Australian Competition and Consumer Commission v ABB Transmission and... [2002] FCA 609 | Case summary

REASONS FOR JUDGMENT 1 This case raises the question whether the court should make available for inspection by Energex Limited, a non-party, statements of agreed facts and outlines of submissions submitted jointly by the Commission, Alstom Australia Limited and three of its executives, in a proceeding begun by the Commission alleging that Alstom, the executives and others were involved in contraventions of ss 45 and 45A of the Trade Practices Act 1974 (Cth). Alstom admitted it had contravened the provisions and its executives admitted they were involved in those contraventions. The only function for the court then was to assess the penalties that were to be imposed. For this the court required evidence, including evidence about the nature and extent of the contraventions and, if known, what loss and damage had been caused: see s 46 of the Trade Practices Act. The parties provided this evidence in the form of statements of agreed facts. Energex is a party that may have suffered loss as a result of the contraventions. It seeks access to the statements of agreed facts and the joint submissions to determine whether it should bring an action to recover those losses. 2 According to the common law civil actions must be heard in open court: Scott v Scott [1913] AC 417; McPherson v McPherson [1936] AC 177. The reason for the rule was explained by Jeremy Bentham in a passage cited in Scott v Scott by Lord Shaw [1913] AC 417, 477: "Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself while trying under trial." (Benthamiana, or Select Extracts from the Works of Jeremy Bentham (1843), p 115). Although its purpose may have been to discipline the judiciary (or as Lord Diplock put it in Harmon v Secretary of State for the Home Department [1983] AC 280, 303 "to keep the judges themselves up to the mark") the rule has other equally important objects. Those objects were explained by Gibbs J in Russell v Russell (1976) 134 CLR 495, 520: "It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view'. This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hall-mark of judicial as distinct from administrative procedure'. To require a court invariably to sit in closed court is to alter the nature of the court." (Citations omitted) 3 The rule is not, however, as broad as one might think. It means only that any person who wishes to attend at a hearing and see or hear what is going on is entitled to do so, provided the courtroom is not already full to capacity, and provided also that the person behaves himself (or herself) appropriately. At one time it was thought that this "ancient law of England" also allowed every person to have access to court records. That was Lord Coke's understanding which he expressed in the preface to the third volume of his Reports in a passage cited in Brown v Cumming (1829) 10 B & C 70; 109 ER 377. But this view has not prevailed. It was not applied in Brown v Cumming itself. In R v Wakefield [1975] 1 WLR 711 it was held that members of the public in court have no right to look at exhibits. In GIO Personal Investment Services Ltd v Liverpool and London Steampship Protection and Indemnity Association Ltd [1999] 1 WLR 984 Potter LJ said (at 995-996) that the law recognises no right which enables a member of the public to examine documents on the court file, though they have been referred to in court or read by the judge. In Herald and Weekly Times Ltd v The Magistrates' Court of Victoria (2000) 2 VR 346 the Victorian Court of Appeal assumed this to be the position. 4 If it be that the common law does not permit access to written evidence or exhibits (that is to say to the material upon which the judge has relied to decide a case) then the rule of open justice will not effectively secure its objectives. I put to one side cases where access is sought for an illegitimate purpose, for example to promote public scandal, to search for libellous material or to obtain confidential information, for they raise different issues. The problem that the common law must confront is the significant change in the conduct of civil litigation that has taken place over the last fifteen years or so. When the rule that court proceedings should be open to the public was first developed the manner in which most cases were conducted gave content to the rule. When the case was called on counsel for the plaintiff would begin by outlining the nature of the claim that bought the parties before the court. He would then summarise the evidence to be led, making references, in more or less detail, to relevant documents. Oral evidence would then be called from the witnesses. The defendant's case followed a similar path. The case would conclude with oral arguments. Members of the public who exercised their free right of access could discover what the case was about, though they might not always follow the submissions on the law. 5 Now things are different. In the belief that the resolution of civil cases will be more efficient and no less fair than in the past (a view which is not universally held) parties are required to submit their evidence in chief in the form of affidavits or written statements (with exhibits) together with written outlines of their submissions both on the facts and the law, well before the hearing. The efficient judge will read the material in private and when the hearing begins will usually announce that fact to the parties, thus relieving them of the burden of reading out evidence and rehearsing their arguments. Oral evidence will usually be confined to the cross-examination of key witnesses. To the bystander who has not read the affidavits, this evidence will be largely meaningless. Counsel's arguments will be limited to expanding points already made in the written submissions, and will make little sense to any person not familiar with the detail. One unintended result is that the rule of open justice will not fully expose what has taken place in court. Much of what now occurs is no different from a court sitting in private. 6 Although historically a non-party does not have the right to inspect documents and other material that have found their way into evidence, there is no doubt the court has an inherent power to make that material available on request. Some courts, and the Federal Court is an example, have adopted rules to facilitate this process. For example O 46 r 6 of the Federal Court Rules sets out those documents which any person may inspect as of right (O 46 r 6(2)) and those documents which a person may inspect provided leave is first obtained (O 46 r6(3)). Documents which may be inspected as of right include originating processes, pleadings, applications, judgments, orders and reasons for judgments. Documents which may be inspected with leave include affidavits, admissions, written submissions, interrogatories, answers to interrogatories, evidence taken on deposition, subpoenas and documents lodged in answer to subpoenas. It should be noted that O 46 r 6(3) does not draw a distinction between documents which have been filed in the registry of the court and documents which have found their way into evidence during the course of a trial. 7 The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases where leave is required. In giving the answer I propose to confine myself to those cases where a non-party seeks access to material which has been relied upon by the judge. In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course. It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved. Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. Inspection should only be refused in exceptional circumstances. I think that the position is a fortiori when the material has been read by the judge in private and is not read out in court. If that material is not made available for inspection then the manner in which the case has been conducted will only be known to the parties. That is an unacceptable position. 8 It follows that Energex should have access to the documents. Nothing put forward by the Alstom parties suggests that it would be contrary to the interests of justice if access is allowed. In any event, even if the general rule which I have stated is not to be applied, Energex should still have access. The Commission successfully prosecuted a market rigging case. Many parties have been adversely effected by the contraventions. Energex may be one of them. Surely a potential victim of anti-competitive conduct is entitled to see the evidence in which the court found that there had been contraventions to decide whether he will prosecute a civil case. If the material had been read in open court it would be in the public domain. That the judge read the material in private should not disadvantage that person. 9 I note in passing that when deciding the case against the Alstom parties I made orders that statements of agreed facts in that case were relevant facts for the purpose of s 83 of the Trade Practices Act. Section 83 provides that in proceedings under the Trade Practices Act a finding of any fact made in proceedings for a contravention of the Trade Practices Act is prima facie evidence of that fact and may be used in other proceedings. Although there is some doubt as to whether I should have made the order (as to which see Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No. 2) [2002] FCA 559) it would have little practical utility if Energex were to be denied access to the documents which founded the order. It is true that s 83 only comes into operation when a new proceeding is commenced. But commonsense suggests that a party such as Energex, who may obtain a forensic advantage by use of the section, should have access to the findings to decide whether those findings will usefully advance its position. 10 This case comes up on appeal from a decision of the Registrar. The Registrar made orders giving Energex access to the documents in question. As I am in agreement with the orders made below, I propose to dismiss the appeal. Energex should have its costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited

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