Titelius v Public Service Appeal Board
[1999] WASCA 19
•19 MAY 1999
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: TITELIUS -v- PUBLIC SERVICE APPEAL BOARD & ORS [1999] WASCA 19
CORAM: MALCOLM CJ
IPP J
WALLWORK J
HEARD: 21 SEPTEMBER 1998 & 4 MARCH 1999
DELIVERED : 19 MAY 1999
FILE NO/S: CIV 1336 of 1998
MATTER :An application for a Writ of Certiorari and related relief
EX PARTERICHARD TITELIUS
ApplicantAND
PUBLIC SERVICE APPEAL BOARD
First RespondentTHE DIRECTOR GENERAL OF THE MINISTRY OF JUSTICE
Second RespondentTHE ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener
Catchwords:
Prerogative writs - Certiorari and Mandamus - Public Service Appeal Board - Finding that applicant guilty of a serious breach of discipline by being negligent or careless - Provision of a copy of a restraining order - Restraining order a public document - Recipient of restraining order entitled to inspect and make a copy of it - Jurisdictional error
Legislation:
Justices Act 1902 s65, s148, s172, s174, s175, s176, s178(1), s233
Judiciary Act 1903 s78, s78B
Public Sector Management Act 1994 s78, s80, s81, s82, s83, s86
Rules of the Supreme Court 1971 O67 r11
Result:
Orders nisi for writs of Certiorari and Mandamus made absolute
Representation:
Counsel:
Applicant: Dr J T Schoombee
First Respondent : No appearance
Second Respondent : Mr R E Cock QC, Mr G T W Tannin & Mr J A Thompson
Intervener: Mr R E Cock QC, Mr G T W Tannin & Mr J A Thompson
Solicitors:
Applicant: Ilbery Barblett
First Respondent : No appearance
Second Respondent : State Crown Solicitor
Intervener: State Crown Solicitor
Case(s) referred to in judgment(s):
Arnold v Bishop of Bath and Wells (1829) 5 Bing 316
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1958] 1 KB 223
Blyth v Birmingham Waterworks Co (1856) 11 Ex 784
Brown v Members of the Classification Review Board (1998) 154 ALR 67
Browne v Cumming (1829) 10 B&C 170; 109 ER 377
Craig v South Australia (1995) 184 CLR 163
Davenport v Townsend (1867) 15 LT 528
David Syme & Co Ltd v General Motors – Holdens Ltd (1984) 2 NSWLR 294
Dobson v Hastings [1992] Ch 394
Ex parte Minister for Corrective Services (1993) 9 WAR 534
Ex parte The Commissioner of Police; Re Deborah Bennett-Borlase SM, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Gaggin v Moss [1983] 2 Qd R 486
Gaskell & Chambers Ltd v Hutson Dodsworth & Co [1936] 2 KB 595
Gates v Gaggin (1983) 51 ALR 721
Gobbart v West Australian Newspapers Ltd [1968] WAR 113
Grimwade (1990) 51 A Crim R 470
Hamersley Iron Pty Ltd v Lovell, unreported; SCt of WA; Library No 980273; 22 May 1998
Ioannou v Dmetriou [1952] AC 84
Irish Society v Bishop of Derry (1846) 2 Cl&F 641
John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales Wales (1992) 26 NSWLR 131
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v State of Victoria (1997) 189 CLR 579
Lilley v Pettit [1946] KB 401
Little v Law Institute of Victoria (No 3) [1900] VR 257
Lynch v Clerke (1697) 3 Salk 154
Mortimer v M'Callan (1840) 6 M&W 58
Nixon v Warner Communications Inc 435 US 589 (1978)
Nowack v Fuller 219 SW 749 (1928)
R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289
R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd, unreported; SCt of Tas; M112 and 144/1998; 19 November 1998
R v Halpin [1975] QB 907
Re Bromfield Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Russell v Russell (1976) 134 CLR 495
Sayer v Glossop (1848) 2 Exch 409
Searles v Scarlett [1892] 2 QB 56
Smith v Harris [1996] 2 VR 335
Sturla v Freccia (1880) 5 App Cas 623
Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104
Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1
Case(s) also cited:
Re A Former Officer of ASIO [1987] VR 875
Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153
Bromley London Borough Council v The Greater London Council [1983] 1 AC 768
Campbell v New York Evening Post 157 North Eastern Reporter 153 (1927) (NY Court of Appeals)
Harman v Secretary of State for the Home Department [1982] 2 WLR 338
Kimber v The Press Association Ltd [1893] 1 QB 65
Klopper v Hogg [1961] WAR 92
Knight v Summers, unreported, SCt of WA; Library No 920152; 25 March 1992
Prasad v Minister for Immigration (1986) 65 ALR 549
"TK" v Australian Red Cross Society [1989] 1 WAR 335
Webb v Allen, unreported; SCt of WA; Library No 7335; 31 October 1988
MALCOLM CJ:
Introduction
This was the return of an order nisi dated 8 April 1998 made by Murray J by para 3 of which it was ordered that the Public Service Appeal Board ("the first respondent") and the Director General of the Ministry of Justice ("the second respondent") do show cause before the Full Court why:
"3.1a writ of certiorari should not be issued quashing:
3.1.1the purported decision and related order made by the First Respondent on 9 July 1997 that by giving a copy of a restraining order to Mr Ian Viner QC on 24 March 1995, the Applicant was negligent or careless in the performance of his functions as an employee of the Second Respondent to the extent that his actions constituted a serious breach of discipline for the purposes of section 83(1)(b) of the Public Sector Management Act 1994 (WA);
3.1.2the purported decision and related order made by the First Respondent on the same date that for the breach of discipline found, the Applicant be reprimanded within the meaning of section 86(3)(b)(i) of the said Act;
3.2a writ of mandamus should not be issued against the First Respondent directing it to hear and decide the Applicant's appeal under 78 of the Public Sector Management Act 1994 (WA) according to law
upon the grounds set out in paragraph 5 to 7 below."
Alternatively, the Court was asked by para 4 of the order to declare that the decisions and related orders referred to in para 3 ("the decisions and related orders") be declared null and void.
The grounds for the orders sought in paras 3 and 4 were that the decisions and related orders were each null and void and made in excess of jurisdiction or without jurisdiction for a number of reasons. For the present, it is sufficient to say that it was contended that, first, the decisions and related orders were based upon an error of law in that the first respondent wrongly construed s148 of the Justices Act 1902 (WA) and in particular, the expression "any party interested" therein. Secondly, it was contended that having found that the restraining order the subject of the proceedings before the first respondent was likely to be an issue in a current political debate, there was a failure to address the issue of "the implied requirement of freedom of political discussion" under the Commonwealth Constitution. Thirdly, in the circumstances, the first respondent acted with gross unreasonableness and without jurisdiction in holding that the release of a copy of the document by the applicant to Mr Ian Viner QC amounted to negligence or carelessness in the performance of his functions so that his action constituted a serious breach of discipline for the purposes of s83(1)(b) of the Public Sector Management Act 1994 (WA).
Availability of Certiorari
Certiorari is available for the purpose of judicial review for jurisdictional error on the part of the first respondent. The first respondent is constituted under s80I of the Industrial Relations Act 1979 (WA). Like the Promotions Appeal Board, the first respondent is established "within and part of the WA Industrial Commission". No appeal lies from the first respondent to the Commission under s49(2) of the Act or to the Industrial Appeal Court under s90: cf Ex parte Minister for Corrective Services (1993) 9 WAR 534 at 540 per Malcolm CJ (with whom Kennedy and Rowland JJ agreed).
