Federal Court of Australia

Sandilands v Commonwealth Broadcasting Corporation Pty Ltd [2026] FCA 986

ORDERS

THE COURT DECLARES THAT:

1.    The affidavits of:

(a)    Kyle Dalton Sandilands affirmed 16 June 2026; and

(b)    Bruno Bernard Bouchet sworn 16 June 2026,

are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given in proceeding NSD442/2026.

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

STEWART J:

1    This proceeding, brought by Mr Kyle Sandilands and companies associated with him, was being jointly case managed with another proceeding, brought by Ms Jacqueline Henderson and companies associated with her. That was because of the possibility, if not the probability, that they both be heard together because of the significant factual and legal overlap between them. Mr Sandilands and Ms Henderson formerly jointly hosted, or presented, a radio show for the respondents. The first respondent in each proceeding is the same although the second respondent in each is different. All three of the respondents across both proceedings are related companies. The two proceedings arise from a falling out between Mr Sandilands and Ms Henderson, and subsequent disputes arising between each of them (and their companies), on the one hand, and the respondents, on the other.

2    Following the execution by the Sandilands parties and the respondents of a deed of release on 16 June 2026, the proceeding as between those parties (by way of claims and cross claims) was discontinued by the filing of notices of discontinuance on 17 June 2026. The cross claims by the respondents against the Henderson parties were discontinued by the filing of a notice of discontinuance on 29 June 2026. The whole proceeding was at that stage finalised. The Henderson proceeding continues on its own.

3    The respondents now apply by interlocutory application for a declaration that two of the affidavits filed in the proceeding by the applicants are not the subject of any obligation owed to the Court not to use them for purposes other than the present proceeding. In the alternative, the respondents seek leave to use the affidavits in the Henderson proceeding. The relevant affidavits are by Mr Sandilands and the manager of Mr Sandilands’ business affairs, Bruno Bernard Bouchet, affirmed and sworn, respectively, on 16 June 2026.

4    By correspondence from their solicitors, Johnson Winter Slattery, which they have requested be placed before the Court, the Sandilands parties oppose the relief sought by the respondents but they have not appeared or offered any submissions other than what is in the letter in support of that opposition.

5    The circumstances in which the relevant affidavits were filed include the following.

6    In the context of both proceedings being managed together, on 24 April 2026 I ordered that the Sandilands parties file and serve their lay and any expert evidence in chief by 29 May 2026. On the Sandilands parties’ requests, that date was subsequently extended to 5 June 2026 and then to 10 June 2026. No affidavits were filed by the Sandilands parties by that date.

7    On 16 June 2026, the solicitors for the Sandilands parties provided a draft form of deed of release to the solicitors for the respondents.

8    Less than two hours later, the solicitors for the respondents delivered to the solicitors for the Sandilands parties a deed of release executed by the respondents in the same form in which it had been received from the Sandilands parties.

9    Around 10 minutes thereafter, the Sandilands parties electronically lodged their affidavits with the Court for filing.

10    About 15 minutes after that, the solicitors for the Sandilands parties delivered to the solicitors for the respondents a deed of release executed by the Sandilands parties in the same form that they had earlier proposed and which had been executed and returned to them by the respondents.

11    The proposition that the respondents may require leave before they use the relevant affidavits in the Henderson proceeding arises from the principle that:

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.

(Hearne v Street [2008] HCA 36; 235 CLR 125 at [96].)

12    By its terms, that principle is inapplicable to “information” in an affidavit unless that information is included in that affidavit under compulsion. The disclosure of information in an affidavit that is filed under ordinary timetabling orders of the court that require a party to provide any affidavits on which it intends to rely at the hearing does not amount to compulsory disclosure in the relevant sense; the party has the choice whether or not to file any particular affidavit and also with regard to what information to include in the affidavit: Unicomb v Blais [2024] NSWSC 903; 115 NSWLR 155 at [247]-[248] per McGrath J and, in this Court, Cooper (Trustee) v Gibraltar Capital Pty Ltd (Trustee), in the matter of Suhren (Bankrupt) [2025] FCA 1297 at [6] per Jackson J.

13    The letter from Johnson Winter Slattery referred to above contests the proposition that the affidavits were not compelled in any relevant sense and that for that reason the Hearne v Street undertaking is not engaged. That was despite the authorities referred to in the preceding paragraph having been specifically drawn to the attention of Johnson Winter Slattery. No explanation is offered as to why the reasoning in those cases is either wrong or inapplicable to the present circumstances.

14    There is in any event a further reason why the affidavits cannot be said to have been produced under any relevant compulsion. That is revealed by the chronology of events on 16 June 2026 set out above. Before the affidavits were filed, the Sandilands parties had in their possession an executed deed of release on the terms which they had provided to the respondents. Those terms were obviously acceptable to them, not only because they had provided them but also because they then subsequently executed that deed of release. Whether the deed of release was executed by them before or after they filed the affidavits is not known, but undoubtedly they had it within their power to execute the deed of release and thereby compromise the disputes before filing the affidavits. That is to say, they truly did file the affidavits voluntarily as they need not have filed them at all once the dispute was compromised.

15    There is no explanation as to why the affidavits were nevertheless filed. Conjecture as to that reason will serve no purpose. The relevant point is that the information in the affidavits was not disclosed under any form of compulsion.

16    Johnson Winter Slattery also say in the letter that the respondents cannot rely upon the affidavits in the Henderson proceeding because they will be inadmissible. It is not apparent on what basis the Sandilands parties have any legitimate interest in making admissibility submissions in relation to evidence in a proceeding to which they are not parties. Just how the affidavits, or the information in them, might be used in the Henderson proceeding is not a matter of concern or relevance in the present proceeding. In any event, the respondents’ use of information in the affidavits is distinct from the admissibility of those affidavits in the Henderson proceeding. For example, the information may be used to identify relevant witnesses or documents to be subpoenaed, or it may be deployed in the cross examination of witnesses.

17    I note that the respondents also submit that the affidavits were not produced under compulsion because they were filed after the expiry of the date by which they were supposed to have been filed. If that submission were correct, then documents discovered under compulsory processes but discovered late, even marginally so, would not come within the Hearne v Street undertaking. That would be an absurd result. Obviously, a party seeking to comply with an order of court, and who does so albeit late, is still doing so under compulsion of the court order. I reject the submission.

18    Finally, the respondents submit that the costs of this application should be costs in the cause in the Henderson proceeding. The Henderson parties have appeared in this application (since they are the cross-respondent) but do not oppose it other than to oppose the costs order sought by the respondents. The present proceeding has been discontinued and all costs consequences have been dealt with. I do not see my way clear to make an order that the costs in this proceeding are to be costs in a different proceeding. It seems to me that the correct position is that the costs of the present application may be able to be rightly claimed under a general costs order in the respondents’ favour in the Henderson proceeding, should one be made in due course, but that will be a matter for costs assessment in that proceeding.

[Further discussion about costs.]

19    In the circumstances, the Court declares that:

(1)    the affidavit of Kyle Dalton Sandilands affirmed 16 June 2026; and

(2)    the affidavit of Bruno Bernard Bouchet sworn 16 June 2026,

are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given in proceeding NSD442/2026.

Associate:

Dated:    24 July 2026

SCHEDULE OF PARTIES