Fegan v Cardno Emerging Markets (Australia)
[2023] FedCFamC2G 349
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fegan v Cardno Emerging Markets (Australia) [2023] FedCFamC2G 349
File number(s): BRG 269 of 2022 Judgment of: JUDGE EGAN Date of judgment: 9 May 2023 Catchwords: INDUSTRIAL LAW – Application by Minister for Foreign Affairs and Trade for suppression/non-publication orders to protect identity of “Witness X” – application withdrawn after it became known that the identity of Witness X was well known in the nation where a police complaint was made by her – where the Minister nonetheless sought return of affidavits and submissions as well as redaction of transcript of hearing so as to protect identity of Witness X – whether adoption of open justice principle prevailed in the circumstances – oral application on behalf of Minister dismissed. Legislation: Fair Work Act 2009 (Cth) ss. 44, 545 and 546
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 230 – 232.
Cases cited: BSL22 v BSM22 [2022] FCA 558
Hearn v Street (2008) 235 CLR 125
Seven Network (Operations) Limited & Ors v James Wharburton (No 1) [2011] NSWSC 385
Division: Division 2 General Federal Law Number of paragraphs: 24 Date of last submission/s: 3 April 2023 Date of hearing: 7 March 2023 Place: Brisbane Counsel for the Interested Party Ms A Hughes Solicitor for the Interested Party Australian Government Solicitor Counsel for the Applicant: Mr S Mackie Solicitor for the Applicant: JHK Legal Counsel for the Respondent: Mr J Darams Solicitor for the Respondent: Gilbert Tobin ORDERS
BRG 269 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOHN FEGAN
Applicant
AND: CARDNO EMERGING MARKETS (AUSTRALIA) PTY LTD
Respondent
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
Interested Person
order made by:
JUDGE EGAN
DATE OF ORDER:
9 May 2023
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed on behalf of the Minister on 20 February 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a civil engineer who was employed by the respondent from in or about January 2020 until on or about 6 August 2021, when his employment was terminated. The applicant’s employment was primarily carried out in Solomon Islands where the respondent had a leadership role in what was the Solomon Islands Infrastructure Program (SIIP) funded by the Australian Department of Foreign Affairs and Trade.
The applicant’s employment was terminated by the respondent after Gilbert + Tobin lawyers had been engaged by the respondent to undertake an investigation as to whether or not the applicant had been involved in improper conduct which, if found, would warrant the termination of his employment. The allegations which the applicant was called upon to address were as follows: [1]
[1] See p. 21 of Annexure JF-2 to Affidavit of John Fegan sworn on 2 March 2023.
“Allegations:
1. It is alleged that you are, or have been, a participant in one or more "chat groups" which groups discuss, view and/or circulate pornographic images ("Images") of women.
For the purposes of allegation 1, the phrase "chat group" means:
i. a chat group whereby individual members of that chat group can, amongst other things, circulate, share or distribute the Images to other members or participants of the chat group; and
ii. either discuss, view or comment on the Images,
using either "WhatsApp" or Facebook "Messenger" or any other social media platform for the above purpose.
2. You had knowledge, or a reasonable suspicion that the Images referenced in allegation 1 had:
a. been taken without the consent or knowledge of the women; and/or
b. circulated or shared without the consent or knowledge of the women.
3. Independently of allegation 1 you have:
a. Received; and/or
b. Circulated,
The types of Images to other individuals, using text or email or a social media platform such as, but not limited to, WhatsApp or Messenger.
4. You had knowledge, or a reasonable suspicion that the Images referenced in allegation 3 had:
a. been taken without the consent or knowledge of the women; and/or
b. circulated or shared without the or knowledge of the women.
5. You have stored, either permanently or temporarily, at any time to present, such Images on your mobile phone device (used by you) or a computer issued by your employer.”
On 27 June 2022, the applicant commenced proceedings in this Court against the respondent seeking damages for breach of contract of employment, together with other relief pursuant to the provisions of ss. 44, 545 and 546 of the Fair Work Act 2009 (Cth) (the FWA).
