McLachlan v Browne & Fairfax Media Publications Pty Ltd; McLachlan v Browne & Australian Broadcasting Corporation (No 5)

HER HONOUR: Craig McLachlan has commenced proceedings for defamation arising out of the publication of articles accusing him of sexual impropriety. Mr McLachlan is a popular Australian actor and the case has attracted considerable attention in the press. The proceedings have come before the Court for preliminary argument on a number of occasions but the final hearing has not yet commenced. The matter is listed for trial with a jury commencing on 4 February 2019.

The Court has received a number of applications from members of the press seeking access to documents held on the Court file, including the pleadings. The original statement of claim has already been reported extensively in the public domain, in circumstances to which I will return. The purpose of the media applications is to obtain access to the defences. The applications include applications by journalists employed by Fairfax and the ABC, who are defendants in the proceedings.

Although the question of access to a court file by a non-party is purely an administrative issue, the defendants raised the matter in open court and made lengthy submissions in support of the applications by the media. While those submissions do not raise any matter for judicial determination in the proceedings, it is appropriate in the circumstances to record my reasons for refusing access to the pleadings, at least until the commencement of the hearing.

The usual position is that non-parties (including media organisations) are not entitled to access to the pleadings until after the conclusion of the proceedings. Applications for access to court documents are governed by r 36.12 of the Uniform Civil Procedure Rules 2005 (NSW). Access to pleadings is addressed in sub-rule (2), which provides:

There is in fact no fee prescribed under either the UCPR or the Civil Procedure Regulation 2017 (NSW) for the provision of documents to the press. In practice, applications for access by journalists are ordinarily made through the Media Liaison Office attached to the Chambers of the Chief Justice and forwarded to a registrar for approval.

The exercise of the registrar’s discretion under r 36.12 to provide documents to a non-party is guided by Practice Note No SC Gen 2 “Access to Court Files”, which came into effect on 1 March 2006. Clause 7 of the Practice Note provides:

As the applications in the present case seek access to the pleadings before the conclusion of the proceedings, they fall outside the regime contemplated by that clause. The defendants submitted, however, that access should be granted for the reasons stated by Einstein J in Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781. That was a case in the Commercial List in which a well-known footballer, Loti Tuqiri, brought proceedings against the Australian Rugby Union for wrongful termination of a contract of employment. At the first listing of the proceedings, a number of media organisations sought access to the court file including the Commercial List Summons and Commercial List Statement.

Justice Einstein granted access to those documents. If I have understood the reasoning correctly, his Honour took the view that, as judges usually make themselves familiar with the contents of the originating process prior to the first listing in court, the “reality” of what occurs at the first listing is “to be taken as having occurred in open court”: at [14], [25]. His Honour thus evidently considered the filing of the originating process (and its consideration by the judge before the first listing) to be akin to its having been read in open court.

Justice Einstein further held that, even if that was wrong, “surely mention in open court of what the proceedings are about [where counsel is about honouring the court’s expectation of practitioners to give a careful review of the case]” would engage the entitlement under the Practice Note to access to “documents that record what was said or done in open court” and “information that would have been heard or seen by any person present in open court” (the 2nd and 4th bullet points of clause 7 of the Practice Note set out above): at [25] of the judgment.

In reaching that conclusion, his Honour disagreed with the approach taken in two contrary decisions of this Court: eisa Ltd v Brady [2000] NSWSC 929 (Santow J) and ASIC v Rich [2002] NSWSC 198 (Barrett J), preferring instead the approach taken by Rares J in the Federal Court in Llewellyn v Nine Network Australia Pty Ltd (2006) 233 ALR 88; [2006] FCA 836.

The defendants noted that the approach favoured by Rares J in Llewellyn now finds expression in r 2.32(2)(c) of the Federal Court Rules 2011 (Cth), which allows non-parties to inspect any originating application or pleading in the registry in proceedings commenced in the Federal Court.

However, in this Court, Practice Note SC Gen 2 provides authoritative guidance as to access to court files: HIH Insurance Ltd (in liq) v General Re Insurance Australia Ltd [2006] NSWSC 128 (per Hoeben J, as his Honour then was, at [13]). The rationale for preserving that approach was explained cogently by Santow J in eisa Ltd v Brady at [20], as follows:

With great respect to Einstein J, the proposition that the pleadings are to be taken as if read in open court at the first listing is a construct which stands in conflict with the terms of the Practice Note and undermines its rationale.

In my respectful opinion, the approach taken in eisa and ASIC v Rich is right and should be followed. I can do no better in expressing my reasons for that conclusion than to repeat their Honours’ remarks cited by Einstein J in Tuqiri at [27]-[28]. In eisa at [18], Santow J (as his Honour then was) said:

Justice Einstein also referred to the remarks of Barrett J (as his Honour then was) in ASIC v Rich at [18], as follows:

I respectfully agree with those remarks. In my view, as contemplated by the Practice Note, access to pleadings should not ordinarily be granted during the interlocutory stages (where that is opposed by one or other party) unless the court is satisfied that exceptional circumstances exist.

As to that requirement, the decision in Tuqiri holds that exceptional circumstances include “the public interest in the fair report of proceedings” and “the availability to all persons of the right to be able to make fair reports of proceedings that have been initiated in courts” (at [35]). I respectfully disagree. As submitted by Mr Richardson, those circumstances exist in all cases and are by no means exceptional.

I am not persuaded that exceptional circumstances exist in the present case. The defendants relied on the fact that the plaintiff released the statement of claim to the media before it was filed. They submitted that there is accordingly a public interest in making the defences available as well. It was submitted that the state of information currently publicly available about the proceedings is misleading because the public are aware of the allegations made by the plaintiff but are “left in the dark as to the allegations made by the defendants in defence of the proceedings.”

It is unfortunate that the plaintiff pre-empted the usual approach by making the statement of claim available to the press. However, to release all further pleadings on that basis would be to surrender the authority of the Practice Note.

The defendants further submitted that the particular circumstances of Ms Whelan Browne establish exceptional circumstances. An affidavit affirmed by Ms Leanne Norman, the defendants’ solicitor, established that Ms Whelan Browne has suffered an unpleasant and unseemly backlash in response to the publication of her allegations concerning Mr McLachlan as a result of which she has suffered considerable stress.

That is of course extremely unfortunate. However, to the extent that the submission implicitly contended that the Court’s discretion to grant non-parties access to the court file could appropriately be exercised for the purpose of enabling the parties to fight the case in the press, I respectfully disagree. I do not accept that the release of the defences is necessary to enable fair reporting of what is happening in court. Fair reporting may be achieved by attending court and reporting on what is said, as has been demonstrated by a number of experienced and accomplished journalists throughout the interlocutory stages of these proceedings. To the extent that journalists require assistance in obtaining access to what has been said or deployed in open court, assistance is always readily provided under the auspices of the Media Liaison Office.