Jackson & Ors v Johnson & Ors & Scott v Johnson & Ors - [2010] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
JACKSON & ORS v JOHNSON & ORS & SCOTT v JOHNSON & ORS
[2010] SASC 133
Judgment of The Honourable Justice White
11 May 2010
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - OTHER MATTERS
Application by newspaper for access to statements of claim in proceedings - application of s 131 Supreme Court Act 1935 - consideration of what constitutes process relating to proceedings - whether a statement of claim constitutes a process relating to proceedings.
Supreme Court Act 1935 (SA) s 5, s 46A, s 109, s 118, s 131; Inheritance (Family Provision) Act 1972 (SA); Supreme Court Rules 1970 (NSW); Supreme Court Rules 1987 (SA) r 8; Supreme Court Civil Rules 2006 (SA) r 312; Statutes Amendment (Courts) Act 1995 (SA), referred to.
John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465; Boilermakers' Society of South Australia v Brisbane Welding Works Pty Ltd (1965) Qd R 598; R v Berger (Unreported judgment, 11 March 1997, judgment No D3569); Conroys Smallgoods v Channel Seven Adelaide (No 1) [2004] SADC 152; E v SE [2007] SASC 198, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Process", "any process relating to proceedings"

JACKSON & ORS v JOHNSON & ORS & SCOTT v JOHNSON & ORS
[2010] SASC 133
Civil

WHITE J: Section 131(1) of the Supreme Court Act 1935 (SA) (SCA) entitles a member of the public to inspect or obtain a copy of certain documents in proceedings before the Court. Under s 131(1)(aa), those documents include “any process relating to proceedings and forming part of the court’s records”. This decision concerns a dispute as to whether two statements of claim come within that description.
I have concluded that members of the public are entitled to inspect and to obtain copies of the two statements of claim in question. My reasons for that conclusion follow.
Two Proceedings Under the Inheritance Family Provision Act 1972
On 17 September 2009 the plaintiff in Action No SCCIV-09-1420 commenced proceedings in this Court seeking relief under the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act) in relation to the estate of the late Archibald Allan Scott (the deceased). The plaintiff is the deceased’s third daughter. Since the commencement of the proceedings, further persons have made claims of a similar nature and have been added as plaintiffs to the action. In particular, on 19 February 2010 the deceased’s eldest daughter (the first daughter) made a claim under the IFP Act by filing a statement of claim in the proceedings.
On 3 February 2010, the deceased’s second wife (Mrs Scott) commenced separate proceedings, also claiming relief under IFP Act in relation to his estate (Action No SCCIV-10-181). A statement of claim was attached to the summons.
The Request for Access
By letter dated 9 April 2010 solicitors acting for the Sunday Mail requested “access” to four documents, and were provided by the Registry with copies of two. It is not necessary to mention those two documents further.
The solicitors pursued a request under s 131(1) for access to “a copy of the Statement of Claim or equivalent document lodged on behalf of [the first daughter]” in Action No SCCIV-09-1420 and “a copy of the Statement of Claim or equivalent document filed on behalf of [Mrs Scott]” in Action No SCCIV-10-181.
As I have been assigned under r 115 of the Rules to supervise the conduct of these actions to trial, the request of the Sunday Mail was referred to me. I directed that the parties to the two actions should be given the opportunity to be heard in relation to the request.
Each of those parties contended that the Sunday Mail was not entitled under s 131(1) of the SCA to inspect or obtain a copy of the respective statements of claim.
Statutory Provisions
Section 131(1) and (2) provide as follows:
(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of—
(aa)    any process relating to proceedings and forming part of the court's records;
(a)     a transcript of evidence taken by the court in any proceedings;
(b)     any documentary material admitted into evidence in any proceedings;
(c)     a transcript of submissions by counsel;
(d)     a transcript of the judge's summing up or directions to the jury, in a trial by jury;
(e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)    a judgment or order given or made by the court.
