Federal Court of Australia

Marsh Limited v Greensill Bank AG [2025] FCAFC 186

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Order 1 (being the declaration) made by the primary judge on 12 November 2024 be set aside.

3.    The respondents pay the appellants’ costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

A.    Introduction

1    The central question for determination in this appeal is whether the appellants, Marsh Limited and Marsh Pty Ltd (together, Marsh entities), breached the Hearne v Street obligation (see Hearne v Street (2008) 235 CLR 125; [2008] HCA 36), also commonly known as the “Harman undertaking” and the “implied undertaking”, by using documents discovered to Marsh Limited in proceedings in this Court (Greensill Proceedings) in an anti-suit proceeding brought in the High Court of Justice of England and Wales (English Court).

2    The primary judge concluded that the use of the documents by the Marsh entities in support of the anti-suit proceeding they brought in the English Court (Anti-Suit Application) was in breach of the Hearne v Street obligation and was not satisfied that it was appropriate to grant the Marsh entities a retrospective release from that obligation: Credit Suisse Virtuoso SICAV-SIF v Insurance Australia Limited (No 2) [2024] FCA 1308 (Primary Judgment or PJ).

3    The Marsh entities commenced the Anti-Suit Application, on a without notice (ex parte) basis, seeking to restrain the respondents, Greensill Bank AG (in administration) (GBAG) and Dr Michael Frege (in his capacity as the insolvency administrator of GBAG) (together, Respondents), from joining them to certain of the Greensill Proceedings. The Anti-Suit Application was based on an English exclusive jurisdiction clause in Marsh Limited’s letter of engagement with GBAG: PJ [3], [37].

4    The Marsh entities contend that it was necessary for them to review the documents discovered by the Respondents in the Greensill Proceedings in order to comply with the duty of full and frank disclosure imposed on applicants in ex parte proceedings in the English Court.

5    The evidence before the primary judge included expert reports from the Right Honourable Lord Mance (for the Marsh entities) and the Right Honourable Lord Hoffmann (for the Respondents) on English law concerning the duty of full and frank disclosure on an ex parte application.

6    We have respectfully come to a different conclusion to that reached by the primary judge, whom we acknowledge addressed the proceeding before his Honour on an expedited basis and delivered reasons the day after hearing the application.

7    For the reasons that follow, we have determined that the use of the documents by the Marsh entities in support of the Anti-Suit Application was not in breach of the Hearne v Street obligation.

B.    Background

B.1    Factual findings

8    The primary judge made the following findings of fact that were not in contest in the appeal and are relevant to provide the factual context for the resolution of the appeal.

9    The Greensill Proceedings are being case managed together in this Court and comprise three proceedings brought by various Credit Suisse entities (Credit Suisse Proceedings), six proceedings brought by the Respondents (GBAG Proceedings), and a proceeding brought by White Oak Commercial Finance Europe (Non-Levered) Limited: PJ [16].

10    The applicants in the Greensill Proceedings seek judgment against Insurance Australia Limited (IAL) in respect of an aggregate amount of claimed losses of approximately AUD 7,000,000,000 that they allege are payable under insurance policies issued by BCC Trade Credit Pty Ltd, as the authorised representative of IAL, to GBAG and Greensill Capital Pty Limited (in liq) (GCPL). The claimed losses relate to debts owed to Greensill Capital (UK) Limited (in administration) (GCUK) by its customers under purported supply chain or accounts receivable finance facilities: PJ [17].

11    The respondents to the Greensill Proceedings bring various defences and cross-claims, including allegations of misrepresentation, misleading or deceptive conduct and deceit against GCUK, GCPL and GBAG. In its defence, IAL also brings alternative allegations that certain entities, including the Marsh entities, are “concurrent wrongdoers”, but has not sought to join the Marsh entities to the Greensill Proceedings: PJ [19].

12    On 30 March 2023, case management orders were made in the Greensill Proceedings in relation to the sharing of documents, which allowed for the documents produced in one of the Greensill Proceedings to be used in the other Greensill Proceedings by any party to the Greensill Proceedings: PJ [24].