The scope of review for jurisdictional error was defined in Craig v South Australia (1995) 184 CLR 163 at 179 as follows:
"If such an administrative tribunal falls into error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in certain circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
See also Ex parte The Commissioner of Police; Re Deborah Bennett-Borlase SM, unreported; FCt SCt of WA; Library No 970322; 20 June 1997 per Parker J at 17 (with whom Pidgeon and Ipp JJ agreed). In this context jurisdictional error includes a failure to exercise jurisdiction by failing to address or decide a matter that calls for a decision: Ex parte Minister for Corrective Services, above, at 538, 541 per Malcolm CJ and 542 per Kennedy J.
Relevant Facts
At the time of making the application for the order nisi supported by his affidavit sworn on 30 March 1998, the applicant was a Court Orderly. He had been employed in the Public Service since 1979 and with the Crown Law Department since 1980 and by the second respondent since the creation of that office. At the time the events the subject of these proceedings occurred, the appellant held the position of Senior Court Officer (Records) which included responsibility for actioning requests for certified copies of court records, transcripts of court proceedings, court exhibits and other documents on court files. On 24 March 1995 the applicant was called to the public counter of the Court of Petty Sessions at Perth to deal with a request for a copy of a restraining order from a person whom he recognised to be Mr Ian Viner QC. Mr Viner informed the applicant that he was seeking a copy of a restraining order taken out by Esther Crichton‑Browne against Noel Crichton‑Browne. The matter of access to court records and documents is provided for by s148 of the Justices Act 1902 which provides that:
(1)Where a conviction or order is made, or a complaint is dismissed by justices, any party interested therein is entitled on request —
(a)to receive a copy of —
(i)the complaint;
(ii)the record of proceedings made or caused to be made by the justices;
(iii)any statement of the defendant’s convictions that is tendered in the proceedings; and
(iv)the conviction or order,
from the officer who has custody thereof, subject to payment of an amount calculated in such manner as is prescribed by regulations; and
(b)to view any exhibit in the proceedings that is in the possession of an officer of a court and that is not reasonably capable of being copied, at a time and place appointed by that officer.
(2)In subsection (1) (a) (ii) 'the record of proceedings' means a record of the evidence and proceedings however made whether —
(a)taken personally by the justices;
(b)recorded in any manner by a clerk or typist; or
(c)transcribed from a sound recording,
and includes any record of the reasons for the decision, and a copy of any exhibit that is reasonably capable of being copied.
(3)Nothing in this section shall be read as requiring that in any proceedings —
(a)justices make available any note made for their own purposes and not in discharge of a duty to record; or
(b)a record be made of any address to the court in the proceedings."
It was the fact that on the complaint of Esther Grace Crichton‑Browne made on 13 November 1989, a Stipendiary Magistrate had made a restraining order directed to Noel Ashley Crichton‑Browne on 14 November 1989. The applicant obtained the file and spent some 20 to 30 minutes examining its contents. He then took the file with him to the public counter where he confirmed with Mr Viner that he was requesting a copy of the restraining order. Mr Viner was able to identify the document he was requesting and demonstrated some knowledge of its existence. It was not disputed that Mr Viner made a written application for a copy of the restraining order in the proper way. That application was considered by the applicant in the context of the policy set out in a document entitled Training Bulletin 9 of 1975, a legal opinion from the Senior Assistant Crown Solicitor and s148 of the Justices Act. As has been seen, s148 required that Mr Viner establish that he was a "party interested therein".
The evidence of the applicant was that Mr Viner said:
"... he needed to have a copy of the order to prove that the incident had actually happened and he also said that he needed it because the matter was of some interest because he was a former - immediate past President of the State Liberal Party and he wanted to be able to bring this to people's attention there."
The applicant also gave evidence that Mr Viner:
"... also said that he was entitled to a copy because it was a public record and he was a QC. He had - when he was a practising solicitor he had done many of these restraining orders in the Beaufort Street court and all of that sort of thing. He was telling me exactly what his rights were and they accorded with my - with what I believed were my obligations under the various policies and the legal opinion which I had from the Crown Solicitor's Office in that specifically on 9 of 76 [sic 75] it says:
'A charge sheet, being a judicial record, is a public document and a public document is described as being a document made for the purpose of the public making use of it.' "
Under cross-examination he said:
"The reason why I gave it to him is because - well, is that he needed a copy to prove the incident had happened and it was a matter which he, as the immediate past President of the Liberal Party, needed to have this to sort of show, if you like, the employer."
At pp52-53 he said:
"Well, he said he was an experienced solicitor. He knew what his rights were. He had done many of these restraining orders before. He knew what the Justices Act was. He needed to - and as this was a public record made in an open court he needed to have a copy to physically prove that the incident happened because up until this time Noel Crichton-Browne had denied that the incident had ever happened."
He also said:
"He wanted it as it was a matter that was before - before the Liberal Party, NCB's employer if you like."
Mr Viner gave a statement to the inquiry into the charge against the applicant in which he explained his request as follows:
"There had been some recent publicity in Liberal Party circles about the existence of the order and that I wanted to be in a position to have a copy available if there should be any further discussion about it and, in particular, to establish the existence of the order if there should be any question about whether or not the order had been taken out against the senator. I also believe that I said that the senator's senate pre-selection was about to be held and that questions concerning the existence of the order might arise and therefore I wanted to have a copy of it if it should be necessary to establish that in fact it existed."
The applicant conceded in his evidence that Mr Viner had said "something like that". He also said that he was influenced in his decision by Mr Viner's standing as a QC and the fact that he was a former senior Government Minister. Mr Viner gave evidence in the appeal proceedings consistent with his statement to the inquiry and the first respondent in its reasons for decision accepted that as the explanation acted upon by the applicant in providing him with a copy of the restraining order in question.
As was common cause before the first respondent, the Magistrate who made the restraining order had himself ruled in November 1989, when the order was made, that representatives of the media should be entitled to access to view the court order and a note to this effect was endorsed on the last document in the file by the Bench Clerk on his Worship's instructions. The note was to the following effect:
"If press come in don't show them mag notes, only form 6 and 7. Charge search fee."
The reference to form 6 and 7 is a reference to the form of order of restraint (form 6) and summons to defendant (form 7) under the Justices (Forms) Regulations 1982 made pursuant to the Justices Act.
The effect of this direction was that representatives of the media would be entitled to inspect the form of order and the form of summons which specified details of the complaint and the summons. As a result, representatives of the media would be entitled to copy for themselves the terms of the complaint and the order. The further hearing of the matter was listed in the Court of Petty Sessions at Perth on 5 December 1989 at 9.30am. Apparently it was the listing of the matter which triggered the media interest. In the meantime, the papers had been sent by the court to the police for service. However, the order was revoked on 21 November 1989 as a result of a separate application brought by the original applicant. There is a note on the file, "Rang police and returned service papers to us" and "Because the defendant was never served, order not in effect".
Legislative Provisions
Section 172 of the Justices Act as it stood at the material time made provision for the making of a restraining order. Section 172(1) relevantly provided that:
"Where, upon a complaint made in accordance with subsection (2) of this section justices are satisfied on the balance of probabilities -
(a)that -
(i)the defendant has caused personal injury or damage to property; and
(ii)the defendant is, unless restrained, likely again to cause personal injury or damage to property;
(b)that -
(i)the defendant has threatened to cause personal injury or damage to property; and
(ii)the defendant is, unless restrained, likely to carry out that threat; or
(c)that -
(i)the defendant has behaved in a provocative or offensive manner;
(ii)the behaviour is such as is likely to lead to a breach of the peace; and
(iii)the defendant is, unless restrained, likely again to behave in the same or a similar manner,
the justices may make an order imposing such restraints upon the defendant as are necessary or desirable to prevent him from acting in the apprehended manner."
Each of these provisions was invoked by the relevant complaint.
By s172(2) a complaint may be made by a police officer or the person against whom or against whose property the behaviour that formed the subject matter of the complaint was directed.
