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Representation: Counsel:
D W Rayment SC with A Smorchevsky (Plaintiff)
A Patterson (Solicitor) (Defendants)
Solicitors:
AND Legal (Plaintiff)
Edmond Khoury Solicitors (Defendants)

File Number(s): 2026/48321

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: These proceedings came before me for hearing on 15 July 2026. Mr Ireland KC appeared for the plaintiff; Mr Allen of counsel appeared for the defendants. It is a matter of record that I made orders by consent that disposed of the proceedings in their entirety.

2. By notice of motion filed on 28 July 2026, the plaintiff now seeks a series of orders that include the following:

“1. Order pursuant to s 9B of the Court Security Act 2005 (NSW) that the Court approve the transmission and distribution to the parties to these proceedings and their legal representatives of any audio recording of Supreme Court of New South Wales Court Room 8A on 15 July 2026 for the time period of the start of any recording on that day to 12.30pm, including in respect of any time during that period when the Court was not in session or was adjourned.

2. Order pursuant to s 68 of the Civil Procedure Act 2005 (NSW) and the inherent jurisdiction of the Court that the Department of Communities and Justice produce to the parties to these proceedings any audio recording of Supreme Court of New South Wales Court Room 8A on 15 July 2026 for the time period of the start of any recording on that day to 12.30pm, including in respect of any time during that period when the Court was not in session or was adjourned, upon payment by the applicants of any applicable fee.”

3. The circumstances in which those orders are sought are as follows.

4. The plaintiff wishes to set aside the consent orders made by me upon the basis that it did not give instructions to, or otherwise authorise, its legal representatives at the time to agree to the settlement. The plaintiff makes no allegation or complaint about anything done by or on behalf of the Court. For all relevant intents and purposes, I was asked to make orders by consent in accordance with signed short minutes of order. That is what occurred. The issue which the plaintiff now wishes to agitate concerns whether or not its legal representatives at the time had the authority, or were given instructions, to consent to the orders that I made.

5. The consent orders were not made until after I had briefly adjourned the proceedings at the request of the parties in order to read a late-served affidavit. The proceedings from when I first came into court until I adjourned for that purpose were all electronically recorded in the usual way. The proceedings were also recorded following the adjournment of about 1 hour and 20 minutes when I returned to make the final orders as asked. The issue that now arises concerns whether or not the plaintiff is entitled, or should be given access, to any recording of what transpired in the courtroom in the period during the adjournment when I was not on the bench and out of Court. That recording is said to be relevant inasmuch as the plaintiff maintains that discussions between or among those who remained in the courtroom during that time potentially support the plaintiff’s contention that it did not provide instructions to its legal representatives, and on the contrary did not authorise them, to settle the proceedings.

6. Simply put, the issue for determination at this hearing (which is only a hearing of prayers 1 and 2 of the notice of motion filed 28 July 2026) is whether I ought to permit the parties to have access to the entire audio recording of the hearing of these proceedings on 15 July 2026, including any matters that were recorded while the Court was adjourned.

7. In support of prayer 1 in its notice of motion, the plaintiff submits that the Court’s approval of the transmission and distribution to the parties of the audio recording of these proceedings on 15 July 2026 is required because of s 9B of the Court Security Act 2005*.*

8. Prayer 2 of the notice of motion seeks an order for the production of that audio recording under the Court’s power to order the production of documents in s 68 of the Civil Procedure Act 2005, and under the inherent jurisdiction of the Court to control its processes. That order is sought to compel production from the Department of Communities and Justice, which controls distribution of the recording. The notice of motion has been provided to the Department which has neither opposed the order nor sought to be heard.

9. The plaintiff has filed several affidavits in support of its motion. It anticipates that its ultimate application to set aside the consent orders will be opposed so that the plaintiff’s ability accurately to establish what it alleges transpired in the courtroom achieves particular significance. The evidence upon which the plaintiff wishes to rely at that time is therefore not presently important, save to the extent that it describes a version of what passed between or among the respective legal representatives of the parties while I was off the bench. The plaintiff says that its evidence supports an argument that its counsel at that time proceeded without instructions or any kind of authority to sign consent orders that disposed of the proceedings. The plaintiff maintains that the recording in question will confirm that.

