Lum v Kay and Burton (Brighton)

[2020] VMC 19

IN THE MAGISTRATES’ COURT OF VICTORIA Unrevised
Not Restricted
Suitable for Publication

AT MELBOURNE

L11105113

JANINE LUM

v

KAY & BURTON (BRIGHTON) PTY LTD

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MAGISTRATE:	Magistrate B Wright
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2020
DATE OF RULING:	27 August 2020
CASE MAY BE CITATED AS:	Lum v Kay & Burton (Brighton)
MEDIUM NEUTRAL CITATION:	[2020] VMC 019

REASONS FOR RULING
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CATCHWORDS - Courts and Judges – Magistrates Court – Civil Proceeding - Application by Media to Inspect Statement of Claim – Application Opposed by Intervener – Open Courts Act 2013 s7(d)(iii) - Magistrates Court Act 1989 s18,20 – RSC/RCC O.28.05

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr E. Batrouney	Sam White
For Mr R. Savas (intervener)	Mr S. Mukerjea	Holding Redlich

HIS HONOUR: 

1This is an application by The Age newspaper and the Australian Financial Review to access/inspect the statement of claim in these proceedings (“the media application”).  As discussed later, the plaintiff and the defendant neither consent to, nor oppose, the media application.  Mr Batrouney of Counsel appeared for both media applicants. 

2The media application was opposed by Mr Ross Savas who intervened in this application.  Mr Savas, who is referred to in the statement of claim, was represented by Mr Mukerjea of Counsel.

3Ms Lum issued this proceeding in the WorkCover division of this court on 8 May 2020.  Kay & Burton (Brighton) Pty Ltd later filed and served a defence (“the main proceeding”). 

4The main proceeding was first listed in this court for a directions hearing on
4 August 2020, by which date the media application had been issued.  On that date, the main proceeding and the media application were simply adjourned to 13 August 2020 for further directions in the main proceeding and for the media application to be determined. 

5On 13 August 2020 when the main proceeding was called on, the legal representatives for the plaintiff and the defendant presented draft consent orders seeking the main proceeding be dismissed with no order for costs.  As stated, when asked both parties stated their respective clients neither opposed, nor consented to, the media application.  There was no further discussion or consideration of the main proceeding apart from me making the consent orders as sought on 13 August 2020. I have not considered the main proceeding further on any other date. 

6The media application proceeded after the making of the final orders in the main proceeding.  Both parties had filed written submissions prior to 13 August 2020.  However, both parties addressed me further in some detail, especially as to the effect of the final orders in the main proceeding on the media application.

7Both parties noted there had been no application for any suppression order or pseudonym order in the main proceeding.  Both agreed that the decisions made in various courts and jurisdictions, to which I would be referred, should be considered having regard to the relevant legislation and rules of court applicable to those cases.  However, some general principles set out in those cases would be relevant. 

8The only arguably relevant specific provision in the Magistrates' Court Act is s.18, especially sub-ss.(3)-(4). That section, headed “Register”, is in the following terms; 

(1) The principal registrar must cause a register to be kept of all the orders of the Court and of such other matters as are directed by this Act or the Rules to be entered in the register. 

(2) An order made by the Court must be authenticated by the person who constituted the Court. 

(3) Any person may, subject to any order made under part 3 of the Open Courts Act 2013 and on payment of the prescribed fee, inspect that part of the register that contains the final orders of the Court. 

(4) A party to a proceeding may inspect, without charge, that part of the register that relates to that proceeding. 

(5) A document purporting to be an extract from the register and purporting to be signed by a registrar, who certifies adding his or her opinion, the extract is a true extract from the register is admissible in evidence in any proceedings and in the absence of evidence to the contrary, is proof of the matters appearing in the extract.'

9Unlike the Supreme Court of Victoria and the County Court of Victoria, there is at present no equivalent provision to Order 28.05 of those Courts’ Rules giving
non-parties at least a prima facie right on payment of a fee to inspect and obtain a copy of any document filed in a civil proceeding.  That prima facie right is subject to the Prothonotary or Registrar, or ultimately a court, ordering a specific document be kept confidential. 

10 Mr Mukerjea submitted that the media carried the burden of proof in this application, to which Mr Batrouney did not disagree.  However, I do not believe that the issue of burden of proof is of much significance in this case. 

11Mr Batrouney opened with the submission that the media non-parties should be allowed to access and/or inspect the statement of claim to enable “a fair and accurate report” of the proceedings before this court on 4 August and
13 August 2020.  The statement of claim was the constituent document to enable the report of what he referred to as the 'settlement' of the main proceeding. 

12Both Counsel agreed that there were two real issues in the media application.  First, whether there was power for this court to allow access or inspection.  Second, if this court does have such power, whether it should exercise that power in its discretion to do so. 

