By Interlocutory Process dated 28 September 2020, but filed on 8 October 2020, Ms Georgia Khattar and Ms Carol Khattar initially applied for access to all pleadings and interlocutory processes and all material that had already been admitted into evidence in these proceedings including affidavits and certain other documents and access to written submissions filed in relation to two prior interlocutory hearings before Rees J and Emmett AJA in these proceedings.
The form of that application involved an obvious practical difficulty, which was how the documents which fell within those categories were to be identified. That has been addressed by an order made allowing the Applicants access to the transcript of the proceedings, which did no more than put them in the position they would have been, had they or their representatives sat in open court during the proceedings and taken notes so that they could identify the documents which they contended fell within the scope of access. They have now done so, in a schedule of material to which access is sought, marked MFI 1. They accept that particular paragraphs were not read in respect of some affidavits that were read in the proceedings, and those paragraphs would need to be redacted before those affidavits were made available to them or, more precisely, the parties to the proceedings would need to be given an opportunity to redact those affidavits if they wished to do so, before unredacted affidavits were made available. I put the matter in that way because the Court is not obliged, itself, to undertake a redaction process in a matter of this kind, and at best, it would be appropriate to allow the parties an opportunity to do so, if they wished to do so.
The Applicants rely on an affidavit dated 28 September 2020 of their solicitor, Mr O'Loughlin. Mr O'Loughlin notes that Ms Carol Khattar is the daughter of the late Mr George Khattar, and Mrs Carol Khattar is his widow, and that Mr Khattar, at the time of his death, had legal title to shares in a number of companies which are within, or associated with, the Dyldam group of companies. The Second Plaintiff and the Sixth Defendant in these proceedings were the executors under Mr George Khattar's will. A dispute arose in 2016 in respect of the probate of the will which was settled in late 2016 on the basis of various Deeds. Mr O'Loughlin's evidence is that Mr Khattar also held an equitable but not legal interest in shares of companies in what he describes as the "wider Dyldam Group", including Special Gold Pty Limited ("Special Gold"). I pause to note that the inclusive character of that proposition was given little attention in the submissions by the parties to the proceedings.
Mr O'Loughlin in turn refers to a subsequent dispute in respect of the Deeds that settled the earlier probate proceedings, and an associated Deed of Agreement on terms involving the transfer of an unencumbered interest in 15 units in which the Eleventh Defendant, Hills Shoppingtown Pty Limited ("Hills Shoppingtown"), has an interest, which are valued at a substantial amount. I pause to note that the affairs of the Eleventh Defendant have received substantial focus in these proceedings.
Mr O'Loughlin notes that Ms Georgia Khattar and Ms Carol Khattar have in turn commenced proceedings regarding an alleged default under the Deeds of Settlement and the Deed of Assignment, which are presently being heard in the Expedition List of this Court. Mr O'Loughlin refers to concerns as to a possible "material nondisclosure of the asset and liability position of Special Gold prior to and during the entry into the Deed of Settlement". He also refers to his reading of the judgment of Rees J in Re Festival Corp Pty Limited [2020] NSWSC 372 and notes that an affidavit of Mr Khattar sworn on 3 April 2020, which has been read in these proceedings, might contain useful information as to specified matters. He also contends that access to the affidavit will assist the Applicants in ascertaining the true value of Special Gold at the time of execution of the Deed of Settlement, and notes that it will also allow Applicants to form a view as to whether they ought to move to join these proceedings in order to protect their interests. The former proposition was put a little more strongly by Mr Knowles, who appears for the Applicants, in submissions, where he raised the possibility that the value of Special Gold might have been understated, as a proposition which might or might not ultimately be raised in the proceedings in the Expedition List. The proposition that the Applicants wish to form a view as to whether they ought to move to join these proceedings in order to protect their interests was given less attention in submissions. That was perhaps surprising where they claim to have an interest in units in Hills Shoppingtown, and the affairs of that company have, as I noted above, received considerable attention in these proceedings.
