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[2026] ACTSC 216
Supreme Court of the ACT
2026-06-26
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Baker (a pseudonym) v Commonwealth (No 3) Citation: [2026] ACTSC 216 Hearing Date: 5 June 2026 Decision Date: 26 June 2026 Before: Muller J Decision: See [31] Catchwords: CIVIL PRACTICE AND PROCEDURE – RELEASE FROM IMPLIED UNDERTAKING – Threshold Test – special circumstances – scope of disclosure – disclosure for purpose of facilitating criminal investigation and prosecution – release granted in part – consideration of Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; 235 CLR 125 principles Legislation Cited: Court Procedures Rules 2006 (ACT), r 673 Ombudsman Act 1976 (Cth), ss 3, 5, 8D Cases Cited: Ashby v Slipper (No 2) [2016] FCA 550; 343 ALR 351 Esso Australia Resources Ltd v Plowman [1995] HCA 19; 183 CLR 10 at 37 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street [2008] HCA 36; 235 CLR 125 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 Prime Finance Pty Ltd v Randall [2009] NSWSC 361 Shiels v Manny [2012] ACTCA 22; 263 FLR 61 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; 38 FCR 217 The Owners - Units Plan No. 3676 v Morris Construction Corporation Pty Ltd [2018] ACTSC 149 Western Sydney University v Kingston [2025] NSWSC 1451 Parties: Baker (a pseudonym) (Plaintiff) The Commonwealth of Australia (First Defendant) Toby William Coutts (Second Defendant) Alexander Patrick Whittle (Third Defendant) Bryce Leslie Vidler (Fourth Defendant) Custody Sergeant, Scott Budd (Fifth Defendant) Counsel Representation: S Boland and J Meech (Plaintiff) K Musgrove (First – Fourth Defendants) N Oram (Fifth Defendant) Solicitors Equal Justice (Plaintiff) Thomson Geer (First – Fourth Defendants) Norton Rose Fulbright (Fifth Defendant) File Number: SC 313 of 2024 MULLER J:
Mr Baker sues the Commonwealth and a number of individual police officers following his arrest and detention on sexual assault allegations that ultimately did not progress to a formal charge. He says he was subject to an unlawful physical assault at the hands of the police officers, and he alleges psychological injury as a consequence.
Most recently the matter came before me for applications seeking amendment of the pleadings, and release from the constraint on use of some documents received in these proceedings under r 673 of the Court Procedures Rules 2006 (ACT) (the Rules). Orders were made allowing amendment of the pleadings on 5 June 2026, and it is the latter application which is the subject of this Judgment.
Mr Baker seeks the court’s leave for the following documents to be disclosed to a number of entities: (a) CCTV footage of the City Watchhouse Cells from 16 March 2024; (b) an email from Alexander Whittle to Scott Budd on 15 July 2024 at 8:02am; (c) an email from Scott Budd to Alexander Whittle on 15 July 2024 at 5:14am; (d) an email from Alexander Whittle to Scott Budd and Olivia Fien on 26 June 2024 at 11:46am; and (e) the entire affidavit of Michael Andrew Lalor of 19 March 2026 – including relevant annexures (the Lalor Affidavit).
The entities to which Mr Baker seeks to disclose the documents are: (a) the ACT Director of Public Prosecutions; (b) the Commonwealth Director of Public Prosecutions; (c) the National Anti-Corruption Commission; (d) the Commissioner of the Australian Federal Police; (e) the Australian Human Rights Commissioner; (f) the Aboriginal and Torres Strait Islander Social Justice Commissioner; (g) the ACT Human Rights Commissioner; (h) the Commonwealth Attorney General; (i) the ACT Attorney General; (j) the Commonwealth Ombudsman; (k) solicitors or counsel employed or retained by the entities mentioned in (a)-(j) above; (l) the ACT Integrity Commission; and (m) any solicitor, counsel, or expert witness retained by the plaintiff to advise upon and/or conduct a private prosecution of Scott Budd in relation to the subject matter of these proceedings.
Mr Baker says disclosure is sought solely for the purpose of facilitating the investigation of alleged criminal or corrupt conduct by the persons involved in his arrest and assault, and subsequent internal investigations of those events. He says any entity receiving the documents will be given written notice by his legal representative not to disclose or disseminate them other than as part of any necessary investigations.
Leave is required because of the way the documents came into Mr Baker’s possession. That is, the documents were released to him for the purposes of these proceedings, thus enlivening the implied undertaking as to the use to be made of the documents in accordance with the principles set out in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Hearne v Street [2008] HCA 36; 235 CLR 125.