13Mr Batrouney submitted that despite the absence of any specific legislative provision or rule of court, such as Order 28.05 in the Supreme Court Rules allowing access or inspection of the statement of claim, this court still had the power to do so.

14He referred to Herald and Weekly Times v Magistrates' Court of Victoria [2000] 2 VR 346, in which a journalist was refused access to a hand-up brief in a committal proceeding.  Charles JA found that access to the hand-up brief was not excluded by Magistrates' Court Act s.18(3).  He disapproved a decision of  Byrne J in Smith v Harris [1996] 2 VR 335, in which Byrne J had ruled that a civil complaint issued in this court, was part of the court register and was thus non‑accessible by a non-party pursuant to s.18(3) of the Magistrates' Court Act. Further, Charles JA stated that if the press was entitled to report on the committal proceeding, then it should be allowed to access the hand‑up brief to enable a fair and accurate report to be made subject to the then s.126 of the Magistrates' Court Act which dealt with the issue of closed courts.

15Further, he submitted that the present s.136 of the Magistrates' Court Act gave this court power to give any direction conducive to effective, complete, prompt and economical determination of the proceeding.  Consequently, he submitted this gave the Magistrates Court a power to allow court documents to be inspected.  Although the open court provisions in Magistrates Court Act s.125 did not specifically give the media access, it was appropriate for access to be given, especially for a fair report of the proceeding. 

16 He noted that Mr Mukerjea in his written submissions conceded a discretion in this court to allow inspection of a court document 'where deployed' in the hearing to enable a fair and accurate report of the hearing.  He submitted that although the issue of deployment may go to the discretion to release the document, that such deployment was not necessary for access or inspection to be allowed.  He disagreed that a document filed with the court was not part of the proceedings until deployed at trial, referring to a recent ruling in Bolitho v Banksia Securities [2020] VSC 309, which involved media access to documents on a court file. 

17In para. 28 of that case, John Dixon J rejected the notion that untested allegations in a civil proceeding should be shielded from the public view until a fully contested hearing, as this did not sit with the principles of open justice or the right of anybody to fairly report a proceeding.  He submitted that this was the law in Victoria. 

18The settlement of the main proceeding in itself did not deprive a non-party of access to a pleading according to counsel.  He referred to Appleroth v Ferrari [2020] FCA 756, where access was allowed to originating documents where the action had been discontinued even before service of those documents.  However, he agreed in this context different courts and different jurisdictions have different rules of court for access to court documents.  In that case, the court in Appleroth had ruled that only in exceptional circumstances should public access be excluded. 

19More relevant to Victoria was the ruling in XYZ v State of Victoria [2001] VSC 233, in which the media sought access to a court file prior to trial in a civil case alleging sexual abuse.  In considering the application, Gillard J allowed the media access pursuant to Order 28.05(1), even though such allegations were at that stage unproven and untested. 

20Counsel submitted that this case was relevant to the issue of exercise of discretion, where it was submitted that release of the relevant documents may risk embarrassment to a party and potentially, impact on reputation. 
Gillard J stated that the defendant in resisting the media application, in that case, was really seeking a suppression order and the fact that the matters were allegations only did not prevent release.  He pointed out at para. 35 of that decision that a 'heavy burden rests on a party to a proceeding to establish a ground for prohibiting the publication of any part of a proceeding'. 

21Counsel submitted that Mr Savas in this case was really seeking to suppress any report of the main proceeding.  The Magistrates' Court of Victoria did have power to grant access or inspection.  He said the statement of claim had been deployed and was necessary for release in order to understand what had happened in the main proceeding.  Further, the court should exercise its discretion to grant access for the same reasons. 

22Counsel for Mr Savas emphasised the cases should be considered in the light of different relevant legislation or rules of court.  John Dixon J referred to this in Bolitho at para. 27.  For example, in the New South Wales Supreme Court, a
non-party can only inspect documents if leave is granted.  He submitted the threshold position, in this case, was that there was no power to inspect or access prior to a document being deployed in a hearing.  Because of the final orders in the main proceeding, there would never be such a hearing.  This should be contrasted with the situation in the Herald and Weekly Times case, where a court allowed access to documents, being a hand-up brief in a committal proceeding.

23As to the threshold issue, he submitted that the Magistrates' Court of Victoria was a creature of statute and only derived its powers from legislation or by implication from the legislation, referring to Grassby v R, (1989) 168 CLR 1 at p.16.  He submitted that the Magistrates' Court of Victoria has no inherent jurisdiction though it may have power by implication from the legislation.  There was no express power in the Magistrates' Court Act or its rules of court to allow inspection of documents by a non-party.  Section 18 was the sole provision in the Act governing inspection of court documents by a non-party.  Accordingly, there was no such right in this case, referring to Smith v Harris at p.350. 