10. The plaintiff contends that if the parties are granted access to the audio recording, then it is likely to resolve what was said in the courtroom. That is said to be relevant for two reasons. First, the recording may verify or contradict Mr Trisley’s account that Mr Ireland had no authority to sign or agree to the orders which were being proposed. Secondly, it is potentially instructive on the question of whether his opposing counsel Mr Allen was on notice that Mr Ireland had no such authority or that he may not have had. It is not necessary on this application for me to reach any conclusions as to the legal principles for setting aside final orders where an application is made, as in this case, within the 14‑day period provided for by UCPR 36.16(3A) and I have indicated to the parties that I could not be involved in the adjudication of that question in any event.

Legislative provisions

11. Sections 9 and 9B of the Court Security Act are relevantly as follows:

9 Use of recording devices in court premises

(1) A person must not use a recording device to record sound or images (or both) in court premises.

…

(2) Subsection (1) does not apply with respect to any of the following—

(a) the use of a recording device that has been expressly permitted by a judicial officer,

(b) the use by a lawyer of a recording device to record the lawyer’s own voice in a part of court premises other than a room where a court is sitting,

(c) the use of a recording device by a person for the purpose of transcribing court proceedings for the court…

…

9B Prohibition on unauthorised distribution of court recording

(1) A person must not transmit or distribute a recording of sounds or images (or both) of court proceedings, including part of a recording, by any means.

…

(2) Subsection (1) does not apply unless the person knows or suspects, or ought reasonably to know or suspect, that none of the following apply—

(a) the transmission or distribution of the recording has been expressly approved by a judicial officer,

(b) the transmission or distribution of the recording is for the purpose of transcribing court proceedings for the court,

(c) the transmission or distribution of the recording occurred in any other circumstances prescribed by the regulations.

Plaintiff’s submissions

12. The plaintiff made detailed submissions with respect to the operation and present relevance of these provisions. Having regard to the view I have formed, it is convenient to record some of those submissions here.

13. Section 9B appears in the context of ss 9 and 9A, each of which predated the introduction of s 9B. Those provisions are found in Pt 2 of the Act, which refers to entry and use of court premises and which contains provisions dealing with the right to enter and remain on court premises subject to the Act and any orders of the court or directions of security officers, closing the court, the use of animals on court premises, and the possession of restricted items.

14. The overall structure of this Part is that s 9 prohibits the recording of sounds or images in court premises. Section 9A prohibits the use of a device to transmit sounds or images, or information that forms part of the proceedings, from a courtroom. Section 9B prohibits the transmission or distribution of recordings of sounds or images of court proceedings.

15. It appears that s 9B has only been referred to in Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170; (2022) 405 ALR 714 at [79]‑[81] and Gillies v New South Wales (No*.*6) [2025] NSWSC 1534 at [225]‑[228], neither of which addressed the principles which ought to govern whether to grant approval, or the circumstances in which approval may be appropriate.

16. The need for approval under s 9B arose in the context of a statute, the purpose of which is “to provide for the secure and orderly operation of courts” and to confer functions for that purpose (s 3). The purpose of ss 9, 9A and 9B was primarily to address matters of security and to prevent witnesses from being informed of what was occurring in court, and where the specific purpose of introducing s 9B was to address a risk that the existing ss 9 and 9A could enable a situation where there was approval of the making of a recording of court proceedings, but there was no approval for the transmission or distribution of that recording.

17. Section 9B appears to have been intended to prevent distribution of authorised recordings of proceedings beyond the courtroom (for example, onto the internet, such as through the inappropriate distribution or sharing of recordings on social media with a risk of harm to vulnerable witnesses), rather than preventing the provision of such recordings to litigants and their legal representatives for their own use in those proceedings.

18. The power to grant approval is expressed in broad terms, but that power should be informed by the purpose behind s 9B. It was enacted to cover a gap in the operation of ss 9 and 9A. Section 9 prohibited the recording of proceedings (subject to exceptions or the Court’s approval). Section 9A was enacted a few years later with the effect of preventing the transmission of information from proceedings. Its purpose was to prevent the abuse of the Court’s processes by providing information to witnesses (again, subject to exceptions and approval, including an exception in favour of lawyers). Section 9B was enacted thereafter to address situations where the original recording was permitted, but approval had not been given to transmit information from that recording.

