Rule 36.12 of the UCPR, which applies to the Supreme Court, District Court and Local Court, allows any person, upon payment of the prescribed fee, to obtain a copy of a judgment or order from the registrar, unless the court orders otherwise. Additionally, the registrar may provide to a non-party “appearing to have a sufficient interest in the proceedings” a copy of any pleading or other document filed in the proceedings. The legislation does not define “sufficient interest”. In the context of s 22(1)(a) of the Defamation Act 1974 (rep) and the defence of qualified privilege (s 30 of the Defamation Act 2005), having a “sufficient interest” was understood as “not simply a matter of curiosity, but a matter of substance apart from its mere quality as news”: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 per Hunt J at p 40.

The principle of open justice will guide the courts in determining whether to grant the media access to court records and exhibits. The Court of Appeal has held that open justice is a principle, not a freestanding right, and that there is no common law right for a non-party to obtain access to a court document filed in proceedings and held as part of the court record: John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512. The policy that guides the courts is the demand that the judicial process be open to public scrutiny, but only to the extent necessary for the public to scrutinise the judicial process itself: John Fairfax Publications Pty Ltd v Ryde Local Court, above, per Spigelman CJ at [29]–[31].

Considering an application by the media for access to court records and exhibits requires a balancing act. The principle of open justice must be balanced against other principles of justice which protect the interests of parties to litigation. In eisa Ltd v Brady [2000] NSWSC 929 at [36], Santow J said that none of these principles has a priori ascendancy, but must be tested on a case by case basis “against that overriding purpose of the interests of justice”. In Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643, Austin J identified eight considerations which qualify the principle of open justice:

Ensuring opportunities for fair reporting of legal proceedings by the press was seen as an aspect of the principle of open justice in John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 and Australian Securities and Investments Commission v Michalik [2004] NSWSC 966. In the interests of accurate reporting, it is undesirable that the media relies on the parties for information about the case: see Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90 per Harper J.

If file material has been admitted into evidence, the principles of open justice are engaged. Unless evidence of apprehended particular or specific harm or damage has been accepted or there is a non publication order in force, leave to inspect should generally be granted: Hogan v Australian Crime Commission (2010) 240 CLR 651.

A further qualification to the principle of open justice is the so-called Harman principle whereby there is an implied undertaking that a party and their legal representatives are constrained from using documents produced on discovery or subpoena for a collateral purpose: Home Office v Harman [1983] 1 AC 280; Ainsworth v Hanrahan (1991) 25 NSWLR 155. Hence, the media cannot be placed in a position superior to that of a party and a party must show special circumstances before leave will be granted permitting the collateral use of documents: Akins v Abigroup Ltd (1998) 43 NSWLR 539 per Mason P at 549.

Media access to court files in the Court of Appeal and each of the Divisions of the Supreme Court is governed by Practice Note SC Gen 2 “Access to Court Files”, effective 1 March 2006.

Clause 5 of the Practice Note provides that:

An application by the media for access to material held by the court in the proceedings must be made in the form attached to the Practice Note. The applicant must demonstrate that access should be granted and state the reasons why access is desired.

Media access to District Court records is governed by the District Court Rules 1973, Pt 52, r 3 and Practice Note No 11 “Access to Court Files by Non-Parties”, effective 9 August 2005. Part 52, r 3 provides that a non-party may not search a court file except by leave of the court. Access to material in any proceedings will only be granted with the leave of the court (para 2). An application by a non-party for access to material held by the court must be in the form attached to the Practice Note. The applicant must demonstrate that access should be granted and state the reasons why access is desired.

Unless the judge or registrar dealing with the application considers that the material should be kept confidential, access will normally be granted to the media to material falling into the following categories:

Access to other material will not be allowed unless a registrar or judge is satisfied that “exceptional circumstances” exist. Access is restricted in this way because affidavits and witness statements filed in proceedings are often never read in open court, either because they contain matter that is objected to and rejected, or because the proceedings have settled before coming on for hearing. Affidavits, statement, exhibits and pleadings may contain matter that is “scandalous, frivolous, vexatious, irrelevant or otherwise oppressive”. Rules 4.15 and 14.28 of the UCPR allow the court to order that this type of matter be struck out of a document. Access is not normally allowed to materials prior to the conclusion of the proceedings because material that is ultimately not read in open court or admitted into evidence would be seen: Practice Note cl 4.

