Application by non-party to inspect and copy affidavit and written submissions

Rules of the Supreme Court 1971 (WA), O 6 r 3, O 59 r 9, O 67 r 11

1 LE MIERE J: The plaintiff is a Member of the Legislative Assembly and the Treasurer and Minister for Transport and Emergency Services of Western Australia. The defendant is a Member of the Legislative Assembly. On 10 December 2012 the plaintiff commenced this action in which he claims relief for defamatory publications to a journalist, on Twitter, at a press conference and in a radio interview and republication of those publications in newspapers and on websites in December 2012. The plaintiff alleges that the defendant has subsequently published further material defamatory of the plaintiff at a press conference on 16 December 2012 and in a statement to the press on 23 January 2013.

2 On 21 February 2013 I ordered the plaintiff to file and serve an amended writ and a statement of claim. Also on 21 February the plaintiff applied for an order that the defendant not disclose the contents of the statement of claim that is to be filed and served by the plaintiff, other than for the purposes of taking legal advice and for prosecuting her defence of this action. The defendant opposes the making of such an order.

3 In support of the plaintiff's application for an order that the defendant not disclose the statement of claim, counsel for the plaintiff read an affidavit of Nicola Emma Randall affirmed 19 February 2013. I took the affidavit as read and did not require it to be actually read out in court. At the conclusion of argument on the plaintiff's application counsel for West Australian Newspapers Ltd, Channel 7 Perth Pty Ltd and the Australian Broadcasting Corporation, Mr McCarthy, and counsel for Nationwide News Ltd, Ms Galati, each moved for an order that their clients be given access to the affidavit of Ms Randall and to the written submissions referred to by counsel during the hearing. I permitted Mr McCarthy and Ms Galati to make submissions in support of those applications. The plaintiff opposes the media organisations being given access to the documents. The defendant does not. I gave leave to the plaintiff and the defendant to file and serve any written submissions in response to the applications by the media organisations by 12 noon on 22 February 2013. These are my reasons for deciding both the application by the plaintiff and the applications by the media organisations.

4 Ms Randall annexes to her affidavit correspondence between the solicitors for the plaintiff and the solicitors for the defendant and numerous articles appearing in newspapers or online news services. There is evidence that the defendant held a press conference on 16 December 2012. An article on The West Australian online news service said that at the press conference the defendant described this action as 'harassment', 'abuse of legal process' and 'abuse of power' and warned the plaintiff to drop the case or face more revelations about their private life being aired in public during the ensuing court case. The article referred to other things said by the defendant and displayed a card from the plaintiff allegedly given to the defendant. An article appearing on the ABC online news service said that the defendant, who was described as the former partner of the plaintiff, has publicly called on the plaintiff to drop the defamation case against her and that she publicly confirmed allegations of lewd behaviour by the plaintiff and discussed their relationship breakdown in detail. On 17 December the plaintiff's solicitors wrote to the defendant referring to the defendant's press conference, referring to contempt and requesting an undertaking that the defendant would refrain from that or similar conduct and cease her attempt to force the plaintiff to abandon his litigation claim against her. On 18 December the defendant's solicitor informed the plaintiff's solicitors that the defendant would not be holding any further press conferences or making any further public statements about the matters which are the subject of the plaintiff's claim and stated that the defendant provided this undertaking without any admission as to liability.

5 On 20 December the defendant's solicitor wrote to the plaintiff's solicitors proposing that the action be settled. On 19 and 20 December a number of articles appeared in The West Australian newspaper and online news services reporting proposals by the defendant to settle the action. By letter of 21 December to the defendant's solicitor the plaintiff's solicitors rejected the defendant's proposal to settle the action on the terms proposed by her. Between 26 December 2012 and 4 January 2013 a number of articles appeared in The West Australian newspaper and various online news services reporting that the plaintiff had rejected a settlement offer by the defendant.

