Ultra Tune Australia Pty Ltd v Cole, Jennifer (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2021 00208

BETWEEN:

ULTRA TUNE AUSTRALIA PTY LTD (ACN 065 214 708) & ANOR (according to the attached Schedule)	Plaintiffs
v
JENNIFER COLE & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2023
DATE OF JUDGMENT:	29 November 2023
CASE MAY BE CITED AS:	Ultra Tune Australia Pty Ltd v Cole, Jennifer & Anor (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 700

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PRACTICE AND PROCEDURE – Application to strike out the second further amended statement of claim pursuant to rr 23.01 and/or 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) – Whether new pleading is properly pleaded and particularised – Plaintiffs permitted to rely upon the second further amended statement of claim with some qualifications and conditions – Uber Australia Pty Ltd v Adrianakis (2020) 61 VR 580 referred to and applied.

PRACTICE AND PROCEDURE – Application to strike out pleading for failing to disclose a cause of action – Whether the defendants may be liable for breach of statutory duty for breaches of s 11 of the Surveillance Devices Act 1999 (Vic) – Whether Parliament could be held to have intended to create a cause of action akin to a tort of breach of privacy – Held that such an intention could not be inferred – Claim for breach of statutory duty struck out.

PRACTICE AND PROCEDURE – Application to strike out pleading for failing to disclose a cause of action – Claim that first defendant engaged in unconscionable conduct by recording and disseminating private conversations – No stand-alone cause of action of unconscionable conduct outside s 21 of the Australian Consumer Law – No infringement of any legal or equitable right apart from the entitlement to keep confidential information confidential infringed – No transaction sought to be impugned – Claim for unconscionable conduct struck out.

PRACTICE AND PROCEDURE – Application to discharge the injunction restraining the first defendant from disseminating any recording made by the first defendant of any private conversation with the second plaintiff – First defendant having previously breached the injunction – Party having the benefit of the injunction has caused delay in the conduct of the proceeding – Whether information sought to be protected is in the public domain – Question of whether recording is in the public domain complex – Not satisfied that the maintenance of the injunction has no utility – Balance of convenience otherwise favours the maintenance of the injunction - Application refused.

PRACTICE AND PROCEDURE – Discovery - Application that the defendants disclose any copies of a recording of a private conversation – Civil Procedure Act 2010 (Vic), s 26 – Reliance on the privilege against self-incrimination to resist disclosure of recordings - Application refused.

PRACTICE AND PROCEDURE - Application for stay of a costs order – Whether the Court has jurisdiction to stay a costs order of another court – Supreme Court Act 1986 (Vic), s 30 - Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr C Kenny KC with Ms A Mobrici of counsel	Albert W Chong
For the First Defendant	Mr D Baker, solicitor	Baker Jones
For the Second Defendant	Mr S Palmer of counsel with Mr L Molesworth of counsel	Boris Pogoriller

HER HONOUR:

Introduction and background

These reasons concern a number of outstanding interlocutory applications in a long running proceeding between the plaintiffs, Ultra Tune Australia Pty Ltd (‘Ultra Tune’) and Ultra Tune’s shareholder, director, and CEO, Mr Sean Buckley, and the defendants, Ms Jennifer Cole and Mr Anthony Swords.

The factual background to, and the pleadings and issues in this proceeding were canvassed in some detail in reasons I published on 6 December 20220F[1] (‘first reasons’). The first reasons commenced as follows:

This proceeding was commenced on 2 February 2021, when the plaintiffs, Ultra Tune Australia Pty Ltd (‘Ultra Tune’) and its chief executive officer (‘CEO’) and sole shareholder, Mr Sean Buckley, brought an urgent application to restrain the defendants, Ms Jennifer Cole and Mr Anthony Swords, from disseminating a recording made of a private conversation between Mr Buckley and Ms Cole in a room at the Crown Metropol Hotel in Southbank in January 2020 (‘recording’). Mr Buckley and Ms Cole were in an intimate relationship until 18 December 2020, and they have a young daughter together. As well as being the owner and CEO of Ultra Tune, a car service and repair business with approximately 260 franchisees Australia wide (‘franchisees’), Mr Buckley also has commercial interests in the horse racing and adult entertainment industries. Mr Swords was a friend of Mr Buckley’s and an employee with Ultra Tune’s racing subsidiary until he and Mr Buckley had a falling out in December 2020.
It is not necessary for present purposes to go into too much detail about the contents of the recording, save to say that the provision of the recording to Victoria Police, various media organisations, and various business and personal associates of Mr Buckley has understandably caused Mr Buckley embarrassment and distress. Certain statements made by Mr Buckley during the course of the recording, and events which are said by Ms Cole to have taken place during the making of the recording have given rise to a number of criminal charges against him. On 19 October 2021, Victoria Police laid charges of, among other things, assault, stalking, making threats to kill, installation of a hidden camera, and breach of an intervention order. Three of the 12 charges laid against Mr Buckley arise directly from the contents of the recording. The laying of the criminal charges against Mr Buckley has caused, and will continue to cause delays in the progress of this proceeding, as discussed further later in these reasons.
The plaintiffs’ summons of 2 February 2021 was originally returnable before John Dixon J on 4 February 2021, when an interim injunction was granted restraining the defendants from publishing and/or disseminating any recording made by Ms Cole of any private conversations between Ms Cole and Mr Buckley between 1 September 2019 and 18 December 2020, including, but not limited to the recording (‘injunctions’). On 19 February 2021 orders were made extending the injunctions until the trial of the proceeding, or further order.
The injunctions were not limited to the recording, but included any recording of any other private conversation between Mr Buckley and Ms Cole (‘other recordings’), as there was (disputed) evidence from Mr Buckley to the effect that Ms Cole told him that she had recorded other conversations between them, and had threatened to disseminate the other recordings. Similar allegations (which are also disputed) were made with respect to threats said to have been made by Mr Swords.1F[2]

[1]Ultra Tune Australia Pty Ltd v Cole (No 2) [2022] VSC 720.

[2]Ibid [1]-[4].

Following the making of an interim injunction by John Dixon J on 4 February 2021 (‘injunction’),[3] the progress of the proceeding has been delayed by various matters, including, among other things, disputes between the parties about the various iterations of the plaintiffs’ statement of claim, an application by the plaintiffs to have Ms Cole punished for contempt for further disseminating the recording made at the Crown Towers hotel in January 2020 (‘recording’) in March 2021 (‘contempt proceeding’),2F[4] and the filing of criminal charges against Mr Buckley and the partial stay of this proceeding pending their resolution.[5]
[3]Extended until trial or further order on 19 February 2021.
[4]See Ultra Tune Pty Ltd & Anor v Cole & Anor [2021] VSC 634.
[5]Mr Buckley was committed to stand trial in the County Court in November 2023. However, some time after the hearing of the applications which are the subject of these reasons, the proceeding was transferred to the Magistrates’ Court, and will be heard in November 2024.

Following the delivery of the first reasons, I made orders:

(a) striking out part of the further amended statement of claim then on foot;

(b) further adjourning an application by Mr Swords for summary judgment; and

(c) dismissing an application by the plaintiffs for what is commonly known as a Norwich order, whereby the plaintiffs sought to compel the defendants to, among other things, provide early discovery and go on oath in relation to their possession and dissemination of the recording and other recordings (‘early disclosure application’).

I provided the plaintiffs leave to replead to address, among other things, the following problems I had identified with the further amended statement of claim:

(a) the failure of the plaintiffs to identify with any precision the confidential information they seek to protect, and the facts, matters and circumstances relied upon by the plaintiffs to establish that the defendants owed the plaintiffs (or either of them) a duty to keep certain information confidential;

(b) the failure of the plaintiffs to plead the material facts necessary to establish other causes of action pleaded in the further amended statement of claim; and

(c) the failure of the plaintiffs to plead any or sufficient particulars of loss and damage, and their failure to provide particulars of any recognised psychiatric or psychological injury said to have been suffered by Mr Buckley as a result of Ms Cole’s conduct.

The timetable set down following the delivery of the first reasons was re-set on a number of occasions following further delays caused by, among other things, the progress of Mr Buckley’s criminal proceeding, his ill-health, and a change of legal representation by the plaintiffs. The latter led the plaintiffs to abandon the further amended statement of claim, and to file an entirely new statement of claim (‘new pleading’). While the new pleading relies largely on the same facts as the further amended statement of claim, the new pleading brings forward some new causes of action based upon those facts. I accept that the engagement of the plaintiffs’ new legal team was the impetus for the sweeping changes in the way in which the plaintiffs have put their case in the new pleading.

The current applications

The following matters were the subject of submissions and argument at the hearing on 24 August 2023:

(a) the defendants’ opposition to the filing and service of the new pleading;[6]
[6]Given that following the first reasons, I made an order granting the plaintiffs leave to file a second further amended statement of claim, then arguably the defendants should have filed a summons seeking to strike out the new pleading. However, I will treat the current dispute as a continuation of the hearing of the strike out application made by Mr Swords on 31 May 2021.

(b) Ms Cole’s application that the injunction be discharged;

(c) Mr Swords’ application for summary judgment;

(d) the plaintiffs’ application that the defendants disclose any copies of the recording and/or the other recordings to the plaintiffs pursuant to s 26 of the Civil Procedure Act 2010 (Vic) (‘CPA’) (‘s 26 application’);

(e) Mr Swords’ application for a stay of orders made by the Costs Court on 20 September 20223F[7] (‘costs order’) pending an application that the amounts payable by Mr Swords pursuant to the costs order be set off against any costs payable by the plaintiffs to him as a consequence of the orders made following the first reasons and the filing of the new pleading (‘stay application’);[8] and

(f) the renewal by the plaintiffs of the application that the proceeding be stayed pending the hearing and determination of Mr Buckley’s criminal proceeding.

[7]The costs order was made by consent, and provided that Mr Swords would pay Ultra Thoroughbred Racing Pty Ltd and Clarson Holdings Pty Ltd (‘County Court plaintiffs’) the sum of $25,000. The County Court plaintiffs brought a proceeding against Mr Swords for the recovery of a Range Rover used by Mr Swords in his employment. On 18 August 2021 Judge Macnamara of the County Court made consent orders providing for the delivery up of the vehicle and the payment of the County Court plaintiffs’ costs on a standard basis, to be taxed in default of agreement.

[8]Throughout the course of this proceeding, I have reserved the parties’ costs of almost all, if not all of the occasions upon which I have had the parties before me. However, I anticipate that after I make orders with respect to the current applications which are the subject of these reasons, the defendants, and possibly the plaintiffs as well, may make applications with respect to part or all of the costs of the proceeding to date.