13    On 5 September 2023, the Marsh entities and the Respondents entered into a confidential standstill deed to toll limitation periods for certain claims that the Respondents may have had against the Marsh entities, including claims relating to the GBAG Proceedings (Standstill Deed): PJ [25].

14    On 7 November 2023, Marsh Limited was joined as a respondent to each of the Credit Suisse Proceedings: PJ [18(d)], [27]. The Respondents are co-respondents with Marsh Limited to the Credit Suisse Proceedings: PJ [16], [27]. The Credit Suisse entities seek damages and compensation from Marsh Limited for misleading or deceptive conduct and in negligence: PJ [18(d)].

15    In the period between 1 March 2024 and 1 July 2024, the Respondents discovered 221,027 documents in the Greensill Proceedings, including to Marsh Limited (GBAG Discovery): PJ [33]-[34]. During that period, and as at 29 July 2024 when the Anti-Suit Application was filed, Marsh Limited was a party to the Credit Suisse Proceedings, but not any of the other Greensill Proceedings, and Marsh Pty Ltd was not a party to any of the Greensill Proceedings: PJ [20].

16    On 2 July 2024, the solicitor for the Respondents, Ms Fox of Quinn Emanuel Urquhart & Sullivan Australia, wrote to the solicitor for the Marsh entities, Mr Foster of HFW England, giving the Marsh entities 30 days’ written notice of the Respondents’ intention to join the Marsh entities to the GBAG Proceedings: PJ [35]-[36]. The letter enclosed a termination notice issued under the Standstill Deed. The notice of termination of the Standstill Deed indicated that the final day of the standstill period would be 30 days later, being 1 August 2024: PJ [36].

17    On 3 July 2024, following receipt of that notice, Mr Foster determined that it would be necessary for the Marsh entities to proceed with the Anti-Suit Application. At that time, Mr Foster had not reviewed any documents discovered by the Respondents in the Greensill Proceedings for the purposes of the Anti-Suit Application, and nor, to his knowledge, had anybody else: PJ [37].

18    Mr Foster understood that the Marsh entities, as parties bringing an ex parte application, owed a duty of full and frank disclosure to the English Court in connection with the application. He further understood that in order for the Marsh entities to comply with this duty, they had to disclose all material facts, both favourable and unfavourable, that were relevant to the application and, prior to making the application, make enquiries in order to identify material facts that would need to be disclosed: PJ [37]. Mr Foster believed that this required him to consider what issues might have been raised by the Respondents in response to the Anti-Suit Application if it had not been made on an ex parte basis, including whether GCUK had actual or any other authority to bind GBAG to the letters of engagement with Marsh Limited: PJ [37].

19    The basis of the Anti-Suit Application was an English exclusive jurisdiction clause in Marsh Limited’s terms of engagement: PJ [37]. These terms were incorporated in a letter of engagement between GBAG and Marsh Limited for the 2018-2019 year. Marsh Limited had other letters of engagement with GCUK, which contained an “affiliates” clause that, according to Mr Foster, extended to GBAG: PJ [37]. An issue that arose on the Anti-Suit Application was whether GBAG was bound by the terms of the GCUK–Marsh Limited letters of engagement: PJ [43].

20    In the period between 4 July 2024 and 29 July 2024: (a) Marsh Limited gave Marsh Pty Ltd (a non-party) access to the GBAG Discovery through its lawyers: PJ [53], [83]; (b) the Marsh entities then caused their lawyers to review some or all of the GBAG Discovery for the purpose of preparing and bringing the Anti-Suit Application: PJ [39]; (c) the Marsh entities identified and reviewed thousands of documents in the GBAG Discovery for the purpose of preparing and bringing the Anti-Suit Application, including to inform their evidence and submissions: PJ [39], [44]; and (e) neither Marsh entity sought or obtained a release from the Hearne v Street obligation before reviewing the GBAG Discovery (PJ [40]) or before referring to and relying on the GBAG Discovery in their evidence and submissions in the Anti-Suit Application: PJ [44].

