Paul Graham Unicomb v Gregory Scott Blais

[2024] NSWSC 903

Supreme Court

New South Wales

Medium Neutral Citation:

Paul Graham Unicomb v Gregory Scott Blais [2024] NSWSC 903

Hearing dates:

28 May 2024

Date of orders:

25 July 2024

Decision date:

25 July 2024

Jurisdiction:

Equity

Before:

McGrath J

Decision:

Declaration that affidavits made in earlier proceedings not subject to implied obligation not to use them for any purpose other than that for which they were given (see [296])

Catchwords:

EVIDENCE — PRACTICE AND PROCEDURE — affidavit evidence — Harman undertaking — implied obligation — affidavits filed and served but not read in previous proceedings — where plaintiffs seek to use relevant affidavits in present proceedings — application of implied obligation to affidavits prepared and filed pursuant to court-ordered timetable — consideration of statement of principle in Hearne v Street and subsequent interpretation — where requisite element of compulsion absent — HELD — affidavits not subject to implied obligation but if they were then release would be granted

Legislation Cited:

Evidence Act 1995 (Cth), ss 43, 122

Cases Cited:

Bourns Inc v Raychem Corp [1999] 1 All ER 908

Bourns Inc v Raychem Corp [1999] 3 All ER 154

Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509

Coleman v Power (2004) 220 CLR 1; [2004] HCA 39

Crest Homes Plc v Marks [1987] AC 829

CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64

The Queen, on the application of Davey v Silverstein [2020] VSCA 233

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Frigger v Trenfield (No 5) [2020] FCA 827

Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208

Harman v Secretary of State for Home Department [1983] 1 AC 280

Haslerv Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad (2014) 87 NSWLR 609; [2014] NSWCA 266

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354

Johnston v Allen [2024] NSWSC 187

Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3

Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] All ER 1261

Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156

Riddick v Thames Board Mills Ltd [1977] QB 881

Sinnott v Chief of Defence Force [2020] FCA 643

Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217; [1992] FCA 720

State Bank of South Australia v Smoothdale (No 2) Ltd (1997) 64 SASR 224

Stokes v Toyne [2021] NSWSC 1049

T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140Prudential AssuranceCo Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878

Category:

Principal judgment

Parties:

Paul Graham Unicomb (First Plaintiff/Applicant)
HG InvestCorp Pty Ltd (Second Plaintiff/Applicant)
GHT Holdings Pty Ltd (Third Plaintiff/Applicant)

Gregory Scott Blais (First Defendant/Respondent)
Keith James Wilton (Second Defendant/Respondent)
Jennifer Amie Blais (Third Defendant/Respondent)

Representation:

Counsel:
M Elliott SC and C Chiam (Plaintiffs/Applicants)
J Knackstredt (Defendants/Respondents)

Solicitors:
McCabes (Plaintiffs/Applicants)
Travis Partners (Defendants/Respondents)

File Number(s):

2023/00455686

Publication restriction:

Nil

TABLE OF CONTENTS

JUDGMENT

INTRODUCTION

RELEVANT FACTS

Underlying factual matters

Probate Proceedings and Equity Proceedings

Administration of the Estate

History of these proceedings

Issues in these proceedings

Permission sought to use the Relevant Affidavits

ISSUE 1: APPLICATION OF THE IMPLIED OBLIGATION

Legal principles

Bound by the High Court and regard to intermediate appellate decisions

The Harman undertaking

Esso Australia

Liberty Funding

Hearne

Compulsion – Bourns and the Bourns appeal

Witness statements and affidavits

Central Queensland Cement

Springfield Nominees

Smoothdale

Medway

Addstone

Judicial Consideration of Hearne

Helicopter Aerial

Gwynvill

Sinnott

Frigger

Leagou

Silverstein

Verde Terra

Stokes

Woods

Johnston

Plaintiffs’ submissions

Defendants’ submissions

Plaintiffs’ submissions in reply

Consideration

ISSUE 2: LEAVE TO USE THE RELEVANT AFFIDAVITS

Legal principles

Plaintiffs’ submissions

Defendants’ submissions

Plaintiffs’ submissions in reply

Consideration

The nature of the document

The circumstances under which the document came into existence

The attitude of the author of the document and any prejudice the author may sustain

Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain

The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information)

The circumstances in which the document came in to the hands of the applicant

Most importantly of all, the likely contribution of the document to achieving justice in the other proceeding

Conclusion

ORDERS

JUDGMENT

INTRODUCTION

1. This is an application by the plaintiffs, Paul Graham Unicomb, HG InvestCorp Pty Ltd and GHT Holdings Pty Ltd (collectively plaintiffs), for a declaration that three affidavits provided in previous proceedings in this court are not the subject of an obligation owed to the court not to use them for any purpose other than that for which they were given. In the alternative, the plaintiffs seek that leave be granted to them and their legal representatives to use the three affidavits in these proceedings.

2. I will refer to Paul Graham Unicomb by his first name, without intending any disrespect or overfamiliarity.

3. The proceedings concern land at East Maitland and particular dealings with that land by its then owner Denis Thomas Wilton (now deceased), to whom I will also refer by his first name, without intending any disrespect or overfamiliarity.

4. The defendants are Gregory Scott Blais, Keith James Wilton and Jennifer Amie Blais (collectively defendants), to each of whom I will also refer by their first name, without intending any disrespect or overfamiliarity.

5. Keith is the son of Denis. Jennifer is the daughter of Denis. Gregory is married to Jennifer, so is the son-in-law of Denis.

6. The three affidavits (collectively Relevant Affidavits) which are the subject of this application were each made in earlier proceedings in this court and are the following:

1. the affidavit of Keith James Wilton affirmed 1 October 2021 (Wilton affidavit);

2. the affidavit of Gregory Scott Blais sworn 1 October 2021 (Blais affidavit); and

3. the affidavit of Noel Ashley Brent sworn 24 September 2021 (Brent affidavit).

7. Mr Brent was the accountant for Denis.

8. The defendants oppose the application.

9. There are two issues for me to determine:

1. whether the implied obligation not to use affidavits filed and served in one set of proceedings for any purpose other than those earlier proceedings applies to the Relevant Affidavits; and

2. if the answer to (1) is that the implied obligation does apply to the Relevant Affidavits, whether leave should be granted to the plaintiffs to use the Relevant Affidavits in these proceedings.

10. This case raises interesting questions regarding the application of the principle concerning the implied obligation stated in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 and the manner in which subsequent cases have sought to interpret and apply that principle. There has been considerable uncertainty amongst judges across Australia considering the issue of whether the principle in Hearne applies to affidavits filed and served pursuant to the normal timetabling orders of a court or court rules requiring such affidavits to support particular applications when they are made.

11. Rather than assuming that the implied obligation applies and determining the application solely on the basis of whether leave to use them should or should not be granted, I have decided to make a substantive decision on both issues.

12. I am grateful for the succinct and skilful oral and written submissions made by Mr Elliott SC with Mr Chiam as counsel for the plaintiffs, instructed by McCabes, and Mr Knackstredt as counsel for the defendants, instructed by Travis Partners.

13. I have determined that the implied obligation does not apply to each of the Relevant Affidavits in this case and, even if it did, I would grant leave for the plaintiffs to use each of the Relevant Affidavits in these proceedings.

RELEVANT FACTS

Underlying factual matters

14. These proceedings and the earlier proceedings both involve a set of uncontested underlying facts concerning dealings with adjoining parcels of land located at 6 Wilton Drive, East Maitland (being Lot 8 in Deposited Plan 855275) and 62 Mount Vincent Road, East Maitland NSW (comprising Lot 141, Lot 142 and Lot 143 in Deposited Plan 1225076) (together the East Maitland Property).

15. At all material times up to the date of his death, Denis was the registered proprietor of the East Maitland Property.

16. On 7 August 2017, Denis executed a Deed of Call Option granting HG InvestCorp an option to purchase the East Maitland Property (Call Option Deed). The Call Option Deed provided, amongst other things, that the call option was granted in consideration for the Call Option Fee of $20,000 and that the Price on the exercise of the call option was the sum of $10.4 million (excluding GST) (cll 1.1(c), (o) and 2.1) and the Call Option Period within which the call option must be exercised by written notice of HG InvestCorp to Denis was between 43 days after 7 August 2017 and the earlier of:

1. 25 November 2018; or

2. 90 days after HG InvestCorp has obtained development consent in respect of the East Maitland Property (cll 1.1(e) and 2.2).

17. On 5 October 2018, Denis and HG InvestCorp entered into a Deed of Variation of Call Option which varied the Call Option Deed (cl 1) by increasing the Call Option Fee to $20,001 and extending the Call Option Period so that it ended on the earlier of:

1. 30 April 2019; or

2. 90 days after HG InvestCorp has obtained development consent in respect of the East Maitland Property.

18. On 30 April 2019, Denis and HG InvestCorp entered into a Deed of Further Variation of Call Option which further varied the Call Option Deed (cl 1) by increasing the Call Option Fee to $20,002 and further extending the Call Option Period so that it ended on the earlier of:

1. 31 January 2020; or

2. 90 days after HG InvestCorp has obtained development consent in respect of the East Maitland Property (cl 1.1(e)).

19. On 3 May 2019, Denis executed his last will (Will). The named executors in the Will are Keith and Gregory. The named beneficiaries in the Will are Jennifer, Keith, John Edward Wilton, Paul Denis Wilton and Marie Louise Corrigan. Without intending any disrespect or overfamiliarity, I will refer to Marie Louise Corrigan by her first name.

20. On 26 November 2020, Denis died. Marie was the partner of Denis at the time of his death.

Probate Proceedings and Equity Proceedings

21. On or about 9 December 2020, Keith and Gregory as executors under the Will lodged an application for probate over the Estate of Denis in this court commencing proceedings 2020/00349038 (Probate Proceedings).

22. On 30 March 2021, Gregory swore an affidavit in the Probate Proceedings (Earlier Blais affidavit) to support the Estate’s application for an interim and limited grant of probate of the Estate.