[3]
Applicable legal principles
I should say something as to the applicable legal principles before returning to the parties' submissions and a determination of the application. Practice Note SC Gen 2 deals with applications for access to court files and was issued on 4 October 2019, signed by the present Chief Justice. Paragraph 6 provides that access to material in any proceedings is restricted to parties, except with the leave of the Court. Paragraph 7 provides that access will "normally be granted to non-parties" in respect of specified matters. That paragraph then refers to pleadings and judgments in proceedings that have been concluded, except insofar as an order has been made that they, or portions of them, be kept confidential. That category is not applicable here, since these proceedings have not concluded. The paragraph also refers to pleadings in proceedings that have not been concluded, with leave of a judge or registrar, but does not specify the basis on which such leave should be granted. The paragraph also refers to material that was admitted into evidence, and information that would have been heard or seen by any person present in open court, unless the judge or registrar dealing with the application considers that the material, or portions of it, should be kept confidential. Again, it is not easy to see how one could consider that materials should be kept confidential in circumstances that it has already been read in open court, where any member of the public was permitted to be present. Paragraph 17 in turn refers to the manner in which an application by a person, who is not party to the proceedings, for access to material held by the Court should be made, namely to the Registrar of the appropriate division, and indicates that an applicant "must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access".
The parties refer in submissions to several judgments, although all of them predate the present version of the Practice Note. I proceed on the basis that corresponding previous versions of the Practice Note were likely in similar form, although the parties did not take me to them, since there are references in those judgments to corresponding principles in earlier versions of the Practice Note. In particular, the parties refer to HIH Insurance Ltd (in liq) v General Re Insurance Australia Ltd [2006] NSWSC 128, where Hoeben J, as his Honour then was, referred to the then position in respect of an earlier version of the Practice Note, and referred to paragraphs 7 and 17 which appear to be in broadly similar form to the present version of SC Gen 2.
His Honour there noted that the Practice Note offered authoritative guidance as to how the discretion in the Court would ordinarily be exercised, and observed that the Practice Note would have had regard to underlying principles in case law that had developed over recent years. His Honour noted no reason was put forward by applicants in that case as to why access was sought, and (at [21]) rejected a proposition that the principle of open justice requires that access should be granted unless there were exceptional circumstances indicating that it should not be granted. His Honour referred, in particular, to observations in John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512 at [29] that the principle of open justice was a principle, rather than a freestanding right. The Applicants did not here contend that they had a right to access the relevant documents, as distinct from contending that they had a proper basis to access such documents, having regard to the nature of the proceedings and their interest in the Dyldam group of companies.
His Honour also referred to the proposition that, as he read the Practice Note, access to court documents by non-parties was restricted except with the leave of the Court, although he fairly noted that paragraph 7 of the Practice Note recorded that access would "normally" be granted to non-parties in respect of the relevant classes of documents, subject to the need to state why the applicant desires access. It seems to me, of course, that the proposition that access will "normally" be granted in respect of those categories of documents suggests that the reasons which would be given by persons normally seeking such access would normally be sufficient to warrant such access. Otherwise, there would be no element of normality in respect of access, and such access would be the exception rather than the normal position.
His Honour's judgment in HIH Insurance has in turn been cited in subsequent cases, including by McCallum J (as her Honour then was) in McLachlan v Browne & Fairfax Media Publications Pty Limited (No 5) [2018] NSWSC 1976, where her Honour also noted that Practice Note SC Gen 2 provided "authoritative guidance" as to access to court files, referring to HIH Insurance for that proposition, and also identified issues as to prematurity of access that may arise in particular cases. Her Honour also observed at [16] that access to pleadings should not ordinarily be granted during the interlocutory stages, where that is opposed by one or other party, unless the Court is satisfied that exceptional circumstances exist. In R v Dirani (No 33) [2019] NSWSC 288 at [51]ff, Johnson J in turn referred to Hoeben J's observations in HIH Insurance Ltd above and to Adamson J's observations in R v Abdullah (No 3) [2015] NSWSC 121, and observed that an "exceptional circumstances" test only applied to access to other material referred to at the end of paragraph 7 of Practice Note SC Gen 2.
