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Swannie, Bill --- "Open Justice in the Balance" [2006] AltLawJl 49; (2006) 31(4) Alternative Law Journal 206

BILL SWANNIE^[*]

Everyday we rely on the electronic and print media to keep us informed about important political and legal events. Without press coverage, what would we know of the serious allegations being made during the Cole Inquiry into the Australian Wheat Board? Press coverage of court proceedings is important from a democratic perspective, to ensure that courts and individual judges are kept accountable.

In order to make sense of proceedings, the media often requires access to documents filed with the court in the course of a proceeding. There is an increasing trend in civil matters for evidence to be tendered in written form, rather than orally. This makes hearings quicker, but renders proceedings incomprehensible to those without access to these documents.

Thorny issues have arisen in the courts recently about whether the media should have access to documents filed with a court in a proceeding, and if so, what documents and in what circumstances. This article discusses a recent decision of the Victorian Court of Appeal over a claim by a newspaper publisher for access to files in the Anti-Discrimination List at the Victorian Civil and Administrative Tribunal (‘the Tribunal’).^[1]

In the Court of Appeal decision, the Court held that the media organisation had a right to access documents on file in a proceeding at the Tribunal and access could not be denied without the media organisation having the opportunity to be heard at a hearing. This article examines whether the Court’s reasoning is justified by the relevant law.

The article reviews some other recent Australian decisions about media access to court files. In these cases the policy arguments for and against granting media access to court files have been thoroughly explored. None of these decisions was referred to by the Court of Appeal in its decision.

The article looks at a recent report by the New South Wales Law Reform Commission which provides recommendations about documents the media should have access to and in what circumstances. Finally, the article considers the question: did the Court of Appeal reach the right conclusion in its decision?

The Supreme Court of Victoria decision

On 22 March 2005 a journalist employed by the Herald and Weekly Times Pty Ltd (HWT), publisher of the Herald Sun daily newspaper, lodged a written request to inspect the proceedings files for seven matters in the Anti-Discrimination List at the Tribunal.^[2] The seven matters were listed that day for a directions hearing at the Tribunal. A directions hearing normally takes place soon after a complaint of discrimination is referred from the Equal Opportunity Commission to the Tribunal. At the directions hearing a timetable is set down for mediation, exchange of particulars and the hearing of the matter.

The journalist’s requests were considered by a Deputy President of the Tribunal, who in each case ordered that only a party to the proceedings could inspect the files. The Deputy President made this order under s 146 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), which empowers the Tribunal to make orders closing the file to non-party access.

Just over a week later, HWT brought an action challenging these orders in the Supreme Court of Victoria. At trial HWT argued the orders of the Tribunal were invalid because an order closing the file could not be made after a request for inspection had been made, or on the Tribunal’s own initiative.

In the Supreme Court of Victoria decision, Hansen J rejected both arguments by the HWT. His Honour noted that neither of the suggested limitations on the Tribunal’s power could be found expressed in s 146 of the VCAT Act, and there were strong reasons against implying such restrictions on the powers of the Tribunal. His Honour noted that matters in the Anti-Discrimination List involve complaints of discrimination, harassment, vilification and victimisation and ‘many involve allegations of a sensitive and personal nature’.^[3] His Honour was clearly aware the publication of such allegations would most likely cause harm to those alleging discrimination and those against whom such allegations are made.

Hansen J observed that many complainants in the Anti-Discrimination List are self-represented and without legal training. His Honour also noted that ’virtually all matters are referred to confidential mediation with a very high success rate’ and it is in the ‘private interests of the parties to resolve personally sensitive and emotional matters on a confidential basis’.^[4] His Honour noted there is also a strong public interest in the quick and efficient resolution of such disputes. He stated that to hold that the Tribunal could only make an order closing the file to non-parties before a request to inspect had been made would be ‘impractical’.^[5] This would necessitate the Tribunal assessing dozens, if not hundreds of files each day; in fact, each time a file was opened or a new document was placed on it. His Honour held instead that the Tribunal may make an order within a reasonable time of receiving a request to inspect the file, stating:

The issues that will be relevant for the Tribunal to consider will vary according to the circumstances of the case including the stage reached in the proceeding. For example, at the pre-mediation stage relevant considerations would include the interests of the parties in maintaining the confidentiality of the matters referred to in the file, the risk of injustice caused by the disclosure of untested allegations, and the public interest in promoting resolution of complaints by mediation.^[6]

Hansen J also rejected the argument that the Tribunal has no power to make an order closing the file unless a party to the proceedings applies for such an order. His Honour noted complainants who are self-represented and who have a disability or incapacity would not always be in a position to make a timely application to the Tribunal to close the file to non-parties. In this respect, the Tribunal must be able to protect the interests of those who are unable to protect themselves.

The Court of Appeal decision

Dissatisfied with this decision, the HWT appealed to the Court of Appeal. The argument it ran on appeal was bold and original. HWT argued the orders made by the Tribunal were invalid because the HWT had been denied natural justice in the making of the orders. HWT argued it had a right to access all the documents on a file at the Tribunal, and the Tribunal could not deny a right of access without granting a hearing to the party seeking access.

In a five-page judgment, the Court of Appeal accepted this ‘attractively simple’ argument.^[7] The Court stated that, where the HWT had requested access to a file and the Tribunal proposed to make an order closing the file, HWT had a right to be heard by the Tribunal before the order was made. Specifically, HWT had a right to advance arguments in writing as to why such an order should not be made.^[8]

The keystone to the Court of Appeal decision is the finding that s 146 of the VCAT Act confers a ‘right’ on non-parties to inspect Tribunal files. To examine this proposition it is useful to set out the relevant parts of s 146:

(2) A party in a proceeding may inspect the file of that proceeding without charge.
(3) On paying the prescribed fee (if any) any person may —
(a) inspect the file in that proceeding; and
(b) obtain a copy of any part of the file.
(4) The rights conferred by this section are subject to —
…
(b) any direction of the Tribunal to the contrary
…

It is clear the section does not expressly confer any right of access on non-parties. It refers to ‘[t]he rights conferred by this section’, but does not state what those rights are. The same section empowers the Tribunal to make an order closing the file to non-party access. The ‘rights’ referred to could equally be the right of the parties to have the dispute resolved in a confidential manner. Whatever those rights are, they are expressly subject to ‘any direction of the Tribunal to the contrary’.

Before the doctrine of natural justice can be invoked, a particular right or legitimate interest requiring protection must be identified.^[9] In the Court of Appeal decision the court failed to identify the particular right being vindicated. Was it the right of newspaper publishers to publicly expose highly sensitive matters for profit? It is submitted that the publication of untested allegations of discrimination is only likely to cause humiliation and embarrassment to all parties involved, and to further inflame such matters.

The Court of Appeal cited the High Court’s decision in Heatley v Tasmanian Racing and Gaming Commission^[10] in support of its decision. In that case, the High Court held the respondent’s statutory power to ban members of the public from entering a racecourse was subject to the requirements of natural justice. The Commission had to notify any person it proposed to ban from a racecourse, and afford them an opportunity to present their case.

The Court of Appeal drew an analogy between ‘the right of every member of the public, on payment of the entrance fee, to enter the racecourse’ and a right of the media, on payment of the prescribed fee, to access files at the Tribunal. With respect, the Court of Appeal overlooked one factor that was central to the holding of the High Court in that case. By announcements and advertising, the racecourse invited and encouraged the public to attend on race days. It was this ‘implied invitation’ that gave rise to the right to be heard, if the Commission proposed to deny anyone access, not the mere tendering of the prescribed fee.^[11] There is no analogy to be made between allowing members of the public access to a horse race and allowing a newspaper access to the private affairs of disadvantaged and vulnerable people for the commercial advantage of the newspaper.

