Case: Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd (No 3) [2002] FCA 609 
Outcome: discussed
In Australian Competition and Consumer Commission v ABB Transmission &amp; Distribution Ltd (No 3) [2002] FCA 609 , Finkelstein J said at [7] that the proper approach is that access should be allowed unless the interests of justice require a different course. His Honour went on to say that there is a strong presumption in favour of allowing any member of the public who wishes to do so to inspect any document or thing that is put into evidence. 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. 40 ACCC v ABB is the only Australian authority to which I have referred in which access was granted to a non-party who was not a media organisation. The applicant was a non-party who sought access to a statement of agreed facts and joint submissions of the parties in proceedings brought by the Commission against a company and its executives for civil penalties for contravention of s 45 of the Trade Practices Act 1 974 (Cth): see ACCC v ABB at [1]. The applicant sought access to those documents to determine whether it should bring an action to recover losses suffered as a consequence of the admitted breaches. 41 The extension of the principle of open justice to those circumstances is perfectly understandable. The Commission's proceedings were brought in the public interest and parties affected by the contravention ought to be given access to determine whether a private action for damages caused by the contravention would be justified. The documents sought were confined in nature. The applicant did not seek to trawl willy-nilly through the court file. 42 The question of whether access should be granted to Merlin arises in different circumstances. The authorities to which I have referred indicate, in my view, that the discretion is one to be exercised in the interests of justice, having regard to all the circumstances. 43 Where leave is sought to inspect documents that have not been read in open court, or at least tendered in evidence and considered by the judge as evidence or submission, the rule in my opinion is that leave will ordinarily be refused to inspect that material. This approach is consistent with that suggested by Sackville J in Macquarie Radio Network Pty Ltd v ABA [2002] FCA 1408 at [21] ; cf. ACCC v ABB at [6]. 44 It is true, as Finkelstein J said in ACCC v ABB at [6] that O 46 r 6(3) does not distinguish between documents that have been admitted into evidence and those which have not. But as Santow J observed in eisa Ltd v Brady [2000] NSWSC 929 , there is a risk of serious injustice if untested allegations can be published to the world at large: cited in Macquarie Radio Network at [21]. 64 Here, the application is not made in furtherance of the principle of open justice. It uses, as a springboard, the corollary to which Moore-Bick J referred in Dian , namely that persons present during a court hearing may learn of information they can use to their advantage. But in truth it goes further because it seeks "access to justice" based upon the modern approach to commercial litigation with its emphasis upon creation, and preservation of large volumes of written material, much of which is not read out in open court. Finkelstein J referred to this in ACCC v ABB at [4] [5].