23. On 13 April 2021, a hearing of the Estate’s application for an interim and limited grant of probate was held before Slattery J, at which the Earlier Blais affidavit was read in open court. On that day, Slattery J made orders that Keith and Gregory be appointed as interim administrators of the Estate, with the power to settle accounts related to the continuation of the rezoning application for part of the East Maitland Property.

24. On or about 24 May 2021, Keith and Gregory as executors of the Will filed a statement of claim in the Probate Proceedings, joining Marie as a defendant, seeking a grant of probate in solemn form and a declaration that a codicil to the Will dated 5 May 2020 was not valid. There were no other parties to the Probate Proceedings.

25. On or about 13 July 2021, Keith and Gregory as executors commenced proceedings 2021/00199953 in this court against Marie and the New South Wales Registrar General, seeking declarations and orders that a transfer of property from Denis to Marie on 16 April 2020 be set aside on the basis that it was unconscionable and/or void from its inception (Equity Proceedings). The New South Wales Registrar General filed a submitting appearance in the Equity Proceedings. There were no other parties to the Equity Proceedings.

26. McCabes acted for Marie in the Probate Proceedings and the Equity Proceedings. Andrew Lacey of McCabes was the solicitor on the record for Marie in the Probate Proceedings and the Equity Proceedings.

27. On 16 August 2021, Registrar Walton made the following orders, inter alia, in the Equity Proceedings:

1.   Notes the associated proceedings 2020/00349038

2.   Directs the parties to file and serve the evidence in chief they intend to rely upon by 4pm on 13 September 2021.

3.   Directs the parties to file and serve the evidence in reply they intend to rely upon by 4pm on 6 October 2021.

…

28. On 16 August 2021, Hallen J made the following orders, inter alia, in the Probate Proceedings:

…

2.   Directs that each party is to file and serve evidence in chief upon which it is intended to rely by 4:00p.m. on 13 September 2021.

3.   Directs that each party is to file and serve any evidence in reply by 4:00p.m. on 6 October 2021.

…

29. On 14 September 2021, Hallen J made orders in the Probate Proceedings extending the time for compliance with orders 2 and 3 made on 16 August 2021, so that evidence in chief was directed to be filed and served by 4pm on 27 September 2021 and that any evidence in reply was directed to be filed and served by 4pm on 13 October 2021.

30. No order was ever made that the Probate Proceedings and the Equity Proceedings were to be heard together.

31. On 8 October 2021, the Wilton affidavit, the Blais affidavit and the Brent affidavit were each filed and served on behalf of Keith and Gregory in the Probate Proceedings and the Equity Proceedings. Mr Lacey of McCabes received the Relevant Affidavits in his capacity as the solicitor acting for Marie.

32. On or about 22 March 2022, Keith, Gregory and Marie entered into a Deed of Settlement and Release to resolve the Probate Proceedings and the Equity Proceedings.

33. On 22 April 2022, Hallen J made orders granting probate of the Estate in the Probate Proceedings, noted the settlement agreement between Keith, Gregory and Marie and dismissed the Probate Proceedings and the Equity Proceedings.

34. The plaintiffs concede that none of the Relevant Affidavits were read in open court in either the Probate Proceedings or the Equity Proceedings, although it appears from evidence provided by the defendants that [1], [8], [9] and [60]–[74] of the Brent affidavit were read in court on 22 April 2022 by Hallen J.

35. The Relevant Affidavits have not been provided to the plaintiffs by Mr Lacey, who is also acting as their solicitor in these proceedings. The Relevant Affidavits were provided to me as part of a confidential exhibit. In this judgment, I will only refer to the contents of any of the Relevant Affidavits in the most general form, in keeping with the confidentiality orders I made when they were received as evidence in these proceedings.

Administration of the Estate

36. On or about 14 and 15 July 2022, Keith (as trustee for the K J Wilton Testamentary Trust) and Jennifer (as trustee for the J A Blais Testamentary Trust) became the registered proprietors as joint tenants for most of the East Maitland Property, with the exception that Keith (as trustee for the K J Wilton Testamentary Trust) became the sole registered proprietor of Lot 142 forming the other part of the East Maitland Property.

37. On 30 April 2023, the administration of the Estate was completed.

History of these proceedings

38. On 15 December 2023, the plaintiffs commenced these proceedings against the defendants by filing the summons seeking, inter alia:

1. declarations concerning:

1. an alleged binding and enforceable agreement between HG InvestCorp and Gregory and Keith as executors of the Estate, the terms of which were that:

1. HG InvestCorp or its nominee had an option to purchase the East Maitland Property for $10.4 million;

2. the option is exercisable on the approval of a development application for the construction of a retirement village on the East Maitland Property;

3. HG InvestCorp or its nominee will pursue an application to rezone Lot 141 before seeking approval of a development application for it, the costs of the rezoning application will be borne in half shares by HG InvestCorp or its nominee and Denis and the costs of the development application will be borne by HG InvestCorp or its nominee (Agreement);

2. an alleged estoppel against Gregory and Keith from denying that they are bound by terms of the Agreement as executors of the Estate;

3. alleged misleading and deceptive conduct by Gregory in representing that he would perform the Agreement as the representative of Denis and executor of the Estate;

4. the plaintiffs are a creditor in the administration of the Estate and entitled to an amount pursuant to the Agreement;

5. Gregory and Keith permitted the transmission of the East Maitland Property to Keith and Jennifer in alleged breach of their duties as executors of the Estate;

2. an order that probate of the Estate be revoked;

3. an order appointing an administrator of the Estate;

4. an order that Keith transfer his share of the East Maitland Property to himself and Gregory in their capacity as executors of the Estate; and

5. alternatively, damages against Gregory and Keith or equitable compensation payable by Gregory and Keith to the Estate.

39. As mentioned above, Andrew Lacey of McCabes is acting for the plaintiffs in these proceedings, having also acted for Marie in the Probate Proceedings and the Equity Proceedings.

40. On 14 February 2024, Slattery J made orders in these proceedings, inter alia, that they proceed by way of pleadings and directed that the plaintiffs file and serve their statement of claim by 8 March 2024, the defendants file and serve any defence by 5 April 2024 and the plaintiffs file and serve any reply by 19 April 2024.

41. On 19 March 2024, the plaintiffs filed and served the statement of claim in these proceedings.

42. On 26 April 2024, Slattery J extended the time for the plaintiffs to file and serve any reply to 10 May 2024 and also fixed a timetable for the service of evidence.

43. On 23 April 2024, each of Gregory, Keith and Jennifer filed and served their respective defences in these proceedings.

44. On 10 May 2024, the plaintiffs served their reply to the defences of the defendants in these proceedings.

45. No affidavits have yet been filed by the plaintiffs or the defendants in these proceedings, with the exception of an affidavit of Paul (the first plaintiff) sworn 15 December 2023 which was filed with the summons, and was not read on this application.

Issues in these proceedings

46. The relief sought in the statement of claim in these proceedings is in the same form as that which was sought in the summons, save for the addition of a further or alternative form of relief, being an order that Gregory and Keith pay GHT Holdings an alleged rezoning debt of $56,030.

47. The facts which the plaintiffs allege in the statement of claim are extensive. In summary, they are essentially as follows:

1. From 2015 to the end of 2019, Paul and HG InvestCorp entered into a series of oral and written agreements (including the Call Option Deed, the Deed of Variation and the Deed of Further Variation) with Denis and Denis made oral representations to them the effect of which were that they had a call option to purchase the East Maitland Property.

1. In reliance on these agreements and representations, from 2015 onwards, Paul, HG InvestCorp and GHT Holdings expended significant sums of money and took steps to obtain the rezoning and development approval of the East Maitland Property as a retirement village.

2. From around June 2019, Gregory orally represented to Paul that Gregory was assisting Denis with the sale of the East Maitland Property and Gregory was authorised to make decisions with respect to the East Maitland Property.

3. Around 21 December 2019, Denis and Gregory agreed that Gregory could make decisions with respect to the sale of the East Maitland Property on behalf of Denis, such that Gregory was Denis’ agent in respect of the sale of the East Maitland Property.

4. In March 2020, November 2020 and from about 26 November 2020 to mid-2021, Gregory orally represented to Paul that Gregory would perform the call option on behalf of Denis and Gregory could ensure that it would be performed after Denis died.

5. In reliance on Gregory’s oral representations, Paul caused GHT Holdings to expend significant sums of money and took steps to obtain the rezoning and development approval of the East Maitland Property as a retirement village.

6. On 26 November 2020, Denis died.

7. On 27 July 2021, Maitland City Council approved the rezoning proposal in respect of part of Lot 141.

8. After 27 July 2021, Gregory orally represented to Paul that Gregory would perform the call option on behalf of Denis, Gregory would continue pursuing the rezoning of the other parts of Lot 141 and Paul should not lodge a development application for Lot 141 until Gregory had exhausted his attempts at the rezoning.

9. In reliance on Gregory’s further oral representations, Paul caused HG InvestCorp and/or GHT Holdings not to lodge a development application for Lot 141.

10. On around 14–15 June 2022, Keith and Jennifer became the registered proprietors of the East Maitland Property.

11. On about 29 September 2023, Keith and Jennifer entered into an option deed with East Maitland 62 Pty Ltd in respect of Lot 8 and Lot 141.

12. On 3 October 2023, Gregory informed Paul that the East Maitland Property had been sold.

48. Based on these essential facts, the claims made in the statement of claim are:

1. An equitable estoppel against Gregory and Keith from denying they are bound by the terms of the Call Option Deed (as varied).

2. Gregory and Keith breached their duties as executors of the Estate causing the plaintiffs to suffer loss and damage.

3. HG InvestCorp held an equitable interest in the East Maitland Property as at the date of Denis’s death.

4. Gregory and Keith have been misleading and deceptive in the oral representations made, causing Paul, HG InvestCorp and GHT Holdings to suffer loss.

5. GHT Holdings is owed a debt for the costs incurred in pursuing the rezoning application for Lot 141.

6. A quantum meruit in favour of Paul, HG InvestCorp and GHT Holdings to compensate them for the work they performed on the development application and the rezoning application which has caused the value of the East Maitland Property to increase to the benefit of Keith and Jennifer at the expense of Paul, HG InvestCorp and GHT Holdings.