6 On 3 January the plaintiff's solicitors sent to the defendant's solicitor a letter marked 'strictly private and confidential'. The letter referred to a statement attributed to the defendant's solicitor in The West Australian that:

The court case commenced by my client against your client is going through the (legal) system and 2013 will be very illuminating as to what happens with the matter.

The letter stated that litigation, especially defamation proceedings, are confidential and that pleadings are confidential. The defendant's solicitor responded in a letter of 9 January in which he stated that the use of the word 'illuminating' was intended by him to convey to listeners that the statement of claim that will be filed in the action will illustrate to the defendant and her solicitor the exact nature of the defamations that concern the plaintiff.

7 On 10 January I made orders including that the matter be listed for a strategic conference on 6 March. In a number of articles on online news services on 16 January it was reported that the case had been listed for a hearing in this court on 6 March, which was three days before the State election on 9 March. On 6 February the plaintiff's solicitors wrote a letter marked 'strictly private and confidential' to the defendant's solicitor. The letter requested that the defendant consent to the strategic conference being deferred for a short time and to be held in the week commencing 11 March. A number of articles appeared in The Sunday Times newspaper and online news services between 9 February and 12 February 2013 which reported that the plaintiff wanted to defer the Supreme Court conference until after the State election but that the defendant was set to reject the request and wanted the conference to proceed as scheduled on 6 March.

8 On 8 February the plaintiff's solicitor wrote to the defendant's solicitor stating that the defendant had arrived at the plaintiff's house that morning and made statements concerning this action. The letter also complained of the plaintiff's solicitor's 'strictly private and confidential' letter concerning the court conference scheduled for 6 March being disclosed to a Sunday Times reporter. On 16 and 18 February articles appeared in The West Australian newspaper and an online news service reporting the defendant's visit to the plaintiff's home in a bid to settle this action.

9 On 12 February the plaintiff's solicitor wrote to the defendant's solicitor. The plaintiff's solicitor stated that the plaintiff intended to plead new causes of action arising from statements made by the defendant at a press conference on 16 December 2012 and a statement made by her on 23 January 2013. The plaintiff's solicitor referred to the statement of claim being amended or a new action being commenced and the two actions being consolidated. On 14 February the defendant's solicitor responded to the plaintiff's solicitor by email. The defendant's solicitor said that the defendant did not agree to the adjournment of the strategic conference. The letter referred to a telephone conversation on 11 February 2013 in which the plaintiff's solicitor sought an undertaking from the defendant that she would maintain the confidentiality of the contents of the statement of claim. In relation to that request the defendant's solicitor asked on what basis matters contained in the statement of claim should be maintained as confidential. The letter stated that the plaintiff and the defendant had both commented publicly to the media about the alleged defamatory allegations, that this would seem to be another basis upon which the defendant should not provide the undertaking sought and that the defendant's solicitor was of the view that the defendant, as a public figure, and dealing with matters of public interest, should not be required to provide the undertaking. The defendant's solicitor said that he was prepared to continue to confer on the issue.

10 The primary ground on which the plaintiff brings this application is that the obligation not to use documents or information filed in court for a purpose unrelated to the conduct of proceedings applies to a statement of claim, and hence the defendant is under an obligation not to disclose the contents of the statement of claim other than for the purpose of taking legal advice and for prosecuting her defence of the action. The plaintiff says that the defendant's conduct in disclosing information about the action, including scheduled hearing dates in the court and confidential correspondence between the solicitors, gives rise to a likelihood that the defendant will disclose the contents of the statement of claim to others, including media organisations, if she is not restrained from doing so. The second basis for the application is that the defendant has engaged in, and continues to engage in, conduct which is calculated to deter the plaintiff from proceeding with the action and subject the plaintiff to public criticism to dissuade him from obtaining the adjudication of the court and misrepresent the nature of the proceedings. The plaintiff says that conduct arguably constitutes an interference with the administration of justice and should be restrained by injunction.