After the making of interlocutory discovery orders by the Court, the Minister for Foreign Affairs and Trade lodged an Application on 14 February 2023 pursuant to the provisions of s. 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act) seeking suppression/non-publication orders in relation to the identity of a female person unilaterally identified by the Minister as “Witness X”. Sections 230 – 232 of the Act relevantly provided as follows:
“Section 230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non‑publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in a proceeding before the Court or any person who is related to or otherwise associated with any party to or witness in a proceeding before the Court; or
(b) information that relates to a proceeding before the Court and is:
(i) information that comprises evidence or information about evidence; or
(ii) information obtained by the process of discovery; or
(iii) information produced under a subpoena; or
(iv) information lodged with or filed in the Court.
(2)The Federal Circuit and Family Court of Australia (Division 2) may make such orders as it thinks appropriate to give effect to an order under subsection (1).
Section 231 Grounds for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non‑publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice;
(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2) A suppression order or non‑publication order must specify the ground or grounds on which the order is made.
Section 232 Procedure for making an order
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non‑publication order on its own initiative or on the application of:
(a) a party to the proceeding concerned; or
(b)any other person considered by the Court to have a sufficient interest in the making of the order.
(2)Each of the following persons is entitled to appear and be heard by the Federal Circuit and Family Court of Australia (Division 2) on an application for a suppression order or non‑publication order:
(a) the applicant for the order;
(b) a party to the proceeding concerned;
(c) the Government (or an agency of the Government) of the Commonwealth or a State or Territory;
(d) a news publisher;
(e)any other person who, in the Court’s opinion, has a sufficient interest in the question of whether a suppression order or non‑publication order should be made.
(3)A suppression order or non‑publication order may be made at any time during a proceeding or after a proceeding has concluded.
(4)A suppression order or non‑publication order may be made subject to such exceptions and conditions as the Federal Circuit and Family Court of Australia (Division 2) thinks fit and specifies in the order.
(5)A suppression order or non‑publication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which it is made.”
On 17 February 2023, the Minister lodged an Amended Application which was accepted for filing on 20 February 2023. That Amended Application sought the following orders:
“1. Pursuant to s 230 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), until further order of the court:
a. The person identified by the pseudonym “Witness X” in the confidential affidavit of Juliette Brassington of 13 February 2023 continue to be referred to as Witness X in connection with these proceedings.
b. That there be no disclosure of any information tending to identify Witness X including:
i. the actual name, address and occupation of Witness X, and
ii. information tending to identify Witness XX, except to the court, the court staff as required, the Minister, officers of the Department of Foreign Affairs and Trade and the Minister’s legal representatives.
c. That there be no disclosure of the highlighted sections of the confidential affidavits of Juliette Brassington of 13 February 2023 and 17 February 2023, including its annexures, to any person except to the court, court staff as required, the Minister, officers of the Department of Foreign Affairs and Trade, and the Minister’s legal representatives.
d. That there be no disclosure of the confidential
annexure to theOutline of Submissions filed by the Minister in respect of its application to any person except to the court, court staff as required, the Minister, officers of the Department of Foreign Affairs and Trade, and the Minister’s legal representatives.2.Pursuant to subsections 231(1)(a) and 231(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), these orders are made on the grounds that they are necessary to:
a. prevent prejudice to the proper administration of justice; and
b. protect the safety of any person.
3. These orders apply throughout the Commonwealth for a period of 10 years.
4. Upon final determination of the Applicant’s Application in a Proceeding, the affidavits of Juliette Brassington of 13 February 2023 and 17 February 2023 be removed from the Court file and returned to the Applicant.
5. Each party to bear its own costs.”
At a hearing before the Court on 7 March 2023, Counsel for the Minister advised the Court that the Minister withdrew the application for the making of suppression/non-publication orders. The Minister took such course because affidavits filed on behalf of the applicant by both the applicant [2] and one Mr Bartlett [3] suggested that the identity of Witness X was not only known to them, but that such person was known widely throughout Honiara as being the person who had made a complaint to police about the applicant’s alleged conduct. [4]
[2] Exhibit 1.
