James Point Pty Ltd v The Minister for Transport [No 2]

[2015] WASC 324

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   JAMES POINT PTY LTD -v- THE MINISTER FOR TRANSPORT [No 2] [2015] WASC 324

CORAM:   MARTINO J

HEARD:   ON THE PAPERS

DELIVERED          :   2 SEPTEMBER 2015

FILE NO/S:   CIV 2812 of 2011

BETWEEN:   JAMES POINT PTY LTD

Plaintiff

AND

THE MINISTER FOR TRANSPORT
First Defendant

THE MINISTER FOR LANDS
Second Defendant

THE STATE OF WESTERN AUSTRALIA
Third Defendant

Catchwords:

Practice and procedure - Application by third party to inspect and take copies of documents on court file

Legislation:

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

Result:

Application granted in part

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant             :     No appearance

Second Defendant         :     No appearance

Third Defendant           :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly Lawyers

First Defendant             :     State Solicitor for Western Australia

Second Defendant         :     State Solicitor for Western Australia

Third Defendant           :     State Solicitor for Western Australia

Cases referred to in judgment:

Nicholson v Morgan [2012] WASC 65

Rambal v Oswal [2014] WASC 86

1. MARTINO J:  This action arises out of an agreement made on 20 December 2000 between the parties to the action by which the plaintiff agreed to construct, own and operate a port at James Point and to provide port services at the port.

2. By letter to the Principal Registrar dated 24 July 2015, the Environmental Defender's Office, acting on behalf of Save Beeliar Wetlands (Inc), requested copies of 16 documents on the court file listed in that letter.  The Environmental Defender's Office said that the reason for the request was that this action may raise issues related to the construction of Stage 8 of the Roe Highway Extension affecting the Beeliar Wetlands.  Save Beeliar Wetlands (Inc) is opposed to the construction of that extension to the Roe Highway.

3. As I am the case manager of this action, the Principal Registrar referred the request to me.  I made directions for a copy of the Environmental Defender's Office's letter to be provided to the parties and a timetable for the parties and the Environmental Defender's Office to make submissions on the request.  Submissions dated 7 August 2015 have been received from the solicitors for the plaintiff and submissions in response dated 21 August 2015 have been received from the Environmental Defender's Office.  By email dated 7 August 2015, the solicitor for the defendants informed my Associate that the defendants would not be filing submissions but should be taken to agree with the plaintiff's position on the Environmental Defender's Office's request.

4. The parties to the action do not object to copies of the writ and of six documents which were filed in relation to the defendants' application for summary judgment and to strike out the statement of claim, which was heard in open court on 19 December 2014 and 31 July 2015, being made available to the Environmental Defender's Office.  The Environmental Defender's Office has withdrawn its application for copies of two documents.  There are seven documents for which the Environmental Defender's Office maintains its request which the parties to the action object to being made available to the Environmental Defender's Office.

5. The relevant principles I am to apply in determining the request by the Environmental Defender's Office have been set out in Nicholson v Morgan,[1] Rambal v Oswal[2] and the authorities referred to in those decisions. Apart from the documents expressly referred to in O 67 r 11(1)(a) to (c), there is no unfettered right to inspect and copy documents on the court file. The applicant must identify the document or class of documents to which it wishes to have access. The principle of open justice is a strong reason for allowing access to documents that have been read by the court as part of the decision making process, including the process of determining pre-trial applications, if there is a legitimate interest in obtaining access to the documents and there is no good reason to refuse access. Documents do not have to be read in open court to have been read by the court as part of the decision making process.[3]

   [1] Nicholson v Morgan [2012] WASC 65.

   [2] Rambal v Oswal [2014] WASC 86.

   [3] Nicholson v Morgan [2012] WASC 65 [32].

6. Save Beeliar Wetlands (Inc) is concerned that the construction of the extension to the Roe Highway may affect the Beeliar Wetlands.  The parties to this action concede that it has demonstrated a legitimate interest in obtaining documents on the court file.  The parties to the action do not point to any good reason to refuse access to documents on the court file that have been read by the court as part of the decision making process.

7. Five of the remaining documents for which the Environmental Defender's Office maintains its request for access are affidavits of discovery made in March and April 2014.  I was not the case manager of the file at that time, but the affidavits do not appear to me to have been read by the court as part of a decision making process in the issues raised in the action.  They have not been read by me for that purpose.  Save Beeliar Wetlands (Inc) has not been demonstrated to me that it should be allowed access to those documents.

8. The remaining two documents to which Save Beeliar Wetlands (Inc) requests access are the defence and counterclaim filed 12 March 2012 and the reply and defence to counterclaim filed 8 June 2012.  Those documents have not been referred to as part of any decision making process in this action.  However they have been replaced by documents that have been read by me as part of my decision making process on the defendants' application for summary judgment and to strike out the statement of claim.  In the course of submissions on my hearing of that application I was referred to the further re-amended defence and counter claim dated 17 March 2014 and to the amended reply and defence to counterclaim dated 1 August 2014.  I have referred to those documents in my reasons on that application.

9. Save Beeliar Wetlands (Inc) is entitled, on payment of the appropriate fee, to inspect and take copies of the following documents:

   1.writ of summons filed 27 September 2011;

   2.affidavit of Andrew Shuy, sworn 26 September 2014;

   3.submissions filed by the defendants on 3 December 2014;

   4.submissions filed by the plaintiff on 16 December 2014;

   5.amended submissions filed by the defendants on 24 March 2015;

   6.further re‑amended third substituted statement of claim, filed on 8 July 2015;

   7.submissions filed by the defendants on 9 July 2015;

10. The parties and the applicant should confer on whether the further re‑amended defence and counterclaim dated 17 March 2014 and the defence to counterclaim dated 1 August 2014 should be made available to the applicant.

11. A copy of these reasons will be provided to the parties and to the applicant before they are delivered in open court so that the conferral can take place before the orders are made.