McLachlan v Browne and Fairfax Media Publications Pty Ltd; McLachlan v Browne and Australian Broadcasting Corporation (No 5)

[2018] NSWSC 1976

Supreme Court

New South Wales

Medium Neutral Citation:	McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 5) [2018] NSWSC 1976
Decision date:	17 December 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Publication of reasons for refusing non-party access to court file
Catchwords:	MEDIA AND COMMUNICATIONS – applications by media for access to pleadings prior to conclusion of proceedings – whether there are exceptional circumstances warranting departure from Supreme Court’s usual practice
Legislation Cited:	Civil Procedure Regulation 2017 (NSW) Federal Court Rules 2011 (Cth), r 2.32(2)(c) Uniform Civil Procedure Rules 2005 (NSW), r 36.12
Cases Cited:	ASIC v Rich [2002] NSWSC 198 eisa Limited v Damien Brady [2000] NSWSC 929 HIH Insurance Ltd (in liq) v General Re Insurance Australia Ltd [2006] NSWSC 128 Llewellyn v Nine Network Australia Pty Ltd (2006) 233 ALR 88; [2006] FCA 836 Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781
Category:	Procedural and other rulings
Parties:	Proceedings 2018/34244: Craig McLachlan (plaintiff) Christie Whelan-Browne (first defendant) Fairfax Media Publications Pty Ltd (second defendant)   Proceedings 2018/34257: Craig McLachlan (plaintiff) Christie Whelan-Browne (first defendant) Australian Broadcasting Corporation (second defendant)
Representation:	Counsel: M Richardson (plaintiff) L Barnett (first and second defendants in both proceedings)   Solicitors: Mark O’Brien Legal (plaintiff) Banki Haddock Fiora (1st defendant in both proceedings and 2nd defendant in 2018/34244 proceedings) ABC Legal & Business Affairs (2nd defendant in proceedings 2018/34257)
File Number(s):	2018/342442018/34257
Publication restriction:	Suppression orders have been made in these proceedings

Judgment

1. HER HONOUR: Craig McLachlan has commenced proceedings for defamation arising out of the publication of articles accusing him of sexual impropriety. Mr McLachlan is a popular Australian actor and the case has attracted considerable attention in the press. The proceedings have come before the Court for preliminary argument on a number of occasions but the final hearing has not yet commenced. The matter is listed for trial with a jury commencing on 4 February 2019.

2. The Court has received a number of applications from members of the press seeking access to documents held on the Court file, including the pleadings. The original statement of claim has already been reported extensively in the public domain, in circumstances to which I will return. The purpose of the media applications is to obtain access to the defences. The applications include applications by journalists employed by Fairfax and the ABC, who are defendants in the proceedings.

3. Although the question of access to a court file by a non-party is purely an administrative issue, the defendants raised the matter in open court and made lengthy submissions in support of the applications by the media. While those submissions do not raise any matter for judicial determination in the proceedings, it is appropriate in the circumstances to record my reasons for refusing access to the pleadings, at least until the commencement of the hearing.

4. The usual position is that non-parties (including media organisations) are not entitled to access to the pleadings until after the conclusion of the proceedings. Applications for access to court documents are governed by r 36.12 of the Uniform Civil Procedure Rules 2005 (NSW). Access to pleadings is addressed in sub-rule (2), which provides:

“(2) Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar:

(a) must furnish to any party to any proceedings, and

(b) may furnish to any other person appearing to have a sufficient interest in the proceedings,

a copy of any pleading or other document that has been filed in the proceedings.”

5. There is in fact no fee prescribed under either the UCPR or the Civil Procedure Regulation 2017 (NSW) for the provision of documents to the press. In practice, applications for access by journalists are ordinarily made through the Media Liaison Office attached to the Chambers of the Chief Justice and forwarded to a registrar for approval.

6. The exercise of the registrar’s discretion under r 36.12 to provide documents to a non-party is guided by Practice Note No SC Gen 2 “Access to Court Files”, which came into effect on 1 March 2006. Clause 7 of the Practice Note provides:

“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;

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” (emphasis added)

7. As the applications in the present case seek access to the pleadings before the conclusion of the proceedings, they fall outside the regime contemplated by that clause. The defendants submitted, however, that access should be granted for the reasons stated by Einstein J in Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781. That was a case in the Commercial List in which a well-known footballer, Loti Tuqiri, brought proceedings against the Australian Rugby Union for wrongful termination of a contract of employment. At the first listing of the proceedings, a number of media organisations sought access to the court file including the Commercial List Summons and Commercial List Statement.

8. Justice Einstein granted access to those documents. If I have understood the reasoning correctly, his Honour took the view that, as judges usually make themselves familiar with the contents of the originating process prior to the first listing in court, the “reality” of what occurs at the first listing is “to be taken as having occurred in open court”: at [14], [25]. His Honour thus evidently considered the filing of the originating process (and its consideration by the judge before the first listing) to be akin to its having been read in open court.

9. Justice Einstein further held that, even if that was wrong, “surely mention in open court of what the proceedings are about [where counsel is about honouring the court’s expectation of practitioners to give a careful review of the case]” would engage the entitlement under the Practice Note to access to “documents that record what was said or done in open court” and “information that would have been heard or seen by any person present in open court” (the 2nd and 4th bullet points of clause 7 of the Practice Note set out above): at [25] of the judgment.