[3] Exhibit 2.
[4] See [41] – [48] of Applicant’s affidavit and [19] – [39] of Bartlett affidavit.
On 7 March 2023, submissions were made on behalf of the Minister that notwithstanding the withdrawal of the application for suppression/non-publication orders, the Court should nonetheless order that affidavits and written submissions filed on behalf of the Minister, and said to be “confidential” by the Minister, should be removed from the Court file, and returned to the Minister. The applicant sought an order that un-redacted copies of those affidavits and submissions should be served upon the applicant. The Court made the following orders:
“IT IS ORDERED THAT
1.The Interested Person shall file and serve written submissions on or before 4.00pm on 17 March 2023 in respect of the following issues:
(a)orders for costs in respect of the Interested Person’s application for suppression orders in this proceeding (the application for suppression orders), namely:
(i)whether section 570 of the Fair Work Act 2009 (Cth) (the FWA) applies to the application for suppression orders.
(ii) if so, whether any limb of section 570 has been engaged.
(iii) the position if section 570 of the FWA does not apply.
(b)orders regarding the confidential affidavits of Juliette Brassington (the Confidential Affidavits) and the confidential outline of submissions (the Confidential Submissions) filed by the Interested Person in support of the application for suppression orders, namely:
(i)whether there should be an order that the Confidential Affidavits and Confidential Submissions be removed from the court file and returned to the Interested Person;
(ii)whether there should be an order that the Confidential Affidavits and Confidential Submissions be served on the Applicant/Cross-Respondent and Respondent/Cross-Claimant in un-redacted form, and whether such an order ought be given if undertakings are given to the Court that the material not be disseminated any further;
(c)whether there should be an order that references to material in the Confidential Affidavits and Confidential Submissions in the transcript of the hearing of 7 March 2023 not be disclosed to any person except for the presiding judge, necessary court staff, the Applicant/Cross-Respondent, Respondent/Cross-Claimant and Interested Person.
2.The Respondent/Cross-Claimant shall file any written submissions in respect of the issues identified in order 1 of these orders or otherwise in response to the submissions of the Interested Person on or before 4:00 pm on 22 March 2023.
3.The Applicant/Cross-Respondent shall file any written submissions in respect of the issues identified in order 1 of these orders or otherwise in response to the submissions of the Interested Person or Respondent/Cross-Claimant on or before 4.00pm on 29 March 2023.
4.The Interested Person shall file any submission in reply on or before 4.00pm on 3 April 2023.
5.The transcript of the hearing on 7 March 2023 not be made available to any person apart from the presiding judge, necessary court staff, the Applicant/Cross- Respondent, Respondent/Cross-Claimant and Interested Person until determination by the Court of the issue in order 1(c) of these orders.
6.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
7. Costs of and incidental to the hearing on 7 March 2023 be reserved.
THE COURT NOTES:
A. The Interested Person withdraws the application for suppression orders.
B. Each party consented to the making of these orders.
By the Court
DATE ENTERED: 15 March 2023”
Subsequent to the filing of the Minister’s submissions on 17 March 2023, the Minister and the applicant reached an agreement, on or about 31 March 2023, that the Minister pay the applicant’s costs of and incidental to the application lodged on 14 February 2023, and of the Amended Application lodged on 17 February 2023 and filed on 20 February 2023, such costs being fixed in the amount of $20,000.00. A consent order to that effect was published on 4 May 2023.
Analysis of Claims for Suppression
The background facts of the matter were succinctly set out in [11] – [25] of the Minister’s written submissions filed on 17 March 2023, and were as follows:
“BACKGROUND
11.Mr Fegan was terminated from his employment at Cardno following a complaint that he had sent or received pornographic images of women taken without their consent.
12.Mr Fegan has made a claim against Cardno for a contravention of s 44 of the FWA arising from a failure to pay notice, and a claim for the contractual and statutory notice periods.
