Tuqiri v Australian Rugby Union Ltd

[2009] NSWSC 781

CITATION:	Loti Tuqiri & Anor v Australian Rugby Union Limited & Anor [2009] NSWSC 781
HEARING DATE(S):	7/08/09
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
EX TEMPORE JUDGMENT DATE:	7 August 2009
DECISION:	The Court’s orders are as follows: 1. That subject to the redaction of the section of the plaintiffs’ contentions which commences with the letter E, the following entities ABCTV News, The Australian, The Daily Telegraph, Channel Nine, AAP, Fox Sports News, Harbour Radio, Channel Seven, ABC Radio, Fairfax Media Publications Pty Ltd, SBS Broadcasting and Seven Network, be granted access to the Court file in these proceedings brought by Lote Tuqiri and LT Promotions Pty Ltd as Trustee for the Lote Tuqiri Family Trust against Australian Rugby Union Limited and New South Wales Rugby Union Limited. 2. The Court further stays these orders until midnight on 10 August 2009. 3. The Court orders that costs be reserved. 4. These orders are to be entered forthwith.
CATCHWORDS:	Procedure - Access to court filed by non-parties - Application by media for access to Commercial List Statement and Commercial List summons - Principles of open justice - Public interest in administration of justice taking place in open court - Understanding the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings initiated in the courts
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	ASIC v Rich [2002] NSWSC 198 Attorney-General v Leveller Magazine [1979] AC 440 Attorney-General v Observer Limited [1990] 1 AC 109 D’Orta-Ekenaike v Victorian Legal Aid [2005] 79 ALJR 755 Dickason v Dickason (1913) 17 CLR 50 EISA Limited v Brady [2000] NSWSC 929 Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 J v L & A Services Pty Limited (No 2) [1995] 2 Qd R 10 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344 Linter Group & Anor v Price Waterhouse [2000] VSC 90 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 McPherson v McPherson [1936] AC 177 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 R v Brady [Supreme Court of New South Wales Court of Criminal Appeal, Street CJ, 2 July 1977, unreported] R v Kwok (2005) 64 NSWLR 335 R v Smith (1996) 86 A Crim R 308 R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473. Raybos v Jones (1985) 2 NSWLR 47 Russell v Russell (1976) 134 CLR 495 Scott v Scott [1913] AC 417 The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 Witness v Marsden (2000) 49 NSWLR 429
PARTIES:	Loti Tuqiri (First Plaintiff) LT Promotions Pty Ltd as trustee for the Lote Tuqiri Family Trust (Second Plaintiff) Australian Rugby Union Limited (First Defendant) New South Wales Rugby Union Limited (Second Defendant) ABCTV News, The Australian, The Daily Telegraph, Channel Nine, AAP, Fox Sports News, Harbour Radio, Channel Seven, ABC Radio, Fairfax Media Publications Pty Ltd, SBS Broadcasting and Seven Network (Media applicants)
FILE NUMBER(S):	SC 50126/09
COUNSEL:	Mr AJ Meagher SC, Mr M O'Brien (Plaintiffs) Mr JR Sackar QC, Mr DFC Thomas (First Defendant) Mr J Fernon SC (Second Defendant) Mr DR Sibtain (Media Applicants)
SOLICITORS:	Johnson Winter & Slattery (Plaintiffs) Freehills (First Defendant) Baker & McKenzie (Second Defendant) Blake Dawson Waldron (Media Applicants)

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

Einstein J

Friday 7 August 2009 ex tempore
Revised 10 August 2009

50126/09 Loti Turqiri & Anor v Australian Rugby Union Limited & Anor

JUDGMENT

Background to the instant applications

1 The proceedings presently before the court have evoked considerable media and other interest culminating in applications for access to the court file. Whilst the initial application apparently came forward from the Australia Rugby Union, by the end of the argument a large number of media applicants had effectively joined forces to make a combined application.

2 Mr Sibtain of counsel appeared for the media applicants and I did not understand there to have been any issue raised as to his standing to effectively pursue the application on behalf of all of the entities in respect of which he announced his appearance.