21    On 29 July 2024, the Marsh entities filed the Anti-Suit Application in the English Court: PJ [41].

22    The Marsh entities ultimately relied upon 12 specific documents from the GBAG Discovery in the Anti-Suit Application, four of which were referred to on the basis that they could be considered adverse to the interests of the Marsh entities, and the balance were relied upon to rebut any potential contention that might have been advanced by the Respondents that GCUK lacked authority to bind GBAG to the GCUK–Marsh Limited terms of engagement: PJ [47]. The Marsh entities also relied on the GBAG Discovery more generally, by making submissions about what the discovery “mostly” suggested or what the “preponderance” showed: PJ [50]-[51].

23    On 30 July 2024, the English Court conducted an ex parte hearing: PJ [3], [42]. At the conclusion of the hearing, the English Court granted an interim anti-suit injunction to restrain the Respondents from joining Marsh Limited to the relevant Greensill Proceedings in Australia but did not impose any restraint in respect of Marsh Pty Ltd: PJ [3], [52]. The Respondents subsequently raised concerns with the Marsh entities about the basis on which the interim relief was granted: PJ [54].

24    The Respondents then sought an ex parte anti-anti-suit injunction in this Court against the Marsh entities, seeking, among other things, a declaration that the Marsh entities had breached the Hearne v Street obligation: PJ [4]-[5], [57]. The request for declaratory relief was determined as a separate question (PJ [6]) and resulted in the declaration the subject of this appeal.

B.2    Subsequent judgment of the English Court

25    The English Court subsequently found that the Marsh entities’ failure to disclose to the English Court that they were using the GBAG Discovery in breach of the Hearne v Street obligation to the Australian Court – as held by the primary judge – was a “serious and substantial breach of Marsh’s duties to the English Court”: Marsh Limited and Marsh Pty Limited v Greensill Bank AG and Michael Frege [2024] EWHC 3068 (Comm) at [37]. The English Court then discharged the interim anti-suit injunction given in favour of Marsh Limited in respect of all periods, other than the one year covered by the engagement letter between GBAG and Marsh Limited.

C.    GROUND 1: The scope of the Hearne v Street obligation

C.1    Overview

26    By Ground 1, the Marsh entities contend that the primary judge erred in concluding that the use of the GBAG Discovery constituted use for a purpose that was not permitted by the Hearne v Street obligation, and was for a collateral purpose, or a purpose unconnected or unrelated to the legitimate purpose, and therefore constituted a breach of the Hearne v Street obligation.

27    The Marsh entities contended before the primary judge that the documents were not used for a collateral purpose because the issue of forum formed part of the dispute between the parties or, at least, the issue was not “unconnected” or “unrelated” to the claims advanced in the Greensill Proceedings: PJ [85].

C.2    Reasoning of the primary judge

28    The primary judge did not accept the contention advanced by the Marsh entities that the documents were not used by the Marsh entities for a collateral purpose for two reasons.

29    First, the primary judge considered that the contention adopted too broad a view of what amounted to a permissible use of documents for the purposes of the test articulated by Hayne, Heydon and Crennan JJ in Hearne v Street at [96] that a party cannot use discovered documents, without leave of the court, “for any purpose other than that for which [the discovery] was given”, unless they were received into evidence. His Honour acknowledged that while the judgment of Chesterman JA in Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) (2011) 1 Qd R 145; [2009] QCA 345 at [44]-[46] may “at first blush suggest a wider notion of permissible use”, the factual context in Northbuild was very different to the present case. His Honour observed that the documents produced in Northbuild were produced in the course of a freezing order application, and Chesterman JA was in that context satisfied that they were produced for purposes extending beyond the conduct of that application to the wider dispute between the parties: PJ [86].

