Murphy v Maurice Blackburn Pty Limited (ACN 105 657 949) - [2023] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MURPHY -v- MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949) [2023] WASC 172
CORAM:   MASTER SANDERSON
HEARD:   4 APRIL 2023
DELIVERED          :   24 MAY 2023
PUBLISHED           :   24 MAY 2023
FILE NO/S:   CIV 1340 of 2022
BETWEEN:   MATT MURPHY
Plaintiff

AND

MAURICE BLACKBURN PTY LIMITED (ACN 105 657 949)
Defendant

Catchwords:

Practice & procedure - Application for summary judgment and release from Harman undertaking - Turns on own facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	C Moss

Solicitors:

Plaintiff	:	In Person
Defendant	:	Sparke Helmore Lawyers

Cases referred to in decision:

Glencore Cole Pty Ltd v Frangs [2021] FCAFC 61
Miles v Bull [1969] 1 QB 258
New South Wales v Bujdoso [2005] HCA 76
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720

MASTER SANDERSON:

Application for summary judgment and for release from the so called Harman undertakings

This was the plaintiff's application for summary judgment and for release from a Harman undertaking. After hearing argument, I dismissed both applications. I indicated I would publish reasons for my decision. These are those reasons.
In relation to the summary judgment application, the plaintiff required an extension of time. At the conclusion of the hearing, I indicated to the parties I would extend the time for the plaintiff to bring the summary judgment application but I would dismiss that application. In relation to the Harman undertaking, I was not satisfied a release was appropriate and I dismissed that application. These reasons deal with all of the matters at issue between the parties.
The plaintiff has brought an action against the defendant alleging breach of contract and negligence arising from the defendant's legal representation of the plaintiff. The plaintiff alleges that he had a personal injuries claim against the State of Western Australia and Serco Australia Pty Ltd arising from a period of incarceration. The plaintiff alleges the defendant breached its contract or was negligent in not commencing proceeding against these entities on his behalf within the time limited by the Limitation Act 2005 (WA).
Dealing first with the Harman application, the plaintiff sought cascading orders releasing him from the implied undertaking of confidentiality with respect to:
(a)all documents and pleadings in connection with this matter;
(b)alternatively all of these documents excluding documents obtained from the defendant by way of discovery and documents obtained by way of subpoena;
(c)alternatively all of the documents excluding documents obtained from the defendant by way of discovery, documents obtained by way of subpoena and the defence.
The parties were agreed that for the court to modify the plaintiff's obligations under the Harman principle, he had to establish 'special circumstances'. In Glencore Cole Pty Ltd v Frangs [2021] FCAFC 61, the court dealing with the expression 'special circumstances' said:
Thirdly, in order to establish special circumstances, "it is enough that there is "a special feature", that is, a feature not usually present, which provides a reason for modifying the undertaking or relieving the party in question from it in the exercise of the Court’s discretion" (PJ at [33]). Thus, as the Full Court explained in Liberty Funding:
31 … The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes …
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720 at [26], Wilcox J identified a number of considerations which may, depending on the circumstances, be relevant to the exercise of the discretion. These were:
(1)the nature of the document;
(2)the circumstances under which the document came into existence;
(3)the attitude of the author of the document and any prejudice the author may sustain;
(4)whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(5)the nature of the information in the document (in particular, whether it contains personal data or commercially sensitive information);
(6)the circumstances in which the document came into the hands of the applicant; and
(7)most importantly of all, the likely contribution of the document to achieving justice in the other proceedings.
The defendant objected to release of the Harman undertaking on two grounds. First, it was said there was a failure to properly identify the documents in relation to which release was sought. Although the cascading orders significantly reduced the volume of documents the subject of the application, there was still a failure on the part of the plaintiff to identify the documents sought with sufficient precision to enable the court to consider the matters raised in the Springfield Nominees decision. Second and most importantly, the defendant said the release was sought for an improper purpose. The plaintiff quite candidly said that he intended to use the documents for the purpose of 'media interviews'. He did not identify the relevant media outlets or the use to which the documents would be put. The defendant says that is the antithesis of the protection provided by the implied undertaking.
Clearly the defendant correctly identified the flaw in this application.