The public interest in the administration of justice taking place in open court

3 The fundamental rule is that the administration of justice must take place in open court [Scott v Scott [1913] AC 417 at 441 per Lord Halsbury and at 445 per Lord Loreburn; Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J and at 532 per Stephen J; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 per McHugh JA; John Fairfax Pty Ltd v Attorney-General (NSW) (2000) 181 ALR 694 at [52] – [56] per Spigelman CJ; John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (2004) 61 NSWLR 344 at [18] per Spigelman CJ, with whom Handley JA and Campbell AJA agreed]. It is so fundamental as to be of constitutional significance [John Fairfax Pty Ltd v Attorney-General (NSW) (supra) at [53]]. Justice is enhanced where the courts are exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected [Russell v Russell (supra) at 520-1 per Gibbs J.]. It is of fundamental importance that the public should have confidence in the administration of justice. Justice should not only be done, it should manifestly and undoubtedly be seen to be done [The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 259.4, 262.10-263.2; R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 at 259A-B].

4 One of the normal attributes of a court is publicity [John Fairfax Pty Ltd v Attorney-General (NSW) (supra) at [55]]. Nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom [Attorney-General v Leveller Magazine [1979] AC 440 at 449-450 per Lord Diplock; John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (supra) at [20]; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (supra) at 476-7]. The publication of fair and accurate reports is vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice [John Fairfax & Sons Ltd v Police Tribunal of New South Wales (supra) at 481]. In a free society public access to the conduct of the courts and the results of deliberations in the courts is a human right, as well as a mechanism for ensuring the integrity and efficacy of the institutions of the administration of justice [John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (supra) at [99]].

5 The media are the eyes and ears of the general public [Attorney-General v Observer Limited [1990] 1 AC 109 at 183F per Sir John Donaldson M.R.]. Because of that special role, the media has the requisite standing to challenge a suppression order [Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at [17] (Full Court); Mirror Newspapers Ltd v Waller (1985) 1NSWLR 1 at 7 – 9; John Fairfax & Sons Ltd v Police Tribunal of New South Wales (supra) at 470; John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; Nationwide News Pty Ltd v District Court of New South Wales (1996) 40 NSWLR 486 at 489D and 498F]. The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public [John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (supra) at [20]].

6 It is well established that, to the extent that exceptions have developed under the general law to the principle of open justice, those exceptions are few and strictly defined [McPherson v McPherson [1936] AC 177 at 200; R v Tait (supra) at 487-8; John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (supra) at [19]. For example, whilst the power to make a pseudonym order has been recognized as an available device in respect of certain witnesses (see R v Smith (1996) 86 A Crim R 308; Witness v Marsden (2000) 49 NSWLR 429 at [15]-[16] and [49]), that recognition does not authorize the making of pseudonym orders in other than the excepted categories of departure from the general rule. The Court will not invent new categories of cases, but may identify analogous categories: R v Kwok (2005) 64 NSWLR 335]. Only the parliament can add to the list of exceptions, and may only do so subject to Constitutional constraints [Dickason v Dickason (supra) at 51; Russell v Russell (supra) at 520; John Fairfax Pty Ltd v Attorney-General (NSW) (supra) at [70]; John Fairfax Publications Pty Ltd & Anor v District Court of New South Wales & Ors (supra) at [19];].

7 The embarrassment or otherwise of a party to any proceeding is not one of the accepted common law exceptions to the principle of open administration of justice. Rather, it “is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges’ subjective views of the merits or demerits of the claims to privacy of individual litigants” [J v L & A Services Pty Limited (No 2) [1995] 2 Qd R 10 at 45 per Fitzgerald P and Lee J; see also Raybos v Jones at 59-60 per Kirby P, contra EISA Limited v Brady [2000] NSWSC 929 at [32] per Santow J and ASIC v Rich [2002] NSWSC 198 at [18] per Barrett J; see also Scott v Scott [supra]; McPherson v McPherson [1936] AC 177].

8 In John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476 McHugh JA, as his Honour then was, said:

“The fundamental rule of common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the court room.”