49. The defence of each of the defendants is essentially in the same terms: admitting that Denis and HG InvestCorp entered into written agreements in the form of the Call Option Deed in August 2017, the Deed of Variation in October 2018 and the Deed of Further Variation in April 2019, but either not admitting or denying that any oral agreements and representations were made.

50. The defendants also admit that Gregory was assisting Denis with the sale of the East Maitland Property, but deny that Gregory was authorised to make decisions with respect to the East Maitland Property. The defendants admit that Keith, jointly and severally with Gregory, held an enduring power of attorney dated 3 May 2019 on behalf of Denis, but otherwise do not admit that from around 21 December 2019 Gregory was Denis’ agent with respect to the sale of the East Maitland Property.

Permission sought to use the Relevant Affidavits

51. On 4 April 2024, Mr Lacey as the plaintiffs’ solicitor had a telephone conversation with Marie seeking her consent for McCabes and counsel engaged by McCabes to consider the Relevant Affidavits in the context of these proceedings. On the same day at 12:37pm, Mr Lacey sent an email following up this conversation, asking for Marie’s consent to McCabes considering the Relevant Affidavits in terms of the relevance of their content to the matters in these proceedings. At 1:11pm that day, Marie replied by email relevantly stating:

I Marie Louise Corrigan give McCabes and their legal team my permission to use the information mentioned in the Unicomb’s proceedings in which ever way you choose.

52. On 10 April 2024, McCabes sent a letter by email to Travis Partners (the solicitors for Gregory and Keith) outlining their view that there is no obligation on the plaintiffs which precludes the use of the Relevant Affidavits in these proceedings but, for abundant caution and although not strictly required, seeking their consent to a proposed application by the plaintiffs for a declaration that the Relevant Affidavits are not the subject of any obligation owed to the court not to use them for any purpose other than that for which they were given.

53. Also on 10 April 2024, McCabes sent a letter by email to Mr Brent (the accountant for Denis) asking whether he objected to the use of the Brent affidavit in these proceedings.

54. On 10 April 2024 at 6:35pm, Travis Partners sent an email to McCabes responding to their letter of even date by requesting a copy of the Relevant Affidavits so that they could take instructions.

55. On 11 April 2024, McCabes replied by email to Travis Partners, seeking confirmation of certain matters in relation to the Relevant Affidavits before they would be provided to them.

56. On 22 April 2024, Travis Partners sent a letter to McCabes setting out their view that the Relevant Affidavits are subject to the implied undertaking described in Harman v Secretary of State for Home Department [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 and relevantly stating that whilst the defendants:

… do not intend to consent to your clients’ proposed application, we do not see this as a matter for our clients’ consent. Rather, it is a question for your clients to satisfy the Court that the implied undertaking should not apply – particularly where, as here, a litigant in previous litigation (your former client) has apparently given copies of material or authorised its use by a third party in unrelated litigation.

57. On 3 May 2024, the plaintiffs filed the notice of motion making this application in these proceedings seeking the following principal orders:

1. A declaration that the Relevant Affidavits are not the subject of an obligation owed to this court not to use them for any purpose other than that for which they were given.

2. In the alternative, that the court grant leave to the plaintiffs, and any of their legal representatives, to use the Relevant Affidavits for the purposes of these proceedings.

3. A declaration that the Relevant Affidavits may be provided by the solicitors for the plaintiffs to the plaintiffs for the purpose of these proceedings.

58. On 9 May 2024, Mr Brent sent an email to Travis Partners stating that he did not consent to the use of the Brent affidavit in these proceedings.

ISSUE 1: APPLICATION OF THE IMPLIED OBLIGATION

59. The fundamental issue raised in this application is whether the Relevant Affidavits are subject to the implied obligation not to use them for any purpose other than that for which they were given. To determine that issue requires me to trace through the main history of the judicial expression of the principle, how it was stated by the High Court of Australia in Hearnev Street (2008) 235 CLR 125; [2008] HCA 36 and how it has been subsequently applied by various Australian courts, including by an intermediate appellate court and single judges of this and other courts, in relation to witness statements and affidavits.

60. I will then detail the submissions made by the parties and, through my consideration of them, apply the relevant principles to the Relevant Affidavits in this case.

Legal principles

Bound by the High Court and regard to intermediate appellate decisions

61. In undertaking my determination of the application, I am acutely conscious that it does not lie for intermediate appellate courts or single judges such as me to restate the law pronounced by the High Court. I am bound by the decisions of the High Court and decisions of the Court of Appeal of this court but I must also have regard to decisions of intermediate appellate courts and not depart from them unless I think that they are plainly wrong. My primary task is to consider the language used by the High Court in its reasons to understand its meaning and use the judgments of other courts as no more than a guide to interpreting those reasons.

62. The principle that I am bound by what the High Court has said but not another court’s interpretation of what the High Court has said is well expressed in Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad (2014) 87 NSWLR 609; [2014] NSWCA 266, by Leeming JA (with whom Barrett and Gleeson JJA agreed) saying at [98]–[99]:

[98]   This Court is bound by what the High Court said in Farah as to second limb Barnes v Addy liability. It is bound directly. Ultimately, it is bound by reason of s 73 of the Commonwealth Constitution. This Court is not bound indirectly by another court’s interpretation of what the High Court said. To paraphrase the words of McHugh J in Marshall, the primary guide to understanding the law as stated by the High Court is the language of that Court’s reasons, and a judicial decision as to what those reasons mean is at best a guide to, but cannot control, the meaning of that language.

[99]   Naturally, considerations of comity require regard to be had to decisions of other Australian courts, especially intermediate appellate courts, in applying and developing the common law of Australia. But either Farah has changed the meaning of “dishonest and fraudulent design” in second limb Barnes v Addy liability or it has not. The fact that a majority of the Western Australian Court of Appeal considered that the phrase has been diluted by Farah does not absolve this Court from its obligation to apply the law which binds it as stated by the High Court.

63. The doctrine of stare decisis means that I am bound by appellate decisions of the Court of Appeal of this court as a court standing above me in the same hierarchy: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, Gummow J at 504. But I must also have regard to intermediate appellate court decisions, as was made plain in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [135] saying (footnote omitted):

… Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. …

64. An essential matter which must always be kept in mind in applying the principles stated by a superior court is that any proposition which has been assumed to be correct without argument in the superior court is not binding on a lower court even when it forms part of the ratio decidendi. This was stated in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, by McHugh J at [79]:

In my view — in constitutional and public law cases as well as private law cases — parties can concede issues even though the issue is a legal issue. The only power with which this Court is invested is judicial power together with such power as is necessary or incidental to the exercise of judicial power in a particular case. The essence of judicial power is the determination of disputes between parties. If parties do not wish to dispute a particular issue, that is their business. This Court has no business in determining issues upon which the parties agree. It is no answer to that proposition to say that this Court has a duty to lay down the law for Australia. Cases are only authorities for what they decide. If a point is not in dispute in a case, the decision lays down no legal rule concerning that issue. If the conceded issue is a necessary element of the decision, it creates an issue estoppel that forever binds the parties. But that is all. The case can have no wider ratio decidendi than what was in issue in the case. Its precedent effect is limited to the issues. …

65. Further, in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, Gleeson CJ, Gummow and Heydon JJ at [13] said (footnotes omitted):

… It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions. But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. “[T]he presidents, … sub silentio without argument, are of no moment.”

The Harman undertaking

66. The implied obligation is often referred to as the Harman undertaking in reference to the case of Harman v Secretary of State for Home Department [1983] 1 AC 280. Numerous cases interchangeably refer to the implied obligation as an “implied undertaking” or a “Harman undertaking”.

67. The notion of an implied obligation, however, has its roots well before Harman was decided, having been stated nearly a century before. In Riddick v Thames Board Mills Ltd [1977] QB 881, Lord Denning MR at 895–896 described the history and form of the implied obligation as resting in the balance that lies between the public interest in compelling discovery to find the truth and the public interest in the protection of the private interests of privacy and confidentiality which are invaded by discovery, saying:

The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth, i.e., in making full disclosure. …

… Compulsion is an invasion of a private right to keep one's documents to oneself. The 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 order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purpose of the action in which they are disclosed. … The principle was stated in a work of the highest authority 93 years ago by Bray J., Bray on Discovery, 1st ed. (1885), p. 238:

“A party who has obtained access to his adversary’s documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit: … nor to use them or copies of them for any collateral object … If necessary an undertaking to that effect will be made a condition of granting an order: …”

Since that time such an undertaking has always been implied, as Jenkins J. said in Alterskye v Scott [1948] 1 All ER 469, 471. 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. …

68. Harman was a case involving an application by the Home Office against Ms Harman for contempt. Ms Harman acted as solicitor for a former prisoner in proceedings against the Home Office concerning his alleged unlawful confinement. During those proceedings, the Home Office gave discovery of documents pursuant to an order of the court after a contested interlocutory application, which included six confidential documents over which the Home Office had unsuccessfully claimed public interest immunity from production. The documents were read out in court during the lengthy hearing. After the hearing, Ms Harman allowed a journalist to inspect the documents, make notes about them and take extracts from them for the purposes of writing a newspaper article.

69. At first instance, Park J found that Ms Harman was in contempt of court, but imposed no penalty. The Court of Appeal refused leave to appeal from that decision. Although the House of Lords were split three–two in the result (the majority — Lords Diplock, Keith and Roskill — dismissing the appeal, whereas Lords Simon and Scarman would have allowed the appeal), they were all broadly in agreement as to the existence and description of the implied undertaking to the court not to use documents obtained on discovery in proceedings other for the purposes of those proceedings.

70. Lord Diplock expressed the principle in this way (in masculine language, which might be explained by its times, although it is still odd given the solicitor in Harman was a woman) at 304–305:

… an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by that solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or a ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party’s documents obtained upon discovery is, in my view, a contempt of court.

