The Deputy Registrar of the District Court of New South Wales has refused IP Whiteboard’s non-party application to obtain from the court file a copy of Tom Waterhouse’s court complaint against Peter Fitzsimons and Fairfax (more officially known as proceeding No. 2012/284242).

The decision tends to focus the mind on the balance between two potentially competing principles. In the right corner, there is a public interest in ensuring open access to the administration of justice. In the left corner, there is the need to protect litigants from the publication of potentially prejudicial and untested claims.

How did the defamation action come to our attention?

One of the defendants himself, namely, journalist Peter Fitzsimons, has referred to the litigation in his regular column: “Forget for the moment that your humble correspondent is being sued for defamation by Tom Waterhouse” (SMH, 16 March 2013) or “If it please the court, despite being sued for defamation by Tom Waterhouse…” (SMH, 4 April 2013).

Mr Fitzsimons also indicates the nature of the matter complained of: “Ignore the fact [Waterhouse] has clearly already taken a rather dim view of comments I have made in this column about the manner of his sponsorship of Australian sport.” (SMH, 16 March 2013)

It is not our place at IP Whiteboard to comment on the substance of the current vigorous national debate about the role of sports betting on television. The interest for us comes from the existence of this litigation given such vigorous national debate. That debate has taken place in forums such as a specially convened federal parliamentary committee hearing, mainstream press, broadcasts on just about every news and sports radio or TV station, and social media.

The role of social media is important because many of the comments about Mr Waterhouse and family members on blogs, chat forums and in the twittersphere are confronting, disturbing and highly offensive in the context of any reasoned democratic debate.

So, against this backdrop of vigorous commentary, some of it lucid, highly educated and learned, some of it offensive and deeply problematic, what makes Mr Fitzsimons’ comments different and deserving of a law suit? Well, we can’t tell you, because we’re not permitted to review the pleading.

Restricted access to court documents in New South Wales’ Supreme Court and District Court

This is because, in New South Wales (Supreme Court and District Court), access to material in civil proceedings is restricted to parties, except with the leave of the Court or Registrar (for District Court, refer Practice Note No. 11). The Practice Note emphasises (albeit not in those precise terms) the need to protect litigants from the publication of potentially prejudicial and untested claims.

IP Whiteboard’s reasons for requesting a copy of pleading

We decided to apply for access (which is essentially a matter of filling out a form) because in “exceptional circumstances” the District Court can relax its ‘no access’ policy.

Here were our failed reasons:

  • The existence of the litigation is in the public domain and has been publicised by a defendant, amongst others.
  • There are a number of issues arising from the litigation which are in the public interest. One issue concerns the potential chilling effect of this lawsuit on free speech in circumstances where the matter complained of – at least in general terms – has attracted significant media attention (and is also the subject of a parliamentary inquiry).
  • Another issue concerns the nature and extent of comment about the plaintiff and his activities on social media channels, including whether it is relevant to take this into account when assessing the conduct of a mainstream media journalist and publisher.
  • Our policy is to rely on primary sources wherever possible, rather than secondary sources. Further, in this case it is appropriate that we test our views against the nature of the imputations pleaded.
  • It would be problematic if debate about the litigation and its subject matter was not sufficiently informed by review of the pleadings (such documents being commonly available in a number of other court registries in Australia).

Open access to court documents in Victorian Supreme Court and County Court

What might have happened if Mr Waterhouse had commenced civil proceedings in the Victorian County Court or Supreme Court, rather than choosing the New South Wales’ jurisdiction?

Well, we would have walked up to the Victorian Court, most likely asked for and obtained a copy of the pleading from the Registry, and paid a photocopying fee.

Yes, that’s right. Such Victorian Courts have a preference towards the principle of open access to the administration of justice. Of course, in appropriate cases, orders might be made restricting public access to sensitive material. However, the process is essentially the reverse of that in New South Wales. In Victoria, one can inspect a court file (and particularly gain access to pleadings) until told otherwise. In New South Wales, non-parties cannot inspect a court file until after the matter has concluded, unless exceptional circumstances exist.

Policy issues concerning access to court records and exhibits

If interested in examining the underlying policy issues, the New South Wales’ Judicial Commission’s Bench Book ‘Media access to court records and exhibits’ contains a nuanced discussion. Also see an Australian Law Reform Commission report (ALRC Report 108) which touches on these issues without being definitive.

We have not found significant information debating the pros and cons of the differing Victorian and New South Wales’ processes. This is surprising. That said, there is a 2008 NSW Attorney-General’s Department Report recommending liberalisation of the current New South Wales’ access regime. The Report noted the inconsistencies in access across jurisdictions, and the desirability of a uniform national approach. Also see here. Interestingly, the recommendations from the NSW Report do not appear to have been implemented.

To close the discussion, what are some ‘exceptional circumstances’ where the court has granted public access to court documents in New South Wales? Here are a few:

  • the subject matter of the statement of claim was already in the public arena, having been released by ASIC, and there was no potential for material prejudice to a fair trial: Australian Securities and Investments Commission v Adler [2001] NSWSC 644
  • the judge was satisfied of the “crucial significance of the administration of justice taking place in open court”; the fact that the pleadings would be referred to often in the course of the hearing; and the fact that the statement of claim was already in the public domain: Idoport Pty Ltd National Australia Bank Ltd v National Australia Bank Ltd [2000] NSWSC 769
  • the public interest in “the due and orderly conduct of investigations by law enforcement agencies” justified media access to two affidavits on the court file which had not been read in open court (with names redacted), when balanced against the public interest in the maintenance of the fundamental privilege against self-incrimination: in Australian Securities and Investments Commission v Michalik [2004] NSWSC 966.

Is there a middle ground?

Should the Victorian or New South Wales’ approach be preferred? Perhaps the approach taken by the Federal Court of Australia offers an appropriate middle ground. There, whilst pleadings are readily available, public access is generally denied to affidavits or a range of other court documents containing evidence and detailed allegations not yet tested in court.

It is hard of course, to conceal our exasperation in the present case, but we’re writing a blog post and have our frustrated ‘quasi-media’ hats on. We completely reserve our right to change our minds should the circumstances demand it!