Mineralogy Pty Ltd v Sino Iron Pty Ltd - [2013] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MINERALOGY PTY LTD -v- SINO IRON PTY LTD [2013] WASC 285

CORAM: KENNETH MARTIN J

HEARD: 4 JULY 2013

DELIVERED : 4 JULY 2013

PUBLISHED : 2 AUGUST 2013

FILE NO/S: CIV 1808 of 2013

BETWEEN: MINERALOGY PTY LTD
Plaintiff
AND
SINO IRON PTY LTD
First Defendant
KOREAN STEEL PTY LTD
Second Defendant
CITIC PACIFIC LTD
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Non-party application to inspect - Plaintiff opposed

Legislation:

Federal Court Rules 2011 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Rules of the Supreme Court 1971 (WA), O 59 r 3(1)(a), O 67 r 11

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr P Mendelow
First Defendant            :     Mr S C M Wong
Second Defendant        :     Mr S C M Wong
Third Defendant           :     Mr S C M Wong
Non-party:     Mr J McLaurin

Solicitors:

Plaintiff:     HopgoodGanim
First Defendant            :     Allens
Second Defendant        :     Allens
Third Defendant           :     Allens
Non-party:     Carmel Galati

Case(s) referred to in judgment(s):

Akins v Abigroup Ltd (1998) 43 NSWLR 539
Australian Securities and Investments Commission v Rich [2002] NSWSC 198
Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
Buswell v Carles [No 2] [2013] WASC 54
Dobson v Hastings [1992] Ch 394
eisa Ltd v Brady [2000] NSWSC 929
Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4] [2012] WASC 176
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] NSWSC 466
Paul Douglas Nicholson v Morgan [2012] WASC 65
Smith v Harris [1996] 2 VR 335
Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179
Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781
Van Stokkum v Finance Brokers Supervisory Board [2004] WASC 42
KENNETH MARTIN J:
(These reasons were delivered extemporaneously on 4 July 2013 and have been edited from the transcript.)

At the outset there was an application by counsel for the plaintiff, Mineralogy, that this leave application by Mr Thomas be heard in camera. I refused that application. The leave argument was heard in open chambers.

The application by Mr Thomas: Rules of the Supreme Court 1971 (WA) O 67 r 11(1)(d)

