Author
John Waters  
Consultant

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John Waters  
Consultant
T +61 3 9643 4300

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Sydney
Mark Darian-Smith  
Roger Forbes  

Perth
Beau Deleuil  

Canberra
Ian Johnson  

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Courts - open justice

The common law requires that justice be done, and be seen to be done. The principle that Court proceedings be open to the public and to the media is entrenched into our legal processes and thinking. There are exceptions to the principle, mostly involving children, family law or sexual offences. A commercial case will only ever be held in private if a public hearing will destroy the subject matter of the action. But even here a Court will strain to make arrangements to protect the subject matter of the litigation which fall well short of a closed Court. For example, trade secrets or other confidential matters can be referred to in code and relevant documents disclosing the confidential material can be withheld from publication.

Court files are, to a greater or lesser extent, open to the public as well. The Rules of Court in each jurisdiction will usually determine what documents can be obtained from the Court Registry by the public, and the media, and what documents can only be obtained with leave of the Court.

What can the media publish?

Generally, the media is free to publish anything which transpires in a courtroom. It is constrained only by the defamation laws, the contempt laws and any specific non publication order. Under defamation law reports of judicial proceedings are privileged so long as they are fair and accurate reports of the proceedings in Court. The privilege does not extend to material on the Court file. A fair and accurate report is one which is not slanted or distorted.

Courts do have power to make specific non publication orders. This power will be exercised rarely and only where it is necessary to secure the proper administration of justice in the proceedings and, probably, where the public interest outweighs open justice eg national security. The risk of loss of privacy, social stress or embarrassment will be insufficient.

Restrictions on parties

Parties to disputes in the Courts, and in arbitrations, are restricted in their ability to publish information about the proceedings in a number of ways. The law of defamation will restrict them generally. Importantly, discovered documents, affidavits and witness statements, subpoenaed documents and other material produced by a party under compulsion by Court order or process cannot be used by the other party for any extraneous or ulterior purpose without the leave of the Court. This rule is fairly strict. Finally, the general law of contempt also applies to parties to court proceedings.

Confidential material

Mechanisms exist for protecting trade secrets and other sensitive and confidential material. It can be referred to by code in the courtroom by agreement of the parties or order of the Court. Confidential material can be filed in sealed envelopes. Confidential exhibits can be marked confidential and ordered to be kept confidential. If the usual implied undertaking to the Court is not considered sufficiently strong protection a confidentiality regime may be agreed or imposed for discovered documents and additional confidentiality undertakings required from persons before they can access the material.

Other dispute resolution methods

Arbitrations are generally not open to the public. However, unless the parties are bound by a confidentiality agreement, there is no inherent restraint on parties publishing material or commenting about what occurs in an arbitration.

Mediations are invariably private and confidential by agreement.

There are a range of other alternative dispute resolution processes which can be designed to keep a dispute out of the public arena. These can be tailor-made for the particular circumstances of the parties and the particular dispute. In formal discovery of documents, informal statements of claim, even pleadings, can all be effective tools for resolving disputes.