC Gen 2 and is therefore not material to which a non-party to the District Court and Local Court proceedings would “normally” be granted access.

18. The defendants submit that there are no “exceptional circumstances” in this case that would favour the exercise of the Court’s discretion to grant the plaintiff access to the CCS in the Local Court and District Court files. On the contrary, s 40(1) of the SD Act and/or s 63(1) of the TIA Act continue to apply to the telephone intercept transcript extracts in the CCS because they were not admitted or were wrongly admitted into evidence in the Local Court and District Court proceedings and this Court would therefore be facilitating a breach of those statutory provisions if an order were made permitting the plaintiff to access the CCS in the Local Court and District Court files. The defendants further submit that open justice principles do not support an order for access to the CCS and that it would not facilitate justice between the parties to these proceedings to permit the plaintiff to access the CCS containing extracts from the telephone intercept transcripts.

19. Solicitors acting for Mr Carter in the criminal proceedings emailed a copy of an undated CCS to the plaintiff’s solicitors on 12 April 2018, prior to the commencement of the present proceedings in June 2020. The parties’ submissions did not address the question of whether that conduct on the part of Mr Carter’s former solicitors constituted a breach of s 40(1) of the SD Act or s 63 of the TIA Act insofar as that CCS included any extracts from transcripts of intercepted telephone conversations. The plaintiff does not know whether the version of the CCS that its solicitors received from Mr Carter’s solicitors is the same as the document that it says had been tendered in the Local Court proceedings or the version that was subsequently tendered in the District Court proceedings. Thus, the plaintiff says that it does not know whether it would contravene s 40(1) of the SD Act and/or s 63 of the TIA Act if it were to use that CCS for the purpose of these civil proceedings, or whether any such use would fall within the exceptions in s 40(3) of the SD Act and/or s 75A of the TIA Act. In those circumstances, the plaintiff presses its application for access to the CCS in the Local Court and District Court files.

20. Senior counsel for Mr Carter informed the Court that that the CCS was provided to the plaintiff’s solicitors on 12 April 2018 in connection with an attempt to secure the plaintiff’s compliance with a subpoena issued to it in the District Court proceedings. On that basis, Mr Carter submits that the plaintiff is precluded from using that CCS for the purpose of these civil proceedings without leave of the Court: Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. The plaintiff disputes that any Haman obligation applies to that CCS. For the purpose of determining the plaintiff’s application and the defendants’ notices of motion, I have not found it necessary to make any finding about whether the plaintiff would require the leave of the Court to use the CCS attached to the 12 April 2018 email for the purpose of these proceedings or whether any such use would contravene s 40(1) of the SD Act or s 63 of the TIA Act. It is undesirable that any finding should be made about those matters in the absence of evidence of the 12 April 2018 email, without knowing whether the CCS was the same as or different from the CCS that was later tendered as part of the Crown Bundle in the District Court proceedings and without considering the question of statutory construction referred to at [32]-[34] below which the parties’ submissions did not address.

Consideration and determination

21. As the defendants submitted, a CCS is part of a suite of material prepared by the Crown to comply with its disclosure obligations in criminal proceedings under ss 141 and 142 of the Criminal Procedure Act 1986 (NSW). I accept the defendants’ submission that the CCS summarised the evidence that the Crown anticipated would be adduced at trial and the matters that it contended would be proved by that evidence. The CCS was not, by itself, evidence of anything: see, for example, R v Gallagher [2012] NSWSC 484 at [12]-[17].

22. At the commencement of the first day of the committal hearing in the Local Court on 18 December 2017, there was a discussion between the Magistrate and counsel concerning the number of witnesses to be called and the order of the witnesses. The transcript records that, during the course of that exchange, the Crown prosecutor handed up the CCS together with the charge schedules to assist the Magistrate. The transcript then states:

“EXHIBIT #A CROWN CASE STATEMENT AND TWO CHARGE SCHEDULES TENDERED, ADMITTED WITHOUT OBJECTION”

23. The defendants submit that those words should not be read as recording anything said by the Magistrate, having regard to the exchange between the Magistrate and the Crown prosecutor in which it was clear that the CCS was merely being handed up to assist the Magistrate. The defendants submit that the words are merely the court reporter’s note of what they understood to be occurring, similar to transcript entries such as “KIM SCOTT, SWORN”, “EXAMINATION IN CHIEF BY MS WILLS” and “CROSS-EXAMINATION BY MR THANGARAJ”.