9 In R v Brady [Court of Criminal Appeal, unreported 2 July 1977, Street CJ commented on the principle of open justice, indicating that the policy behind the principle is that:

“Publicity of proceedings is one of the great bastions against the exercise of arbitrary power, as well as a reassurance that justice is administered fairly and impartially.”

10 In Linter Group & Anor v Price Waterhouse [2000] VSC 90, 20 March 2000, Justice Harper had occasion to deal with questions of application for access to transcript of a trial, of transparency in the administration of justice and whether a non-party should contribute to the cost of production of the transcript. To my mind Justice Harper’s observation that, “it is undesirable that the media rely on the parties for information about the case” is pervasive. As his Honour further observed, ‘the ethical rules by which the legal representatives of the parties are bound inhibits them from time to time from providing to the media all information in which the media is likely to be interested’.

The present proceedings

11 The present proceedings [brought by Mr Lote Tuqiri and LT Promotions Pty Ltd as trustee for the Lote Tuqiri Family Trust] and [brought against Australian Rugby Union Ltd and the New South Wales Rugby Union Ltd] commenced by the filing on 8 July 2009 of a Commercial List Summons and a Commercial List Statement. The procedure before the Commercial List is for those initiating steps to be followed with a listing before the Court of the summons. That listing was first before the court this morning.

12 Whilst I do not pretend to speak for the current Commercial List list judge, my own understanding has been that the number of matters dealt with in taking the Commercial List on any particular Friday at least leads to an expectation by the profession that wherever possible, the judge taking that list endeavours to have at least some familiarity with matters which are in the list for the first time.

13 The current Commercial List and Technology and Construction List Practice Note SC Eq 3 expressly provides that the court‘s expectation of practitioners appearing in this list includes that “a careful review of the case will be made as early as practicable for the purpose of informing the court” of a number of matters, the most of significant of which are usually an explanation of the nature of the proceedings and issues likely to be litigated. What commonly occurs, and occurred this morning in these proceedings, is that counsel, having discussed the efficient approach to the future directions to be made in the matter, pass up to the judge a consensual document, commonly entitled “Short Minutes of Order”, which the judge will inspect, sometimes ask questions about, and usually adopt [absent aberrant situations needing special attention case management type attention].

14 To my mind it is clear that once the plaintiff has filed its Commercial List Summons and its Commercial List Statement and the matter moves into the courtroom the reality of what is occurring is to be taken as having occurred in open court. Of course another approach could be simply for the Court to require counsel addressing the court to read aloud the whole of the pleading.

15 Nor is it correct to assume that it is only the media who may have an interest in what is taken to have occurred in open court. Naturally, where at the pleading stage it appears that the pleadings may contain matter that is scandalous, frivolous, vexatious or irrelevant or otherwise oppressive, the court always has the power to order that type of matter to be struck out of a document.

16 No counsel has submitted that any such matter is to be found in the originating documents in these current proceedings.

17 What occurred when these proceedings were called this morning was that in addition to counsel indicating to the court that a regime by way of short minutes of order had been agreed upon, the court made clear that one or more applications having been made by the media to the court for access to the court file in this matter, it would be necessary for the court to deal with such applications.

18 Both counsel at the bar table this morning and later this afternoon opposed the proposition that present access to the court file should be made available to the media. It was suggested this morning that instructions may be needed. It was suggested that the proper procedure would be for the Court to await the filing of the response to the Commercial List Statement before being in a position to either accede to or not accede to the applications for access to the file. The matter was stood down to be dealt with at 2 p.m. on which occasion submissions were taken from the parties.

19 I am quite clear in rejecting the submission that the proper procedures requires the Court to await the filing of the response to the Commercial List Statement before being in a position to accede or decline to applications for access to the file. To my mind the plaintiffs are taken by the events which occurred this morning as having adhered to the pleaded case. Furthermore the court is to be taken as having been apprised of the content of the pleaded case.