On 30 April 2013, Stevenson J, in the Supreme Court of New South Wales, transferred this action to the Supreme Court of Western Australia: Mineralogy Pty Ltd v Sino Iron Pty Ltd [2013] NSWSC 466. A notice of motion, filed on behalf of the defendants, sought transfer of the proceedings to the Supreme Court of Western Australia, pursuant to s 5(2) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA).
Stevenson J said at [4] ‑ [6]:
4.The plaintiff and the first and second defendants are parties to Mining Right Site Lease Agreements which the plaintiff has described as the 'Sino and Korean agreements'. The third defendant is said to have guaranteed the second defendant's obligation under the Korean agreement.
5.The agreements require that the first and second defendants pay the plaintiff a 'determined royalty' in certain circumstances, including, amongst others, if they do not produce 6 million tonnes of iron ore within seven years of the commencement of the agreements. The plaintiff contends that the first and second defendants will not produce that amount of ore in time.
6.The plaintiff contends that the first and second defendants have evinced an intention not to perform their obligations under the agreements and that those defendants have also breached their obligations of good faith.
His Honour continued to summarise the nature of the action. In the end, he concluded the matter should be transferred to Western Australia. This was effected on 3 May 2013. Since 23 May 2013 the action has been case managed in this court in the Commercial and Managed Cases (CMC) List of his Honour Edelman J.
In Western Australia, there is a rule of court regulating questions of general access to documents lodged on a Supreme Court file. These public access arrangements are somewhat different to the position in the Supreme Court of New South Wales.
The local rule is O 67 r 11(1), (2) and (3) of the Rules of the Supreme Court 1971 (WA), which provides:
(1)Any person shall, on payment of a prescribed fee be, of the Rules of the Supreme Court 1971 (WA), entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the Central Office, namely -
(a)the copy of any writ, and the statement of claim (if any) indorsed thereon under Order 6 rule 3; and
(b)any originating application made under the Corporations Act 2001 of the Commonwealth; and
(ba)any appeal notice filed under the Supreme Court (Court of Appeal) Rules 2005; and
(c)any judgment or order given or made in court or the copy of any such judgment or order; and
(d)with the leave of the Court or a registrar, any other document.
(2)An application under subrule (1)(d) may be made ex parte.
(3)Nothing contained in this rule shall be construed as preventing any party to a cause or matter searching for, inspecting, and taking or bespeaking a copy of any affidavit or other document filed in the Central Office in that cause or matter or filed therein before the commencement of that cause or matter, but made with a view to its commencement.
It may be seen that Rules of the Supreme Court (WA) O 67 r 11 displays an internal access distinction, as between the positions of parties and non‑parties to civil litigation in Western Australia. Parties enjoy automatic access as of right to the content of a court file.
For non‑parties, categories of court documents which initiate the action or proceedings can be inspected and copied upon request. But for a non‑party to inspect anything beyond the initiating process or judgments or orders from a court file, requires the leave of the court, Rules of the Supreme Court O 67 r 11(1)(d). The need for leave to inspect or copy court file documents beyond the originating process or judgments or orders, is applicable to non‑parties generally and thereby, to members of the media.
In this case, a non‑party to proceedings, Mr Hedley Thomas, who is a journalist with The Australian newspaper, seeks access to inspect and copy the parties' pleadings, which have been filed since the action was transferred to the Supreme Court of Western Australia.
As stated, this civil action is running in the court's CMC list. The designated case manager, Edelman J, has already made directions concerning the filing and exchange of pleadings according to a timetable applicable between these parties.
An orthodox exchange of pleadings in civil litigation sees a plaintiff go first by articulating its claims and position by a filed document called (in Western Australia) a statement of claim. There follows an opportunity for defendants to respond to that document with a defence and/or counterclaim. A plaintiff then holds a further opportunity to meet the defence and/or counterclaim by a (responsive) further pleading documents, a reply, and, if necessary, by a defence to the defendant's counterclaim.
In this action Edelman J has made timetabling directions of this nature for pleadings to be exchanged between the parties and filed at court.
The present stage of the action is still early. According to his Honour's directions, there was to be an amended statement of claim filed by the plaintiff on 5 June 2013. The defendants responded by a defence and counterclaim on 20 June 2013. There is a timing issue now concerning what the plaintiff proposes by way of a reply and defence to counterclaim.
The exchange of pleadings which is unfolding between the parties at present has all been the subject of his Honour's uncontroversial timetabling directions made to date. A reply and defence to counterclaim from the plaintiff was due around 3 July 2013.

