FEDERAL COURT OF AUSTRALIA

Seven Network Limited v News Limited (No 9)

1.         The third, fifth and sixth respondents bring in short minutes of order consistent with

these reasons.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AN ELECTRONIC TRIAL

1                     In these proceedings the applicants (‘Seven Network’) seek relief against twenty-two respondents.  Seven Network’s claims are based, inter alia, upon what is said to be collusive conduct by most of the respondents in relation to the bidding for television rights to Australian Football League and National Rugby League games.  This conduct is alleged to have contravened provisions of the Trade Practices Act 1974 (Cth) (‘TP Act’).

2                     The proceedings have attracted a considerable amount of public attention.  They are likely to be lengthy and complex.  There are nine separate sets of legal representatives playing an active role in the proceedings.  The parties are currently represented by a total of twenty-eight counsel of whom eleven are senior counsel. 

3                     The opening of Seven Network’s case occupied five hearing days.  I have been informed that it is likely that over fifty witnesses will be called, some of whom are very well known figures in the Australian media industry.  The first witness has so far been cross-examined for four days - without the end yet being in sight.  Estimates of the length of the case have varied from six to nine months and even beyond. 

4                     The case is being conducted by means of an ‘electronic’ courtroom.  The database includes the pleadings, witness statements, expert reports, written submissions (including written openings by Seven Network and some of the respondents), all orders made in the proceedings, documents admitted into evidence, documents discovered by the parties and documents produced to the court on subpoena or pursuant to notices to produce.  I have been told that the parties have discovered tens of thousands of documents and thousands more have been produced on subpoena.  There are currently over 75,000 documents in the electronic database.  As documents on the database are referred to in court they are usually brought up on computer screens accessible by the legal representatives and the witness, as well as on larger screens that can be viewed by members of the public (including the media).

5                     A regime has been established to deal with documents in respect of which confidentiality orders are in place.  For example, a document may be displayed only on the public screens available to the Judge or to legal representatives and not on the public screens.  Statements admitted into evidence have been edited so as to exclude material rejected on evidentiary grounds.  Thus when they are brought up on the screens the rejected material does not appear.

6                     A transcript is prepared in ‘real time’.  It cannot be viewed in the hearing courtroom by members of the public, but to date has been available on a computer screen located in an adjacent courtroom.  A television screen in the adjacent courtroom shows the proceedings ‘live’ by means of a fixed camera located in the hearing courtroom.

7                     At the end of each day, the transcript is emailed to media outlets who have requested it.  In addition, other non-confidential documents, such as written submissions produced to the Court may be distributed electronically to the media.

THE ABC’S MOTION

8                     The Australian Broadcasting Corporation (‘ABC’), which is not a party to the proceedings, has filed a motion pursuant to Federal Court Rules (‘FCR’), O 46 r 6, seeking the following orders and notation:

‘1.     Subject to any order made pursuant to section 50 of the Federal Court Act or any order for confidentiality, leave be granted to the Australian Broadcasting Corporation (ABC) to inspect and have access to all:

(a)   Affidavits in evidence;

(b)   Witness statements in evidence;

(c)    Expert reports in evidence;

(d)   Exhibits;

(e)    Written submissions; and

(f)     Transcript.

2.         Such inspection and access be granted in accordance with the protocol set out in the schedule to these orders (Protocol).

THE COURT NOTES

3.         The ABC’s understanding in relation to any costs associated with the provision of the Media Court Book as set out in paragraphs 8 and 9 of the Protocol.’

9                     The Protocol suggested by the ABC is as follows:

‘Media Court Book

1.      The Court will establish an electronic Court Book by way of an electronic media database (the Media Court Book).

2.      The Media Court Book is to be a separate database from that made available to the parties (the Court Book).

3.      The Media Court Book will contain:

(a)    Pleadings;

(b)    Affidavits in evidence;

(c)     Witness statements in evidence;

(d)    Expert reports in evidence;

(e)     Exhibits;

(f)      A list of exhibits;

(g)    Written submissions;

(h)    The corrected transcript; and

(i)      Any other document forming part of the public record in the  

       proceedings.

