Why all the secrecy? Tom Waterhouse defamation settlement reignites court access debate
Imagine you are an “A” type lawyer keen to know what’s going on. Yes, that’s most of us at IP Whiteboard. It means we were frustrated some time ago when told by the NSW District Court that pleadings in the Tom Waterhouse v Fairfax Media defamation case were unavailable for review. Our previous post here explains the policy rationale. Our curiosity was to some extent assuaged recently by an SMH article entitled “Tom Waterhouse loses defamation case against Peter FitzSimons”, where the headline speaks for itself. However, we wanted to learn more.
Optimistically, we applied to the District Court again for access to documents, particularly as we were interested to review the judgment. Yet we were refused access, again. Let us put the pieces together to try to understand why.
The District Court’s policy is normally to grant non-parties access to pleadings and judgment in proceedings that have concluded. Here, the proceedings had concluded, hence our misplaced confidence that we could obtain copies of these documents for review.
In the case of the pleadings, certain aspects were already in the public domain, courtesy of the SMH article referred to above (which had special access given that one of the parties to the litigation, Mr FitzSimons, had authored the piece):
In pleadings filed in the NSW District Court, Mr Waterhouse alleged the article contained several defamatory imputations, including that he “harassed persons who handed over details to the ARU”, “exposed the children of people who handed over their details to the ARU to harassment and gambling” and that he was not “a genuine supporter of the Wallabies but uses them as a means to make money from gambling”.
In the case of the judgment, the SMH was again forthcoming about its nature.
In court on Wednesday, Judge Michael Finnane handed down a judgment in favour of Fairfax Media, by consent from both parties. The judge set aside existing costs orders and made no other orders concerning costs.
In response to our request for access to the judgment, the Principal Registrar advised us:
Matter settled. Judgment for both Defendants in accordance with Term 1 (Judgment for Defendants) of the Consent Judgment filed in court. Note remaining terms of the Consent Judgment.
We were not granted access to the Consent Judgment filed in court.
The Principal Registrar also refused us access to the pleadings, noting that the proceedings had settled before coming on for hearing. In other words, it appears the Principal Registrar came to this view because the case was not subject to any final determination following the testing and evaluation of evidence.
This would meet the District Court’s priority not to publicise untested and unchallenged material, and to protect the privacy of parties involved in litigation (particularly where allegations or denials have not yet been tested by cross-examination).
As previously discussed, this approach contrasts against the policy of Victorian courts to favour open access to justice.
What does this mean in practice? Well, if you are a defamation plaintiff such as Tom Waterhouse, and you have a choice of forum for your next defamation case (because, say, the matter complained of is a media story published nationally online), in which State would you commence proceedings?
It goes without saying that you would pick the venue where your complaints could proceed with minimal public scrutiny.
There may be nothing wrong with this. Plaintiffs are entitled to be pragmatic and forum shopping is just one aspect of litigation which the reasonable litigant should consider.
Still, these questions go to the administration of justice, which means they deserve respectful consideration, noting that rivalry between Melbourne and Sydney is hardly an unfamiliar concept to those of us on either side of the border…