Rich v Harrington

Federal Court of Australia|2007-12-13|Before: Branson J

INTRODUCTION 1 These reasons for judgment concern the extent, if any, to which the public (including the media) should have leave to inspect certain material received in evidence on an interlocutory application. 2 On 1 November 2007 Ms Rich moved the Court for orders requiring the respondents for whom Mallesons Stephen Jaques act (for convenience hereafter referred to as "the respondents") to produce for inspection certain classes of documents over which they claimed client legal privilege. During the hearing of the motion I received into evidence an exhibit to an affidavit that was read as part of Ms Rich's case. That exhibit, which was marked "BGM-1", was referred to in the affidavit of Bronwyn Gaye Maynard sworn on 12 October 2007. Within BGM-1, behind Tab 2, were handwritten memoranda apparently created by members of Pricewaterhouse Coopers ("PwC"), file notes concerning Ms Rich apparently created by members of "PwC" and email exchanges apparently between members of PwC ("the Tab 2 material"). 3 Senior counsel for the respondents indicated that his clients opposed the Tab 2 material being inspected by any person who was not a party to the proceeding (see O 46 r 6 of the Federal Court Rules). I indicated that I would not allow access to the Tab 2 material pending the early determination of an application by the respondents for an order that access to the material be restricted to the parties and their respective legal representatives. 4 Applications were received on 1 November 2007 from journalists for leave to inspect and copy the Tab 2 material. Consideration of those applications was delayed pending the determination of the application foreshadowed by the respondents. 5 The Court sat the following day (ie 2 November 2007) to hear a motion, of which the respondents gave short written notice, for an order that access to the Tab 2 material be restricted to the parties and their legal representatives. In argument on the motion the respondents indicated that they did not oppose public inspection of a modified version of the Tab 2 material in which all material irrelevant to the motion concerning client legal privilege was masked. 6 Ms Rich, by her senior counsel, was heard on the application as was counsel for Nationwide News Pty Limited and John Fairfax Pty Limited, who were jointly granted leave to intervene. Ultimately, Ms Rich adopted the position that either all or none of the Tab 2 material should be available for public inspection. Nationwide News and John Fairfax contended that all of the Tab 2 material should be available for public inspection. 7 At the close of argument on 2 November 2007 I ruled that those parts of the Tab 2 material that were relied on for the purpose of the motion concerning client legal privilege should be available for inspection by any person but that material not relied upon, which appeared in the Tab 2 material, notwithstanding its irrelevance to the motion simply because it had not been considered necessary or appropriate to blank it out, would not be available for public inspection. I directed the legal representative of the parties and Nationwide News and John Fairfax to confer for the purpose of identifying those parts of the Tab 2 materials upon which either party had placed reliance. 8 Although I gave short reasons for my ruling at that time I indicated that I would publish expanded reasons at a later date. These are those expanded reasons.

ORDER 46 RULE 6 9 Order 46 rule 6 of the Federal Court Rules provides: (1) A person may search in the Registry for, and inspect, a document in a proceeding that is specified in subrule (2), unless the Court, or a Judge, has ordered that the document is confidential. (2) For the purposes of subrule (1), the documents are: (a) an application or other originating process; (b) a notice of appearance; (c) a pleading or particulars of a pleading; (d) a notice of motion or other application; (e) a judgment; (f) an order; (g) a written submission; (h) a notice of appeal; (i) a notice of discontinuance; (j) a notice of change of solicitors; (k) a notice of ceasing to act; (l) in a proceeding to which Order 78 applies: (i) an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; (ii) an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar; (m) reasons for judgment. (3) 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 (other than an affidavit mentioned in subparagraph (2) (l) (i)); (b) an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge; (c) interrogatories or answers to interrogatories; (d) a list of documents given on discovery; (e) an admission; (f) evidence taken on deposition; (h) a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document; (i) a judgment, order, or other document that the Court has ordered is confidential. (4) Except with the leave of the Court or a Judge, or with the permission of the Registrar, a person who is not a party to a proceeding must not inspect any document in the proceeding that is not referred to in subrule (2) or (3). 10 It is accepted that the Tab 2 material is a document in this proceeding that is not referred to in subrule (2) or (3) of O 46 r 6(4). A person who is not a party to the proceeding may only inspect the Tab 2 material with the leave of the Court or a Judge.