I will briefly summarise the issues and submissions in relation to each of the applications before me in the following paragraphs of these reasons.

In relation to the new pleading, the defendants say that the plaintiffs should not be permitted to rely upon the new pleading. They say that the leave granted to the plaintiffs was limited to allowing them to address the deficiencies in the further amended statement of claim (see paragraph 5 above), not to permit them to advance an entirely new case. Further, in any event, the new pleading fails to plead viable causes of action, and impermissibly seeks to maintain allegations found by me in the first reasons to have been unmaintainable. Further, the particulars of loss and damage provided in the new pleading are inadequate.

In response, the plaintiffs say that no conditions were imposed upon the grant of leave to replead, and in any event, the authorities provide that, where a pleading is struck out and leave is granted to replead, the party required to replead may do so in any manner they choose. Further, the plaintiffs say that the new pleading addresses all of the deficiencies identified in the first reasons, and, while the new pleading introduces new causes of action, those causes of action are based upon the same set of facts relied upon in the further amended statement of claim, and are properly pleaded and particularised.

While the focus of the parties at the hearing was the new pleading, I understand Mr Swords continues to press his summary judgment application.

In relation to Ms Cole’s application to discharge the injunction, Ms Cole submitted that she has now been subjected to the injunction for more than two and a half years, while the proceeding has not got past the pleading stage. Further, Ms Cole has been frank in her disclosures to the Court regarding the dissemination of the recording in the course of the contempt proceeding, and there is no basis for concluding there is a risk that she will further disseminate the recording and the other recordings. In response, the plaintiffs say that there is no basis for discharging the injunction, given Ms Cole’s past breaches of the injunction, the evidence of threats made by her in the past to disseminate the other recordings, and the absence of any real prejudice to Ms Cole by reason of the injunction remaining in place.

In relation to the s 26 application, the plaintiffs, while acknowledging the failure of the early disclosure application, say that the documents sought by them are clearly critical documents which should be disclosed as soon as possible.

In response, the defendants say that the plaintiffs should not be permitted to relitigate the early disclosure application, and that s 26 does not require disclosure of documents that are otherwise not discoverable.

As for the stay application, Mr Swords submits that the costs order should be stayed pending the determination of the question of costs of the applications concerning the various versions of the plaintiffs’ statement of claim. Mr Buckley is the director and shareholder of both of the County Court plaintiffs as well as Ultra Tune, and the financial position of those parties would not be affected by non-payment of the costs order. Mr Swords, on the other hand, is dependent upon WorkCover benefits for income, and, while no costs order has been made in his favour in this proceeding to date, it should be readily apparent that such an order will be made, given the success of Mr Swords’ strike out application to date, and the plaintiffs’ abandonment of the further amended statement of claim. Mr Swords submitted that the refusal of the plaintiffs in the County Court proceeding to agree to a stay reflects the true purpose of this proceeding, being to deploy the plaintiffs’ superior financial position to financially crush the defendants.

In response, the plaintiffs say that this Court does not have the power to stay the costs order, as the costs order is founded upon an order of the County Court, not this Court, and the County Court plaintiffs are not parties to this proceeding. Further, even if this Court did have the power to stay the costs order, there are no exceptional circumstances which would justify granting the stay application.

The plaintiffs’ renewed application to stay the proceeding pending the hearing and determination of Mr Buckley’s criminal trial was only signalled in their proposed form of order, and as such was not the subject of any detailed submissions during the course of the hearing of the applications.

My conclusions in relation to each of the applications is as follows:

(a) the plaintiffs will be permitted to rely upon the new pleading, with some qualifications and conditions;

(b) the further hearing of the summary judgment application will be deferred until after the parties and the Court have had an opportunity to consider the further conduct of this proceeding;

(c) Ms Cole’s application to discharge the injunction will be refused;

(d) the s 26 application will be refused;

(e) the stay application will be refused; and

(f) the further conduct of the proceeding, including the plaintiffs’ renewed stay application, will be considered at a directions hearing in the forthcoming weeks, having regard to, among other things, Mr Buckley’s pending criminal proceeding.

My reasons follow.

The further amended statement of claim and the new pleading compared

The further amended statement of claim alleged that there was a relationship of trust and confidence between Mr Buckley and Ms Cole, and that she breached her duty of confidence by disseminating the recording and the other recordings. Further, she contravened s 11 of the Surveillance Devices Act 1999 (Vic) (‘SDA’), and her conduct was done with malicious and wilful intent to harm the business reputation or earning capacity of the plaintiffs, and constituted an unlawful interference with the contractual relationships of Ultra Tune. She also breached her duty to avoid inflicting mental harm, anxiety, stress, humiliation, embarrassment and/or other mental distress upon Mr Buckley, and breached the fiduciary duty owed by her to Ultra Tune arising from her retainer by Ultra Tune to provide promotional services for Ultra Tune (‘Ambassador retainer’).

The further amended statement of claim alleged that Mr Swords owed the plaintiffs an obligation of confidence by reason of his employment with Ultra Tune’s subsidiary (one of the County Court plaintiffs), and his prior close friendship with Mr Buckley. The plaintiffs alleged that his dissemination of the recording and the other recordings contravened s 11 of the SDA, and breached that obligation of confidence.

The further amended statement of claim then went on to make allegations against Mr Swords largely in the same terms as the allegations made against Ms Cole, save that there was no allegation against Mr Swords to the effect that he was under the duty to avoid inflicting emotional harm upon Mr Buckley, and no allegation that Mr Swords owed the plaintiffs or either of them a fiduciary duty.

In the first reasons, I found that those parts of the further amended statement of claim which made allegations with respect to the other recordings should be struck out, on the basis that there was no factual foundation for the allegations made with respect to the other recordings, as the confidential information they contained was not identified or particularised. I also found that the plaintiffs needed to identify the confidential information in the recording with far greater precision, and that any failure on the part of the plaintiffs to do so would expose the plaintiffs to the risk of a further strike out or summary judgment application.

Also in the first reasons, I accepted that the terms of s 11 of the SDA did not impose any civil liability upon the defendants, although I accepted that any breaches of that provision might be relevant to the question of whether the plaintiffs were entitled to permanent injunctive relief. I also agreed that the pleading of the allegations underpinning the torts of inducing breach of contract, interference with contractual relations and intimidation was deficient, and struck out the relevant paragraphs of the further amended statement of claim. I also observed that in order to pursue a claim with respect to the alleged intentional infliction of emotional harm, Mr Buckley would need to establish that he suffered from a recognised psychiatric or psychological condition, which had not been pleaded in the further amended statement of claim.

Finally, I expressed some reservations regarding the question of whether Ultra Tune had any viable cause of action against the defendants or either of them, but decided to reserve my position on that issue until after the delivery of a further pleading. Similarly, to the extent that the defendants’ criticisms of the further amended statement of claim were connected with what was described as the ‘iniquity issue’,[9] (discussed further at paragraphs 108 to 110 of these reasons), I deferred any evaluation of those criticisms until after the partial stay of the proceeding is lifted.
[9]An ‘iniquity’ was described in the Australian Football League v The Age Company Ltd (2006) 15 VR 419 [63] as ‘a crime, civil wrong or serious misdeed of public importance’, referring to the statement of Gummow J in Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 454-6.

As previously observed, the new pleading relies upon substantially the same facts as the previous versions of the pleading, but abandoned a number of causes of action put forward in the further amended statement of claim, and introduced some new causes of action. It provides more precise particulars of what is said by the plaintiffs to be confidential information, and introduces the concept of ‘prejudicial information’. While the plaintiffs maintain that all of the information in the recording is confidential information, and some of that information is prejudicial information, it pleads an alternative claim of breach of confidence based upon a more narrow sub-set of what is said to be the confidential information of Ultra Tune. The dissemination of what is said to be prejudicial information underpins the economic torts pleaded by the plaintiffs.

Further particulars (although not detailed particulars) were provided of the loss and damage said to have been caused by the defendants’ conduct, and particulars were provided of the psychiatric or psychological injury said to have been suffered by Mr Buckley.

The new causes of action introduced by the new pleading are as follows:

(a) the tort of conspiracy by unlawful means, whereby Ms Cole and Mr Swords agreed and/or conspired to cause injury to Mr Buckley’s reputation and mental health, and the reputation and business of Ultra Tune, by disseminating the recording contrary to s 11(1) of the SDA, and by blackmailing Mr Buckley;

(b) the tort of interference with business by unlawful means, whereby it was alleged that Mr Swords disseminated the recording to media outlets in contravention of s 11 of the SDA with the intention to cause harm to Ultra Tune’s reputation and goodwill; and

(c) that Ms Cole had engaged in unconscionable conduct by making and disseminating the recording and the other recordings.

Despite the findings in and orders made as a consequence of the first reasons, in the new pleading, the plaintiffs continue to press their claims with respect to the other recordings, and press a claim for breach of statutory duty founded upon the defendants’ alleged breaches of s 11 of the SDA.

The new pleading also alleges that Mr Swords also wrongfully and intentionally inflicted mental harm upon Mr Buckley, and provided further details regarding the claim against Ms Cole based upon her alleged breach of the fiduciary duty owed by her to Ultra Tune.

The causes of action referred to in the further amended statement of claim which have been abandoned in the new pleading are the torts of inducing breach of contract, interference with contractual relationships, and intimidation. Further, the new pleading does not allege that any obligation of confidence on Mr Swords’ part arose out of any particular relationship between him and Mr Buckley and/or Ultra Tune, but rather, the obligation arose by reason of him being the recipient of confidential information, being the contents of the recording, in circumstances where he knew or should have known the information was private and confidential.

A useful brief summary of the relevant principles governing strike-out applications is to be found in the following extract of the plaintiffs’ written submissions:

(a)The power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried.
(b)Similarly, the power to strike out a pleading should only be exercised when there is some substantial objection to the pleading complained of or some real embarrassment is shown.
(c)Where claims relate to contentious or debatable points of law, particularly where the answer depends on the factual context, it is usually inappropriate for the court to determine such issues on a strike-out application.
(d)The defendant's right to be apprised of the nature of the plaintiffs' case must be accommodated to the nature of the case itself, including where the plaintiff's claims rely on the drawing of inferences.
(e)In certain circumstances, the defendant's discovery may enable the plaintiff to fill any gaps in its statement of claim which are beyond its knowledge.

