Spencer v McKay (No 2) (Ruling)

[2023] VCC 2269

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

DEFAMATION LIST

Case No. CI-21-05224

RENEE ANNETTE SPENCER	Plaintiff
v
DAVID McKAY	Defendant

---

JUDGE:	HER HONOUR JUDGE CLAYTON
WHEREHELD:	Melbourne
DATEOFHEARING:	4-8, 11 to 13 and 18 to 21 September 2023
DATEOFRULING:	18 December 2023
CASEMAYBECITEDAS:	Spencer v McKay (No 2) (Ruling)
MEDIUMNEUTRALCITATION:	[2023] VCC 2269

RULING

---

Subject:  DEFAMATION – MEDIA REQUEST

Catchwords:               Media request – public interest in tendered documents – public interest in open justice

Ruling:  Media to have access to transcript of trial and tendered documents.

---

APPEARANCES:	Counsel	Solicitors
ForthePlaintiff	Mr A Anderson	Sanicki Lawyers
FortheDefendant	The defendant appeared in person

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HER HONOUR:

1This is an application by Dr Harry Blutstein, an honorary fellow in the Department of Education at the University of Melbourne and by Mr Luke Mortimer, a journalist at the Seven Network (“Channel 7”), for access to documents tendered in the trial of this proceeding.

2Dr Blutstein submitted that there was public interest in the disruption of family relationships as a result of involvement in religious groups.1 He said allegations of coercive control and persecution of a religious group had been made during the proceedings and these were matters of public interest. His personal interest is as a writer of books that seek to bridge the divide between the academic and the popular. He is currently undertaking a project in connection with this matter and has had preliminary discussions with both parties. He submitted his project would be assisted by access to the tendered documents.

3Mr Mortimer said his news organisation was interested in producing a documentary-length story that would involve the parties in the proceeding. He said the trial raised matters of considerable public interest and it would be difficult to properly unpack the issues without access to tendered documents. He said that, although he had been present in court for the duration of the trial and had taken notes, access to the documents would ensure accuracy and thoroughness in reporting about the case.

4The plaintiff opposed the release of tendered documents. She consented to the media having access to the transcript of proceedings, but noted that this was not a case in which affidavit material was tendered but not read out in court, or where documents were shown to witnesses but could not be seen by members of the public present in court. Documents tendered were, in general, made available on screens for viewing and in many instances relevant parts of those documents were

1. Transcript (“T”) 1084, Lines (“L”) 10-16

read out in open court. She did not oppose the release of individual documents that were clearly relevant to the reporting or were relied upon in any reporting.

5The defendant had no objection to any tendered documents being released.2

6Principles of open justice mean that, in the absence of an order to the contrary, civil trials are open to everybody, including the media, and the media can report on what is seen, heard and said during the proceeding, provided the report is fair.

7There is nothing to prevent a journalist taking a careful note of a document that is shown on screen, for the purpose of making a report, provided there is no contrary order in place. Typically court documents such as pleadings are available to members of the public. When affidavits are sworn they may, at the discretion of the judge, be made available to members of the public and media, usually after they have been tendered in open court.

8There is no consistent practice, as far as I am aware, in relation to the provision to the media of documents tendered in civil cases in the County Court. Where an application is made the judge must consider the particular circumstances of the case in determining whether it is appropriate to grant the application.

9I accept that there is public interest in the issue of coercive control, however whether or not coercive control was deployed by the defendant was not one of the issues I had to decide. It is not apparent to me that anything said about coercive control in the context of this case would further public understanding or discussion about that issue.

10Various other allegations were made during this trial. Those allegations provided some background to the events that resulted in the publication of the video, but form no part of the questions I had to determine.

1. T1087, L10-11

11Other allegations, such as of religious persecution, were more central to the question of contextual truth and I accept that there is, or may be, public interest in this question.

12However, the public interest that is most persuasive as a basis for granting the application is the public interest in open and transparent court proceedings and accurate and thorough reporting on court proceedings.

13On occasion, the public interest in open justice and accuracy in reporting may be displaced by other interests, such as the protection and safety of witnesses.

14There is nothing in this case that persuades me that other interests ought to displace the public interest in open justice.

15Open justice includes the fair and accurate reporting of the case. I accept Mr Mortimer’s submission that, despite the best efforts of a diligent journalist, reporting from notes taken about a document during a hearing are likely to be less accurate than reporting when the document itself can be accessed.

16I am persuaded by Mr Blutstein the accuracy and thoroughness of his reporting will likely be enhanced by access to the documents tendered in evidence.

17At the hearing of the application, I raised a logistical concern from the Court’s point of view. The Joint Court Book (“Court Book”) is 2,488 pages. Only a small fraction of those documents were tendered. In addition, a number of documents not in the Court Book were tendered.

18Many of the documents comprise lengthy text-message and email exchanges. In some instances, only part of a lengthier document was tendered.

19The Court Book was provided to the Court in electronic form. Extracting the document tendered or a tendered part of a larger document from the Court Book

is a time-consuming administrative task. I am not persuaded that it is an appropriate use of court resources to delegate this task to a court officer.

20Further, many of the tendered documents may be irrelevant or peripheral to the reporting that Mr Mortimer and Dr Blutstein undertake.

21I am informed that our Court Registry can facilitate Mr Mortimer and Dr Blutstein, or their delegates, to attend to review the Court Book and identify the documents they seek to copy. For this purpose, they can be provided with a list of the tendered documents, to ensure that only those documents tendered in court are obtained.

22I will hear the parties on whether they have any objection to this course.

23In relation to the provision of transcript, the Court will make an order that Dr Blutstein and Channel 7 can have access to the transcript of the trial. How that access is provided is a matter for them to determine with the plaintiff and/or the transcript provider.

---