13.During the proceedings, issues arose around the appropriate orders for discovery. In response to those issues, Cardno provided written submissions to the Court dated 15 August 2022 in which it addressed DFAT’s interest in the matter. Cardno advised the Court that:
“The Respondent was informed by DFAT that the complainant was afraid that, if their identity, and details of the complaint, were to be revealed, they would likely be subject to retaliation which would put their personal safety in danger. A statement to like effect was made to Mr Baroni by the complainant during the investigation.
The Respondent has also been informed by DFAT that some material supplied to the Respondent in connection with the complainant, and for the purposes of its investigation, was obtained under a bilateral agreement between the Commonwealth of Australia and the Solomon Islands. DFAT has communicated to the Respondent that, given the concerns it has as to the potential impact the disclosure of that information might have upon its relation (and Australia’s relationship) with the government of the Solomon Islands, it would very likely seek an opportunity to address the Court in relation to any orders for production in these proceedings (including discovery) that might compel the production of this material”.
14. On 15 August 2022, orders were made granting leave to DFAT to:
(a)file and serve written submissions and any evidence by 4.00pm on 12 September 2022 on the issue of whether or not the Court ought to order disclosure in the form proposed in annexure A (Discovery Order) to those orders; and
(b)appear at any hearing in this matter relating to the making of any Discovery Order.
15. Subsequent orders in similar terms were made on 5 September 2022.
16.On 16 September 2022, DFAT filed submissions in respect of the Discovery Order. Those submissions provided that:
“DFAT has an interest in certain information and material held by the respondent that may be relevant to these proceedings, and considers that disclosure of that information and material in these proceedings may be prejudicial to:
2.1 the safety of any persons; and/or
2.2 Australia’s relationship with foreign governments”.
17. On 5 October 2022, orders were made for discovery. DFAT was granted leave to inspect the documents identified in the Respondent’s List of Documents. DFAT was also ordered to file and serve any objections to the disclosure of any documents identified in the Respondent’s List of Documents. The matter was also set down for hearing on discovery on 7 March 2023.
18.On 23 November 2022, Cardno provided its List of Documents. Their list contained 191 documents.
19.On 15 December 2022, DFAT filed their schedule of objections. DFAT objected to 18 documents; five documents in full and 13 documents in part. The basis of each objection was that non-disclosure was “necessary to protect the safety of persons”.
20. On 9 February 2023, orders were made granting leave to the Minister to:
(a)appear at any hearing in this matter relating to the making of any discovery order; and
(b)make any application for a suppression order in respect of information that may be disclosed or discovered in this matter.
21.On 13 February 2023, the Minister lodged an Application in a Proceeding seeking, amongst other things, that the name of the person identified by the pseudonym, “Witness X” be suppressed pursuant to s 231 of the FCFCA Act on the grounds that it was necessary to prevent prejudice to the proper administration of justice and to protect the safety of any person. A confidential affidavit from Juliette Brassington affirmed on 13 February 2023 was filed in support of the application.
22.On 17 February 2023, the Minister lodged an amended Application in a Proceeding. A further confidential affidavit from Juliette Brassington affirmed on 17 February 2023 was filed in support of the application. The affidavits of Juliette Brassington are collectively referred to as the confidential affidavit material.
23.On 17 February 2023, the Minister also filed an Outline of Submissions. A redacted version of those submissions were provided to Mr Fegan and Cardno. The redacted version of the submissions provided at paragraph [2] that “Witness X reported the photo incident”. At paragraph [46], it provided that “Witness X reported the photo incident to DFAT’s Human and Environmental Safeguards Section….”.
24. On 2 March 2023, Mr Fegan provided the Minister with copies of affidavits from Mr Jeremey Poloa Bartlett dated 2 March 2023 and Mr John Fegan dated 2 March 2023. Those affidavits identified that since July 2022, Mr Fegan knew that Witness X made the complaint to DFAT about the photo.
25. On 7 March 2022, the Minister withdrew their application for suppression orders.”
During the course of the hearing before the Court on 7 March 2023, the Court raised with Counsel for the Minister the importance of the open justice principle and the need for the community at large to have confidence in the operation and functioning of the judicial system in Australia.