24. I do not entirely accept that submission. I consider that the words “EXHIBIT #A CROWN CASE STATEMENT AND TWO CHARGE SCHEDULES TENDERED, ADMITTED WITHOUT OBJECTION” represent the court reporter’s attempt to faithfully describe what the Magistrate said and did in relation to the document handed up, and not merely their interpretation of what was occurring based on their experience (such as the swearing of a witness or commencement of cross-examination). However, the exchange immediately preceding those words in which the Crown prosecutor offered to hand up the CCS in the context of a discussion about the expected order of witnesses for the committal hearing and did not communicate any intention to tender the CCS, raises significant doubt as to whether the Magistrate in fact admitted the CCS into evidence as an exhibit without being asked to do so and without inquiring or hearing from counsel for the defendants as to whether there was any objection. Further doubt arises from the fact each subsequent exhibit tendered by the Crown throughout the proceedings is marked with a number (rather than a letter of the alphabet as the CCS was marked). Taking those matters into account, the plaintiff has failed to establish on the balance of probabilities that the CCS was admitted into evidence as an exhibit in the Local Court proceedings. It is more likely that the CCS was marked for identification “A” and the court reporter made an error in transcribing what the Magistrate said or the effect of what her Honour said in relation to the CCS.

25. Senior counsel for the plaintiff did not refer me to any part of the transcript of the Local Court proceedings in which the substance of the CCS was read in open court. Accordingly, I do not consider that the CCS is “information that would have been heard or seen by any person present in open court” within the meaning of the Practice Note. Those persons would have only seen and heard that there was a CCS and that it was handed up to the Magistrate to assist in the midst of a discussion about the witnesses to be called and the order in which they were to be called. It is the transcript of the Local Court proceedings, and not the CCS itself, that records what was said and done with the CCS.

23. The trial in the District Court commenced on 9 September 2019. The transcript records that, on that day, the indictments were read and the accused entered not guilty pleas. The Court then dealt with various pre-trial issues.

24. The pre-trial issues included whether certain counts should be severed or the indictment amended and whether the evidence of a particular witness was admissible.

25. The transcript records that the Crown tendered the four volume Crown Bundle for the purpose of the voir dire. The bundle included the statement of the witness whose evidence was objected to with documents annexed to the statement. The tender of the Crown Bundle is recorded in the transcript:

“CROWN BUNDLE ON VOIR DIRE TENDERED, ADMITTED WITHOUT OBJECTION”

29. Evidence on the voir dire was heard over two days on 10 and 11 September 2019 and the Court then heard submissions about the admissibility of the evidence to which objection had been taken and the other pre-trial issues. I was not referred to any part of the transcript of 9, 10 or 11 September 2019 in which the substance of the CCS was read in open court. The trial judge reserved judgment on the pre-trial issues at the conclusion of the hearing on 11 September 2019.

30. On 12 September 2019, issues concerning subpoenas and access orders were dealt with and her Honour gave judgment in relation to count 2 of the indictment, being one of the pretrial issues. The proceedings were then stood over to 16 September 2019 for the purpose of argument about public interest immunity issues. It was on that occasion that the Court was informed that there had been a direction for no further proceedings in relation to all counts and that the defendants could be discharged. The trial judge had not yet determined all of the pre-trial issues and a jury had not yet been empanelled.

31. On the basis of the evidence referred to at [26]-[30] above, I find that the CCS included in the Crown Bundle was tendered in the District Court proceedings, but only on the voir dire. The substance of the CCS was not heard or seen by persons present in open court and the CCS does not record what was said or done in open court. I reject the defendants’ submission that the CCS was wrongly admitted into evidence. It was admitted as part of the Crown Bundle, without objection, for the limited purpose of the voir dire. In that context, the CCS would not have been treated as evidence of the truth of its contents. The transcript of the District Court proceedings contains no indication to the contrary.

