Civil Trials Bench Book — Preliminary

Media access to court records, exhibits and judgment remarks

[1-0200] Principle of open justice

Whatever [the media’s] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them: R v Davis (1995) 57 FCR 512 at 514.

Rule 36.12 of the UCPR, which applies to the Supreme Court, District Court and Local Court, allows any person, upon payment of the prescribed fee, to obtain a copy of a judgment or order from the registrar, unless the court orders otherwise. Additionally, the registrar may provide to a non-party “appearing to have a sufficient interest in the proceedings” a copy of any pleading or other document filed in the proceedings. The legislation does not define “sufficient interest”. In the context of s 22(1)(a) of the Defamation Act 1974 (rep) and the defence of qualified privilege (s 30 of the Defamation Act 2005), having a “sufficient interest” was understood as “not simply a matter of curiosity, but a matter of substance apart from its mere quality as news”: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 per Hunt J at p 40.

The principle of open justice will guide the courts in determining whether to grant the media access to court records and exhibits. The Court of Appeal has held that open justice is a principle, not a freestanding 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 v Ryde Local Court (2005) 62 NSWLR 512. The policy that guides the courts is the demand 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 Pty Ltd v Ryde Local Court, above, per Spigelman CJ at [29]–[31].

Considering an application by the media for access to court records and exhibits requires a balancing act. The principle of open justice must be balanced against other principles of justice which protect the interests of parties to litigation. In eisa Ltd v Brady [2000] NSWSC 929 at [36], Santow J said that none of these principles has a priori ascendancy, but must be tested on a case by case basis “against that overriding purpose of the interests of justice”. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643, Austin J identified eight considerations which qualify the principle of open justice:

(a) 

the principle of prematurity, in the sense that evidence has not been tested or answered. In the pre-trial phase, the principle of open justice will serve less as a basis for permitting access to documents as these may be amended, struck out, objected to and rejected: see Australian Securities and Investments Commission v Rich [2002] NSWSC 198 per Barrett J at [10] and eisa Ltd v Brady, above, per Santow J at [22]. However, when the court makes significant orders on an ex parte application, the basis for the making of the orders must be available so the court is accountable for what it has done: Australian Securities and Investments Commission v Rich, above, at [26].

(b) 

The principle of trial by media before material can be tested in open court in public proceedings.

(c) 

The possibility of abuse of the absolute privilege afforded by s 27 of the Defamation Act 2005 for a “fair” report of proceedings in a court. If the court prematurely made available to the media documents containing damaging allegations not read in open court, this may unfairly prejudice those who are the subject of the allegations with no redress in defamation: see eisa Ltd v Brady, above, at [19]–[20].

(d) 

Any legitimate public interest in releasing material weighed against the urges of prurience.

(e) 

Surprise or ambush which might undermine a negotiated position.

(f) 

The risk of misleading reporting.

(g) 

The fact that the evidence is hearsay should not dissuade a judge from making it available.

(h) 

The need to protect commercial confidentiality.

Ensuring opportunities for fair reporting of legal proceedings by the press was seen as an aspect of the principle of open justice in John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 and Australian Securities and Investments Commission v Michalik [2004] NSWSC 966. In the interests of accurate reporting, it is undesirable that the media relies on the parties for information about the case: see Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90 per Harper J.

If file material has been admitted into evidence, the principles of open justice are engaged. Unless evidence of apprehended particular or specific harm or damage has been accepted or there is a non publication order in force, leave to inspect should generally be granted: Hogan v Australian Crime Commission (2010) 240 CLR 651.

A further qualification to the principle of open justice is the so-called Harman principle whereby there is an implied undertaking that a party and their legal representatives are constrained from using documents produced on discovery or subpoena for a collateral purpose: Home Office v Harman [1983] 1 AC 280; Ainsworth v Hanrahan (1991) 25 NSWLR 155. Hence, the media cannot be placed in a position superior to that of a party and a party must show special circumstances before leave will be granted permitting the collateral use of documents: Akins v Abigroup Ltd (1998) 43 NSWLR 539 per Mason P at 549.

[1-0210] Supreme Court procedure

Media access to court files in the Court of Appeal and each of the Divisions of the Supreme Court is governed by Practice Note SC Gen 2 “Access to Court Files”, effective 1 March 2006.

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.

An application by the media for access to 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.

Access

The discretionary basis upon which leave is granted or withheld is stated in the Practice Note. Clause 6 provides that access to material in any proceedings is restricted to the parties, unless leave is granted by the court.