Section 172(4) provided that:
"An order under this section may be made in the absence of the defendant and notwithstanding that he was not summoned to appear at the hearing of the complaint, but in that case -
(a)the justices shall summon the defendant to appear at a time and place appointed by the summons before such justices as shall then be there to show cause why the order should not be confirmed;
(b)the order shall not be effective after the conclusion of the hearing to which the defendant is summoned unless -
(i)the defendant does not appear at that hearing in obedience to the summons; or
(ii)the justices having considered the evidence of the complainant and any evidence of the defendant or other person confirm the order."
Section 174(1) provided that:
"A party to proceedings in which an order has been made under section 172 of this Act may at any time apply to justices for variation or revocation of the order and the justices may, after all parties have had an opportunity to be heard on the matter, vary or revoke the order."
Section 176 provides for an order ceasing to have effect, inter alia, on such day as the justices may specify or provide for in the order or in a variation order.
Section 175 of the Act provided that:
"(1)If an order under this Part imposing restraints on a defendant or a variation of such an order is made in the presence of the defendant it comes into force for the purposes of section 173(1) as from the time when it is made, but otherwise such an order or variation comes into force as from the time when a copy of the order or variation is served on him under section 172(6) or 174(2).
(2)A revocation of an order under this Part has effect for the purposes of section 173(1) as from the time when it is made."
It follows that while the order had effect, it did not come into force because it was revoked before it was served. The distinction between the order taking effect as an order, subject to it having no force in the sense of being binding on the defendant, may appear to be a fine one but follows from the terms of the provisions. It took effect as if it contained a condition that the order would not come into force unless and until personally served.
The order when made was made in open court in accordance with s65 of the Justices Act which provides that:
"The room or place in which the justices sit to hear and determine any complaint on which a conviction or order may be made shall be deemed to be an open and public court."
Section 178(1) provides that:
"Where an order -
(a)is made under section 172; or
(b)is varied or revoked under section 174,
the Clerk of Petty Sessions shall cause a copy of the order or of the variation order or a notice of the revocation, as the case may require, to be served personally on the defendant and to be sent to the Commissioner of Police and, where the complainant is not a police officer, the complainant."
Meaning of Any Party Interested
Against this background there is a question whether Mr Viner fell into the category of persons referred to in s148, namely, "any party interested therein". It was common cause that a complaint was a "public document". Counsel for the applicant submitted that the document of which Mr Viner QC obtained a copy had a dual character. It both served as a complaint and also recorded the interim order made in open court on that complaint. It was submitted, first, that Mr Viner was entitled lawfully to obtain a copy of the document either because it was a complaint or because it was an order made in open court on complaint or both. It was contended that Mr Viner had a common law right to obtain a copy of a public document and that both the complaint and the order fell into this category. Secondly, it was submitted that, as a party interested, he was entitled to a copy of both the complaint and the order pursuant to s148(1)(a).
It may be accepted that the status of the order as such was not affected by the provision in s175 of the Act that an order, such as the one in question, made in the absence of the defendant, comes into force for the purposes of s173 (the penal provision), only upon a copy being served on the defendant. As already noted, there is a distinction between the document taking effect as an order and when it comes into force in the sense of binding upon the defendant and rendering him liable to penal sanctions for non‑compliance: see ss172(3), (4), (5), (6) and 174(1). This is confirmed by the procedural steps which follow the pronouncement of the order in open court by the Magistrate annotating the relevant form and signing it. The order is then formally extracted by the bench clerk or other court official preparing typed up versions of Form 6 as a true copy of the Magistrate's order whose name is typed on the form and preparing Form 7, the summons to the defendant, which is signed by the Clerk of Petty Sessions.
In the course of his opening submissions on behalf of the applicant on 21 September 1998 Dr Schoombee submitted that Mr Viner QC qualified as a "party interested therein" under s148 of the Act for two reasons. First, he had a common law right to have access to and obtain a copy of a complaint called on in open court and a court order made in open court, and not subject to any order relevantly limiting access or publication, and because the order was a public document.
Secondly and alternatively, it was submitted that he was a "party interested" because he requested a copy of the order for use in political debate about the suitability of the defendant in the proceedings as a candidate for pre‑selection for election to the Commonwealth Parliament. It was submitted that this involved an exercise of the implied right of freedom of speech under the Commonwealth Constitution. Counsel for the applicant contended that the subject matter of Forms 6 and 7 encompassing the complaint and restraining order lay "at the very centre of the implied constitutional freedom of political speech". In this context reliance was placed upon the judgment of Mason CJ, Toohey and Gaudron JJ in Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 in which their Honours said:
"[C]riticism of the views, performance and capacity of a member of Parliament and of the member's fitness for public office, particularly when an election is in the offing, is at the very centre of the freedom of political discussion ..."
See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570‑2; and Levy v State of Victoria (1997) 189 CLR 579.
Question of Interpretation or Application of Commonwealth Constitution
It was contended that the implied freedom of political speech was relevant to the interpretation of s148 in two ways. First, it was submitted that the section should not be interpreted to exclude the common law right of members of the public to obtain copies of court orders made in open court, as an element of that right to obtain copies is freedom of speech, and freedom of speech in a political context now carries with it a constitutional immunity from infringement by state legislatures. Secondly, and alternatively, the said freedom informs the meaning of "party interested" in s148 so that a person interested in the order for the purposes of exercising the freedom qualifies under the section. On these contentions being raised, it appeared to the Court that these proceedings raised a question of the interpretation of the Commonwealth Constitution or its application for the purposes of s78 of the Judiciary Act 1903. The submission would require the Court first to identify an implied right arising under the Constitution and then construe s148 of the Justices Act in a manner consistent with that right. Consideration of those submissions on behalf of the applicant would necessarily involve a question of the interpretation or application of the Constitution or both. In the result, on 21 September 1998 the proceedings were adjourned to a date to be fixed pending the service of notices under s78B of the Judiciary Act.
Notices under s78B together with a copy of the order nisi herein were duly served by the applicant's solicitors on the Attorneys General of the Commonwealth and each of the States and Territories by faxes sent on 30 October 1998 and by posting on 4 November 1998. The applicant's solicitors received notification from the Attorneys General of the Commonwealth, the States of Victoria, South Australia, Queensland and New South Wales and the Northern Territory that they did not intend to intervene at this stage. Notice was received from the Attorney General for Western Australia of his intention to intervene. The hearing of the return of the order nisi was resumed on 4 March 1999.
Mr Viner's Right to Inspect and Copy
It was common ground before the first respondent that Mr Viner had a right to inspect the restraining order because it was a public document. The first respondent concluded, in effect, that although Mr Viner was entitled to inspect the document and that the applicant had done nothing wrong by showing it to him and letting him read it, he committed a serious breach of duty and was guilty of negligence in providing Mr Viner with a copy of the document. It was accepted by counsel for the first respondent and the Attorney General before this Court that not only was Mr Viner entitled to inspect the document but he was also at liberty to make his own copy of it.
In a Training Bulletin dated August 1995 instructions were given to officers in para 9.6 under the heading "Access to Court Records by the Press and General Public". These instructions included the following:
"A Charge Sheet, being a judicial record, is a 'Public document', and a 'Public document' is described as being 'a document made for the purpose of the public making use of it'.
A question has been raised as to whether members of the Press and general Public should be permitted access to Court Charge Sheets and the files relative thereto.
The particular situation envisaged is where a reporter or other person does not attend the court hearing and subsequently asks to see the records, or when that person wishes to complement his notes or check them against those of the Court.
Regulations under the Justices Act prescribe that a search fee may be paid, but the matter of who may search, and what may be searched is not stated.
Within the provisions of the Supreme Court Rules, the Matrimonial Causes Act and rules thereunder, the policy to be adopted can be found. Generally, those provisions allow that information which is confidential to the parties involved and to the Court, by virtue of privacy or privilege, should not be made available to the Press and the General Public.
