Supreme Court New South Wales Medium Neutral Citation: Application of Fairfax Media Publications Pty Ltd; NSW Crime Commission v Yucel [2017] NSWSC 1779 Hearing dates: 17 October 2017 Date of orders: 29 January 2018 Decision date: 29 January 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Application granted in part; application otherwise refused. Catchwords: MEDIA AND COMMUNICATIONS LAW – application by media outlet for access to file – proceedings originally heard in closed court – open justice – fair and accurate coverage of court proceedings – risk that publication will affect future proceedings Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 36.12 Cases Cited: John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Savas Yucel aka Savas Guven (Defendant) Fairfax Media Publications Pty Ltd (Applicant) Representation: Counsel: P Beattie, solicitor (Applicant) T Glover (Plaintiff) Solicitors: Banki Haddock Fiora (Applicant) NSW Crime Commission (Plaintiff) Kiki Kyriacou Lawyers (Defendant) File Number(s): 2017/301943 Judgment Background facts 1. On 6 October 2017 I made various freezing orders pursuant to the Criminal Assets Recovery Act 1990 (NSW) on the application of the New South Wales Crime Commission ("NSWCC"). At the time, given the nature of the orders sought, I made an order that my reasons were not to be published and I conducted the proceedings in a closed court. This was because I accepted the submission made by the NSWCC that the Defendant if given notice about the application or learning of it having been made, may quickly dispose of interests in property including interests in real property and shares, and if that occurred the orders sought would be defeated. 2. On 9 October 2017, the Court's media liaison personnel received an email headed "Application to Access a Court File" from Michael Evans, a journalist writing for Fairfax Media Publications Pty Ltd ("Fairfax") at the Sydney Morning Herald. The application sought leave to inspect the summons "and any other publicly available information". The purpose was stated to be to assist in the fair and accurate coverage of court proceedings. 3. Given at that stage the Court was not aware as to whether the freezing orders had been served upon the Defendant and other affected persons and organisations, and that at that stage there was no "publicly available information", I declined to make the summons or any other documents available and sought written submissions in support of the application. I also made a short term suppression order to protect the potential publication of the fact that the NSWCC had made an application involving the defendant, as I was of the view publication of that fact alone could defeat the purpose of the orders if the defendant became aware of the application and could divest himself of the assets subject to the order. That suppression order was lifted on 12 October 2017 immediately upon notification that the order had been served on all relevant persons and organisations. The application for access by Fairfax – 13 October 2017 and argument 17 October 2017 1. By its written submissions dated 13 October 2017, the solicitors for Fairfax expanded the request for documents to include "access to the statement of facts and circumstances, affidavits, material admitted into evidence, transcript and orders". 2. Given the width of the new request, the submissions were provided to the NSWCC and the NSWCC was asked to indicate whether it had any objection to the material being released. 3. On 17 October 2017 the matter was listed for oral submissions and directions. Counsel for the NSWCC provided written submissions that set out the reasons for objecting to release of the documents. They were: first, that the Defendant was in custody and had not yet been served with the summons and supporting documents and his attitude to publication thus could not be known; second, that the proceedings had not been concluded and were at an early stage; and third, that Fairfax had not demonstrated that exceptional circumstances existed to justify access to material that had not been referred to in open court. 4. Detailed and heavily footnoted submissions were relied upon by Fairfax. Nearly all the cases cited simply re-articulated the principle of open justice. In oral argument the solicitor for Fairfax emphasised Rule 36.12 of the Uniform Civil Procedure Rules 2005 (NSW) which provides that any person, upon payment of the prescribed fee, can obtain a copy of a judgment or order from the Registrar unless the court orders otherwise. Other documents filed in the proceedings can also be provided by the Registrar to a non-party "appearing to have sufficient interest in the proceedings". It was submitted, in effect, that this rule combined with the principle of open justice had the effect of creating a structure of a simple process by which a Registrar could (and should – it seems to have been inferred) facilitate provision of all documents sought without the need for judicial interference. 5. Reliance was also placed upon Practice Note SC Gen 2. Emphasis was placed upon clause 7 which provides: Access … 7. Access will normally be granted to non-parties in respect of: • pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; • documents that record what was said or done in open court; • 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 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. 1. It was argued that clause 7 sets out how applications like this should be dealt with and that as applications are "normally granted by a Registrar", there is no reason why this one should be treated differently. 2. It was submitted that all the documents sought were required for fair and accurate reporting and that the media become the eyes and ears of the public who are entitled to be in the courtroom, and that is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [20]: "Nothing should be done to discourage fair and accurate reporting of proceedings." 1. NSWCC indicated that it had no objection to the Judgment and orders being released to Fairfax, but that the Defendant's views should first be obtained in relation to both that and release of the other documents sought and that the practice note had only limited application as the proceedings were not concluded and were not conducted in open court. 2. An adjournment was given to allow the defendant to be served and his position to be communicated. The NSWCC informed my chambers later that day that the Defendant had been served. An appearance was filed on 19 October 2017 by Mr Kyriacou, solicitor. Late on 20 October 2017 Mr Kyriacou indicated by email that he had been instructed that the Defendant did not wish to be heard on Fairfax's application and that he would not be providing any written submissions to contest the application. 3. A further three days was given to the NSWCC to provide any further written submissions. On 26 October 2017 the NSWCC confirmed its position that it did not object to release of the Judgment and submitted that this was sufficient to permit fair and accurate reporting of the proceedings. It maintained its objection to release of the summons and supporting evidence, given the potential for the release of such material to interfere with future criminal prosecutions. 4. On 26 October 2017 the judgment of 6 October 2017 was released to Fairfax. Decision 1. It is clear that the principle of open justice must guide the courts in determining whether to grant the media access to court records and exhibits. The Court of Appeal has held however that open justice is a principle, not a free standing right, and that there is no common law right for a non-party to obtain access to a court document filed in proceedings and held as part of the court record: John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors (2005) 62 NSWLR 512; [2005] NSWCA 101. 2. The policy to which I need to have regard is the requirement that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself: John Fairfax Publications per Spigelman CJ at [29]-[31]. The principle of open justice needs to be balanced against other principles of justice which protect the interests of the parties to the litigation. 3. The material sought by Fairfax had not been not tendered in open court. Given the nature of the material tendered and the need to protect the administration of justice, additional considerations apply. The NSWCC proceedings had only just commenced with a freezing order to maintain the status quo regarding ownership of certain relevant assets. 4. The Criminal Assets Recovery Act, pursuant to which these proceedings were commenced, provides in s 3 as its principal objects: (a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and (a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired, and (b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and (b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and (c) to enable law enforcement authorities effectively to identify and recover property. 1. Of necessity, supporting documentation filed for applications pursuant to this legislation will touch upon criminal activity and associations which are yet to be the subject of full police investigation, criminal charges and due criminal process. 2. Potential future criminal proceedings and their proper conduct is both an important and relevant consideration. There is a risk that publication of the material of the nature sought by Fairfax would affect future criminal proceedings, particularly if they proceed before a jury. This is a risk to be guarded against in the interests of the administration of justice. 3. Fair and accurate reporting does not require the release of the documents sought. There is adequate information to satisfy the principles of open justice and to provide for fair and accurate reporting of proceedings in the Judgment of 6 October 2017. That judgment was released to Fairfax on 26 October 2017 with the consent of the Plaintiff. 4. The application by Fairfax for access to "the statement of facts and circumstances, material admitted into evidence and transcripts" is refused. ********** 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. Decision last updated: 31 January 2018