Obligation to maintain confidentiality of court documents

11 In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 the High Court explained that the 'implied undertaking' not to use documents or information filed in court for a purpose unrelated to the conduct of proceedings was a substantive obligation which arose by virtue of the circumstances under which the relevant person obtained the documents or information. In discussing the extent of the obligation Hayne, Heydon and Crennan JJ said:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits [96]. (endnotes omitted)

12 Their Honours did not give an exhaustive list of the documents or information to which the obligation attaches. Their Honours said that the general law protection provided by the 'implied undertaking' or obligation 'is often buttressed by protection from rules of court'. Order 67 r 11 of the Rules of the Supreme Court 1971 (WA) regulates which documents filed in the Central Office may be inspected by any person. Any person may inspect a writ and the statement of claim (if any) indorsed on the writ as well as an originating application made under the Corporations Act 2001 (Cth) any appeal notice and any judgment or order. Other documents may only be inspected with leave of the court. Whilst any person is entitled to inspect a statement of claim indorsed on a writ, not all statements of claim are indorsed on the writ. Order 6 r 3, in effect, provides that a statement of claim may not be indorsed on the writ in an action, amongst others, which includes a claim by the plaintiff based on an allegation of fraud or a claim by the plaintiff in respect of defamation, malicious prosecution or false imprisonment. In Gauci v Briffa [2011] WASCA 20 Pullin JA, with whom Murphy and Newnes JJA agreed, referred with apparent approval to the statement in Civil Procedure Western Australia (at [6.3.1]) that the explanation for O 6 r 3 is that a writ of summons is a public document that anyone may inspect, whereas a statement of claim filed separately from the writ, is not accessible by the public as of right and that unproven allegations of fraud should not be available for publication by the mere filing of a writ. The same rationale applies to a statement of claim in a defamation action. The plaintiff is required to include in his statement of claim the imputations which he says arises from the material complained of. The imputations express the act or condition asserted of, or attributed to, the plaintiff or with which the plaintiff is charged and which at that stage of the proceedings are, of course, unproven.

13 In Akins v Abigroup Ltd [1998] NSWSC 254; (1998) 43 NSWLR 539 Mason P, with whom Priestley JA and Rolfe AJA agreed, said that the obligation upon a party who gains access to documents from an opponent pursuant to pretrial processes applies to statements disclosed pursuant to pretrial directions. Mason P noted that strangers to litigation who seek access to witness statements in proceedings in the Supreme Court of New South Wales require the leave of court and said 'a stranger to proceedings would not be in a position superior to that of a party'.

14 In eisa Ltd v Brady [2000] NSWSC 929 Santow J held that the implied undertaking or obligation applies to pleadings. The Australian Financial Review applied for access to both parties' pleadings. Santow J refused access. In considering the principles relevant to the application Santow J said:

There is a further principle which applies to documents brought into existence or produced for the purpose of litigation. It is the socalled Harman principle from Home Office v Harman [1983] 1 AC 280. That principle imposes restrictions upon the party who gains access to documents pursuant to pretrial processes by way of implied undertaking not to use them for a collateral purpose. Thus the principle is that such documents are to be used only for the purposes of the litigation and not for any collateral or ulterior purpose. That serves to constrain one party from gaining advantage by 'feeding' court documents to the Press that favour its case, for that would be a collateral purpose. That principle provides some safeguard against the concern touched on by Ms Hepworth in the earlier quoted correspondence about conflict of interest from forced Press cooperation with a party to get documents which the court is not satisfied to release. As Mason P said in the Court of Appeal in Akins v Abigroup Ltd [1998] NSWSC 254; (1998) 43 NSWLR 539 said at 549 'a stranger to proceedings would not be 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 subject to a Home Office v Harman undertaking'. The principle applies at its core to pretrial discovery, answers to interrogatories, witness statements, affidavits or any admission of facts but may be taken to include pleadings; compare Wilcox J in Springfield Nominees Pty Ltd v Bridgeland Securities Ltd [1992] FCA 472; (1992) 38 FCR 217 especially at 223 [21].