REPORTING OF THE PROCEEDING 11 The respondents drew the Court's attention to examples of the press reporting on 2 November 2007 of the hearing of Ms Rich's motion the previous day. The Australian introduced its report on page 3, which was headed "Drink spiking claim at PwC", with the paragraph: Female employees at international accounting giant PricewaterhouseCoopers had their drink spiked at firm-only events, it was alleged in court documents released yesterday. 12 The Australian Financial Review used the headline "Sex and drugs rock PwC case" over its report which commenced: Allegations of drink spiking at firm events, male partners conducting affairs with their direct reports and men saying women shouldn't be made partner were included in explosive documents tendered in the NSW Federal Court yesterday. Later in that report it was asserted that Stuart Edwards, one of the partners at the centre of Ms Rich's complaints, was no longer represented by Mallesons Stephen Jaques and had briefed Julian Burnside QC. 13 An electronic report on the LexisNexis website of an abstract of the Australian Financial Review article stated that: [b]itter allegations have been made about the culture of Pricewaterhouse Coopers (PwC) in Australia. On 1 November 2007, they were aired in the Supreme Court of New South Wales. The abstract went on to assert that Mr Edwards was no longer represented by the law firm Mallesons Stephen Jaques. 14 My attention had not been drawn during the course of the hearing on 1 November 2007 to any allegations of the above kinds. However, it is accepted that a document containing assertions to the above effect was included amongst documents received as evidence on that day. The document was received in evidence because other aspects of it were relevant to the motion concerning client legal privilege. As to other aspects of the reports referred to above it is appropriate to note that there is no "NSW Federal Court"; the motion was not heard in the Supreme Court of New South Wales; it is untrue that the law firm Mallesons Stephen Jaques no longer acts for Mr Edwards and, although Mr Edwards apparently obtained legal advice from Mr Burnside QC some years ago, he has not briefed Mr Burnside in this matter. 15 I accept the submission of the respondents that none of the above articles constituted a fair report of the hearing before me on 1 November 2007. I also agree that it appears that the journalists concerned (and, it would seem, the sub-editors) used the document containing the publicised assertions for a purpose other than reporting on the hearing of the motion. That purpose would appear to be, I accept, to sensationalise the litigation between the parties. 16 Counsel for Nationwide News and John Fairfax adduced evidence of a second report in The Australian of 2 November 2007 of the previous day's hearing. This report appeared in the Legal Affairs Section under the by-line of Susannah Moran. I accept that it constituted a fair, accurate and balanced report of the hearing and demonstrated a sensible understanding of the legal issues involved. It made no reference to the allegations the subject matter of the other reports. Whilst illustrating the capacity of an able journalist to report in an accurate and balanced way on a hearing of the kind held on 1 November 2007, it threw into stark relief the different purpose of the other articles.

