New South Wales Supreme Court CITATION : James Anthony Cosoff & his partners trading as Cosoff Cudmore Knox v David Peter Rydon [2007] NSWSC 387 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 05/04/07 JUDGMENT DATE : 5 April 2007 JURISDICTION : Equity Division JUDGMENT OF : White J EX TEMPORE JUDGMENT DATE : 5 April 2007 DECISION : See paragraphs 21-24 of judgment. CATCHWORDS : Practice – Court files – Application by non-party (media) for access – Access not to be granted in respect of documents which a judge or registrar considers should be kept confidential, in accordance with Practice Note SC Gen 2 – Principles of "open justice" – Rationale of principle – Maintenance of public confidence in way in which cases heard and decided and aiding understanding of reasons for such decisions – Access refused where no public interest arises so as to outweigh desirability of maintaining confidentiality. LEGISLATION CITED : Australian Crime Commission Act 2002 (Cth) Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 CASES CITED : Wright v Gasweld (1991) 22 NSWLR 317 C v Australian Crime Commission [2005] FCA 1736 James Anthony Cosoff & his partners trading as Cosoff Cudmore Knox PARTIES : v David Peter Rydon FILE NUMBER(S) : SC 1562/07 Plaintiff: D Smallbone COUNSEL : Defendant: N/A Applicant: A Leopold Plaintiff: Tresscox Lawyers SOLICITORS : Defendant: Sachs Gerace Lawyers Applicant: Blake Dawson Waldron IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WHITE J Thursday, 5 April 2007 1562/07 James Anthony Cosoff & his partners t/as Cosoff Cudmore Knox v David Peter Rydon JUDGMENT 1 HIS HONOUR: On 28 March 2007, I dealt with an application by Ms Susanna Moran, a journalist, for access to the court file in these proceedings Ms Moran had been given notice of the matter being listed on that day to consider her application. She attended at court on that occasion, but without legal representation, and did not make submissions in relation to the matter. I express no criticism of that. 2 For reasons which I gave on that day, I rejected a number of claims made by the plaintiffs opposing access to the court file by Ms Moran. I upheld some of the plaintiffs' claims including claims that Annexures C and D to the affidavit of Mr Hurren of 1 March 2007 be kept confidential. 3 I deferred ruling on other claims in respect of which counsel for the plaintiffs indicated he wished the opportunity to make further submissions. I have since received those further submissions and they have today been made available to Mr Leopold counsel who appears for Ms Moran and for her employer. 4 Mr Leopold seeks an order that the direction that Annexure D to the affidavit of Mr Hurren of 1 March 2007 be kept confidential be vacated. It appears that the orders made on 28 March 2007 have not been entered and, accordingly, I am happy to say it is open to me to reconsider, with the assistance of Mr Leopold's submissions, whether or not the order I made in relation to Annexure D was one I ought to have made. 5 Mr Leopold submitted that guidance on the question can properly be obtained from the Practice Note (Practice Note SCG2) paragraph 7 of which provides: "Access will normally be granted to non parties in respect of, inter alia, documents that record what was said or done in open court and material that was admitted into evidence and information that would have been heard or seen by any person present in open court unless the judge or the registrar considers the material should be kept confidential." 6 He submitted that whilst the client list in Annexure D might attract a low level of confidentiality, at least in relation to contact details and matters of that kind, it was not sufficiently confidential to warrant being "kept confidential". I was referred to the judgment of Bryson J, (as his Honour then was), in Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 where his Honour accepted that the identity of a firm's clients and related information including addresses, telephone and other contact numbers and the identities of persons within each clients' organisation with whom the firm deals are "in some sense, confidential information" but are in no sense a trade secret. In Wright v Gasweld (1991) 22 NSWLR 317, Gleeson CJ (at 330) described information as to the identity of customers as having a low order of confidentiality. 7 Mr Leopold submitted that that was so a fortiori in the case of clients of a firm of solicitors, in particular clients of a litigation partner or litigation section of the firm. By the very nature of things, the fact that solicitors are acting for such persons must be public knowledge. 8 He submitted that even if the client list in Annexure D had some measure of confidentiality, the public interest in the open administration of justice, being an essential feature of the administration of justice in this country, was such that there was no warrant for keeping such information confidential. 9 In relation to this last submission I think it is relevant that the details of the make-up of the client list which is Annexure D are not themselves relevant to the obtaining of an understanding as to how it was I came to reach the decision which I did on 2 March 2007, or to reaching a view as to whether those issues were or were not properly resolved. 