Mr Thomas' application for leave

Mr Thomas' access application looks to have been foreshadowed orally, at a directions hearing, or through an email sent directly to Edelman J's associate. By Rules of the Supreme Court O 67 r 11(1)(d) and (2), a non‑party's ex parte application for leave to inspect or copy a court file document can be made to a registrar, or to a judge. An ex parte application by a non‑party for leave to inspect or copy a document held on a Supreme Court file, would normally be expected to be made by a motion document filed at court seeking such leave: see Rules of the Supreme Court O 50 r 3(1)(a). No issue is taken over this point, but I directed today that a motion paper be filed by the solicitor representing Mr Thomas, so that a proper record of this application will exist.
For the purposes of evaluating Mr Thomas' application, I have received an outline of his written submissions dated 3 July 2013. Today I heard from Mr Thomas, through his counsel.
Broadly, Mr Thomas invokes principles of 'open justice' to support the access he seeks to copies of the parties' pleadings filed to date in this litigation. In that respect, Mr Thomas' written submissions, at par 13 read:
Given the identities of the parties and the value of the Sino Iron project, there is a considerable degree of public interest in the accurate reporting of the issues. A fortiori in this case when the director and beneficial owner of [Mineralogy] Mr Palmer, has established a political party, nominating candidates for the coming federal election is, and, if elected, has indicated he wishes to be the Prime Minister of this country. There is therefore a heightened interest in members of the public being informed of the subject matter of the proceedings.
In support of that position seeking access, Mr Thomas relies on Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.
He continues, at par 14:
[Mineralogy] should give cogent reasons why [Mr Thomas] should be denied access. Given the circumstances of this case and the identities of the parties, it should not be sufficient for [Mineralogy] to submit that the pleadings have not been deployed in the proceedings to date. It is submitted that [Mineralogy] should satisfy the Court that prejudice to the administration of justice will result should access to the Documents be granted.
By way of evidentiary support for his access application towards the parties' pleadings, Mr Thomas relies on an affidavit sworn by his solicitor, Ms Carmelina Galati, of 3 July 2013. Ms Galati's affidavit attaches six media articles. Most were from The Australian newspaper itself, for whom Mr Thomas writes. There was also transcript of a radio interview in Brisbane of 612 ABC, on 20 June 2013, between Mr Clive Palmer and a radio announcer, Mr Austin.
This material was adduced in an effort to show a public interest or newsworthiness in issues about Mr Clive Palmer, which Mr Thomas says he is probing.
I am, of course, alive to a potential for some self‑sown 'bootstrapping' by a media organisation which advances its own articles to suggest a public interest upon a particular issue. I evaluate this material later in these reasons.

Plaintiff's position

In the present case notice of the access and leave application by Mr Thomas has been given to the parties who have elected to participate in the application and today have been heard through counsel.
Mr Thomas' application for access to the pleadings is strongly opposed by the plaintiff.
The plaintiff, by its counsel Mr Mendalow, first submits the parties' pleadings are at an early stage. There have been no hearings yet over the content of any parties' pleadings in this action, either in open court or in open chambers. Hence, it is put, it is too soon, and possibly even misleading, to release these pleadings publicly to a representative of the media.
Further, Mr Mendalow argues no prior case authority in this jurisdiction provides a sufficient level of support at this time to sustain the grant of leave to inspect or copy pleadings from the court's file by Mr Thomas, as is now sought.
An outline of written submissions was filed for Mineralogy on 3 July 2013, by which its opposition stance against access to the pleadings was elaborated. Mineralogy's submissions refer to numerous case authorities which have considered access requests to court file documents previously in Western Australia, as well as to requests for access to court documents in other States and as well, in the Federal Court of Australia.
Mineralogy's written submissions conclude:
The release of the pleadings to the applicant is likely to be unfairly prejudicial. Put differently, the applicant has failed to discharge its evidentiary threshold required to convince the Court that there is a legitimate public interest in proper reporting of the Court proceedings without unfairly prejudicing a party in that context [29].
Mineralogy relies particularly on earlier first instance New South Wales decisions of Santow J, eisa Ltd v Brady [2000] NSWSC 929 [22] and by Barrett J in Australian Securities and Investments Commission v Rich [2002] NSWSC 198 (ASIC v Rich) as supporting its opposition stance against access.
Mineralogy says, effectively, that allowing Mr Thomas access to the pleadings is inappropriate, at the present time, because:
(a)the content of the pleadings have not yet been referred to in court or chambers. They presently reside on the court's file, but have not yet been used publicly for any purpose;
(b)the pleadings are still developing and may well change, or, indeed, not even ever be publicly used, depending on how this action advances towards its eventual trial or solution;
(c)these parties' pleadings necessarily deal with, and contain, sensitive or confidential information of a commercial nature that Mineralogy says ought not be publicly canvassed at this time.
In support of Mineralogy's position, an affidavit of Michael John Dunham, sworn 3 July 2013, was filed and read. Mr Dunham's affidavit addresses the asserted confidential content of aspects of the parties' pleadings, particularly the Mining Right and Site Lease Agreements (or MRSLAs) as referred to. Mr Dunham refers as well to two articles that appeared in The Australian under the authorship of Mr Thomas. Mr Dunham renders some negative references to the content of these articles, which is unnecessary for me to canvass.