19. The Court has a broad discretion to decide whether to grant approval under s 9B. The plaintiff submitted that, on the facts of this case, that discretion should be exercised to permit the parties to have access to and use a recording (authorised for the purposes of transcription services) so as possibly to narrow or remove disputes as to factual issues regarding the extent to which the plaintiff’s legal representatives had actual (or alternatively, ostensible) authority to agree to the consent orders I made on 15 July 2026.

20. The plaintiff submitted that it is in the interests of justice to permit the parties to use that recording and that it would be contrary to the interests of justice for a decision to be made as to whether or not those orders ought to be set aside without the parties, and the Court, having the benefit of that evidence.

Consideration

21. The present understandably cautious application is concerned, in light of the s 9B prohibition upon the transmission or distribution of a recording of sounds of court proceedings, to seek judicial approval for access to the relevant portion of the audio recording made on 15 July 2026. The question is whether any recording of sounds, in the circumstances here in question, is a recording of sounds of court proceedings, for the transmission or distribution of which express approval by a judicial officer is required. In my opinion, the recorded sounds are not sounds of a court proceeding and express approval for their transmission or distribution is not required. This is for the following reasons.

22. For the purposes of the Act “court” is defined to mean the Supreme Court, and several other courts or tribunals in New South Wales as well as:

4 Definitions

…

(n) any other tribunal, body or person prescribed by the regulations that is authorised by law to conduct proceedings for the purpose of the determination of any matter or thing.

23. Although that definition is only of assistance by analogy, it is clear that the reference to a court in the Court Security Act is not a reference to any physical structure or building that houses it but is instead a reference to the metaphysical concept of the court as a body or institution that conducts proceedings for the purpose of the determination of any matter or thing. That is reinforced by the reference to “court premises” in s 9(1) and s 9(2)(b) and the quite different reference to “court proceedings” in s 9(2)(c) and s 9B(1) and s 9B(2)(b). The different adjectival use of “court” emphasises the difference between premises and proceedings.

24. In the present case, the sounds were clearly recorded on or within court premises. How or why that should have occurred when the Court was not in session is for present purposes neither explained nor relevant. By definition, an adjournment of legal proceedings necessarily contemplates a pause in or the suspension or delay of the formal proceedings that take place in front of a judicial officer. When the recording in question was made, the proceedings before me were adjourned. There were in fact no court proceedings then in progress. The proceedings had been temporarily stayed or suspended. Any sounds that may have been recorded in the courtroom at that time were therefore not, and could not have been, sounds of court proceedings.

25. It follows in my opinion that there is no legal impediment to the plaintiff transmitting or distributing any recording of sounds that may have been made in the courtroom during the adjournment.

26. Prayer 2 of the notice of motion seeks access to the recording from the Department pursuant to s 68 of the Civil Procedure Act. As is well known, that section provides as follows:

68 Attendance at court and production of documents and things to court

Subject to rules of court, the court may, by subpoena or otherwise, order any person to do either or both of the following—

(a) to attend court to be examined as a witness,

(b) to produce any document or thing to the court.

27. Having regard to the circumstances in which the recording took place, there is no present way of knowing with certainty what it might contain. As the defendants have emphasised, the recording may deal with personal matters or confidential information or matters over which there may be potential claims for lawyer client privilege. There may be references to other things that neither party wishes publicly to reveal.

28. There is no present dispute that the plaintiff’s foreshadowed application to set aside the orders that I made would be proceedings in the context of which a subpoena for the production of the recording might issue. Although the Department would not be restricted in my view by the operation of the Court Security Act, it may well want to raise matters about the production of the recording for other, Departmental reasons. It seems to me in such circumstances that the preferable and appropriate course is for the plaintiff, if so advised, to issue a subpoena for the production of the recording. That subpoena might in the normal course be expected to come before the judge assigned to hear the plaintiff’s application to set aside the orders.

29. For related reasons, it seems to me that the questions of whether either party should be given access to the recording at all and whether any part of it is, or may be, relevant to the plaintiff’s attempt to set aside my orders, are questions best left to the judge assigned to hear the matter. That judge will, presumably, have access to the recording in question, as well in all likelihood a copy of a transcript of what it records. I presently have neither of those things. Questions of relevance or a debate about who as between the plaintiff and the defendants should have first, if any, access to the material are also quintessentially matters for the judge hearing that part of the case.

30. In those circumstances, I decline to make an order in accordance with prayers 1 or 2 of the notice of motion. I consider that the costs of the motion should be the plaintiff’s costs in the UCPR 36.16(3A) proceedings.

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