FEDERAL COURT OF AUSTRALIA Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority [2002] FCA 1408 PRACTICE AND PROCEDURE – application by non-party to inspect affidavit on court file pursuant to Federal Court Rules, O 46 r 6 – whether leave should be granted to inspect annexures in respect of which confidentiality orders were in place during hearing. Federal Court Rules ("FCR"), O 46 r 6 Supreme Court Rules 1970, Pt 65 r 7(1) Broadcasting Services Act 1992 (Cth), s 154 R v Davis (1995) 57 FCR 512, cited. Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643, cited. eisa Ltd v Brady [2000] NSWSC 929, cited. Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No. 3) [2002] FCA 609, cited. White v Overland (2001) 67 ALD 731, cited. E Willheim, "Are Our Courts Truly Open?" (2002) 13 Pub LR 191 MACQUARIE RADIO NETWORK PTY LTD & ORS v AUSTRALIAN BROADCASTING AUTHORITY N 1185 of 2001 SACKVILLE J SYDNEY 15 NOVEMBER 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1185 OF 2002 JUDGE: SACKVILLE J DATE OF ORDER: 15 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted pursuant to Federal Court Rules O 46 r 6(3) to representatives of the Australian Broadcasting Corporation, News Limited, John Fairfax Holdings Ltd, and John Fairfax Publications Pty Ltd to inspect the affidavit of Ms Cass-Gottlieb affirmed on 8 November 2002, but such leave is not to extend to Annexures C, E and F to the affidavit. 2. Leave is refused to inspect the document being Exhibit B admitted into evidence at the hearing of 8 November 2002. 3. Leave is granted to representatives of the Australian Broadcasting Corporation, News Limited, John Fairfax Holdings Ltd, and John Fairfax Publications Pty Ltd to inspect the transcript of the interlocutory proceedings heard on 8 November 2002. 4. Nothing in Order 2 made on 14 November 2002, relating to the confidentiality of Exhibit B, prevents publication of these reasons for judgment or any part thereof. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1185 OF 2002 BETWEEN: MACQUARIE RADIO NETWORK PTY LTD FIRST APPLICANT HARBOUR RADIO PTY LTD SECOND APPLICANT RADIO 2CH PTY LTD THIRD APPLICANT AND: AUSTRALIAN BROADCASTING AUTHORITY RESPONDENT JUDGE: SACKVILLE J DATE: 15 NOVEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This matter was listed by me at short notice, following an application by a journalist for leave to inspect an affidavit on a Court file. I listed the matter so that the parties to the proceedings in which the affidavit was read could be heard on the question of whether leave should be granted. 2 Leave to inspect the affidavit is necessary because Federal Court Rules ("FCR"), O 46 r 6(3) provides as follows: "Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding: (a) an affidavit …" . 3 I should say at the outset that it is not easy to prepare reasons that explain the orders I propose to make, yet protect the legitimate interests of the parties seeking to limit access, not to the affidavit itself, but to certain annexures to it. I have, however, endeavoured to achieve an appropriate balance, taking account of material that is part of the public record of the proceedings in which the affidavit was read and the evidence adduced on the application for leave. 4 The applicants in the principal proceedings hold licences for two radio stations broadcasting in the Sydney area, namely 2GB and 2CH. In those proceedings, they sought an injunction restraining the respondent, a regulatory body established by s 154 of the Broadcasting Services Act 1992 (Cth) ("Broadcasting Services Act"), from releasing to the public "the document in the form of the "Terms of Reference" which is annexure E to the affidavit of Gina Cass-Gottlieb [affirmed] 8 November 2002". 5 The proceedings came before me as duty Judge late on Friday, 8 November 2002. The applicants sought an interlocutory order in the terms of the order reproduced in the previous paragraph. Mr Hutley SC, who appeared for the applicants, described the application as being made ex parte. Nonetheless, the respondent appeared at the hearing (which I shall refer to as the "interlocutory hearing") and was represented by Mr Rares SC. 6 In support of the application for interlocutory relief, Mr Hutley read an affidavit by Ms Cass-Gottlieb. It is that affidavit which is the subject of the application pursuant to FCR,O 46 r 6(3). 7 At the hearing of the application for leave to inspect the affidavit (which I shall refer to as the "leave hearing"), Mr Corker appeared on behalf of four media organisations, namely News Limited, the Australian Broadcasting Corporation, John Fairfax Holdings Limited, and John Fairfax Publications Pty Ltd (although he identified the fourth only after the hearing). Mr Corker submitted that each of these organisations should be granted leave to inspect the affidavit, including all annexures thereto. 8 Mr Hutley, who appeared at the leave hearing on behalf of the applicants in the proceedings, did not object to leave being granted to inspect the affidavit, except for three of the annexures. The first is a document which is said to contain confidential commercial information (Annexure C). The second comprises the Terms of Reference referred to in the application (Annexure E). The third is a different version of the Terms of Reference (Annexure F). Mr Hutley also resisted any application for leave to inspect a document tendered during the interlocutory hearing which includes yet another version of the Terms of Reference (Exhibit B). The various versions of the Terms of Reference relate to a proposed inquiry by the respondent pursuant to the provisions of the Broadcasting Services Act. 9 Mr Bezzi, who appeared for the respondent, neither opposed nor supported the position taken by the applicants. 