71. Lord Keith said at 307:

It is not disputed on behalf of the appellant that, by virtue of the order for discovery of the documents here in issue, she and her client were placed under an implied obligation not to make use of the documents for any purpose other than the proper conduct of the litigation in the course of which the order was made. …

72. Lord Keith emphasised at 308 that:

… Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between the parties is considered to outweigh the private and public interest in the maintenance of confidentiality. …

73. Lord Keith at 308 further said that the implied obligation:

… affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality.

74. Lord Scarman (with whom Lord Simon agreed) described the implied undertaking in this way at 312 and 313:

… The law imposes the obligation under consideration in this appeal for the protection of the party compelled to make discovery of documents in legal proceedings. It does so by implying an undertaking by the party to whom discovery is made and his solicitor not to use them for any purpose other than that of the action. Disregard of the undertaking is enforceable by the party for whose benefit it is exacted in committal proceedings for contempt of court.

…

In our view, a just balance is struck if the obligation endures only so long as the documents themselves are private and confidential. Once the litigant's private right to keep his documents to himself has been overtaken by their becoming public knowledge, we can see no reason why the undertaking given when they were confidential should continue to apply to them.

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. The undertaking protects the confidentiality of the documents which the course of justice requires to be disclosed in the litigation. …

Esso Australia

75. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19, Mason CJ (with whom Dawson and McHugh JJ agreed) held that the implied undertaking as expressed in Harman and Riddick applied in Australian law to documents produced on discovery in court proceedings and pursuant to directions given in private arbitration. Mason CJ expressed the principle at 32–33 in this way (footnotes omitted):

In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated:

“A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit … nor to use them or copies of them for any collateral object … If necessary an undertaking to that effect will be made a condition of granting an order.”

Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.

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.

Liberty Funding

76. Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3 is a decision of the Full Court of the Federal Court of Australia. It involved an application to the Federal Court for leave to use an affidavit sworn by the chief executive officer of the respondent in proceedings in the Supreme Court of Victoria. The affidavit had been made, filed and served pursuant to an order of the Federal Court requiring the respondent to state the extent of dissemination of an alleged misleading and deceptive document in lieu of giving discovery of documents on that issue. The Federal Court proceedings then settled at mediation. New proceedings were then commenced in the Federal Court by one of the applicants in the earlier proceedings, which were then transferred to the Supreme Court of Victoria.

77. Importantly, at [6] the Full Court described the affidavit in this way:

… the affidavit was to take the place, and fulfil the function, of an affidavit of discovery and of inspection of discovered documents. …

78. The primary judge concluded that the affidavit remained the subject of legal professional privilege as it had not been read in open court. The Full Court (Branson, Sundberg and Allsop JJ) observed at [15]:

The primary judge came to the conclusion he did by applying what his Honour saw to be the preponderance of authority to the effect that statements or affidavits filed and served in proceedings, but not read in open court, remained subject to legal professional privilege. The primary judge referred to the reasons of Olney J in Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation (1994) 48 FCR 337, of the Full Court of the Supreme Court of South Australia in State Bank of South Australia v Smoothdale (No 2) Ltd (1995) 64 SASR 224 and of the Court of Appeal of New South Wales in Akins v Abigroup Ltd (1998) 43 NSWLR 539 and Sevic v Roarty (1998) 44 NSWLR 287; [1998] NSWSC 462 , and to other cases. With one exception, all these cases dealt with the status of statements of prospective witnesses filed and served pursuant to court order in advance of the trial, not with the status of affidavits in like position.

79. The Full Court allowed the appeal, finding that the affidavit was not privileged once it was filed and served because it was no longer confidential (at [22]–[23]). Before doing so, the Full Court distinguished the decisions on which the primary judge had relied which concerned the evidence anticipated to be given at a hearing in the form of witness statements and the different role of the affidavit in Liberty Funding, saying at [19]–[21]:

[19]   We are of the view that this case can be disposed of without the necessity for expressing a concluded view on the correctness or otherwise of the approach of the Full Court in Smoothdale or of the Court of Appeal in Akins or Sevic.

[20]   The Jeffery affidavit was intended to fulfil the role (albeit somewhat extended) of an affidavit of discovery. It was intended to be read and relied upon by the other side in the litigation. Without dispensation of the court, it could not be used otherwise than for the purposes of the First Proceeding. That could be seen to give a measure of practical confidentiality to Bluestone, but it was not a limitation based on confidence. The applicants in the first proceeding were at liberty to use the Jeffery affidavit and its contents as they saw fit for the proper purposes of that litigation. Such purposes might well involve disclosing all or part of the contents of the Jeffery affidavit to third parties without obtaining confidentiality undertakings. The restraint on use after service is derived from an implied undertaking to the court (in its terms contemplating discharge in some circumstances) the purpose of which is to prevent any abuse of the court’s procedures. It is not a limitation based on the existence of confidentiality or privilege. The role intended to be fulfilled by the Jeffery affidavit was inconsistent with the maintenance of the confidentiality of the communications recorded in, and any advice apparent from, the contents of the Jeffery affidavit.

[21]   The affidavit was not brought into existence as part of the anticipated evidence for a hearing, whether final or interlocutory. It was intended to be a convenient procedural device in the nature of, but in lieu of, a usual affidavit of discovery. That is sufficient, we think, to distinguish Smoothdale, Akins and Sevic. Those cases dealt with the status of proposed evidence served in advance of the trial. Also, the fact that the subject of debate here is an affidavit sworn under relevant legislation attending the making of an oath further distinguishes the position from those cases.

80. The key consideration in the decision in Liberty Funding was therefore that the affidavit which was filed and served was akin to discovery and subject to the implied undertaking. The Full Court proceeded on the basis that leave to use the affidavit was required and there was no argument about whether that was or was not correct. Applying the principle outlined in Coleman and CSR, the implied undertaking was assumed to apply, a determination which is not binding on later courts.

81. The Full Court expressly stated at [24] that although it was not necessary to analyse the decisions in Smoothdale, Akins and Sevic, there was:

… a real issue as to the correctness of those decisions, at least insofar as they deal with the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial.

82. The Full Court at [27] also eschewed consideration of whether statements or affidavits filed in advance of the hearing under procedural directions or orders are provided “under compulsion of law” for the purposes of s 122(1)(c) of the Evidence Act 1995 (Cth).

83. The balance of the decision in Liberty Funding concerned the principles to be applied in determining whether leave should be granted to release the implied undertaking. I will return to my consideration and application of those principles in dealing with Issue 2 in this judgment below.

Hearne

84. In Australia, the guiding authority on the implied obligation is Hearne.

85. In Hearne, the High Court determined an appeal in an action for contempt by two directors, Mr Hearne and Mr Tierney. The underlying case involved a claim in nuisance against Luna Park Sydney Pty Ltd (the lessee and operator of the famous Luna Park on Sydney Harbour beside the Sydney Harbour Bridge) and Metro Edgely Pty Ltd (a 50% shareholder of Luna Park Sydney Pty Ltd) by nearby residents due to the noise coming from Luna Park during its operations. Mr Hearne was the managing director and chief executive officer of Luna Park Sydney Pty Ltd and Mr Tierney was a director of Multiplex Ltd, the ultimate holding company of Metro Edgely Pty Ltd.

86. The residents had filed affidavits in support of their case, which had not become evidence in the proceedings, but found their way into a newspaper article. The defendants gave an unreserved apology for the release of the affidavits and an express undertaking not to release any unread affidavits to the media or any other person not properly connected to the proceedings. The court then made orders for further discovery and experts’ reports, pursuant to which a noise impact assessment report and an affidavit sworn by one of the plaintiffs were filed and served in the proceedings on behalf of the plaintiffs. Mr Hearne sent an email to the office of the Minister for Tourism, Sport and Recreation which attached an excerpt from each of the affidavit and the acoustic expert’s report. The plaintiffs then brought the contempt proceedings against Mr Hearne and Mr Tierney.

87. The primary judge, Gzell J of this court, dismissed the contempt charges on the basis that Messrs Hearne and Tierney had not given any undertaking to the court and neither had any knowledge of the implied undertaking given by Luna Park Sydney Pty Ltd and its solicitors. The Court of Appeal of this court held that the implied undertaking given by Luna Park Sydney Pty Ltd and Metro Edgely Pty Ltd was imposed by law and binding on Messrs Hearne and Tierney, even though they did not know of it, which they breached because they knew that the proceedings were pending and that documents had been produced in accordance with the processes of the court.

88. There are three important points to keep in mind when considering the judgments of the High Court in Hearne.

1. The expert report and affidavit which were the subject of the contempt proceedings were filed in accordance with ordinary timetabling orders of the court.

2. It was not in contest between the parties, and was accepted by the High Court, that the expert report and affidavit were subject to the implied undertaking not to use affidavits or witness statements served by another party otherwise than for the purpose of the proceedings in which they were prepared. Applying the principle stated in Coleman and CSR as expressed above, because the correctness of the application of the implied undertaking to the expert report and affidavit was assumed without argument, it is not binding on later courts even though it forms part of the ratio decidendi in Hearne.

3. Neither the expert report nor the affidavit had been tendered or read in the proceedings.

89. In Hearne, Hayne, Heydon and Crennan JJ delivered the principal judgment. On the issue of the implied undertaking, both Gleeson CJ (at [3]) and Kirby J (at [57]) explicitly agreed with the reasons expressed by Hayne, Heydon and Crennan JJ.

90. At [3] Gleeson CJ agreed with Hayne, Heydon and Crennan JJ that the implied undertaking is now better understood as a substantive legal obligation. Describing the basis for the obligation, Gleeson CJ at [5] said:

Compulsory pre-trial exchange or disclosure of materials, such as witness statements and experts’ reports, is now extensive. The rationale sometimes given for the obligation concerning discovery of documents (it is the condition upon which a court compels disclosure of private documents) may not always be applicable to witness statements or experts’ reports. There may be little or nothing about them that is private. This, in turn, is connected with the scope of the potential liability of strangers to the litigation into whose hands such materials may come. …

91. Hayne, Heydon and Crennan JJ commence their reasons at [61] with the expression of the central issue, being:

Where a corporate litigant is bound by an “implied undertaking” not to use affidavits or witness statements served by another party on it otherwise than for the purpose of the proceedings in which they were prepared, in what circumstances can servants and agents of the litigant who use the affidavits or witness statements in that way be liable for contempt of court? One issue in this appeal is whether either or both of the appellants was bound by such an implied undertaking.