For material that has been read in open court or is included in pleadings, there may be good reason to refuse access. There may be public interest immunity or confidentiality considerations or material which has been struck out as being scandalous, frivolous, vexatious, irrelevant or otherwise oppressive may still be legible: Practice Note cl 5.

Media access to Local Court records is governed by Pt 8, r 8.10(3) of the Local Court Rules 2009. That rule provides that a person who is not a party to the proceedings may, with leave of the Magistrate or registrar, have access to a copy of the court record or transcript of evidence or, on payment of a fee, obtain a copy thereof.

The Courts Legislation Amendment (Broadcasting Judgment) Act 2014 provides for a presumption in favour of the recording and broadcast of certain judgments of the District Court or Supreme Court given in open court.

It does so by amending the Supreme Court Act 1970 by the insertion of a new “Part 9A — Broadcast of judgments” (Sch 2) and by amending the District Court Act 1973 by the insertion of a new “Part 5 — Broadcast of judgments” (Sch 1).

Except for a small number of court specific provisions the Parts are identical. They apply to proceedings in the relevant court other than those set out in SCA s 126(1) or DCA s 177(1). Part 9A extends to proceedings in the Court of Criminal Appeal.

Sections 126 and 177 both exclude proceedings held in closed court, proceedings under the Bail Act 2013 and proceedings under the Crimes (Forensic Procedures) Act 2000. In both sections there is provision that the Part not apply to a class of proceedings excluded by regulations made under the Acts. In addition, s 126 excludes proceedings in exercise of the parens patriae jurisdiction of the Supreme Court and proceedings under the Crimes (High Risk Offenders) Act 2006. Section 177 excludes proceedings on appeal under the Children (Criminal Proceedings) Act 1987 or Children and Young Persons (Care and Protection) Act 1998.

A person may apply to the court in proceedings to which the Parts apply for the court to permit the recording of judgment remarks of the court that are made in those proceedings: SCA s 128(1); DCA s 179(1).

Sections 9 and 9A of the Court Security Act 2005 prohibit the use of recording devices in courts and the broadcasting of court proceedings from a court room except, amongst other circumstances, when expressly permitted by a judicial officer.

Subsection (2) (SCA s 128(2), DCA s 179(2)) provides that, if an application is made, the court is to permit the recording of the judgment remarks of the court and their broadcast by one or more media organisations, unless the court is satisfied that an exclusionary ground referred to in subsection (3) is present and that it is not reasonably practical to implement measures, when recording or broadcasting the judgment remarks, to prevent the broadcast of any thing that gives rise to the exclusionary ground.

The exclusionary grounds are set out in subsection (3). It should be noted that exclusionary grounds (3)(d) does not attract consideration of possible preventative measures.

Subsection (4) forbids images that may identify persons of the class referred to in the subsections. Subsection (5) empowers the court, on the application of a relevant person or of its own motion, to make orders for the purpose of preventing the recording or broadcast of any thing that gives rise to an exclusionary ground or a contravention of subsection (4).

Subsection (7) provides that nothing in SCA s 128 (or DCA s 179) limits the circumstances in which the court may decide to permit the recording or broadcasting of judgment remarks of the court or the person to whom the court, subject to the rules, decides to grant permission to record or broadcast judgment records of the court.

The judgment remarks of the court in relation to a criminal trial mean the delivery of the verdict and any remarks made by the court when sentencing the accused person that are delivered or made in open court. In relation to any other proceeding, the phrase means any remarks made by the court in open court when announcing the judgment delivered in the proceedings: SCA s 127; DCA s 178.

Supreme Court Rules (Amendment No 426) 2014 makes provision in respect of making an application for permission to record or broadcast and the manner in which judgment remarks may be recorded. Part 3 of the District Court Rules 1973 makes similar provisions in respect of the District Court except that the application is made to the Court’s Media Coordinator.

Part 13 r 2 of the Supreme Court Rules 1970 provides that an application is to be made by sending an email to the Media Manager. The email is to include as an attachment a completed application in the form published on the court’s website.

Part 13 r 3 makes, amongst other things, provision for the number of persons that may be involved, the nature of equipment used, and the burden of the cost involved.

Part 13 r 5 provides that the news media organisation must, as soon as practicable after the recording is made, make it available to other news media organisations. In the case of a live broadcast the news media organisation must ensure that any other such organisation wishing to broadcast has equal access at the same time to the live feed.