15 In Hearne v Street Hayne, Heydon and Crennan JJ described the breach of the obligation of confidentiality as applying where one party is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information. A plaintiff in a defamation action is compelled by the rules of court to file and serve a statement of claim. The practice of the court requires that the plaintiff include in his statement of claim the very words of which he complains. Furthermore, it is usually necessary to also plead the meaning which the words complained of are said to bear, that is, the precise act or condition asserted of, or attributed to, the plaintiff or with which the plaintiff is charged. That information may become public by being read out or referred to in court at trial or in the course of an interlocutory hearing. However, it may not. The statement of claim may be amended or struck out. The action may be settled or otherwise resolved without any court hearing. The principles which underlie the implied undertaking or obligation of confidentiality apply to the information contained in the statement of claim. The defendant is required, by way of a substantive obligation, not to use the statement of claim or information contained in it for a purpose unrelated to the conduct of the proceedings.

16 I find it unnecessary and inappropriate to determine whether or not the defendant has engaged in conduct which is calculated to deter the plaintiff from proceeding with the action. It is unnecessary to do so because I have found that the substantive obligation not to use documents or information filed in court for a purpose unrelated to the conduct of proceedings applies to the statement of claim. It is inappropriate because the conduct alleged of the defendant is, or arguably amounts to, contempt but this application was not argued as a contempt hearing and the defendant has not been afforded the procedural protections of a contempt hearing.

17 The plaintiff has made good his argument that the defendant is under a substantive obligation not to disclose the information in the statement of claim for a purpose unrelated to the conduct of the proceedings. However, I decline to make an injunction in the terms sought by the plaintiff for the following reasons. First, it is unnecessary because the defendant is under a substantive obligation not to use the information in the statement of claim for a purpose unrelated to the conduct of the proceedings. A breach of the obligation may be enforced by proceedings for contempt. It is generally undesirable to make an injunction in terms which merely reflect an existing duty or obligation. All the more so when a breach of the injunction and a breach of the existing duty or obligation would both be enforced by proceedings for contempt.

18 Secondly, it is unnecessary because the defendant has informed the court, through her counsel, that she will not disclose the information in the statement of claim except for the purposes of the proceedings if the court determines that she is under a substantive obligation not to do so. There is evidence that the defendant, or her solicitor, has kept the media informed of each step taken in the action, including procedural matters. However, counsel for the defendant submitted that there is no evidence from which it may be inferred that the defendant would disclose to the press the contents of any documents to which the implied undertaking or obligation of confidentiality applies. To the contrary, counsel for the defendant informed the court, in effect, that the defendant would not disclose the information in the statement of claim 'if the guidance came from the court that she is required not to do so'.

19 Thirdly, an order which restrains the defendant from disclosing the contents of the statement of claim 'until further order' may result in the defendant being restrained from disclosing the contents of the statement of claim after the implied undertaking or obligation of confidentiality has ceased to operate in relation to the statement of claim. In the Federal Court the rules of that court provide that the implied undertaking ceases to apply to any document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders: Federal Court Rules 2011 (Cth) r 20.03. In British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43 the Victorian Court of Appeal held that the implied undertaking remained in force even though most of the documents had been tendered in evidence in open court. The court drew a distinction between documents produced solely for the purposes of litigation, such as answers to interrogatories and witness statements, and documents which exist independently of litigation, such as preexisting documents obtained by discovery. The court said at [43] that the implied undertaking arguably attaching to a witness statement or answers to interrogatories ceases when such documents were received into evidence. In Hearne v Street, Hayne, Heydon and Crennan JJ said at [96] that where a party is compelled to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given 'unless it is received into evidence'.

20 The obligation to use information in the statement of claim only for the purposes of the action arguably ceases upon the document being admitted into evidence in open court or upon the document being read in court, at least in relation to those parts of the document which are read. It is unnecessary to consider to what extent the obligation ceases in relation to the contents of a document which is referred to in court but not read out.