Access will normally be granted to the media to:

  • pleadings and judgments in proceedings that have been concluded, except in so far as a confidentiality order has been made

  • documents that record what was said or done in open court

  • material, including evidence in electronic mediums such as video and audio tapes, DVDs and CD roms, that was admitted into evidence, and

  • information that would have been heard or seen by a person present in open court: Practice Note cl 7.

The judge or registrar dealing with the application for leave may refuse access to documents falling into these categories if the judge or registrar considers that the material or portions of it should be kept confidential: Practice Note cl 7.

Access to other material is granted only if the judge or registrar is satisfied that “exceptional circumstances” exist: Practice Note cl 7. The Practice Note explains the reasons for this. In relation to affidavits and witness statements filed in proceedings, these are often never read in open court, either because they contain matter that is objected to and rejected, or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings “may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive”. Rule 4.15 of the UCPR allows the court to order this type of matter to be struck out of a document: Practice Note cl 14. Access is not normally allowed to materials prior to the conclusion of the proceedings because material that is ultimately not read in open court or admitted into evidence would be seen: Practice Note cl 15. In addition to demonstrating that “exceptional circumstances” warrant the granting of access at a stage before any final hearing, an applicant must overcome the objection of all parties: see eisa Ltd v Brady, above.

There may be good reason for refusing access even where material has been read in open court or is included in pleadings:

Material that has been rejected or not used or struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive, may still be legible. Where access to material would be otherwise unobjectionable, it may concern matters that are required to be kept confidential by statute … or by public interest immunity considerations: Practice Note cl 16.

Incidental and inherent jurisdiction

Section 23 of the Supreme Court Act 1970 provides that “the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales”.

In Hammond v Scheinberg (2001) 52 NSWLR 49, Hamilton J held that, notwithstanding the provisions of Practice Note No 97 (a predecessor to Practice Note SC Gen 2), in the conduct of proceedings, the trial judge has power in the inherent jurisdiction of the court, or under s 23, to determine all matters relating to access to be given to any person to the material in evidence in the trial, including transcripts of evidence, affidavits and exhibits.

In the circumstances of this case, an application by two of the plaintiffs that the court give notice to the parties in accordance with Practice Note 97 before allowing further media access to the affidavits read in court, Hamilton J held that it was within the general powers of the court to allow media access to affidavits read in evidence in the court, but not to exhibits provisionally admitted into evidence. Hamilton J rejected the submission that access be granted only in accordance with the procedure prescribed by Practice Note 97.

Exceptional circumstances in which access has been granted

(a) 

Media access to two affidavits in the court file, one of which had not been read in open court, was granted in Australian Securities and Investments Commission v Michalik, above. Access was granted subject to the names of potential witnesses in possible proceedings by ASIC against the defendants being omitted or masked. In granting media access, Barrett J weighed the public interest in “the due and orderly conduct of investigations by law enforcement agencies” with the public interest in the maintenance of the fundamental privilege against self-incrimination at [8].

(b) 

Media access to affidavits and exhibits arising from an application for ex parte orders prohibiting the defendants from disposing of their assets was granted in Australian Securities and Investments Commission v Rich, above. Austin J considered that none of the eight qualifying principles, listed above, justified refusing access to the affidavits in absolute terms. In applying the principle of open justice, Austin J granted access to the affidavits and exhibits which his Honour relied upon in deciding to grant ex parte relief. Access was granted subject to certain deletions of confidential information which were not relied upon. Access was granted to exhibits relating to board papers and minutes of a meeting which, while they were of a commercially confidential nature, were relevant to the decision to grant relief. Access to information about the financial assets of the first, second and third defendants, against whom ex parte orders were made, was also granted.

(c) 

In Australian Securities and Investments Commission v Adler [2001] NSWSC 644, the statement of claim was released to the media on the basis that the subject matter of the statement of claim was already in the public arena, having been released by ASIC, and there would be no material prejudice to a fair trial.

(d) 

Media access to the pleadings in the proceedings was granted in Idoport Pty Ltd National Australia Bank Ltd v National Australia Bank Ltd [2000] NSWSC 769. Einstein J was satisfied that exceptional circumstances existed on the basis of the “crucial significance of the administration of justice taking place in open court”; the fact that the pleadings would be referred to often in the course of the hearing; and the fact that the statement of claim was already in the public domain at [24].

Circumstances in which access has been refused

(a) 

In eisa Ltd v Brady, there was sufficient justification for Santow J to deny the media access to the pleadings at an interlocutory stage of the proceedings. Serious allegations of breaches of the Corporations Law had been made which were “vigorously opposed”. It would be premature to release the allegations to the media before they could be tested in open court. Furthermore, their release could prejudice early settlement and prejudice the reputations of those the subject of the allegations without redress in defamation. The general nature of the allegations, but not the contents of the statement of claim, was already in the public domain and their premature release was objected to by all the parties.