30    Second, the primary judge was not satisfied that the use of the GBAG Discovery by the Marsh entities for the Anti-Suit Application was for the purpose for which they had been provided to the parties to the Greensill Proceedings. His Honour considered that the purpose for which the documents had been discovered could be described as the purpose of the conduct of the Greensill Proceedings, including defending claims brought against a party in the proceedings. His Honour did not accept the broader characterisation of the purpose of production advanced by the Marsh entities, being for the “dispute between the parties” that was “unmoored from any particular proceeding or process”. His Honour observed that in practical terms, by bringing the Anti-Suit Application, the Marsh entities sought to prevent the Court exercising jurisdiction in relation to a claim and, thereby, the purpose of preparing and bringing the Anti-Suit Application for which the Marsh entities used the GBAG Discovery was the “antithesis of the purpose of the conduct of the Greensill Proceedings”: PJ [87]

31    The primary judge accepted that if the Anti-Suit Application had not been made, and GBAG had joined Marsh Limited to the GBAG Proceedings, it would have been open for the Marsh entities to have relied on the GBAG Discovery for the purposes of bringing an application to stay the proceedings on the basis of the English exclusive jurisdiction clause. His Honour considered that a stay application would have had an entirely different character to an anti-suit injunction as it would have been brought after a claim had been made in the Greensill Proceedings, and, therefore, it would not have precluded the claim from being made. Further, it would seek to have this Court exercise jurisdiction in relation to the claim – not prevent it from exercising jurisdiction in relation to the claim: PJ [88].

C.3    Principal contentions of the parties

32    The Marsh entities contend that the primary judge misapplied the principle in Hearne v Street at [96] as the “sole (and literal) test”, when other judgments support a broader formulation. They contend that the test adopted in other judgments suggest a wider notion of permissible uses, namely, whether the purpose for which the documents are used is “unrelated to” or “unconnected with” the determination of the dispute, which is the subject of the relevant proceeding, and whether the purpose for which the documents were used was not reasonably necessary for the proper conduct of litigation directed to the determination of that dispute.

33    Further, the Marsh entities contend that the primary judge erred in finding that the Marsh entities’ use of the GBAG Discovery was not for the purpose for which it was given, that is, the purpose of the conduct of the Greensill Proceedings. The Marsh entities accept that a stay application and an anti-suit injunction are not of the exact same character but contend that the primary judge failed to find that both remedies serve the same underlying purpose, being the resolution of the jurisdictional conflict and determination of the appropriate forum for the Respondents’ claims against the Marsh entities. They therefore submit that the use of the GBAG Discovery, whether to pursue either a stay or an anti-suit injunction, was equally referable to the conduct of the Greensill Proceedings and that either application would be directed at preventing the Australian court from exercising jurisdiction.

34    The Respondents contend that to the extent any other cases articulate a substantively different test (whether narrower or wider), as a matter of precedent, the primary judge was bound to follow what the High Court had decided in Hearne v Street at [96]. Moreover, the Respondents contend that the primary judge did not wrongly apply the words of Hearne v Street, as if they constituted a statutory test, as demonstrated by his Honour’s analysis of Northbuild at PJ [86]. They submit that this analysis illustrates an awareness that the factual context of a case can influence precisely how the test is articulated. The Respondents contend that the primary judge made no error in declining to follow Chesterman JA’s language of “connected” and “related” in Northbuild, as the factual context of that case was very different from the present case.

35    The Respondents contend that the primary judge correctly focused on the purpose for which the GBAG Discovery was given, rather than on the purpose for which the Marsh entities sought to deploy it. They submit that the primary judge did not err in finding that the purpose for the production of the GBAG Discovery documents in this case was the conduct of the Greensill Proceedings, and the Marsh entities’ use of the GBAG Discovery was “well outside” the purpose for which discovery was given. The Respondents contend that it cannot rationally be said that an application designed to prevent a claim being made at all in the Greensill Proceedings, and to prevent this Court from exercising its jurisdiction at all, is for the purpose of the conduct of the Greensill Proceedings.