Defendant's position

The defendants were also represented by counsel. The defendants' position, essentially, is they do not oppose the plaintiff's amended statement of claim being provided to Mr Thomas.
As regards their own currently filed defence and counterclaim pleading, they do not oppose Mr Thomas' application for access, subject to certain redactions being made in paragraphs of the schedules to the defence, by reason of the defendants' own assertions of confidentiality. A redaction process by the defendants would be applied for a number of paragraphs found within schedules B, C and D to the defence, as enumerated in an outline of submissions filed on behalf of the defendants on 3 July 2013. That position was confirmed by counsel.
Apparently, a redaction proposal by the defendants would be acceptable to Mr Thomas, although he would not of course have actually yet seen the defence and counterclaim, or what is proposed to be redacted.
Effectively, then, as regards both the amended statement of claim and for the defence and counterclaim, the defendants articulate a position of overall non‑opposition to access, subject to certain redactions to their own pleaded materials.

The case law

There are numerous case authorities, which have considered like applications previously in Western Australia and in other jurisdictions. Most scenarios considered, however, look to be situations where either affidavit materials or pleadings, have been publicly canvassed in argument at court or chambers with the documents sought having been, in the process, ventilated in the public proceedings heard in open court or open chambers.
Whilst it is the practice and procedures of this court that ultimately governs the issue of non‑party access to the pleadings sought by Mr Thomas, I am nevertheless well cognisant of the fact this court is dealing with a litigious controversy transferred to Western Australia from New South Wales, where it first started. Considerations of overall consistency in approach and comity as between the superior courts of Australia, therefore, do influence me, to some degree. Hence, in resolving this request by Mr Thomas I propose to look closely at the position in New South Wales as well, although the regime concerning access is different to Western Australia. It seems undesirable to me that there be significantly different non‑party access positions adopted as between the Supreme Courts of this nation, particularly as regards access outcomes impacting upon what is now a borderless national media.
So, I begin with a consideration of the position in the Supreme Court of New South Wales, by reference to a series of first instance case authorities, commencing with the decision of Santow J in eisa Ltd v Brady; then by Barrett J in ASIC v Rich; and subsequently, the decision of Einstein J in Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781.
In ASIC v Rich Barratt J, following what Santow J had written earlier in eisa v Brady, said:
I do not see how the fundamental principles of open justice and access by the public to proceedings in open 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 allegation at this point has a clear potential to cause serious prejudice to the defendants who intend to put their countervailing contentions on the record in due course [18].
By contrast, in Tuqiri v Australian Rugby Union Ltd Einstein J, more recently, observed:
With all due respect to the eminence and standing of those two very well respected and experienced judges, I disagree with their observations. In that regard I agree with Rares J who observed in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836:
In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings [29].
Assessing the first instance New South Wales cases, there seems to present a degree of tension over the liberality of an approach towards allowing access by non‑parties to documents that reside on a court file, but which have not been referred to in court or in chambers.
For Western Australia, there are at least four recent significant decisions by Le Miere J, in this court which need to be considered. I refer to Broad Construction Services (WA) Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 (Broad Construction v CFMEU); Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4] [2012] WASC 176; Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179; and Buswell v Carles [No 2] [2013] WASC 54.
In Broad Construction v CFMEU, his Honour allowed the media access to an affidavit (including a number of video annexures to the affidavit). Affidavit materials had been read in open chambers on an interlocutory injunction application. Access was opposed by the defendant. His Honour, applying principles of open justice, assessed that there should be media access to the affidavit. He granted leave accordingly under Rules of the Supreme Court O 67 r 11(1)(d). In the course of doing so, his Honour carefully assessed the rules and practice directions not only in this court, but as well, at the time, the rules from other jurisdictions, including for New South Wales and in the Federal Court. In particular, I will relate his Honour's reasons at [18] ‑ [19].
[18]Other jurisdictions have adopted rules for making material in the possession of the court available to parties or to non-parties. In New South Wales Uniform Civil Procedure Rules 2005, r 36.12(2) 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.'
[19]A New South Wales Supreme Court Practice Note SC Gen 2 (Supreme Court - Access to Court Files) that commenced on 1 March 2006 prescribes the procedures surrounding the provision of access to court files. The Practice Note includes the following paragraphs:
'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 insofar as an order has been made that they or portions of them be kept confidential;
•Documents that will 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.'

Clearly, the non‑party access position towards materials placed on a superior court's file differs around Australia, in terms of a starting premise as to the allowing of access or not.
The non‑party access position for New South Wales was addressed in the New South Wales Supreme Court Practice Note SC Gen 2 (Supreme Court ‑ Access to Court Files) commenced ‑ March 2006. By that Practice Note pleadings and judgments in proceedings which had been concluded could ordinarily be accessed by non‑parties.
In contrast, with the Federal Court, the position, prima facie, was that there should be access for most filed documents, unless ordered to the contrary (Federal Court Rules 2011 (Cth) r 2.32(2) and r 2.32(3)).
I next mention Le Miere J's subsequent decisions in Tap (Harriet) v Burrup Fertilisers; and Hancock Family Memorial Foundation v Fieldhouse. In the latter case, his Honour granted leave to an investigative journalist to have access to pleadings. But the circumstances were that the action had run to a trial which had been concluded by a final judgment. See particularly Hancock Family Memorial Foundation v Fieldhouse [17] ‑ [18].
I will defer for the moment referring to Buswell v Carles [No 2] and divert to mention comprehensive reasons by Corboy J in Paul Douglas Nicholson v Morgan [2012] WASC 65. His Honour there collected the applicable access law at the time from every State. He also traced the English case law to explain the historic background rationale for Rules of the Supreme Court (WA) O 67 by reference to Dobson v Hastings [1992] Ch 394 which sets out the English position, which became the template for the position in Western Australia. Corboy J also observed:
A party must show exceptional circumstances to be relieved of the implied undertaking not to use documents provided by another party for the purpose of proceedings for a collateral purpose. A non‑party should not be placed in a superior position in obtaining access to documents through an application under O 67 r 11 RSC [31](j).
Discussing that well known implied undertaking which binds parties to litigation to only use discovered documents obtained for the purposes of the litigation itself, Corboy J referred to a decision of the New South Wales Court of Appeal, Akins v Abigroup Ltd (1998) 43 NSWLR 539. His Honour also noted that in 2004 McLure J (now President McLure of the Court of Appeal of Western Australia) had expressly agreed with the reasons of Mason P in Akins v Abigroup, to the effect that non‑parties should not enjoy a superior disclosure position to that of the parties: see Van Stokkum v Finance Brokers Supervisory Board [2004] WASC 42 [26] - [27] (Van Stokkum).
For my purpose today, I find Van Stokkum to be a case authority of considerable persuasive assistance. At [27], her Honour referred to O 67 r 11(1)(d), noting that the rule was based upon principles of open justice. Hence, it was necessary to have regard to the purpose and rationale of that principle. Relevantly, to the non‑party access discretion that I exercise today under Rules of the Supreme Court O 67 r 11(1)(d) as regards Mr Thomas' access application, McLure J in Van Stokkum identified a number of potentially applicable factors, requiring consideration.
I now propose to severally evaluate, for Mr Thomas' application, each of the factors as mentioned in Van Stokkum.