A Clerk of Courts has an obligation to ensure that information of a confidential nature is not misused and therefore he must necessarily exercise a discretion. In relation to Charge Sheets specifically, where that document does contain information in addition to that which is ordinarily shown on the face as constituting the record of the Court, the Clerk may properly require that a person asking for access demonstrate his interest and disclose to what use he intends to put that information.
Therefore, where a Charge Sheet contains only particulars of the Charge laid, brief record of the course of the hearing and the eventual result, upon payment of the prescribed search fee the applicant should be permitted access. Where the Press seek access to Charge Sheets immediately after the Court, or within a reasonable time thereafter, no search fee should be charged. This privilege should not extend more than two days after the hearing.
With respect to notes of evidence, notes of argument, observations and rulings by the Court, reasons for decisions and exhibits of documentary or other form which are of a personal and privileged nature, such information ought not to be made available for perusal by persons other than those who prove to the satisfaction of the Clerk or Magistrate, a legitimate interest therein. Such interest would include the interest of an insurance company in the notes of evidence in a traffic case involving a vehicle insured by that company.
Particular care should be taken where the public had been excluded from the Court during the hearing."
The term "charge sheet" is defined in s233 as follows:
" 'Charge sheet' means book or document containing, in relation to a complaint, an official record of -
(a)the name of the defendant;
(b)the particulars of the offence with which the defendant was charged; and
(c)the determination of the complaint,
whether or not that book or document also contains any other matter relating to the complaint ..."
The combination of Forms 6 and 7 were incorporated in the "charge sheet" in this case which was adapted for the purposes of applications for restraining orders under Part VII of the Justices Act although the complaint was not of a particular offence. The forms recorded both the complaint and the order made in respect of the complaint. While it was common cause that the document was a "public document", it is necessary to say something about that subject and the consequences which flow from the characterisation of a document as a "public document".
The question whether a document is a public document as distinct from a private document is one that has been considered in the context of the law of evidence. At common law, a document admissible in evidence as a public document could be proved by the production of a properly authenticated copy: Lynch v Clerke (1697) 3 Salk 154; Mortimer v M'Callan (1840) 6 M&W 58; Sayer v Glossop (1848) 2 Exch 409 at 441. Originally, proof of the contents of a public or judicial record was by production of an "exemplification", namely, a copy under the Great Seal or the seal of the court where the record was kept. This procedure is no longer known. A judicial record, such as a judgment or order, is now proved by the production of an office copy or a certified copy. An office copy is a copy of a document in the custody of a court made and authenticated by an officer of the court who has the authority to supply a copy: Davenport v Townsend (1867) 15 LT 528. While the rules relating to the admissibility of office copies originally applied to superior courts only, they have in practice been applied to the records of courts of petty sessions.
Section 233 of the Justices Act defines "court record" as the:
"... official record of any proceedings in any court of petty sessions and includes any document ... in the custody of the court in relation to the proceedings ..."
The term "official record" is defined in s233 as including:
"any document ... made or received by a court of petty sessions or person acting judicially under this Act ..."
This would include a record of a complaint or an order of the court such as the restraining order in this case. Forms 6 and 7 recorded both details of the complaint and the interim order made on the complaint, as well as the summons to the defendant. In my opinion, each of the complaint and the order constituted an official record of the court and a public document inasmuch as the complaint had been dealt with by the Magistrate and the making of the restraining order in open court.
In Sturla v Freccia (1880) 5 App Cas 623, Lord Blackburn, after referring to the judgment of Parke B in Irish Society v Bishop of Derry (1846) 2 Cl&F 641 at 643, said:
"Now, my Lords, taking that decision the principle upon which it goes is, that it should be a public enquiry, a public document, and made by a public officer. I do not think that 'public' there is to be taken in the sense of meaning the whole world ... but it must be a public document, and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it."
After referring to Arnold v Bishop of Bath and Wells (1829) 5 Bing 316, Lord Blackburn said at 646:
"The Bishop made his visitation, and recorded it with the wish and intent that it should be kept publicly as a register, to be seen by everybody in his diocese. If the Bishop had not the right to make such an enquiry, so as to make it evidence in future, that is another affair; but if he had, then he was a public officer performing what he thought was a public duty, with the view and intent that it should be public."
Section 65(1) of the Justices Act provides that:
"Unless expressly provided otherwise, the court-room or place of hearing where justices sit to hear and determine any complaint is an open and public court to which all persons may have access so far as practicable."
Powers to exclude persons or any class of persons during a proceeding or to prohibit publication of proceedings are contained in s65(2). In Lilley v Pettit [1946] KB 401 at 406, Goddard LCJ made it clear that these principles were applicable to documents of record in the courts. The various passages to which I have referred were approved by the Privy Council in Ioannou v Dmetriou [1952] AC 84 at 92‑93 per Lord Tucker who said at 94 that Lord Blackburn's definition had been generally accepted for over 70 years and "their Lordships can see no reason for attempting to qualify it in any respect". In R v Halpin [1975] QB 907 at 913 Lane LJ appears to have accepted that four conditions must be satisfied before a document could be admitted as or as forming part of a public record, namely:
"First, the document must be brought into existence and preserved for public use on a public matter. Secondly, it must be open to public inspection. Thirdly, the entry must be made promptly after the events which it purports to record. Fourthly, the entry must be made by a person having a duty to enquire and satisfy himself as to the truth of the recorded facts."
In my opinion, insofar as Forms 6 and 7 incorporate details of the complaint and the restraining order and comprise part of the records of the court relating to proceedings in open court, the document, which I refer to as the restraining order, was brought into existence and preserved for public use on a public matter. It is conceded that it was open to public inspection. It is clear that the documents were made promptly after the events which it purported to record, namely, on the day the order was made. The fourth condition refers to an "entry", but that simply refers to the contents of the relevant document which records an order made by a Magistrate on a complaint recorded in the charge sheet by an officer who was responsible for accurately recording the terms of the order in a document a copy of which was to be served on the defendant: cf Gaggin v Moss [1983] 2 Qd R 486 at 495 per McPherson J; and (on appeal) Gates v Gaggin (1983) 51 ALR 721 at 729 per Connolly J.
In the present case, Forms 6 and 7 recorded both the details of the complaint and the interim order made on the complaint as well as the summons to the defendant. In my opinion, each of the complaint and the order constituted an official record of the court and a public document inasmuch as the complaint had been dealt with by the Magistrate making the restraining order in open court.
It is clear from the written instructions, legal opinions and the actual practice at the Court of Petty Sessions that persons in the position of Mr Titelius were instructed that they had a discretion to allow access to documents which fell within the class of public documents, but that only a party "interested therein" was entitled to receive "copies of the complaint and depositions, and of the conviction or order" concerned on payment of the amount prescribed.
In 1992 a question arose regarding an apparent conflict between the definition of "party interested" in s148 of the Justices Act and the rights of the media or members of the public to access to and inspection of court records, as opposed to obtaining copies as specified in s148.
In a legal opinion dated 12 February 1993 provided to the Director of Court Services at the request of the Executive Officer, Magistrates Courts, advice was provided that:
"The words 'any party interested therein' do limit the class of persons to whom there is an obligation to make copies of material available. The word 'party' has different meanings according to its context: it may, at its widest, simply mean person. In other circumstances, it means a party to proceedings, in the sense of a person before the court entitled to be heard and bound by the decision of the court. In the context of section 148, the reference to a party interested therein appears to be to this second, more limited class of people. The word 'therein' must be a reference to the conviction or order made or the dismissal of the complaint: ie - the entitlement to copies is limited to those persons who have an interest in the conviction or order or the dismissal. An interest in the order of the court is more limited than simply being interested in the proceedings, in the sense of being curious or having some emotional or other interest. The class of persons 'interested therein' would not be limited to the Complainant and Defendant. Persons in whose favour an order for compensation has or could have been made are interested in the proceedings. For example, in the Desmond Smith case I advised that the juvenile Detheridge was a person interested, as a person in whose favour a compensation order could be made. The effect of this is that the definition in Criminal Practice Rules, Order 10 Rule 6, is a useful guide to the class of persons entitled to copies under section 148, although it does not directly apply."
