P v D1 & Ors [2009] NSWSC 1492

New South Wales Supreme Court

CITATION : P v D1 & Ors [2009] NSWSC 1492

HEARING DATE(S) : 9/10/09, 23/10/09

JUDGMENT DATE : 28 October 2009

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

DECISION : See paragraphs 21 & 22 of judgment.

CATCHWORDS : PROCEDURE - Supreme Court procedure - New South Wales - application for access to court file under Practice Note SC Gen 2 - parties directed to supply to the Court a statement of the affidavits that they claim have been read in the proceedings

LEGISLATION CITED : Supreme Court Rules 1970 (NSW)

CATEGORY : Procedural and other rulings

CASES CITED : John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 R v Davis (1995) 57 FCR 512

P- Plaintiff D1- First Defendant PARTIES : D2- Second Defendant D3- Commonwealth Bank of Australia D4- Fourth Defendant

FILE NUMBER(S) : SC 05/1290

Plaintiff- Mr H Snow First & Second Defendant- Mr D Hayes COUNSEL : Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Ms McClymont

Plaintiff- Swaab Attorneys First & Second Defendant- Hayes Partners SOLICITORS : Third Defendant- No appearance Fourth Defendant- No appearance Applicant- Johnson Winter & Slattery

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

SLATTERY J

WEDNESDAY 28 OCTOBER 2009

1290/05 P v D1; D2; COMMONWEALTH BANK OF AUSTRALIA LIMITED & D4 JUDGMENT 1 HIS HONOUR: Kate McClymont and Vanda Carson, two journalists employed by the publisher of the Sydney Morning Herald have applied for access to the Court file in this matter. Their application is made by means of the form of application provided for in Practice Note SC Gen 2 "Access to Court Files" effective 1 March 2006. This application will be dealt with as an application for the leave of the Court provided for under that Practice Note which is the present equivalent of the former Part 65 Rule 7 of the Supreme Court Rules 1970 (NSW). 2 Ms Carson and Ms McClymont have appeared in person on the occasions that this matter has been before the Court. The matter was mentioned before me on Friday 9 October 2009 in the course of the equity duty list when Ms Carson raised the issue of access to the Court file in open Court. There was no appearance by either the plaintiff or any of the defendants on that occasion. The matter was adjourned to Friday 23 October 2009 when Mr H Snow, solicitor for the plaintiff and Mr D Hayes, solicitor, appeared for the first and second defendants. The only other existing defendant, the fourth defendant, resides in an apartment in Moscow in Russia. He has not appeared on this application. The Court file shows that he has not taken an active role in the proceedings for a considerable time. It may be that because of the issues in the proceedings that the interests of the fourth defendant are closely coincident with those of the plaintiff. The submissions that are made on behalf of the plaintiff and the first and second defendants may represent the interests of all parties. I will need to be informed by the legal representatives as to the present status in the proceedings of the fourth defendant. Nevertheless I shall make enquiries at the conclusion of this judgment about the status and representation of the fourth defendant and make directions in that regard if necessary. 3 These proceedings were commenced on 1 February 2005 when an application for an ex parte injunction was made before Hamilton J of this Division. They have been mentioned on many occasions before the Court through the rest of 2005 and 2006 and right up until mid 2009. There have been variations to the orders originally made by Hamilton J on numerous occasions, namely 15 May 2006, 8 June 2006, 31 August 2006,30 November 2006, 30 March 2007, 31 August 2007, 2007,28 September 2008,11 December 2007, 11 March 2008, 11 April 2008, 11 July 2008, 10 October 2008, 17 February 2009 and 15 May 2009. 4 The only occasion resembling a contested hearing in the matter from what the file shows was a hearing before Palmer J on 23 September 2005. The Court is currently at something of a disadvantage compared with the experience of the parties in relation to what is to be inferred from the file. Inquiries have been made of the court reporting services about the transcript of those hearings before the Court. It will take some considerable time before the court reporters' notes of the hearings can be gathered and transcribed and then made available to see what affidavits were read on these various occasions. What the Court currently has though is the Associate's Record of Proceedings and copies of the orders. These throw considerable light upon what has happened. 5 I have now had the opportunity of going through this material and am in a better position than I was on 24 October 2009 to indicate to the parties how I wish to approach the matter. 6 The principles in respect of the grant of access are clear. Media access to court files in the Court of Appeal and the Divisions of the Supreme Court is governed by Practice Note SC Gen 2 "Access to Court Files" effective 1 March 2006. 7 Clause 5 of the Practice Note provides that "A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court". 8 An application by the media for access to the material held by the Court in the proceedings must be made in the form attached to the Practice Note. The applicant must demonstrate that access should be granted and state the reasons why access is desired. That has occurred in this case. The discretionary basis upon which leave is granted or withheld is stated in the Practice Note. Clause 6 provides that "[a]ccess to material in any proceedings is restricted to parties, except with the leave of the Court". Clause 7 provides access will normally be granted to non-parties, the media in this application, to: