11.1 An important aspect of the open justice principle is the matter of access to and reporting of the contents of court documents. In this chapter, the Commission examines whether there should be a right of access to documents involved in court proceedings, which documents should be covered by such right and whether there should a right to publish the contents of these documents.
11.2 This chapter and Chapter 9 are linked in the following way. Chapter 9 deals with the principle that fair and accurate reporting of open court proceedings constitutes a defence to sub judice liability. To the extent that the media’s right to report such proceedings includes a right to report on the contents of documents involved in them, the scope of the defence is enlarged.
11.3 At common law, a court file is not a public register. Access by non-parties to documents on file in a court registry is regulated by statute or by rules of court.1 The approach regarding access to documents varies among Australian courts. In some cases, the rules provide for access as of right to the entire file,2 whilst some rules restrict access to specific documents, for example, certain affidavits.3 In other courts, access to a file can be secured only by leave of the court or a registrar.4
11.4 In New South Wales, the Supreme Court Rules 1970 Part 65 rule 7 provides that a person who is not a party to proceedings may only obtain access to court documents relating to those proceedings on leave of the court. Access will normally be granted in respect of pleadings and judgments if the proceedings to which they relate have concluded, or if they are documents that record what was said in open court or have been admitted into evidence, or relate to information that would have been heard in open court.5 In other circumstances, access to documents should only be granted in exceptional circumstances.6 Leave of the court is also required for access to documents relating to proceedings in the District Court7 and the Local Courts.8
11.5 Generally, therefore, the media do not have any general right of access to documents kept on the court file of proceedings.9 Nor do they appear to have any right of access to documents produced by one party to another on discovery or on subpoena, without being actually put on the court file. For a party or her/his legal adviser to disclose them to the media without the court’s permission constitutes a breach of the implied undertaking not to use such documents for a “collateral purpose”.10
11.6 There are, however, two apparent exceptions to these rules denying access. One is where the document has been admitted into evidence.11 The other is where the contents of the document are read out or are deemed to have been read out12 in open court. They then become part of the proceedings and may be published by the media,13 unless reporting is prohibited by a suppression order.
11.7 It may be questioned whether documents which are only partly read out in court, or which are not read out but merely referred to, or which are simply handed up to the judicial officer without being admitted into evidence, become part of the proceedings for the purpose of public access to them. In several cases, the courts have considered this issue in the context of documents which initiate process, such as a statement of claim in civil proceedings, or a charge or complaint in criminal proceedings.14 It seems to be the general view that such documents, except for those parts which have been read out, do not constitute part of proceedings conducted in open court, and therefore their contents may not be published by the media.
11.8 There is English authority to the effect that it is a contempt of court for a journalist to inspect documents on a court file without leave of the court if it was known that leave was required but not obtained, or if leave was obtained by deceit or trickery, or if, to the knowledge of the journalist seeking access, the court officer acted under a mistake that the journalist was entitled to inspect the document, although the mistaken belief was not induced by any deception.15 However, the court was prepared to excuse the publisher from contempt due to the fact that the publisher had no intention to interfere with the administration of the course of justice, despite him having the knowledge that the published information was obtained without authorisation.16
THE COMMISSION’S TENTATIVE VIEW
11.9 In the Commission’s view, the law should be clarified in relation to reporting on documents by the media. In accordance with the fundamental notion of open justice, the Commission considers that there should be a general public right of access to documents (including electronic material, sound or visual recordings), where those documents, or the relevant parts of them, have either (a) been admitted into evidence (as, for example, with a documentary witness statement or an affidavit), (b) been read out in open court, or (c) constitute part of the pleadings, information, indictment or summons, on which the proceedings are based. The general right of access should only arise after proceedings in open court have commenced, and should be subject to any lawful order made by the court restricting access to such documents. The law should also make it clear that there is a general right to publish the contents of, or a fair and accurate summary of the contents of, a document of a type referred to above. Again, this right should be subject to any lawful order by the court to restrict publication. If these recommendations are adopted, the Commission suggests that courts establish a system to facilitate ready access by non-parties, such as media people, to the relevant court documents.
PROPOSAL 23
Legislation should provide for a general right to publish the contents of, or a fair and accurate summary of the contents of, a document referred to in Proposal 22. That right should be subject to any lawful order of the court prohibiting the publication of proceedings. The word “document” should have the same meaning as provided for in the Dictionary to the Evidence Act 1995 (NSW).
FOOTNOTES
1. D Butler and S Rodrick, Australian Media Law (LBC Information Services, Sydney, 1999) at para 4.300.
2. See, for example, Rules of the Supreme Court 1996 (Vic) r 28.05 which provides: “When the Registry of the Court is open, a person may, on payment of the proper fee, inspect and obtain a copy of a document filed in a proceeding.” Supreme Court Rules 1997 (NT) r 28.05(1) is similarly worded; see also Uniform Civil Procedure Rules 1999 (Qld) Ch 22 Pt 2 r 981 and Rules of the Supreme Court 1965 (Tas) O 77 r 19, 20.
3. See, for example, High Court Rules 1953 (Cth) O 58 r 8(2); Federal Court Rules 1979 (Cth) O 46 r 6; Criminal Practice Rules 1999 (Qld) Ch 12 Pt 2 r 57.
4. See, for example, Family Law Rules 1984 (Cth) O 5 r 6.
5. Supreme Court Practice Note 97 (9 March 1998).
6. Supreme Court Practice Note 97 (9 March 1998).
7. District Court Rules 1973 (NSW) Pt 52 r 3(2).
8. Local Courts (Civil Claims) Rules 1988 (NSW) Pt 39 r 4(2).
9. See Smith v Harris [1996] 2 VR 335; Ex parte Titelius v Public Service Appeal Board (WA, Supreme Court, Full Court, CIV 1336/98, 19 May 1999, unreported).
10. Alterskye v Scott [1948] 1 All ER 469; Ainsworth v Hanrahan (1991) 25 NSWLR 155; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316.
11. Smith v Harris [1996] 2 VR 335.
12. See R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Tasmania, Supreme Court, No 144/98, Slicer J, 19 November 1998, unreported). In this case, the accused appeared in the Court of Petty Sessions in response to two complaints alleging indictable offences. No charges were read out in open court. The publisher of a newspaper requested details of the allegations contained in the complaints but this was refused by the court. The Justices Act 1959 (Tas) s 74A provides that if an accused is unrepresented, the presiding judicial officer is required to have the charges read to him, unless a written plea has already been entered. Had the accused in this case been unrepresented, the charges contained in the complaint would have been read in open court and a member of the public would have been entitled to repeat the substance of what was stated in court. The accused was, however, represented by counsel. Nevertheless, the Supreme Court of Tasmania held that “representation by counsel obviated the duty of the court to read aloud the charges preferred, but such did not make the contents of those charges confidential to the defendant. A member of the public, attending such hearing, would be entitled to be informed as to why the person charged was before the court …” The court ordered that the newspaper publisher be provided with all details of the contents of the complaints against the accused.
13. See, Smith v Harris [1996] 2 VR 335 at 341; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Tasmania, Supreme Court, No 144/98, Slicer J, 19 November 1998, unreported).
14. See Campbell v Kennedy and Others (1884) LR 3 SC 8; Lucas & Son (Nelson Mail) v O’Brien [1978] 2 NZLR 289; Smith v Harris [1996] 2 VR 335; R v Clerk of Petty Sessions; Ex parte Davies Brothers Ltd (Tasmania, Supreme Court, No 144/98, Slicer J, 19 November 1998, unreported).
15. Dobson v Hastings [1992] 2 All ER 94.
16. Dobson v Hastings [1992] 2 All ER 94.
