Federal Court of Australia

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

ORDERS

THE COURT DECLARES THAT:

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

THE COURT ORDERS THAT:

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

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

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

REASONS FOR JUDGMENT

JAGOT J:

Background

1    On 30 July 2021 I ordered that the unredacted defence and unredacted reply be removed from the Court file and granted the applicant leave to file a notice of discontinuance within seven days on the basis that there be no order as to costs. These orders were consequential on my reasons for judgment in Porter v Australian Broadcasting Corporation [2021] FCA 863 (the principal judgment).

2    Terms defined in the principal judgment have the same meaning in these reasons for judgment.

3    In the principal judgment at [42]-[45] I queried the assumption apparently underlying the applicant’s application for removal of the documents from the Court’s file, that the intervening parties (being Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd) would be prevented from using the copies of the unredacted documents they held by reason of the operation of the principle in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, referring to Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226, Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 at [35], Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419 and eisa Limited v Damien Brady [2000] NSWSC 929 at [21]. The Hearne v Street obligation is expressed as follows at [96] of that judgment:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order [Anton Piller KG v Manufacturing Processes Ltd [1976] 1 Ch 55], witness statements served pursuant to a judicial direction and affidavits.

4    As I had not raised these issues during oral argument, I also stayed the order I made vacating the interim suppression and non-publication orders. I anticipated that Mr Porter may wish to apply for a permanent suppression and non-publication order given the uncertainty in the cases about the application of the principle in Hearne v Street to pleadings.

5    Mr Porter’s lawyers sought confirmation from the intervening parties that they accepted the Hearne v Street obligation applied to the copies of the unredacted documents they held. The intervening parties refused to provide the confirmation sought. Mr Porter then filed an interlocutory application on 13 August 2021 for a declaration to the effect that the intervening parties and their lawyers are bound by the obligation. In response to a question during the hearing of the interlocutory application Mr Porter made an application for leave to amend the interlocutory application by seeking, in the alternative to the declaration, a permanent suppression and non-disclosure order binding the intervening parties. The intervening parties did not object to the amendment of the interlocutory application, but opposed the making of the declaration or any permanent suppression and non-disclosure order. I granted Mr Porter leave to orally amend the interlocutory application to seek the alternative orders.

6    For the reasons below the declaration should be made, subject to amendment of the terms to reflect the Hearne v Street obligation.

Facts

7    The defence and reply were filed on 4 May 2021.

8    On 5 May 2021 Mr Porter filed an interlocutory application seeking orders including for suppression and non-disclosure of the schedules to the defence. The respondents then sought suppression of the paragraphs of the reply responsive to the impugned parts of the defence.

9    At the case management hearing on 7 May 2021 Mr Sibtain of counsel appeared for the intervening parties. Mr Sibtain explained that he appeared in relation to Mr Porter’s application for removal of the unredacted documents from the Court’s file and any other application for non-publication of the unredacted documents. He also opposed the making of any interim suppression and non-publication order under s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Court Act), (as did the respondents), but I made such an order to preserve the status quo pending the hearing and determination of Mr Porter’s interlocutory application. The making of other orders to ensure that the interlocutory application could be made ready for hearing was deferred to enable discussions between the parties about the terms of those orders. Mr Sibtain and I then had this exchange:

MR SIBTAIN: - - - Because it could – would your Honour include in any orders and directions that any documents referable to these applications be also served on my instructors?

HER HONOUR: Yes. Yes. That’s fine. Yes.

MR SIBTAIN: Thank you, your Honour.

HER HONOUR: Well, as I say, these need to be put down in formal orders, and probably they do in order to – rather than me actually sitting here making them, I would ask the parties - - -

…

to just include all these things in the orders.