4.      The Media Court Book shall not contain:

(a)     any evidence which is the subject of an order pursuant to section 50 of the Federal Court Act or any order for confidentiality;

(b)  any part of any document which contains any evidence which is the subject of an order pursuant to section 50 of the Federal Court Act or any order for confidentiality.

5.      Access to the contents of the Media Court Book will be provided to the ABC as soon as practicable.

6.      The Media Court Book will be updated daily during the course of the proceedings.

7.      The Media Court Book will be made available to the ABC on line, subject to appropriate access arrangements being made between the Court and the ABC.

Costs

8.      Subject to paragraph 9, to the extent that there are any costs incurred by the Court or e.law in establishing, maintaining and providing access to the Media Court Book which are additional to those incurred in establishing and maintaining the Court Book, the ABC will meet those costs if requested to do so.

9.      If any person other than the ABC seeks and obtains access to the Media Court Book, that person or those persons will share any costs referred to in paragraph 8 with the ABC in equal proportions.’

10                  FCR, O 46 r 6 relevantly provides as follows:

            ‘6 (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;

…

(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 …;

(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;

(g)  [repealed]

(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 a 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).

(5) Except with the leave of the Court or a Judge, a party to a proceeding or other person must not search in the Registry for, or inspect:

                 (a)  a transcript of the proceeding; or

                 (b) a document filed in the proceeding to support an application for an order that a document, evidence or thing be privileged from production.’

11                  Section 50 of the Federal Court of Australia Act 1976 (Cth), which is referred to in the ABC’s motion, provides that the Court may, at any time during or after the hearing of a proceeding, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court ‘to be necessary in order to prevent prejudice to the administration of justice…’.

THE ISSUE FOR DECISION

12                  FCR O 46 r 6(2) explicitly covers written submissions.  Accordingly, a non-party such as the ABC may search in the Registry for and inspect any such submission, unless the Court has ordered that the document is confidential. 

13                  Affidavits and unsworn statements of evidence are expressly referred to in O 46 r 6(3).  The sub-rule makes no distinction between an affidavit or statement which has been read or admitted into evidence and one which has not.  The effect of r 6(3) is that a non-party to a proceeding, such as the ABC, is not to inspect any affidavit or statement, whether or not admitted into evidence, except with the leave of the Court.  Since experts’ reports are ordinarily annexed or exhibited to affidavits or witness statements, they are effectively in the same position.  Of course if the contents of an affidavit or statement are referred to in open court, any person in court is free to make a fair report of the material referred to.

14                  Documents admitted into evidence and other exhibits are not referred to in either sub-rule (2) or (3) of O 46 r 6. They are subject to sub-rule (4) and therefore cannot be inspected by a non-party, except with the leave of the Court or with permission of the Registrar.  The ABC has not sought the permission of the Registrar to inspect the non-confidential exhibits, no doubt because it has taken the view that a Registrar would be likely to refuse permission without a direction from the Court.

15                  Order 46 r 6(5) prevents a party to a proceeding or any other person (including a non-party such as the ABC) searching in the Registry for or inspecting a transcript of the proceeding.  Accordingly, the ABC is not entitled to obtain a transcript unless the Court grants leave.  In fact, as I have noted, the Court has already granted leave pursuant to O 46 r 6(5) and the daily transcript in electronic form has been made available to any media outlet that has sought access to it.

16                  The parties to the proceedings are in agreement or at least do not dispute that, subject to the practicalities being resolved, the ABC (and therefore other media outlets) should have access to:

·           the pleadings;

·           those parts of affidavits, witness statements and expert reports admitted into    

       evidence;

·           written submissions; and

·           the transcript (real time or historical).