(2)A member of the public may inspect or obtain a copy of the following material only with the permission of the court:
(a)     material that was not taken or received in open court;
(b)     material that the court has suppressed from publication;
(ba)   sensitive material in the custody of the court;
(c) material placed before the court during sentencing proceedings (including material furnished under section 7 of the Criminal Law (Sentencing) Act 1988);
(d)     documentary material filed in connection with a preliminary examination;
(e)     a transcript of any oral evidence taken at a preliminary examination;
(f)     a photograph, slide, film, video tape, audio tape or other form of recording from which a visual image or sound can be produced;
(fa)    a report prepared to assist the court in determining a person's eligibility for, or progress in, an intervention program (within the meaning of the Bail Act 1985 or the Criminal Law (Sentencing) Act 1988);
(g)     material of a class prescribed by the regulations.
It can be seen that a member of the public is entitled as of right to inspect the documents to which s 131(1) refers, but may inspect the documents to which subsection (2) refers only with the permission of the Court.
The Sunday Mail relied upon s 131(1)(aa). It did not contend that either of the two statements of claim fell into any other of the categories enumerated in subsection (1).
Section 46A of the SCA provides that, subject to any statutory provision or rule to the contrary, “the courts’ proceedings must be open to the public”. It was not suggested that this provision created any entitlement to access to documents forming part of the Court’s records which went beyond those created by s 131(1).
The Sunday Mail did not assert that it had any common law right to obtain access to the statements of claim held on the Court’s file, and it is generally accepted that members of the public do not have any such right.[1]
[1] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101 at [31]; (2005) 62 NSWLR 512 at 521.
Submissions of the Parties
Counsel for the Sunday Mail made three principal submissions. First, he submitted that it was the practice of the Court to allow inspection and copying of statements of claim as of right. Secondly, counsel submitted that the interests of court proceedings being conducted in open, and subject to public scrutiny, (the open justice principle) meant that the categories enumerated in subsection (1) should not be construed narrowly. As part of that submission, counsel contended that subsections (1) and (2) of s 131 in combination were intended to encompass all documents which may be on the Court file in relation to particular proceedings, making it inappropriate for the provisions in either subsection to be construed narrowly, in case there should thereby be created a category of documents which was not within either subsection.
Several of the plaintiffs disputed the existence of the practice to which the Sunday Mail referred. Accordingly, the existence or otherwise of the practice does not seem a particularly sound basis for the construction of s 131(1)(aa).
The Sunday Mail’s “covering the field” submission does not take the matter very far either. It does not follow that a narrow construction of subsection (1)(aa) would have the effect of taking a particular category of document outside both subsections (1) and (2) altogether. On the contrary, it may make it more likely that the category in question is encompassed by subsection (2), for example, subsection (2)(a).
The principle of open justice is well known. In John Fairfax & Sons Ltd v Police Tribunal (NSW), McHugh J spoke of the principle in the following terms:
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 when 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.[2]
I shall return to the implications of the open justice principle in relation to the process held on the Court’s files later in these reasons.
[2] (1986) 5 NSWLR 465 at 476-7.
Consideration
The parties’ submissions focussed on the words “any process relating to proceedings”. The parties seemed to accept that the Court’s file relating to a particular action comprised, at least in part, “the court’s records” within the meaning of s 131(1)(aa).
The word “process” has a variety of meanings. The diversity of meanings of the word when used in relation to legal proceedings alone is seen in the Macquarie Dictionary definition:
3Law a. the summons, mandate, or writ by which a defendant or thing is brought before the court for litigation. b. the total of such summoning writs. c. the whole course of the proceedings in an action at law.
On this definition, “process” may at its narrowest be the summons or equivalent by which a defendant is brought before a court. At its widest, it may encompass the whole course of a legal proceeding. This broad meaning is inapt in relation to s 131(1)(aa) as it is plain that it contemplates a document which is capable of being inspected and copied, rather than a course of proceeding.
In ordinary usage, the word “process” in the context of legal proceedings is commonly understood as a reference to the documents by which a prosecutor or litigant invokes the court’s jurisdiction, or by which a person compels the attendance of a person or the production of a thing at court, to interlocutory applications in the course of proceedings, and to documents embodying an order made by the court which will be served on a person or executed in some way. See for example the discussion of the word “process” by Gibbs J in Boilermakers’ Society of Australia v Brisbane Welding Works Pty Ltd.[3] The word “process” is not usually understood to encompass all documents, of whatever nature, filed by the parties in the proceedings.