92. There was no analysis whether or not the implied undertaking even applied to the expert report and affidavit at issue in Hearne. This is explicable because the parties did not put that issue in contest. There was also no controversy over the applicable legal principles. Those principles and the lack of controversy about them are expressed by Hayne, Heydon and Crennan JJ at [95]–[97] as follows (footnotes omitted):

[95]   Before turning to the appellants' submissions in relation to the extent and enforceability of the “implied undertaking”, it is desirable to set out some background legal principles which were not in controversy.

[96]   Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.

[97]   It is common to speak of the relevant obligation as flowing from an "implied undertaking".

93. Although I have removed the footnotes in the quoted passages above, it is necessary to consider a number of the cases which are referenced in those footnotes to give greater insight into the basis for the statements which are made.

94. Before turning to that consideration, it is noteworthy that the joint judgment in Hearne at [105]–[108] also traced the history of the implied undertaking up until Harman to establish it as being regarded as a substantive obligation, commencing with it depending upon an express undertaking, then moving to it being variously described in different cases as a rule, an implied undertaking, a condition and an implied obligation or duty. Hayne, Heydon and Crennan said at [106]–[107] (footnotes and excerpt omitted):

[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”.

…

[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.” …

95. The footnote references from which the rationale for the implied undertaking in [107] are drawn are the statements made by Lord Denning in Riddick and Lord Keith in Harman. In summary, the rationale is the outcome of the balancing of the serious invasion of the private rights in the privacy and confidentiality of the documents and information compelled to be disclosed with the public interest in securing justice.

96. On the subject of those who are subject to the implied obligation, the joint judgment in Hearne held at [109]–[112] that the primary person bound is the litigant who receives the documents or information from the other side pursuant to the litigious process, as are others to whom documents and information are given such as expert witnesses, litigation funders and those with knowledge of the origins of the material in legal proceedings.

97. I will now turn to consider the authorities on which the principle of the implied obligation expressed by Hayne, Heydon and Crennan JJ in Hearne at [96] are based.

Compulsion – Bourns and the Bourns appeal

98. The principal passage in the judgment is [96], the opening sentence of which conditions the rest of the paragraph with the concept that the party to the litigation must be “compelled” to disclose documents or information in one or more of three ways — (1) a rule of court; (2) a specific order of the court; (3) otherwise.

99. The footnote which appears after the word “otherwise” at [96] refers to Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 916 [19]; affirmed in [1999] 3 All ER 154 at 169–170 (Bourns appeal).

100. Bourns involved a party who had disclosed documents on a previous taxation seeking to restrain the party to whom they were disclosed from using them for a collateral purpose. In Bourns at first instance, Laddie J found that the implied undertaking applied to the documents produced during the taxation, even though it was not a disclosure compelled by order or rule of the court. In Bourns, Laddie J at [19] said:

There is no doubt that the disclosure of documents for the purpose of a taxation is not a process of discovery. As Hobhouse J pointed out in Pamplin v Express Newspapers Ltd [1985] 2 All ER 185 at 190, [1985] 1 WLR 689 at 696 the taxing master does not have power to order discovery to be given. The documents only need to be supplied to him. He cannot force the payee to pass them on to the payer. But the reason for this should be borne in mind. In taxations, most of the documents produced by the payee are ones to which privilege will attach. It is because, as a generality, the documents, and particularly the most important ones, are likely to be highly confidential, that they are not automatically passed on to the payer. Therefore an obligation to give general discovery subject to the right to withhold privileged material would be an exercise of limited value. In fact, in most cases, as Hobhouse J pointed out in Pamplin's case, taxation takes place without any of the payee's internal documents being considered by the payer. But taxation inter partes arising out of civil litigation is essentially adversarial. One party is claiming money from another and the taxing master must, if requested, hold a hearing and decide issues of fact. He can call for evidence and has the power to examine witnesses. The documents produced by the payee are kept out of the fray because of their highly sensitive nature. But when called upon by the payer to hand them over, and that request is indorsed by the master, the payee must elect between complying with the request or withdrawing reliance on them. In effect, the master makes the payee an offer he cannot refuse. In my view, to say that compliance with the request is voluntary in those circumstances is misconceived. On the same hypothesis, it could be said that discovery given by a plaintiff in an action is voluntary since he could always avoid the necessity for doing so by abandoning his claims. In my view, any payee attempting to enforce an order for costs in his favour by embarking on a taxation is compelled to produce his documents to the taxing master and, where the payer demands a view of them, is effectively compelled to produce to him as well. Although the handover is not automatic, it is, no less, a compulsory disclosure of private documents for the purpose of the taxation. All the considerations which make it appropriate to imply an undertaking not to make collateral use of discovery documents apply equally strongly to collateral use of documents produced on taxation. To adopt the language of the Prudential case, by virtue of the circumstances under which the payer obtains the documents in the course of taxation, a legal obligation is imposed on him by operation of law not to make collateral use of them.

101. In the same footnote, Hayne, Heydon and Crennan JJ also refer to the Bourns appeal judgment at 169–170, which upheld Laddie J’s finding that the implied undertaking applied to the documents provided in the taxation. In the Bourns appeal, Aldous LJ (with whom Swinton Thomas LJ and Sir Stephen Brown P agreed) at 169–170 said:

Raychem submitted that the implied undertaking only applied in circumstances where a party was compelled to produce a document as stated by Hobhouse J in the Prudential Assurance [Co Ltd v Fountain Page Ltd] [1991] 3 All ER 878 at 890, [1991] 1 WLR 756 at 769:

‘From these authorities it is clear that there is no blanket restriction on the use of documents and information acquired in the course of litigation. Prima facie there is no restriction. The compulsion exception is confined to documents and information which a party is compelled, without any choice, to disclose. Where a party has a right to choose the extent to which he will adduce evidence or deploy other material, then there is no compulsion even though a consequence of such choice is that he will have to disclose material to other parties. On the authority of the Comfort Hotels case and Derby v Weldon (No 9) ([1990] Times, 9 November), witness statements and experts’ reports served pursuant to the provisions of Ord 38 or directions given thereunder are not served under compulsion and are not protected by the duties or undertakings which the court implies where there is compulsion.’ (Hobhouse J's emphasis.)

Raychem went on to submit that as Bourns was not compelled to produce the documents no implied undertaking resulted.

The statement of Hobhouse J in the Prudential Assurance case that I have quoted must be read in context. In that case it was contended that the implied undertaking applied to witness statements and experts’ reports. In the passage quoted the judge was distinguishing between the witness statements which a party was not bound to disclose and documents that he was under a duty to disclose. He did not have in mind the procedure in taxation proceedings where, as I have already pointed out, a party who proceeds with taxation is under a duty to provide the taxing master with documents relevant to the claim which are likely to include privileged documents. There is no automatic discovery, but, as pointed out in Pamplin's case, natural justice requires that the payer should have disclosed to him the documents relied on in the proceedings. It is on that basis that the Court of Appeal decided that privilege was only waived for the purposes of taxation if the documents were disclosed to the payer by the taxing master or pursuant to his order.

If the taxing master had ordered the documents to be disclosed to Raychem then there could be no doubt that the disclosure would have been subject to the implied undertaking. True, there was no such order, but the disclosure was made in circumstances where the documents were requested, they were directly relevant to an issue and natural justice meant that an order for production was necessary. In the circumstances it would be right for the court to imply an undertaking even though Bourns disclosed the documents without an order being made. In my judgment where a party to taxation discloses to a payer documents for the purpose of the taxation which are relevant to an issue and therefore should in the interests of justice be disclosed, an implied undertaking arises so that the documents can only be used for the purposes of those proceedings. That happened in this case: therefore the documents were disclosed subject to that undertaking.

102. It is curious that the Bourns appeal, the very case which the joint judgment in Hearne expressly references in support of the notion that the compulsion need not be sourced in a court order or rule, refers to Prudential Assurance in which Hobhouse J found that witness statements and experts’ reports served pursuant to a direction in accordance with the court rules are not served under compulsion.

Witness statements and affidavits

103. The second sentence of [96] in the judgment of Hayne, Heydon and Crennan JJ in Hearne contains a non-exhaustive list of what are described as “[t]he types of material disclosed to which this principle applies”. Clearly this means that the “types of material disclosed” which might be caught by the implied undertaking are not closed.

104. The last two items in that inclusive list are expressed as “witness statements served pursuant to a judicial direction and affidavits”. Each of those items are separately footnoted in the judgment.

105. The three cases that are footnoted in support of “witness statements served pursuant to a judicial direction” as part of the inclusive list in Hearne at [96] are Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510– 511, Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 at 223; [1992] FCA 720 and State Bank of South Australia v Smoothdale (No 2) Ltd (1997) 64 SASR 224 at 229.

106. The two cases which are footnoted in support of “affidavits” as part of the inclusive list in Hearne at [96] are Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] All ER 1261 (the defendant party misspelt as “Doublock” in the footnote) and Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156.

107. I will consider each of these decisions in turn.

Central Queensland Cement

108. Central Queensland Cement is a judgment of McPherson J of the Supreme Court of Queensland on the plaintiff’s application for an interlocutory injunction to prevent the use of a witness statement provided by the plaintiff to the defendant pursuant to a practice direction made by the court requiring the service of signed witness statements in advance of the trial. After the service of the witness statement, reports appeared in the press and other media from which McPherson J drew the inference that the authors of those reports had seen the witness statement or at least part of it and that they obtained it from the defendant.

109. It is notable that this is a judgment on an application for an interlocutory injunction and the reasons are very briefly expressed, barely occupying more than two pages in the authorised report.

110. At 510 McPherson J described the basis for the interlocutory injunction in the following way:

[The plaintiff] founds its claim on the analogy with the use of a document produced on discovery in an action. As to such a document, it is well settled that a party who inspects a document so discovered and produced does so under an implied undertaking or obligation that he will not use it for a collateral or ulterior purpose: see Nicol v. Brisbane City Council [1969] Qd.R. 371, 377; Harman v. Home Office [1983] 1 A.C. 280, at 304, and authorities there cited.