10 It may be that there is a wider aspect to the principle that justice should be administered openly so that material taken into evidence should be available to the public. Mr Leopold submitted that that principle at least extended to the public being informed as to the consequences of the court's decision. That may be so, but the primary rationale is to maintain public confidence in the way in which cases are heard and decided, and to aid an understanding, or allow a critical analysis, of the reasons for such decisions. 11 Notwithstanding the submissions which were most ably advanced by Mr Leopold, I consider that the details of the client list are confidential. I do not consider that the rationale on which the principle of open justice is based is such as to warrant that that information not be kept confidential. 12 As I said in my reasons of 28 March 2007, had an application been made during the hearing for an order that Annexure D be kept confidential it is very likely I would have made such an order. 13 Ms Moran had published an article on 2 March 2007 prior to the hearing of the matter before me on that day in relation to the claims of the plaintiffs and in relation to the defendant, Mr Rydon. In that article, reference was made to Mr Rydon having acted for two persons in connection with tax issues. The article also refers to his having acted for several people caught up in what is known as "Operation Wickenby", said to be the nation's largest tax investigation, whilst at the plaintiff's firm. 14 I do not consider that the matters raised in that article are such as to give rise to a public interest which outweighs the desirability of keeping the client list confidential. 15 The plaintiffs made further submissions in relation to the material upon which I had deferred ruling on 28 March 2007. The plaintiffs seek a suppression order in relation to the second sentence of paragraph 3.5 of Exhibit ACH3 to the affidavit of Mr Hurren sworn 20 February and paragraph 4.2 of that affidavit. Those paragraphs, together with other paragraphs upon which I had deferred ruling, relate to what I can infer from the material is a current investigation in relation to a client or clients of the firm being conducted by the Australian Crime Commission. 16 It is evident from the judgment of Allsop J in C v Australian Crime Commission [2005] FCA 1736 that Mr Rydon acted for a certain unnamed person in connection with the investigation of the Australian Crime Commission. This is public knowledge and is revealed both in the judgment of Allsop J and is referred to in Ms Moran's article of 2 March 2007. 17 In that case, his Honour made orders suppressing the names of applicants in proceedings in the Federal Court and suppressing disclosure of confidential affidavits and exhibits. His Honour found that such disclosure carried a real risk of unfairness in the investigation by the Commission. 18 Counsel for the plaintiff referred to s 29B of the Australian Crime Commission Act 2002 (Cth), which makes it an offence for a person given a summons bearing a notation under s 29A and to whom information is disclosed by permission under s 29B(2), to disclose, except in the circumstances provided by s 29B(4), the existence of, or any information about any "official matter" as defined in s 29B(7), including information from which a person could reasonably be expected to infer the existence of such official matter (s 29B(6)). 19 I am not satisfied on a prima facie basis that for the Court to allow a member of the public, including the media, to inspect the court file, including the evidence adduced at the hearing, would involve anyone in a breach of s 29B or that that section was breached by the tender of the evidence. 20 However, it is unnecessary to decide that question. I am satisfied that, having regard to the judgment of Allsop J in C v Australian Crime Commission, the policy underlying ss 29A and 29B of the Australian Crime Commission Act and the text of the relevant evidence, that the material is confidential and should be kept as such. Again, the detail of the material in question had no relevance to my determination of the issues before me on 2 March 2007. 21 For these reasons I decline to vacate the direction which I made on 28 March 2007 to refuse access to Annexure D to Mr Hurren's affidavit. 22 I direct that paragraph 2.5, the second sentence of paragraph 3.5, and paragraph 4.2 in Exhibit ACH3 to the affidavit of Anthony Charles Hurren sworn 20 February 2007 be kept confidential and that access to those parts of Exhibit ACH3 not be provided to any person. 23 I direct that the last sentence of paragraph 21 of the affidavit of Mr Hurren sworn March 2007 be kept confidential and access to it not be given to any person. 24 For clarity, I direct that access should be given to Ms Moran to the affidavits and exhibits, summons, judgments and transcripts in the court file, other than that material in respect of which on 28 March 2007 I directed that access should not be given, and other than the material in respect of which I have just given such a direction. ****** 26/04/2007 - t/as in case name corrected to trading as. - Paragraph(s) 0 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.