10 Some background is necessary to understand the applicants' position. Early in the interlocutory hearing, I made an order, pending further order, that there be no publication of Annexure F to Ms Cass-Gottlieb's affidavit or of any document substantially to the same effect. That order effectively embraced Annexure E to the affidavit, since it was substantially to the same effect as Annexure F. I made the order so as to preserve what was, in substance, the subject matter of the proceedings pending determination of the application for interlocutory relief. 11 Later in the hearing, Exhibit B was tendered. Immediately after the tender, Mr Rares announced that he was instructed to undertake to the Court that, until further order, the respondent would not release Exhibit B, or any document in substantially the same form as Exhibit B, to the public. Shortly thereafter, I discharged the order I had made earlier in relation to Annexure F, on the basis (as put by Mr Hutley) that it had been superseded by the undertaking. 12 On 13 November 2002, the day before the scheduled final hearing, the parties filed short minutes of order. The effect of the orders was that the applicants were given leave to discontinue the proceedings, and the respondent withdrew its undertaking with effect from the date the orders were made. On the same day I made orders in accordance with the short minutes. 13 The orders, if considered in isolation, would suggest that the respondent is free to publish Annexures E and F and Exhibit B. However, evidence tendered at the leave hearing showed that the short minutes of order agreed to by the parties were part of a broader settlement. The parties have agreed that the terms of the settlement are to be confidential. It is enough for present purposes to note that the settlement would seem to modify the position concerning publication of Annexures E and F and Exhibit B that would have applied if the orders made on 13 November 2002 had been the only relevant constraints on the respondent. 14 Following the settlement of the proceedings, the respondent issued a press release which announced terms of reference for its inquiry. Obviously enough, the published terms of reference are not identical to the Terms of Reference in Annexures E and F and Exhibit B. 15 Mr Hutley submitted that to permit non-parties to inspect the Court file, insofar as it includes Annexures E and F and Exhibit B, could prejudice the applicants, having regard to the terms of the settlement reached with the respondent. He further submitted that inspection of these documents would effectively deprive the applicants of the benefit of that settlement. Mr Hutley pointed out that, although there is a strong public interest in open justice, there is also a strong public interest in encouraging parties to settle litigation. He submitted that where a settlement would be undercut by allowing inspection of particular documents that were the subject matter of the litigation, the circumstances should be regarded as sufficiently exceptional to warrant refusing leave to inspect those documents. 16 FCR, O 46 r 6 specifies the circumstances in which a non-party is entitled to inspect material on a Court file, including affidavits, exhibits and transcripts. A non-party is entitled to inspect certain categories of documents on the file, such as orders or reasons for judgment, unless the Court or a Judge has ordered that a particular document be confidential: O 46 r 6(1), (2). A non-party is entitled to inspect other categories of documents, such as affidavits or written submissions, only if the Court or a Judge gives leave to do so: O 46 r 6(3). The position is the same with respect to transcripts: O 46 r 6(5). Access to remaining documents on the Court file, such as exhibits, requires the leave of the Court, a Judge or a Registrar: O 46 r 6(4). 17 It has been suggested that the regime established by O 46 r 6 is too restrictive, especially insofar as it requires a non-party to obtain leave in order to inspect affidavits and submissions which have been read or dealt with in open court: E Willheim, "Are Our Courts Truly Open?" (2002) 13 Pub LR 191. There may be some force in this argument, but at present O 46 r 6 sets out the principles that must be applied. 18 It is trite law that the administration of justice must take place in open court. In R v Davis (1995) 57 FCR 512, the Full Court said this (at 514): "Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them". 19 But the principle of open justice does not necessarily answer the questions of whether non-parties should be permitted to inspect documents on a court file. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643, a case arising under Supreme Court Rules 1970, Pt 65 r 7(1), Austin J pointed out (at 649) that "free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court". His Honour referred to the observation of Santow J in eisa Ltd v Brady [2000] NSWSC 929, that, where an application is made to inspect a court file, it may be necessary to balance the fundamental principle of open justice against other principles of justice which are designed to protect the interests of parties to litigation. 20 In my opinion, the general principle so far as affidavits are concerned is that, where an affidavit has been read in open court, exceptional circumstances must exist before a non-party will be denied access to the court file in order to inspect those parts of the affidavit that have been admitted into evidence. I agree with what was recently said by Finkelstein J in Australian Competition and Consumer Commission v ABB Transmissions and Distribution Ltd (No. 3) [2002] FCA 609, at [7]: "where a non-party seeks access to material which has been relied upon by the judge … I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances". His Honour was speaking there of material which had not been the subject of any confidentiality order. 21 Of course, the position may well be different where leave is sought to inspect affidavits that have not been read in open court. For example, as Santow J recognised in eisa Ltd v Brady, there is a risk of serious injustice if untested allegations contained in affidavits or pleadings can be published to the world at large without the usual constraints of defamation law applying. There may also be a risk of injustice if leave is given to inspect affidavits which, although forming part of the evidence in the case, have been subject to confidentiality orders or like restrictions made in the interests of justice. 