111. The defendant argued that the implied undertaking only applied to discovered documents and should not be applied to witness statements. In holding that the interlocutory injunction should be granted, McPherson J rejected this argument at 510–511, saying:

However, the underlying principle is in my view plain enough. It is that a document furnished for use for one purpose may not legitimately be used for another. That is, I conceive, what was meant by Lucas J. when, in Nicol v. Brisbane City Council, he spoke of not using the document for any “collateral or ulterior purpose”. I take that to mean any purpose collateral or ulterior to the purpose which the document or its production or delivery is intended to serve. In this case there can be no doubt that that purpose is the proper conduct of the litigation.

I am therefore in no doubt that the undertaking applies equally to the witness statement by Mr Town as it would to any other document produced by one side to the other for the purpose of litigation. Indeed, one can very well see how it would apply with equal force to the answer or answers to interrogatories delivered in an action, that being a form of compulsory disclosure commonly resorted to in proceedings in this Court. I cannot see any distinction in nature or substance between such an answer and the present witness statement of Mr Town. At one time, of course, the practice in equity was such that the answers to interrogatories were the only form of evidence used in those proceedings. One has only to look at the Practice Direction and use the experience that all of us have in trying actions in the commercial causes jurisdiction to realise that these procedures are available and are intended for use only for the purpose of properly conducting the litigation, and for no other.

Once that conclusion is reached the rest follows as a matter of course. A document of this kind, delivered as it was for a particular purpose, may not be used for another purpose. That is an aspect of a general principle not confined to documents delivered for the purpose of litigation. …

112. It is noteworthy that whilst Central Queensland Cement (on which the joint judgment in Hearne relied) held that the implied undertaking applied to a witness statement served pursuant to a court rule, the width of the principle expressed in that case (“a document furnished for use for one purpose may not legitimately be used for another”) does not find anything like that formulation in the principle stated in the joint judgment at [96] in Hearne.

Springfield Nominees

113. Springfield Nominees is a decision of Wilcox J of the Federal Court of Australia. It also involved a witness statement served pursuant to a direction of the court that witnesses’ statements be exchanged before trial. In that case the proceedings settled before the witness statement was tendered as an exhibit in open court. An application was then made by a company that was not a party to those proceedings, seeking leave to use the witness statement in other proceedings.

114. Wilcox J referred to the cases cited in argument, including Harman and Central Queensland Cement (the latter reference being to the second paragraph, “I am therefore in no doubt … for no other”, quoted above), and said at 223:

I respectfully agree with McPherson J. In addition to the points made by his Honour I add that a witness statement fulfills a function very similar to that of an affidavit or an admission of facts. In this court there is a rule (O 46, r 6) limiting the documents on court files which may be inspected without leave of the court or a judge. They include affidavits, interrogatories and answers to interrogatories, lists of documents given on discovery and admissions. All are documents brought into existence for the purpose of the instant litigation which may contain confidential or personal information and which may, or may not, ultimately be read in open court. There is every reason for subjecting their use to the same constraints. Conformably with Central Queensland Cement and the position of both the present parties, I hold that the statement of Mr Preston may not be used by Hongkong Bank in its defence to the Aetna proceeding without his consent or leave of the court.

115. The important points arising from Springfield Nominees are that Wilcox J considered a witness statement to be functionally similar to an affidavit and there existed a court rule which prevented access to the court file without leave, that file containing documents brought into existence for the proceedings which should be treated the same. Yet the parties did not put in contest the issue of whether or not that the implied undertaking applied to the witness statement. They both agreed that it did. So, as in Hearne itself, there is a limit on the value of Springfield Nominees as a decision providing a principled basis for determining that question.

116. Further, as in the case of Central Queensland Cement, the fact that a witness statement provided pursuant to a court direction was the subject of the implied undertaking was relied upon by Hayne, Heydon and Crennan JJ in Hearne at [96], yet the expansive notion that a document provided for one purpose cannot be used for another is not embraced in the principle which their Honours express. Nor does any aspect of that principle depend on what documents can and cannot be accessed on the court file.

Smoothdale

117. Smoothdale is a judgment of the Full Court of the Supreme Court of South Australia on the application of the appellant for an order that the respondent produce seven witness statements which had been brought into existence in proceedings in this court involving the respondent. The respondent had provided those witness statements to the other party in this court in accordance with an order made by this court pursuant to a Practice Note which required the delivery of a witness statement containing the evidence proposed to be led from each witness.

118. When called upon to provide the witness statements to the appellant, the respondent claimed legal professional privilege in relation to the witness statements. The appellant conceded before the primary judge that the witness statements were privileged but contended that the delivery of the witness statements to the other party in the proceedings in this court was a waiver of the privilege. The primary judge held that there had been no waiver. The question the court had to decide was whether the documents were protected from production on the basis of that privilege.

119. The Full Court (King CJ, with whom Mullighan and Nyland JJ agreed) held that there was no waiver, express or implied, in the provision of the witness statements. In the course of doing so, King CJ at 229 said:

There is an obligation on the recipients of documents pursuant to the discovery process not to disclose those documents or their contents for a collateral purpose: Harman v Secretary of State for the Home Department [1983] 1 AC 280; Crest Homes plc v Marks [1987] AC 829 at 853; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576. That obligation extends to the recipient of documents pursuant to an order of the court of the present kind; Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (at 691). The documents therefore could not be disclosed for a collateral purpose and could not be put in evidence by the other parties without leave of the court.

120. As stated above, although the Full Court in Liberty Funding at [24] expressed that there was a real issue in relation to the correctness of the decision in Smoothdale, that doubt was said to be limited to the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial.

121. The Full Court in Smoothdale relied on the decision in Springfield Nominees to express that a recipient of a witness statement given pursuant to an order of the court is subject to the implied undertaking. That question does not appear to have been the subject of contest in Smoothdale. As I have already observed, that question was also not debated by the parties in Springfield Nominees, nor was it debated in Hearne.

Medway

122. In Medway the plaintiff had been involved in earlier proceedings brought by his former wife in the Family Division to vary a maintenance agreement in which he was ordered to swear affidavits of his means. The plaintiff also controlled a company which later brought proceedings in the Queen’s Bench Division and applied for summary judgment. The defendant in those proceedings sought a stay of the proceedings pending the plaintiff’s company providing security for costs, supporting the stay application with an affidavit which exhibited the plaintiff’s affidavits of means from the earlier proceedings, which had been obtained from the wife’s solicitor. The plaintiff then made an application to restrain the defendant from disclosing or making use of his affidavits.

123. In Medway, Goulding J decided that the disclosure and use of the affidavits compelled to be produced by process of law should be restrained. At 713 Goulding J referred to the passage from Lord Denning MR’s judgment in Riddick at 896 quoted above regarding the competing public interests, and then said at 713–714:

… It is perfectly true that the language of implied undertaking has been used in the authorities discussing the principle I have already mentioned, but as I understand the before cited statements made by Talbot J [in Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd ([1975] 1 All ER 41 at 48, [1975] QB 613 at 621] and in the Court of Appeal [in Riddick v Thames Board Mills Ltd ([1977] 3 All ER 677 at 687, [1977] QBD 881 at 896] it rests on a wider ground, namely, that public interest requires that a party, compelled by process of law to make what may be damaging disclosures for the purpose of a particular suit, should not thereby be at risk of their use for other purposes. It is a strong thing, though necessary for matrimonial litigation, to make a man disclose all the details of his means. It seems to me that many husbands, and in these days perhaps many wives, would find it difficult to be frank with the court if adversaries in business, for example, could freely obtain and use the disclosures made in matrimonial litigation. …

…

In all matters of this sort it appears to me that there is a balance of public interest to be considered. I take as an example what was said by Lord Diplock in a recent decision of the House of Lords in D. v. National Society for the Prevention of Cruelty to Children [1977] 2 W.L.R. 201, 207:

“The fact that information has been communicated by one person to another in confidence, however, is not of itself a sufficient ground for protecting from disclosure in a court of law the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433, 434. The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law.”

To my mind, in the present case it is necessary to weigh against one another not two competing interests, public or private, but two applications of the same public interest in different sets of proceedings. It is what Lord Diplock described in the passage I have just read as the general public interest that in the administration of justice truth will out. Clearly that interest, if I am right, requires that disclosure of means made by parties under compulsion of the court or the rules in matrimonial proceedings should be treated as confidential. The obedience of those engaged in matrimonial suits to the requirements of the law is thereby much encouraged. But the same public interest of the full disclosure of information in litigation may be said to require a court — in this case the Queen's Bench Division — when considering whether a plaintiff company should provide security for costs, to have before it the fullest information of the company's circumstances. The competition between those two applications of the one principle does not seem to me at all difficult to resolve. Matrimonial proceedings are of great public importance as involving the status of the parties and the future provision to be made for one or both, often for their whole lives. On the other hand, the giving of security for costs, although of course important to a defendant, is a relatively minor matter of litigation habitually dealt with by masters on comparatively slight evidence on either side and not normally the subject of lengthy investigations or full discovery. It seems to me therefore that if I am right in my understanding of the court's duty on the present application, the plaintiff's argument ought to prevail and the defendants should be restrained from making use of the copy affidavits which they have obtained.

242. As I have said, the crucial question that I discern from the principle in Hearne is whether the documents or information were compelled to be disclosed. There are countless ways in which documents or information are provided in legal proceedings. In some circumstances it will be obvious that a disclosure has been compelled by a rule of court, order of the court or otherwise, as stated in Hearne. In other cases, it will not be.

243. The defendants argue that the Relevant Affidavits cannot be regarded as voluntary because they were served in their capacity as executors in support of an application for probate and an equitable claim that would benefit the estate, which they were duty and legally bound to pursue. They rely on the decision in Bourns, referenced in Hearne, by analogy. But Bourns does not support the defendants’ argument in my view, particularly when consideration is had to the Bourns appeal, which was also referenced in Hearne.