[3] [1965] Qd R 598 at 605-6.
A conclusion that the word “process” is used in s 131(1)(aa) with this ordinary meaning is supported by a consideration of other provisions in the SCA. For example, the word “defendant” is defined in s 5(1) of the SCA to include “every person served with any writ of summons or process”, and s 109 speaks of the “due execution of …. judgments, decrees, orders and processes” of the Court. Similarly, s 118 permits the issue, service or execution of any “process” of the Court on a Sunday as well as on any other day, and s 118A speaks of service of “process”. The usage of the word “process” in ss 118 and 118A is particularly important because those sections were put into their present form by the Statutes Amendment (Courts) Act 1995 (SA), which was also the amending Act by which s 131(1)(aa) was inserted into the SCA. These usages are not absolutely inconsistent with the word “process” having some broader meaning which may encompass a pleading, but in general they suggest that the word “process” is used in the way which I outlined earlier.
In his Second Reading Speech when introducing the Statutes Amendment (Courts) Bill on 25 October 2005, the then Deputy Premier said of s 131(1)(aa):
A further category of material has been included in the material that the Court must make available for inspection or copying – processes relating to proceedings. This includes the information and complaint in criminal proceedings. These were available for inspection under section 72 of the Summary Procedure Act which has been repealed.
Although not conclusive of the issue, the Deputy Premier’s reference to the information and a complaint in criminal proceedings is consistent with the expression “process relating to proceedings” having the meaning to which I have referred above. An information and a complaint in criminal proceedings are archetypical examples of documents by which persons are compelled to attend before a court and informed of the charge which they face.
The understanding of the meaning of the expression “any process relating to proceedings” outlined above is consistent with two District Court decisions. In R v Berger[4] Judge Lunn considered that “process” encompassed “documents by which proceedings are initiated” and held that the counterpart of s 131(1)(aa) in the District Court Act 1991 (SA) had the effect that the media were entitled to inspect an application under s 57 of the Criminal Law (Sentencing) Act 1988 (SA) for the enforcement of a breach of bond. In Conroys Smallgoods v Channel Seven Adelaide (No 1)[5] Judge Lunn held that duplicate subpoenas held on the Court file were within the expression “process relating to proceedings”.
[4] (Unreported judgment 11 March 1997, judgment No D3569)
[5] [2004] SADC 152 at [4].
Some of the plaintiffs submitted that the expression “process relating to proceedings” refers to a document emanating from the court after the court has made its determination in the proceedings. I do not accept that submission. I see no reason to impose a temporal limitation of the kind suggested. There is no indication in s 131(1) itself that sub-paragraph (aa) is confined in this way. On the contrary, a number of the sub-paragraphs in subsection (1) entitle members of the public to have access to material (eg, exhibits and transcript of evidence and submissions) before the Court has made any determination at all in the action.
Some plaintiffs also submitted that the expression “process relating to proceedings” should, for different reasons, be construed narrowly so as to exclude statements of claim. They pointed to the possibility of potential litigants being deterred from commencing proceedings because of the prospect that the allegations made in a statement of claim may be publicised; to the prospect that a pleading may be amended or withdrawn; and to the prospect that publication of the allegations in a statement of claim may be defamatory or inflame relationships between the parties, thereby prejudicing the prospects of a negotiated settlement. I do not regard any of these matters as being particularly persuasive. They do not appear to take account of the importance of the open justice principle. The public has a well recognised interest in knowing what is going on in the Court, and, except in limited circumstances, litigation is not conducted in private.
Counsel for Mrs Scott referred to the definition of the word “process” in Butterworths Australian Legal Dictionary which includes the following:
A document issued or filed with a court or tribunal in proceedings, which requires a person to attend before the court. Formerly called a writ, process may now include a writ, statement of claim, summons, subpoena, warrant or notice of appeal.