The plaintiffs referred to the decision of the Court of Appeal in Uber Australia Pty Ltd v Adrianakis (‘Uber’),[10] where the Court said, in relation to an attack upon the pleading of a claim for conspiracy by unlawful means:

Uber’s contentions on ground 1 fail to grapple with the high hurdle it must cross, and the low bar confronting the plaintiff. When a defendant contends that a statement of claim should be struck out because it does not disclose a cause of action it is necessary for a defendant in the position of Uber to establish that it would be futile to allow the statement of claim to go forward, because it raises a claim that has no real prospect of success in the sense of being ‘fanciful’. It follows that, where there is a contentious or debatable point of law which arises on a pleading, it is usually inappropriate for a trial judge or the Court of Appeal to determine the issue on a strike-out application, particularly where the answer may depend upon the factual context.[11]

[10](2020) 61 VR 580 (‘Uber’).

[11]Ibid [35].

The plaintiffs responded to many of the defendants’ criticisms of the new pleading by making the overarching submission that the new pleading complied with the requirements for pleadings, as follows (omitting citations):

•Pleadings need not contain the evidence by which the facts are to be proved; pleadings must state only the material facts, being facts relied on to establish the essential elements of the cause of action.
•Provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action and appraising the parties of the case that has to be met, the court ought be reluctant to allow the time and resources of the parties and the limited resources of the court to be spent extensively debating the application of technical pleadings rules.
•Only where the criticisms of a pleading significantly impact upon the proper preparation of the case and its presentation at trial should those criticisms be seriously entertained.
•Facts alleged in a pleading are the facts which the party needs to establish at trial in order to get judgment. The party must plead the facts even though at the time of pleading he may not know whether he can prove them. Not knowing whether a fact underlying the claim or defence of the party pleading can be proved is not a reason for not alleging the fact; alleging the fact is necessary if the party is to be allowed to attempt to prove the fact at trial.
•Pleadings are not to be regarded as a positive allegation of the truth of what they contain, but only as a statement of the case of the party pleading, to be admitted or denied by the other party, and if denied to be proved to the satisfaction of the court. The function of a statement of claim or other pleading containing allegations of fact is not evidentiary; it does not constitute a representation or warranty of the objective accuracy of the facts.

Prior to turning to the question of whether the new pleading (or which parts of the new pleading) should be allowed to stand, I will make some overarching observations.

First, I accept that the orders made following the delivery of the first reasons did not impose any conditions or limitations with respect to the filing and service of the new pleading. It would have been open to me to limit the scope of the grant of leave to amend to addressing the deficiencies in the further amended statement of claim identified in the first reasons, but I did not do so. Accordingly, the plaintiffs had liberty to replead as they saw fit, although of course the shifting nature of their case may ultimately be relevant to the question of costs.

Secondly, I agree with the submissions made on behalf of the plaintiffs to the effect that many of the criticisms levelled by the defendants at the new pleading concern factual matters which can only be resolved at trial. I appreciate the frustration felt by the defendants by reason of the plaintiffs continuing to press what the defendants say are unmeritorious allegations in support of obscure causes of action, but that is not a sound basis for acceding to a strike out application. If the new pleading pleads material facts which properly support a viable cause of action, and otherwise complies with the rules of pleading, then the new pleading should be permitted to proceed.

That said, if it is clear from the evidence before the Court that the facts pleaded in the new pleading cannot possibly support a cause of action which has any real prospects of success, or the pleading is clearly bad in law, then there is no utility in permitting that part of the new pleading to proceed.[12]
[12]ABL Nominees Pty Ltd v Mackenzie (No 2) [2014] VSC 529 [18].

In determining whether to allow the new pleading to stand, it is necessary to consider the following issues:

(a) whether the confidential information identified in the new pleading is capable of being characterised as confidential information which may be capable of being protected by injunctive relief;

(b) whether the new pleading properly pleads the basis for the alleged duty of confidentiality said to be owed by Mr Swords to Ultra Tune and Mr Buckley;

(c) whether the plaintiffs should be permitted to continue to bring claims with respect to the other recordings;

(d) whether the claim for breach of statutory duty based upon s 11 of the SDA is a tenable claim;

(e) whether the claim that the defendants engaged in a conspiracy by unlawful means is a tenable claim and is properly pleaded;

(f) whether Mr Buckley’s claim for damages for psychiatric injury is a tenable claim;

(g) whether the claim that Ms Cole breached the fiduciary duty owed by her to Ultra Tune pursuant to the Ambassador retainer is a tenable claim;

(h) whether the claim that Ms Cole has engaged in unconscionable conduct is a tenable claim;

(i) whether the particulars of loss and damage provided in the new pleading are adequate; and

(j) whether the permanent injunctive relief sought by the plaintiffs with respect to the recording is available to the plaintiffs.

My conclusions with respect to each of the issues identified above are, in summary, as follows:

(a) the confidential information identified in the particulars to paragraph 44 of the new pleading is not capable of being confidential information, and accordingly, that paragraph should be struck out. However, while I accept that the defendants have legitimate criticisms of the plaintiffs’ claim to the effect that the entire contents of the recording are confidential by reason of what the plaintiffs say occurred on the occasion the recording was made, those criticisms go to the question of whether the plaintiffs’ claims have any real prospects of success, not the adequacy of the pleading itself;

(b) the plaintiffs’ pleading to the effect that Mr Swords received the recording in circumstances which imposed an obligation of confidence is acceptable;

(c) given the evidence given by Ms Cole during the course of the committal hearing regarding other recordings made by her, and the manner in which the other recordings are said to give rise to a cause of action against Ms Cole in the new pleading, the references to the other recordings in the new pleading may stand;

(d) the claim for breach of statutory duty based upon the defendants’ alleged breaches of s 11 of the SDA is not tenable, and should be struck out;

(e) the claim that the defendants engaged in a conspiracy to injure Mr Buckley and/or Ultra Tune by unlawful means is tenable, and is adequately pleaded;

(f) Mr Buckley’s claim for damages for psychiatric injury is tenable;

(g) the merits of the allegations that Ms Cole owed Ultra Tune a fiduciary duty and that she breached that duty are matters for trial. However, the plaintiffs should provide further and better particulars of the facts, matters and circumstances the plaintiffs reply upon to contend that by reason of the Ambassador retainer, Ms Cole owed Ultra Tune the fiduciary duties pleaded by the plaintiffs;

(h) the claim that Ms Cole is liable for unconscionable conduct is a claim which is not known to the law, and should be struck out;

(i) further and better particulars of loss and damage, perhaps in the form of a letter of instruction to an expert, should be provided, but not until after the hearing and determination of Mr Swords’ summary judgment application, if that is pressed; and

(j) subject to hearing further argument regarding Mr Swords’ summary judgment application, the question of whether the plaintiffs or either of them are entitled to the permanent injunctive relief claimed by them is a matter for trial.

More detailed reasons in relation to each of these issues follow.

The confidential information

In the first reasons, I set out, in summary, the principles governing the pleading and proof of an action for breach of confidence, and I do not propose to repeat them here. In their written submissions, the plaintiffs appeared to accept my summary of the relevant principles, and further observed as follows (omitting citations):

First, it should not be assumed that personal information must exhibit an intimate subject matter to qualify as confidential; information of a personal or private nature can be confidential and therefore the recipient of legal protection.
Second, equity has imposed to restrain the disclosure of information relating to the private life, personal affairs, financial affairs and private conduct as between spouses where such information is not in the public domain. Such restrain is not limited to spousal relationships; in Kwok v Thang [1999] NSWSC 1034 (Kwok), [30] Austin J remarked that even a fresh, short-lived relationship can raise an obligation of confidence.
Third, whether information has the necessary quality of confidence (in a business context) is a question of fact having regard to a range of various factors including: (1) the extent to which the information is known outside of the relationship; (2) the skill and effort expired to collect the information; (3) the extent to which the information is treated as confidential; (4) the value of the information; (5) the ease or difficulty with which the information can be duplicated; (6) whether it was made known that it was confidential; and (7) whether usages and practices support the claim for confidentiality.

Paragraphs 40 to 42 of the new pleading include the following allegations (omitting the detailed particulars):

The Relationship was one of mutual trust and confidence such that Cole owed an equitable obligation of confidence to Buckley which prevented her from divulging their private conversations and/or information about her sexual activities with Buckley without Buckley's consent.
Further or alternatively, because of her position as an ambassador under the Ambassador Retainer Cole owed Ultra Tune an equitable obligation of confidence not to disclose confidential information to which she was privy that was not otherwise in the public domain.
The Crown Recording:
(a) was made during a sexual encounter between Cole and Buckley;
(b) recorded sexual activities between Cole and Buckley;
(c)recorded a conversation between Buckley about matters of a personal and private nature which were not in the public domain; and

(d) included the prejudicial information.
Particulars
(i)The entire recording was subject to an obligation of confidence because it was made in a private room during a sexual encounter between consenting parties in a non-exclusive sexual and coparenting relationship.
(ii)the personal and private conversation recorded included: Buckley's state of mind, including his anxiety and fears, thoughts about Ultra Tune, employees and former employees of Ultra Tune and related companies and certain individuals which conversation was also not in the public domain and included...

In the new pleading, the plaintiffs say that the entire contents of the recording were subject to an obligation of confidence because the recording was made ‘in a private room during a sexual encounter between consenting parties in a non-exclusive sexual and co-parenting relationship’. That this was the case is not readily apparent from the contents of the recording, and the defendants say that the recording could not possibly be characterised as a ‘sex tape’. I agree. However, I accept that there was a short period of time during the recording where the parties were silent, which is consistent with sexual activity possibly having taken place, and there were some words spoken by Ms Cole which were consistent with some sexual activity having taken place on that occasion.

The question of whether the recording was made on an occasion where the parties were engaged, for at least part of the time, in sexual activity, is a question of fact. As noted above, that the parties were engaged in sexual activity is not obvious from listening to the recording. However, ultimately, that is a question to be determined at trial. I doubt that it could be said that the publication of the recording would necessarily cause Mr Buckley distress and embarrassment of the kind referred to in some of the authorities relied upon by the plaintiffs,[13] which involved the disclosure of intimate and sometimes explicit images and videos. If it had, the plaintiffs would have pleaded as much. Rather, the plaintiffs seem to rely upon the fact that the recording was made on an occasion where sexual activity took place as a device for cloaking all of the information disclosed by the recording with the character of confidence. I doubt whether that device will be effective, as it cannot be that all information conveyed between participants on an occasion where sexual activity has taken place is automatically deemed to be confidential, although the fact that the information was conveyed in such a context could support an inference that it was conveyed in confidential circumstances. However, this goes to the factual and legal merits of the plaintiffs’ claim for breach of confidence, not the adequacy of the form of the new pleading, and the merits of the plaintiffs’ claim are inextricably bound up with the iniquity issue. Accordingly, I will not strike out this part of the new pleading, but will consider the matter further upon any resumption of Mr Swords’ summary judgment application.
[13]See, for example, Kwok v Thang [1999] NSWSC 1034; Giller v Procopets (2008) 24 VR1; Wilson v Ferguson [2015] WASC 15.

