BEANLAND [2026] WASCA 19 (30 January 2026)

The limited rights of a non-party to obtain access to records in the Supreme Court

1. The Supreme Court is established as a superior court of record: Supreme Court Act 1935 (WA) s 6(2). The court retains a general power to release any record to any person as it considers fit: Rules of the Supreme Court 1971 (WA) O 67B r 4. See also, as to appeals, r 73 of the Supreme Court (Court of Appeal) Rules. But the right of a non‑party to access a record of the court is governed by the rules of the court. While, ordinarily, a court order is a public document that may be inspected and copied, the general law does not otherwise recognise a right to obtain access to a document that is held as part of the court's record: Titelius v Public Service Appeal Board & Ors;[1] John Fairfax Publications Pty Ltd v Ryde Local Court.[2]
2. The rules provide the relevant source of a non‑party's right to access a record of the court. The critical rule of general application to civil proceedings and civil appeals is O 67B of the Rules of the Supreme Court. This distinguishes between proceedings commenced on or after 1 March 2018 and proceedings commenced before 1 March 2018.
3. With civil appeals commenced before 1 March 2018, the right of a non‑party to access documents held by the court is restricted to the appeal notice and any judgment or order made by the court: Rules of the Supreme Court O 67B r 16(1)(c) and (d). With civil appeals commenced from 1 March 2018, a non‑party may, in general, access more documents as of right: Rules of the Supreme Court O 67B r 6(3) and (4) item B. These include the appeal notice; any notice of cross‑appeal; the list of exhibits referred to the Court of Appeal; any order made by the Court of Appeal; and the judgment and reasons of the Court of Appeal. Relevantly, however, there is no entitlement to access a transcript. Access to a transcript may only be granted, with the court's permission, in accordance with div 4 of O 67B.
4. The review application is in the context of a criminal appeal rather than a civil appeal. Accordingly, O 67B of the Rules of the Supreme Court is not applicable. See O 67B r 2(1) and the definition of 'proceedings' in O 67B r 1(1). Nevertheless, it is instructive to consider the circumstances in which a non‑party will be permitted to access information, a record or other thing in a civil appeal.
5. In limited circumstances the court's media manager must give access permission under O 67B r 10 of the Rules of the Supreme Court. That possibility may be put to one side for present purposes. It presupposes that the applicant for access is a media representative and the court has already given another media representative permission to have access to the information, record or other thing. There is nothing analogous between that situation and the present review application. Otherwise there are circumstances in which the court must give access permission (O 67B r 9(3)) and other circumstances in which the court may give access permission (O 67B r 9(4) - (6)).
6. One of the situations in which the court must give a non‑party access permission is where the application relates to the transcript of a hearing that the non‑party was entitled to attend (O 67B r 9(3)(a)(ii)). This is subject to the court being satisfied of various matters. The matters of which the court must be satisfied relevantly include the following: (1) that the application does not relate to an audio or audio‑visual recording of a hearing (O 67B r 9(3)(b)); (2) that giving permission would not breach any legislation or order of an Australian court (O 67B r 9(3)(d)); (3) that the arrangements necessary to give the non‑party access would not be unreasonably expensive or time consuming for the court (O 67B r 9(3)(e)(i)); and (4) that there is no other good reason to refuse the application (O 67B r 9(3)(f)).
7. The appellant, although a non‑party, was entitled to attend the appeal hearing on 6 and 7 August 2013 that resulted in the court's reasons in The State of Western Australia v Rayney. Any member of the public could have attended the appeal hearing and listened to the parties' oral submissions and the exchanges between the parties' legal representatives and the court. Accordingly, if the appeal had been a civil appeal (and the proceedings had been commenced on or after 1 March 2018) it is to be expected that the appellant would have been given permission to access the transcript of the appeal hearing. Prima facie none of the relevant disqualifying conditions apply to the transcript of the appeal hearing. The position is otherwise with the audio recording of the appeal hearing. Self-evidently this aspect of the appellant's access application would have fallen within the O 67B r 9(3)(b) disqualifying condition ‑ this aspect of the access application relates to an audio recording of the appeal hearing.
8. The circumstances in which, in the context of civil appeals commenced on or after 1 March 2018, the court may give access permission in relation to an audio or audio‑visual recording of a hearing are provided for in O 67B r 9(6) of the Rules of the Supreme Court. Relevantly:

(a) if the recording has been broadcast on the Court's website, the Court may give permission if satisfied that there is no good reason to refuse the application; or

(b) if the recording has not been broadcast on the Court's website, the Court may give permission only if satisfied:

(i) as to the matters in subrule (3)(d) to (f); and

(ii) there is an exceptional reason to do so.