The inclusion of a statement of claim in this definition of the documents which may comprise “process” is to be noted. However, the Butterworths’ definition appears to be drawn very much from legislation and court rules in New South Wales. In particular, the inclusion of a statement of claim in the definition appears to derive from the definition of the word “process” in the Supreme Court Rules 1970 (NSW), Part 1, r 8. There is no counterpart definition in either the Supreme Court Rules 1987 or in the Supreme Court Civil Rules 2006 made by this Court. Section 131(1)(aa) should be construed by reference to the statutory context in this State, rather than that of New South Wales. For this reason I do not regard the Butterworths’ definition in as being of assistance.
There is one authority in which s 131(1)(aa) has apparently been understood to include the pleadings in an action. In E v S E, Debelle J said:
The summons, statement of claim and other pleadings are documents which are available for inspection by any member of the public: s 131(1) of the Supreme Court Act 1935. The ability to inspect court documents reflects the fundamental principle of open justice, that is to say, the principle that courts administer justice publicly and in open court …[6] [Citations omitted].
However, this conclusion about the effect of s 131(1) was not necessary for the decision in E v S E and it is unlikely that the matters raised in the present case were agitated before Debelle J. It can be seen that Debelle J did not specifically refer to subs (1)(aa). In these circumstances, while the views of Debelle J carry considerable respect and weight, I do not consider that I should regard myself as bound to follow his conclusion in this case, in which the point has been specifically argued.
[6] [2007] SASC 198 at [7].
I agree, however, that the open justice principle suggests that s 131(1)(aa) should not be construed narrowly, and that it would be consistent with the application of that principle for members of the public to know of the allegations made by litigants in proceedings before the Court. This is especially so as it will commonly be difficult for members of the public to be able to follow and understand proceedings heard in open court without knowledge of the issues which have been raised for the Court’s determination in those proceedings. That knowledge can usually be obtained from the pleadings. Access to the pleadings may be necessary in order for there to be fair and accurate reporting of the proceedings in the Court.
On the other hand, it has been said that the principle of open justice in relation to access to documents applies only when a document has been deployed in a hearing in a court, that is, in a hearing conducted by a judicial officer. Thus, in John Fairfax Publications Pty Ltd v Ryde Local Court, Spigelman CJ said:
The principle of open justice is not engaged at the time of the filing of proceedings. It is only when relevant material is used in court that it becomes relevant. As Slicer J put it in R v Clerk of Petty Sessions, Court of Petty Sessions Hobart; ex parte Davies Bros Ltd:
“… The making of a complaint, without more, is no more than a statement by a party (often the state) that it wishes to have a particular grievance (public or private) determined by a court. … The making of a complaint does not attract the requirement of ‘open justice’ unless and until it becomes an issue between the parties.”[7] [Citation omitted]
[7] [2005] NSWCA 101 at [65]; (2005) 62 NSWLR 512 at 526.
I consider it to be pertinent that the Parliament did not use the word “pleading” in s 131(1)(aa) even though that is a defined expression in the SCA.[8] This is significant because the word “pleadings” is the well understood and commonly used collective noun for the documents filed in courts by which the parties to civil proceedings detail their claims, and defences to claims. It is reasonable to suppose that Parliament would have used this expression if it had intended that members of the public should be entitled as of right to inspect statements of claim, defences and the like.
[8] In s 5(1) of the SCA “pleading” is defined to mean:
“pleading includes any summons, and also the statement in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto, and also any other matter by rules of court to be included under the term pleading”.

Although the matter is not free from doubt, I favour giving the expression “any process relating to proceedings” the meaning which it has in ordinary usage. That is, I consider the expression to be a reference to the documents by which a litigant invokes a court’s jurisdiction when commencing an action; interlocutory applications; the documents by which a person compels the attendance of a person or the production of a thing at court; and documents embodying a court order.
On that understanding, a statement of claim may in some circumstances come within the description of “any process relating to proceedings”. An examination of the circumstances of each statement of claim will indicate whether it formed part of the document or documents by which the Court’s jurisdiction was invoked. Those circumstances will include any temporal or physical connection between the commencement of the proceedings and the filing of the statement of claim, and the role of the statement of claim in the invoking of the Court’s jurisdiction. Apart possibly from those cases in which a defendant includes a counterclaim in a defence, it appears unlikely that the expression “process relating to proceedings” includes a defence or subsequent pleading.
