James Anthony Cosoff and his partners trading as Cosoff Cudmore Knox v David Peter Rydon [2007] NSWSC 388

New South Wales Supreme Court

CITATION : James Anthony Cosoff and his partners trading as Cosoff Cudmore Knox v David Peter Rydon [2007] NSWSC 388 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28/03/07

JUDGMENT DATE : 28 March 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 28 March 2007

DECISION : See paragraphs 12 & 13 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" –Access refused where material is confidential and an order would likely have been made that that information be kept confidential if an application for such order had been made during hearing.

LEGISLATION CITED : Civil Procedure Act 2005 (NSW)

James Anthony Cosoff and his partners trading as Cosoff Cudmore Knox PARTIES : v David Peter Rydon

FILE NUMBER(S) : SC 1562/07

COUNSEL : Plaintiff: D A Smallbone Defendant: N/A

SOLICITORS : Plaintiff: Tresscox Lawyers Defendant: Sachs Gerace Lawyers

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Wednesday, 28 March 2007

1562/07 James Anthony Cosoff and his partners trading as Cosoff Cudmore Knox v David Peter Rydon JUDGMENT 1 HIS HONOUR: An application has been made by Ms Susanna Moran who, it appears, is a journalist with The Australian newspaper, for access to the court file in these proceedings. 2 That access was initially opposed in its entirety by the plaintiffs. Subsequently, the plaintiffs' attitude to the application has been modified. Objection is now maintained only to access to certain parts of the evidence which was adduced at the hearing on 2 March 2007. 3 Objection is also taken to access being given to documents produced on subpoena or pursuant to a notice to produce. I doubt that such documents are to be considered as forming part of the court's file. In any event, pursuant to Practice Note SC Gen 2 paragraph 7, access to material, other than pleadings and judgments, documents that record what was said or done in open court, material admitted into evidence, and information that would have been heard or seen by any person present in open court will not be allowed unless a Registrar or judge is satisfied that exceptional circumstances exist. 4 Clearly access should not be permitted to documents produced on subpoena or pursuant to a notice to produce. 5 I am told that the parties have reached an agreement for the settlement of the proceedings. If and when final orders are made, documents produced on subpoena, or pursuant to notices to produce, which are held in the exhibits office, should be returned. 6 Paragraph 7 of Practice Note SC Gen 2 also provides that access will normally be granted to non-parties in respect of the four classes of documents to which I have just referred. That includes material admitted into evidence. 7 Objection is made, however, to access being given to a minute, which is exhibit ACH3 to Mr Hurren's affidavit of 20 February 2007. This is a minute of the meeting of 2 November 2006. I do not think that there is anything of sufficient confidence in paragraphs 2.1 and 2.3 to warrant the refusal of access to that part of the exhibit. 8 The material in paragraph 2.5 may be in a different category. That is a matter upon which counsel for the plaintiff wishes the opportunity to make further submissions. I think he should have that opportunity. 9 Accordingly, I will simply indicate at this stage that there is no sufficient reason to refuse access to the file note, including paragraphs 2.1 and 2.3, whilst deferring ruling on the question as to whether access should be given also to paragraph 2.5, or whether the exhibit should be returned, to be replaced with a copy which has that paragraph redacted. 10 Objection is also taken to access being given to paragraphs 8, 9, 10, 11(a), 15(c)(iii), 15(d), 21, 22, 23 and 24 to the affidavit of Mr Hurren of 1 March 2007 and to annexures C and D. I do not think there is sufficient reason to displace the normal rule that access should be given to that material, so far as paragraphs 8, 9, 10, 11(a), 15(c)(iii), 15(d), 21, (save for the last sentence), 22, 23 or 24 is concerned. The last sentence of paragraph 21 may raise the same issue as paragraph 2.5 of exhibit ACH 3 and I will defer ruling on the question of access to the last sentence of that paragraph until counsel has made any further submissions in relation to that. 11 Annexure C is a summary prepared by Mr Rydon of the nature and state of various matters which he was conducting for various clients. It contains information in relation to ongoing litigation which, prima facie, is privileged. Had an application been made during the hearing for an order under s 71 of the Civil Procedure Act 2005 (NSW), or otherwise that that information be kept confidential and not be disclosed to the public, I would have made such an order. The fact that no such order was made at that time should not preclude the plaintiff from now seeking to preserve the confidentiality of the document. 12 Access to the court file remains within the control of the Court, and it is clear from paragraph 7 of Practice Note SC Gen 2 that portions of material may be excluded from access if a judge or registrar considers they should be kept confidential. I think annexure C ought to be kept confidential and I refuse access to that annexure. 13 Annexure D is a client list of the plaintiff's firm. Customer lists are frequently treated as confidential information. It was necessary for the plaintiffs to adduce evidence of their client list because of the nature of the relief sought in the application heard on 2 March 2007. I am told that the plaintiff has obtained confidentiality undertakings from Mr Lombardo and Mr Rydon in relation to the contents of the document. Again, had an application been made during the hearing for an order that annexure D be kept confidential, I think it very likely that such an order would have been made. There is no obvious reason as to why it would be in the public interest for the list of clients of the plaintiff firm to be made public, and I do not think that the principles concerning open justice are such as to require access to be given to that document. I think it ought to be kept confidential and I refuse access to annexure D to Mr Hurren's affidavit of 1 March 2007.