This opinion was specifically drawn to the attention of the applicant in March 1993.
Order X rule 6 of the Criminal Practice Rules, which was deleted by amendment on 17 December 1976, provided that:
"For the purposes of Rules 4 and 5, 'a party interested' shall mean the prosecutor, or the person convicted, or any other person named in, or immediately affected by, any order made by the Judge of the Court of Trial, or other person authorised to act on behalf of a party interested, as herein defined."
This rule related to obtaining a copy of the shorthand note or transcript of a trial for the purposes of an appeal.
No Prohibition on Applicant Providing a Copy of the Order
Paragraph 9.6 of the Training Bulletin stated that the policy "to be adopted" in relation to access to and searching of court charge sheets and the files relating thereto can be found in "the Supreme Court Rules". Order 67 r11(1) of the Rules of the Supreme Court 1971 provides that "any person" may inspect and copy any writ (and endorsed statement of claim) and any order of the Court. Like an order a writ is a public document: "TK" v Australian Red Cross Society [1989] 1 WAR 335 at 336 per Malcolm CJ. As has been seen, the first respondent accepted that in this case the Forms 6 and 7 which recited the complaint, the terms of the order and the summons to the defendant were public documents and Mr Viner was entitled to inspect them and to make a copy of them. Section 148 limits the class of persons to whom there is an obligation to supply a copy of a document. It does not contain or imply a prohibition on the provision of a copy to any other person.
The Training Bulletin states that:
"A Clerk of Courts has an obligation to ensure that information of a confidential nature is not misused and he must necessarily exercise a discretion."
It also states that where a charge sheet disclosed more information than normally the Clerk may properly require a person to demonstrate his interest and disclose the use to which the information would be put. This was not such a case. There was no confidential information. Forms 6 and 7 contained only the formal record of the complaint, the restraining order and the summons to the defendant on the complaint.
The departmental instructions and various memoranda and comments contained no prohibition against the applicant handing over a copy of the order after consideration of a specific request. The instructions referred to "information confidential to the parties involved and the court". They did not place any unequivocal obligation on the applicant or any other officer to refer all or any particular requests for a copy of a document to a superior officer.
Disciplinary Proceedings Against the Applicant
Following the incident on 24 March 1995 when the applicant gave a copy of the restraining order to Mr Viner, the applicant received a letter from the Director General informing him that he was suspected of committing a breach of discipline pursuant to s81(1) of the Public Sector Management Act 1994 (WA) ("the PSMA"). By letter dated 11 April 1995 the Director General informed the applicant that an investigation into the alleged breach of discipline would commence pursuant to s81(2) of the PSMA. Following the investigation, the applicant was charged on 26 May 1995 with being negligent in the performance of his functions contrary to s80(d) of the PSMA, suspended without pay pursuant to s82(3) and informed that the holding of a disciplinary inquiry pursuant to s86(4) would be deferred until the outcome of a police inquiry. At that time solicitors for the applicant denied the charge and sought restoration of pay on the basis that suspension without pay was unlawful.
Subsequently, the Director General determined to restore the applicant's pay in full until the disciplinary proceedings had been completed. On the same day the matter was referred by the Director General to the Police Department. On 14 June 1995 the Police Department advised that no action would be taken against the applicant. As a result of further information received by the Director General he again referred the matter to the Police Department. On 21 September 1995 police advised that as a result of the investigation it was not intended to pursue the matter further.
On 27 September 1995 the Director General initiated arrangements for the holding of a disciplinary inquiry. Dr Michael Wood was subsequently appointed to conduct the inquiry, which was held between 13 and 24 November 1995. Dr Wood found that the applicant was guilty of a serious breach of discipline in that on 24 March 1995 he was negligent in the performance of his functions. He recommended that the applicant be transferred to another public sector body and that his monetary remuneration be reduced from Level 2, 5th Year to Level 2, 3rd Year. This recommendation was adopted by the Ministry of Justice.
The applicant then appealed to the first respondent under s78 of the PSMA against the decision of the Director General that he be reduced in classification and that he be transferred to another public sector body. It was contended that the decision was harsh and unfair on the following grounds:
"(a)The finding of the inquiry was incorrect, given the facts of the matter;
(b)There were a number of procedural faults in the conduct of the inquiry which denied natural justice to the applicant;
(c)The penalty imposed was harsh and unreasonable."
The applicant sought an order that the finding of breach of discipline be overturned and that his salary and position be restored without loss of benefits or entitlements. Alternatively, it was submitted that, if the Board was not persuaded that the applicant had not been negligent in the performance of his duties, then it should take into account the circumstances with which the applicant was faced from the time of the incident for which he was charged and conclude as a consequence that no penalty should apply. The appeal to the first respondent was under s801 of the Industrial Relations Act 1979. The appeal required a re‑hearing de novo on the basis of evidence freshly taken by the Board itself.
The Case Against the Applicant
In support of the charge of a breach of discipline pursuant to ss83(1)(b) and 86(1) of the PSMA, it was alleged that on 24 March 1995 the applicant was negligent in the performance of his functions contrary to s80(d) of the PSMA. Particulars alleged that he was a clerk in the records section and authorised access to documents in the custody of the section relating to proceedings in the Perth Magistrates' Court. His duties in that provision included the provision of copies of documents in court proceedings to persons making requests and having proper entitlement to such documents. He had regular experience in the performance of these duties since 1991. Reference was then made to the provision of the copy of the restraining order to Mr Viner on 14 November 1989.
It was alleged that the applicant had on a date or dates prior to that request accessed the relevant file. From such prior access it was said he was aware of at least one previous request by a member of the public relating to the matter and, specifically, on or about 16 March 1995 the applicant had informed a person requesting such information and/or copy documents that his request was denied. Reasonably careful perusal of the file would have revealed information relating to other previously denied requests for such copy documents. Specifically, such perusal would have revealed a handwritten note dated "1/12/93" marked "Manager, Admin Services" and addressed to the "Manager, Records Section", relating to the refusal of a request made in November 1993 for a copy of the same court order the subject of the request of Mr Viner. The note included a statement to the effect that requests of that nature should be referred to the Court Administrator. In my opinion, if that instruction meant that every request for a copy of the restraining order, even if made by a person demonstrating an entitlement to a copy under s148 to the satisfaction of an officer in the position of the applicant, had to be referred to the Court Administrator, that would imply that some restriction had been placed on the making available of a copy of the order which the learned Magistrate had not seen fit to place on it. On the contrary, the Magistrate making the order had given a clear direction that Forms 6 and 7 should be accessed by the media. The instruction was also contrary to the adopted policy which was said to be that contained in O67 r11 of the Rules of the Supreme Court. Furthermore, it is at least implicit in the case of the second respondent and the Attorney General as intervener that the existence and content of the restraining order constituted "information confidential to the parties and the Court" and for that reason the applicant was in breach of the relevant instructions and under an obligation to refer the request by Mr Viner to the Court Administrator. Given that the order was made in open court and the Magistrate's specific directions, Forms 6 and 7 were public documents open to public inspection. Any departmental instruction to treat such a document as confidential issued without the authority of statute or an order of the court would be invalid and unlawful and involve an unauthorised interference in the administration of justice. Administrative officers of the registry have no power to give such instructions or to seek to apply them in circumstances where they conflict with the law or any order or direction given by the Court.