1. The matters in O 67B r 9(3)(d) ‑ (f) are, relevantly and in effect, the matters we have summarised at [20] above. The court must be satisfied as to each of those matters. The court must also be satisfied that there is an 'exceptional reason' to give the non‑party access permission to the audio or audio‑visual recording of the appeal hearing. No guidance is provided as to what may amount to an exceptional reason. Whether something suffices as an 'exceptional reason' will be a matter to be determined by the court on the facts of the individual case. It requires that the reason be 'special' or 'unusual' rather than unique, unprecedented or very rare: Yacoub v Pilkington (Aust[3]alia) Ltd.3
2. Having examined the rules that apply to civil appeals it is now possible to turn to the rules that apply to criminal appeals. It is those rules that govern the present review application.

Rules 70 ‑ 72 of the Supreme Court (Court of Appeal) Rules 2005 (WA)

1. The appellant's access application was made pursuant to r 70 of the Supreme Court (Court of Appeal) Rules. That rule is of relatively recent origin. It was inserted into the Supreme Court (Court of Appeal) Rules by the Supreme Court (Court of Appeal) Amendment Rules 2025 (WA) with effect from 23 May 2025. Rule 70, and the rules that then follow, are based on the regime provided for in r 51 of the Criminal Procedure Rules 2005 (WA).
2. Rule 70 of the Supreme Court (Court of Appeal) Rules is headed '[n]on‑parties may apply for transcripts or other records in criminal appeals'. Rule 70(2) states:

A person who is not a party to a criminal appeal may apply to the Court of Appeal for leave to inspect or obtain a copy of:

(a) the record, or the certified transcript of the record, of any proceedings in the appeal; or

(b) any other record in the possession of the Court of Appeal in relation to the appeal, including documents (including those in electronic form) and other things tendered in evidence in the appeal.

1. Rule 70(2) contemplates applications for leave 'to inspect or obtain a copy of' certain 'records' in relation to a criminal appeal. The term 'record' is defined in r 3. It means, among other things, any thing or process on or by which information is recorded or stored (whether or not the use or assistance of some electronic or other device or process is required to recover or convey the information). The term 'record' clearly contemplates the transcript of an appeal hearing. The language of r 70(2)(a), and the heading to r 70, confirm that the rule contemplates access applications in relation to the transcript of an appeal hearing. So too, in our view, the term 'record' as used in r 70(2) encompasses the audio recording of an appeal hearing. Any such audio recording is a thing or process by which information is recorded and stored of a proceeding in an appeal, namely, the appeal hearing. Alternatively, it is a thing or process by which information is recorded and stored in the possession of the Court of Appeal in relation to an appeal.
2. It should not be forgotten that the court does not hold copyright in any transcript of an appeal hearing. Nor does the court hold copyright in the audio recording of an appeal hearing. At all times the copyright is reserved to the State of Western Australia. But in granting leave to a non‑party to inspect or obtain a copy of the transcript or audio recording of an appeal hearing the court is acting for and on behalf of the State. The court is empowered to do so by virtue of the rules.
3. Rule 70 goes on to prescribe how an access application is to be made (r 70(3)). Ordinarily, unless an application may be made to the 'media manager', the application must be made in writing to the Court of Appeal and must 'set out the grounds' for the application (r 70(3)(b)). The application may be dealt with by a single judge of appeal or by a registrar (r 71(2)). The judge or registrar may order that the application be served on a party to the appeal entitling the party to be heard on the application (r 71(5)(b)).
4. Rule 71 then states:

(6) A single judge or registrar dealing with the application may grant the application if satisfied that the applicant has sufficient cause to be granted leave, but otherwise must refuse the application.

(7) Subrule (6) has effect subject to:

(a) the Sentencing Act 1995 section 22; and

(b) any other order or written law that prohibits or restricts the publication or possession of the record to which the application relates.