21 The obligation applies not only to the documents obtained during legal proceedings but also to the information derived from those documents. The obligation restricts not only the use of documents obtained during legal proceedings but the creation and use of new documents that are derived from or based upon information obtained during legal proceedings.

22 The obligation is not to use the document or information derived from it for a purpose unrelated to the conduct of the proceedings. It is sometimes said that the obligation prohibits the use of material for a collateral or ulterior purpose. What is a collateral or ulterior purpose may be a matter for argument. The order proposed by the defendant seeks to confine the permitted use of the statement of claim to be for the purposes of taking legal advice and prosecuting the defendant's defence. Whatever may be the limits of the obligation, it is clear that disclosure of the contents of the statement of claim to the press is a breach of the obligation. It is unnecessary and undesirable to attempt to define the purposes for which the defendant may use the statement of claim in the manner proposed by the plaintiff by making the order which he seeks. It is, or should now be, clear to the defendant that to disclose the contents of the statement of claim or information in it to the press would be a breach of the obligation of confidentiality. In those circumstances there is no reason to believe that the defendant will disclose the information in the statement of claim to the press and it is unnecessary to make the order proposed by the plaintiff.

23 West Australian Newspapers Ltd, the Australian Broadcasting Corporation and Channel 7 Perth Pty Ltd and Nationwide News Ltd seek orders that they be permitted to inspect and copy the affidavit of Nicola Emma Randall sworn 19 February 2013 together with annexures and the written outlines of submissions filed by the plaintiff and the defendant in support of and opposition to the plaintiff's application respectively. As I have said, the affidavit of Ms Randall was formally read by counsel for the plaintiff but not actually read out in court. In accordance with the practice of this court I took the affidavit as read and did not require it to be read out loud in court. As a result, the contents of the affidavit and its annexures were in evidence before the court, and were referred to by counsel in the course of argument but the information in the affidavit and annexures is unknown to anyone else in the courtroom.

24 The court has an inherent power to make material admitted into evidence or produced to the court available on request: Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609 (Finkelstein J). The court has made rules to facilitate making material on the court file available. Order 67 r 11, in effect, entitles any person to inspect and copy certain specified documents and with the leave of the court, any other document. Under the rules the nonparties require leave of the court to inspect the affidavit and the written submissions.

25 Nonparty access to affidavits or documents admitted into evidence has been considered by the courts on many occasions. The general, and in my view proper, approach is that access to affidavits or documents and other material admitted into evidence should be allowed unless there is good reason to refuse access: see my judgment in Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 and the authorities there referred to.

26 The media organisations also seek access to the written submissions of the parties. Normally, outlines of submissions are prepared by counsel to enable the court, when preparing for a hearing, to identify and focus on the essential issues. The document also serves to assist counsel when considering and advancing their oral submissions at the hearing although on occasions points raised in the written submissions are not pursued. Generally speaking, submissions are orally advanced by counsel in open court where the public and the media may hear and report them. The situation which often arises, and which arose here, is that counsel informs the court that they rely upon their written submissions and in the course of oral submissions make reference to particular paragraphs or passages in the written submissions. In those circumstances the court treats the contents of the written submissions as if they had been made in oral argument in open court. The principle of open justice leads to the conclusion that the written submissions relied upon by counsel and treated by the court as forming part of their oral submissions should be disclosed if and when a request to do so is received.

27 In Guardian News and Media Ltd v City of Westminster Magistrates' Court [2012] EWCA Civ 420 the Guardian newspaper applied for access to various documents including skeleton arguments, witness statements and items of correspondence. The application arose out of extradition proceedings brought by the US Government against two British citizens. During the course of extradition hearings in the Magistrates Court the parties' lawyers referred the judge to various documents including skeleton arguments, witness statements and items of correspondence. The hearings took place in open court but the documents were never read out or publicly exhibited. Toulson LJ, with whom the other members of the Court of Appeal of England and Wales agreed, said that in a case where documents have been placed before a judge and referred to in the course of proceedings, the default position should be that access should be permitted on the open justice principle but there may be countervailing reasons [85]. Toulson LJ said that 'central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others' [85].