32. At the hearing of the motions in the present proceedings, no party addressed submissions to the question whether the tender of material only on a voir dire within the District Court proceedings resulted in the material being “disclosed in proceedings in open court” or entering “the public domain” within the meaning of s 40(3) of the SD Act or being “given in evidence” within the meaning of s 75A of the TIA Act.

33. There is much to be said for the view that s 40(3) of the SD Act and s 75A of the TIA Act, properly construed, do not facilitate the restrictions on use, communication or publication of the protected information and lawfully intercepted information referred to in those Acts being lost merely because a CCS containing extracts of that information has been tendered on a voir dire in criminal proceedings without the substance of any of the information having been read or disclosed in open court.

34. It is not desirable for me to express a final view about that issue of statutory construction without having had the benefit of the submissions from the parties. Nor is it necessary for me to do so in order to determine the application and motions now before the Court. Even assuming in favour of the plaintiff that the CCS included in the Crown Bundle tendered on the voir dire was “disclosed in proceedings in open court” or entered “the public domain” within the meaning of s 40(3) of the SD Act or was “given in evidence” within the meaning of s 75A of the TIA Act, I have concluded that the Court’s discretion should be exercised to refuse leave for the plaintiff to access the CCS in all the circumstances of this case.

35. The parties did not refer me to any authority addressing the question of whether Practice Note SC Gen 2 applies to an application by a party to proceedings in this Court for access to material contained in the file of another court in respect of proceedings in that other court where that file has been produced to this Court pursuant to r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW). It is not necessary to resolve that question because, as I have already mentioned, all parties accept that the substance of the Practice Note reflects the principles that apply to determining the motions, irrespective of whether the Practice Note is directly applicable.

36. There was a divergence of position between the two defendants as to whether the words “unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential” appearing as part of the fifth bullet point in paragraph 7 of Practice Note SC Gen 2 apply only to that fifth bullet point or apply to all of the bullet points. I read those words as applying to all of the bullet points. The word “material” is apt to apply to all of the different types of material referred to in all five points. If the qualifying words were intended to be limited to fifth point only, it is to be expected that the qualification would have been expressed in terms relating to “information” (being the subject matter of the fifth point). I read the final sentence - “Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist” – as referring to material not falling within any of the five points. The final sentence would otherwise contradict the statement in the chapeau to paragraph 7 of the Practice Note that access will “normally” be granted to the material in the five points. I note that the Court of Appeal appears to have read paragraph 7 of the Practice Note in this way in Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208 at [14] (White JA, Leeming JA agreeing), although these issues do not appear to have been expressly raised in that case.

Should the plaintiff be granted access to the CCS within the Crown Bundle in the District Court file?

37. I have found that the CCS included in the Crown Bundle was admitted into evidence in the District Court proceedings (albeit only on the voir dire) and I am proceeding on the assumption that this enlivens the exceptions in s 40(3) of the SD Act and s 75A of the TIA Act.

38. The question is whether the Court should exercise its discretion to grant the plaintiff access to the CCS in the District Court file on the basis that access would “normally” be granted under Practice Note SC Gen 2 and in circumstances where the plaintiff contends that it has a legitimate forensic purpose for seeking access.

39. As senior counsel for the plaintiff properly accepted, the Court has a discretion to refuse access even where access would normally be granted in accordance with paragraph 7 of the Practice Note. As senior counsel submitted, the principles governing the exercise of the discretion were considered by Black J in In the matter of Festival Corp Pty Ltd [2020] NSWSC 1637 (Festival Corp). As his Honour held in that case, the exercise of the discretion is informed by the principle of open justice.

40. The open justice principle was described in the following terms in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (at 476-477 per McHugh JA, Glass JA agreeing):

“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its
observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.”