The information in the recording which was said by the plaintiffs to be confidential information is said to be confidential by reason of the occasion upon on which it was conveyed is similar to, but extends beyond the prejudicial information. This pleading is no doubt targeted at addressing the defendants’ submissions to the effect that equity will not protect information which discloses an iniquity. However, it seems to me as a matter of logic that if the information sought to be protected discloses an iniquity, then the fact that it was disclosed during an encounter where sexual activity may have taken place does not alter the fundamental character of that information. By way of example, one could hardly contemplate a court granting relief to protect the confidentiality of information which discloses or was conveyed during a sexual assault.

However, the question of whether the information particularised under paragraph 42 of the new pleading is confidential by reason of the occasion or circumstances in which it was conveyed is not really a pleading issue, and neither is the question of whether otherwise confidential information would not be protected from disclosure because the information discloses an iniquity. If the position is insufficiently clear to warrant the grant of summary judgment, then those issues should proceed to trial.

Paragraph 44 of the new pleading states, in the alternative to the assertion that the entire contents of the recording are confidential, as follows:

The Crown Recording contained confidential information relating to Buckley's views on issues regarding the management of Ultra Tune, especially employees in the sales and marketing team (confidential information);
The confidential information was known only to Buckley as the Chief Executive Officer of Ultra Tune and was not in the public domain; and
The confidential information was shared with Cole because of her relationship with Buckley and her position as an ambassador for Ultra Tune under the Ambassador Retainer.
Particulars

The confidential information contained within the Crown Recording included the following:
(i)that Cole sought to influence Buckley in relation to the appointment of a woman named Giuliana to sales and marketing at Ultra Tune;
(ii)that Cole had offered to 'block Jimmy' in exchange for Buckley removing sales and marketing from Giuliana's job title;
(iii)that when Buckley asked Giuliana to remove sales and marketing from her job title, she refused;
(iv)that Buckley considered Cole to be interfering with his management of the Ultra Tune business;
(v)the existence of hostility between Cole and both Giuliana and Ms Laura Lydall in the context of their mutual employment by Ultra Tune;
(vi)that Cole complained about messages she had received from Giuliana in the context of their mutual employment by Ultra Tune; and
(vii)that Cole considered that Giuliana was obsessed with being in a sales and marketing role at Ultra Tune.

While the information referred to in the particulars to paragraph 44 of the new pleading concerned personnel matters with respect to employees of Ultra Tune, the information otherwise concerned largely inconsequential matters which could not possibly be considered to be information which, if disclosed, could cause Mr Buckley and/or Ultra Tune material commercial harm. Without wishing to denigrate the individuals referred to in the particulars to paragraph 44, it seems to me that references to a quarrel between members of Ultra Tune’s marketing team about job titles and the like nearly four years ago is not commercial information of a kind which could possibly attract the protection of injunctive relief. That contention is clearly untenable, and paragraph 44 of the new pleading should be struck out.

Mr Swords’s equitable obligation of confidence

The new pleading abandons the allegation that Mr Swords’ obligation of confidence arose from his employment by an Ultra Tune subsidiary and/or his close personal relationship with Mr Buckley. Rather, paragraph 50 of the new pleading pleads, in effect, that Mr Swords was a knowing recipient of confidential information. Ultimately, this part of the new pleading rises or falls with the plaintiffs’ claim for breach of confidence. However, there is no defect in the form in which the alleged obligation is pleaded, and I accept that the content of the alleged confidential communication and the circumstances in which it was received are relevant to whether an obligation of confidence is imposed upon a third party recipient of confidential information.

The other recordings

There has been a significant development between the delivery of the first reasons and the filing and service of the new pleading, in that Ms Cole has given evidence on oath (at the committal hearing) that she made the other recordings, which she has provided to her lawyers and to Victoria Police.

There is then now arguably a factual basis upon which could found a claim on behalf of the plaintiffs with respect to the other recordings. Arguably, it could also be inferred that the other recordings contain information which is prejudicial to Mr Buckley, and by extension, Ultra Tune, given the nature of the threats said to have been made by Ms Cole with respect to the dissemination of the recording and the other recordings.

Further, the manner in which the other recordings have been deployed in the new pleading means that the contents of the other recordings are of less significance to Mr Buckley’s claims in this proceeding than they were previously, such that the failure of the plaintiffs to particularise their contents is of less significance than was previously the case. The other recordings are referred to in the following parts of the new pleading:

(a) where allegations were made that Ms Cole made threats to Mr Buckley;

(b) where allegations were made that Ms Cole made the other recordings for the purpose of extorting money from Mr Buckley;

(c) where allegations were made that the making of the other recordings breached Ms Cole’s obligation of confidence to Mr Buckley;

(d) where allegations were made that by making and disseminating the recording and the other recordings Ms Cole knowingly and wrongfully inflicted mental harm upon Mr Buckley; and

(e) where allegations were made that Ms Cole breached s 11 of the SDA by disseminating the other recordings, and thus breached the statutory duty imposed by that provision.

Save for the allegation that by making and disseminating the other recordings, Ms Cole breached her obligation of confidence to Mr Buckley, the allegations in the new pleading regarding the other recordings are not dependent upon the plaintiffs establishing that the other recordings contained confidential information within the meaning established by the authorities. To illustrate further, Mr Buckley relies upon statements alleged to have been made by Ms Cole to the effect that she had secretly recorded their conversations and planned to disseminate them to the media outlets to support his claim that Ms Cole had sought to blackmail him, and to support his claim that Ms Cole had intentionally inflicted mental harm upon him. That is, it was the fact that the other recordings had been made, and the fact that Ms Cole allegedly threatened to disclose them that are critical to those causes of action, rather than the contents of the other recordings.

Accordingly, it is not necessary for the plaintiffs to provide particulars of the other recordings at this stage, and the parts of the new pleading which refer to the other recordings will not be struck out. However, to the extent that the new pleading alleges that the making and dissemination of the other recordings amounted to a breach of confidence, that claim will be struck out, as the confidential information cannot be identified and particularised.[14] Notwithstanding the plaintiffs’ submission that some leeway is provided in circumstances where the necessary information is in the hands of the other party, in claims for breach of confidence the importance of precisely identifying the confidential information and why it is said to be confidential means that a wholly unparticularised claim should not be permitted to proceed.
[14]See the discussion and analysis in the first reasons.

Claim for breach of statutory duty

There is no dispute between the parties that it is possible to infer an intention on the part of Parliament that a breach of statute would confer an entitlement on a party adversely affected by that breach to seek a civil remedy, even in the absence of express language in the relevant statute. Further, I accept that the courts should be reluctant to shut out unorthodox, but not patently untenable claims at the pleadings stage, so as not to stifle the development of the common law.

However, to permit this claim to proceed would be to permit the plaintiffs to bring a claim which is tantamount to a claim based upon a tort of breach of privacy, which has been said by the High Court[15] to not be a tort recognised or recognisable by the common law of Australia.
[15]Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 (‘Victoria Park’).

The question of whether Australian law adequately protects the privacy interests of Australians was canvassed in the reasons of Gleeson CJ in the High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd,[16] as follows:
[16](2001) 208 CLR 199.

An argument for the respondent invoked privacy in a somewhat different context. The respondent invited this Court to depart from old authority; declare that Australian law now recognises a tort of invasion of privacy; hold that it is available to be relied upon by corporations as well as individuals; and conclude that this is the missing cause of action for which everyone in the case has so far been searching.
If the activities filmed were private, then the law of breach of confidence is adequate to cover the case. I would regard images and sounds of private activities, recorded by the methods employed in the present case, as confidential. There would be an obligation of confidence upon the persons who obtained them, and upon those into whose possession they came, if they knew, or ought to have known, the manner in which they were obtained.
By current standards, the manner in which the information in the present case was obtained was hardly sophisticated, and, if there were a relevant kind of privacy invaded, the invasion was not subtle. The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy. As Rehnquist CJ recently observed in a case in the Supreme Court of the United States concerning media publication of an unlawfully intercepted telephone conversation:
“Technology now permits millions of important and confidential conversations to occur through a vast system of electronic networks. These advances, however, raise significant privacy concerns. We are placed in the uncomfortable position of not knowing who might have access to our personal and business e-mails, our medical and financial records, or our cordless and cellular telephone conversations.”

But the lack of precision of the concept of privacy is a reason for caution in declaring a new tort of the kind for which the respondent contends. Another reason is the tension that exists between interests in privacy and interests in free speech. I say “interests”, because talk of “rights” may be question-begging, especially in a legal system which has no counterpart to the First Amendment to the United States Constitution or to the Human Rights Act 1998 of the United Kingdom. The categories that have been developed in the United States for the purpose of giving greater specificity to the kinds of interest protected by a “right to privacy” illustrate the problem. The first of those categories, which includes intrusion upon private affairs or concerns, requires that the intrusion be highly offensive to a reasonable person. Part of the price we pay for living in an organised society is that we are exposed to observation in a variety of ways by other people.[17]

[17]Ibid [38]-[41].

In that decision, Gummow and Hayne JJ also considered that the door remains open to the recognition of a tort of breach of privacy in Australia.[18]
[18]See the discussion at [107] ff, where their Honours stated that the decision in Victoria Park does not stand in the part of the development of an enforceable right to privacy.

The state of Australian law regarding the protection of interests in privacy was also discussed by Neave JA in the Court of Appeal decision in Giller v Procopets,[19] as follows:
[19](2008) 24 VR 1.

In recent years, two main approaches have emerged in response to claims that English, Australian and New Zealand law should recognise such a tort. The first – epitomised by Lenah Game Meats - has been to develop existing causes of action to provide greater legal protection for privacy interests. English courts have not yet recognised an ‘over-arching, all-embracing cause of action for invasion of privacy’ but, as Campbell v Mirror Group Newspapers Ltd and Douglas v Hello! Ltd show, the Human Rights Act 1998 (UK) and the European Convention have provided the impetus for expansion of the action for breach of confidence to provide remedies to people who complain of publication of private matters.
The second approach - exemplified by the decision of the New Zealand Court of Appeal in Hosking v Runting – is to recognise a new tort of invasion of privacy. By majority, the Court of Appeal held the tort would be committed by the publication of facts about the private life of a person, where the giving of publicity to such facts would be considered ‘highly offensive to an objective reasonable person’. Gault P rejected the approach of expanding the duty of confidence:
Privacy and confidence are different concepts. To press every case calling for a remedy for unwarranted exposure of information about the private lives of individuals into a cause of action having as its foundation trust and confidence will be to confuse those concepts.