The principle of open justice was the subject of consideration by Pembroke J in Seven Network (Operations) Limited & Ors v James Wharburton (No 1) [2011] NSWSC 385 at [2] – [5] inclusive where it was said:
“Principle of Open Justice
[2]The reason for the principle of open justice is that, if the proceedings of courts of justice are fully exposed to public and professional scrutiny and criticism, and interested observers are able to follow and comprehend the evidence, the submissions and the reasons for judgment, then the public administration of justice will be enhanced and confidence in the integrity and independence of the courts will be maintained: Russell v Russell ; Farrelly v Farelly (1976) 134 CLR 495 at 520 (Gibbs J). Not only does the conduct of proceedings publicly and in open view assist in removing doubts and misapprehensions about the operation of the system, but it also limits the opportunity for abuse and injustice by those involved in the process, by making them publicly accountable. Equally, public scrutiny operates as a disincentive to false allegations and as a powerful incentive to honest evidence: J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45 (Fitzgerald P and Lee J). For all those reasons, the principle of open justice is not only an indispensable feature of our system, but it is also a healthy feature.
[3]There are limited exceptions to the principle of open justice. Where those exceptions apply, the courts will restrict access where appropriate. But departure from the principle of open justice is only justified where observance of the principle would in fact frustrate the administration of justice by unfairly damaging some material private or public interest. To that end, an order restricting the public availability of information will only be made if it is really necessary to secure the proper administration of justice. Such an order must be clear in its terms and do no more than is necessary to achieve the due administration of justice. Furthermore, there must be some material before the Court upon which it can reasonably reach the conclusion that it is actually necessary to make an order of that type: John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476-7 (McHugh JA); Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 4) [2010] NSWLEC 91 (Preston CJ); Idoport Pty Ltd v National Australia Bank [2001] NSWSC 1024 (Einstein J).
[4]The consequence of the principle of open justice is that embarrassing, damaging and inconvenient facts may occasionally come to light. That consideration has never been regarded as a reason in itself for the suppression of evidence or for an order restricting access to documents: John Fairfax Group Pty Ltd (Receivers & Managers Appointed) v Local Court of New South Wales & Ors (1991) 26 NSWLR 131 at 142 (Kirby P). Equally, it is common for sensitive issues to be litigated and for information that is extremely personal or confidential to be disclosed. This is sometimes an unavoidable by-product, and a necessary consequence, of the application of the principle.
[5]To avoid the consequences that sometimes follow from the conduct of proceedings publicly and in open view, parties can, and frequently do, choose to litigate their disputes by private commercial arbitration. But if they choose to litigate in court, they must accept the necessity for the Court to conduct its proceedings openly and with transparency.”
On 27 July 2021, and subsequently, the applicant denied any wrongdoing on his part. [5] The applicant responded directly to all of the allegations made against him when corresponding with one Baroni of Counsel, who had been engaged by Gilbert + Tobin to jointly conduct the investigation on behalf of the respondent. The Court is mindful of the obvious fact that any allegation of improper conduct on the part of the applicant will not have been established until a finding to that effect has been made after the handing down of judgment after the trial of this matter. At this stage, the Court will not infer that allegations made against the applicant have any factual basis.
[5] See [14] and [15] of Fegan Affidavit.
It should not be overlooked that the bringing of the application on the part of the Minister was based upon the premise that should the identity of Witness X become known in Solomon Islands by being aired in public court hearings, or in affidavits or transcripts, that such disclosure would cause the witness to suffer a significant amount of emotional distress, and would be highly likely to cause a significant exacerbation of her PTSD and related symptoms. It was said that the witness would be at high risk of decompensation should that happen. [6] A subsequent report by the same practitioner reiterated such position. [7]
[6] Annexure JB-3 to the Affidavit of Ms Brassington lodged on 14 February 2023 and filed on 20 February 2023.
[7] Annexure JB-5 to the Affidavit of Ms Brassington lodged on 17 February 2023 and filed on 20 February 2023.