(b) 

In Stonham v Legislative Assembly (No 1) (1999) 90 IR 325, a Full Bench of the Industrial Relations Commission of NSW refused the media access to pleadings at an interlocutory stage, made in the context of investigative journalism. The Full Bench held that the purpose of full and fair reporting would be best served if the dissemination of information occurred as part of ordinary court proceedings where, after objection, documents were read in open court. There was the further risk of trial by media if premature access were granted to the documents.

(c) 

In Australian Securities and Investments Commission v Michalik, above, access to the exhibits to one affidavit and search warrants annexed to the other affidavit was refused on the basis that the public interest in open justice would not be materially prejudiced.

(d) 

In Australian Securities and Investments Commission v Rich, above, media access to annexures to exhibits containing tables of financial information was denied as the release of these might give a competitive advantage to other operators in the telecommunications market. Access was also denied to exhibits relating to board papers and board minutes of meetings which contained some confidential information and which were not relevant to the decision to grant ex parte relief. Access was denied to annexures containing information about the assets of the 10th, 11th and 12th defendants as no application for ex parte relief was sought against these interests and the principle of privacy was taken into account.

(e) 

Access to an amended statement of claim in the pre-trial stage of the proceedings was refused in Australian Securities and Investments Commission v Rich. No exceptional circumstance was identified by Barrett J to warrant granting access to the plaintiff’s “entirely untested and unchallenged” allegations which had not yet been aired in court or may never be in their current form.

[1-0220] District Court procedure

Media access to District Court records is governed by the District Court Rules 1973, Pt 52, r 3 and Practice Note No 11 “Access to Court Files by Non-Parties”, effective 9 August 2005. Part 52, r 3 provides that a non-party may not search a court file except by leave of the court. Access to material in any proceedings will only be granted with the leave of the court (para 2). An application by a non-party for access to material held by the court must be 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.

Unless the judge or registrar dealing with the application considers that the material should be kept confidential, access will normally be granted to the media to material falling into the following categories:

  • pleadings and judgments in proceedings that have been concluded, except in so far as a confidentiality order has been made

  • 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 a person present in open court: Practice Note cl 2.

Access to other material will not be allowed unless a registrar or judge is satisfied that “exceptional circumstances” exist. Access is restricted in this way because affidavits and witness statements filed in proceedings are often never read in open court, either because they contain matter that is objected to and rejected, or because the proceedings have settled before coming on for hearing. Affidavits, statement, exhibits and pleadings may contain matter that is “scandalous, frivolous, vexatious, irrelevant or otherwise oppressive”. Rules 4.15 and 14.28 of the UCPR allow the court to order that this type of matter be struck out of a document. Access is not normally allowed to materials prior to the conclusion of the proceedings because material that is ultimately not read in open court or admitted into evidence would be seen: Practice Note cl 4.

For material that has been read in open court or is included in pleadings, there may be good reason to refuse access. There may be public interest immunity or confidentiality considerations or material which has been struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive may still be legible: Practice Note cl 5.

[1-0230] Local Court procedure

Media access to Local Court records is governed by Pt 8, r 8.10(3) of the Local Court Rules 2009. That rule provides that a person who is not a party to the proceedings may, with leave of the Magistrate or registrar, have access to a copy of the court record or transcript of evidence or, on payment of a fee, obtain a copy thereof.

[1-0240] Broadcast of judgments

The Courts Legislation Amendment (Broadcasting Judgment) Act 2014 provides for a presumption in favour of the recording and broadcast of certain judgments of the District Court or Supreme Court given in open court.

It does so by amending the Supreme Court Act 1970 by the insertion of a new “Part 9A — Broadcast of judgments” (Sch 2) and by amending the District Court Act 1973 by the insertion of a new “Part 5 — Broadcast of judgments” (Sch 1).

Except for a small number of court specific provisions the Parts are identical. They apply to proceedings in the relevant court other than those set out in SCA s 126(1) or DCA s 177(1). Part 9A extends to proceedings in the Court of Criminal Appeal.

Sections 126 and 177 both exclude proceedings held in closed court, proceedings under the Bail Act 2013 and proceedings under the Crimes (Forensic Procedures) Act 2000. In both sections there is provision that the Part not apply to a class of proceedings excluded by regulations made under the Acts. In addition, s 126 excludes proceedings in exercise of the parens patriae jurisdiction of the Supreme Court and proceedings under the Crimes (High Risk Offenders) Act 2006. Section 177 excludes proceedings on appeal under the Children (Criminal Proceedings) Act 1987 or Children and Young Persons (Care and Protection) Act 1998.