[4]
The parties' submissions
Turning now to the parties' submissions, Mr Knowles submitted, and I do not understand any party to have contested, that the Court had power to grant access in this case under Practice Note SC Gen 2. Mr Knowles submitted that access should here be granted, because the relevant materials fell within the scope of documents to which, under the Practice Note, access "would normally be granted to non-parties" albeit subject to the requirement for leave in respect of pleadings in proceedings that have not been concluded. Mr Knowles submitted that there was no requirement for the Applicants to establish a legitimate forensic purpose for seeking access to the relevant materials, and it seems to me that that proposition is plainly correct so far as that would incorporate a test from other areas of the law which are not applicable, in the terms of the Practice Note or in the general law principles which it draws upon.
Mr Knowles in turn referred to Mr O'Loughlin's evidence as to the matters which are sought to be investigated by each of Ms Georgia Khattar and Ms Carol Khattar, for the purpose of potentially raising issues in respect of them. Mr Knowles submits that the Applicants make the request for access in that they believe it will illuminate matters including the affairs of Special Gold and other relevant companies in which the late Mr George Khattar held shares, before and after the contested proceedings, and the asset and liability position of the relevant companies. The Applicants there accept that so far as material has not been read in open court, it can be redacted, and the Applicants are prepared to pay the reasonable costs of affected parties in redacting those documents.
In oral submissions, Mr Knowles addressed those matters, and also addressed the proposition advanced by the Defendants directed to case law concerning media organisations, to which I will return. Mr Knowles also addressed a proposition addressed by the Defendants, as to how the relevant documents should be identified, and other means that might be available to the Applicants to seek to obtain access to the relevant documents.
Each of the Plaintiffs and the Second to Sixth Defendants opposed the application for access, in probably the first occasion in any aspect of these proceedings as to which they have had a common view. The primary evidence in opposition to the application was read, and the primary submissions were made by the Second to Sixth Defendants. They relied on the affidavit dated 29 October 2020 of their solicitor, Mr Timothy Webster. Mr Webster there submitted that there are 34 corporate Defendants in the proceedings, of which only 14 were the subject of the 2016 settlement to which reference was made in Mr O'Loughlin's affidavit. I have referred above to Mr O'Loughlin's evidence that Mr George Khattar also had an equitable interest in other companies, of which Special Gold was given as an example. Mr Webster also refers to inquiries which he has made to seek to identify documents which he contends relate to other matters, or relate to periods before or after those which are in issue in respect of the arrangements concerning Ms Georgia Khattar and Ms Carol Khattar.
There are, it seems to me, two difficulties with Mr Webster's approach to this matter. The first is that it is untestable, at least by Ms Georgia Khattar and Ms Carol Khattar, where it depends on Mr Webster, who is acting for a party in a different interest, reaching judgments as to what may be relevant to their claims. As Mr Knowles fairly pointed out in submissions, Ms Georgia Khattar and Ms Carol Khattar would likely prefer to make that assessment themselves, or to do so by solicitors acting for them, rather than rely on Mr Webster's attempt to do so for them. A second difficulty seems to me to be that, as Mr Coleman (who appeared for the Second to Sixth Defendants) fairly accepted, the affairs of companies within the Dyldam Group, as broadly described, are complex, and there appear to be significant numbers of dealings between those companies and other associated entities such as trusts and joint ventures. It cannot be assumed that the affairs of an identified company will not affect the affairs of another company, by reason of some other arrangement between those companies or by reason of the companies' dealings with each other. It is plainly also not the case that the affairs of a company at a point in time will not be affected by events which occurred before that point in time, or indeed by events which have occurred after that point of time, which, for example, undermine or change the position that existed at that point in time. For these reasons, I can give little weight to the analysis undertaken by Mr Webster to seek to identify, for the benefit of the Applicants, what they might regard as relevant, if they were given the opportunity to review the documents to make that judgment for themselves.