244. Bourns and the Bourns appeal both concern the question of whether a party is under a duty to disclose documents in a taxation, which is a court process. The finding in Bourns was that there was a compulsory disclosure of private documents for the purposes of the taxation. In other words, the duty arose from the court process which provided the circumstances in which the documents were disclosed, not some wider duty such a fiduciary duty, an executor’s duty or a duty arising from some other source.

245. I do not think that the question of compulsion in the principle expressed in Hearne is answered simply by considering whether a party is duty or legally bound to undertake a particular step by virtue of some responsibility, position or office that they hold. Otherwise the principle will default into an investigation of why the proceedings were brought or defended, which is no part of the principle expressed in Hearne. In my view, the compulsion expressed in Hearne must arise from the court process in the legal proceedings themselves or, to put it another way as stated in Frigger at [64], “an intrusion by the court into the rights of a party not to disclose private documents which is essential to the obligation”.

246. I consider that in the context of an affidavit made in court proceedings, “compelled” must have its natural meaning of being forced or required to undertake the course of action, being disclosure of the affidavit, in a manner which involves an invasion of the privacy and confidentiality of the contents of that affidavit. It is to be contrasted with a voluntary disclosure of the affidavit. It is not germane to that inquiry whether a party is vindicating rights or defending them. The imposition of the implied obligation in legal proceedings does not arise from the designation of a party as either a plaintiff or a defendant but turns on the circumstances in which the disclosure has been made.

247. A party who is required by an ordinary timetabling order of the court to provide any affidavits on which they intend to rely at the hearing is not compelled to provide them. The party in those circumstances has a choice whether to provide a particular affidavit and what the contents of that affidavit should be. Doing so is not a “very serious invasion of privacy and confidentiality” of the party’s affairs in the sense described in Riddick and Harman, as applied by Hearne, as the rationale for the implied obligation.

248. I agree with the observations made in Woods at [21]–[22] that the focus of the inquiry in Hearne is on whether the specific documents or information were compelled to be disclosed, not on whether the application to which they relate was compelled. In that regard and with respect, I depart from what was said in Silverstein at [85], [86] and [90] which focussed on whether there was any compulsion to bring the applications to which the affidavits related. In my view, that is not the relevant inquiry.

249. In my opinion, it is clear that:

1. the Relevant Affidavits were each provided voluntarily in accordance with the ordinary timetabling orders of the court made on 14 September 2021 for the filing and serving of evidence in the Probate Proceedings and the Equity Proceedings;

2. the Relevant Affidavits were not compelled by the court to be provided in those proceedings; and

3. the possession of the Relevant Affidavits by Marie and Mr Lacey as her solicitor in the Probate Proceedings and the Equity Proceedings is therefore not subject to the implied obligation.

251. It follows that the plaintiffs are also not subject to the implied obligation with respect to the Relevant Affidavits, nor is Mr Lacey as their solicitor in these proceedings.

ISSUE 2: LEAVE TO USE THE RELEVANT AFFIDAVITS

252. In case I am wrong in my conclusion on Issue 1 that the implied obligation does not apply to the Relevant Affidavits, I will now consider whether leave should be granted to the plaintiffs to use the Relevant Affidavits in these proceedings.

Legal principles

253. The parties were in agreement as to the legal principles I should apply in deciding whether to grant leave to release a party from the implied obligation.

254. Those principles derive from what was said in Crest Homes Plc v Marks [1987] AC 829, by Lord Oliver at 860:

… the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery. …

255. The notion of “special circumstances” in this test was then considered by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354, who said at 578–579:

… As far as the expression “special circumstances” is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? “Special” is one of those words which derive almost all their meaning from the context. … If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceedings should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15 (2), by which leave to file an appeal out of time could be granted “for special reasons”. The joint judgement described (at 195) the expression “special reasons” in this rule as:

“an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period with which an appeal must be filed and served.”

Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the action in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import. I do not know on what footing one would say that a particular circumstance amongst these relatively rare circumstances would be “special” and another not. I do not think his Lordship intended to fetter the court’s discretion in this way. I think he was using the words “special circumstances” to express the same idea which is expressed in the rule discussed in Jess v Scott (supra) by the words “for special reasons”…

256. Having analysed what was said in Crest Homes and Holpitt, the principles applied by the court in deciding whether to release the implied undertaking were then classically stated by Wilcox J in Springfield Nominees at 225 as follows:

… For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

257. This expression has been repeatedly approved and applied by courts dealing with the question since, specifically by the Full Court of the Federal Court in Liberty Funding, Branson, Sundberg and Allsop JJ saying at [31]:

In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. 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. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

•   the nature of the document;

•   the circumstances under which the document came into existence;

•   the attitude of the author of the document and any prejudice the author may sustain;

•   whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

•   the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);

•   the circumstances in which the document came in to the hands of the applicant; and

•   most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

Plaintiffs’ submissions

258. The plaintiffs submitted that “special circumstances” exist in the present case to support a finding that leave to should be granted to enable the plaintiffs to use the Relevant Affidavits in the present proceedings. They relied on the following factors:

1. The Relevant Affidavits were voluntarily produced with the obvious intention of being read in open court, circumstances said in Helicopter Aerial by Brereton J at [42] to be “highly relevant” to an application for leave to use documents subject to the implied obligation.

2. It is not apparent that the Relevant Affidavits contain personal data or commercially sensitive information. It is not suggested by the defendants that any particular harm will befall them if the Relevant Affidavits are used as intended by the plaintiffs. The Wilton affidavit and the Blais affidavit set out their dealings with Denis and include information about the financial affairs of Denis but in circumstances where Denis is now deceased, it is not apparent that this information has any ongoing sensitivity. The Brent affidavit sets out details about the business affairs of Denis but it only states the structure of those businesses and the business ventures which Denis discussed with Mr Brent. The Brent affidavit does not provide detailed information about the business affairs of Denis. There is no suggestion that anything stated in the Relevant Affidavits is inaccurate or wrong.

3. The Relevant Affidavits became available through their voluntary disclosure by Gregory and Keith to Marie, who has given her consent for them to be given to the plaintiffs. There is no impropriety on the part of the plaintiffs which would justify withholding leave.

4. Mr Brent, the deponent of the Brent affidavit, has been served with a letter setting out the plaintiffs’ position with respect to the Brent affidavit as well as a copy of the plaintiffs’ application for leave. Mr Brent has indicated to the defendants’ solicitors that he does not intend to obtain his own legal representation but objects to the use of the Brent affidavit, without articulating any basis for his objection.

5. Each of the Relevant Affidavits contain material which is relevant to the present proceedings. The dispute in the present proceedings turns on alleged oral representations regarding the plaintiffs’ interest in the East Maitland Property pursuant to an option agreement alleged to have been made orally and in writing at various times. The defendants either do not admit or deny these oral representations. The plaintiffs should be permitted to compare the defendants’ evidence in the present proceedings with the contents of the Relevant Affidavits and conduct a cross-examination on particular topics by reference to it, including any inconsistencies or silence as to the oral representations. Importantly, the Relevant Affidavits each contain material that is consistent with the plaintiffs’ case:

1. The contents of the Blais affidavit are consistent with Gregory having discussions with the plaintiffs concerning the East Maitland Property, consistent with the project for the development of the East Maitland Property continuing into 2020 (after the date on which the option was to expire), the conferral of authority by Denis upon Gregory to deal with the East Maitland Property and the development of it, and contain a more detailed version of a conversation which is referred to in the Earlier Blais affidavit which was read in open court in the Probate Proceedings.

2. The contents of the Wilton affidavit are consistent with Keith having knowledge of the redevelopment of the East Maitland Property and the location of the documents relating to it.

3. The contents of the Brent affidavit are consistent with there being discussions until 2020 concerning the sale of the East Maitland Property.

6. Mr Lacey has received and read the Relevant Affidavits and has knowledge of the information contained in them because he acted for Marie in the Probate Proceedings and the Equity Proceedings. When the defendants file their affidavits in these proceedings, Mr Lacey will have to assess for himself the extent to which there is complete consistency or not between those affidavits and the Relevant Affidavits. He is in an invidious and unusual position because he already has the knowledge of the contents of the Relevant Affidavits and cannot put them out of his mind while acting for the plaintiffs in these proceedings.

Defendants’ submissions

259. The defendants contest that there are any “special circumstances” which would justify a grant of leave in favour of the plaintiffs’ use of the Relevant Affidavits.

260. The defendants said that the Wilton affidavit and the Blais affidavit were not voluntarily produced. They submitted that they were duty and legally bound to pursue the application for probate in the Probate Proceedings and the equitable claim benefitting the Estate against Marie in the Equity Proceedings.

261. The defendants submitted that it is a neutral factor that the Relevant Affidavits were served with a view to use in the final hearing, as the implied obligation attaches to affidavits before they are read or documents tendered.

262. The defendants also contended that the implied obligation should not be released as the Relevant Affidavits traverse highly sensitive information to the family of Denis, including Denis’ financial interests, health issues, family conflict and dying wishes. They say that none of the sensitivity of this information has disappeared with the death of Denis and the executors and beneficiaries of the Estate have a strong interest in not having to relive this unfortunate and sad chapter of their lives.

263. The defendants argued that Marie has no authority to give consent to the plaintiffs to use the Relevant Affidavits because she is bound by the implied obligation and, in any event, her consent is immaterial as the defendants can publish their affidavits without her approval because it is their own information.

264. The defendants said that there is a risk, if the Relevant Affidavits are made public, they could potentially be used on social media in a defamatory manner.

265. The defendants referred to the fact that Keith, Gregory and Mr Brent (who is a non-party) do not consent to the use of their respective Relevant Affidavits in these proceedings. The defendants highlighted that:

1. It is not clear how the Relevant Affidavits are relevant to these proceedings.

2. The Relevant Affidavits were prepared for the specific purpose of, and contain only content directed to, the issues in the Probate Proceedings;

3. The Probate Proceedings were hard fought and upsetting, and settled to preserve confidentiality, bring closure and avoid a public hearing. Using the Relevant Affidavits in these proceedings would be distressing to the defendants. The privacy considerations which underpin the implied obligation generally have considerable force.