Other documents on the relevant Court Records Section files drew attention to the need to exercise caution in responding to requests for copies of documents on court files, having regard inter alia to the confidential nature of the information, the possible effects of its public release and the fact that pursuant to s148 of the Justices Act a person entitled to such copy documents is required to be a "party interested therein". The case against the applicant was, notwithstanding these matters of which the applicant was aware or ought reasonably to have been aware from reading the file, he provided Mr Viner with a document which contained the restraining order.
It was alleged in paras 12‑14 of the particulars that:
"12.You failed by reasonable inquiry of Mr Viner to positively confirm that he was a 'party interested' in the documentation, over and above his position as an ordinary member of the public with no apparent involvement in the matters in issue between the parties named in the Court proceedings.
13.Alternatively, if in doubt as to the entitlement of Mr Viner to the documentation you failed to take all reasonable steps to resolve such doubt.
14.Specifically, in respect of paragraphs 12 and 13 you ought reasonably to have referred the request of Mr Viner to the Manager of the Courts Records Section or to some other officer sufficiently more senior to yourself in order to determine the entitlement of Mr Viner to the documentation. You failed to so refer the request."
Finally, it was alleged in para 15 that:
"In all the circumstances you failed to take all reasonable precautions to properly determine the entitlement of Mr Viner (pursuant to his request) to receive a copy of a document or documents from the Courts Records Section file or a copy of any document detailing any information on that file."
In my opinion, there is something incongruous bordering on the absurd in characterising a document as a "public document", which records an order pronounced in open court and accepting that any member of the public may have access to such document, inspect it and make a copy of it, on the one hand, while contending that there was a discretion to deny access in regard "to the confidential nature of the information, the possible effects of its public release and the fact that pursuant to s148 of the Justices Act a person entitled to such copy documents is required to be a 'party interested therein' ...", on the other At all events the order was not confidential and contained no confidential information.
On 23 March 1995, the day before Mr Viner requested a copy of the restraining order, the applicant had received a similar request from a Mr Gaspar. The request was in writing and followed the earlier denial of a request by Mr Gaspar on 16 March 1995. Mr Gaspar's reason for requesting a copy of the restraining order was that he had been sent an anonymous letter making allegations about the defendant in the proceedings, but otherwise did not state any reason for his request. The appellant responded to that request and recorded his response in a note on the file on 24 March 1995 as follows:
"I telephoned Mr Gaspar and advised him that the order was revoked and the R/O not served. This meant that Mr Crichton-Brown [sic Browne] was not required to comply with any of the conditions of the R/O. He said that he still wanted a copy of the order. I said that it is highly unlikely that he would be permitted to have a copy. He then said that he would leave it at that."
Findings by the First Respondent
The first respondent found that:
"On the evidence there was a similarity between the reasons given to the [applicant] by Mr Viner on 24 March 1995 and Mr Gaspar on the day before for the purpose of establishing that they were a 'party interested' and therefore entitled to a copy of the Restraining Order at the centre of these proceedings. To the extent that there was any difference, it was to be found in the fact that Mr Viner in his request revealed that the existence of the Restraining Order might become an issue in Senator Crichton-Browne's senate pre‑selection. This should have caused the [applicant], with his experience and knowledge of the material available on file, to either refuse the request or refer the matter to a senior officer.
The attempt by the [applicant] to show that Mr Viner was entitled to a copy of the Restraining Order because he was in a position analogous to that of an employer rings hollow and his case is not assisted by that claim."
Given the explanation that Mr Viner proffered to the applicant at the time and his evidence at the appeal, it was at least strongly arguable that Mr Viner fell into the class of a "party interested therein", or that it was reasonably open to the applicant to conclude that Mr Viner was a "party interested" and entitled to a copy of the order. The second respondent and the Attorney General, however, submitted that the applicant could commit a breach of discipline by the negligent performance of his functions, even if he was legally entitled to release a copy of the restraining order to Mr Viner. Reliance was placed upon s80(d) of the PSMA which provides that an employee commits a breach of discipline if the employee "is negligent or careless in the performance of his or her functions". The applicant was charged with being negligent in the performance of his functions. The term "functions" includes powers, duties, responsibilities, authorities and jurisdiction: s3(1) of the PSMA; and s5 of the Interpretation Act 1984. The submission is that an employee may be negligent in the performance of his functions without exceeding his statutory power. This was said to be because s80(d) applies to an employee "in the performance of" his or her functions, that is including a situation where an employee lawfully exercises power, jurisdiction or authority, or carries out duties or responsibilities. On this basis it was contended that whether the applicant was legally entitled to release a copy of the restraining order was irrelevant. Counsel for the second respondent and the Attorney General submitted that the question was whether the first respondent made a jurisdictional error in analysing the facts of the case and finding that the applicant had acted negligently.
Counsel for the applicant submitted that the submissions on this point were untenable or irrelevant because the charge was not framed in this way nor was the conviction.
The particulars of negligence relied upon were that:
"(a)the applicant failed to make proper inquiries of Mr Viner to establish that he was a 'party interested' for the purposes of s148 of the Justices Act; or alternatively
(b)he failed to refer the decision to release a copy of the restraining order to a more senior officer when he ought reasonably to have done so based on the result of his inquiries."
It follows that the essence of the charge of negligent performance of "functions" was based upon a breach of duty or responsibility. Absent such a breach, the applicant would not be negligent: cf Macken, McCarry and Sappideen, The Law of Employment (1984) at 120‑121; Stroud's Judicial Dictionary (5th Ed) Vol 3 at 1688, 1699. In Blyth v Birmingham Waterworks Co (1856) 11 Ex 784, Alderson B said:
"Negligence is the omitting to do something that a reasonable man would do, or the doing something which a reasonable man would not do ..."
Similarly, as to the word "neglect" in a comparable context, namely the Appeal Costs Fund Act 1964 (Vic): s18(1)(c), McDonald J said in Grimwade (1990) 51 A Crim R 470 at 476 that:
" 'Neglect', as with the word 'default' is passive in its quality. It is to be interpreted in the context of s18 of the Act as something which results in a trial being discontinued and a new trial being ordered. I am of the view that within that context the appropriate and proper meaning to be given to the word 'neglect' is to fail to perform a duty or obligation or to omit or to fail, through carelessness or negligence, to do something."
The applicant was not charged with disobeying a lawful order under s80(a) of the PSMA, or contravening any public sector standard under s80(b)(ii).
As already mentioned, the document which Mr Viner obtained was a copy of Forms 6 and 7 which served both to record the complaint and the interim order made in open court on that complaint, together with a summons to the defendant to attend on the return day. It was submitted that Mr Viner was legally entitled to obtain a copy of the document either because it recorded the complaint or that it recorded the order. Both were public documents. Secondly, it was submitted that he was entitled to receive a copy of the complaint and order by virtue of s148(1)(a) of the Justices Act. Both the second respondent and the Attorney General submitted that there was no common law right of access to or to obtain copies of court orders as asserted on behalf of the applicant.
