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 parties. I will need to be informed by the legal representatives as to the present status in the proceedings of the fourth defendant. Nevertheless I shall make enquiries at the conclusion of this judgment about the status and representation of the fourth defendant and make directions in that regard if necessary.

3 These proceedings were commenced on 1 February 2005 when an application for an ex parte injunction was made before Hamilton J of this Division. They have been mentioned on many occasions before the Court through the rest of 2005 and 2006 and right up until mid 2009. There have been variations to the orders originally made by Hamilton J on numerous occasions, namely 15 May 2006, 8 June 2006, 31 August 2006,30 November 2006, 30 March 2007, 31 August 2007, 2007,28 September 2008,11 December 2007, 11 March 2008, 11 April 2008, 11 July 2008, 10 October 2008, 17 February 2009 and 15 May 2009.

4 The only occasion resembling a contested hearing in the matter from what the file shows was a hearing before Palmer J on 23 September 2005. The Court is currently at something of a disadvantage compared with the experience of the parties in relation to what is to be inferred from the file. Inquiries have been made of the court reporting services about the transcript of those hearings before the Court. It will take some considerable time before the court reporters’ notes of the hearings can be gathered and transcribed and then made available to see what affidavits were read on these various occasions. What the Court currently has though is the Associate’s Record of Proceedings and copies of the orders. These throw considerable light upon what has happened.

5 I have now had the opportunity of going through this material and am in a better position than I was on 24 October 2009 to indicate to the parties how I wish to approach the matter.

6 The principles in respect of the grant of access are clear. Media access to court files in the Court of Appeal and the Divisions of the Supreme Court is governed by Practice Note SC Gen 2 “Access to Court Files” effective 1 March 2006.

7 Clause 5 of the Practice Note provides that “A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court”.

8 An application by the media for access to the material held by the Court in the proceedings must be made in the form attached to the Practice Note. The applicant must demonstrate that access should be granted and state the reasons why access is desired. That has occurred in this case. The discretionary basis upon which leave is granted or withheld is stated in the Practice Note. Clause 6 provides that “[a]ccess to material in any proceedings is restricted to parties, except with the leave of the Court”. Clause 7 provides access will normally be granted to non-parties, the media in this application, to:

(a) 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;

(b) documents that record what was said or done in open court;

(c) material that was admitted into evidence; and

(d) information that would have been heard or seen by any person present in open court,

9 Clause 7 of the Practice Note provides that the judge or registrar dealing with the application for leave may refuse access to documents falling into any of these categories if the judge or registrar “considers that the material or portions of it should be kept confidential”. Normally access to other material will not be granted if “exceptional circumstances exist”.

10 This discretion has been applied on many occasions. In this case its application to the contents of the file was clearly subject to the matters set out in this judgment and does not require detailed analysis of applicable legal principles. It is sufficient for the Court to record at this point that the principle of open justice guides the Courts in determining whether to grant media access to Court records or exhibits but that open justice is a principle and not a free standing right and there is in fact no common law right for a non-party right to obtain access to a Court document filed in proceedings and held as part of the Court record: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512. The policy that guides the Courts is the demand that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself: John Fairfax Publications Pty Limited v Ryde Local Court per Spigelman CJ at [29]-[31].

11 The principle is that it is fundamental to our society and method of government that except in extraordinary circumstances the courts in the land are open to public: this principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the Court abusing their considerable powers: R v Davis (1995) 57 FCR 512 at 514.

The File and Access

12 The contents of the Court file fall into three categories. First there are orders made either by consent or after a contest between the parties. Second, there is a summons and an amended summons and a judgment of Palmer J. Finally there are several affidavits on the file. Each of these requires separate consideration under the Practice Note. I will deal with each in turn.