28 Litigation in this court is increasingly paper focused. Proceedings are often difficult, if not impossible, to understand without access to the documents to which the judge and counsel have access. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, 511 Lord Bingham CJ described the consequences:

The result is that a case may be heard in such a way that even an intelligent and wellinformed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

29 In my opinion there should be a presumption in favour of allowing access to documents that have been placed before the judge and referred to in open court. While access in any particular case will involve the exercise of a discretion and be fact specific, the interests of the media in access to documents placed before the judge and referred to in open court will weigh heavily in the balance.

30 The plaintiff says there are a number of reasons why the affidavit and written submissions should not be made available to the media organisations. First, they have stated, in effect, that the purpose for which they seek access is to assist them to better understand the matters argued and to assist with the fair and accurate reporting of the proceedings. The plaintiff says that The West Australian, at least, has already reported the hearing and the report demonstrates that supporting documents are not required in order to gain a full and proper understanding of the hearing. Further, the plaintiff says that to the extent that any journalist present did not fully appreciate the application or understand elements of it, they have the benefit of solicitors and counsel who were present at court.

31 That is not a good reason for refusing access. The applicant media organisations are serious presenters of news and public affairs. They publish stories which they believe to be of interest to their readers or viewers and which in some cases they believe could raise serious issues of public concern. Their journalists consider that the application by the plaintiff is such a matter and they wish to see whether there is some more relevant material in the affidavit and written submissions. It is not for me to determine that the material which was referred to in open court but not read out is not necessary for legitimate reporting.

32 The plaintiff says that the affidavit 'is innocuous in its contents unless read together with its 56 attachments'. Those attachments include 38 media articles already in the public domain in relation to which the plaintiff says there is no reason to provide to the media copies of these articles. More to the point, there is no reason why the applicant media organisations should be denied access to them after they have been adduced in evidence and referred to in court.

33 The attachments to the affidavit include three legal communications exchanged for the specific purpose of conferral with respect to the plaintiff's application. The plaintiff says that confidentiality in relation to them should be preserved in the interests of frank and uninhibited O 59 r 9 conferral. In my view, confidentiality should be preserved for the reasons stated by the plaintiff unless and until, as here, the plaintiff has chosen to put the documents into evidence and the defendant does not object to the media having access to them. Counsel for the plaintiff specifically referred to the contents of one of the documents in the course of submissions.

34 The attachments include one email chain to and from the court. The plaintiff says that in accordance with case law it should not be disclosed. The reference to case law is a reference to my decision in Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179 where at [29] I said that it will be a rare case where a nonparty will be granted access to correspondence between the court and parties. The correspondence to which I was referring was correspondence which had not been put into evidence or referred to in court. The position is quite different where the correspondence in question has been put into evidence, as is the case here.

35 The final set of documents annexed to the affidavit is 14 letters passing between the solicitors for the plaintiff and solicitors for the defendant, some of which are marked 'private and confidential'. These letters were annexed to Ms Randall's affidavit. No order that those letters remain confidential was sought or made. Some of them were referred to specifically in court in the course of the hearing. I have considered the correspondence between the parties' solicitors and the correspondence between them and the court. Having regard to what has already been published in the media and what was stated in open court I do not consider that any undue harm will be done to the plaintiff by the media organisations having access to the correspondence.

36 The applicant media organisations should have access to the affidavit and its attachments and the outlines of submissions referred to in court. The relevant outlines of submissions are the plaintiff's submissions in support of confidentiality orders dated 19 February 2013 and the defendant's submissions on plaintiff's application for confidentiality orders dated 21 February 2013.