(8) A single judge or registrar may grant the application:

(a) wholly or in part; and

(b) unconditionally or subject to conditions. (emphasis added)

1. Accordingly, apart from presently irrelevant public document exceptions, a non‑party has no right or entitlement to access records in relation to a criminal appeal. A discretionary power to grant leave to inspect or obtain a copy of a record in relation to a criminal appeal is conditioned on a judge or registrar first being positively satisfied that the applicant for access has 'sufficient cause' to be granted leave. The applicant bears the onus of so satisfying the judge or registrar. Whether the applicant is able to do so will depend on the stated grounds for the access application. An access application must be refused unless the judge or registrar is satisfied that there is sufficient cause.
2. The power under r 71(6) is also subject to earlier orders and written laws that prohibit or restrict the publication or possession of the record the subject of the access application. No such matters arise in the present review application. An access application may be granted wholly or in part and unconditionally or subject to conditions.
3. One key issue, for present purposes, is what constitutes 'sufficient cause' within the meaning and for the purpose of r 71(6) of the Supreme Court (Court of Appeal) Rules. If there is sufficient cause then the discretionary power to grant leave to inspect or obtain a copy of a record is enlivened. In the latter respect the court retains a residual discretion. It will be necessary to return to the exercise of the discretion in due course. For now it should be observed that discretion will fall to be exercised in circumstances where the applicant for access has already established sufficient cause to be granted leave.
4. For completeness, mention should be made of r 72. This deals with the cost of supplying a copy of the transcript or other record to which leave is granted to obtain a copy. Subject to two exceptions, neither of which is presently relevant, the applicant for access must pay, or make arrangements to pay, the cost of supplying the copy unless the Court of Appeal orders otherwise. A registrar may determine the cost of supplying the copy.

1. The appellant invoked the principle of open justice in arguing that he had established sufficient cause in terms of r 71(6) of the Supreme Court (Court of Appeal) Rules. It has been said that the 'principle of open justice' is frequently used judicially and extra‑judicially in a way that can obscure rather than enlighten: Re Hogan; Ex parte West Australian Newspapers Ltd.[4] While bearing that warning in mind, something should now be said about the principle of open justice. At the outset it should be emphasised that the principle of open justice is just that ‑ it is a principle not a freestanding right. At the most, as a principle, it may guide the court in determining a range of matters including when an access application should be granted pursuant to an express or implied power to grant access: John Fairfax Publications Pty Ltd v Ryde Local Court [29].
2. At its core the principle of open justice is that court proceedings should be conducted publicly and in open view.
3. Open justice facilitates public scrutiny of the way in which the courts decide cases; it enables the public to understand how the justice system works and why decisions are taken: Dring v Cape Intermediate Holdings Ltd;[5] Lee v Deputy Commissioner of Taxation.[6] It is a principle of law serving the public interest with a primary objective of promoting public confidence in and respect for the administration of justice: Hogan v Hinch.[7] As Gibbs J explained in Russell v Russell:

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'.[8] (citations omitted)