The Court finds that the bringing of the application by the Minister was based upon a false premise, namely that no-one in Honiara or in the Solomon Islands knew that the female person identified in the application by the Minister as “Witness X” was the person who had made the complaint against the applicant. Underlying the application for suppression/non-publication orders was the assumption on the part of the Minister that the identity of Witness X was unknown in Honiara, Solomon Islands. The withdrawal of the Minister’s application for suppression/non-publication orders was an acknowledgement of such false premise. Importantly, the application was brought in circumstances where the making of the complaint against the applicant, as yet unsubstantiated, subsequently led to the termination of the applicant’s employment, something which he has deposed has caused him and his family to suffer significant distress, economic loss and embarrassment.
The Court acknowledges that under s. 231(1)(c) of the Act, it has power to make a suppression or non-publication order in circumstances where the disclosure of the identity of a person during the course of court proceedings might endanger a person’s psychological safety. In BSL22 v BSM22, [8] when dealing with a comparable provision of the Federal Court of Australia Act 1976 (Cth), Snaden J at [12] said:
“[12] With those principles recited, I shall deal first with the applicant’s application. The evidence of Ms Dalton suffices to demonstrate that orders of the kind that are sought are necessary at least to protect against risks to the applicant’s safety. Professor Newman’s analysis is unambiguous: she maintains that any public association of the applicant with the present proceeding would “likely” result in her experiencing symptoms of depression and anxiety and place her at risk of suicide. Professor Newman’s “expectation” in that eventuality is that the applicant would require hospitalisation. It is not difficult to see, then, that the relief for which the applicant moves might properly be described as “necessary to protect [her] safety”. Relief should (and will) be granted on that basis.”
[8] See judgment of Snaden J in BSL22 v BSM22 [2022] FCA 558 at [12]
The distinction between the facts of BSL22 and the present case is that each of the expert reports annexed to affidavits of Ms Brassington in this matter proceeded on the basis that the identity of Witness X was at all material times unknown. That assumption was incorrect at the time of the production of each of the two reports, and remains so.
In circumstances where the identity of Witness X was already widely known within the Honiara/Solomon Islands expatriate community at the time of the filing of the Minster’s applications, and further in circumstances where the Minister has not sought to have recourse to the liberty to apply order made by the Court on 7 March 2023 because of some matter relevant to Witness X, the Court assumes that Witness X is now aware that it is widely known in Honiara that it was she who made the complaint against the applicant. In those circumstances, any deterioration in the condition of Witness X by reason of the disclosure of her identity would be because of events which have transpired in Honiara, rather than as a result of her identity being revealed in the subject Court proceedings. As was said by Snaden J in BSL22 at [11]:
“[11]Presently, the relief that is sought is sought on the bases that it is necessary to prevent prejudice to the proper administration of justice, and to protect the safety of those who seek it. The word “necessary” is a “strong word”: Hogan v Australian Crime Commission[2010] HCA 21; (2010) 240 CLR 651 (“Hogan”), 664 [30] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). The court’s power to make orders of the kind that are now sought is not one that should be exercised merely because it is “...convenient, reasonable or sensible, or [because it] serve[s] some notion of public interest”: Hogan, 663 [31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). Allied to that point of principle is this one: the power ought not to be made merely in order to assist a party to avoid embarrassment, opprobrium or some other mode of intellectual or emotional discomfort.”
Consonant with the open justice principle, the Court finds that there is no longer any utility in withholding from the applicant either the un-redacted copies of the Brassington affidavits, or any of the written submissions filed on behalf of the Minister which refer to any of the evidence before the Court concerning Witness X. In doing so, the Court has weighed up the competing arguments advanced on behalf of both the applicant and the Minister, finding that in the interests of the maintenance of the due administration of justice, all material filed in support of the withdrawn application should be able to be viewed by the applicant and his legal advisors.
Such latter course also recognises the trite proposition that the mere fact that an untested allegation has been made does not necessarily mean that such allegation was truthful or factual. Further, it may be that after having read the affidavits/submissions/transcript, the applicant and his lawyers may be able to identify a forensic flaw in the reasons given to him by Gilbert + Tobin Lawyers which gave rise to the termination of his employment. Alternatively, access to such documents might very well forensically assist the applicant in his claim for breach of contract. The open justice principle ought to prevail except in the clearest of cases.