41. This description of the open justice principle was embraced by Bathurst CJ and McColl JA in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 (at [29]). Their Honours went on to say (at [32]-[34]):

“[32]  … The principle of open justice is one of the most fundamental aspects of the system of justice in Australia: John Fairfax Publications Pty Ltd v District Court of New South Wales at [18] (Spigelman CJ; Handley JA and MW Campbell AJA agreeing). Open justice ensures public confidence in the
administration of justice: see Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 at [100] (Heydon J); Hogan v Hinch at [20] (French CJ); R v Tait
(1979) 46 FLR 386 at 401–403 (Brennan, Deane and Gallop JJ). It is unnecessary to add to the large body of judicial opinions discussing the concept. It is sufficient, in our view, to illustrate the proposition embedded in s 6 by referring to Lord Atkinson’s statement in Scott v Scott [1913] AC 417 at 463, that ‘in public trial is to [be] found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

[33]  ‘The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public’: John Fairfax Publications Pty Ltd v District Court of New South Wales at [20]. Media interests had standing at common law to be heard on the making of orders affecting the publication of court proceedings (see generally John Fairfax Group Pty Ltd (recs and mgrs apptd) v Local Court of New South Wales (1991) 26 NSWLR 131), a position now enshrined in s 9(2)(d) of the CSNPO Act at least insofar as a ‘news media organisation’ is concerned.

[34]  A number of exceptions to the principle of open justice are recognised….”

42. As referred to by Black J in Festival Corp, the relevance of the open justice principle to applications by non-parties for access to material contained in court files was considered in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101. In that case, Spigelman CJ said (at [29]-[30], Mason P and Beazley JA agreeing):

“[29]  Neither the claimants, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant
access. However, it remains a principle and not a right.

[30]  A principle, as Professor Ronald Dworkin has stated (R Dworkin, Taking Rights Seriously (1977) London, Gerald Duckworth & Co Ltd, at 26):

‘… states a reason that argues in one direction, but does not necessitate a particular decision … There may be other principles or policies arguing in the other direction … If so, our principle may not prevail, but that does not mean that it is not a principle of our legal system, because in the next case, when these contravening considerations are absent or less weighty, the principle may be decisive.’”

43. As Black J observed with reference to authority, the open justice principle does not require that access should be granted to material within a court file unless there are exceptional circumstances: Festival Corp at [7]-[10] and the authorities there referred to.

44. In all the circumstances of the present case, the principle of open justice does not weigh strongly in favour of the plaintiff being permitted to access the CCS within the Crown Bundle in the District Court file. The District Court proceedings were open to the public. Access to the CCS is not necessary to facilitate or enhance understanding of anything that was said or done in open court in those proceedings. There is no evidence that the CCS (and, in particular, the extracts from the telephone intercept transcripts in the CCS) formed part of the basis of the trial judge’s judgment in relation to the pre-trial issue concerning count 2 of the indictment.

45. As the defendants submitted, the telephone intercept transcripts themselves were not tendered in the District Court proceedings. Nor is there any evidence that they were tendered in the Local Court proceedings. It follows that s 40(1) of the SD Act and/or s 63(1) of the TIA Act continue to apply to the transcripts themselves, or at least those parts that were not extracted in the CCS tendered as part of the Crown Bundle in the District Court proceedings. In my opinion, that weighs heavily against permitting the plaintiff to access the CCS in the District Court file. It would be unjust to the defendants to put into the plaintiff’s hands the selected extracts from the transcripts on which the Crown chose to rely in support of its case, in circumstances where the defendants would be prohibited by s 40(1) of the SD Act and/or s 63(1) of the TIA Act from relying on the whole of the transcripts (including any exculpatory parts, or any parts that may provide important context for the Crown-selected extracts), even assuming that the defendants have access to the whole of the transcripts (which they say they do not).

46. I reject the plaintiff’s submission that “the public purpose in the due administration of justice is advanced by permitting a party such as the plaintiff to ensure that the defendants, when they seek to defend a case based upon the criminal charges that they have been subjected to, are not able to run a case inconsistent with the evidence that has been obtained using listening devices”. The public interest in the administration of justice in these civil proceedings is not advanced by arming the plaintiff with the potential ability to deploy in support of their claims the Crown-selected extracts of the transcripts of telephone conversations intercepted by police in the exercise of statutory powers whilst, at the same time, the defendants are denied the ability to deploy any other parts of those transcripts in their defence of the plaintiff’s claims.