1. The principle of open justice is of increased significance in criminal proceedings. Kirby P has observed that it is 'especially undesirable' that criminal proceedings should be conducted in closed court or under limitations of publicity. This is because what is at stake is not the private interests of citizens but the public interest in the due administration of justice: Raybos Australia Pty Ltd v Jones.[9]
2. However, the open justice principle is not absolute. It has long been subject to qualifications consistent with the judicial function and the interests of justice: Hogan v Hinch [20] - [21], [46].
3. The principle of open justice is entrenched in this State both in legislation and in practice. For example, in the context of the present review application, criminal prosecutions in a court are ordinarily to be in open court; and the courtroom where the court sits is to be open to the public: Criminal Procedure Act 2004 (WA) s 171(2). And, by long tradition, this court and its predecessor hears criminal appeals in open court; and the court is open to the public. More generally, this court and its predecessor have on many occasions reiterated the importance of the principle of open justice. See eg Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd;[10] Re Robins; Ex parte West Australian Newspapers Ltd;[11] Titelius v Public Service Appeal Board & Ors [100]; Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd;[12] Ex parte West Australian Newspapers Ltd;[13] Re Hogan; Ex parte West Australian Newspapers Ltd [30] - [34]; AW v Rayney [No 4].[14]
4. The application of the principle of open justice is limited. The ordinary rule is that court proceedings are conducted in public and in open view. But the ordinary rule is silent on the issue of the provision of court records to a non‑party: Re Hogan; Ex parte West Australian Newspapers Ltd [31].
5. There are, however, many cases in which the open justice principle has been invoked where a non‑party seeks access to a court record. There are cases seeking access to transcripts; cases seeking access to documents that have been relied on in open court (eg pleadings, written submissions, affidavits or exhibits); and cases seeking access to documents that have been filed with the court but are yet to be relied on in court. Each category of case gives rise to different issues and the open justice principle operates in different ways. The present review application is confined to the transcript of an appeal hearing and the closely related record as is constituted by the audio recording of the same appeal hearing. In the circumstances it is only necessary to mention some of the authorities concerning access applications in relation to transcript of proceedings.
6. Ordinarily, informed by the open justice principle, other Australian jurisdictions have allowed media organisations access to the transcript of court proceedings almost as a matter of course. See eg Linter Group Ltd (in liq) v Price Waterhouse;[15] Idoport Pty Ltd v National Australia Bank Ltd;[16] Eisa Ltd v Brady;[17] Australian Securities & Investments Commission v Rich.[18] The reason for this is self‑evident. Not all members of the public are able to attend court proceedings. It is consistent with and advances the principle of open justice that media organisations be allowed access to the transcript of court proceedings so as to publish fair and accurate reports of those proceedings.
7. It might be thought that, ordinarily, media organisations are better placed than non‑media organisations to demonstrate sufficient cause to be granted leave to inspect or obtain a copy of a transcript of a court proceeding. This is because, ordinarily, a media organisation will be seeking such access to obtain a full understanding of what occurred at a hearing before the court. The acceptance that such a ground constitutes sufficient cause for the purposes of an access application is consistent with and advances the open justice principle.
8. The position may be more balanced where the applicant for access to the transcript of a proceeding is a person other than a media organisation. Much will depend on the nature of the proceedings and the purpose for which access is sought. That said, there are many examples of access being permitted and, outside of historic divorce proceedings, no recent examples of access being denied. See eg Bougainville Copper v RTG Mining Inc.[19] Indeed, the Federal Court of Australia has gone as far as to publish a General Practice Note, Access to Documents and Transcripts Practice Note (GPN‑ACCS), dealing with access to transcript in the following way (par 6.3):

A party or non-party (including the media) may purchase the whole, or a part, of a transcript in a proceeding from the Court's Authorised Transcript Provider, unless the Court has ordered or directed that a transcript:

(a) is, in whole or in part, confidential or the subject of restrictions on access; or

(b) may not be published or reproduced without leave of the Court.