17                  The only significant dispute arising out of the motion relates to documents and other material admitted into evidence other than affidavits, witness statements and expert reports (‘the Exhibits’).  Telstra, with the support of at least some of the other parties, submits that in the unusual circumstances of the present case, the ABC should not be entitled to unqualified access to the non-confidential Exhibits.  Mr Castle, who argued this aspect of the motion on behalf of Telstra, contends that the ABC should have access to the Exhibits only when they are referred to in the course of evidence or oral argument or in written submissions provided to the Court.  The consequence of this contention, if accepted, is that the ABC would not be permitted to identify, quote from or refer to any Exhibit until it is referred to in the proceedings in the manner suggested by Mr Castle.  The issue for determination is whether Telstra’s submission should be accepted.

THE ARGUMENTS

18                  Mr Castle makes the following points:

·           In a traditional ‘hard copy’ trial, public access to documentary evidence is usually decided on a document by document basis.  There are therefore practical constraints of time and cost associated with copying, storing and searching the documentary evidence.  Special care is required in a case conducted electronically to protect the legitimate interests of the parties, given the ease with which material can be instantaneously transmitted.

·           A very large volume of material has been or will be tendered at the trial.  As a matter of convenience, the tender ‘bundles’ will include many hundreds if not thousands of documents.  Because it has been necessary for the parties to prepare the case under stringent time constraints (bearing in mind the nature and complexity of proceedings), there is a serious risk that some material will be allowed into evidence by default or by error.  Similarly, given the time pressures, there is a serious risk that the parties will fail to claim confidentiality in respect of documents for which such a claim could legitimately be made.  Accordingly, if all the Exhibits, other than those specifically designated as confidential, are made generally available in electronic form, the parties may be prejudiced by a loss of commercial confidentiality or the general publication of sensitive material.

·           Some evidence will be admitted subject to relevance, while the parties may elect not to make objections on the grounds of relevance in the interests of avoiding unnecessary disputation and the consequential prolongation of a trial that is already likely to be extremely lengthy and difficult.  It would be unfair if a co-operative attitude towards the admissibility of tendered material were to create a risk of general publication of confidential or sensitive material.

·           The likelihood is that the Court will be referred to only a small proportion of the Exhibits.  The proportion will be even smaller if, for example, the case settles (in whole or in part) or the issues are narrowed by agreement.  The Court should not foreclose the parties having the opportunity to make submissions at an appropriate time and, in any event, at the conclusion of the trial as to whether general access should be granted to the Exhibits that have not been referred to or relied on in evidence or in submissions.

19                  Ms Adamson SC, who appeared with Mr Dawson for the ABC, stresses the importance of the principle of open justice.  She contends that the open justice principle, as applied to documents admitted into evidence, should not be limited to material which has been referred to or ‘deployed’ in the proceedings.  She argues that an Exhibit may be a matter of perfectly legitimate scrutiny and comment by the media whether or not it has been referred to at the trial.  Indeed the very fact that it has not been referred to may be of significance.  According to Ms Adamson, the only appropriate touchstone for determining access is whether a document has been admitted into evidence.  If it has, the media ought to be able to report its contents.

20                  Ms Adamson submits that the vast number of documents likely to be admitted into evidence does not alter the fundamental principles to be applied.  She also says that the fact that the proceedings are being conducted in an electronic courtroom is not of itself significant.  She points out that hard copy documents can be scanned and distributed electronically.  She also casts doubt on whether the criterion suggested by Mr Castle – that the Exhibits have been read or referred to in open court – will be capable of convenient application.

REASONING

21                  As I remarked in Macquarie Radio Network Pty Ltd v The Australian Broadcasting Authority [2002] FCA 1408 at [18], it is trite law that the administration of justice must take place in open court.  The principle was stated by a Full Court of this Court in R 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’.

See also John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344, at [17]–[20], per Spigelman CJ; The Herald & Weekly Times Ltd v The Magistrates’ Court of Victoria (2000) 2 VR 346, at [16]-[21] per Charles JA (with whom Tadgell and Chernov JJA agreed); John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465, at 481, per McHugh JA.

22                  The rationale underlying the principle of open justice was stated by Gibbs J in Russell v Russell (1976) 134 CLR 495, at 520:

            ‘It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted ‘publicly and in open view’.  This rule 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.  It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’.  To require a court invariably to sit in closed court is to alter the nature of the court.’ (Citations omitted.)