Finally, I note two Australian first instance decisions which have responded explicitly to Gleeson CJ’s suggestion in Lenah Game Meats that in the future the law should be more astute to protect privacy interests. In Grosse v Purvis, Senior Judge Skoein of the District Court of Queensland held that a plaintiff who was persistently and intentionally stalked and harassed by the defendant for six years was entitled to damages for invasion of her privacy. In Doe v ABC & Ors, Judge Hampel of the County Court of Victoria held that a sexual assault victim was entitled to an award of damages for the breach of privacy which occurred when, contrary to s 4(1A) of the Judicial Proceedings Reports Act 1958, the ABC published her name and the fact that her former husband had been convicted of raping her.
The question whether there should be a cause of action for invasion of privacy has been examined – separately - by the New South Wales Law Reform Commission, the Australian Law Reform Commission, and the New Zealand Law Commission. The question whether a tort of invasion of privacy should be recognised necessarily requires consideration of the different types of privacy invasion which might fall within the scope of such a tort. Professor Michael Tilbury, the Commissioner-in-charge of the reference to the New South Wales Law Reform Commission, has commented:
The difficulties of defining the conduct to which an action for invasion of privacy does, or should, extend are notorious. At the heart of the problem lies the variety of contexts in which ordinary language uses ‘privacy’, as the four American torts protecting privacy illustrate.

The Australian Law Reform Commission has recently published a report which recommends that Federal legislation should provide for a ‘statutory cause of action for a serious invasion of privacy’. Because I have already concluded that Ms Giller has a right to compensation on other grounds, it is unnecessary to say more about whether a tort of invasion of privacy should be recognised by Australian law.[20]

[20]Ibid [448]-[452].

As observed by her Honour, a tort of breach of privacy has been recognised in other jurisdictions, including New Zealand, the United Kingdom, and some jurisdictions in the United States of America and Canada, and the benefits and problems associated with the introduction of such a tort have been the subject of much debate in the academy and in the public policy arena. On a number of occasions, law reform commissions have recommended the introduction of a statutory privacy tort,[21] but these recommendations have not been taken up by any Australian legislature. Accordingly, it seems to me that if Parliament had intended to impose a civil liability upon the general public for making and disseminating recordings of private communications, thus filling an existing and often discussed gap in the common law, it would have done so expressly, and after some careful consideration and debate.
[21]Australian Law Reform Commission, For your Information: Australian Privacy Law and Practice ALRC Report 108, 2008; New South Wales Law Reform Commission Invasion of Privacy Report No 120, 2009; Victorian Law Reform Commission, Surveillance in Public Places, Final Report 18, 2010; Australian Law Reform Commission, Serious Invasion of Privacy in the Digital Era ALRC Report, 23, 2014.

My review of the Explanatory Memorandum and Second Reading Speech which introduced the SDA (‘extrinsic materials’) does not disclose any intention on the part of Parliament to the effect that any breaches of s 11 of the SDA should have civil as well as criminal consequences. Rather, it seems that the primary purpose of the SDA was to extend the criminal penalties previously in place for audio recordings of private conversations under the Listening Devices Act1969 (Vic) to video recordings, adopting the same model used in that legislation, and to regulate the use of surveillance devices for law enforcement purposes. In the Second Reading Speech introducing the bill to Parliament, the Attorney-General stated as follows:

The bill provides stringent safeguards to protect individuals’ privacy [while] ensuring that Victoria is a safe place to live. The bill will extend the protection of private conversations currently offered by the Listening Devices Act and will protect private activities from intrusion.[22]

[22]Victoria, Parliamentary Debates, Legislative Assembly, 25 March 1999, 191 (Jan Wade, Attorney General).

It is noteworthy that in the period in which provisions such as s 11 of the SDA have been in force, a period spanning more than half a century, there is no published decision where a Court in this jurisdiction (or any other Australian jurisdiction) has held that any breach of those provisions has given rise to any civil liability. Rather, as noted in the authorities referred to above, those affected by breaches of privacy have been required to rely upon actions for breach of confidence, or the tort of intentional infliction of emotional harm.

Of course, it is not necessary to find support in the extrinsic materials for a court to arrive at a conclusion that a remedy is available to someone who has suffered loss as a result of another’s breach of the duties imposed upon them by statute. For example, claims for breach of statutory duty are commonplace in personal injury claims made in a workplace context. However, in my view, breaches of s 11 of the SDA and the plaintiffs’ complaints in this proceeding do not fall within the classes of activity and conduct which would give rise to a civil liability being imposed upon the defendants for any breach of s 11 of the SDA.

In Byrne v Australian Airlines Ltd,[23] the majority identified the constituent elements of a common law action for breach of statutory duty as follows:

A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection.[24]

[23](1995) 185 CLR 410.

[24]Ibid 424.

In their discussion of the availability and scope of the cause of action of breach of statutory duty, the learned authors of ‘Balkin & Davis’ Law of Torts’[25] identified three categories of interests which have been found by the courts to be capable of giving rise to civil liability for any breach of statute: a person’s interest in bodily security, interests in property, and economic interests.[26]
[25]David Rolph et al, Balkin & Davis Law of Torts (Lexis Nexis, 6^th ed, 2021).
[26]Ibid 629 [16.12]-[16.14].

The learned authors went on the say as follows:

The three interests just considered are one that often come before the courts. Other interests of a less tangible nature have generally not been protected by this tort. Thus, the courts have denied a private right of action to a landowner who suffered loss of amenity by reason of a neighbour’s breach of town planning legislation, to a company which complained that one of its directors had failed to disclose his interest in a contract with the company, and to an electricity supply authority for the alleged failure of a state-owned enterprise to act in a socially responsible manner.[27]

[27]Ibid 631-2 [16.15].

Identifying whether a statute confers a private right of action upon a party affected by its breach is essentially a question of statutory construction. As stated by Kitto J in Sovar v Henry Lane Pty Ltd:[28]

at the outset of every inquiry in this field it is important, in my opinion, to recognise…that the question whether a contravention of a statutory requirement…is actionable at the suit of a person injured thereby is one of statutory interpretation…The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope, and terms of the statute.[29]

[28](1967) 116 CLR 397.

[29]Ibid 405.

As discussed above, there is nothing in the terms of s 11 of the SDA, or in the contents of the extrinsic materials, which would lead all to reach a conclusion that s 11 of the SDA confers a civil remedy upon those affected by its breach. The authorities have identified the following constituent elements of the tort of breach of statutory duty:

– A statutory duty is imposed on the defendant.
-A legislative intention that the statute imposing the duty confers a private civil cause of action for breach of that duty.
-The plaintiff is within the class of persons for whose benefit the duty was imposed.
-There is a breach of the duty.
-The damage caused by the breach of duty is of a kind which the duty was designed to prevent.[30]

[30]Jane Doe v Fairfax Media Publications Pty Ltd [2018] NSWSC 1996, referred to in Balkin & Davis Law of Torts at [16.16].

I accept that the damage said to have been suffered by Mr Buckley[31] is of a kind that the prohibition in s 11 of the SDA was designed to prevent, and that the question of whether the defendants or either of them have viable defences under s 11(2) of the SDA is not something which should be determined in the context of the current applications. However, the real difficulty facing the plaintiffs in their claim for breach of statutory duty by reason of the defendants’ alleged breaches of s 11 of the SDA is that it is apparent from the terms of s 11 of the SDA, and the extrinsic materials that the purpose of s 11 is to protect the privacy of every person within Victoria, that is, the general public. As stated by Lord Rodger of the United Kingdom Supreme Court in Morrison Sports Ltd v Scottish Power UK plc:[32]

…one of the necessary preconditions of the existence of a private law cause of action is that the statutory duty in question was imposed for the protection of a limited class of the public…[33]

[31]Even if I am wrong regarding the question of whether the claim for breach of statutory duty in the new pleading is a tenable claim, I very much doubt that any duty imposed by s 11 of the SDA would extend to protect the privacy interests of Ultra Tune, being a corporation (see the discussion of Gleeson CJ in ABC v Lenah Meats Corporation Pty Ltd, where his Honour observed (at [43]) that the foundation of what is protected, where rights of privacy are acknowledged, is the protection of human dignity, which may be incongruous when applied to a corporation.

[32][2010] 1WLR 1934.

[33]Ibid [40].

Given that s 11 of the SDA imposes, subject to certain limited exceptions, a blanket ban on the recording and dissemination of recordings of private conversations in Victoria, it is difficult to see how Mr Buckley could be considered to be a member of a limited class of people that the legislation is designed to protect. The position might be different where the claimant is a person subject to video and/or audio surveillance which was authorised by the SDA (say, pursuant to a warrant granted by this Court). Arguably, such a person might have a cause of action should law enforcement personnel use the information obtained for a purpose not authorised by the SDA, because individuals under surveillance subject to a warrant are a limited and identifiable class of persons. But that is not this case. Further, even if I am wrong in my conclusion in that regard, it is impossible to see how Ultra Tune (which seeks relief for breach of statutory duty in the new pleading) could possibly be a member of the class of people protected by s 11 of the SDA, whether that class is limited or otherwise, given that s 11 prohibits the publication of a report or record of a private conversation, and a corporation is incapable of having a conversation.

Accordingly, the plaintiffs’ claim for breach of statutory duty should be struck out.

The tort of conspiracy by unlawful means

The defendants criticised the pleading of the plaintiffs’ claims that they were engaged in a conspiracy to injure them by unlawful means. To the extent that those criticisms take issue with the plaintiffs’ characterisation of the facts, or, in the case of Mr Swords’ submissions, contend that the defendants have unassailable defences to the plaintiffs’ claims, I set those criticisms aside, as those criticisms go to the merits of the plaintiffs’ claims, rather than whether the new pleading discloses viable causes of action, and otherwise fulfils what is required of a pleading. Further, it seems that some of Mr Swords’ criticisms of the new pleading were directed at claims which were pleaded in the previous iterations of the statement of claim, but have not been pressed in the new pleading. Those criticisms can be set aside too.