The so called Harman undertaking is an implied undertaking which arises when documents are supplied to a party in relation to litigation between the parties. Ordinarily, those documents would not be available to any other party. The fact they are provided is a feature of the court process and the use to which the documents are put must necessarily be restricted. If circumstances arise where the interests of justice require the party who is provided with the documents to be permitted to make use of those documents for other purposes, then the undertaking can be varied. But it is very difficult to envisage a circumstance where the undertaking would be varied simply to allow a party to approach the media and advance a case through publicity. That is what is being done here. When the matter is viewed in that way, there is no basis upon which the undertaking can be varied.
Turning then to the application for summary judgment, the application was made almost a year out of time. The only explanation for the delay was that the plaintiff, who is presently self-represented, was not aware of the 21 day limit for bringing such an application. The plaintiff conceded the fact he did not know the requirements of the rules could not in and of itself justify an extension of time. He submitted the strength of his case was such that it was in the interests of justice, time be extended. While I ultimately reached the conclusion the summary judgment application ought be dismissed, it was an application which was carefully prepared and was by no means hopeless. In the circumstances, I was satisfied the strength of the plaintiff's case was such that he ought be entitled to advance the arguments in relation to summary judgment.
The plaintiff advanced his argument in this way. The plaintiff asserts physical and sexual assault between October 2015 and August 2017 while he was incarcerated at Casuarina Prison, Hakea Prison, Acacia Prison and Bunbury Regional Prison. He says the Department of Corrective Services and Serco, an entity responsible for the management control of security of Acacia Prison, owed a non-delegable common law duty to exercise reasonable care for his safety. In particular, the plaintiff asserts Serco, and at least by implication, the Department of Corrective Services, knew he was potentially at risk. The plaintiff relied upon the High Court decision in New South Wales v Bujdoso [2005] HCA 76 to support his position. At least for the purposes of this application, the defendant did not dispute the existence of the duty or that the duty was breached.
It is common ground the plaintiff consulted the defendant in relation to the assaults he had allegedly suffered. He says as a consequence of engaging the defendant, a contract arose and it was an implied term of that contract the defendant would use their best endeavours to protect the plaintiff's interest and to exercise reasonable care and skill in carrying out his instructions. There can be no doubt that such a duty arose either in contract or in tort and probably in both. The existence of the duty was not, for the purposes of this application, disputed by the defendant.
It is the plaintiff's claim the defendant was negligent in that it failed to advise him of the three year limitation period applicable to his claim and failed to commence proceedings within the limitation period. It is the plaintiff's position he discussed his claim and the limitation period with a solicitor employed by the defendant. The plaintiff maintains he was given incorrect advice. It is clear then that the plaintiff's case will turn on precisely what advice he was given and when. Although there is some documentation which supports the plaintiff's position, it is clear that the discussions between solicitor and client are crucial.
The solicitor who allegedly gave the advice to the plaintiff has left the employ of the defendant. Although he is still practising as a solicitor, he has declined to cooperate with the defendant and its insurers. The defendant is thus not in a position to provide an answer to the plaintiff's claim. On that basis, the defendant says there is some other reason why summary judgment ought not be granted. The plaintiff says it is a fundamental principle of the summary judgment regime that a defendant must condescend upon particulars. It is not enough for a defendant as here to say there may be evidence which would stand against the plaintiff's claim. Such speculation is inappropriate and cannot form the basis for rejecting the summary judgment application.
This was an unusual case. It is one of those rare instances where the defendant, through no fault of its own, was simply unable to adequately investigate the circumstances of the case so as to respond to the plaintiff's summary judgment application. As Megarry J said in Miles v Bull [1969] 1 QB 258, the expression 'some other reason' is very wide. It might be regarded as a 'catch all' phrase to ensure the remedy of summary judgment is only invoked in those circumstances where there can be no real doubt as to a party's liability. In my view, this case was not so clear, given the limitations faced by the defendant, as to warrant the grant of summary judgment. In other words, I was satisfied there was some other reason judgment ought not be entered.
In the circumstances, I am satisfied the costs both in relation to the plaintiff's application for release of the Harman undertaking and the application for summary judgment ought be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Associate
24 MAY 2023