Van Stokkum factors

The first factor relevant to the exercise of the discretion mentioned in Van Stokkum was:
(a)whether and if so to what extent the document has been referred to in open court;
As regards the first factor, the content of the parties' pleadings, (an amended statement of claim and a defence and counterclaim) has not yet been referred to in open court. Nor have they been referred to in chambers, for that matter, if a distinction between chambers and court is material.
The second factor identified in Van Stokkum, was:
(b)the stage reached in the proceedings;
The present stage of the action is still early. The scenario of a contested interlocutory argument heard in chambers (such as the opposed injunction application in Broad Construction v CFMEU) is of course a very different situation. Here, the litigation to date has merely been administered in the CMC list by orthodox case management programming directions made towards an eventual mediation or trial. No controversy has manifested of any significance between the parties requiring the court's intervention to date. The Supreme Court of Western Australia only received the New South Wales action by transfer in May 2013. Accordingly, the stage of the present proceedings remains early.
The third factor identified in Van Stokkum was:
(c)the contents of the document (to assess the nature and seriousness of any allegations made, and whether there is any information on any subject matter which has the potential to damage the private or commercial interests of a party);
Here the parties' pleadings as exchanged are in their infancy. Pleadings of course have a propensity, particularly in complex commercial cases, to alter and evolve by amendments made without leave over time before a trial even begins.
As to the confidential content of a pleading, it can be difficult for a court itself to assess, whether or not information within pleadings does have a potential to damage a party's commercial interests, if released openly. Here one party (the plaintiff) makes the assertion that components of its pleadings do embody sensitive confidential information. It is difficult to evaluate, let alone gainsay that assertion at the present early stages of the action. There is no present reason not to take an assertion of sensitive confidential information at face value.
Later, as the litigation advances to trial, it may be more feasible, where pleaded allegations are better tested, for the court to obtain a better insight towards the assertions of confidentiality. But until that happens, there is no reason to not respect what is articulated by a party to that effect. That is the position as presently articulated by the plaintiff, as regards aspects of information in its amended statement of claim.
A fourth factor identified in Van Stokkum was:
(d)the nature of the proceedings;
These proceedings manifest as a commercial contractual dispute, of the type very frequently seen in the CMC list. One party contends contractual arrangements binding the other and have been seriously breached. It seeks as relief either damages, or orders for specific performance as regards an enforcement of what are entirely private contractual rights. On the face of it, there is nothing manifesting of a wider public character in this controversy to date.
The fifth factor identified in Van Stokkum was:
(e)whether access to the document is necessary or desirable to facilitate an understanding of the proceedings and thus of the judicial process;
Here the key distinction as between disputes which have been argued out in open court (or open chambers), as contrasted to a scenario of court documents the subject of each party's filings and held in a court file, emerges starkly. Quite appropriately, many cases place a strong emphasis on a right of the media to properly report civil proceedings and, to that end, to fully understand and be correctly appraised of the parties' arguments that do unfold in open court or open chambers. But, the circumstances where a party has merely filed a document articulating its claim or defence are of a less public character. In that scenario, an open justice principle carries a lesser impact. In ASIC v Rich, Barrett J noted this key distinction of principle, as between what is the state of a court's file in contrast to the state of the judicial process itself: see ASIC v Rich [9] ‑ [10].
In 2004 in Van Stokkum, McLure J assessed the case authorities as they were at the time. Referring to what had been said of the distinction of principle, as between the judicial process and the subject matter of a judicial process in Smith v Harris [1996] 2 VR 335, her Honour agreed: see Van Stokkum [22].
So a key distinction of principle must be recognised as between the understanding of the judicial process, and the subject matter of a judicial process. Like Corboy J in Nicholson v Morgan, her Honour also, as I mentioned, agreed with observations by Mason P in the New South Wales Court of Appeal in Akins v Abigroup as to distinguishing of the position of a non‑party to proceedings, noting that the non‑party ought not to be in a position superior to that of a party, as regards respecting the force of the implied undertaking binding parties to use documents obtained in litigation only for the prosecution or defence of the litigation and for no other purpose: see Van Stokkum [26]. See also Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [107] – [108] (Hayne, Heydon & Crennan JJ).
McLure J agreed a party must show exceptional circumstances before leave is given permitting a collateral use of documents obtained as a consequence of the litigation: Van Stokkum [26].
The last factor McLure J identified in Van Stokkum was:
(f)the purpose for which access is required.
In this case, Mr Thomas says his purpose is to use the present pleadings to accurately report, in The Australian newspaper, about these court proceedings. However, as mentioned, there have been no arguments from these parties heard to date either in court or chambers as to the content of their respective pleadings, as presently filed.