As this passage implies, the principle serves the salutary purpose of keeping ‘the judges themselves up to the mark’ (Harmon v Secretary of State for the Home Department [1983] 1 AC 280, at 303, per Lord Diplock) and of providing a ‘safeguard against judicial arbitrariness or idiosyncrasy’ (Attorney-General v Leveller Magazine Ltd [1979] AC 440, at 450, per Lord Diplock).

23                  In John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101, Spigelman CJ (with whom Mason P and Beazley JA agreed) made the important point (at [29]) that open justice is a principle and not ‘a freestanding right’.  As his Honour noted, the principle is of significance in determining whether an application for access to material should be granted pursuant to an express or implied power to grant such access.  However, the principle does not necessitate a particular decision, since there may be other principles or policies that have to be taken into account.

24                  FCR, O 46 r 6 does not confer a right on a non-party in proceedings in this Court to obtain access to documents admitted into evidence.  Leave from the Court is required.  In taking this approach, the rule appears to be consistent with the common law position: GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984, at 995, per Potter LJ (with whom Sir Patrick Russell and Butler-Sloss LJ agreed); Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609, at [3], per Finkelstein J.  Be that as it may, in the present case the ABC accepts that it has to obtain leave from the Court pursuant to O 46 r 6(4) in order to obtain access to the non-confidential Exhibits.

25                  In Macquarie Radio v ABA, I expressed agreement with a passage in the judgment of Finkelstein J in ACCC v ABB Transmission, at [7].  The full passage is as follows:

            ‘The question that I must resolve is what principle should be applied when deciding whether to allow inspection in cases when leave is required.  In giving the answer I propose to confine myself to cases where a non-party seeks access to material which has been relied upon by the judge.  In such a case I have no doubt that the proper approach is that access should be allowed unless the interests of justice require a different course.  It is only by adopting this approach that, in a practical sense, the principle of open justice will be preserved.  Put differently, in my view there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence.  Inspection should only be refused in exceptional circumstances.’  (Emphasis added.)

Earlier in his judgment, Finkelstein J had made the point that under modern procedures much evidence is given in written form and the parties often rely on detailed written submissions.  Accordingly, the proceedings may be unintelligible to an observer in court who has not read the written evidence or submissions.  As his Honour observed (at [5]), one unintended result of such proceedings, is that the rule of open justice will not necessarily fully expose what has taken place in court.

26                  It will be seen that Finkelstein J confined his observations to material that has been relied upon by a Judge.  Moreover, as Mr Castle points out, Spigelman CJ in John Fairfax v Ryde Local Court observed that the principle of open justice is not engaged at the time of the filing of proceedings, but only when relevant material is ‘used’ or ‘deployed’ in open court (at [32], [65]).

27                  Nonetheless, it seems to me that unless the interests of justice require otherwise, 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.  I say ‘ordinarily’ because the circumstances of each case will vary and the exercise of the discretion under FCR O 46 r 6 will have to take into account the particular circumstances of the case.  I agree with Ms Adamson’s submissions to the extent that a convenient touchstone for determining the question of access by non-parties is whether the documents or other material have been admitted into evidence.  In general, the application of this principle will serve the interests of open justice.  In particular, access to the documentary evidence can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate the court’s determination of the issues arising in the proceedings (cf Evidence Act 1995 (Cth), ss 55, 56 (stating the test of relevance)).  The approach I favour accords, for example, with Practice Note SC Gen 2 of the Supreme Court of New South Wales, which provides that access will normally be granted to non-parties in respect of material that has been admitted into evidence.  I do not read anything said by Spigelman CJ in John Fairfax v Ryde Local Court as inconsistent with this approach.