36    The Respondents contend that a stay application and an anti-suit injunction are of a fundamentally different character, and that the Marsh entities’ contentions erroneously focus on the purpose of the applications, rather than the purpose for which the GBAG Discovery was given. Specifically, they contend that the GBAG Discovery could only be used for the purpose of resolving questions of forum within the Greensill Proceedings, and that the primary judge correctly held that seeking to resolve that question of forum in the English Court fell “well outside” the purpose for which the GBAG Discovery was given.

37    Finally, the Respondents contend that, in any event, even if using the GBAG Discovery for the Anti-Suit Application was a permitted use, that still would not regularise Marsh Limited’s decision to allow Marsh Pty Ltd to access the GBAG Discovery to bring its own anti-suit application, as that conduct was well outside the purpose for which the GBAG Discovery was given.

C.4    Consideration

38    In Hearne v Street, the plurality (Hayne, Heydon and Crennan JJ) relevantly stated at [96]:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence…

(Emphasis added.)

39    The test seeks to preclude any use of discovered documents “for any purpose other than that for which [the discovery] was given”. Significantly, it does not seek to confine the purpose for which documents might have been produced under compulsion to their use only in the proceeding in which they were produced. At least implicitly, the test accepts that its application will necessarily turn on the specific factual context in which the documents have been produced.

40    The primary judge construed the purpose for which the documents were produced in the present case as the “purpose of the conduct of the Greensill Proceedings”: PJ [87]. With respect, we are not persuaded that such a conclusion is mandated by the test articulated in Hearne v Street. Neither do we agree, with respect, that authorities suggesting a broader test can be discounted on the basis of their specific factual context or because they are first instance judgments (or, in one case, an intermediate appellate judgment). We view those authorities as providing a practical application and amplification of the test in Hearne v Street, rather than propounding any alternative or bespoke test confined to a specific factual context.

41    As submitted by the Respondents, there are, broadly speaking, three categories of cases in which Courts have found that the purpose of production has extended beyond use in the proceeding in which the documents have been produced. The first is cases in which material has been produced in freezing order proceedings or as preliminary discovery, the second is where material is obtained in the course of mandatory liquidators’ examinations and is used in subsequent proceedings involving the company, and the third is where there is a related administrative process for assessing an insurance claim. In each case, it can readily be inferred that the “purpose” for which documents were produced necessarily contemplated use in a second proceeding or forum. As Stewart J found, with respect to the second category of cases, in LCM Operations Pty Ltd, In the matter of 316 Group Pty Ltd (In Liquidation) [2021] FCA 324 at [25]-[27], as the predominant purpose of the applications for examinations and production of documents was “to investigate the very claim which LCM now pursues in the Supreme Court proceeding”, the purpose for which they were sought to be used was the “very purpose” for which they were obtained under a compulsory process of the Court.

42    A related difficulty in seeking to identify the specific purpose for which documents are produced is the need to identify the specific purpose for production and then to compare that purpose with the purpose for which the documents were sought to be deployed. That exercise might well be thought to be somewhat artificial. By way of example, documents produced on discovery by reference to categories may be provided because they concern particular contentions advanced in a pleading. It is not readily apparent how such a confined purpose could extend, by way of example, to the filing of a cross-claim, the joinder of new parties or bringing an anti-anti-suit application in the proceeding. Rather, as was the approach taken by the primary judge, the purpose of the production of documents is typically identified in more generic and imprecise terms such as the “conduct of the proceedings”.

43    The Marsh entities placed significant reliance on statements made by Chesterman JA (in obiter) in Northbuild as to the scope of the Hearne v Street obligation.

44    After observing that the scope of the Hearne v Street obligation had been differently expressed in previous authorities, including in Ainsworth v Hanrahan (1991) 25 NSWLR 155 and Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, Chesterman JA stated at [38]:

One gleans from this review of some of the authorities that what a party to litigation may not do with documents produced pursuant to compulsive processes is to utilise them for purposes “unconnected” with the litigation; or “unrelated” to it; or for a purpose “not reasonably necessary for the conduct of the litigation”.

