Mann (Executrix) v Malaysian Airline System Berhad [2017] FCA 1118

FEDERAL COURT OF AUSTRALIA

Mann (Executrix) v Malaysian Airline System Berhad [2017] FCA 1118 File number: NSD 252 of 2016

Judge: PERRAM J

Date of judgment: 20 September 2017

Legislation: Federal Court of Australia Act 1976 (Cth) s 37AF Federal Court Rules 2011 (Cth) rr 2.32(2), 2.32(4)

Cases cited: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; (2005) 148 FCR 1

Date of hearing: Determined on the papers

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Regulator and Consumer Protection

Category: No Catchwords

Number of paragraphs: 7

ORDERS NSD 252 of 2016

BETWEEN: KAYLENE MARGARET MANN AS EXECUTRIX OF THE ESTATE OF THE LATE RODNEY JAMES BURROWS First Applicant

KAYLENE MARGARET MANN AS EXECUTRIX OF THE ESTATE OF THE LATE MARY CAROLINE BURROWS Second Applicant

MR JAYDEN GEORGE BURROWS (and others named in the Schedule) Third Applicant

AND: MALAYSIAN AIRLINE SYSTEM BERHAD (ARBN 996 903) Respondent

JUDGE: PERRAM J DATE OF ORDER: 6 SEPTEMBER 2017

THE COURT ORDERS THAT:

1. Mr Sam Buckingham-Jones be granted access to the two subpoena requests filed on 25 August 2017 and the notice to produce dated 2 May 2017. 2. Mr Sam Buckingham-Jones be refused access at this stage to the submissions, tender bundle and affidavit filed on 28 August 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 These proceedings concern the MH370 disaster. On 28 September 2017, there is listed for hearing an interlocutory application filed by the Respondent, Malaysian Airline System Berhad ('MAS'). The lawyers acting for the Applicants have served MAS with a notice to produce on behalf of the First to Fifth Applicants. MAS says the notice should be set aside. Pursuant to orders made on 24 July 2017, evidence and submissions have been filed in preparation for that hearing. 2 Mr Buckingham-Jones is a journalist with The Australian. On 31 August 2017, he applied to the Court for access to identified documents on the Court file. These were as follows: Aug 28, 2017 – Submissions Aug 28, 2017 – Affidavit Aug 28, 2017 – Tender bundle Aug 25, 2017 – Subpoena Request Aug 25, 2017 – Subpoena Request May 2, 2017 – Notice to Produce 3 None of these documents is unrestricted under FCR 2.32(2) hence a member of the public may have access to them only by leave: FCR 2.32(4). 4 On 6 September 2017, I granted leave to access the two subpoena requests and the notice to produce. These are curial steps which the parties have taken and I see no reason why access should not be granted. At the same time, however, I declined access to the submissions, affidavit and tender bundle. On 18 September 2017, Mr Buckingham-Jones requested reasons for my decision. These are those reasons. 5 Once those documents have been used in open court I will certainly grant access to them: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; (2005) 148 FCR 1 at 9 [27] per Sackville J. I do not propose to release them at this stage, however, because: (a) the prima facie position under FCR 2.32(4) is that leave is required which tends to suggest that some reason needs to be shown; (b) the matters in the submissions and evidence may be controversial and it would be unfair to allow them to be disseminated where a right of reply has not yet been exercised; (c) the material may not ultimately be relied on in Court. The application may be withdrawn or compromised. Objections may be taken to the evidence. The Court may choose to exercise the power in s 37AF to the Federal Court of Australia Act 1976 (Cth) to suppress parts of the material. Releasing the material now in advance of the hearing would tend to undermine the making of such future decisions. 6 I do not mean to suggest that any of the outcomes in 5(c) above are especially likely; only that it is best to await an actual hearing of the application before deciding what the principles of open justice require. 7 It was for those reasons that I made the direction I did on 6 September 2017. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.