P v D1 - [2009] NSWSC 1492

CITATION: P v D1 & Ors [2009] NSWSC 1492

HEARING DATE(S): 9/10/09, 23/10/09

JUDGMENT DATE :
28 October 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: See paragraphs 21 & 22 of judgment.

CATCHWORDS: PROCEDURE - Supreme Court procedure - New South Wales - application for access to court file under Practice Note SC Gen 2 - parties directed to supply to the Court a statement of the affidavits that they claim have been read in the proceedings

LEGISLATION CITED: Supreme Court Rules 1970 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512
R v Davis (1995) 57 FCR 512

PARTIES: P- Plaintiff
D1- First Defendant
D2- Second Defendant
D3- Commonwealth Bank of Australia
D4- Fourth Defendant

FILE NUMBER(S): SC 05/1290

COUNSEL: Plaintiff- Mr H Snow
First & Second Defendant- Mr D Hayes
Third Defendant- No appearance
Fourth Defendant- No appearance
Applicant- Ms McClymont

SOLICITORS: Plaintiff- Swaab Attorneys
First & Second Defendant- Hayes Partners
Third Defendant- No appearance
Fourth Defendant- No appearance
Applicant- Johnson Winter & Slattery

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

WEDNESDAY 28 OCTOBER 2009

1290/05 P v D1; D2; COMMONWEALTH BANK OF AUSTRALIA LIMITED & D4

JUDGMENT

1 HIS HONOUR: Kate McClymont and Vanda Carson, two journalists employed by the publisher of the Sydney Morning Herald have applied for access to the Court file in this matter. Their application is made by means of the form of application provided for in Practice Note SC Gen 2 “Access to Court Files” effective 1 March 2006. This application will be dealt with as an application for the leave of the Court provided for under that Practice Note which is the present equivalent of the former Part 65 Rule 7 of the Supreme Court Rules 1970 (NSW).

2 Ms Carson and Ms McClymont have appeared in person on the occasions that this matter has been before the Court. The matter was mentioned before me on Friday 9 October 2009 in the course of the equity duty list when Ms Carson raised the issue of access to the Court file in open Court. There was no appearance by either the plaintiff or any of the defendants on that occasion. The matter was adjourned to Friday 23 October 2009 when Mr H Snow, solicitor for the plaintiff and Mr D Hayes, solicitor, appeared for the first and second defendants. The only other existing defendant, the fourth defendant, resides in an apartment in Moscow in Russia. He has not appeared on this application. The Court file shows that he has not taken an active role in the proceedings for a considerable time. It may be that because of the issues in the proceedings that the interests of the fourth defendant are closely coincident with those of the plaintiff. The submissions that are made on behalf of the plaintiff and the first and second defendants may represent the interests of all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P v D1

Details

AGLC: P v D1 [2009] NSWSC 1492
Case: [2009] NSWSC 1492
Decision Date: 28 October 2009

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the parties involved in the case P v D1 sought access to the court file under the provisions of Practice Note SC Gen 2. The dispute centred on the admissibility of certain affidavits that were integral to the ongoing proceedings. The applicants argued that the affidavits contained critical information that warranted their inspection, while the respondents contested the necessity and relevance of these documents. The court was required to determine whether the applicants had a legitimate basis for seeking access to the file and, if so, what specific documents were to be disclosed.

The primary legal issue before the court was whether the applicants had demonstrated sufficient grounds for the disclosure of the affidavits. This involved assessing the relevance of the affidavits to the matters at hand and whether their inspection would assist in the fair and efficient resolution of the case. The court needed to balance the applicants' right to access information against the potential prejudice that might arise from the disclosure of sensitive material. Additionally, the court had to consider the procedural requirements set out in the Practice Note to ensure that the application was properly substantiated and justified.

The court found that while the applicants had established some grounds for seeking access to the file, they had not sufficiently demonstrated that the affidavits in question were necessary for the resolution of the case. The court emphasised the importance of adhering to the procedural guidelines set out in Practice Note SC Gen 2, particularly in relation to the provision of a detailed statement of the affidavits claimed to have been read. The court directed the parties to supply a comprehensive statement of the affidavits they claimed had been read in the proceedings, thereby ensuring that the application was properly supported and that all relevant factors were considered. The final orders required the parties to comply with the court's directives and to provide the necessary documentation within the stipulated timeframe.

Orders