Macquarie Radio Network Pty Ltd v Australian Broadcasting Authority

REASONS FOR JUDGMENT 1 This matter was listed by me at short notice, following an application by a journalist for leave to inspect an affidavit on a Court file. I listed the matter so that the parties to the proceedings in which the affidavit was read could be heard on the question of whether leave should be granted. 2 Leave to inspect the affidavit is necessary because Federal Court Rules ("FCR"), O 46 r 6(3) provides as follows: "Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding: (a) an affidavit …" . 3 I should say at the outset that it is not easy to prepare reasons that explain the orders I propose to make, yet protect the legitimate interests of the parties seeking to limit access, not to the affidavit itself, but to certain annexures to it. I have, however, endeavoured to achieve an appropriate balance, taking account of material that is part of the public record of the proceedings in which the affidavit was read and the evidence adduced on the application for leave. 4 The applicants in the principal proceedings hold licences for two radio stations broadcasting in the Sydney area, namely 2GB and 2CH. In those proceedings, they sought an injunction restraining the respondent, a regulatory body established by s 154 of the Broadcasting Services Act 1992 (Cth) ("Broadcasting Services Act"), from releasing to the public "the document in the form of the "Terms of Reference" which is annexure E to the affidavit of Gina Cass-Gottlieb [affirmed] 8 November 2002". 5 The proceedings came before me as duty Judge late on Friday, 8 November 2002. The applicants sought an interlocutory order in the terms of the order reproduced in the previous paragraph. Mr Hutley SC, who appeared for the applicants, described the application as being made ex parte. Nonetheless, the respondent appeared at the hearing (which I shall refer to as the "interlocutory hearing") and was represented by Mr Rares SC. 6 In support of the application for interlocutory relief, Mr Hutley read an affidavit by Ms Cass-Gottlieb. It is that affidavit which is the subject of the application pursuant to FCR,O 46 r 6(3). 7 At the hearing of the application for leave to inspect the affidavit (which I shall refer to as the "leave hearing"), Mr Corker appeared on behalf of four media organisations, namely News Limited, the Australian Broadcasting Corporation, John Fairfax Holdings Limited, and John Fairfax Publications Pty Ltd (although he identified the fourth only after the hearing). Mr Corker submitted that each of these organisations should be granted leave to inspect the affidavit, including all annexures thereto. 8 Mr Hutley, who appeared at the leave hearing on behalf of the applicants in the proceedings, did not object to leave being granted to inspect the affidavit, except for three of the annexures. The first is a document which is said to contain confidential commercial information (Annexure C). The second comprises the Terms of Reference referred to in the application (Annexure E). The third is a different version of the Terms of Reference (Annexure F). Mr Hutley also resisted any application for leave to inspect a document tendered during the interlocutory hearing which includes yet another version of the Terms of Reference (Exhibit B). The various versions of the Terms of Reference relate to a proposed inquiry by the respondent pursuant to the provisions of the Broadcasting Services Act. 9 Mr Bezzi, who appeared for the respondent, neither opposed nor supported the position taken by the applicants. 10 Some background is necessary to understand the applicants' position. Early in the interlocutory hearing, I made an order, pending further order, that there be no publication of Annexure F to Ms Cass-Gottlieb's affidavit or of any document substantially to the same effect. That order effectively embraced Annexure E to the affidavit, since it was substantially to the same effect as Annexure F. I made the order so as to preserve what was, in substance, the subject matter of the proceedings pending determination of the application for interlocutory relief. 11 Later in the hearing, Exhibit B was tendered. Immediately after the tender, Mr Rares announced that he was instructed to undertake to the Court that, until further order, the respondent would not release Exhibit B, or any document in substantially the same form as Exhibit B, to the public. Shortly thereafter, I discharged the order I had made earlier in relation to Annexure F, on the basis (as put by Mr Hutley) that it had been superseded by the undertaking. 12 On 13 November 2002, the day before the scheduled final hearing, the parties filed short minutes of order. The effect of the orders was that the applicants were given leave to discontinue the proceedings, and the respondent withdrew its undertaking with effect from the date the orders were made. On the same day I made orders in accordance with the short minutes. 13 The orders, if considered in isolation, would suggest that the respondent is free to publish Annexures E and F and Exhibit B. However, evidence tendered at the leave hearing showed that the short minutes of order agreed to by the parties were part of a broader settlement. The parties have agreed that the terms of the settlement are to be confidential. It is enough for present purposes to note that the settlement would seem to modify the position concerning publication of Annexures E and F and Exhibit B that would have applied if the orders made on 13 November 2002 had been the only relevant constraints on the respondent. 14 Following the settlement of the proceedings, the respondent issued a press release which announced terms of reference for its inquiry. Obviously enough, the published terms of reference are not identical to the Terms of Reference in Annexures E and F and Exhibit B. 15 Mr Hutley submitted that to permit non-parties to inspect the Court file, insofar as it includes Annexures E and F and Exhibit B, could prejudice the applicants, having regard to the terms of the settlement reached with the respondent. He further submitted that inspection of these documents would effectively deprive the applicants of the benefit of that settlement. Mr Hutley pointed out that, although there is a strong public interest in open justice, there is also a strong public interest in encouraging parties to settle litigation. He submitted that where a settlement would be undercut by allowing inspection of particular documents that were the subject matter of the litigation, the circumstances should be regarded as sufficiently exceptional to warrant refusing leave to inspect those documents. 16 FCR, O 46 r 6 specifies the circumstances in which a non-party is entitled to inspect material on a Court file, including affidavits, exhibits and transcripts. A non-party is entitled to inspect certain categories of documents on the file, such as orders or reasons for judgment, unless the Court or a Judge has ordered that a particular document be confidential: O 46 r 6(1), (2). A non-party is entitled to inspect other categories of documents, such as affidavits or written submissions, only if the Court or a Judge gives leave to do so: O 46 r 6(3). The position is the same with respect to transcripts: O 46 r 6(5). Access to remaining documents on the Court file, such as exhibits, requires the leave of the Court, a Judge or a Registrar: O 46 r 6(4). 17 It has been suggested that the regime established by O 46 r 6 is too restrictive, especially insofar as it requires a non-party to obtain leave in order to inspect affidavits and submissions which have been read or dealt with in open court: E Willheim, "Are Our Courts Truly Open?" (2002) 13 Pub LR 191. There may be some force in this argument, but at present O 46 r 6 sets out the principles that must be applied. 18 It is trite law that the administration of justice must take place in open court. In R v Davis (1995) 57 FCR 512, the Full Court said this (at 514): "Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them". 19 But the principle of open justice does not necessarily answer the questions of whether non-parties should be permitted to inspect documents on a court file. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643, a case arising under Supreme Court Rules 1970, Pt 65 r 7(1), Austin J pointed out (at 649) that "free access by the media to the contents of a court file is not, in absolute terms, a proposition flowing from the principle of open justice. There must be some limits to the extent to which any non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court".