28                  For the reasons I have given, in exercising the discretion conferred by FCR  O 46 r 6(4) I consider that considerable weight should be given to the principle of open justice.  Indeed, as I have explained, I think that unless the interests of justice require otherwise in the present case, the ABC should be granted access to the non-confidential Exhibits.  I am satisfied, however, that the interests of justice will be served by allowing the ABC access to the Exhibits broadly in the manner suggested by Telstra.  That is, the ABC (and other media organisations) should have access to non-confidential Exhibits on the database only when it has been read or referred to in open court, or referred to in statements or written submissions admitted into evidence or provided to the Court.

29                  This is a very large and complex case involving a vast amount of documentation.  The Exhibits are recorded on an electronic database.  Instant transmission of all non-confidential Exhibits on the database magnifies the risk that a party will be exposed to publication of confidential or sensitive material that ultimately will have no bearing on the outcome of the case or indeed on any arguments advanced by the parties.  I accept that, as Mr Castle submitted, there are practical difficulties facing the parties in satisfying themselves that all confidential material has been identified and accommodated by the appropriate confidentiality regime.

30                  Moreover, in my opinion there is also a significant risk that if the non-confidential Exhibits are released to the media as soon as they are admitted into evidence, some of the parties may be subjected to a forensic disadvantage.  At any given time in the proceedings, particularly in the early stages, the likelihood is that only a very small proportion of the Exhibits will have been referred to in written submissions or in open court.  Yet some of the Exhibits that have not been referred to may be potentially important for the cross-examination of witnesses who have not yet been called in the proceedings.  The publication in the media of the substance of such Exhibits may deprive a party of a legitimate forensic advantage when it comes to cross-examination of particular witnesses.

31                  Another concern is that the potential difficulties I have identified will encourage the parties to be less accommodating in their approach to the tender of documents than has been the case thus far.  In particular, they may well be more reluctant to consent to the admission of documents that they consider to be of marginal relevance to the issues in the case.  Similarly, they are likely to scrutinise tender ‘bundles’ more closely with a view to identifying in advance confidential or sensitive material or material that might be significant in the cross-examination of witnesses not yet called in the proceedings. If this occurs, the parties will be forced to spend more time and resources in analysing proposed tender bundles, diverting them from the continuing preparation required by a case of this magnitude.  From the Court’s point of view, considerably more time may have to be spent on resolving evidentiary disputes, thereby prolonging the proceedings and compounding the difficulty of ensuring that the trial is conducted in an orderly manner.

32                  Notwithstanding the ABC’s submissions, in my view the criterion proposed by Telstra for allowing non-parties access to non-confidential Exhibits is capable of being implemented without undue difficulty.  The practice adopted in these proceedings has been that each document referred to in written submissions or statements is identified by a specific number which enables it to be retrieved from the database.  Accordingly when the written submissions are provided to the Court or the statements admitted into evidence, the documents referred to are usually clearly identified and can be readily listed and retrieved.  When a document is brought up on the screen in order to be put to a witness, the identification number of that document appears in the transcript.  Such documents can also be readily listed and retrieved.

33                  It is worth noting that the criterion proposed by Telstra bears some similarity to the terms of the FCR,O 15 r 18.  That rule provides that, subject to a contrary order, any express or implied undertaking not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to the document

‘after it has been read to or by the Court or referred to, in open court, in such terms as to disclose its contents’.

34                  The fact that I have accepted the substance of Telstra’s submissions does not mean that the media will necessarily be permanently denied access to all non-confidential Exhibits that have not been read or referred to in open court or referred to in written submissions or statements.  As the proceedings draw to a close, some, if not all the risks to which the parties might be exposed by granting access to such Exhibits may have been diminished or even removed altogether.  At that point it may be appropriate for the ABC, should it wish to do so, to renew its application.

35                  I propose to direct Telstra to bring in a modified Protocol the terms of which are consistent with this judgment.  The modified Protocol will need to address the fact that any electronic Media Court Book will need to be prepared by the contractors (e.law) who have set up the Court Book and the electronic courtroom.  In practice, the contractors will need to have responsibility for distributing material to the media (subject to direction from the Court).  There also may be practical issues requiring attention before the Protocol can be finalised.  If necessary, I shall resolve any dispute that may arise about the precise terms of the Protocol.

Associate:

Dated:              5 October 2005