45    His Honour stated that the undertaking would not be breached unless the impugned disclosure was for a “collateral purpose” or an “ulterior purpose” (at [40]). His Honour observed at [47]:

When one comes to answer the question: are documents produced on discovery being used for a purpose unrelated to or unconnected with the proceeding, or litigation, in question or not for a purpose reasonably necessary for the conduct of the litigation?, one must analyse what is the litigation or proceeding in question. One should not take any narrow or technical approach to the analysis.

46    His Honour then concluded at [50]:

The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.

47    The observations made by Chesterman JA in Northbuild have received support in subsequent cases.

48    In Deputy Commissioner of Taxation v Karas [2012] VSC 143, the Deputy Commissioner sought to use material produced in freezing order proceedings against the taxpayer in a separate proceeding to enforce an existing judgment debt and in any appeals or reviews of the taxpayer’s objections to the Deputy Commissioner’s taxation assessments. After referring to the observations by Chesterman JA in Northbuild, Forrest J relevantly stated in Karas at [43]:

In my view, the reasoning of Chesterman JA is persuasive and should be followed. In this case, the freezing order is intimately bound up with the enforcement of the recovery proceeding in this Court. It is not for a purpose unrelated to the obtaining of the freezing order which seeks to preserve the assets which may be the subject of legal proceedings undertaken by the Deputy Commissioner…

49    His Honour considered that “the fact that such a proceeding is in a different court … is immaterial provided the relevant processes are sufficiently related” (at [43]).

50    In Gavan v FSS Trustee Corporation [2019] NSWSC 667, Ward CJ in Eq, after referring to a submission that, consistently with the dicta of Chesterman JA in Northbuild, the documents to be produced should be understood as “to do with resolving the one dispute”, observed at [89]-[90]:

“Ulterior” or “collateral” purpose in this context has been described in the case law interchangeably as: a purpose outside of the proceedings; a purpose other than the proceedings; an extraneous purpose; and an alien purpose. In Zuckerman on Australian Civil Procedure (Adrian Zuckerman et al., (LexisNexis Butterworths Australia, 2018)) (Zuckerman) the process of establishing the relevant purpose of obtaining and using the documents is referred to as the ‘purpose of proceedings test’. According to the authors of Zuckerman, the ‘purpose of proceedings test’ allows “not only use in the very proceedings in which discovery is granted, but also uses that can legitimately be regarded as flowing from the purpose of the original proceedings” (my emphasis) (at [15.188]).

Further, the authors of Zuckerman note that the test is flexible, permitting the use of disclosed documents “for a variety of purposes that go beyond, but are closely connected to, the proceedings in which the relevant disclosure was made” (at [15.190]; and that the test may “be expanded to a test that says that documents obtained in discovery may be used for the purpose for which the order was made, namely the purposes of that litigation then before the court between those parties” (at [15.189]).

51    Her Honour concluded that in the circumstances before the Court in Gavan, the use of documents produced under a notice to produce in order for an insurer to determine an insured’s claim to a total permanent disablement benefit would not infringe the Hearne v Street obligation because it was not used “for a purpose unconnected with the litigation in the course of which the documents have been required to be produced” (at [91]).

52    Her Honour accepted that there were two parallel processes in play: the determination by the insurer of Ms Gavan’s claim, and then, if refused, a determination by the Court of her claim, but considered the two processes were “connected in the sense that the documents sought will inform and be relevant to the same primary issue” (at [92]).

53    Subsequently to her Honour’s decision in Gavan, Ward CJ in Eq observed in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 at [47]:

I noted in Gavan v FSS Trustee (and followed) the obiter dicta of Chesterman JA in Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; [2009] QCA 345 (Northbuild), where his Honour (having concluded that: in order to determine whether a proposed use of protected documents is unconnected with, unrelated to or not for a purpose reasonably necessary for, the conduct of the litigation, it is necessary to analyse the litigation not in a manner constrained by “any narrow or technical approach” (at [47]); and that the scope of the Hearne v Street obligation is that documents produced under compulsive curial process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of the dispute in which the documents were required) said (at [50]) that:

The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.

