New South Wales Supreme Court CITATION : Idoport Pty Ltd & Anor v National Australia Bank Ltd & 8 Ors, Idoport Pty Ltd & Anor v Donald Robert Argus [9] [2000] NSWSC 769 FILE NUMBER(S) : SC 50113/98; 50026/99 HEARING DATE(S) : 26 July 2000 JUDGMENT DATE : 26 July 2000 PARTIES : Idoport Pty Ltd & Anor (Plaintiffs) National Australia Bank Limited & Ors (Defendants) JUDGMENT OF : Einstein J COUNSEL : JJ Garnsey QC, M Dicker, R Titterton (Plaintiffs) T Bathurst QC, J Sackar QC, H Insall, J Halley (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehill Hollingdale and Page (Defendants) Dobson v Hastings 1992, 2 All ER 94 CASES CITED : John Fairfax & Sons Limited against Police Tribunal 1986, volume 5, NSWLR 465 Linter Group Limited (in liq) and another v Price Waterhouse 2000 VSC 90, 20 March 2000 R v Brady, [Court of Criminal Appeal, unreported 2 July 1997] Street CJ DECISION : I order that a folder containing an up-to-date pleadings in each of proceedings 50113/98 and 50026/99 be placed in the registry and be made available for inspection on reasonable notice to any member of the public. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION - COMMERCIAL LIST EINSTEIN J Wednesday 26 July 2000 ex tempore Revised 4 August 2000 50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS 50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS JUDGMENT 1 HIS HONOUR: In proceedings No. 50113 of 1998 and 50026 of 1999, the current state of the hearing is that the hearing commenced on Monday, 24 July 2000 and Senior Counsel for the plaintiff is presently addressing the court by way of the plaintiffs' opening case. 2 A question has arisen as to whether or not in the circumstances of the proceedings it is appropriate for the court to make an order granting access to non-parties in respect of the pleadings in the two sets of proceedings. The formal position is that part 65, rule 7 provides that "a person may not search in a registry for or inspect any document or thing in any proceedings except with leave of the court." 3 Practice Note 97 dealing with access to court files by non-parties provides in paragraph 1 that: "Access to material in any proceedings is restricted by part 65 rule 7 of the Supreme Court Rules 1970, except with the leave of the court." 4 Paragraph 2 of the practice note provides that: "Access will normally be granted to non-parties in respect of: (a) pleadings and judgments in proceedings that have been concluded, except insofar as an order has been made that they or portions of them be kept confidential; (b) documents that record what was said or done in open court; (c) material that was admitted into evidence; and (d) information that would have been heard or seen by any person present in open court, unless the judge or registrar dealing with the application considers that the material, or portions of it, should be kept confidential. Access to other material will not be allowed unless a registrar or judge is satisfied that exceptional circumstances exist." 5 Court files, of course, comprise a variety of documents; these include the initiating process, which documents identify the parties to the proceedings as well as provide a summary of the nature of the proceedings to be dealt with. Other documents, of course, include the process which will be filed during the course of the proceedings in order to refine and prepare the case for hearing. Those documents might include pleadings, subpoenas, interlocutory applications, notices and sundry other ancillary materials. 6 Once a case has been before the Court, the transcript will also form part of the court file. During the course of proceedings, confidential documents may be placed on the court file. In the present proceedings, from time to time during interlocutory hearings confidentiality orders have been made. It is my understanding that during the course of these proceedings confidentiality matters may be sought to be pursued from time to time, depending on the particular documents then in focus or then sought to be referred to or tendered. 7 There is, of course , then an issue as to the extent to which court files may be inspected by parties to the proceedings or by members of the public. 8 In John Fairfax & Sons Limited against Police Tribunal 1986, volume 5, NSWLR 465 at 476, McHugh JA, as his Honour then was, said "The fundamental rule of the 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 courtroom." 9 In R v Brady, [Court of Criminal Appeal, unreported 2 July 1997] 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 re-assurance that justice is administered fairly and impartially". 10 In the United Kingdom, the public right to inspect filed documents is specifically limited to certain types of documents. Order 63 rule 4 of the Supreme Court provides: "(i) Any person shall on payment of the prescribed fee be entitled during office hours to search for, inspect and take a copy of any of the following documents filed in the central office, namely: (a) the copy of any writ of summons or any other originating process; (b) any judgment or order given or made in court, or the copy of any such judgment or order; and (c) with the leave of the Court, which may be granted on an application made ex parte, any other documents. (2) Subrule 1 does not prevent parties to an action from obtaining a copy of any document filed." 