1. We are satisfied that the appellant has established 'sufficient cause' to be granted leave within the meaning and for the purpose of r 71(6) of the Supreme Court (Court of Appeal) Rules.
2. The issue should be analysed in terms of whether the appellant has a 'sufficient cause' rather than some substituted language not found in r 71(6) of the Supreme Court (Court of Appeal) Rules. We note, in this regard, that in access applications by non‑parties under O 67B r 16(1)(e) of the Rules of the Supreme Court (or its predecessor) it has been common to require that an applicant for access have a 'legitimate interest' or a 'legitimate purpose' to inspect or obtain a copy of a relevant court record. From there it has been common to require that the applicant further demonstrate that access is 'necessary' for the legitimate interest or legitimate purpose pursued by the applicant for access. It is not necessary to consider whether this is an appropriate framework for the purpose of such an access application. We are dealing with an access application under r 70 of the Supreme Court (Court of Appeal) Rules. The test for leave is prescribed by r 71(6). The issue for the court is whether it is satisfied that the appellant has 'sufficient cause' to be granted leave.
3. The appellant has not established that he has some private right, interest, obligation or liability that may be affected, directly or indirectly, by what occurred during the appeal hearing in August 2013. But nor is it necessary that the appellant do so. All that is required is 'sufficient cause'. What, in a specific case, amounts to sufficient cause is a question of fact and degree that will turn on the particular circumstances of the case and the grounds advanced for seeking access to the relevant record. It will also depend on the kind of record the subject of the access application. In all cases what suffices for sufficient cause is informed by the open justice principle.
4. Here, while the appellant seeks leave to inspect and copy two distinct records ‑ a transcript and an audio recording ‑ both records are essentially concerned with the same thing: the content of the parties' oral submissions, and the exchanges between legal representatives and the court, at the appeal hearing. The appeal hearing occurred in open court. Any member of the public could have attended the appeal hearing on 6 and 7 August 2013 and heard what was said at the appeal hearing. There was no occasion for a non‑publication order or a suppression order. In these circumstances it is relatively undemanding to establish 'sufficient cause' within r 71(6). The principle of open justice provides a strong reason for allowing access to court records that facilitate public scrutiny and understanding of court decisions. A record of the proceedings at the appeal hearing is of that nature. An applicant who seeks access to such a record for an appropriate reason, one that is consistent with and advances the open justice principle, will have sufficient cause within r 71(6).
5. Still, even in the case of the transcript of an appeal hearing in open court, not all grounds will suffice to establish sufficient cause. Mere personal curiosity is unlikely to constitute sufficient cause. All the more so some salacious or prurient interest borne out of a craving for amusement, gratification or whim will not amount to a sufficient cause.
6. The appellant provided little information in his application to the registrar as to his grounds for seeking access to the transcript and audio recording of the appeal hearing. In substance the appellant said no more than that he was a law student studying in Brisbane. That, in our view, was plainly inadequate to establish sufficient cause. The registrar was correct to refuse the appellant's access application based on the information that was before the registrar. But in the appellant's affidavit and submissions in support of the review application the appellant identified more precisely his grounds for the access application. It is apparent that, in connection with his ongoing studies and voluntary work, the appellant seeks to access the transcript and audio recording of the appeal hearing to help him understand the submissions and the issues in the appeal. In particular, the appellant wishes to consider how the presentation of the appeal contributed to the appeal outcome.
7. In substance, the appellant seeks access for his educational and professional advancement ‑ but, in so doing, the appellant wishes to scrutinise the way in which the court decided The State of Western Australia v Rayney and to understand why the decision was taken by reference, in particular, to what occurred at the appeal hearing. This, in our view, constitutes 'sufficient cause' within the meaning and for the purpose of r 71(6) of the Supreme Court (Court of Appeal) Rules. The appellant seeks access to the transcript and audio recording of the appeal hearing for an appropriate reason that is consistent with and advances the open justice principle.
8. Accordingly, the discretion to grant the access application is enlivened. The discretion, like other general statutory discretions, is limited by the subject matter, scope and statutory purpose of the rule. It is, in our opinion, a discretion to be exercised in the interests of justice having regard to all the circumstances. The court undertakes a fact specific balancing exercise of the competing material considerations bearing on the interests of justice.
9. The considerations that will inform the interests of justice in the exercise of the discretion under r 71(6) will ordinarily include:

1. The basis on which the court is satisfied that the applicant has sufficient cause to be granted leave to inspect or obtain a copy of the record. 2. The nature of the record the subject of the access application. In particular, it will be relevant to consider whether:

(a) the record concerns the transcript of an appeal hearing in open court that the applicant for access was entitled to attend ‑ this, for reasons already explained, militates strongly in favour of the grant of leave;
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> (b) the record concerns a non‑confidential document that has been relied on by a party in open court ‑ this, in our view, ordinarily supports the conclusion that it is in the interests of justice that there be a grant of leave. See generally Seven Network Ltd v News Ltd (No 9).[20]