Buswell v Carles [No 2]

I mention the most recent decision at first instance in this court by Le Miere J in Buswell v Carles.
At [13] his Honour mentions again the Akins v Abigroup decision of the New South Wales Court of Appeal. Le Miere J endorsed and applied the principle that a non‑party ought be in no better position than a party, as regards a wider use of documents such as for purposes other than advancing, or defending the litigation: see Buswell v Carles [13].
His Honour also referred with apparent approval to eisa Ltd v Brady, where Santow J equated the position of pleadings to that of other documents which are the subject to this implied undertaking binding the parties: see his Honour's observations in Buswell v Carles [21]. Those observations were of course made in a context of evaluating an argument that there had been an inappropriate external disclosure of a pleading filed at court by that defendant.

Disposition

As is seen from the written submissions of the parties filed yesterday, and now as articulated and expanded upon by respective counsel today, the first access argument by Mr Thomas is that because he is a journalist working for The Australian newspaper and seeks access to the court pleadings of the parties in order to report about the state of the proceedings, that effectively is all he need do. Correlatively, he says it is for anyone resisting his application, such as the plaintiff, to give 'cogent reasons' why he should be denied access: see par 14 of the applicant's written submissions.
Mr Thomas' first argument is wholly misconceived. It does not accord with the state of the law in Western Australia. Nor as I would respectfully assess it from afar, does it accord with the position as regards access to pleadings not yet referred to, either in court of chambers, in the Supreme Court of New South Wales.
For Western Australia, it is for Mr Thomas as a non‑party applicant seeking leave to access the parties' filed pleadings to make out a case why he should be allowed access to the pleadings, at this time. This is particularly so in circumstances where the pleadings have not to date been used or argued in open court or in open chambers. They simply reside, unused to date publicly, on the court's file. Pleadings are not infrequently amended in commercial disputes as the parties' arguments evolve towards a position whereby each side's case for a trial is settled. That process has not been completed. There is no reply and defence to counterclaim filed by this plaintiff at the present time.
The alternative argument articulated on behalf of Mr Thomas, if he does need to demonstrate (as I have concluded he does) more than simply articulating his request for access as an investigative journalist, is to rely upon a series of newspaper articles plus a radio transcript, found in Ms Galati's affidavit to publications in the national media to contend there is a public interest in allowing Mr Thomas access to the parties' filed pleadings, at this time.
The appended newspaper articles refer to Mr Clive Palmer as a prominent Australian person, presently an aspirant Prime Minister. They also refer in terms to some statements Mr Palmer has made about how he derives his income in terms of royalties ‑ to an extent of half a billion dollars a year ‑ from the Chinese. There is reference to CITIC Pacific Ltd (the third defendant) having been said by Mr Palmer to have not honoured (contractual) obligations.
There is also a radio transcript broadcast over a Brisbane radio station that Mr MacLaurin took me to, in which Mr Palmer had a conversation over which is on the public record. This exchange occurred between Mr Palmer and the announcer, Mr Austin:
Mr Austin: So the basis of The Australian newspaper stories that CITIC Pacific doesn't know what you meant by you receiving money from them, or asking for money from them is irrelevant as far as you're concerned?
Mr Palmer: Well, of course they know and if you go to the public records you'll see in Western Australia in the Supreme Court there's defences and there's arguments about it, right? And, you know, yeah, that they know that the money is required. They said the same thing in relation to the first case which is just - and the Supreme Courts found in our favour and castigated them.
And I don't - I think this is a matter which will be sorted out in the next coming weeks anyway. I mean, it's a storm in a teacup. It doesn't really matter in relation to the workers that are working for us. They've all been paid. The companies are all solvent and I've got plenty of assets which I'm prepared to continue to support the companies with.