10    The parties indicated that they would agree the terms of the orders to be made.

11    The applicant’s solicitor then emailed proposed orders to my Chambers on 10 May 2021 reflecting the outcome of the case management hearing. I made orders in Chambers on the basis of those proposed orders. The orders included an interim suppression and non-publication order which bound the intervening parties as if they were a party to the proceeding. Order 3 said:

The intervening parties are each bound by order 1 [the interim suppression and non-publication order] as if the word “party” in that order means “party or intervening parties” and the words “conduct of the proceeding” mean “intervening parties being heard in respect of the making of a further or final suppression order or non publication order in respect of the interim suppressed information”.

12    The orders also provided for the intervening parties to be served with any affidavits and submissions in support of the interlocutory application and permitted the intervening parties to file and serve any affidavits and submissions in answer. The interlocutory application was fixed for hearing on 1 and 2 June 2021. The orders did not provide for the applicant or respondents separately to serve a copy of the unredacted documents on the intervening parties.

13    On 17 May 2021 the lawyers for the intervening parties sent an email to the lawyers for Mr Porter saying:

Please serve us with the following documents as a matter of urgency:

 (1)     Un-redacted defence dated 4 May 2021;

 (2)     Un-redacted reply dated 4 May 2021;

(3)     Any affidavits and/or submissions filed and served in support of the Applicant's interlocutory application.

As you know, her Honour Justice Jagot’s orders of 10 May 2021 contemplate us being served with the material at the same time as the Respondents in the proceeding. Despite the material being served on the Respondents on 13 May 2021, we are yet to receive the documents.

Our clients’ evidence and submissions are due on 26 May 2021.

If we do not receive the material by 10am tomorrow 18 May 2021 we intend to raise this matter with the Court.

14    On the same day the lawyers for Mr Porter responded saying:

We refer to the orders of Justice Jagot on 10 May and provide you with copies of the interim supressed material and our client’s submissions.

15    The proceeding settled on 31 May 2021.

16    After I made orders for removal of the unredacted documents from the Court’s file on 30 July 2021, and in accordance with the orders, Mr Porter filed a notice of discontinuance on 7 August 2021. There was also an exchange of correspondence between the lawyers for Mr Porter and the lawyers for the intervening parties. The result of this exchange was that the intervening parties said they were not willing to provide confirmation that “the relevant materials provided to your firm as intervenors in these proceedings will not be used for any purpose other than these proceedings which have now been discontinued”. Mr Porter filed the interlocutory application in response seeking the declaration on 13 August 2021.

17    In the oral hearing the intervening parties opposed the making of any declaration to the effect that the Hearne v Street obligation applied to the copies of the unredacted documents with which they had been provided by the applicants on 17 May 2021 and the making of any permanent suppression and non-publication order against them in respect of those documents.

Consideration

18    Hearne v Street at [96] does not refer to a pleading as one of the kinds of documents the subject of the obligation. This, however, is immaterial. The kinds of documents identified in [96] of Hearne v Street do not purport to be exhaustive.

19    In Treasury Wine Estates the Full Court concluded that: (a) the obligation ceased to apply on receipt of the document into evidence, because by that means (and subject to any contrary order) the document would have entered the public domain and lost any quality of confidentiality, (b) in a case where no order restricting access to a pleading is made on filing, the obligation cannot apply to a pleading in the Federal Court given the terms of r 2.32(2) of the Federal Court Rules 2011 (Cth) (which permits public inspection of pleadings without leave).

20    In contrast to Treasury Wine Estates, in the present case orders restricting access to the unredacted documents were made on the filing of those documents. The unredacted documents have never been in the public domain as a result.

21    In eisa at [21] Santow J considered that the obligation applied to pleadings. In Helicopter at [35] Brereton J concluded to the contrary without referring to eisa. In Payce Henry J considered eisa and Helicopter and, in obiter dicta, preferred the view of Brereton J in Helicopter. Her Honour’s reasons included that: (a) parties file pleadings voluntarily, (b) the purpose of the obligation is to protect the privacy of the person disclosing (under compulsion) the relevant document and thereby encourage full and frank disclosure during litigation, (c) pleadings communicate the nature of the parties claim and defence, and are the basis on which proceedings are conducted in open court from the start of the court process, and are not read into evidence, and (d) access to pleading with leave of the Supreme Court is able to be obtained (different from the circumstances which applied when eisa was decided).

