Case: Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 225 ALR 256 
Outcome: applied
The application raises an important question of principle which does not seem to have been dealt with in any earlier authority. Although Dr Bell invoked the principle of open justice, referred to in cases such as Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 ; (2005) 225 ALR 256 , ultimately he put the application on the footing that it was for access to justice. 7 The purpose for which Merlin seeks access to the documents is to obtain information concerning possible infringements of its members' copyright in the same period as was covered by the Kazaa proceedings. Merlin seeks to obtain evidence of copyright infringement by the respondents to the Kazaa proceedings, by the same conduct as was in issue in those proceedings. 8 The essential issue which arises is whether a non-party ought to be given access to a defunct court file in order to gather evidence for a case it (or, more accurately, some of its members) may wish to bring against the respondents to the Kazaa proceedings in circumstances in which the non-party cannot satisfy the requirements for an order for preliminary discovery under O 15A of the Federal Court Rules . 31 This is hardly surprising because the principle which informs the exercise of the power is that of open justice, the underlying rationale being the belief that exposure to public scrutiny is the surest safeguard against abuse of power of the courts: see Seven Network at [21]ff; Re Richstar Enterprises Pty Ltd; Australian Securities and Investments Commission v Carey (No 2) (2006) 232 ALR 398 at [16]ff; Rich v Harrington (2007) 99 ALD 297 at [17]ff. 33 Sackville J has expressed his agreement with the abovementioned statements of principle by Finkelstein J: Seven Network at [25]. However, I do not think it follows that the principle is as broad as was submitted by Dr Bell SC for Merlin. Dr Bell's submission was that, at least with respect to documents which have been admitted into evidence, exceptional circumstances are required for an application under O 46 r 6(3) to be refused. 34 It is true that in ACCC v ABB Finkelstein J expressed the principle in terms which reflect Dr Bell's submission. It is also true that Sackville J has expressed his agreement with the passage of the judgment; Seven Network at [25]; see also Nyangatjatjara Aboriginal Corporation v Registrar of Aboriginal Corporations [2006] FCA 606 at [14] . But in my opinion, Seven Network and other relevant authorities do not establish a rule that there must be exceptional circumstances for an application to be refused. 35 As Sackville J observed in Seven Network at [24], O 46 r 6 does not confer a right on a non-party to obtain access to documents admitted into evidence. Leave from the Court is required. His Honour referred with approval to the statement made by Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [29] that open justice is a principle, not a "freestanding right". 36 The guiding principle seems to me to be as stated by Sackville J in Seven Network at [27]. His Honour there said that, unless the interests of justice require otherwise, the Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence. 37 Sackville J went on at [27] to make the important point that in each application the Court will have to take into account the particular circumstances of the case. A convenient "touchstone" will be whether the documents have been admitted into evidence. Access to that material: ... can be expected to be helpful to a person seeking to understand or explain the proceedings, or to evaluate, the court's determination of the issues arising in the proceedings : see Seven Network at [27]. 38 This was the view taken by French J in Richstar at [18] where his Honour agreed with the observations of Sackville J in Seven Network to which I have referred in the two preceding paragraphs of my judgment. So too did Branson J in Rich v Harrington at [23]. Her Honour said that this approach recognises that the discretion under O 46 r 6 must be exercised having regard to the particular circumstances of the case. 46 It seems to me that these observations are equally applicable to the scheme established under O 46 r 6, as construed in authorities such as Seven Network. 63 Although Sackville J said in Seven Network at [27] that a convenient "touchstone" for the grant of access is whether the material has been admitted into evidence, the effect of his Honour's judgment is that this is a general rule which will serve the interests of open justice; but all the circumstances must be considered.