There are of course sanctions which might be imposed should any party to litigation, or a party’s legal practitioner, improperly use any documents generated during the course of litigation for a purpose unrelated to such litigation. Courts have long recognised that there is an implied undertaking imposed upon parties to litigation not to improperly use documents or information which have come to light during the course of litigation. In Hearn v Street (2008) 235 CLR 125 at [105] - [118], when discussing the implied undertaking principle, Hayne, Heydon and Crennan JJ said as follows:
“Implied undertaking” is an obligation of substantive law
[105] Originally the restriction on the use of documents generated by litigious processes depended on an express undertaking. Then in Williams v Prince of Wales Life Co, Sir John Romilly MR, while requiring an express undertaking, put the matter in terms of legal rights: “[I]t is not the right of a Plaintiff, who has obtained access to the Defendants’ papers, to make them public.” The following year the protection was not said to rest on an express undertaking, but on a “rule” that “where documents have been produced in obedience to an order of this court, the court has a right to say to the person who has obtained their production: ‘Those documents shall never be used by you except under the authority of the court’”. In Alterskye v Scott, although Jenkins J referred to a concession by counsel that his client obtained discovery on an “implied undertaking”, in the operative part of his reasoning he did not analyse the matter in terms of “undertaking”, either express or implied, but in terms of an “implied obligation not to make an improper use of the documents.” And other judges have preferred to the language of “implied undertaking” the words “implied obligation” or “obligation” or “duty”. Another formula is that the party obtaining discovery is “taken to undertake to the court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced”. In Harman Lords Simon of Glaisdale and Scarman, who accepted the general rule of limited use but disagreed with the majority about applying it to documents read in open court, said:
Imposed by law the obligation is formulated as arising from an undertaking exacted by the court from the party and his solicitor to whom the documents are disclosed. It is the condition upon which discovery is ordered. [Emphasis added.]
Lord Denning MR in Riddick said:
A party who seeks discovery of documents gets it on condition that he will make use of them only for the purpose of that action, and no other purpose. [Emphasis added.]
[106] The fact that the role of the word “undertaking” is merely to indicate the way in which an “obligation” which is “imposed by law” as a “condition” of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the “undertaking”:
[16] The implied undertaking not to make collateral use of documents disclosed on discovery arises automatically as an incident of the discovery process. It is in no sense implied as a result of dealings between the parties. The discloser may well not have thought of the implications of giving discovery and the disclosee may well not have turned his mind to the matter of what use he can make of the documents outside the action. Had he thought of it, he might well have wanted full freedom to do what he liked with the material, particularly if his own discovery is non-existent or very limited. So the obligation is not to be likened to a term implied in a contract between the parties to the litigation. On the contrary, it is an obligation to the court, not the other party, which is implied. It is for that reason that its breach is treated as contempt. The obligation is imposed as a matter of law.
[107]The expression “implied undertaking” is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering “a very serious invasion of the privacy and confidentiality of [their] affairs”, any burden which is “harsher or more oppressive … than is strictly required for the purpose of securing that justice is done.” To that statement by Lord Keith of Kinkel of the purpose of the “implied undertaking” may be added others. In Riddick Lord Denning MR said:
Compulsion [to disclose on discovery] is an invasion of a private right to keep one’s public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party — or anyone else — to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.
In Harman Lord Diplock said:
The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides … through its rules about abuse of process and contempt of court.
In Watkins v A J Wright (Electrical) Ltd Blackburne J said:
In my judgment, a serious inroad into [the safeguards referred to by Lord Diplock] and, therefore, into the utility of the discovery process in the just disposal of civil litigation would occur if it were open to a litigant (or his solicitor) to enjoy the fruits of discovery provided by the other side, but avoid the risk of committal for contempt for acting in breach of the countervailing implied obligation on the ground that he was unaware of the existence of the undertaking. I take the view that it does not lie in the mouth of a person to plead ignorance of the legal consequences of the discovery process.
To speak in terms of “undertaking” serves:
… a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court.