13 First, the orders and their annexures are conveniently recorded in an electronic form of Record of Proceedings (ROP). The ROP records every order that was made by the Court on every occasion that the matter has been before the Court. All of the orders made in the ROP appear to have been made in open court by various judicial officers of this Court. There is nothing in my reading of the ROP that indicates that any of these orders or any part of these orders was made the subject of an order for confidentiality or that any order for restricted publication was granted. That material appears to be a record of what happened in open court and access to it should be granted. There is the chance that operating unaided by the submissions of the legal representatives of the parties that I have overlooked some aspect of the ROP. For that purpose I will provide it to the solicitors for the parties to check my reading of it. Unless they indicate that there is an error in my analysis or they wish to advance some basis for non-disclosure that I do not presently foresee, all this material will be disclosed.

14 The second category of documents on the file are the Summons and the Amended Summons and the judgment of Palmer J of 23 September 2005. There are no other pleadings on file and the ROP seems to indicate that no pleadings were ever ordered. Here paragraph 7(a) of the Practice Note comes into play. It appears from the ROP that on 17 July 2009 orders were made that finally disposed of these proceedings. The entry for that date commences with the words “FINAL DISPOSAL: Settled FINAL ORDER”. The orders recorded on that day appear to be consistent with the final disposal of the proceedings, although liberty to apply was granted. The agreement annexed to the Short Minutes of Order filed that day includes a term that “the parties shall cause orders or a notice of discontinuance to be filed in these proceedings with no orders as to costs within 7 business days”. Execution of this part of the consent orders would have required the co-operation or consent of the plaintiff. The Court file does not show that any Notice of Discontinuance was filed after that date. The Court file then records “Matter Removed from Active Matters List FILE CLOSED”. The next entry is dated 18 September 2009 and relates to a response to a request by Mr Hayes on behalf of the first and second defendants to have the matter re-listed.

15 In substance it appears that the proceedings “have been concluded” within subparagraph (a) of the Practice Note. Accordingly, unless the parties who undoubtedly have copies of the Summons and the Amended Summons demonstrate good grounds why access should not be granted to these second class of documents then the Court will also make them available to the applicants.

16 The third category of documents in the file are the affidavits. There are only a few of them. I will list them for convenience in chronological order:

(a) [The proponent] of 1 February 2005;

(b) David Rahme of 1 February 2005;

(c) David Anthony Hayes of 1 March 2005;

(d) D2 of 26 May 2005;

(e) D1 of 26 May 2005;

(f) Hamish Williamson of 17 June 2005;

(g) [The proponent] of 17 June 2005;

(h) D2 of 23 June 2005.

17 There were no affidavits filed after these affidavits.

18 The problem with the affidavit material is that it is difficult to work out from the ROP and the file which of them was read before the Court. Various of them (but not all of them) are recorded as being filed but there is no note on the ROP about which of them was read. Thus I have an insufficient basis at present to make any determination about the relevant application of clause 7 by determining whether this affidavit material was read in open court. All that can be said is that it appears to be highly likely that the two affidavits of 1 February 2005 were read on the ex parte application on that date before Hamilton J so that his Honour had some evidentiary basis to make the orders that he did on that hearing. It is also probable but not fully clear that the remaining affidavit material, (c) to (h), was read before Palmer J on 23 September 2005. When his judgment is examined it can be seen that it is likely that his Honour would have had some such evidentiary material before him on that occasion.

19 There has not yet been time to order and obtain the transcript of the occasions that this matter has been before the Court. It can be done but there are occasions before the Court for that to be a convenient course in the short term.

20 Accordingly I propose to direct the parties each to supply to the Court a statement of the affidavits that they say have been read in the proceedings. Once that list is supplied, it appears to me that those affidavits may fall within the paragraphs (b) or (d) of the Practice Note and if so access should be granted to them. The parties should have those affidavits. I will hear submissions from the parties as to whether access should not be granted to any part of the affidavits read in Court.

Orders

21 Thus I direct that the parties indicate to the Court by 2.00pm tomorrow whether access:

(a) to the orders of the Court,

(b) to the Summons, Amended Summons and Judgment of Palmer J, and

(c) to the affidavits on file listed in this judgment,

in this matter by the applicants is contested and if so on what basis.

22 Subject to any submissions to be put this afternoon I will adjourn this application to 2.00pm tomorrow, Thursday 29 October 2009.

**********