The Hancock Family Memorial Foundation Ltd v Fieldhouse [No 4]

[2012] WASC 176

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD -v- FIELDHOUSE [No 4] [2012] WASC 176

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   29 MAY 2012

FILE NO/S:   CIV 1802 of 1995

BETWEEN:   THE HANCOCK FAMILY MEMORIAL FOUNDATION LTD

Plaintiff

AND

CARNEGIE RICHMOND HALLETT FIELDHOUSE
First Defendant

DR LOWE AS REPRESENTATIVE ON BEHALF OF THE UNDERWRITING MEMBERS OF LLOYD'S SYNDICATE 657
R J WALLACE AS REPRESENTATIVE ON BEHALF OF THE UNDERWRITING MEMBERS OF LLOYD'S SYNDICATE 683
A M SHARPE AS REPRESENTATIVE ON BEHALF OF THE UNDERWRITING MEMBERS OF LLOYD'S SYNDICATE 839
J H BENTON AS REPRESENTATIVE ON BEHALF OF THE UNDERWRITING MEMBERS OF LLOYD'S SYNDICATE 376
R J KILN AS REPRESENTATIVE ON BEHALF OF THE UNDERWRITING MEMBERS OF LLOYD'S SYNDICATE 510
Second Defendants
 

Catchwords:

Practice and procedure - Application by non-party to inspect documents - Relevant principles - Turn on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 11

Result:

Application allowed

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

First Defendant             :     No appearance

Second Defendants       :     No appearance

Applicant:     Ms L Knowles

Solicitors:

Plaintiff:     Middletons

First Defendant             :     No appearance

Second Defendants       :     DLA Piper Australia

Applicant:     L Knowles

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

ABC Ltd v Y [2010] EWHC 3176 (Ch); [2012] 1 WLR 532

Chan U Seek v Alvis Vehicles Ltd (Guardian Newspapers Ltd Intervening) [2004] EWHC 3092 (Ch); [2005] 1 WLR 2965

Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651

P v Australian Crime Commission [2008] FCA 1336; (2008) 250 ALR 66

1. LE MIERE J: Ms Lorna Knowles has applied under O 67 r 11(1) of the Rules of the Supreme Court 1971 (WA) (RSC) for leave to inspect and copy certain documents in these proceedings to which she is not a party. Ms Knowles is a researcher on the ABC current affairs programme Four Corners. She seeks access to the documents in relation to a programme Four Corners is putting together on Gina Rinehart and the Hancock Group of companies. I will briefly outline the action in this court.

This action

1. Prior to his death in 1992, Mr Lang Hancock controlled a group of companies which included the plaintiff (Foundation) and Hancock Prospecting Pty Ltd (Prospecting).  Mr Hancock held a share, called the Life Governors Share No 1, in Prospecting.  That share gave him effective control of Prospecting and its board.  Shortly before his death, Mr Hancock sold to Foundation his Life Governors Share in Prospecting for $20 million.  Foundation alleges that the price it paid for the share was far in excess of its actual worth.

2. Mr Fieldhouse was a solicitor who had been employed by and worked for the late Mr Hancock and his group of companies since about 1972.  On 21 August 1995 Foundation commenced proceedings against Mr Fieldhouse alleging that he was in a position of conflict in acting as a solicitor for both Mr Hancock and Foundation in connection with the sale of the Life Governors Share to Foundation.  In the action, Foundation asserts that Mr Fieldhouse breached fiduciary and common law duties he owed to it, and acted negligently in advising it.

3. Mr Fieldhouse died in November 2007. I subsequently ordered that Syndicate 657 D R Lowe and other Lloyd's Syndicates be joined as defendants. Foundation says that the Lloyd's syndicates are parties to a contract of liability insurance that provides insurance cover in respect of Mr Fieldhouse's liability to Foundation and if Foundation can prove that Mr Fieldhouse is liable in damages to it then it may recover from the Lloyd's syndicates an amount equal to their liability under the contract, or contracts, in respect of Mr Fieldhouse's liability in damages to Foundation by reason of s 51 of the Insurance Contracts Act 1984 (Cth).

4. The action was tried over several days concluding on 9 May 2012.  I have reserved my decision.

Power to grant access

1. Ms Knowles seeks access to the statement of claim and defence filed in this matter. This court has made rules to facilitate the making of documents filed in the registry available. Order 67 r 11(1) of the RSC states:

   Any person shall, on payment of the prescribed fee, be 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

   …

   (d)with the leave of the Court or a Registrar, any other document.

2. Ms Knowles is entitled, on payment of the prescribed fee, to inspect and take a copy of the writ and the statement of claim indorsed thereon.  The statement of claim was not indorsed on the writ and in any event the original statement of claim has subsequently been amended.  Ms Knowles may only inspect the current statement of claim and the defence with leave of the court.

Principles relating to access

1. As a general rule, in furtherance of the principle of open justice, the court will grant non‑parties access to material that has been admitted into evidence or referred to, or considered by, the judge in the course of a hearing to which the public are admitted.  The principle of open justice does not require that all documents on the court file should be open to inspection by any person.  The principle of open justice applies to the judicial process not to the court file:  P v Australian Crime Commission [2008] FCA 1336; (2008) 250 ALR 66 [19] ‑ [20] (Emmett J) approved by the High Court in Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 [40].