Access to Court Documents and Obtaining Copies
In an extensive note in 16 Georgia Law Review, 659 entitled The Common Law Right to Inspect and Copy Judicial Records: In Camera or On Camera, it was contended that there was a common law right of access to judicial records. In Nixon v Warner Communications Inc 435 US 589 (1978) at 597 the United States Supreme Court held that English decisions "conditioned the enforcement of [the common law right to inspect and copy judicial records] on a proprietary interest in the document or upon a need for it as evidence in a lawsuit". Only one case was cited by the Court in support of this proposition, namely Browne v Cumming (1829) 10 B&C 170; 109 ER 377. In that case a rule nisi had been obtained by the Attorney General to restrain the plaintiff in an action from using a copy of an indictment alleged to have been improperly obtained for the purpose of bringing an action of malicious prosecution. The plaintiff had been tried on the indictment and acquitted. The trial Judge had refused an application by his counsel for a copy of the indictment. Later, the applicant's counsel understood the Judge would be prepared to grant a further application. The second application was refused but an application to the Attorney General granted on the understanding that the Judge had promised to make the order if he could. Upon the Judge later informing the Attorney General that he had not promised to make the order, the rule nisi was obtained. It appears that the judges had resolved:
"That no copy of any indictment may be given without special order upon motion made in open Court at the gaol delivery, for the late frequency of actions against prosecutors, which cannot be without copies of the indictments, deterreth people from prosecuting for the King upon just occasions. It was contended that this resolution was at variance with the law stated by Lord Cook in the preface to the third part of his reports, namely:
'... the records of the King's Courts, for that they contain great and hidden treasure , are faithfully and well kept, as they well deserve, in the King's Treasury, and yet not so kept but that any subject may, for his necessary use and benefit, have access thereunder, which was the ancient law of England, and so is declared by an Act of Parliament, 46 E 3.'
In Foster's Crown Law, p229, it is said, that 'this statute plainly relateth to such records in which the subject may be interested as matters of evidence upon questions of private right,' and he refers to Lord Preston's case (12 St Tr 662); but the opinion of the Judges there seems to be, that the statute applies to all records where copies or exemplifications are required for the purpose of being used as evidence."
Counsel for the second respondent and the Attorney General contended that no English or Australian decision recognised a common law right to obtain a copy of a court order. On the contrary, it was contended that English and Australian authority was against a common law right of access. In Smith v Harris [1996] 2 VR 335 at 350 Byrne J said:
"I am of the opinion that the documents retained in the registry of the Magistrates' Courts are not public documents available for public inspection."
That case was concerned with privilege in the context of the law of defamation and concerned access to a document filed in the registry but not used in open court. Such a document would not normally be open for inspection. In the present case it was common cause that the complaint, order and summons to defendant were public documents available for public inspection. The complaint had been heard and the order pronounced in open court which included a direction which led to the summons.
The publication of a report of the contents of a public document available for public inspection is the subject of qualified privilege: Searles v Scarlett [1892] 2 QB 56. It needs to be borne in mind that publication before trial of pleadings, affidavits and other documents which had not been referred to in open court was generally regarded as a contempt of court until the decision to the contrary in Gaskell & Chambers Ltd v Hutson Dodsworth & Co [1936] 2 KB 595. In R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289 at 307 Richmond J said that:
"The general principle was that at common law there was no general right of inspection of public documents."
This was also a defamation action based upon the publication of parts of a statement of claim in an action alleging misconduct by a candidate in an election. The statement of claim had been filed in the court but no action had been taken. It was claimed that the article was a fair and accurate extract of a court document which was required by law to be open to inspection by the public. It was held that documents filed in the registry on which no judicial action had been taken were not subject to any general right of public inspection. In other words, they were not public documents. As I have already indicated, it was common cause in the present case that Forms 6 and 7 were public documents available for public inspection.
It was also held in R Lucas & Son v O'Brien that, the statement of claim not having been brought up or referred to in court, qualified privilege did not attach to the publication of its contents: cf Gobbart v West Australian Newspapers Ltd [1968] WAR 113. The fact remains, however, that a writ of summons, including any statement of claim endorsed on the writ and an order of the court are public documents which are available for inspection by the public under O67 r11(1) of the Rules. That distinguishes the position in other jurisdictions where such documents are not available for public inspection.
Counsel for the second respondent and the Attorney General also relied on the statement by Sir Donald Nicholls V‑C in Dobson v Hastings [1992] Ch 394 at 401‑402 that:
"... a court file is not a publicly available register. It is maintained by the court for the proper conduct of proceedings. Access to the file is restricted. Non-parties have a right of access to the extent, but only to the extent provided in the rules."
This statement, of course, reflects the Chancery practice in England, as well as making the valid point that a court file is not a publicly available register. In the Western Australian context any writ, including any statement of claim and any order of the Court is made a public document open to inspection and copying by "any person". The provisions of that rule were said in the Training Bulletin to inform the content of the policy in relation to s148 of the Justices Act.
Counsel for the applicant submitted that once a document had been used in open court, a right of inspection by any person arises "as part of the principles of open justice and free speech", subject to any restrictions that may be contained in any order made by the court or the Rules of Court. Subject to such restrictions as may be imposed by the court, the person controlling the records of the court should have a discretion to provide a copy of any document used in the proceedings. In R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd, unreported; SCt of Tas; M112 and 144/1998; 19 November 1998 Slicer J held that under the Tasmanian Justices Rules the Clerk of Petty Sessions had a discretion to allow inspection of the record of proceedings held in open court. Slicer J at 15 held that:
"A person with a legitimate interest has a right to inspect orders made by the court ... the process used in court and the documentation used in the hearing. There is no right to obtain copies of the documents ... except at the discretion of the Clerk of Petty Sessions."
See also Little v Law Institute of Victoria (No 3) [1900] VR 257 at 283‑289 per Ormiston J and, in particular, at 285 and 288.
In my opinion Browne v Cumming, above, does not establish the common law right for which the applicant contends. The basis of that decision was only that an accused person is entitled to a copy of the indictment under which he was prosecuted in order to use it as evidence in proceedings for malicious prosecution. In Nixon v Warner Communications, above, at 597 Powell J said:
"It is clear that the courts of this country recognize a general right to inspection and copy public records and documents, including judicial records and documents. In contrast to the English practice, see, eg, Browne v Cumming ..., American decisions generally do not condition enforcement of this right on a proprietary interest or upon a need for it as evidence in a lawsuit."
In the present case Mr Viner had no proprietary interest in the document and did not need it for evidence in any legal proceedings.
It was also contended on behalf of the applicant, based on the American decision in Nowack v Fuller 219 SW 749 at 751 (1928) that the common law right of access to court records extended generally to all persons, but was only enforceable by those with a proprietary interest or a need to use the records in other litigation. This involved the adoption of the concept of a naked right, for the enforcement of which the law provided no remedy. In my opinion, this analysis confuses the interest necessary for a citizen to enforce a public duty by way of mandamus with the interest necessary to enforce a private right. I am unable to accept it.
So far as the implied freedom in respect of communication of political matter is concerned, that does not create new personal rights but consists of a limitation on legislative and executive power: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Levy v State of Victoria, above, at 607; 625‑626; 644; Hamersley Iron Pty Ltd v Lovell, unreported; SCt of WA; Library No 980273; 22 May 1998 at 32 per Anderson J; Brown v Members of the Classification Review Board (1998) 154 ALR 67 at 77, 79.
For the reasons previously expressed s148 creates a right where none may previously have existed. It places no restraint on the implied freedom of political communication. It is a valid enactment in the exercise of the plenary legislative power of the State: Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 at 9‑10 per Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.
The position remains, however, that Forms 6 and 7 were public documents open to public inspection of which any member of the public could make a copy. They were not confidential. In my opinion, Mr Viner had a legitimate interest in obtaining a copy of the document containing Forms 6 and 7. Even if he did not, it was within the discretion of the applicant to provide him with a copy, having regards to the terms of the Training Bulletin.
The jurisdiction of the second respondent to impose a penalty on the applicant was dependant on there being a finding of "a serious breach of discipline". The jurisdiction of the first respondent in relation to the matter was likewise dependant on there being a serious breach of discipline. There was clearly not a serious breach of discipline. The decision of the second respondent and of the first respondent on appeal from the former decision were and each of them was in excess of jurisdiction because the conduct of the applicant was incapable of being characterised as a serious breach of discipline. Alternatively, in the circumstances, any breach was so trivial as not to warrant any administrative or disciplinary action against the appellant. In either case, the decision to find the applicant guilty of a serious breach of discipline was unlawful because it was a decision to which no reasonable authority could have come: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1958] 1 KB 223 at 230 per Lord Greene MR.