Mr Coleman in turn addressed the nature of the proceedings brought by the applicants, now in the Expedition List, and the relief sought in those proceedings, which includes a claim for specific performance of the Deeds which settled the earlier probate proceedings. Mr Coleman submitted that there would be an inconsistency between the relief sought in those proceedings and the Applicants now seeking access to documents, for the purpose of making an assessment of whether there was, for example, an issue as to the valuation underlying the Deeds of Settlement. I do not accept that submission. As Mr Knowles pointed out, Ms Georgia Khattar and Ms Carol Khattar are presently pursuing the claims brought in the Expedition List and, having obtained access to the documents, might well continue to do so in their present form. The process of inspection of evidence read in these proceedings might confirm that there is nothing for them to be concerned about arising from these proceedings and the approach which has been adopted to date in the Expedition List remains appropriate. It seems to me that there is also no inconsistency in their wishing to assess that matter and to determine whether, for example, a different approach should now be taken in the proceedings in the Expedition List as a result of the facts that had emerged in these proceedings. There will then be no inconsistency, if a different approach is taken, because an amendment will only be made if the Court, sitting in the Expedition List, permits it to be made.
Mr Coleman in turn submits that the documents do not bear any relation to the purpose for which they are sought, but it seems to me that this submission seeks to reason from descriptions of the documents at too high a level of generality, and does not give adequate weight to the possible impact of earlier or later events, or dealings between the companies in the Dyldam Group, on the Plaintiffs' rights, given the complex group relationship to which I have referred above. Mr Coleman also submits that pleadings in continuing proceedings contain allegations which have not been tested or sufficiently described in open court. I accept that proposition, as a generality, as established by case law. However the Plaintiffs' Statement of Claim here has a somewhat unusual character, so far as it is a very extensive document, which seeks to set out the complex structure of the Dyldam Group and the relationship between various companies in that Group. It seems to me that these are not untested allegations of a kind that may be particularly controversial, since there is no particular suggestion that the parties could disagree as to what, for example, are the holding companies of the many subsidiaries, or the trustees of the many trusts, or the parties to the many joint ventures, which are simply matters of fact. No doubt, there is a degree of analysis involved in assembling this material, but it is not of the character of untested allegations which might, for example, be advanced in proceedings of a different character. It seems to me that there is a strong reason to grant access to the Statement of Claim, so far as access to other documents may well be incomprehensible without an understanding of the Dyldam Group's corporate structure, as it is sought to be established by the Plaintiffs. Mr Knowles acknowledged that, if it was suggested that the matters alleged in the Statement of Claim were contentious, then it may be that access should also be provided to the Defences, but Mr Coleman did not suggest that that was necessary.
Mr Coleman also submits that access should not be granted to evidence that was not read in open court, and I accept that proposition so far as aspects of affidavits were not read. That is a reason to permit redaction of the affidavits, if the existing parties to the proceedings wish to undertake it. Mr Coleman also submitted that many parts of documents are irrelevant to matters in which the Applicants are interested, but this submission, like Mr Webster's analysis to similar effect, has the difficulties to which I noted above. It involves the Second to Sixth Defendants seeking to make judgments of relevance, as to the matters sought to be investigated by parties in a different interest, largely from propositions of broad generality as to the nature of the evidence. It seems to me that it would be impossible to say, at that level of generality, that information might not reasonably be expected to emerge from those documents, which would cast light upon the issues as to the structure of the Dyldam Group in which Ms Georgia Khattar and Ms Carol Khattar have an interest, and any risks to their rights and interests arising from the events in issue in these proceedings.
Mr Coleman also points out that some of the documents that are sought postdate the settlement in issue in the proceedings in the Expedition List. However, it seems to me that that is also not an objection to access. Where the documents are directed to the affairs of the Dyldam Group, then subsequent events may be of considerable relevance, not least because they may potentially undermine aspects of the settlement or demonstrate, for example, whether particular forms of relief would be of practical utility to the Applicants, depending on what has subsequently occurred. It seems to me that the Applicants can properly have a real interest in that manner.