20 As the transcript of the exchanges with Mr Sackar QC [at 7.20-30 and at 9.15] makes clear there was a considerable divide as to the manner in which open justice was said to operate:

HIS HONOUR: That’s the proposition that I have such difficulty with Mr Sackar. The court, as we know, administers open justice. It’s not only the media contingent that have an entitlement to know just what is going on in the courtroom, it’s also anyone at all who happens to be sitting in the back of the court and the notion [that] from bar table to bench there can be some type of quasi sign language, you give me this, I give you that, we won’t say anything about this, I will make orders in accordance with short minutes of order, no one in the court will know just what it is that’s passed between you and me is absolute anathema to me.

….

HIS HONOUR: But my understanding of your proposition, unless I'm mistaken Mr Sackar and I wouldn’t wish to do that knowingly, is this. Through a number of occasions when likely there will be continued short minutes of order and the like in terms of a matter such as this … there should be a regime in place which requires the court and counsel to have a language between themselves, some sort of semaphore so that no one behind in the courtroom will be able to understand what they are talking about because there's some sort of secrecy.

SACKAR: Your Honour, I with great respect, would reject the proposition that for professionals to speak to professionals on matters of practice and procedure in shorthand way somehow is contrary to the open justice system in this country. What came before your Honour this morning was a series of mechanical steps which have been agreed.

21 As has already been pointed out earlier in these reasons there is an extremely long history to the significant requirement that proceedings be conducted in open court. One must never forget the singular importance in promoting public confidence in judicial integrity and independence. True, there are discretionary exceptions to the requirement of a public hearing. True, s 71 of the Civil Procedure Act 2005 does include an indication that the business of the court in relation to any proceedings may be conducted in the absence of the public in circumstances in proceedings in the Equity Division if the court thinks fit.

22 Subject to one matter to which I will return, to my mind there is nothing in either s 71 or referred to in Practice Note SC Gen 2 which may be regarded as antithetic to the current applications for access to the Commercial List Statement or Commercial List Summons in these proceedings. Indeed, during the course of this afternoon’s address Mr Meagher SC, appearing as leading counsel for the plaintiffs, endeavoured to make clear what the position would have been:

i. had he been present this morning;
ii. had I asked of him questions such as what are the causes of action.

23 His propositions were that had the plaintiffs been asked what the proceedings involved the events which would have occurred were as follows:

i. the plaintiff would have made clear that the two plaintiffs had brought proceedings for wrongful termination of contracts of employment or contracts of service and that they claimed damages;

ii. the Court would then have asked Mr Sackar what the position was in relation to the defence;

iii. the Court would have been informed in that regard;

iv. the Court would then have waited until the matter returned to the court on the next occasion to further the giving of directions.

24 His propositions were:

i. that no person in the courtroom would be entitled to know any more than that;
ii. that there is simply no interest at that point in time which required that every person have a ‘perfect knowledge’ of what was alleged at a particular point in time.

25 I reject the last two propositions. I have already alluded to the fact that in when the matter comes before the court the reality of what is occurring is to be taken as having occurred in open court. But even if this be incorrect, surely mention in open court of what the proceedings are about [where counsel is about honouring the courts expectation of practitioners to give a careful review of the case] must be taken:

i. as an exercise where the pleading is before the Court;

ii. as engaging an entitlement to access pursuant to the practice note dealing with documents that record what was said or done in open court as well as dealing with information that would have been heard or seen by any person present in open Court.

26 The very explanation by Mr Meagher during argument that he would have told the court that the two plaintiffs had brought proceedings for wrongful termination of contract of employment or contract of service and that they claimed damages was a broad level explanation of the pleadings. Even that explanation taking place in the Court room engaged an entitlement to access of to the pleadings within the meaning of practice note SC Gen 2. That practice note expressly entitles non parties to access in respect of documents that record what was said or done in open court.

27 The court has been taken to a number of other authorities in relation to observations made by particular judges concerning matters germane to the current issue. In the judgment of Santow J in EISA Ltd v Brady [2000] NSWSC 929, his Honour said:

“It is at the trial that the public and press will ordinarily have full and unfettered opportunity to be present and hear what is said and where pleadings can be understood in their proper context. It may well then be possible to release a copy of the pleadings without danger of prematurity, though the circumstances need still to be considered.”

