APPLICATION OF PRINCIPLES IN PRESENT CASE
22 It may be contended, treating the Harman principle as applying to pleadings, that the Australian Financial Review cannot be placed in a position superior to that of a party either. But recognising that the Harman principle, like Practice Note 97 admits of exceptional circumstances, there is here an important caveat. Where the Press can show that the public interest in proper reporting of court proceedings requires access and that access would not be such as to jeopardise a fair trial or give rise to unfair prejudice to a party in that context, then that access should be allowed. (I am not here dealing with investigative as distinct from straight reporting, which more clearly invokes the Harman principle, though whether that should be a basis for distinction is for another day.) Hence Practice Note 97 lays down that exceptional circumstances must be shown for access to pleadings where the proceedings have not been concluded in which those pleadings arise. This is more especially at an interim or interlocutory stage before a final hearing. Clearly relevant in assessing an application for access are the circumstances of the proceedings, their nature such as civil or criminal, the stage reached in the proceedings, whether interlocutory or final, the state of the evidence, the nature and seriousness of the allegations pleaded, whether the pleadings are sworn, the likelihood of the pleadings changing, their relationship to admitted evidence or evidence yet to be admitted, the extent to which the pleadings have been read or outlined in open court or otherwise described in a judgment in the public domain, whether the proceedings are comprehensible without them and unfair prejudice to either party or a witness in that overall context.
23 Clearly enough the proceedings of 28 September 2000 were capable of being followed without the pleadings. This is for anyone who attended them or obtained a copy of the transcript aided by my earlier judgment. Indeed access to transcript is normally granted because the transcript is proxy for that direct attendance open to all. Only exceptionally, as Practice Note 97 and s80 of the Supreme Court Act 1970 (NSW) make clear, can there be reason otherwise. Then it would require a very strong case and probably only in relation to selected passages of transcript exceptionally justifying that restriction. Thus, dealing with the normal circumstances, I agree with what Harper J said in granting access to the transcript (on terms as to payment) in Linter Group Ltd (in liq) v Price Waterhouse ([2000] VSC 90, 20 March 2000, unreported):
"It is highly unlikely that any media representative will be in attendance in court for more than a small proportion of that time. There is no point in lamenting that fact, still less in tailoring my response to this application on the basis that members of the media could attend if they chose to do so and thus put themselves in a position from which an accurate report of the proceedings could be compiled without recourse to the transcript. The reality is that the media will decide upon the level and frequency of its attendance here, as it will decide other issues concerning its priorities and the use it makes of its resources.
In these circumstances, the availability of the transcript is important. It is undesirable that the media rely on the parties for information about the case. Indeed, the ethical rules by which the legal representatives of the parties are bound inhibits them from providing to the media all the information in which the media is likely to be interested. Access to the Linter transcript will therefore promote accuracy in reporting. It will also promote transparency in the administration of justice. The fundamental importance of that goal has long been recognised by the courts. Such recognition must inform every aspect of the trial process."