Staughton LJ said: “[A]lthough described as an implied undertaking it is a rule which neither party can unilaterally disclaim.” The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear:
Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party.
[108] Hence Hobhouse J was correct to conclude:
The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information.
Third party obligations
[109]The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman the person in contempt was the party’s solicitor. In Hamersley Iron Pty Ltd v Lovell it was the party’s industrial advocate. In Watkins it was a person who was not qualified as a solicitor in the forum, but engaged in day-to-day conduct of the litigation. Laddie J thought “it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so.” In both England and Australia, these instances have been broadened into a wider and coherent principle. Thus Hobhouse J said: “[A]ny person who knowingly … does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions”. In Watkins106 Blackburne J said:
I cannot accept the submission that ignorance of the implied undertaking provides a person with a defence to proceedings for contempt arising out of his breach of the implied undertaking. As is well known, the implied undertaking arises by implication of law on the giving of discovery in the course of a civil action where discovery is required to be given.
He also rejected a submission that third parties could not be bound by the obligations created by the “implied undertaking”. He said: “I see no basis for confining the scope of the undertaking to those who are parties to the action, to whom discovery has been given, and to the solicitor or solicitors on the record.” As noted above, he held that a person engaged in day-to-day conduct of litigation on behalf of a litigant was bound — an expression not irrelevant to Messrs Hearne and Tierney, who were certainly engaged in day-to-day conduct of a struggle which included but was wider than litigation, and included an attempt to nullify the litigation by legislative means.
[110]Turning to Australian authorities, in Esso, Mason CJ (with whom Dawson and McHugh JJ agreed) said:
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
In Hamersley Iron Anderson J (Pidgeon and Ipp JJ concurring) said:
“The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery”. And Ryan J said in Spalla v St George Motor Finance Ltd: “To be effective, the undertaking must bind the litigant by whom it is given and his or her privies.”
[111]If this principle did not exist, the “implied undertaking” or obligation on the litigant would be of little value because it could be evaded easily. That is why Lord Denning MR said in Riddick: “The courts should … not allow the other party — or anyone else — to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.” And in the same case Stephenson LJ also said: “[I]t is important to the public and in the public interest that the protection should be enforced against anybody who makes improper use of it.” Use with knowledge of the circumstances would be improper use.
[112]There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the “implied undertaking” and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising.
[113]The two principles just discussed are inherent in the substance of, and largely consistent with the detail of, the reasoning of the Court of Appeal majority. If they are sound, the appellants’ contentions must fail.
[114]It is convenient now to deal with certain specific criticisms which the appellants made of the majority reasoning and of those principles.
Change from voluntary undertaking to obligation imposed by law
[115]The appellants submitted: “The majority did not explain how and when the nature of the obligation changed from one voluntarily undertaken by a litigant to one imposed as a matter of law.” When did the change take place? No later than 1948, the year of Jenkins J’s judgment in Alterskye; it has been repeatedly evidenced since then. How did the change take place? Through the tendency of judges increasingly to regard the language of “implied undertaking” as unrealistic, and on balance unmeritorious.”
[Footnotes Omitted]
Disclosure of the affidavits and submissions to the applicant’s lawyers and to the applicant will be governed by the implied undertaking principle as set out in Hearn, and as such, Witness X is already protected from inappropriate use or disclosure of material relating to her. Additionally, the applicant has proffered to the Court his own express undertaking not to improperly use or disclose any documents or information relating to Witness X. The Court will, in the circumstances of this matter, accept such further express undertaking on the part of the applicant as an additional gesture of goodwill.
For the same reasons as advanced by the Court in respect of affidavits and submissions filed on behalf of the Minister, the Court will not order that any part of the transcript of the hearing on 7 March 2023 be redacted.
The Court directs that the lawyers for the applicant and the Minister confer for the purpose of providing a draft set of orders, consistent with the reasons of the Court, relating to the Court’s refusal of the oral applications made on behalf of the Minister, and the balance of the amended application in a case filed on behalf of the Minister, as well as the form of the undertaking to be given by the applicant.
The Court will further hear the parties as to costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 9 May 2023
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