47. The plaintiff’s submissions emphasised that, given the substantial overlap between the Crown case in the criminal proceedings and the allegations forming the basis of the plaintiff’s claims in these civil proceedings, it has a legitimate forensic purpose in seeking access to the CCS. However, any such legitimate forensic purpose is not relevant to the plaintiff’s application to access the court file for the District Court criminal proceedings to which it was not a party. As Black J held in Festival Corporation (at [11] and [22]), the test of legitimate forensic purpose emanates from other areas of the law that are not applicable to applications by non-parties to access material in court files.

48. For the reasons at [37]-[47] above, I have determined that the appropriate exercise of the discretion in this case is to refuse leave for the plaintiff to access the CCS within the Crown Bundle in the District Court file.

Should the plaintiff be granted access to the CCS in the Local Court file?

49. I have found that the CCS was not tendered in the Local Court proceedings.

50. I proceed on the basis that the requirement for “exceptional circumstances” in Practice Note SC Gen 2 is, in substance, a requirement for the non-party wishing to access the court file to demonstrate good reason in all the circumstances why they should be permitted to access material that does not fall within the five categories listed in paragraph 7: see UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 at [57]-[63] (leave to appeal refused in Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208).

51. In my opinion, there are no “exceptional circumstances” warranting an order permitting the plaintiff to access the CCS in the Local Court file.

52. The principle of open justice does not weigh strongly in favour of an access order in circumstances where the CCS was handed up to the Magistrate for the limited purpose recorded in the transcript of the Local Court proceedings. The matters referred to at [45]-[47] above weigh heavily against an access order in favour of the plaintiff.

53. Although I have assumed that the tender of the Crown Bundle including the CCS in the District Court proceedings enlivens the exceptions in s 40(3) of the SD Act and s 75A of the TIA Act, there is no evidence that would support an inference that the CCS included in that Crown Bundle is the same (or contains the same telephone intercept transcript extracts) as the CCS that was handed up to the Magistrate presiding over the Local Court proceedings approximately two years earlier. There is therefore a real risk that an order permitting the plaintiff to access the CCS in the Local Court file would facilitate a contravention of s 40(1) of the SD Act and/or s 63(1) of the TIA Act, as the defendants submitted. I reject the plaintiff’s submissions that it is unnecessary for the Court to consider that question when determining the question of access and that the issue arises only if and when the plaintiff seeks tender the CCS in these civil proceedings. That submission rested on an unduly narrow construction of the word “uses” in s 40(1) of the SD Act and the expression “make use of” in s 63(1) of the TIA Act that is contrary to the ordinary meaning of those words. The matters relied on in support of the plaintiff’s narrow construction were not articulated and the submission was not supported by any analysis of the object or purpose of the legislative provisions or the various ways in which the relevant words might be construed in the context of each statute as a whole.

54. The risk of facilitating a contravention of s 40(1) of the SD Act and/or s 63(1) of the TIA Act is a further reason why I have determined that the discretion should be exercised by refusing the plaintiff’s application for access to the CCS in the Local Court file. In my opinion, the plaintiff, if granted access, would “use” or “make use of” the telephone intercept transcript extracts within the CCS within the meaning of those provisions, irrespective of whether the CCS or the extracts were admissible in evidence or were ultimately tendered in these proceedings. The plaintiff’s intention to make some use of them is plain from the submission referred to at [46] above.

Conclusion and orders

55. The plaintiff’s initial application under r 33.13 of the Uniform Civil Procedure Rules 2005 (Cth) made on 19 November 2021 sought general access orders in respect of the whole of the files produced by the Local Court and the District Court to this Court.

56. After those files were produced to this Court, the parties undertook a series of steps pursuant to orders made by Black J to identify the nature of the material contained in the files, the specific material in respect of which the plaintiff sought an access order and the extent to which the defendants opposed such access being granted to the plaintiff.