This construction may not give full effect to all the elements of the open justice principle to which I referred earlier, but that is the effect of the words used by the Parliament. It is also to be expected that the open justice principle would be a significant factor in the consideration of any request under s 131(2) for permission to inspect or copy a pleading, although regard would have to be had to the observations of Spigelman CJ in John Fairfax Publications quoted above.
Application in the Present Case
As noted earlier, the first daughter’s statement of claim in Action No SCCIV-09-1420 was filed on 19 February 2010, well after the commencement of the proceedings by the deceased’s third daughter on 17 September 2009. The circumstances in which the first daughter filed her statement of claim are important in the resolution of the Sunday Mail’s request.
The Rules recognise the desirability of all claims for relief under the IFP Act in relation to the one estate being heard and determined at the one time. The Rules seek to facilitate this by, amongst other things, requiring the initial claimant for relief to file with the initiating process an affidavit setting out the names and current addresses of all other persons who may be entitled to make a similar claim (r 312(2)), and by requiring the initial claimant to serve on each other potential claimant notice of the proceedings (r 312(4)). The third daughter complied with those Rules in the present case.
At a directions hearing held on 9 February 2010 I was informed that there was a prospect of the first daughter making a claim under the IFP Act. I asked counsel for the third daughter to inform the first daughter of my expectation that any claim being made by her would be made in Action No SCCIV-09-1420, and not by the commencement of separate proceedings. This is the course of action contemplated by r 312(5) which provides:
Within 28 days after service of a notice under subrule (3), a potential claimant may file a statement of claim in the court making, and stating the basis of, a claim for provision out of the estate. [Emphasis added]
Subsequently, on 19 February 2010 the first daughter did file her statement of claim. This was the first document which she filed in the proceedings, as she had not previously filed a notice of address for service or any other like document.
Under r 312(5) the statement of claim is the document by which the potential claimant makes his or her claim. It is obviously not the document by which the proceedings were commenced but it is the document by which the potential claimant commences his or her claim, and by which the Court’s jurisdiction under the IFP Act in relation to his or her claim is invoked. Were it not for the filing of that statement of claim, none of the parties would be required to address any claim by the potential claimant. On that basis, I consider the first daughter’s statement of claim to be encompassed by the expression “any process relating to proceedings” as I have explained that expression in these reasons. I rule therefore that the Sunday Mail is entitled to inspect and obtain a copy of the first daughter’s statement of claim filed on 19 February 2010 [FDN 16].
As noted earlier, Mrs Scott commenced separate proceedings on 3 February 2010 by Action No SCCIV-10-181. The initiating document is a summons. The summons included the following statement:
You are advised that the Plaintiff makes a claim against you or which may affect you. Details of the claim and orders sought are attached. [Emphasis added]
A document entitled “Statement of Claim” was stapled to the summons. Accordingly, both by the quoted words, and by the physical attachment of the statement of claim to the summons, the statement of claim was made part of the documentation by which Mrs Scott invoked the Court’s jurisdiction with respect to her claim under the IFP Act. Accordingly, I rule that the statement of claim attached to the summons filed on 3 February 2010 forms part of the “process relating to proceedings” in Action No SCCIV-10-181 and that the Sunday Mail is entitled to inspect and obtain a copy of that statement of claim.
I note that since the Court heard the submissions in this matter, Mrs Scott has filed an amended statement of claim. I will give the parties an opportunity to make submissions as to whether the Sunday Mail is also entitled to access to the amended statement of claim.
Conclusion
For the reasons given above, I rule that the Sunday Mail is entitled, under s 131(1)(aa) to inspect and to obtain a copy of the statement of claim filed by the first daughter on 19 February 2010 [FDN 16] in Action No SCCIV-09-1420, and to inspect and obtain a copy of the statement of claim attached to the summons filed in the Court on 3 February 2010 in Action No SCCIV-10-181.