Porter v Australian Broadcasting Corporation (No 2)

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FEDERAL COURT OF AUSTRALIA

Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036

File number(s): NSD 206 of 2021
Judgment of: JAGOT J
Date of judgment: 31 August 2021
Catchwords: PRACTICE AND PROCEDURE – interlocutory hearing – intervening party – access given to documents for limited purpose – Hearne v Street obligation applies – declaration made.
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 21-23, 37AI

Federal Court Rules 2011 (Cth) r 2.32(2)
Cases cited: Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419
eisa Limited v Damien Brady [2000] NSWSC 929
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104
King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Limited (Discovery) [2019] FCA 1408
Porter v Australian Broadcasting Corporation [2021] FCA 863
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226
Division:  General Division
Registry:  New South Wales
National Practice Area:  Other Federal Jurisdiction
Number of paragraphs: 40
Date of hearing:          18 August 2021
Counsel for the Applicant:  Mr B Dean
Solicitor for the Applicant: Company Giles Pty Ltd
Counsel for the Respondents:  The Respondents did not appear
Counsel for the Intervening Parties: Ms L Alick
Solicitor for the Intervening Parties: Thomson Geer

ORDERS

NSD 206 of 2021
BETWEEN:

CHARLES CHRISTIAN PORTER

Applicant

AND:

AUSTRALIAN BROADCASTING CORPORATION

First Respondent

LOUISE MILLIGAN

Second Respondent

ORDER MADE BY:

JAGOT J

DATE OF ORDER:

31 AUGUST 2021

THE COURT DECLARES THAT:

1.Subject to any grant of leave by the Court to the contrary, each of Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd and their legal representatives may not use Schedules 1, 2 and 3 of the defence dated 4 May 2021 and paragraphs 2(ll) to (pp) and 8 of the reply dated 4 May 2021 provided by the applicant to them by email on 17 May 2021 other than for the purpose of being heard in respect of the making of a further or final suppression order or non-publication order in respect of the interim suppressed information as referred to in order 3 of the orders of the Court made on 10 May 2021.

THE COURT ORDERS THAT:

2.Leave be granted to the applicant nunc pro tunc to file and serve the interlocutory application filed on 13 August 2021.

3.Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd pay the applicant’s costs of the interlocutory application filed on 13 August 2021 as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

JAGOT J:

Background

  1. On 30 July 2021 I ordered that the unredacted defence and unredacted reply be removed from the Court file and granted the applicant leave to file a notice of discontinuance within seven days on the basis that there be no order as to costs. These orders were…

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Details
Case
[2021] FCA 1036
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Porter, the Australian Broadcasting Corporation, and three intervening parties: Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd, and the Age Company Pty Ltd. The dispute centred around the removal of unredacted documents from the Court's file and the application of the Hearne v Street obligation to the intervening parties, who had received copies of the unredacted documents. The Federal Court of Australia was tasked with determining whether the intervening parties were bound by the Hearne v Street obligation, which restricts the use of disclosed documents without court permission.

The primary legal issue the court had to address was whether the Hearne v Street obligation applied to the intervening parties, given that they had received copies of unredacted documents from the applicant. The court also had to decide if the obligation applied to pleadings and if so, whether it extended to the intervening parties. Furthermore, the court considered whether it should grant a declaration that the Hearne v Street obligation applied to the intervening parties, or alternatively, a permanent suppression and non-publication order.

The court concluded that the Hearne v Street obligation applied to the intervening parties, despite the fact that the unredacted documents were pleadings and the obligation does not explicitly mention pleadings. The court noted that the obligation was not limited to the types of documents listed in Hearne v Street and could apply to pleadings under certain circumstances. The court also found that the obligation applied to the intervening parties because the documents had never been in the public domain and remained confidential. The court granted the applicant's request for a declaration that the Hearne v Street obligation applied to the intervening parties and their lawyers, as well as leave to amend the interlocutory application to seek a permanent suppression and non-publication order, in the alternative.

The court made several orders to ensure the proper handling of the interlocutory application and the documents in question. The unredacted defence and reply were removed from the Court's file, and the applicant was granted leave to file a notice of discontinuance without costs. The applicant was also granted leave to amend the interlocutory application to seek a declaration and, in the alternative, a permanent suppression and non-publication order. The intervening parties were ordered to pay the applicant's costs of the interlocutory application as agreed or taxed.

Orders

Orders of the court

2. Leave be granted to the applicant nunc pro tunc to file and serve the interlocutory application filed on 13 August 2021.

3. Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd pay the applicant’s costs of the interlocutory application filed on 13 August 2021 as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons below the declaration should be made, subject to amendment of the terms to reflect the Hearne v Street obligation.Facts The defence and reply were filed on 4 May 2021. On 5 May 2021 Mr Porter filed an interlocutory application seeking orders including for suppression and non-disclosure of the schedules to the defence. The respondents then sought suppression of the paragraphs of the reply responsive to the impugned parts of the defence. At the case management hearing on 7 May 2021 Mr Sibtain of counsel appeared for the intervening parties. Mr Sibtain explained that he appeared in relation to Mr Porter’s application for removal of the unredacted documents from the Court’s file and any other application for non-publication of the unredacted documents. He also opposed the making of any interim suppression and non-publication order under s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Court Act), (as did the respondents), but I made such an order to preserve the status quo pending the hearing and determination of Mr Porter’s interlocutory application. The making of other orders to ensure that the interlocutory application could be made ready for hearing was deferred to enable discussions between the parties about the terms of those orders. Mr Sibtain and I then had this exchange:MR SIBTAIN: - - - Because it could – would your Honour include in any orders and directions that any documents referable to these applications be also served on my instructors?HER HONOUR: Yes. Yes. That’s fine. Yes.MR SIBTAIN: Thank you, your Honour.HER HONOUR: Well, as I say, these need to be put down in formal orders, and probably they do in order to – rather than me actually sitting here making them, I would ask the parties - - -…to just include all these things in the orders. The parties indicated that they would agree the terms of the orders to be made. The applicant’s solicitor then emailed proposed orders to my Chambers on 10 May 2021 reflecting the outcome of the case management hearing. I made orders in Chambers on the basis of those proposed orders. The orders included an interim suppression and non-publication order which bound the intervening parties as if they were a party to the proceeding. Order 3 said:The intervening parties are each bound by order 1 [the interim suppression and non-publication order] as if the word “party” in that order means “party or intervening parties” and the words “conduct of the proceeding” mean “intervening parties being heard in respect of the making of a further or final suppression order or non publication order in respect of the interim suppressed information”. The orders also provided for the intervening parties to be served with any affidavits and submissions in support of the interlocutory application and permitted the intervening parties to file and serve any affidavits and submissions in answer. The interlocutory application was fixed for hearing on 1 and 2 June 2021. The orders did not provide for the applicant or respondents separately to serve a copy of the unredacted documents on the intervening parties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 30 July 2021 I ordered that the unredacted defence and unredacted reply be removed from the Court file and granted the applicant leave to file a notice of discontinuance within seven days on the basis that there be no order as to costs. These orders were consequential on my reasons for judgment in Porter v Australian Broadcasting Corporation [2021] FCA 863 (the principal judgment). Terms defined in the principal judgment have the same meaning in these reasons for judgment. In the principal judgment at [42]-[45] I queried the assumption apparently underlying the applicant’s application for removal of the documents from the Court’s file, that the intervening parties (being Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd) would be prevented from using the copies of the unredacted documents they held by reason of the operation of the principle in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, referring to Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226, Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 at [35], Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 and eisa Limited v Damien Brady [2000] NSWSC 929 at [21]. The Hearne v Street obligation is expressed as follows at [96] of that judgment: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 [Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55], witness statements served pursuant to a judicial direction and affidavits. As I had not raised these issues during oral argument, I also stayed the order I made vacating the interim suppression and non-publication orders. I anticipated that Mr Porter may wish to apply for a permanent suppression and non-publication order given the uncertainty in the cases about the application of the principle in Hearne v Street to pleadings. Mr Porter’s lawyers sought confirmation from the intervening parties that they accepted the Hearne v Street obligation applied to the copies of the unredacted documents they held. The intervening parties refused to provide the confirmation sought. Mr Porter then filed an interlocutory application on 13 August 2021 for a declaration to the effect that the intervening parties and their lawyers are bound by the obligation. In response to a question during the hearing of the interlocutory application Mr Porter made an application for leave to amend the interlocutory application by seeking, in the alternative to the declaration, a permanent suppression and non-disclosure order binding the intervening parties. The intervening parties did not object to the amendment of the interlocutory application, but opposed the making of the declaration or any permanent suppression and non-disclosure order. I granted Mr Porter leave to orally amend the interlocutory application to seek the alternative orders.

Ratio Decidendi

Legal Principle Established

In the oral hearing the intervening parties opposed the making of any declaration to the effect that the Hearne v Street obligation applied to the copies of the unredacted documents with which they had been provided by the applicants on 17 May 2021 and the making of any permanent suppression and non-publication order against them in respect of those documents.Consideration Hearne v Street at [96] does not refer to a pleading as one of the kinds of documents the subject of the obligation. This, however, is immaterial. The kinds of documents identified in [96] of Hearne v Street do not purport to be exhaustive. In Treasury Wine Estates the Full Court concluded that: (a) the obligation ceased to apply on receipt of the document into evidence, because by that means (and subject to any contrary order) the document would have entered the public domain and lost any quality of confidentiality, (b) in a case where no order restricting access to a pleading is made on filing, the obligation cannot apply to a pleading in the Federal Court given the terms of r 2.32(2) of the Federal Court Rules 2011 (Cth) (which permits public inspection of pleadings without leave). In contrast to Treasury Wine Estates, in the present case orders restricting access to the unredacted documents were made on the filing of those documents. The unredacted documents have never been in the public domain as a result. In eisa at [21] Santow J considered that the obligation applied to pleadings. In Helicopter at [35] Brereton J concluded to the contrary without referring to eisa. In Payce Henry J considered eisa and Helicopter and, in obiter dicta, preferred the view of Brereton J in Helicopter. Her Honour’s reasons included that: (a) parties file pleadings voluntarily, (b) the purpose of the obligation is to protect the privacy of the person disclosing (under compulsion) the relevant document and thereby encourage full and frank disclosure during litigation, (c) pleadings communicate the nature of the parties claim and defence, and are the basis on which proceedings are conducted in open court from the start of the court process, and are not read into evidence, and (d) access to pleading with leave of the Supreme Court is able to be obtained (different from the circumstances which applied when eisa was decided). Importantly, in Payce, the person who had made use of the pleading in other proceedings was the party upon whom the pleading had been served. Justice Henry considered this to be a distinguishing factor compared to cases in which a non-party was seeking access to a document, such as in eisa. I consider that the present case may be resolved without entering the debate about whether the Hearne v Street obligation applies to a pleading either at all or in the hands of a party. The reason for this is that the status of the unredacted documents as pleadings does not matter on the facts in the present case insofar as those documents are in the hands of the intervening parties. Nor does it matter for that purpose that the respondents prepared and filed the unredacted defence.