24Byrne J in that case regarded a civil complaint in this court as a document retained or kept in the registry.  Counsel disagreed that the Herald and Weekly Times case overruled that finding. He submitted the Court of Appeal, per Charles JA, allowed access to a document which was not retained or kept in the register. 

25Because of s.7(d)(iii) of the Open Courts Act, the principles set out in that Act were not relevant to an application for access to a court file (see, Bolitho at para. 21).  Nor was there any common law right of access to the court document (see again, Bolitho at para.22).  As stated, the Magistrates' Court Act s.18 did not give any right to a non-party to access the statement of claim and actually prevented such a right.  If s.18 was relevant, then there was no basis for any implicit right to access or inspection of that document if that document was not actually deployed at a hearing.  Thus, there was no express or implicit right for a non-party to access or inspect the statement of claim. 

26As to the media submission, he stated that the principles of open justice did not give a free-standing or divine right for a non-party to inspect a document, referring to Smith v Harris at p.350 and John Fairfax v Ryde Local Court (2005) 62 NSWLR 512 at paras. 27-30.  This was absent the documents being deployed in open court which is an important distinction.  John Dixon J in Bolitho at para. 21, had agreed the principles of open justice were not engaged at the time of filing the proceedings, but only when the relevant material is used in open court that it becomes relevant.  John Dixon J, was then referring to the decision in John Fairfax v Ryde Local Court (supra).

27Counsel submitted that that case was particularly relevant as it involved an intervention order proceeding which was dealt with by a consent order without admissions and an adjournment.  It was held that there was no express power for the court to allow access to the relevant documents.  Similar to the present case, the fact of a complaint being issued and a consent order only were deployed in court. 

28The New South Wales Court of Appeal stated the principle of open justice called for no more than the existence of an intervention order complaint and the existence of a court order together with the order made be publicly available.  Nothing more was required to permit a fair and accurate report of what the court did.  Counsel emphasised, that there was no equivalent of Supreme Court Rule or County Court Rule O.28.05 creating a presumption of open access to documents filed with the court, referring again to Bolitho at para. 22. In the XYZ case the relevant rules provided a right of access.

29He submitted that if I did find that the media is prima facie entitled to access the statement of claim despite his submissions, then I should not exercise that discretion for similar reasons. In the present case, there had been very limited time spent and discussion on the two dates. Apart from the proposed order there was no document deployed, discussed or referred to then or likely to be in the future. He submitted the actual details of the final court order can be obtained pursuant to s.18(3) of the Magistrates' Court Act if required.  To release the statement of claim now would be an abuse and substantial intrusion into the privacy of the litigants.  It may also cause damage to the reputation of Mr Savas which is a relevant consideration, referring to Smith v Harris as well as Eisa Pty Ltd v Brady [2000] NSWSC 929 at para. 20.

30He submitted that the cases relied upon by the media to justify intrusion and possible serious damage to the reputation in his submission, that is Williams v Forgie [2003] FCA 991 and John Fairfax v Local Court, (1991)26 NSWLR 31, were both cases where the proceedings had been completed in open court, unlike the present proceedings.  He submitted that the privacy of the parties and the potential damage to Mr Savas’ reputation were substantial matters in the consideration and the exercise of discretion in these circumstances.  Finally, he referred to the comments of Byrne J in Smith v Harris that such a disclosure of the statement of claim may frustrate or impede settlement between the parties. 

31In his reply, Mr Batrouney submitted that there was no requirement for a document to be deployed at a hearing for it to be allowed to be inspected by a non-party, stating that Charles JA in Herald and Weekly Times v Magistrates' Court of Victoria did not require such.  However, he did concede, quite rightly in my view, that non-deployment may still be relevant to the exercise of discretion.  Such discretion was also subject to the principles of open justice.  He also repeated the submission that Justice Byrne's approach in Smith v Harris, that the register at the Magistrates' Court of Victoria did include the original court process, had been disapproved by Charles JA in Herald and Weekly Times v Magistrates' Court of Victoria. 

32I now proceed to give my decision.  In that regard, I am merely ruling as to whether the media should have access to the statement of claim in this particular case and in its own particular circumstances.

33I do not accept that the Magistrates' Court Act s.18, especially s.18(3) in itself prohibits a non-party from seeking access to or inspection of original process in a civil proceeding such as a statement of claim. Although Charles JA in Herald and Weekly Times v Magistrates' Court, only doubted the court register included the actual original process documents, I respectfully agree with the reasons he sets out in para. [37] of that decision.  In particular, the Magistrates' Court Act s.20 requires the originals of the process to be kept by the registrar and not entered into the register as referred to in s.18(1).