A person may apply to the court in proceedings to which the Parts apply for the court to permit the recording of judgment remarks of the court that are made in those proceedings: SCA s 128(1); DCA s 179(1).

Sections 9 and 9A of the Court Security Act 2005 prohibit the use of recording devices in courts and the broadcasting of court proceedings from a court room except, amongst other circumstances, when expressly permitted by a judicial officer.

Subsection (2) (SCA s 128(2), DCA s 179(2)) provides that, if an application is made, the court is to permit the recording of the judgment remarks of the court and their broadcast by one or more media organisations, unless the court is satisfied that an exclusionary ground referred to in subsection (3) is present and that it is not reasonably practical to implement measures, when recording or broadcasting the judgment remarks, to prevent the broadcast of any thing that gives rise to the exclusionary ground.

The exclusionary grounds are set out in subsection (3). It should be noted that exclusionary grounds (3)(d) does not attract consideration of possible preventative measures.

Subsection (4) forbids images that may identify persons of the class referred to in the subsections. Subsection (5) empowers the court, on the application of a relevant person or of its own motion, to make orders for the purpose of preventing the recording or broadcast of any thing that gives rise to an exclusionary ground or a contravention of subsection (4).

Subsection (7) provides that nothing in SCA s 128 (or DCA s 179) limits the circumstances in which the court may decide to permit the recording or broadcasting of judgment remarks of the court or the person to whom the court, subject to the rules, decides to grant permission to record or broadcast judgment records of the court.

The judgment remarks of the court in relation to a criminal trial mean the delivery of the verdict and any remarks made by the court when sentencing the accused person that are delivered or made in open court. In relation to any other proceeding, the phrase means any remarks made by the court in open court when announcing the judgment delivered in the proceedings: SCA s 127; DCA s 178.

Supreme Court Rules (Amendment No 426) 2014 makes provision in respect of making an application for permission to record or broadcast and the manner in which judgment remarks may be recorded. Part 3 of the District Court Rules 1973 makes similar provisions in respect of the District Court except that the application is made to the Court’s Media Coordinator.

Part 13 r 2 of the Supreme Court Rules 1970 provides that an application is to be made by sending an email to the Media Manager. The email is to include as an attachment a completed application in the form published on the court’s website.

Part 13 r 3 makes, amongst other things, provision for the number of persons that may be involved, the nature of equipment used, and the burden of the cost involved.

Part 13 r 5 provides that the news media organisation must, as soon as practicable after the recording is made, make it available to other news media organisations. In the case of a live broadcast the news media organisation must ensure that any other such organisation wishing to broadcast has equal access at the same time to the live feed.

Legislation

  • Bail Act 2013

  • Children (Criminal Proceedings) Act 1987

  • Children and Young Persons (Care and Protection) Act 1998

  • Court Security Act 2005, ss 9, 9A

  • Courts Legislation Amendment (Broadcasting Judgment) Act 2014

  • Crimes (Forensic Procedures) Act 2000

  • Crimes (High Risk Offenders) Act 2006

  • Defamation Act 2005, ss 27, 30

  • District Court Act 1973, Pt 5, s 177(1), s 178, ss 179(1), (2), (3), (4), (7)

  • Supreme Court Act 1970, Pt 9A, s 23, s 126(1), ss 128(1), (2), (3), (4), (7)

Rules

  • UCPR rr 4.15, 14.28, 36.12

  • District Court Rules 1973, Pt 3, Pt 52 r 3

  • Local Court Rules 2009, Pt 8

  • Supreme Court Rules 1970, Pt 13, rr 2, 3, 5

  • Supreme Court Rules (Amendment No 426) 2014

Practice Notes

  • Practice Note SC Gen 2 “Access to Court Files” (Supreme Court)

  • Practice Note No 11 “Access to Court Files by Non-Parties” (District Court)

Further references

  • JJ Spigelman, “The principle of open justice: a comparative perspective” (2006) 29(2) UNSW Law Journal 147

  • A Cannon, “Policies to Control Electronic Access to Court Databases” (2001) 11(2) JJA 100

  • JJ Spigelman, “Seen to be Done: the Principle of Open Justice” (2000) 74 ALJ 290

  • JJ Spigelman, “Seen to be Done: the Principle of Open Justice — Part II” (2000) 74 ALJ 378