Finally, the defendants criticise the pleading of the tort of conspiracy to injure by unlawful means on the grounds that the particulars of loss and damage provided are inadequate. However, while I accept that loss and damage is a necessary element of this tort, there is a difference between what level of detail is required to establish that the cause of action is complete, and what is required in order to enable the defendants to properly prepare for trial. The latter requirement is discussed later in these reasons, but, in the new pleading, the plaintiffs have pleaded that they have suffered loss and damage of a particular kind, and thus have pleaded what is required to establish the cause of action.

Mr Swords also submitted that the pleading of the tort of conspiracy to injure by unlawful means is confusing, and the facts relied upon by the plaintiffs cannot possibly support an allegation that the defendants engaged in a conspiracy to injure Mr Buckley and Ultra Tune. I disagree. It is clear from the new pleading that the plaintiffs put their case as follows:

(a) for quite separate reasons, Ms Cole and Mr Swords were motivated by spite, hatred or revenge to cause harm to Mr Buckley, and/or were motivated by their own potential financial benefit. That those motivations might have arisen at different times is somewhat beside the point;

(b) Mr Buckley is the alter-ego of Ultra Tune, and the defendants knew that any damage to the reputation of Mr Buckley would adversely affect the reputation and business of Ultra Tune;

(c) the making and dissemination of the recording, including its dissemination to media outlets, which was unlawful, was intentional, and was calculated to cause harm to Mr Buckley and Ultra Tune;

(d) it can be inferred that Ms Cole and Mr Swords joined forces to deliberately disseminate the recording for the common purpose of injuring Mr Buckley and Ultra Tune; and

(e) the dissemination of the recording, and the resulting media reports, has in fact caused the intended injury, including distress to Mr Buckley, and Ultra Tune has lost franchisees and prospective franchisees as a consequence of the defendants’ conduct.

The question of whether the facts relied upon by the plaintiffs can be proved, and the question of whether those facts, if proved, can support the plaintiffs’ claims, are ultimately questions for trial. However, the claims have been adequately pleaded.

In Uber,[34] the Court of Appeal referred to the following statements of Kaye J in British American Tobacco Australia Ltd v Gordon (No 3):[35]

The drawing of an inference does not take place by a series of independent judgments based on individual facts taken in isolation. Rather, the process of inferential reasoning involves a consideration of the united and combined force and effect of the overt acts, when taken together.
It is the relevant coincidence of a number of facts, considered in combination, which may or may not be sufficient to give rise to the inference contended for.
...
It must also be borne in mind that the drawing of inferences from admissible evidence is essentially a question of fact, to be determined on the evidence. The relevant inferences to be drawn, and the question whether ultimately the evidence to be adduced in support of the overt acts support an inference of the existence of the alleged conspiracy, will significantly depend on the nature and quality of the evidence given at trial.[36]

[34](2020) 61 VR 580.

[35][2009] VSC 619.

[36]Ibid [59] [60].

Mr Swords says that the facts pleaded in the new pleading cannot possibly support the drawing of an inference that Ms Cole and Mr Swords combined to give effect to a scheme to injure Mr Buckley and Ultra Tune. I disagree. To the extent that the defendants say that they require further information to understand the case they have to face at trial, they may request further particulars.

Breach of fiduciary duty

Ms Cole maintains her objection to the claim that she owed a fiduciary duty to Ultra Tune by reason of the terms of the Ambassador retainer, and that she has breached that duty by engaging in conduct which disparaged Ultra Tune. While Ms Cole accepts that there are circumstances where an independent contractor may be held to owe a fiduciary duty to another by reason of the terms of the relevant contract and the surrounding circumstances, she said that the authorities relied upon by the plaintiffs[37] are clearly distinguishable from the current case, and, in any event, the plaintiffs have failed to adequately plead the facts, matters and circumstances they rely upon to support the imposition of a fiduciary duty upon Ms Cole.
[37]Commonwealth v Davis Samuel Pty Ltd [2013] ACTSC 148; SBA Music Pty Ltd (No 3) [2015] FCA 1079.

I accept that Ms Cole’s position vis a vis Ultra Tune is materially different to the independent contractors in the authorities relied upon by the plaintiffs. In Commonwealth v Davies Samuel Pty Ltd,[38] a company which provided various services which had been outsourced from a government department under long term contracts which conferred significant financial and decision-making powers was found to owe the Commonwealth fiduciary duties. In SBA Music Pty Ltd v Hall (No 3),[39] a fiduciary duty was imposed upon an independent contractor who was also a director of the company to whom the duty was owed. However, it seems to me to be at least arguable that a person who is engaged in a marketing/promotional role for Ultra Tune, and who was a for a period of time one of the public faces of Ultra Tune, owed at least a limited duty to Ultra Tune to not harm the public image of Ultra Tune. I do doubt that any fiduciary duty owed by Ms Cole to Ultra Tune extends beyond that, but that is ultimately a matter for trial.
[38][2013] ACTSC 148.
[39][2015] FCA 1079.

However, given that the relationship between Ms Cole and Ultra Tune is not a recognised category of fiduciary relationship, I do agree that the plaintiffs should provide further and better particulars of the facts, matters and circumstances by which it is said that the Ambassador retainer gave rise to fiduciary duties on the part of Ms Cole in favour of Ultra Tune of the kind referred to in paragraph 75 of the new pleading.

Claim for damages for psychiatric injury

The defendants’ complaints about the part of the new pleading concerning the allegation that the defendants’ conduct has caused Mr Buckley to suffer psychiatric injury are based upon their contention that the expert report relied upon by Mr Buckley to support this aspect of his claim does not establish that he suffers from a psychiatric injury that has been caused by the conduct of the defendants.

That may well be the case. However, that is not a basis for objecting to the new pleading. Strictly speaking, it was not necessary for the plaintiffs to obtain and serve an expert report for the purpose of pleading this claim, although it may have been necessary to assure the plaintiffs’ legal representatives that there was a proper basis for making the claim. The necessary particulars of injury have been provided in the new pleading, and whether that cause of action can be made good is a matter for evidence at trial.

Unconscionable conduct claim

In the new pleading, the plaintiffs plead that:

(a) Ms Cole owed Mr Buckley an obligation of confidence;

(b) Mr Buckley was in a vulnerable emotional or mental state such that he was at a special disadvantage relative to Ms Cole;

(c) Ms Cole knew of Mr Buckley’s special disadvantage; and

(d) Ms Cole exploited Mr Buckley’s special disadvantage by making, retaining and providing the recording to Mr Swords.

The difficulty with this claim is that there is no stand-alone cause of action of unconscionable conduct known to the law, save for the statutory cause of action in s 21 of the Australian Consumer Law. Indeed, in Tanwar Enterprises Pty Ltd v Cauchi (‘Tanwar’),[40] the High Court cautioned against treating unconscionable conduct as a distinct cause of action ‘akin to an equitable tort’. Rather, a finding of unconscionable conduct is a necessary element of a number of distinct causes of action, such as proprietary or promissory estoppel, or a means by which a person may seek to avoid the consequences of a transaction procured by duress or undue influence.
[40](2003) 217 CLR 315, 325-6 (‘Tanwar’).

While in the new pleading the plaintiffs plead that Ms Cole owed Mr Buckley an obligation of confidence, that obligation extends only to confidential information. While the cause of action of breach of confidence is said to be founded upon unconscionable conduct, the existence of such an obligation does not of itself create a stand-alone cause of action of unconscionable conduct. Rather, it is the unconscionable character of conduct which amounts to a breach of confidence which justifies the grant of equitable relief to those affected by the breach.

In ACCC v Samton Holdings Pty Ltd,[41] the Full Court of the Federal Court identified the following types of cases where equity will grant relief for unconscionable conduct:
[41](2002) 117 FCR 301.

(a)contracts or dispositions of property resulting from the knowing exploitation of a special disadvantage;
(b)transactions entered into as a consequence of defective comprehension by a party to a transaction of the undue influence of another;

(c)       cases of equitable estoppel;
(d)      when providing relief against forfeiture and penalty; and
(e)       contracts entered into by reason of a unilateral mistake.[42]

[42]Ibid [48].

None of the causes of action referred to above are referred to in the new pleading. Mr Buckley does not, and could not, rely upon s 21 of the Australian Consumer Law, because the statutory cause of action requires that the conduct concerned must be ‘in trade or commerce’.

Mr Buckley and Ms Cole were not engaged in any trade or commerce on the occasion when the recording was made. Further, the plaintiffs have not pleaded that they were engaged in any transaction which had any legal effect, which might be avoided if the other party to the transaction (that is, Ms Cole) had engaged in unconscionable conduct. That the doctrine of unconscionability in the general law operates to avoid or unwind a ‘transaction’ is evident from the following extract of the reasons of Deane J in Commonwealth Bank of Australia Ltd v Amadio[43] (omitting citations):

The jurisdiction of courts of equity to relieve against unconscionable dealing developed from the jurisdiction which the Court of Chancery assumed, at a very early period, to set aside transactions in which expectant heirs had dealt with their expectations without being adequately protected against the pressure put upon them by their poverty ... The jurisdiction is long established as extending generally to circumstances in which (i) a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and (ii) that disability was sufficiently evident to the stronger party to make it prima facie unfair or ‘unconscientious’ that he procure, or accept, the weaker party’s assent to the impugned transaction in the circumstances in which he procured or accepted it. Where such circumstances are shown to have existed, an onus is cast upon the stronger party to show that the transaction was fair, just and reasonable: 'the burthen of shewing the fairness of the transaction is thrown on the person who seeks to obtain the benefit of the contract'...[44]

[43](1983) 151 CLR 447.

[44]Ibid 474, referred to in Kakavas v Crown MelbourneLtd (2013) 250 CLR 392 (‘Kakavas’) [38].

The plaintiffs relied upon the decision of the High Court in Kakavas v Crown Melbourne Ltd (‘Kakavas’)[45] in support of its submission that ‘[i]t is well known that unconscionable conduct is a cause of action both at common law and under the Australian Consumer Law.
[45](2013) 250 CLR 392.

I beg to differ. In Kakavas,[46] the High Court acknowledged that Mr Kakavas had brought a claim seeking equitable compensation for unconscionable conduct under the general law. But it did not make any express finding that a stand-alone cause of unconscionable conduct was available to be pursued. It did not need to, as Mr Kakavas had also brought a claim for damages under s 51AA of the Trade Practices Act 1974 (Cth).[47] The question of whether a claim for unconscionable conduct untethered from any recognised cause of action was available was not an issue before the Court that needed be determined. The plaintiffs did not point to any other authority which suggests that the statements made by the High Court in Tanwar[48] no longer reflect the current state of the law.
[46]Ibid.
[47]The predecessor provision to s 21 of the Australian Consumer Law.
[48](2003) 217 CLR 315.