Mr Austin: So the story in The Australian newspaper is baseless as far as you're concerned?
Mr Palmer: Well, it's taken out of context based on - part of it based on stolen information without the full story and without discussing it or talking to me in any way.
The transcript of that rather long radio interview continues.
I do not discount a theoretical possibility a party to civil litigation might provide a basis to sustain a court giving leave to the media to access court materials ‑ if there has been some public discussion about the civil litigation in the media – but this is not such a case. Based upon principles emerging from the case authorities now discussed ‑ and this may be a position that needs to be reviewed from time to time as this litigation progresses ‑ I am not currently persuaded of a public interest. Some of the newspaper articles are written or co‑written by Mr Thomas in The Australian itself. They do not provide a sufficient basis to conclude it is necessary, in the public interest, the parties' pleadings filed to date be made available to Mr Thomas at this time. Only very general comments have been made about litigation unfolding in Western Australia, as well as other general comments regarding CITIC Pacific. This is not enough and is insufficient to persuade me of any significant underlying public interest in the pleadings filed in this action at this time.
It must also be noted that there is also mentioned a series of other litigation apparently unfolding across Australia involving this plaintiff or Mr Palmer, not just in this court, but in other State superior courts, or in the Federal Court.
Reference is not made substantively in any of the media material, as I assess it, to this particular action, CIV 1808 of 2013. I am not persuaded on his second ground Mr Thomas that there is a sufficient basis demonstrated to allow access to the parties' present pleadings in the early stages of this action.
I would also observe that a public discussion of civil proceedings as to their merits or demerits may, prima facie, whilst those proceedings remain sub judice, amount to contempt of the court. It may not, perhaps, be as serious a contempt, as in circumstances where criminal proceedings before a jury are pending. There is of course a greater capacity for a jury to be influenced by public comments about the merits of a pending trial. A jury may even need to be discharged, depending on what is said in the media. However, sub judice considerations also remain applicable to civil proceedings. Nothing that I say ought suggest that there should be a developing trend of media discussion upon the merits or demerits of uncompleted civil litigation by the media, beyond reporting what happens or what is said in the courtroom.

Conclusion

By reference to my application of Van Stokkum criteria to Mr Thomas' application for leave to have access to the parties' pleadings under Rules of the Supreme Court O 67 r 11(1)(d), I reach the conclusion that I have not been persuaded by Mr Thomas that any sufficient or appropriate basis has been demonstrated for leave to allow him access to any of the parties' pleadings filed at court, at this time. I take into account as well the position as expressed on behalf of the defendants in terms of their non-opposition as regards their own pleading with foreshadowed redactions. Even weighing in that stance from the defendants, the embryonic stages of this action are such that Mr Thomas has not persuaded me that leave should be granted. The application of Van Stokkum criteria, essentially, dictates a contrary outcome at this time.
I refuse the application for leave, but I will not make any costs order against Mr Thomas on the basis that he is a non‑party and I assess his application, albeit unsuccessful, as having been brought in good faith.

Further application: media access to materials used on this application

At the conclusion of Mr Thomas' application there was a distinct application by counsel for Nationwide News Pty Ltd, seeking access to the affidavit materials and written submission, used in evaluating Mr Thomas' application.
This distinct application for access and to copy was not opposed by the plaintiff or the defendants. Accordingly, I allowed Nationwide News on its application access to the written submissions of the plaintiff, defendants and of Mr Thomas, as well to copies of the affidavits of Mr Michael Dunham and Ms Carmelina Galati.