22    Importantly, in Payce, the person who had made use of the pleading in other proceedings was the party upon whom the pleading had been served. Justice Henry considered this to be a distinguishing factor compared to cases in which a non-party was seeking access to a document, such as in eisa.

23    I consider that the present case may be resolved without entering the debate about whether the Hearne v Street obligation applies to a pleading either at all or in the hands of a party. The reason for this is that the status of the unredacted documents as pleadings does not matter on the facts in the present case insofar as those documents are in the hands of the intervening parties. Nor does it matter for that purpose that the respondents prepared and filed the unredacted defence.

24    The relevant facts in the present case are confined to the following: (a) as soon as practicable after the filing of the defence, Mr Porter sought and obtained interim suppression and non-publication orders, with the consequence that the unredacted defence and unredacted reply have never been made public, (b) the intervening parties obtained access to the unredacted documents from the applicant for the sole purpose of arguing the position of the intervening parties in response to Mr Porter’s interlocutory application, (c) such access was obtained subject to the interim suppression and non-publication orders, which expressly referred to the fact that access was for the purpose of the “intervening parties being heard in respect of the making of a further or final suppression order or non publication order in respect of the interim suppressed information”, (d) while the orders of 10 May 2021 did not, in terms, require Mr Porter to serve the unredacted documents on the intervening parties, the orders did require that he serve on them the affidavits and submissions in support of the interlocutory application, which was intended to include the unredacted documents proposed to be the subject of the hearing on 1 and 2 June 2021 and in respect of which the intervening parties sought to be heard, (e) when the lawyers for the intervening parties requested provision of the unredacted documents they (rightly) did so by reference to the orders of 10 May 2021 and by reference to a threat of compulsion, (f) the lawyers for Mr Porter also provided the documents to the lawyers for the intervening parties by reference to the orders of 10 May 2021 and in response to that threat of compulsion, (g) the documents have been removed from the Court file and have not been and will not be made public without leave of the Court, and (h) a dispute has arisen between Mr Porter and the intervening parties as to whether the Hearne v Street obligation applies to the copies of the unredacted documents the lawyers for the intervening parties obtain from the lawyers for Mr Porter.

25    In these circumstances I consider that the Hearne v Street obligation applies to the unredacted defence and unredacted reply as held by the intervening parties and their lawyers. Those documents, in the hands of the intervening parties and their lawyers, are within the scope of the principle explained in Hearne v Street at [96].

26    I do not accept the submissions for the intervening parties to the contrary.

27    As noted, it cannot be concluded that the lawyers for Mr Porter provided the documents on 17 May 2021 other than under sufficient compulsion to do so. It may be inferred from the orders of 10 May 2021 that the parties intended that the unredacted documents would form part of the affidavit evidence filed in support of the interlocutory application. The orders, properly construed, required service of the affidavits and submissions on the intervening parties so they could file and serve affidavits and submissions in response. The fact that the documents ended up being served with the submissions under cover of the email of 17 May 2021 is immaterial. The purpose of including the intervening parties within the interim suppression and non-publication orders of 10 May 2021 was to enable them to be served with the material supporting the interlocutory application which necessarily included a copy of the unredacted defence and unredacted reply. Having invoked the orders of 10 May 2021 to obtain service it is not now for the intervening parties to suggest that the documents were served other than as required by the orders of 10 May 2021. This is consistent with the approach in King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Limited (Discovery) [2019] FCA 1408 at [10] where Perram J said:

It has been held that where a party at the request of an opposing party produces a document for the purposes of a proceeding then the implied undertaking attaches to that document. In such cases, were the request to be refused the opposing party would be able to issue a notice to produce or subpoena or otherwise to compel production. It would be anomalous that a document produced in such circumstances were treated as if it had been produced other than under compulsion. As such, the principle extends not only to those cases where the document is actually compulsorily produced under a court rule or a court order but also to those situations where a document is produced in response to a request for production which is clearly made as a practical suggestion to avoid the invocation of the court’s compulsory processes. This is true as a matter of analysis for the production is not really voluntary but instead is to be seen as having been made under a species of lawful duress, namely, the lawful implied threat of compulsory production. It is also true as a matter of policy for to hold otherwise would be to create an unwholesome incentive for parties to litigation not to co-operate and instead to insist on the requesting party to issue a notice to produce or invoking some other formal means of compulsory production. In an age where the curial fashion is to encourage co-operation between parties and the efficient use of court resources, such an approach would be hard to justify. Examples of the implied undertaking being extended to situations where production is given in response to a request being made by the opposing party against a backdrop of a possible application for compulsory production include Bourns Inc v Raychem Corp [1999] 3 All ER 154 at 170 per Aldous LJ (Sir Stephen Brown P and Swinton Thomas LJ agreeing) and Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at [17] per Brereton J.

28    The Hearne v Street obligation is owed to the Court, and not to any individual party. This is why breach of the obligation may be a contempt of court. It does not matter that the respondents prepared and filed the defence. In the circumstances in which the intervening parties obtained the unredacted defence and unredacted reply, the obligation attaches to the documents in the hands of the intervening parties and their lawyers. This is not contrary to and involves no distortion of the purpose of the obligation. The purpose of the obligation is not confined to protecting the private interests of the person who has prepared the document. The purpose is to protect the administration of justice by ensuring that, to the extent practicable, a party subject to the compulsory procedures of the court is not subject to disadvantage by complying with those compulsory processes to any greater extent than is necessary having regard to the nature of the judicial function.

29    These conclusions do not involve an “after the fact” conclusion. The obligation arose immediately on the lawyers for the intervening parties receiving the unredacted documents from the lawyers for Mr Porter. Had Mr Porter’s interlocutory application been finally determined against him, the consequence would have been that the unredacted documents became public. On that basis, consistent with the reasoning in Treasury Wine Estates, the obligation would cease to apply to the unredacted documents in the hands of the intervening parties and their lawyers.

30    The fact that Mr Porter might be able to access other remedies (contempt of court or defamation) should the intervening parties act in breach of the obligation is immaterial. If the obligation exists, and it does, Mr Porter is entitled to the protection given by the obligation. While a declaration is a discretionary order, there is no basis upon which it could be concluded that contempt of court or defamation action are equivalent or similar remedies to the making of the declaration as sought given that the intervening parties have refused to confirm that they hold copies of the unredacted documents subject to the obligation.

31    Nor does it matter that the effect of the making of the declaration will be the same as the making of a suppression order. The obligation either applies to the unredacted documents in the hands of the intervening parties or it does not. For the reasons given, the obligation does apply. Further, the making of a declaration to quell a dispute between the parties about the status of the unredacted documents in the hands of the intervening parties should either be made or it should not. In circumstances where the evidence discloses the existence of a dispute between Mr Porter and the intervening parties about the status of the documents in their hands as subject to the obligation or not, a declaration is available and should be made to quell the controversy.

32    It is not to the point that, as a result of the settlement, Mr Porter did not prosecute his claim for a permanent suppression and non-publication order. I have already indicated in my principal judgment the view I hold that the appropriate course in matters such as the present is for the making of an application for interim then final suppression and non-publication orders and that, in any event, the same principles should be applied to the kind of orders Mr Porter sought (for the marking of the unredacted documents as “confidential” to prevent public inspection and their removal from the Court file).

33    For the same reasons it is not material that the reasons supporting the making of the orders consequential on the principal judgment are not relevant to the application for the declaration. The relevant issue here is simply whether or not the obligation applies to the unredacted documents in the hands of the intervening parties (and their lawyers) and the existence of a justiciable controversy. In the present case, both requirements are satisfied. This said, the reasons supporting the making of the orders consequential on the principal judgment would be relevant to the alternative orders Mr Porter seeks for permanent suppression and non-publication should he not obtain the declaration.