57. The plaintiff’s written submissions dated 17 March 2022 identified the following 13 items in respect of which it sought an access order:

1.	Crown Case Statement marked Exhibit A
2.	Four volume bundle marked Exhibit A
3.	Crown Case Statement
4.	One volume bundle marked Exhibit 1
5.	One volume bundle marked Exhibit 2
6.	Statement of Detective Senior Constable Tracey Williams dated 10 September 2019 marked Exhibit B
7.	Statement of Detective Senior Constable Tracey Williams dated 19 June 2019
8.	Statement of Detective Sergeant Andrew Gill marked Exhibit 5
9.	Documents produced in response to the subpoena to the Registrar of the District Court for Bryan Pereira’s sentencing
10.	Telephone intercepts; transcripts audio and warrants.
11.	Surveillance Device Warrant – Meeting CCA
12.	SD 15/0140 – Motheroom – CCA Head Office North Sydney
13.	Recording – Meeting – CCA – 24/3/2015 (DVD)

58. Item 1 is the CCS that was marked as Exhibit A in the Local Court proceedings but which I have found was not in fact tendered.

59. Items 2 to 13 are contained in the District Court file. Item 2 is the Crown Bundle to which I have referred in these reasons.

60. By the commencement of the hearing on 21 March 2022, the plaintiffs pressed their application for access only in respect of items 1, 2, 4, 5, 6 and 8 of the list above and the defendants opposed that application only in respect of item 1 and the CCS within item 2.

61. The Court makes the following orders to give effect to these reasons:

1. Order that the plaintiff’s application made on 19 November 2021 for access to the original court file in case numbers 2015/95955 and 2015/98199 in the Local Court of New South Wales at Burwood be dismissed.

2. In relation to the plaintiff’s application made on 19 November 2021 for access to the original court file in case numbers 2015/95955 and 2015/98199 before the District Court of New South Wales:

1. grant leave to the plaintiff to access the following material within that file:

1. the four volume bundle marked as Exhibit A at the hearing before the District Court of New South Wales on 9 September 2019 (at page 6, line 18 of the transcript) and described as “Crown Bundle on Voir Dire”, but excluding any Crown Case Statement contained within those four volumes;

2. one volume marked as Exhibit 1 at the hearing before the District Court of New South Wales on 9 September 2019 (at page 7, line 26 of the transcript) and described as “Bundle re Accused Georgiou on Voir Dire”;

3. one volume marked as Exhibit 2 at the hearing before the District Court of New South Wales on 9 September 2019 (at page 9, line 20 of the transcript) and described as “Submissions on behalf of Accused Carter on Voir Dire”;

4. statement of Tracey Williams dated 10 September 2019 marked as Exhibit B on the voir dire at the hearing before the District Court of New South Wales on 10 September 2019 (at page 54, line 35 of the transcript); and

5. statement of Detective Andrew Gill marked as Exhibit 5 on the voir dire at the hearing before the District Court of New South Wales on 11 September 2019 (at page 96, line 45 of the transcript); and

2. refuse leave to the plaintiff to access any other material within that file (including, for the avoidance of doubt, the Crown Case Statement referred to in order 2(a)(i) above).

3. To the extent that the notices of motion filed by the first defendant and second defendant on 21 and 22 February 2022 are not determined by orders 1 and 2 above, order that those notices of motion be dismissed.

4. Order that the plaintiff is to pay the defendants’ costs of the hearing on 21 March 2022 on the ordinary basis in such amount as may be agreed or assess.

5. Order that, save in respect of the costs to which order 4 applies, each party is to pay its own costs of the plaintiff’s application made under r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) on 19 November 2021 and the notices of motions filed by the first and second defendants on 21 February 2022.

62. My reasons for making orders 4 and 5 are that the costs incurred by the parties in relation to the plaintiff’s application and the defendants’ notices of motion resulted in a compromise reached very shortly prior to the hearing on 21 March 2022 which avoided the need for the Court to consider the merits of the parties’ respective contentions save in respect of the CCS. The defendants succeeded in opposing the plaintiff’s application for leave to access the CCS that was the sole issue in dispute at the hearing.

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Decision last updated: 12 May 2022