Mr Coleman also refers to evidence in respect of Interlocutory Applications in these proceedings, and both parties submitted that the Interlocutory Applications, and the evidence led in them, were not relevant to the matters in which Ms Georgia Khattar and Ms Carol Khattar had an interest. Again, I am not persuaded that a test of relevance can be applied in that way, given the degree of overlap between the matters in issue, the complexity of the Dyldam Group, and the difficulty in the parties to the proceedings making a judgment for Ms Georgia Khattar or Ms Carol Khattar, or indeed the Court doing so, of what may or may not be relevant to, or cast light on, the issues affecting the settlement to which they were party, or the continuing proceedings in the Expedition List.
A similar proposition was put in respect of submissions, in respect of an application heard by Emmett AJA on the papers, concerning notices to produce to two entities, which are said not to be in the list of companies in which the Applicants assert that Mr George Khattar had an interest. As I have noted above, it does not follow that the affairs of those companies are not relevant to, or may not have affected, the position in respect of those companies in which Mr George Khattar had an interest, or the matters which are sought to be investigated by Ms Georgia Khattar and Ms Carol Khattar.
The Plaintiffs in turn substantially adopted the submissions made by the Second to Sixth Defendants and did not seek to read any further evidence to support that proposition. The Plaintiffs pointed to the fact that many applications were made by the media for access to documents, and that the principle of open justice was prominent in those applications. I accept that proposition, as an empirical observation, but it does not follow that members of the public generally, still less persons with particular interests in matters before the Court, should have less ability to access documents in Court proceedings than the media. The media, members of the public, and interested persons, all have at least the same interest in the public administration of justice, which underpins applications of this kind, and there is no lesser interest of parties other than the media in such applications. It seems to me that, contrary to the Plaintiffs' submissions, Ms Georgia Khattar and Ms Carol Khattar are scarcely in a worse position, in respect to access to documents, because they have a private interest to be advanced, or at least protected, by seeking such access, than members of the media would be.
The Plaintiffs also submit that the application is of a nature akin to "fishing" but that again is to apply principles from another area of the law, which seem to me to have little relevance to an application of this kind. Here, the question, properly identified by Practice Note SC Gen 2, is whether access should be granted in respect of evidence which has been read, and documents which have been tendered, and submissions which have been made, in proceedings conducted in open court where no issue has been raised, and no orders have relevantly been sought or made, preventing such disclosure under the Court Suppression and Non-Publication Orders Act arose. The Plaintiffs also address the question of relevance of particular documents, but it seems to me that that analysis involves the same difficulties to which I have referred in respect of the Second to Sixth Defendants' submissions as to that matter above.
[5]
Orders and costs
For these reasons, I am satisfied that orders should be made for access to documents listed in MFI 1, excluding those parts of affidavits which were not read, if, and only if the parties provide redacted versions of those affidavits to the Applicants, at the Applicants' costs of redaction within a short period. I will hear the parties as to the form of order that I should make.
The Applicants seek their costs of the application, and an order that those costs should be paid forthwith. Mr Coleman in turn submitted that there should either be no order as to costs, or alternatively that there should not be an order that the Plaintiffs have all of their costs, where an application would have had to be made in any event, or the Applicants would in any event have had to identify the documents as to which they sought production. It seems to me that, on balance, an order that the Applicants have all of their costs of the application would not be appropriate, where at least some part of the application was work that they would have had to do in any event, to identify the documents to which access was sought. I am inclined to think, subject to allowing the parties a brief further opportunity to be heard, that the proper order is that the Applicants have their costs of preparing the affidavit of Mr Jonathan O'Loughlin dated 29 September 2020, and of and incidental to the hearing today, and that those costs be paid forthwith on the basis that this is a discrete application. That will exclude, for example, the costs of preparing the list in MFI 1 which would have been necessary in respect of an uncontested application. My preliminary view is that the Applicants should have their costs, at least of today, where this application could have proceeded by orders in chambers, consistent with the Practice Note, and would have proceeded in that manner, had the Plaintiffs and the Second to Sixth Defendants not opposed the access which was sought.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 24 November 2020
Parties
Applicant/Plaintiff:
HIH Insurance Ltd (in liq)
Respondent/Defendant:
General Re Insurance Australia Ltd
Legislation Cited (1)
Court Suppression and Non-Publication Act 2010(NSW)