It follows that, in my opinion, the order nisi for a writ of certiorari directed to the first respondent in terms of para 3.1 of the order of Murray J dated 8 April 1998 should be made absolute and an order made that the purported decisions and orders referred to in paras 3.1.1 and 3.1.2 of the said order each be quashed on the return without further order. The applicant is also entitled to a writ of mandamus in terms of para 3.2 of the order of Murray J.
IPP J: I have had the advantage of reading the reasons to be published by Malcolm CJ. I agree entirely with those reasons and the conclusions expressed. I wish merely to add some brief observations of my own.
Each of the respondents found that the applicant was guilty of "a serious breach of discipline" in negligently giving a copy of the restraining order to Mr Viner QC. The principal particulars of negligence were based on the "confidential nature" of the information in the restraining order and the "possible effects of its public release" (which were presumably thought to be harmful to some). The particulars that fell into this category were, in summary form, those that alleged that the applicant was negligent in giving Mr Viner a copy when he (the applicant) knew that:
(a)the order was confidential as he had previously refused to give a copy to another person, and the file contained "other previously denied requests" for the document.
(b)(by reason of the confidentiality of the order) requests for a copy had to be referred to a more senior officer, such as the Court Administrator.
In my opinion, this view of the restraining order was quite wrong and was the main cause of the errors made by each of the two respondents. My reasons for this conclusion follow.
On 14 November 1989 the learned Magistrate made the order in the absence of Mr Crichton‑Browne. His Worship made a note in his file that the press were entitled to see the order. On 21 November 1989 the order was revoked on the application of Mrs Crichton‑Browne. The effect of ss175(1), 175(2), 174(1) and 176 was, as Malcolm CJ has pointed out, that "while the order had effect, it did not come into force because it was revoked before it was served. … It took effect as if it contained a condition that the order would not come into force unless and until personally served". In these circumstances, the order was not a nullity. It was an effective order of court made in open court, with the intention that the public should have access to it.
As Malcolm CJ has demonstrated, it has long been accepted that an order of court is a public document to which any member of the public may have access. This rule is part of the fundamental principle that, generally, court proceedings shall be conducted publicly and in open view: Russell v Russell (1976) 134 CLR 495 (at 520) per Gibbs J. This is a cornerstone of our society: see Re Bromfield Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 at 164 per Malcolm CJ and at 179 per Rowland J, John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales Wales (1992) 26 NSWLR 131, John Fairfax & Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465.
With specific reference to court orders, Street CJ said in David Syme & Co Ltd v General Motors – Holdens Ltd (1984) 2 NSWLR 294 at 301:
"I find it almost inconceivable to contemplate a case in which there should be a total black‑out upon the terms of [a court] order. Important as it is that proceedings and reasons should be heard and stated in public, it is even more important that the solemn formality of a curial order should be capable of publication. To admit to exceptions to this requirement is a far reaching step. It affects not merely the individual against whom the order may be made. The public has a right to know what orders are being made by courts and it is encumbent on Judges so to formulate their orders as to give effect to this right."
The Justices Act says nothing about access to (as opposed to entitlement to copies of) court orders. This omission is not surprising. It would be entirely unnecessary for a statute to provide expressly that the public has access to orders made by a court. As I have attempted to make clear, the common law caters emphatically for this.
There is considerable authority that pleadings, affidavits, and other documents filed in court are not ordinarily available for public inspection. The learned Chief Justice has referred to these in the course of his reasons. However, documents that fall into this category are to be distinguished from court orders.
Unless a statute or the court itself precludes access, members of the public have a general right to inspect court orders: they have "a right to know what orders are being made by courts". As explained, this is essential to our system of open justice: it is paramount that the administration of justice should be seen to be completely transparent and even-handed.
In the present case, no statute made the restraining order secret and the learned Magistrate expressly noted that the public were to have access to it. No person was entitled to attach conditions impeding access to the document. The respondents indeed accepted that members of the public were entitled to unrestrained access to it.
How then did the applicant commit "a serious breach of discipline"? It was held by the respondents that Mr Viner was not an "interested party" under s148 of the Justices Act and, therefore, he should not have been given a copy of the order. This proposition was advanced again in argument before this Court, but I do not think it has any substance.
When requesting a copy of the order, Mr Viner told the applicant that Mr Crichton‑Browne's "senate pre‑selection was about to be held and that questions concerning the existence of the order might arise". Mr Viner said that he wanted to have a copy of the order "if it should be necessary to establish that in fact it existed". He told the applicant that "he was entitled to a copy because it was a public record". The applicant was influenced by Mr Viner's standing as a Queen's Counsel and by the fact that he was a former senior government minister. He thought Mr Viner was an interested party and gave him a copy of the order.
In terms of s148 of the Justices Act, Mr Viner was entitled to a copy if he was a "party interested". Malcolm CJ has held that the applicant was correct in regarding Mr Viner as a party interested. I respectfully agree with the learned Chief Justice's exposition in this respect, and would only add that a "party interested" is a broader concept than a party to the proceedings. In any event the applicant was perfectly entitled to pay considerable weight to the opinion expressed by Mr Viner as one of her Majesty's counsel. Accordingly, no reasonable tribunal could have found the applicant to have been negligent in giving Mr Viner a copy of the order on the ground that the applicant should not have decided that Mr Viner was an interested party.
The respondents are therefore driven back to the proposition that the applicant's negligence lay in giving Mr Viner a copy of the order when he knew that it was confidential and when the file contained an instruction that requests for copies had to be referred to a more senior officer.
I agree with Malcolm CJ's remarks concerning the incongruity of an argument that asserts on the one hand that the document is confidential, but on the other, accepts "that any member of the public may have access to such document, inspect it and make a copy of it". I have set out the reasons why the order was not confidential. In my view, the submissions founded on the confidentiality of the order cannot be upheld.
The argument based on the instruction that requests for copies had to be referred to a more senior officer supported a further proposition, namely, that the applicant was guilty of a serious breach of discipline even if he was legally entitled to give a copy of the order to Mr Viner. This, properly understood, means that even if Mr Viner was legally entitled to a
copy of the order (as it was a public document and he qualified as an interested party to receive a copy), the applicant should not have given him a copy because the decision should have been made by a more senior officer (although, ordinarily, providing such copies was part of the applicant's duties).
In my view, there are at least three answers to this submission. First, Malcolm CJ has pointed out that "[t]he departmental instructions and various memoranda and comments contained no prohibition against the applicant handing over a copy after consideration of a specific request. The instructions … did not place any unequivocal obligation on the applicant or any other officer to refer all or any particular requests for a copy of a document to a superior officer." Thus, the applicant did not contravene any specific instruction. Secondly, in the light of the findings of this Court, any senior officer faced with the request by Mr Viner should have answered it the same way as the applicant did. Thus, the applicant's conduct – even if a breach of an instruction – had no prejudicial consequence to any person, and in all the circumstances could not give rise to a serious breach of discipline. In this regard it is to be borne in mind that the serious breach of discipline is said to arise out of negligence: not a mere failure to comply with an instruction. Thirdly, as Malcolm CJ has observed, any departmental instruction (issued other than by the authority of a statute or order of court) to the effect that a particular court order should be given a special status, with a view to according it a higher degree of confidentiality than the norm, would be invalid. Such an instruction would be in material breach of the overriding principles of equal and open justice. It would therefore be in conflict with the substantive law (apart from being contrary to public policy) and no administrative body would have power to issue it.
For the above reasons and for those expressed by Malcolm CJ I agree with the learned Chief Justice that "the decision to find the applicant guilty of a serious breach of discipline was unlawful because it was a decision to which no reasonable authority could have come: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1958] 1 KB 223 at 230 per Lord Greene MR".
WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and Ipp J. There is nothing I wish to add to those reasons.
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