CONSIDERATION 17 I accept the accuracy of the observations made by Sackville J that it is trite law that the administration of justice must take place in open court (Macquarie Radio Network Pty Ltd v The Australian Broadcasting Authority [2002] FCA 1408 at [18]; Seven Network Limited v News Limited (No 2) (2005) 148 FCR 1). 18 In Russell v Russell (1976) 134 CLR 495 at 520 Gibbs J stated of the rule that "court proceedings are conducted publicly and in open view" (see Scott v Scott [1913] AC 417 at 441) that it: … has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. 19 Because justice is administered in public for the reasons identified by Gibbs J in the Macquarie Radio Network case, even a justified fear of inaccurate and sensational reporting of a legal proceeding is not a justification for administering justice in secret. As the Full Court observed in The Queen v Davis (1995) 57 FCR 512 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. 20 Where a court proceeding is conducted by reference to documents in the possession of the court and the parties only, as now commonly happens, it is possible for justice to be administered in public but with reduced opportunity for public scrutiny. Where this occurs, it is appropriate for steps to be taken to redress the reduction in the opportunity for full public scrutiny of the administration of justice whilst not undermining the improvements in efficiency and fairness which are ordinarily achieved by increased emphasis on written, rather than oral, evidence and submissions. 21 The hearing of the motion concerning client legal privilege was conducted by reference to documents in the possession of the court and the parties only (ie affidavits notionally read on the motion and documents marked as exhibits). In accordance with my usual practice, copies of the affidavits notionally read on the motion (where necessary with those portions not received in evidence masked) were made available for any members of the public to read on request to my associate. A similar course was adopted with respect to exhibits received in evidence other than those in respect of which an application was foreshadowed for an order that leave not be granted for any person not a party to the proceeding to inspect them. 22 In considering whether it would be appropriate to restrict public access to material formally received in evidence, but not relied upon by any party during the course of an interlocutory application, it is to be borne in mind that open justice is a principle and not a freestanding right; other principles or policies may have to be taken into account (John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512). 23 The case for giving the public, including representatives of the media, access to all documents or parts of documents that, while formally received in evidence, have not been relied on by the parties or by the judge is not compelling. The documents may have been received in evidence subject to their relevance being later established or they may have been received because some, perhaps a small, portion of them contained relevant evidence and it would have been time consuming and therefore costly to mask the other parts of the documents. Public access to documents of this character is not likely appreciably to assist public scrutiny of the operations of the courts. Nonetheless, I accept that the proper starting point is that expressed by Sackville J in Seven Network Limited v News Limited (No 2) at [27], namely that this Court would ordinarily take the view that a non‑party should have access to all non-confidential documents and other material admitted into evidence. His Honour's reference to "ordinarily" recognises that the discretion under O 46 r 6 of the Federal Court Rules must be exercised having regard to the particular circumstances of the case. 24 Where a non-party seeks access to material which has been relied on by the judge, the proper approach tends more strongly in favour of public disclosure; access should be allowed save where the interests of justice require a different course (Australian Competition and Consumer Commission v ABB Transmissions and Distribution Limited (No 3) [2002] FCA 609 at [7]). 25 In concluding that, in the particular circumstances of this case, it would be appropriate to exercise the discretion vested in the Court by O 46 r 6 by restricting access to the unmasked Tab 2 material to the parties and their legal representatives, I took into account that the material that would thereby be withheld from the public, and therefore the media, was material irrelevant to the motion concerning client legal privilege. Yet some of it was material that I was satisfied would attract wide publicity if it were available for inspection by the media. As to some of the material, I was not satisfied that it would ever prove relevant to the proceeding. As to other parts of the material, I formed the view that there was a risk that the conduct of the final hearing in this matter, including the cross-examination of critical witnesses, might to some extent be prejudiced by the earlier publication of the material. Additionally, in respect of this material I formed the view that fair reporting of the material would be more likely in the context of a final hearing in which the authors of the material were available for examination and cross-examination. 26 However, in the case of material upon which reliance was placed on the motion I formed the view that public access to that material should be allowed. The considerations identified above in respect of the unmasked Tab 2 material, while powerful, were not sufficiently powerful to lead me to conclude that the interests of justice required a different course in respect of that material.

CONCLUSION 27 For the above reasons, on 2 November 2007 I made the rulings identified in [7] above. The legal representatives of the parties and Nationwide News and John Fairfax have now reached an agreement as to the content of the Tab 2 material that was relied upon on the hearing of the motion concerning client legal privilege. The appropriate orders to be made in the circumstances are that: 1 Subject to any later order of the Court, no person who is not a party to this proceeding or a legal representative of a party to this proceeding, may inspect any of the documents behind Tab 2 of the exhibit BGM-1 to the affidavit of Bronwyn Gaye Maynard sworn on 12 October 2007 ("the Tab 2 material").

2 Leave is granted generally for any person to inspect the documents agreed to be those portions of the Tab 2 material relied upon on the hearing of the motion on 1 November 2007. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Applicant: Mr R Beech-Jones SC with Ms R Francois

Solicitor for the Applicant: Harmers Workplace Lawyers

Counsel for the Respondents (as defined in [2] above): Mr R McHugh SC with Mr S Nixon

Solicitor for the Respondents (as defined in [2] above): Mallesons Stephen Jaques

Counsel for the Fourteenth Respondent: Mr I S Wylie

Solicitor for the Fourteenth Respondent: Maurice Blackburn

Counsel for the Intervener: Mr T Maltz

Date of Hearing: 2 November 2007

Date of Judgment: 13 December 2007

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