54    In Hazell-Wright v 32 Domain Pty Ltd [2020] VSCA 129, an applicant (defendant) sought leave to appeal a decision of a judge in the Victorian County Court refusing to grant leave to the applicant to file a further amended defence. The proposed further amended defence referred to affidavits filed in a Family Court proceeding. The County Court judge found that the Hearne v Street obligation remained in force in relation to some of the Family Court affidavits, and the applicant was not permitted to refer to them in her proposed further amended defence: 32 Domain Pty Ltd v Hazell-Wright [2019] VCC 629. Ultimately, it was not necessary for the Court of Appeal of the Victorian Supreme Court to determine the Hearne v Street obligation issue because the parties sought and obtained an order from the Family Court providing for a release from the Hearne v Street obligation. Nevertheless, the Court of Appeal observed that there was real merit in the applicant’s principal contention that the Hearne v Street obligation did not apply to her proposed defences based on estoppel and abuse or process.

55    The Court of Appeal noted in Hazell-Wright at [17]-[18], that the applicant had submitted that the Hearne v Street obligation did not preclude reliance on documents in subsequent proceedings which were “directly connected with, and intimately related to, the purpose for which they were initially made available” and had contended that proposition was supported by the reasoning in Spalla v St George Motor Finance Ltd [2004] FCA 1014; (2004) 209 ALR 703 at [39] (Ryan J); Northbuild at [44]-[47], Gavan and Findex Group. Their Honours, Tate, McLeish and Hargrave JJA, then observed at [19]-[20]:

In our view, these cases provide support for a general proposition that there is a class of subsequent cases between the same parties, or their privies, where the connection between the two cases has the result that the Harman undertaking in the earlier case does not prevent use of documents or information subject to that undertaking in the subsequent proceeding. In this case, the connection to the proposed estoppel and abuse of process defences is particularly strong, as those defences depend entirely for their existence on the whole of the issues in, and the conduct of, the Family Court proceeding. …

In our view, there was much force in the applicant’s argument that each of the proposed defences ‘arises directly out of’ or is ‘legitimately’ connected with the property settlement issues concerning the apartment which appear to have been finally resolved by the Family Court proceeding. Rather than using the documents for a purpose ulterior to the Family Court proceeding, the applicant seeks to use them to demonstrate that the respondent seeks to undermine the Family Court proceeding. In these circumstances, it does not appear that there is any ‘collateral’ or ‘ulterior’ purpose in the proposed use of the documents and information subject to the Harman undertaking in the Family Court in the County Court proceeding. However, as already noted, we need not decide that question.

[Footnotes omitted.]

56    In Royal Express Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v Huang, in the matter of Royal Express Pty Ltd (No 5) [2021] FCA 1302, Anastassiou J concluded at [20] that the proposed use by receivers of documents, which had been obtained in a proceeding, in a foreshadowed public examination was not use for a purpose “unconnected with, or collateral to, the litigation in the course of which the documents were created or produced”, citing the test applied by Ward CJ in Eq in Gavan at [91]. His Honour considered that the proceeding and the foreshadowed public examinations ought to be viewed as:

... symbiotic, in the sense that the public examinations are intended to investigate the examinable affairs of Royal Express, including potential contraventions of the Corporations Act, which are at the heart of the principal allegations in the Plaintiff’s Statement of Claim.

57    In our view, a formulation of the relevant test that is directed at a purpose that is “connected with” or “related to the determination of” a “dispute” between parties, rather than at a purpose that is confined to the use of the disclosed documents or information in the specific proceeding in which it was disclosed, produces a test that is better placed to capture the “purpose … for which [the discovery] was given”, as stipulated in Hearne v Street at [96].

58    We accept his Honour’s characterisation that a stay application and anti-suit injunction are not of the same character: PJ [88]. That is, a stay application is brought after a claim has already been made and seeks to have the Court exercise its jurisdiction in relation to the claim by considering whether or not it should be stayed: PJ [88]. In contrast, an anti-suit injunction seeks to prevent the Court from exercising jurisdiction in relation to the claim: PJ [88].