(b) my observations in the first reasons to the effect that there was no solid factual basis for contending that the defendants had disseminated any recordings save in the manner as stated in the pleadings and in Ms Cole’s affidavit of 11 May 2021;[57] and

(c) on 28 February 2023 the recording was played in open court during the committal hearing in Mr Buckley’s criminal proceeding (‘committal hearing’).

[57]This affidavit was relied upon by the parties in the contempt proceeding.

In her written submissions, Ms Cole observed that an interlocutory injunction may be varied any time before trial, and that an injunction may be dissolved where the party having the benefit of the injunction has caused substantial delay in the conduct of the proceeding.

Ms Cole submitted that a relevant factor to be taken into account in determining where the balance of convenience lies in cases of the current kind is whether the information sought to be protected is in the public domain. Referring to a number of authorities which considered the scope and extent of the Harman undertaking,[58] Ms Cole submitted that the following principles can be distilled from the authorities (omitting citations):

(a)first, documents received into evidence are in the public domain, per Harman and unanimously;
(b)second, there is considerable support for the dicta of Mason CJ in Esso that ‘… once material is adduced in court proceedings it becomes part of the public domain’, per Ainsworth, Moage and Sapphire;
(c)third, the extent to which documents are read aloud or deployed in open court is a relevant consideration, per Moage, Cowell and Karas; and
(d)fourth, the level of media attention publicity or “notoriety” is a relevant consideration, per Cowell and Karas.

[58]See Ainsworth v Hanrahan (1991) 25 NSWLR 155; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; Moage Ltd v Jagelman andOrs (2002) 43 ACSR 173; British American Tobacco Australia Ltd v Cowell (No 2) (2003) 8 VR 571; Hearne v Street (2008) 235 CLR 125; Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd(in liq) [2011] NSWSC 1451; Deputy Commissioner of Taxation v Karas [2012] VSC 143.

Ms Cole submitted that, given the current state of the pleadings, it is unlikely that there is a serious question to be tried, given that the claims with respect to the other recordings have been struck out, Mr Buckley’s case against Ms Cole with respect to the dissemination of the recording is very weak, the recording does not disclose any confidential information of Ultra Tune, and I have already held that no civil liability is imposed upon the defendants by the SDA, even if the defendants are unable to establish that their dissemination of the recording falls within the exceptions in s 11(2) of the SDA.

Further, Ms Cole submitted that there is nothing in the new pleading which indicates that damages would not be an adequate remedy, and the balance of convenience weighs heavily against the injunction being maintained. In relation to the balance of convenience, Ms Cole submitted that the following matters support the discharge of the injunction:

(a) the recording is now in the public domain, in that there has been widespread media reporting about the contents of the recording, and the recording has been played in full in open court;

(b) while the new pleading refers to the other recordings, no particulars are provided of their contents or dissemination;

(c) this proceeding has been the subject of considerable media attention, and the defendants are the only people who are subject to any restrictions with respect to what they can say about the recording;

(d) the contention that the injunction is necessary to prevent potential jurors being influenced by further dissemination of the recording is speculative;[59]

(e) the plaintiffs have been responsible for the slow pace of the proceeding; and

(f) the prejudice to the defendants of being subject to the injunction has been exacerbated by the plaintiffs’ delay in progressing this proceeding.

[59]Indeed, it is now redundant, given that Mr Buckley will be tried in the Magistrates’ Court.

Ms Cole’s written submissions concluded as follows:

Even if leave to file and serve the [new pleading] is granted, the plaintiffs’ case against the defendants is tenuous at best, and baseless at its worst. It is insufficient to support the maintenance of the injunctions against the defendants if the proceeding is to continue, and should certainly not be maintained for any period in which the proceeding itself is stayed.

At the hearing of the applications, Ms Cole submitted further that:

(a) the authorities relied upon by the plaintiffs as to what is and is not in the public domain are distinguishable: in the current case, the recording has been played in full in open court, and there has been a finding by Keogh J in the contempt proceeding that the recording is in the public domain;

(b) the authorities concerning the scope and application of the Harman undertaking unanimously agree that where a document is read in open court and accepted into evidence, that document is now in the public domain; and

(c) the weakness of the plaintiffs’ case is evident from the fact that the new pleading is the sixth version of their statement of claim.

In response, the plaintiffs submitted that Ms Cole has failed to advance any reason as to why she would suffer harm by reason of the injunction remaining in force until trial. The plaintiffs observed that, if the balance of convenience weighs heavily in favour of the maintenance of the injunction, then it does not matter if the plaintiffs only have a weak claim. In any event, each claim in the new pleading raises a serious question to be tried, and is properly particularised.

The plaintiffs rely upon the fact that the injunction was granted in circumstances where there had already been media reports about the contents of the recording, and one can infer that there had been no finding that the recording had passed into the public domain at that time. The plaintiffs submitted that:

[t]he decision that information has passed into the public domain is a decision not lightly to be made, ‘and one which would rarely be justified at an interlocutory stage of [the] proceeding, if only because, if it were later to appear that one was in error, one would effectively have destroyed a plaintiff’s cause of action before one had an opportunity to have the validity of that claim tested on a final hearing’.[60]

[60]Westpac Banking Corporation v John Fairfax Group (1991) 19 IPR 513, 525.

The plaintiffs submitted that in Kwok v Thang:[61]

‘… the court found that a prior transitory publication of information, which may not be remembered or discovered by all of those who would be interested in it, does not necessarily defeat an obligation of confidentiality, where what is sought to be restrained is a more permanent and enduring form of disclosure.’

[61][1999] NSWSC 1034.

As for Ms Cole’s contention that the recording has passed into the public domain by reason of having been played during the course of the committal hearing, the plaintiffs submitted as follows:

While the plaintiffs accept that the Crown Recording what is played during the Committal Hearing, the Crown Recording itself does not appear on the transcript of the Committal Hearing. As such, the only people who were able to hear the Crown Recording were those that were physically present in Court during the Committal Hearing. At the last directions hearing counsel for Mr Swords requested that his client be provided with a copy of the transcripts from the Committal Hearing because he did not have access to such transcripts. There is therefore no basis upon which it can be suggested that the playing of the Crown Recording during the Committal Hearing caused the Crown Recording to pass into the public domain.

At the hearing of the applications, the plaintiffs submitted further that:

(a) Keogh J’s finding in the contempt proceeding that the recording was in the public domain was made in a different context and for a different purpose, and his Honour was not taken to any of the authorities relied upon by the plaintiffs at the hearing of the current applications;

(b) that the recording has been played in open court is not necessarily the end of the matter: the question is whether the confidentiality of the contents of the recording has been destroyed;

(c) a prior transitory publication of the information which may not be remembered or discovered does not necessarily defeat an obligation of confidentiality;

(d) since the injunction was obtained, the strength of the plaintiffs’ case has only improved;

(e) one should query why Ms Cole is pressing so hard to remove the injunction in circumstances where she has already breached it, and where she suffers no harm from being bound by the injunction; and

(f) any further dissemination of the recording or publication about its contents could jeopardise Mr Buckley’s pending trial.

I am not satisfied that the injunction should be discharged, for the following reasons:

(a) Ms Cole has admitted that she has made other recordings, and has provided them to her lawyers and the police;

(b) notwithstanding her frank disclosure and contrition in the course of the contempt proceeding, the fact that she breached the injunction only a matter of weeks after the injunction was granted suggests that there is a real risk that, in the absence of the injunction, there may be further dissemination of the recording and the other recording, particularly given that Ms Cole and Mr Buckley are engaged in what I suspect is an acrimonious family law proceeding;

(c) there is no evidence of any prejudice suffered by Ms Cole by reason of not being permitted to disseminate the recording and the other recordings, noting that she is not precluded from disseminating the recording and/or the other recordings if she is authorised to do so under s 11(2) of the SDA;

(d) while the plaintiffs’ claims have some hurdles and difficulties to overcome, the question of whether they are hopeless is a matter for another day. Given that I accept that it is at least arguable that damages would not be an adequate remedy for the plaintiffs, the balance of convenience favours the maintenance of the injunction; and

(e) the question of whether the recording is now in the public domain, and if so, whether that by itself warrants the discharge of the injunction, is a question of some complexity, as discussed further below.

In my view, while I accept that there is a sound basis for contending that the recording is now in the public domain, given that a short (1:44 minutes) extract of the recording (which is approximately 20 minutes long) remains accessible on The Age website, and its contents have been played in full in open court, the question of whether the full contents of the recording are truly in the public domain can only be resolved with further evidence.

The extract of the recording on The Age website is a short extract, and, while it highlights some of the contents of the recording which could be considered to be highly prejudicial to Mr Buckley, the balance of the recording also includes information which could be said to be highly prejudicial. Accordingly, I would not conclude that the recording was in the public domain solely by reason of the accessibility of the extract and the accompanying news article (which was first published nearly three years ago) on The Age website.[62]
[62]Given the passage of time, locating the news article and the extract of the recording requires a targeted search.

The question of whether the recording is in the public domain by reason of it being played in open court is more problematic. I accept that the authorities referred to by Ms Cole support the proposition that once a document has been accepted into evidence in open court, then it would ordinarily be considered to be in the public domain.

But the conduct complained of in the new pleading is not the provision of the recording to the police, and the use of the recording in the criminal proceeding. Rather, the plaintiffs complain about the dissemination of the recording to media outlets (and the consequent amplification of its contents) and to business associates of Mr Buckley. The purpose of the injunction is to restrain that conduct pending trial.

In the absence of any evidence about exactly what transpired at the committal hearing when the recording was played, it is difficult to assess whether the harm which might be caused by removing the injunction would be material. There is no evidence before me as to how many people were physically present in the court room at the time, and whether there was any media reporting regarding the conduct of the committal hearing and the contents of the recording. Accordingly, that the recording was played in open court does not necessarily mean that the injunction has no continuing utility.

The authorities relied upon by Ms Cole do overwhelmingly support a conclusion that once a document has been read in open court that it becomes part of the public domain. However, those authorities arose in a different context that the current case: namely, whether documents tendered in court remained under the protection of the Harman undertaking. While these authorities are helpful, one should be cautious about relying upon those authorities as being a complete answer to the relief claimed by the plaintiffs in this proceeding. Further, I note in Ms Cole’s written submissions the reference by Lord Roskill in Harman v Secretary of State for Home Development[63] to his view that the term ‘public domain’ as being of doubtful precision.’[64]
[63][1983] 1 AC 280.
[64]Ibid 304.