28 And in ASIC v Rich [2002] NSWSC 198 at [12]-[18] Barrett J said, inter alia:

“I do not see how the fundamental principles of open justice and access by the public to proceedings in this court will be enhanced or promoted by facilitation of media coverage of as yet untested allegations which have not been aired in court and may never be, at least in the form in which they now exist. On the other side of the coin, access by the media to those untested allegations at this point has a clear potential to cause serious prejudice to the defendants who intend to put their countervailing contentions on the record in due course.”

29 With all due respect to the eminence and standing of those two very well respected and experienced judges, I disagree with their observations. In that regard I agree with Rares J who observed in Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 as follows:

"In my view the approach taken by Santow J and Barrett J is fundamentally erroneous. It misunderstands the function of fair reports of proceedings and the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts. Ordinary members of the public are well aware of the difference between allegations made in courts and findings made by courts. People who make allegations or cause the processes of courts to be invoked do so in the circumstance that they are asking for the judicial power of the state… to be applied to the resolution of their dispute"
[cf the observations of Gleeson CJ, Gummow Hahne and Heyden in D’Orta-Ekenaike v Victorian Legal Aid [2005] 79 ALJR at 755 [31]-[33] observing inter alia as follows : "No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy".

Returning to the issue

30 The instant application for access to the court file was regularly made. The reason given for requesting access to the documents was stated as "media coverage". The application sought access to the file documents giving as its grounds ‘the public interest’.

31 Mr Sibtain early in his address made clear that there were a number of media reports putting the context that a number of facts were already in the public forum. He submitted that the fact of Mr Tuqiri’s termination was a matter that had been the subject of wide reporting.

32 I proceed therefore upon the basis that there is no issue but that there has already been considerable media coverage of the fact that these proceedings were being commenced or had been commenced.

33 I return again to the observation that this is not a situation which involves only the press.

34 In my view practice note SC Gen 2 is presently engaged for any one of the following reasons:

i. the documents sought record what was said or done in open court:


a) This is clearly the case with the short minutes of order which were handed up and duly made;

b) I have earlier in these reasons sought to explain the reality of what occurred as being required to be taken as having occurred in open court. There was no need to require counsel addressing to read aloud the whole of the pleadings which were taken to be adhered to in all of the circumstances.

ii. Further and to the same effect and for the same reasons the information sought is that which would have been heard or seen by any person present in open court.

35 If and to the extent that the above reasons be incorrect, I would have held that the court was satisfied that exceptional circumstances existed warranting acceding to the applications. These circumstances inhere in:

i. the public interest in the fair reports of proceedings;

ii. the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts.

36 The court earlier alluded to the fact that there was one caveat in relation to the applicants been granted access to the current Commercial List Statement. Mr Sackar observed that there was one paragraph of the plaintiffs’ contentions which may be regarded as sufficiently sensitive to result in the court, if it was disposed to permit access to the entirety of the Summons and the Commercial List Statement, to require that section to be redacted. Having considered that matter, to my mind that proposition is of substance in the particular case at hand.

37 In the result I propose to now order that the Commercial List Summons and the Commercial List statement, excepting one paragraph which will be redacted, be made available to those who seek to have access to the materials.

38 It being late in the day I am content to reserve costs. Absent any other submissions I propose to instruct my staff to redact the above described paragraph appearing in so much of the plaintiff's contentions as commences with the letter E and remaining materials including the short minutes of order will be made available to the applicants.

Orders

39 The Court’s orders are as follows:

1. That subject to the redaction of the section of the plaintiffs’ contentions which commences with the letter E, the following entities ABCTV News, The Australian, The Daily Telegraph, Channel Nine, AAP, Fox Sports News, Harbour Radio, Channel Seven, ABC Radio, Fairfax Media Publications Pty Ltd, SBS Broadcasting and Seven Network, be granted access to the Court file in these proceedings brought by Lote Tuqiri and LT Promotions Pty Ltd as Trustee for the Lote Tuqiri Family Trust against Australian Rugby Union Limited and New South Wales Rugby Union Limited.

2. The Court further stays these orders until midnight on 10 August 2009.

3. The Court orders that costs be reserved.

4. These orders are to be entered forthwith.
*******