4. None of the plaintiffs were parties to the Probate Proceedings and only have knowledge about the existence of the Relevant Affidavits because their solicitors happened to have acted for Marie in them.

266. The defendants submitted that any relevance of the Relevant Affidavits to the present proceedings is unclear or limited, as:

1. The material contained in the Relevant Affidavits does not relate to whether there were oral variations of the option agreement.

2. There is no dispute that there was a commercial arrangement between Denis and HG InvestCorp which was discussed at various times. The Relevant Affidavits are consistent with the existence of this arrangement and the discussions, which takes the issue no further. The Relevant Affidavits do not support any of the pleaded material allegations contained in the statement of claim in these proceedings, such as the oral extension of the Call Option Deed.

3. The issue about the conferral of authority by Denis upon Gregory to deal with the East Maitland Property and the development of it is contained in the Earlier Blais affidavit which is not the subject of an implied obligation, so it is unnecessary for the plaintiffs to use the Blais affidavit to make that point.

4. The alleged relevant part of the Wilton affidavit does not refer in any way to the sale of the East Maitland Property which is the subject of these proceedings.

5. The Brent affidavit has the most general reference to there being discussions about a number of topics over a decade.

6. The defendants in these proceedings have not yet put on any evidence, so is not possible to assess, at this premature stage, whether the Relevant Affidavits might be relevant in the sense contemplated by s 43 of the Evidence Act 1995 (NSW) concerning prior inconsistent statements.

267. The defendants accepted that Mr Lacey is in a difficult position as the solicitor for the plaintiffs who has knowledge of the contents of the Relevant Affidavits, but asserted that this it is not a reason to grant leave to release the implied obligation because it is the position in which Mr Lacey has put himself.

Plaintiffs’ submissions in reply

268. The plaintiffs submitted that it is obvious from the contents of the Relevant Affidavits that they have nothing to do with the application for probate but are all about the dispute between Keith and Gregory as executors and Marie. The plaintiffs said that the attempt by the defendants to justify compulsion on the basis that the Relevant Affidavits were required to obtain probate and probate was something they were duty bound to obtain is not supported.

269. The plaintiffs pointed out that the defendants made no submission dealing with the threshold issue of whether an affidavit served in these proceedings is or is not consistent with what is set out in the Relevant Affidavits. The plaintiffs argued that the only way in which that exercise can be performed is by taking the Relevant Affidavits and comparing them to what might be served and this comparison can only be undertaken if leave to use the Relevant Affidavits is granted. It is this use for which leave is sought.

270. The plaintiffs contested the notion that the application for leave is premature. They submitted that the defendants’ suggestion seemed to be that the plaintiffs should wait and see what they serve as evidence in these proceedings, but doing so would not solve the existing problem because the threshold issue that will immediately arise as soon as anything is served is — to what extent is it consistent or not? The plaintiffs said that is a legitimate circumstance which would warrant a release from the implied obligation, citing Helicopter Aerial at [48] where Brereton J said although it was not possible to say at that stage of the proceedings whether any of the documents would be highly important to the defence in that case, “they touch on some aspects of it and deal with some matters relevant to them, and at least have the potential to assist in the preparation of his defence”. According to the plaintiffs I should be satisfied that there ought to be a release of the implied obligation because there is the potential for the Relevant Affidavits to assist at a subsequent stage in the proceedings.

271. The plaintiffs dealt with the asserted sensitivity of the material in the Relevant Affidavits by submitting that any use of the Relevant Affidavits would only be in these proceedings and not for any other purpose. The plaintiffs acknowledged that they could not use the contents otherwise.

272. The plaintiffs submitted that the Relevant Affidavits have the potential to be quite important if the defendants’ evidence in these proceedings does not describe any of the conversations in detail, as inferences may be drawn based upon statements in the Relevant Affidavits. Using the example of the Brent affidavit, the plaintiffs said that Mr Brent has admitted that during the decade to 2020 (a critical period in the plaintiffs’ case), he was discussing various matters with Denis that included the options. The plaintiffs submitted that if Mr Brent does not say anything about what was said in those discussions or denied them in an affidavit in these proceedings, then it may well be that inferences can be drawn about that fact.

Consideration

273. I will address each of the factors relevant to the exercise of my discretion whether I would grant leave to the plaintiffs to use the Relevant Affidavits for the purposes of these proceedings.

The nature of the document

274. Each of the Relevant Affidavits is clearly a solemn document on which each deponent (Keith, Gregory and Mr Brent) has made an oath or affirmation (as the case may be) before a person authorised to administer that oath or affirmation stating that the contents of it are true.

275. This factor is against the grant of leave to use the Relevant Affidavits for the purposes of these proceedings, although of slight weight.

The circumstances under which the document came into existence

276. Each of the Relevant Affidavits was made for the purpose of standing as the evidence of the deponent who made it at the hearing of the Probate Proceedings and the Equity Proceedings. As I have found above in relation to Issue 1, each of the Relevant Affidavits was voluntarily made.

277. This is a neutral factor in the exercise of my discretion.

The attitude of the author of the document and any prejudice the author may sustain

278. Each of Keith, Gregory and Mr Brent do not consent to the use of the Relevant Affidavits for the purposes of these proceedings but none of them had pointed to any particular prejudice that would arise for them from that use or articulated any real basis for their objection.

279. On balance, this is a neutral factor in the exercise of my discretion.

Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain

280. The Relevant Affidavits were created for the purposes of the Probate Proceedings and the Equity Proceedings and would be expected by each of the deponents to have been read in open court at the hearing of those proceedings. Once read in open court, the Relevant Affidavits would not be subject to the implied obligation, as the terms of the principle expressed at [96] in Hearne make clear.

281. This factor favours the grant of leave to use the Relevant Affidavits for the purposes of these proceedings.

The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information)

282. Although the Relevant Affidavits deal with events leading up to and after the death of Denis which may be the subject of distress to his family and friends (including Keith, Gregory and Mr Brent), there is no particular personal data or commercially sensitive information about the financial affairs of Denis contained within them which the defendants say will cause any particular harm or prejudice.

283. The fact is that the events of any personal sensitivity which are the subject of the Relevant Affidavits are the same events which are the subject of these proceedings. Those events are going to be scrutinised in these proceedings.

284. The plaintiffs only sought leave to use the Relevant Affidavits for the purposes of these proceedings and therefore I do not consider that the granting of leave to enable them to do so would cause any more harm or distress than the fact of these proceedings already does.

285. On balance, this is a neutral factor in the exercise of my discretion.

The circumstances in which the document came in to the hands of the applicant

286. The Relevant Affidavits came into the hands of the solicitor for the plaintiffs in these proceedings, Mr Lacey, when he was acting as the solicitor for Marie in the Probate Proceedings and the Equity Proceedings. Mr Lacey has the Relevant Affidavits with the consent of Marie. There is no impropriety of any sort alleged in relation to the manner in which they were received.

287. This is a neutral factor in the exercise of my discretion.

Most importantly of all, the likely contribution of the document to achieving justice in the other proceeding

288. In my view, if the implied obligation existed in relation to the Relevant Affidavits, unless leave was granted the plaintiffs would not be permitted to use the Relevant Affidavits in any way, even for the purposes of conducting a comparison of their contents with any affidavits which are filed and served by the defendants in these proceedings. I am satisfied that the contents of the Relevant Affidavits may have some relevance to the events which are in issue in these proceedings, particularly:

1. the issue of whether Gregory was authorised to make decisions with respect to the East Maitland Property, which the defendants deny; and

2. the issue of whether from around 21 December 2019 Gregory was Denis’ agent with respect to the sale of the East Maitland Property, which the defendants do not admit.

289. Further, because the plaintiffs’ case in these proceedings significantly depends on allegations of oral representations, the contents of the Relevant Affidavits may become relevant to the consistency of evidence about those conversations in subsequent affidavits made by the defendants in these proceedings.

290. In my view, to paraphrase what was said in Helicopter Aerial at [48], I am satisfied that the contents of the Relevant Affidavits touch on some aspects of the plaintiffs’ case, deal with some matters relevant to it and have the potential to assist in the preparation of it.

291. I reject the defendants’ submission that this application is premature and the plaintiffs should wait to see what evidence is filed and served by the defendants in these proceedings and then make the application. In my view, the application has been made at an appropriate time so that the plaintiffs can know whether they can take into account the contents of the Relevant Affidavits when they consider the contents of any future evidence. Waiting to receive the defendants’ evidence in these proceedings or, worse still, until one or more of the deponents of the Relevant Affidavits give oral evidence at the trial before making this application would run straight into the strictures of the implied obligation not to use the Relevant Affidavits for any purpose other than the Probate Proceedings and the Equity Proceedings.

292. The defendants were not able to satisfactorily explain how the implied obligation in relation to the Relevant Affidavits (assuming it applied) could be navigated once the evidence of the defendants in these proceedings was received by the plaintiffs.

293. I consider that achieving justice in these proceedings requires that the plaintiffs be permitted to use the Relevant Affidavits for the purposes of these proceedings.

294. In my view this is a factor which heavily weighs in favour of the grant of leave to use the Relevant Affidavits for the purposes of these proceedings.

Conclusion

295. If, contrary to the conclusion I have reached in relation to Issue 1 above, I had been required to decide whether to grant leave to the plaintiffs and their legal representatives to use the Relevant Affidavits for the purposes of these proceedings, for the reasons stated above I would have done so.

ORDERS

296. For the reasons stated above, I propose to make the following orders:

1. Declaration that each of the following documents is not the subject of an obligation not to use them for any purpose other than that for which they were given in Supreme Court of New South Wales proceedings numbered 2020/00349038 and 2021/00199953:

1. Affidavit of Gregory Scott Blais sworn 1 October 2021;

2. Affidavit of Keith James Wilton affirmed 1 October 2021; and

3. Affidavit of Noel Ashley Brent sworn 24 September 2021.

2. The defendants are to pay the costs of the plaintiffs of the application.

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Decision last updated: 25 July 2024