59    Although stay applications and anti-suit injunctions are not governed by the same principles, both, in effect, seek to resolve a jurisdictional conflict and determine the appropriate forum for a dispute to be litigated.

60    The primary judge found at PJ [88] that if the Marsh entities had not brought the Anti-Suit Application, but instead the Respondents had joined the Marsh entities to the GBAG Proceedings, it would have been permissible for the Marsh entities to use the GBAG Discovery to bring a stay application, as it would not prevent this Court from exercising its jurisdiction in relation to the claim. Rather, the primary judge concluded a stay application would seek to have this Court exercise jurisdiction in relation to the claim by considering whether or not there should be a stay.

61    Viewed through the lens of the purpose of a conduct of a proceeding, we see no substantive difference between asking a Court to stay a proceeding and thus refrain from exercising jurisdiction in relation to a claim, and asking another Court by way of an anti-suit injunction to prevent a party from causing a Court to exercise jurisdiction in relation to a claim. Both purposes are directed at the “conduct of” a proceeding in a Court. The conduct of a proceeding necessarily encompasses claims to be advanced in the proceeding, and this, in turn, directs attention to both the claims that are permitted to be pursued and the claims that are not permitted to be pursued in the proceeding.

62    Moreover, contrary to the submissions advanced by the Respondents, we do not accept that using documents to prevent a claim being ventilated within a set of proceedings is the antithesis of a use for the purposes of the proceedings. An application for summary dismissal might equally be characterised as an attempt to prevent a claim being ventilated within a proceeding and, therefore, as its antithesis, but it could not be suggested that the use of discovered documents for that purpose was precluded by the Hearne v Street obligation.

63    Finally, the primary judge found at PJ [83] that Marsh Pty Ltd was bound by the same Hearne v Street obligation as Marsh Limited. It therefore follows that if the use of the GBAG Discovery by Marsh Limited for the purpose of complying with its obligation of full and frank disclosure was permitted, it would equally be permitted by Marsh Pty Ltd, particularly given the primary judge’s finding at PJ [53] that at no stage were any employees of Marsh Pty Ltd given access to the GBAG Discovery.

D.    GROUND 2: Whether the Hearne v Street obligation yields to the curial process

64    By Ground 2, the Marsh entities contend that the primary judge erred in finding that the Hearne v Street obligation did not yield to the English law obligation of full and frank disclosure on an ex parte application.

65    Given our conclusion in response to Ground 1 that there was no contravention by the Marsh entities of the Hearne v Street obligation, the question of whether the obligation yielded to the English law obligation of full and frank disclosure on an ex parte application does not arise.

E.    GROUND 3: The Release Application

66    By Ground 3, the Marsh entities contend that the primary judge erred in declining to grant them a release, nunc pro tunc, to use the GBAG Discovery for the purposes of the Anti-Suit Application.

67    Given our conclusion in response to Ground 1 that there was no contravention by the Marsh entities of the Hearne v Street obligation, the question of whether the primary judge erred in declining to grant the Marsh entities a release, nunc pro tunc, to use the discovered documents for the purposes of the Anti-Suit Application does not arise.

F.     Disposition

68    The appeal against the declaration made by the primary judge in Order 1 of the orders made by the primary judge on 12 November 2024 is to be allowed, and the declaration is to be set aside. There is no need to set aside Order 4 of the orders made by the primary judge dismissing the application for relief from the Hearne v Street obligation because that relief was contingent on the obligation otherwise being breached, and, similarly, there is no need to deal with leave being sought nunc pro tunc.

69    The Respondents are to pay the costs of the Marsh entities of the appeal. We otherwise note that the costs of the proceeding below were reserved until the determination or discontinuance of this appeal, pursuant to an order made by consent on 13 December 2024 by the primary judge.

Associate:

Dated:    17 December 2025