Ms Knowles' submissions

1. Ms Knowles submits that the release of the statement of claim in defence, outlining the claim and defence, is necessary to allow for a proper understanding of the issues involved in the trial. Ms Knowles further submits, at least in relation to the statement of claim, O 67 r 11(1)(a) is an indication that it is intended to provide such documents as a matter of course but a technicality, being that the writ was not indorsed with the claim, was the factor which prevented the document from already being made available. It is not a mere technicality that a statement of claim not indorsed on the writ can only be inspected with leave of the court. Order 6 r 3 provides that a statement of claim may not be indorsed on the writ in actions which include a claim based on an allegation of fraud or a claim in respect of defamation. The purpose of this rule is to protect unproven allegations of certain conduct from general publication. However, those considerations do not arise in this case. Ms Knowles submits that there will be no prejudice to the parties if access to the documents is provided.

Plaintiff's response

1. The plaintiff opposes the granting of leave to Ms Knowles to inspect and take a copy of the statement of claim and defence.  Foundation gives five reasons for its opposition.  The reasons are as follows.

2. First, the hearing of the matter has concluded and the decision has been reserved.  Foundation submits that any grant of leave, subsequent inspection of documents and any report based on that inspection may give rise to a public and prejudicial discussion of the merits of the case.  I do not accept that submission.  The matter is before a judge sitting without a jury.  The trial has concluded.  There is no risk of the court or witnesses being affected by any public discussion of the case.

3. Second, Foundation submits that the proposed purpose or use for which inspection and copying is requested is a relevant consideration in the exercise of the discretion under O 67 r 11(1)(d). The reason stated by Ms Knowles for the request is that Four Corners proposes to make a television programme about the mining magnate, Gina Rinehart. Foundation submits that this action has nothing to do with Ms Rinehart and her activities as a mining magnate. The proceedings relate to allegations of negligence and breach of retainer by the former solicitor to the late Mr Hancock in relation to a transaction entered into by Foundation. Foundation submits that the request does not contain sufficient substance or provide cogent reasons to support the application being made.

4. I do not accept that submission.  Investigative journalism is a proper purpose for inspecting documents that have been referred to in open court or considered as part of the judicial process.  That is so whether the purpose is to report upon the particular proceedings or to obtain information relevant to the subject matter of the investigative journalism:  Chan U Seek v Alvis Vehicles Ltd (Guardian Newspapers Ltd Intervening) [2004] EWHC 3092 (Ch); [2005] 1 WLR 2965, (Park J) [36] ‑ [42]; ABC Ltd v Y [2010] EWHC 3176 (Ch); [2012] 1 WLR 532 (Lewison J) [26].

5. Third, Foundation submits that to allow access by Ms Knowles to a statement of claim and defence would not facilitate the principles of open justice and due administration of justice as the purpose of the request is not to assist the media to obtain a full and fair understanding so that informed reporting about the proceedings can occur.  I do not accept that this is a sufficient reason for refusing leave.  As I have said, investigative journalism is a proper purpose for access to documents that have been referred to in open court or considered as part of the judicial process.

6. Fourth, Foundation submits that Ms Knowles says that she is seeking access to the statement of claim and defence in the interests of accuracy but it is unclear in respect of what she hopes to achieve accuracy.  Foundation submits that in so far as the proposed programme concerns Mrs Rinehart, there is no issue of accuracy ‑ the subject matter of these proceedings has nothing to do with Mrs Rinehart. As I have said, investigative journalism is a proper purpose for obtaining access and it is not necessary that the media organisation should be seeking access for the purpose of accurately reporting the trial of the action.

7. Fifth, Foundation submits that the principle of open justice does not require that all documents on the court file should be open to inspection to any person.  That is correct.  However, the statement of claim and defence were referred to in the course of the trial and must be considered by the court as part of the judicial process.

Access in this case

1. Ms Knowles relies on the principle of open justice.  Although the principle of open justice is primarily concerned with what happens in court and the ability of the public and especially the press to observe what happens contemporaneously rather than investigations into trials that have concluded, or the subject matter of those trials, nevertheless, the principle applies to proceedings in court that have concluded.  In Chan U Seek v Alvis Vehicles Ltd (Guardian Newspapers Ltd Intervening) Park J allowed an application by a newspaper for copies of certain pleadings and witness statements that had been placed before the court at a hearing in public, even though the application was made after the case had settled.  The general principle that the judge applied was that 'the courts favour disclosure rather than the withholding of materials if the materials have featured in proceedings in open court'.  In deciding what counted as materials featuring in proceedings in open court Park J said:

   The reference to documents which have been read in open court must, in my view, be regarded as covering the pleadings, and also witness statements which were confirmed in general terms by their makers and which stood as evidence‑in‑chief [32].

2. The statement of claim and defence were before the judge at the trial.  They were referred to by counsel.  The statement of claim and defence are to be considered by the judge as part of the judicial process.  Therefore, the principle of open justice has been engaged.  Foundation has not advanced any sufficient reason for denying Ms Knowles access to the statement of claim and defence.  The relevant statement of claim and defence are the further amended statement of claim amended pursuant to the order made 1 May 2012, and filed 25 May 2012, and the minute of second defendants' further amended defence dated 24 April 2012 and ordered on 1 May 2012 to stand as the amended defence.  I will give Ms Knowles access to inspect and copy those documents.