22 The circumstances of the present case are unusual. Ms Cass-Gottlieb's affidavit was read at the interlocutory hearing. The affidavit, including Annexures E and F, therefore formed part of the evidence. However, Annexures E and F were subject to confidentiality orders made in order to preserve the subject matter of the litigation. The confidentiality orders were discharged when the respondent gave its undertaking, but the undertaking effectively prevented the respondent from publishing the terms of Annexures E and F. The undertaking itself has now been withdrawn, but the terms of settlement between the parties seem to affect the circumstances in which the respondent can publish the terms of Annexures E and F, or of Exhibit B. 23 The present case is therefore different from one in which a non-party seeks to inspect material in the Court file which was adduced in evidence in open court (whether or not referred to in detail in open court). At all times Annexures E and F have been subject to restraints or possible restraints on publication, whether by reason of orders of the Court, an undertaking or agreement inter partes. The Court must weigh the interest of the applicants in restraining publication of the terms of Annexures E and F, which was the very point of the principal litigation, against the interest of non-parties in securing access to those documents. 24 There is, I think, force in Mr Hutley's contention that the Court also has to take into account the public interest in settlement of litigation. Permitting non-parties to inspect Annexures E and F would, or might well, effectively deprive the applicants of the benefits of the settlement that terminated the principal proceedings. There is no suggestion that the settlement itself was other than a genuine resolution of the dispute between the parties. In these circumstances, to permit inspections of Annexures E and F would run counter to an important policy of the law, which is reflected in the privilege attaching to communications made in the course of negotiations to settle disputes: see White v Overland (2001) 67 ALD 731, at 751-752 ([88]-[91]), per Allsop J. 25 Mr Hutley further submitted that I should take into account the prejudice that would accrue to the applicants if inspection of Annexures E and F was permitted. It is unnecessary to examine that argument in detail. It is sufficient to say that I doubt that the prejudice would be as great as Mr Hutley suggests, but some prejudice might well flow. 26 In my opinion, the considerations I have identified in [22]-[25] above justify qualifying the grant of leave to the media organisations to inspect the affidavit of Ms Cass-Gottlieb by excluding Annexures E and F. 27 Mr Corker also applied, at least implicitly, for leave to inspect Exhibit B. This document, however, falls into the same category as Annexures E and F and thus leave should be refused. 28 Leave should also be refused to inspect Annexure C to the affidavit. I have formed the view that this document contains confidential commercial information that might cause prejudice if published: see ASIC v Rich, at 653. 29 Mr Hutley submitted that I should refuse leave to inspect the transcript of the interlocutory hearing. Both counsel were careful in the course of argument at that hearing not to divulge the contents of Annexures E and F and Exhibit B. The transcript records what was said in open court. I see no reason why leave should not be granted to the media organisations to inspect it. 30 The orders I make are as follows: 1. Leave be granted pursuant to Federal Court Rules O 46 r 6(3) to representatives of the Australian Broadcasting Corporation, News Limited, John Fairfax Holdings Ltd, and John Fairfax Publications Pty Ltd to inspect the affidavit of Ms Cass-Gottlieb affirmed 8 November 2002, but such leave is not to extend to Annexures C, E and F to the affidavit. 2. Leave is refused to inspect the document being Exhibit B admitted into evidence at the hearing of 8 November 2002. 3. Leave is granted to representatives of the Australian Broadcasting Corporation, News Limited, John Fairfax Holdings Ltd, and John Fairfax Publications Pty Ltd to inspect the transcript of the interlocutory proceedings heard on 8 November 2002. 31 In the course of the leave application I directed that a letter incorporating the terms of settlement between the parties to the proceedings (Exhibit B on the leave application) be confidential and not be disclosed to anyone other than the parties of their legal representatives. I have found it necessary to refer to that letter in the course of these reasons, since it formed an essential element of Mr Hutley's submissions. I have endeavoured not to disclose the contents of the letter, but this judgment unavoidably has had to refer to one aspect of it. In my view, that reference is necessary in the interests of justice, in order to explain my reasoning on an important issue. I therefore propose to order that nothing in the direction made at the leave application on 14 November 2002 relating to the confidentiality letter prevents publication of any portion of these reasons. 32 None of the parties appearing at the leave application sought a costs order. I propose to make no order as to costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville J. Associate: Dated: 15 November 2002 Counsel for the Applicant: Mr N Hutley Solicitor for the Applicant: Gilbert & Tobin Counsel for the Respondent: Mr Marcus Bezzi appeared for the Australian Government Solicitor Mr J Corker of Clayton Utz Solicitors appeared for Australian Broadcasting Corporation, News Limited, John Fairfax Holdings Ltd and John Fairfax Publications Pty Ltd Date of Hearing: 14 November 2002 Date of Judgment: 15 November 2002