1. Whether, notwithstanding that r 71(7) of the Supreme Court (Court of Appeal) Rules may not operate, there is an order or written law that bears on whether the applicant should be permitted to access the record. 2. Any other privacy or confidentiality issue. 3. The attitude of the parties to the appeal to the access application. 4. The extent to which access to the record is consistent with and will advance the open justice principle. 5. Whether the arrangements necessary to give the applicant access to the records the subject of the access application would be unreasonably burdensome or time consuming for the court or a party. 6. What, if any, conditions might ameliorate or reduce legitimate concerns in granting the applicant leave to access the record.
2. Something more should be said about the seventh consideration. It does not arise in the present review application. It is a relatively simple matter for the Court of Appeal office to provide a copy of the transcript of a two‑day appeal hearing. There is more involved in preparing an audio recording of the appeal hearing. But it is possible for this to be arranged without unduly distracting the court's administrative resources from their day‑to‑day tasks. In any event, out of pocket and the other costs of supplying an audio recording can be dealt with through r 72 of the Supreme Court (Court of Appeal) Rules.
3. It will not always be the case that arranging access can be accommodated with relative ease. Sometimes an access request, if granted, might require the court to deploy substantial administrative resources. For example, sometimes there may be suppression orders or non‑publication orders which might mean that considerable care and attention will need to be given to preparation of any copy of a transcript or audio recording. Sometimes it might be that an applicant for access seeks numerous documents. Finding those documents, and reproducing them, may on occasions be unjustifiable and contrary to the interests of justice despite countervailing public interest considerations. The court has limited administrative resources. It cannot be expected that the court will grant leave to access records where to do so would be unreasonably burdensome or time consuming for the court.
4. There may, in a particular case, be other considerations besides those mentioned at [54] above. For example, in the present case there is a material consideration, which we have taken into account, which militates against the favourable exercise of the discretion. This is the considerable time that has passed between the appeal hearing and the appellant's access application. The considerable passage of time tends, in our view, to reduce the extent to which it is in the interests of justice that the appellant be granted leave to access the transcript and audio recording of the appeal hearing. The 12 years that has passed since the decision in The State of Western Australia v Rayney suggests that the public interest in scrutinising how and why the decision was taken is more theoretical than real. That is even more so given the extensive reasons of the court for its decision.
5. Standing back, and considering the competing material considerations bearing on the interests of justice, this is a marginal case. The appellant has established sufficient cause for the grant of leave. But, as explained, the basis for that sufficient cause is more theoretical than real. Otherwise the arrangements for access are not unreasonably burdensome or time consuming. The parties are neutral so far as the access application is concerned. There are no privacy or confidentiality issues and no orders or written laws that bear on access.
6. The consideration that tips the balance in favour of the grant of leave is the nature of the records the subject of the access application. In a criminal appeal the court ought, in our view, be predisposed to granting leave to access the transcript of an appeal hearing in open court where the applicant for access was entitled to attend the appeal hearing. In the equivalent situation in a civil appeal, commenced on or after 1 March 2018, the court's rules mandate access provided that, among other things, the access arrangements are not unreasonably expensive or time consuming and there is otherwise no good reason to refuse the application: Rules of the Supreme Court O 67B r 9(3) (see [20] above). The discretion under r 71(6) of the Supreme Court (Court of Appeal) Rules in relation to criminal appeals ought, ordinarily, to be exercised conformably with the rule that governs civil appeals. That is particularly so where the open justice principle is acknowledged to be of increased significance in criminal proceedings.
7. We are satisfied that, in all the circumstances, it is in the interests of justice that the appellant be granted leave to access the transcript of the appeal hearing. We would grant leave under r 71(6) of the Supreme Court (Court of Appeal) Rules. It follows that the review application should be allowed.
8. Consideration must then be given as to the arrangements for access. This must be approached practically. The first thing is the question of costs. The appellant has sought a fee waiver. The starting point is that the appellant should meet the relevant costs. Rule 72(2) of the Supreme Court (Court of Appeal) Rules provides:

If a person, pursuant to leave granted under rule 70 or 71, wants to obtain a copy of a record, the person must pay, or make arrangements to pay, the cost of supplying the copy, unless the Court of Appeal orders otherwise.

1. We would not order otherwise. The appellant has said that he is a pensioner. But, as disclosed in his affidavit, the appellant primarily seeks access for his educational and professional advancement. It is appropriate that the appellant pay the cost associated with such access.
2. Ordinarily it would be easiest for the applicant for access to attend the Court of Appeal office and read the transcript. That is not viable in the present case. It would be possible for the appellant to be provided with a copy of the transcript. This would come at a relatively substantial cost. The basic fee for an individual is $30.50 and $8.90 per page. We are reluctant to impose this cost on the appellant. That is even more so where, on the evidence, the appellant's physical impairment is such that he could not read the transcript and wishes instead to be granted access to an audio recording of the appeal hearing.
3. Ordinarily we would not countenance providing access to an audio recording of the appeal hearing. It would be enough that the applicant for access was permitted to read the transcript. No doubt that is what informs the distinction between access to the transcript of a proceeding and access to the audio recording of a proceeding as is found in O 67B r 9 of the Rules of the Supreme Court (see [20] ‑ [23] above). The appellant's physical impairments, and the locality of his residence, make this an exceptional case. We are satisfied that arrangements should be made so that the appellant may listen to the appeal hearing ‑ in effect the appellant should be granted access to an audio recording of the appeal hearing. This will obviate any necessity for access by means of a copy of the transcript. The order granting leave will be limited to leave to obtain a copy of the audio recording of the appeal hearing.
4. The provision of an audio recording of an appeal hearing, to a person residing outside Western Australia, creates difficulties should there be any misuse of the audio recording. There is no suggestion of any possibility of misuse in the present case. It is important, however, that the court retain control over the use of its records. Accordingly, the grant of leave to access the audio recording will be subject to the appellant first providing an appropriate undertaking to the court. The imposition of such a condition is permitted by r 71(8) of the Supreme Court (Court of Appeal) Rules.
5. The form of the undertaking is specified at [67](4) below. First, as the appellant resides out of Western Australia, it is necessary that he submit to the jurisdiction of the court (par (a)). Second, conformably with the reasons that the appellant has given for seeking access ‑ and the basis on which the court is willing to grant access ‑ the appellant must give appropriate undertakings as to the use that will be made of the audio recordings (pars (b) and (c)). Third, it is appropriate that the audio recording be returned to the court after the appellant has been provided with a reasonable time to listen to its contents (par (d)). We consider that three months will be ample. If, however, further time is required, the appellant will be able to approach the court under the order for liberty to apply.