34However, that does not end the issue.  Both Counsel agreed that there was no relevant statute revision or rule of court allowing a non-party to have access to originating civil process such as the statement of claim in this court.  In particular, the provisions of the Open Courts Act are not relevant because of s.7(d)(iii) of that Act as I have set out. Certainly, case law must be considered in light of the fact that different courts in different jurisdictions have different rules of court and different legislation relating to a non-party seeking inspection of original process such as the statement of claim on the court file.

35In particular, at present, the Magistrates' Court of Victoria does not have an equivalent or similar rule of court to Order 28.05 of the Supreme Court or County Court Rules, giving a non-party a prima facie right to such. 

36Another important aspect, in this case, is the extremely limited time, number of occasions and canvassing of the main proceeding before this court.  There was a very short mention, and adjournment, of the initial directions hearing on the first occasion.  On the second occasion, there was only the submission of the draft consent orders and the making of such orders by me.  This is not a potted summary, but rather close to a full description of what actually occurred in the main proceeding on both dates.

37I do not accept Mr Batrouney's submission that s.136 of the Magistrates' Court Act, confers a power to give any direction to conduct proceedings conducive to effective, complete, prompt and economical determination gives this court a power to allow documents on a court file to be inspected prima facie or at all unless deployed at a hearing.  Nor am I able to read such a power into s.125 of the Act as to proceedings in open court as well.  I see no reasons for such implications from those provisions. 

38I do accept that there is a residual power for this court to allow access to an inspection of a document to the media in the course of a hearing of a civil proceeding heard in open court.  However, that is not applicable in this case.

39 Mr Batrouney submits that there is no rule requiring deployment in a court proceeding, as opposed to merely being filed, for a court to allow access to court documents by a non-party.  He substantially relies on the principles of open justice, to the effect that access be granted to the court documents in order to facilitate the fair and accurate reporting of what he referred to as the ‘settlement’, referring to Bolitho.

40However, I have a number of problems with the applicability of such principles of open justice in the circumstances of this case.  Firstly, John Dixon J at para. 21 made a distinction stating that the principles of open justice were not engaged at the time of filing of proceedings but only when the document was used in court referring to the decision in John Fairfax v Ryde Local Court.

41I agree with Mr Mukerjea, there is no free-standing or divine right for a non-party to access or inspect such a document apart from when deployed in open court.  Secondly, it could not be said that the statement of claim has been used in court on either date.  It was not raised or referred to before me or its contents discussed apart from the fact when the media application was discussed it was noted Mr Savas was referred to in that document. 

42The decisions in Appleroth and XYZ supporting his argument for inspection prior to use in court were based on quite different rules of court involved in those proceedings.  Although he referred to what he regarded as the ‘settlement’ of the main proceeding on a number of occasions, there is nothing on the face of the record to say any more than that the proceedings were dismissed by consent with no order for costs. 

43This part is relevant, both as to whether there is a power to allow access to the statement of claim and whether a court should exercise that power in its discretion.  As has been pointed out in a number of authorities, the principle that the judicial process should be open to public scrutiny does not demand that the subject matter of that process be available, except insofar as it is necessary to scrutinise the process itself. 

44As submitted by Mr Mukerjea, there is a distinction between public scrutiny as opposed to public curiosity about the main proceeding.  In the circumstances of this case, I believe the media application falls more into the latter category.  There is the added issue of the consideration of harm that may be caused to
Mr Savas' reputation and the privacy of the parties by the release of the statement of claim in the circumstances.  Certainly, I accept that the issue of potential harm to reputation is not a reason to refuse access in itself. However, this must be considered in the limited circumstances of these proceedings.  The cases referred to in the media's written submission in this regard were cases which had proceeded before a court, unlike the present main proceeding. 

45In the circumstances of the present application before this court, the possible effect on the reputation of Mr Savas is relevant.  I refer to Smith v Harris at
pp.341-342 and John Fairfax v Ryde Local Court at para. 74. There is dual relevance, both as to whether there is a power to release the statement of claim in the circumstances and also whether that discretion, if it does exist, should be exercised. The media can, if desired, apply to inspect the final orders made in this proceeding pursuant to s.18(3) of the Magistrates' Court Act.  It already has now, or will have then, the appropriate information and material for a fair and adequate report of the very limited proceedings before this court, that is in the main proceeding on 4 August 2020 and 13 August 2020.

46Finally, I do not accept Mr Mukerjea's submission as to the possible effect on the release of the statement of claim on the plaintiff and the defendant in this case or any possible impedance or frustration on settlement.  When specifically asked by me, both parties stated through their legal representatives that they neither consented to nor opposed the media application.  For all the stated reasons, the media application is refused. 

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