11 In Dobson v Hastings 1992, 2 All ER 94, the Court commented on Order 63 rule 4 as follows: "….the court file is not a publicly available register. It is a file maintained by the court for the proper conduct of proceedings. Access to that file is restricted. Non-parties have a right to the extent, but only to the extent, provided in the rules. The scheme of the rules is that, by being filed, documents do not become available for inspection or copying save to the extent that access to specified documents or classes of documents is granted either generally under the rules or by leave of the court in a particular case." The purpose underlying this restriction presumably is that if and when affidavits and other documents are used in open court, their contents will become generally available, but until then the filing of documents in court, as required by the court rules for the purposes of litigation, shall not of itself render generally available what otherwise would not be. Many documents filed in court never see the light of day in open court. For example, when proceedings are disposed of by agreement before trial. In that event, speaking generally, the parties are permitted to keep from the public gaze documents such as affidavits produced in preparation for a hearing which did not take place; likewise, with affidavits produced for interlocutory applications which are disposed of in chambers… In all cases, however, the court retains an overriding discretion to permit a person to inspect if he has good reason for doing so." 12 In Linter Group Limited (in liq) and another 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. 13 In the present proceedings, there has been made available at the registry up to this point in time, a folder including one copy of the transcript which is to be made available to any person seeking to inspect that folder. 14 The purpose of making that folder available is the importance of the availability of the transcript. 15 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." [at paragraph 3] 16 To my mind, as in that case, access to the transcript in the present sets of proceedings will promote accuracy in reporting; it will promote transparency in the administration of justice, the fundamental importance of which goal I accept, has long been recognised by the court. That form of recognition, I accept, must inform every aspect of the trial process. 17 I further accept that it being the case that on the parties' present estimations the hearing of these proceedings will be extremely lengthy, it is highly unlikely that any media representative will be in attendance in court for more than a small proportion of that time. 18 As his Honour said: "There is no point in lamenting that fact, still less in tailoring [the court's] response to [the then application] on the basis that members of the media could attend if they chose to do so and thus put themselves in a position from which an accurate report of the proceedings could be compiled without recourse to the transcript." [at paragraph 2] 19 In like fashion to that dealt with by his Honour, the reality in the present proceedings, it seems to me, is that the media will decide upon the level and frequency of its attendance here, as it will decide other issues concerning its priorities and the use it makes of its resources. 20 Having said that, naturally it may be the case in these proceedings that one or more media representatives will in fact be in attendance in the court for the whole of the period of the proceedings being heard. 21 In those circumstances, there are two matters which required adjudication. The first relates to the pleadings in these proceedings being made available for inspection by all persons seeking that inspection at the registry. In that regard, the court has extracted from the respective leading counsel for the plaintiffs and the defendants, an acceptance that and an adherence to the circumstance that the pleadings now identified as between the parties are to be pursued by each party in the sense that the causes of action pursued on originating process, whether by statement of claim and summons or by cross-claim, are to be pursued. The allegations made in the respective moving sets of process are to be pressed, and the sundry denials and other matters set out in pleadings in defence to the statement of claim, or the subject cross-claims, are to be pursued and pressed. 22 The court is then in a situation in which a decision requires to be made as to whether or not in circumstances covered by the Supreme Court rule to which I have referred, and the Practice Note to which I have referred, the court should now grant leave to non-parties to inspect a folder of the most up-to-date set of pleadings to be pressed. 23 The position taken at the Bar table in respect of this matter, as I have understood it, is that neither party seems to be heard as affirmatively consenting to the making of such an order and neither party wishes to be heard in opposing such an order being made. 24 In those circumstances, bearing in mind the matters which are presently before the court; bearing in mind the crucial significance of the administration of justice taking place in open court; bearing in mind the significance that the pleadings are to be referred to often in the course of the openings, which I understand both parties intend to pursue; and bearing in mind the fact that the statement of claim has already been referred to from time to time in terms of summaries of it, excerpts from it, particulars from it, and other references to it, it would be, it seems to me, an entirely unnecessary process to require senior counsel for the plaintiff or senior counsel for the defendants to read out in open court hundreds of pages of pleadings for the purpose of ensuring that those pleadings are presently matters which ought be regarded as now in the public domain. 25 I am persuaded, to the extent that it is necessary for the court to be so persuaded, that in these proceedings special and exceptional circumstances exist making it appropriate for the court to order, as I intend to order, that a folder containing the up-to-date pleadings in each of proceedings 50113 of 1998 and 50026 of 1999 be placed in the registry and be made available for inspection on reasonable notice to any member of the public. I certify that paragraphs 1 - 25 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 26 July 2000 and revised on 4 August 2000 ___________________ Susan Piggott Associate 4 August 2000 Last Modified: 06/13/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.