1. The appellant's review application is allowed. 2. The registrar's decision to refuse the appellant's access application is set aside. 3. In substitution thereof, subject to par 4 below, the appellant has leave to obtain a copy of the audio recording of the appeal hearing conducted on 6 and 7 August 2013 (the 'audio recording') in appeal CACR 264 of 2012 (the 'appeal') (being the appeal hearing that resulted in the decision The State of Western Australia v Rayney [2013] WASCA 219). 4. Before the appellant may obtain the audio recording pursuant to par 3 above he must first file an undertaking to the court that:

(a) He unconditionally submits to the jurisdiction of the Supreme Court of Western Australia.
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> (b) He will not copy, publish, broadcast or disseminate the audio recording (either in whole or in part).
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> (c) Subject to further order of the court, he will only use the audio recording for one or both of the following purposes, namely: > > > (i) to help him understand the submissions and the issues in the appeal;
> >
> > (ii) to allow him to study how the presentation of the appeal contributed to the appeal outcome. > >
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> (d) Subject to further order of the court, he will return the audio recording to the Court of Appeal registrar at the Supreme Court of Western Australia within 3 months after its receipt by him.

1. The appellant has liberty to apply on 3 business days' notice in respect of his undertaking to the court.
2. In accordance with r 72(4) of the Supreme Court (Court of Appeal) Rules the Court of Appeal registrar will determine the cost of supplying the appellant with an audio recording of the appeal hearing. The appellant must pay, or make arrangements to pay, those costs before being provided with the audio recording.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Titelius v Public Service Appeal Board & Ors [1999] WASCA 19; (1999) 21 WAR 201 [84], [88], [96] ‑ [100].

[2] John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 [29], [31].

[3] Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 [66].

[4] Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221; (2009) 41 WAR 288 [30].

[5] Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38; [2020] AC 629 [42] ‑ [43].

[6] Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 [84].

[7] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20].

[8] Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, 520.

[9] Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, 58.

[10] Re Bromfield, Stipendiary Magistrate; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, 164 ‑ 165, 179 ‑ 183, 191 ‑ 192.

[11] Re Robins; Ex parte West Australian Newspapers Ltd [1999] WASCA 16; (1999) 20 WAR 511 [5] ‑ [16].

[12] Re Her Honour Chief Judge Kennedy; Ex parte West Australian Newspapers Ltd [2006] WASCA 172 [36] ‑ [42].

[13] Ex parte West Australian Newspapers Ltd [2008] WASCA 209; (2008) 38 WAR 177 [42] ‑ [47].

[14] AW v Rayney [No 4] [2012] WASCA 117 [29] ‑ [34].

[15] Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90 [2] ‑ [3].

[16] Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769 [12] ‑ [16].

[17] Eisa Ltd v Brady [2000] NSWSC 929 [23].

[18] Australian Securities & Investments Commission v Rich [2001] NSWSC 496; (2001) 51 NSWLR 643 [11] ‑ [12].

[19] Bougainville Copper v RTG Mining Inc [2018] VSC 499 [8], [13] ‑ [19], [30] ‑ [31].

[20] Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394; (2005) 148 FCR 1 [25] ‑ [28].