The Court of Appeal decision is based on the doctrine of procedural fairness (also known as ‘natural justice’). This doctrine was developed by the courts in the last century in response to the massive increase in government regulation of virtually every area of public and private life. As government bureaucracies became larger and more powerful, the courts provided citizens with the right to challenge the decisions of government, where a person’s rights were affected by the decision.^[12] Given the history and rationale for the doctrine of natural justice, it is problematic that the doctrine is relied on by powerful media interests in order to gain access, for commercial advantage, to the private affairs of individual citizens. Should the courts in a developed and civilised democracy be supporting such actions?

A look at other jurisdictions

There is no right at common law to inspect a court file in a proceeding.^[13] Any right to inspect a court file arises from legislation and the rules of court. Rights of access vary widely from court to court. The rights given in each court or tribunal depend on the nature of the jurisdiction exercised by that court or tribunal. For example, in civil proceedings in the Supreme Court of Victoria, access is given as of right to the entire file. The court rules provide, ‘[w]hen the office of the Court is open, any person may, on payment of the proper fee, inspect and obtain a copy of any document filed in a proceeding’.^[14] This broad right of access reflects the predominantly commercial nature of civil proceedings in the Supreme Court.

Conversely, in the Family Court of Australia access to the court file is much more restricted. Generally speaking, access by non-parties is available only with leave of the Court.^[15] The Family Court of Australia maintains strict control over the documents and information provided by the parties due to the sensitive and personal nature of the matters dealt with by the court.

The New South Wales Supreme Court Rules provide that a non-party may inspect the court file in any proceeding, but only with the Court’s permission. Supreme Court Practice Note 97 provides that access will usually be given to:

• pleadings and judgments in proceedings that have
been concluded;
• documents that record what was said or done in
open court;
• material that was admitted into evidence; and
• information that would have been seen or heard
by a person present in open court[16]

Access to other material will be granted only if the Court is satisfied that exceptional circumstances exist. The rationale for the various restrictions on access is that many documents filed by the parties contain material that is ‘scandalous, frivolous, vexatious, irrelevant or otherwise oppressive’.^[17] Such documents may not reflect the case that is actually presented by the parties at trial. Even if tendered at trial, some of this material may be ruled irrelevant or otherwise inadmissible. The Practice Note seeks to avoid unfairness to the parties by only allowing non-party access to material that is either admitted into evidence or read in open court.

Cases considering media access to court files

In Hammond v Sheinberg,^[18] two plaintiffs objected to the Supreme Court of New South Wales granting access to a newspaper publisher to affidavits filed in the proceedings. The plaintiffs argued that the Supreme Court Rules required the Court to notify the parties when an application for access to material on the court file was made.

Hamilton J rejected this argument, stating that the Supreme Court has inherent jurisdiction (apart from the Rules) to grant access to affidavits that have been read in open court. His Honour stated, ‘[it] is a basic principle of the common law … that every court of justice is open to every subject of the King’.^[19] His Honour regarded this principle of ‘open justice’ as a strong argument in favour of the publicity of evidence in proceedings. As the affidavits in question had been read in open court and had been admitted into evidence, there was no unfairness in allowing a newspaper publisher to inspect them and to publish their contents. Hamilton J did not, however, allow access to other material which had not been relied on in the proceedings, as the parties had not had an opportunity to object to the tendering of this material.

In ASIC v Adler^[20] a newspaper publisher sought access to the statement of claim filed in a proceeding. No defence had yet been filed. Santow J granted access to the statement of claim on the grounds ‘the interests of justice would not be prejudiced and the openness of the court’s processes would be vindicated’.^[21] Because the subject matter of the claim was already in the public domain, there could be no material prejudice to a fair trial. His Honour stated, ‘a fair-minded reader … will appreciate that there is the likelihood that Defences will be filed and the allegations may or may not be ultimately substantiated’.^[22]

In a subsequent application, Santow J also granted access to the defences filed in the proceeding.^[23] His Honour noted there was ‘considerable public interest in the proceedings’, and that access to the court file should not be unreasonably impeded.^[24] According to his Honour the court is:

… the custodian of a responsibility to ensure that its processes are transparent and that justice occurs in a public way … If reporting is to be informed the media do, generally speaking, need access to the underlying documents before the Court. That consideration though of great importance must not prejudice a fair trial.^[25]

In ASIC v Rich a newspaper publisher sought access to affidavits on the court file.^[26] These documents were the basis of a successful ex-parte application for orders freezing a party’s assets. Austin J stated that the principle of ‘open justice’ (that proceedings take place in open court) is ‘of fundamental importance to the administration of justice’.^[27] His Honour quoted McHugh J:

The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule when its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified that open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom.^[28]

According to Austin J, the principle of ‘open justice’ is based on the belief that ‘exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers’.^[29] In modern society the media plays an important role in ensuring the accountability of the courts, as few people have the time to attend hearings in person. Thus it is necessary on occasion to allow the media access to court files.

Austin J enumerated several principles opposing or qualifying the principle of open justice:

• the harm and unfairness of allowing the publication of the evidence of one party, before the other party has had a chance to test it or respond to it

• the risk that a party (particularly where that party is well known) will be tried by the media before the hearing takes place

• media outlets are immune from actions for defamation in relation to fair reports of court proceedings. The subject of allegations made in documents filed with the court and published by the media would have no action in defamation against the media or the maker of the allegations

• access should be denied if the material could not

be of legitimate public interest but has merely 'prurient' interest

• access should be denied if publication would jeopardise the possibility of negotiation and settlement of the matter between the parties

• the risk that the media will not distinguish between evidence that is admissible and inadmissible, and relevant and irrelevant. This leads to the risk of inaccurate and misleading reporting

• access should be denied if commercial confidence attaches to the material.

In eisa Limited v Damien Brady & 2 Others a newspaper publisher sought access to the statement of claim and defence filed in a proceeding.^[30]The publisher argued there was a strong public interest in the matter, as it involved alleged breaches of directors’ duties. Santow J denied access, stating the pleadings contained serious accusations that may not reflect what is ultimately pressed at the hearing. His Honour regarded it as unfair to release to the media pleadings which have not been heard or tested in open court. It would also allow a party to make serious and damaging allegations in pleadings, free of liability for defamation. This could not only unfairly injure a party’s reputation but may prejudice the ’paramount requirement of a fair trial’.^[31]

New South Wales Law Reform Commission

In a report released in 2003, the New South Wales Law Reform Commission ('the Commission') recommended legislation granting a right of access to the following material on a court file:

• pleadings, to the extent that their content has been relied on in the proceeding

• judgments and orders made by the court

• all material admitted into evidence in a proceeding in open court

• written submissions, to the extent their contents are relied on in proceedings and referred to as the basis of the case argued by a party

• documents that record what was said or done in open court.^[32]

The Commission recommended that access to this material be available ‘as of right’ (rather than on application to the court). Access to all other material would be granted only if the court was satisfied that exceptional circumstances justified such access.

The Commission noted the important role played by the media in ‘keeping the public informed about court hearings and exposing the judicial system to scrutiny’.^[33] Arguably, granting wider access to the documents filed in a proceeding would result in more informed media coverage of proceedings. This consideration, although important, must be balanced against the courts’ ‘overriding obligation … to deliver justice according to the law’.^[34]

The Commission noted the dangers presented by granting access to particular documents on the court file:

• pleadings often contain serious allegations that would cause harm if published. The New South Wales Supreme Court Practice Note 97 directs that pleadings not be released prior to the conclusion of proceedings. Pleadings are often amended before the hearing and may not be relied on at all

• affidavits and witness statements often contain material that is struck out before or during the hearing as being irrelevant or otherwise inadmissible.