Further, and finally, there is no suggestion that the other recordings are in the public domain. Given that I have held earlier in these reasons that the plaintiffs should be permitted to rely upon the other recordings in the new pleading, the balance of convenience favours the maintenance of the injunction insofar as it concerns the other recordings.

The section 26 application

The plaintiffs have renewed the early disclosure application, at least in part, as an application under s 26 of the CPA.

In their proposed form of order, the plaintiffs seek an order that the defendants provide to the plaintiffs copies of the recording and the other recordings pursuant to their obligations under s 26 of the CPA.

Section 26 of the CPA provides as follows:

Overarching obligation to disclose existence of documents
(1)Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control—
(a) of which the person is aware; and
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.

(2) Disclosure under subsection (1) must occur at—
(a)the earliest reasonable time after the person becomes aware of the existence of the document; or

(b) such other time as a court may direct.
(3)Subsection (1) does not apply to any document which is protected from disclosure—
(a)on the grounds of privilege which has not been expressly or impliedly waived; or
(b)under any Act (including any Commonwealth Act) or other law.

(4) The overarching obligation imposed by this section—
(a)is an ongoing obligation for the duration of the civil proceeding; and
(b)does not limit or affect a party's obligations in relation to discovery.

Section 26 of the CPA only compels disclosure of critical documents. Unlike in an application for a Norwich order, s 26 does not require a party to go on oath as to how that party has dealt with the documents in question, as sought by the plaintiffs in the early disclosure application.

While the plaintiffs seek orders under s 26 with respect to the recording and the other recording, I suspect the real focus of the dispute is the other recordings. Mr Swords has said (but not on oath) that he has no other recordings. Ms Cole has given evidence during the course of the contempt proceeding to the effect that she made recordings of some of her conversations with Mr Buckley, which she has provided to her lawyers and to Victoria Police, but refuses to provide to Mr Buckley.

Given my finding earlier in these reasons that there is a sound factual basis for an allegation that Ms Cole has made and disseminated the other recordings, then prima facie, the other recordings are arguably critical documents within the meaning of s 26 of the CPA, regardless of their contents, because disclosure of their contents could facilitate the resolution of the dispute between Mr Buckley and Ms Cole. After all, it may well be that the contents of many of the other recordings are innocuous, and incapable of inflicting any meaningful reputational damage upon the plaintiffs or either of them, which could serve to narrow the issues in dispute between the parties.

However, it seems to me that there is no utility in making orders for the disclosure of the other recordings, on the basis that, based upon the allegations made by the plaintiffs in each iteration of their statement of claim, the terms of s 26(3) of the CPA apply to both the recording and the other recordings. While the defendants contend that they will be able to rely upon the exceptions in s 11 of the SDA in response to any allegations that the making and dissemination of the recording and the other recordings was unlawful, that does not preclude the defendants from relying upon the privilege against self-incrimination to resist disclosure of the recording and the other recordings. It was not contended by the plaintiffs that the defendants or either of them have waived any privilege in the recording and the other recordings.

Accordingly, the s 26 application will be dismissed.

The stay application

Mr Swords seeks a stay of the costs order on the basis that:

(a) the costs order was obtained as a consequence of the compromise of a dispute arising out of his employment dispute with Ultra Tune’s subsidiary, with Mr Buckley being the controlling mind of the County Court plaintiffs and Ultra Tune;

(b) Mr Swords is likely to be the beneficiary of a costs order in his favour in this proceeding as a consequence of the manner in which the interlocutory disputes in this proceeding have been determined to date, and the value of that costs order is likely to far exceed the sum of $25,000, being the value of the costs order;

(c) the financial health of the County Court plaintiffs will not be jeopardised by granting the stay application, while Mr Swords is impecunious, being dependent upon WorkCover benefits; and

(d) the refusal of the County Court plaintiffs to agree to stay the enforcement of the costs order evidences Mr Buckley’s collateral purpose in prosecuting this proceeding.

The plaintiffs opposed the stay application on the following grounds:

(a) this Court does not have the jurisdiction to stay the costs order, arising as it does out of a proceeding in another court; and

(b) even if this Court does have the power to stay the costs order, it should not do so, because the County Court plaintiffs are not parties to this proceeding, and the usual discretionary considerations weigh against granting the stay application.

The stay application will be dismissed, on the basis that I am not satisfied that this Court has the jurisdiction to stay the costs order, notwithstanding that the costs order was made by the Costs Court, which is a division of this Court.[65]
[65]See s 17C of the Supreme Court Act 1986 (Vic).

This Court is a court of unlimited jurisdiction within the state of Victoria. However, neither party to this dispute has directed me to any authority to the effect that this Court is empowered to stay the order of another court (in this case, the County Court), or, for that matter, that it is not permitted to do so.

I consider that the better view is that this Court does not have the jurisdiction to stay the costs order, or for that matter, to enforce the costs order.

Section 17J (1) of the Supreme Court Act 1986 (Vic) (‘Supreme Court Act’) provides as follows:

Costs in proceedings in another court or VCAT
(1)An order of the Costs Court as to costs made in the exercise of its jurisdiction under section 17D(1)(b), (c) or (d)—
(a) is taken to be an order of that other court or VCAT; and
(b) may be enforced accordingly.

Accordingly, notwithstanding that the Costs Court is a division of this Court, the costs order is taken to be an order of the County Court, and may be enforced accordingly. The words ‘and may be enforced accordingly’ are important, in that they convey an intention that the enforcement of a costs order made as a consequence of an order of a proceeding in another court is to be enforced in accordance with the legislation governing the procedures in that other court. And, as is apparent from the structure and terms of Order 66 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) (which are identical to the equivalent provisions of the County Court Civil Procedure Rules 2018 (Vic)), the power to stay the execution of a judgment or order is ancillary to the powers of a court to enforce its judgments and orders.

My view that this Court does not have the power to stay the costs order is bolstered by the terms of s 30 of the Supreme Court Act, and the various provisions of the Rules which empower this Court to stay the judgments and orders of inferior courts pending appeal.

Section 30 of the Supreme Court Act provides as follows:

Nothing in this Act affects the power of the Court to stay a proceeding in the Court, either of its own motion or on the application of any person, whether or not a party.

While s 30 of the Supreme Court Act refers to ‘a proceeding’ rather than judgments or orders, this section carries with it the implication that this Court does not have the power to stay a proceeding in another court. It seems incongruous that if this Court was held to have the power to stay a judgment or order made in the course of, or at the conclusion of a proceeding in another Court, when it does not have the power to stay the proceeding itself. Further, it also seems incongruous that this Court would have the power to stay an order of the Costs Court with respect to a proceeding in another court simply by reason of the order being an order of the Costs Court, in circumstances where it would have been open to the judge in the County Court to fix the costs in a gross sum, such that the jurisdiction of the Costs Court had never been enlivened.

The Rules do provide this Court the power to stay orders made by inferior courts pending an appeal, but those powers are expressly enumerated in the Rules in the provisions governing the procedure for initiating and conducting appeals.[66]
[66]See rr 23.01, 58.05, 58.12, 63.104, and 64.39.

Significantly, the only reference in Order 63 of the Rules to this Court’s power to stay an order of the Costs Court is r 63.104, which provides that unless a Costs Judge or a Judge of the Trial Division otherwise orders, an appeal of an order of the Costs Court does not operate as a stay of execution of that order. Order 63 does not contemplate or facilitate a stay being granted for any other purpose.

Accordingly, the stay application will be dismissed. It is not necessary for me to consider the other submissions of the parties regarding the matters relevant to the discretion to grant a stay.

Proposed orders

Accordingly, I propose to strike out those paragraphs of the new pleading where I have held that the plaintiffs, or either of them, do not have a tenable claim in fact or at law. I do not propose to grant leave to replead: while it is always open to any party to apply to amend their pleading, the plaintiffs have had many opportunities and a lot of time to get their case in order.

I also propose to provide the second defendant an opportunity to reflect upon whether he intends to press his summary judgment application with respect to the claims that remain, which would necessitate lifting the stay on that application. Further, I have not heard any submissions regarding the plaintiffs’ renewed application to stay the proceeding in its entirety, and I note that by reason of recent developments in the criminal proceeding the concern about potential jurors being adversely affected by publicity about this proceeding no longer arises. It may be that there are certain interlocutory steps and applications which can be progressed notwithstanding the pending criminal trial (including the setting of a trial date in 2025). Further, I expect that the defendants may have costs applications that they may wish to press regardless of any stay.

Accordingly, I will list the proceeding shortly after the end of the pending summer vacation to give the parties the opportunity to consider these reasons and to reflect upon and confer about the matters discussed above.

Subject to further consultation with the parties, I propose to make the following orders:

(a) paragraphs 43(b), 44, 45, 58, 78 to 83 inclusive, 84(c) and (e), 85(b), and 88(c) and (g) of the new pleading be struck out;

(b) the plaintiffs provide further and better particulars of the facts matters and circumstances relied upon by them to assert that the first defendant owed the fiduciary duties to the first plaintiff referred to in paragraph 75 of the new pleading;

(c) the application by the second defendant in paragraph 3 of his summons filed on 31 May 2021 be otherwise dismissed;

(d) the further hearing of the second defendant’s application in paragraph 1 of his summons filed on 31 May 2021 be adjourned to a date to be fixed;

(e) the first defendant’s application to vary the injunction in paragraph 1 of the Order made on 19 February 2021 be refused;

(f) the s 26 application be refused;

(g) the second defendant’s application to extend the stay granted in paragraph 1(f) of the Order made on 24 July 2023 be refused;

(h) the proceeding be listed for directions in February 2024 for the purpose of considering the following matters:

(i) the timing of the further hearing of the second defendant’s application for summary judgment;

(ii) whether the proceeding should be fixed for trial in early 2025, and what steps can be taken to progress the matter for trial;

(iii) the provision by the plaintiffs of further and better particulars of loss and damage, and the form in which those particulars should be provided;

(iv) the plaintiffs’ renewed application to stay the proceeding pending the hearing of the second plaintiff’s pending criminal proceeding listed for trial in November 2024; and

(v) the costs of the proceeding to date, and the listing of any applications for costs;

(i) for the avoidance of doubt, the stay in paragraph 1 of the Order made on 1 August 2022 remains in force; and

(j) the parties’ costs be reserved.

SCHEDULE OF PARTIES

S ECI 2021 00208
BETWEEN:
ULTRA TUNE AUSTRALIA PTY LTD (ACN 065 214 708)	First Plaintiff
PETER SEAN BUCKLEY	Second Plaintiff
- v -
JENNIFER COLE	First Defendant
ANTHONY SWORDS	Second Defendant

[2023] VSC 700

29 November 2023