10. In reaching that conclusion, his Honour disagreed with the approach taken in two contrary decisions of this Court: eisa Ltd v Brady [2000] NSWSC 929 (Santow J) and ASIC v Rich [2002] NSWSC 198 (Barrett J), preferring instead the approach taken by Rares J in the Federal Court in Llewellyn v Nine Network Australia Pty Ltd (2006) 233 ALR 88; [2006] FCA 836.

11. The defendants noted that the approach favoured by Rares J in Llewellyn now finds expression in r 2.32(2)(c) of the Federal Court Rules 2011 (Cth), which allows non-parties to inspect any originating application or pleading in the registry in proceedings commenced in the Federal Court.

12. However, in this Court, Practice Note SC Gen 2 provides authoritative guidance as to access to court files: HIH Insurance Ltd (in liq) v General Re Insurance Australia Ltd [2006] NSWSC 128 (per Hoeben J, as his Honour then was, at [13]). The rationale for preserving that approach was explained cogently by Santow J in eisa Ltd v Brady at [20], as follows:

“Clearly if the court were thus to make available to the Press prematurely, affidavits or pleadings containing damaging allegations not read in court or sufficiently described in open court, this may severely and unfairly prejudice those the subject of these damaging allegations, with no necessary redress in defamation. That prejudice may not only go to reputation but may go further and actually prejudice the paramount requirement of a fair trial. If it became the norm for courts to release to the press pleadings not yet heard and tested in open court, serious and damaging allegations could be put in pleadings for the purpose of their Press exposure relatively free of defamation risk. Carefully crafted qualification to the pleadings may contrive to sidestep any liability for false swearing. That is an important factor to be weighed in any consideration of the public interest and in determining whether the necessary exceptional circumstances exist when proceedings are not yet concluded.”

13. With great respect to Einstein J, the proposition that the pleadings are to be taken as if read in open court at the first listing is a construct which stands in conflict with the terms of the Practice Note and undermines its rationale.

14. In my respectful opinion, the approach taken in eisa and ASIC v Rich is right and should be followed. I can do no better in expressing my reasons for that conclusion than to repeat their Honours’ remarks cited by Einstein J in Tuqiri at [27]-[28]. In eisa at [18], Santow J (as his Honour then was) said:

“It is at the trial that the public and Press will ordinarily have full and unfettered opportunity to be present and hear what is said, and where pleadings can be understood in their proper context. It may well then be possible to release a copy of the pleadings without danger of prematurity, though the circumstances need still to be considered.”

15. Justice Einstein also referred to the remarks of Barrett J (as his Honour then was) in ASIC v Rich at [18], as follows:

“I do not see how the fundamental principles of open justice and access by the public to proceedings in this court will be enhanced or promoted by facilitation of media coverage of as yet untested allegations which have not been aired in court and may never be, at least in the form in which they now exist. On the other side of the coin, access by the media to those untested allegations at this point has a clear potential to cause serious prejudice to defendants who intend to put their countervailing contentions on the record in due course.”

16. I respectfully agree with those remarks. In my view, as contemplated by the Practice Note, access to pleadings should not ordinarily be granted during the interlocutory stages (where that is opposed by one or other party) unless the court is satisfied that exceptional circumstances exist.

17. As to that requirement, the decision in Tuqiri holds that exceptional circumstances include “the public interest in the fair report of proceedings” and “the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts” (at [35]). I respectfully disagree. As submitted by Mr Richardson, those circumstances exist in all cases and are by no means exceptional.

18. I am not persuaded that exceptional circumstances exist in the present case. The defendants relied on the fact that the plaintiff released the statement of claim to the media before it was filed. They submitted that there is accordingly a public interest in making the defences available as well. It was submitted that the state of information currently publicly available about the proceedings is misleading because the public are aware of the allegations made by the plaintiff but are “left in the dark as to the allegations made by the defendants in defence of the proceedings.”

19. It is unfortunate that the plaintiff pre-empted the usual approach by making the statement of claim available to the press. However, to release all further pleadings on that basis would be to surrender the authority of the Practice Note.

20. The defendants further submitted that the particular circumstances of Ms Whelan Browne establish exceptional circumstances. An affidavit affirmed by Ms Leanne Norman, the defendants’ solicitor, established that Ms Whelan Browne has suffered an unpleasant and unseemly backlash in response to the publication of her allegations concerning Mr McLachlan as a result of which she has suffered considerable stress.

21. That is of course extremely unfortunate. However, to the extent that the submission implicitly contended that the Court’s discretion to grant non-parties access to the court file could appropriately be exercised for the purpose of enabling the parties to fight the case in the press, I respectfully disagree. I do not accept that the release of the defences is necessary to enable fair reporting of what is happening in court. Fair reporting may be achieved by attending court and reporting on what is said, as has been demonstrated by a number of experienced and accomplished journalists throughout the interlocutory stages of these proceedings. To the extent that journalists require assistance in obtaining access to what has been said or deployed in open court, assistance is always readily provided under the auspices of the Media Liaison Office.

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