The Commission rejected the view that certain documents should not be released until the conclusion of the proceedings. By this time, documents may well have lost their newsworthiness. In the Commission's view, such a restriction would be ‘too great an interference with open justice’.^[35] Instead, the Commission proposed that documents such as pleadings would need to be actually deployed in the proceedings for access to be granted.

Conclusion

The principle of open justice is fundamental to the proper administration of justice. Courts and individual judges must be open to public scrutiny. They must be accountable to the public for the considerable power they exercise.

In modern society, most people have neither the time nor the inclination to attend court hearings in person. The public relies on the media to report on important hearings. Due to the increased use of written witness statements and affidavits, even someone attending a hearing may not have access to all the evidence tendered. In order to make sense of proceedings, media access to documents filed by the parties is sometimes required.

However, in the words of Austin J:

[F]ree 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 a non-party is entitled to have access to material, especially where the material has not been the subject of evidence in open court.^[36]

The cases discussed above canvass the competing interests at stake in determining whether access to court files should be granted to the media.

A factor highlighted by Hansen J in the Supreme Court of Victoria decision is the nature of the jurisdiction exercised by the Anti-Discrimination List. This division of the Tribunal does not deal with commercial matters, where only money is at stake. Rather it deals with complaints of discrimination, harassment, vilification and victimisation, many involving allegations of a highly sensitive and personal nature. Publication of these allegations before a hearing could cause harm, humiliation and embarrassment to the parties involved. Considering that many complainants are self-represented and are unaware of considerations of relevance in drafting a complaint, great harm may be caused by releasing these untested allegations before a hearing.

Another very relevant factor is the need to ensure the mediation process is allowed to function properly. The majority of complaints made to the Anti-Discrimination List are referred to mediation, which has a very high success rate. It is in the interests of the parties and of society generally that these disputes are resolved quickly and efficiently. The publication of complaints prior to mediation would most likely inflame the dispute and impair the prospects of a successful mediation.

The vast majority of cases in the Anti-Discrimination List do not in themselves raise issues of wide public significance. They are personal matters and most effectively resolved with little or no publicity. Recently there have been some exceptions: the case brought by Matthew Mangan against the Melbourne Cricket Club, alleging the Club’s membership rules discriminated against men;^[37] and the case brought by Robyn Beasley on behalf of her profoundly deaf son, alleging his teachers failed to take his special educational needs into account.^[38] These important cases received thorough coverage in the print and electronic media, leading to the conclusion the Tribunal is (in the words of Hansen J) exercising its power to limit access ‘in a practical manner appropriate to the circumstances of the particular case’.^[39]

Finally, it is likely that the fear of publicity will deter people from pursuing complaints of discrimination, harassment, vilification and victimisation. People who genuinely believe they have suffered unlawful discrimination, harassment, vilification or victimisation may fear even greater humiliation if they exercise their right to complain to the Tribunal. If the function of the law is to ‘promote recognition and acceptance of everyone’s right to equality of opportunity’^[40] this would be an unfortunate result indeed.

^[*] BILL SWANNIE is a Melbourne lawyer.

email: billswannie@hotmail.com

^[1] Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal & Ors [2006] VSCA 7 (9 February 2006) 41(Maxwell P) (‘Court of Appeal decision’).

^[2] The Herald and Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2005] VSC 188; [2005] 11 VR 431 (1 June 2005) (‘the Supreme Court of Victoria decision’).

^[3] Ibid [11].

^[4] Ibid [67].

^[5] Ibid.

^[6] Ibid [52].

^[7] Court of Appeal decision, above n 1, [30]

^[8] Ibid [41].

^[9] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (Mason J).

^[10] [1977] HCA 39; (1977) 137 CLR 487.

^[11] Ibid 508 (Aickin J).

^[12] Ibid 491 (Barwick CJ).

^[13] Smith v Harris [1996] VicRp 70; [1996] 2 VR 335; New South Wales Law Reform Commission, Contempt by Publication, Report 100 (2003), [11.3].

^[14] Supreme Court (General Civil Procedure) Rules 2005, O 28.05(1).