Land and Environment Court New South Wales Medium Neutral Citation: Jodie Dianne Ansted v Northern Beaches Council [2020] NSWLEC 24 Hearing dates: 28 February and 9 March 2020 Date of orders: 09 March 2020 Decision date: 09 March 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [16] Catchwords: ACCESS TO DOCUMENTS - proposed consent orders - no valid consent from one party - Land and Environment Court policy on access to documents - documents within Court's policy provided to access applicant - issue of access to other documents stood over Legislation Cited: Court Information Act 2010 Uniform Civil Procedure Rules 2005, r 33.13(3) Category: Procedural and other rulings Parties: Ms J Ansted (First Applicant) Mr O Ansted (Second Applicant) Northern Beaches Council (First Respondent) Ms S Prowse (Second Respondent) Mr S Prowse (Third Respondent) Representation: Counsel: Ms L Nurpuri, barrister (Applicants) Mr M Hudson, solicitor (First Respondent) No appearance (Second Respondent) Mr S Prowse, in person (Third Respondent) Solicitors: Apex Law (Applicants) Wilshire Webb Staunton Beattie (First Respondent) File Number(s): 332481 of 2018 Publication restriction: No EXTEMPORE JUDGMENT 1. HIS HONOUR: On 21 January 2020, Ms Ansted, the First Applicant in these Class 4 proceedings, made an application to the Supreme Court of New South Wales to access two Court files that involved litigation between the Second Respondent to these Class 4 proceedings and a building company which had carried out work on the property owned by the Second Respondent. 2. On 31 January 2020, that application was refused by the appropriate officer in the Registry of the Supreme Court on the basis: It is not appropriate to seek access to these files using this mechanism where they may be required to litigate in another jurisdiction. Rather, the appropriate method is to seek an order for the production of these files under UCPR 33.13. The order/direction is to be given by the LEC. 1. On 20 February 2020, a Notice of Motion was filed on behalf of the First and Second Applicants in these proceedings. That Notice of Motion sought three effective orders. The first was that, pursuant to r 33.13(3) of the Uniform Civil Procedure Rules 2005, the Registrar of the Land and Environment Court request production of the files from the Supreme Court, being those concerning proceedings where the Second Respondent in these proceedings had been sued by her builder and she, in turn, had commenced an action against her builder. 2. The second order that was sought was: Upon production by the Supreme Court of New South Wales, this Court produce such files for inspection and copying by the First Applicant and Second Applicant. 1. The Applicants for those orders sought that the Second and Third Respondents pay their costs of these proceedings. 2. The motion came on for hearing before me on 28 February 2020. The Notice of Motion was moved upon and an affidavit of the Second Applicant was read in support of it. 3. As a consequence of those proceedings, I concurred that it was appropriate to have the Registrar of this Court make the appropriate request to the Registrar of the Supreme Court for the transfer of those files to this Court. However, I indicated that I was not prepared to make, or to deal with, the second and third elements of the orders sought in the Notice of Motion until after those files had been transferred to this Court, and there was an opportunity for me to consider the contents of those files, as it is clear from r 33.13 that I have a discretion as to whether or not documents should be released from those files. 4. The matter was stood over to enable the Second and Third Respondents to seek legal advice about these remaining matters. When the matter came on for hearing again this morning, 9 March 2020, I was handed proposed Consent Orders that would grant the parties general access to inspect and copy papers on the two Supreme Court files. They were orders that were signed by the solicitor for the First and Second Applicants and the legal representative of the First Respondent, the First Respondent being Northern Beaches Council (the Council). 5. With respect to the consent of the Second and Third Respondents, that consent was purported to be given by the Third Respondent, not only on his own behalf, but also on behalf of the Second Respondent. As I indicated to Ms Nurpuri, counsel appearing for the Applicants on this motion, such consent is not valid, given that the Third Respondent has, as I understand the position, not been given, certainly for the purposes of this motion at least, leave to appear as agent for the Second Respondent. Those orders were therefore, at least in that regard, defective and incapable of being given effect. 6. I also indicated, to which I will later return, a reservation as to the appropriateness of such an order in the context of the Court's policy with respect to such matters. Those proposed Consent Orders became Exhibit A on the motion. 7. Exhibit B on the motion was an e-mail trail between the solicitor for the First and Second Applicants, and the solicitor who is the legal representative of the building company who had been the Applicant in one set of Supreme Court proceedings and the Defendant in the other. It is clear that no objection is raised by the legal representatives of that building company to the granting of general access to the files that is proposed. 8. It is position that, in New South Wales, there is legislation entitled the Court Information Act 2010, an enactment which has not yet been proclaimed. It, therefore, has no application in the present proceedings. 9. However, the Land and Environment Court, on its website, sets out the terms of an application by a non-party for access to material held by the Court. That application form notes as follows: Access to material in any proceedings is restricted to parties except with the leave of the Court. Access will normally be granted to non‑parties in respect of: • 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; • documents that record what was said or done in open court; • material that was admitted into evidence; • 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. Those documents that are contained in the Supreme Court files are now in the possession of this Court. It is, in my view, appropriate that I consider whether or not I should grant application to the documents that are in the two Supreme Court files in conformity with the matters that are set out in that guidance for this Court - that is, in the circumstances where I have no valid consent from the Second Respondent to the making available of any broader range of documents, particularly in circumstances where both she and her husband are self-represented litigants in this motion, if not in the substantive proceedings. 2. I have been through the Court file. I have concluded that, in Supreme Court file 2019/137768, there are four documents that are appropriate to be released to the First and Second Applicants in the Class 4 proceedings consistent with the guidance to which I have referred. In Supreme Court file 2019/137736, there are five documents that I consider fall in those categories. They include transcripts of 21 June 2019 and 28 June 2019, which are, in fact, transcripts in both matters. A schedule of those documents is appended to this decision. 3. Having reached that conclusion, it is appropriate that I order that the documents set out in Annexure A to this decision be made available to the First and Second Applicants in the Class 4 proceedings. It is also appropriate that I adjourn for further consideration, if a wider range of matters is pressed on behalf of the Applicants for access, to a later date at which it would be appropriate if the First and Second Respondents were present to enable me to deal with the matter in a proper fashion. ********** SCHEDULE * 2019/137768 1. Associate's Record of Proceedings dated 17 December 2019 2. Notice of Motion filed 14 June 2019 3. Technology and Construction List Statement filed 31 May 2019 4. Technology and Construction List Response filed 14 June 2019 * 2019/137736 (1) Associate's Record of Proceedings dated 17 December 2019 (2) Technology and Construction List Statement filed 31 May 2019 (3) Technology and Construction List Response filed 14 June 2019 (4) Transcript dated 21 June 2019 (5) Transcript dated 28 June 2019 Amendments 26 March 2020 - [3] 'building' becomes 'builder' Schedule of documents: numbering corrected to list 1-4 and then 1-5. 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: 26 March 2020