34    Nor can it be said that the declaration, if made, would be for the purpose of protecting Mr Porter’s reputation. That may well be a consequence of the making of the declaration and Mr Porter’s purpose, in whole or part, in applying for the declaration. The only purpose of making the declaration, however, would be to quell the controversy between Mr Porter and the intervening parties as to whether the obligation, implied by law, applies to the unredacted documents in the hands of the intervening parties (and their lawyers). That is a proper basis for the making of the declaration.

35    The fact that the South Australian Coroner also holds copies of the unredacted documents is immaterial. The Registrar of the Court provided the South Australian Coroner with the unredacted documents, with the consent of the parties, for the purpose of investigating the death of a person referred to in the documents. It is apparent that the Court may, by the grant of leave, release any party or person from the Hearne v Street obligation. Neither party suggested any such grant of leave was required to enable the Registrar to provide the unredacted documents to the South Australian Coroner but, if required, such leave was implicitly granted. The parties consented to the Court providing the unredacted documents to the South Australian Coroner so that the Coroner could perform his or her statutory functions. The fact that this was done is irrelevant to the status of the unredacted documents in the hands of the intervening parties (and their lawyers). Further, no dispute has arisen between Mr Porter and the South Australian Coroner about any other use which the South Australian Coroner may seek to make of the unredacted documents.

36    The concern expressed for the intervening parties, that they should not be left as the only persons bound not to use the unredacted documents for any purpose other than the proceeding if those documents are otherwise made public, is misplaced. As explained above, in Treasury Wine Estates the view reached was that the Hearne v Street obligation ceases to apply if the documents are otherwise public. It may be accepted that in Treasury Wine Estates that conclusion was reached in circumstances where the documents had lawfully been made public by the Court itself. Again, however, the fact is that the Hearne v Street obligation only applies to use of the information in the documents and the documents as provided by Mr Porter’s lawyers to the intervening parties’ lawyers. It does not apply to the intervening parties using the same information or documents obtained from some source other than by way of the email from Mr Porter’s lawyers of 17 May 2021. Further, if the unredacted documents enter the public domain other than by reason of breach of the obligation by the intervening parties, the intervening parties may apply for leave to be released from the obligation if they have any concern that they may continue to be bound by the obligation.

37    The other issues raised by the intervening parties, to the effect that Mr Porter discontinued the proceeding before filing the interlocutory application and has not identified the source of the power for the making of the declaration, are not fatal. The dispute between Mr Porter and the intervening parties about the application or not of the Hearne v Street obligation arose after the discontinuance of the proceeding and thus no application could have been made before the discontinuance. It is also of no moment that Mr Porter has sought a declaration to quell the controversy by an interlocutory application filed in the discontinued proceeding rather than a new originating application. It is not necessary to do so, but I will make an order granting Mr Porter leave to file the interlocutory application nunc pro tunc. The Court also has jurisdiction to grant a declaration in this proceeding to quell the controversy between the parties under ss 21, 22 and 23 of the Court Act.

38    For these reasons a declaration should be made. I consider that the terms of the declaration should be as follows:

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

39    If I had not made this declaration I would have made a permanent suppression and non-publication order in respect of the unredacted documents in the hands of the intervening parties and their lawyers on the basis that it would have been necessary to do so to prevent prejudice to the proper administration of justice. In short, a person obtaining documents in the circumstances in which the intervening parties obtained them in the present case should not be able to use the documents for any purpose other than the purpose for which they were provided access to the documents unless and until those documents are otherwise lawfully made public. To permit the intervening parties to use the unredacted documents in the circumstances explained above and in the context of the orders made consequential on the principal judgment would prejudice the proper administration of justice because it would prevent the Court from ensuring that proper argument can be made about the status of disputed documents if the Court cannot rely on the person in the position of the intervening parties not to use those documents for purposes other than that for which they were provided access unless and until the documents otherwise lawfully become public.

40    The usual order as to costs should be made in Mr Porter’s favour.

Associate:

Dated:    31 August 2021