Those principles are replicated in r 673 of the Rules: 673 Improper use of disclosed document (1) This rule applies to someone if the person— (a) receives a document produced to the person under this part or division 2.12.3 (Expert reports) in relation to a proceeding; or (b) receives a document, directly or indirectly, from someone else and the document has, to the person’s knowledge, been produced under this part or division 2.12.3 to the other person. (2) The person must not, without leave of the court or other lawful authority, make use of the document otherwise than for the proper purposes of the proceeding. (3) If the person, without reasonable excuse, contravenes subrule (2), the person may be dealt with for contempt of court. (4) The fact that a document has been filed, received in evidence or read out in court does not affect the application of this rule to the document, but the court may take that fact into account in deciding what action (if any) to take about a contravention of subrule (2) in relation to the document. (5) Subrule (3) does not limit any other power of the court in relation to the contravention. (notes omitted by this court)
Importantly, r 673(4) of the Rules extends the “Harman” constraint upon use to include documents received in evidence or read out in court, although the court may have regard to the way in which a document came into a party’s possession in deciding what if any limits to place on the use to be made of the document.
The first to fourth defendants agree the identified material should be released to the Commissioner of the Australian Federal Police, the ACT Director of Public Prosecutions, the Commonwealth Director of Public Prosecutions and the National Anti-Corruption Commission. To that end, a referral has already been made by the AFP Commissioner to the National Anti-Corruption Commission in accordance with mandatory referral requirements. The first to fourth defendants oppose disclosure to the other named entities. The fifth defendant police officer, who is separately represented, adopted a neutral position on the application.
The threshold test for release from the implied undertaking
The parties rely on the decision of the High Court in Hearne, and on the following passage where their Honours Hayne, Heydon and Crennan JJ 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. The types of material disclosed to which this principle applies include documents inspected after discovery…
As to when leave may be given to use a document for any purpose other than the subject proceedings, in drawing on the principles stated in Esso Australia Resources Ltd v Plowman [1995] HCA 19; 183 CLR 10 at 37, the plurality continued in Hearne at [107]: The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear. Special circumstances
The circumstances in which leave may be given are not defined for the purposes of r 673 and the task involves an exercise of the court’s discretion. There is no reason to depart from the well established guiding principles applied to a request for release from the “Harman” undertaking. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] FCA 720; 38 FCR 217 a number of relevant considerations are identified at 225, although it is not suggested the list is intended to be exhaustive: (a) the nature of the document; (b) the circumstances under which it came into existence; (c) the attitude of the author of the document and any prejudice the author may sustain; (d) whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; (e) the nature of the information in the document (particularly whether it contains personal data or commercially sensitive information); (f) the circumstances in which the document came into the hands of the applicant for leave; and (g) the likely contribution of the document to achieving justice in the second proceeding (identified as perhaps the most important consideration of all).
The consent of a party responsible for producing a document otherwise subject to the undertaking is a relevant matter, but not determinative as the undertaking is an obligation to the court and not to individual parties – the court has the sole right to modify and release any undertaking imposed: The Owners - Units Plan No. 3676 v Morris Construction Corporation Pty Ltd [2018] ACTSC 149 at [17]-[20]. A relevant matter weighing against the granting of leave may be a personal advantage to be gained by the party seeking the disclosure: North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 at [44]. Special circumstances are required, not extraordinary circumstances. That is, a good reason must be shown for a departure from the usual rule that a document or information obtained in one piece of litigation is not to be used for some other purpose: Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31].
Potential use of material in criminal proceedings has been recognised as a factor in favour of releasing a party from the undertaking: Prime Finance Pty Ltd v Randall [2009] NSWSC 361 at [37]. However, it remains a factor to be weighed in the balancing exercise and is not of itself determinative: Ashby v Slipper (No 2) [2016] FCA 550; 343 ALR 351 at [12].
Kunc J summarised the task required of the court in this way in Western Sydney University v Kingston [2025] NSWSC 1451 at [8]: It is also not controversial that "special circumstances" does not require extraordinary factors, but rather involves an inquiry as to whether there is a good reason for the release from the undertaking. That inquiry necessarily involves balancing the public interest between, on the one hand, the importance of parties maintaining the confidentiality of information obtained pursuant to compulsion in the course of proceedings against, on the other hand, the public interest, in this case, in assisting prosecutorial authorities to enforce the criminal law.
See also Shiels v Manny [2012] ACTCA 22; 263 FLR 61 at [38].
Are special circumstances identified here?
Mr Baker submits there are four reasons why I should find special circumstances justifying the release from any undertaking. They are in summary: (a) the material on its face discloses prima facie evidence of two serious crimes; an unlawful assault by AFP officers of a person in custody, and an attempt to pervert the course of justice; (b) the interest of the plaintiff as an alleged victim of crime in each of those matters; (c) the interest of the plaintiff in procuring an independent investigation of the matters; and (d) the material raises institutional concerns as to the administration of justice in the ACT.
As to the identified special circumstances, Mr Baker argues there is cogent objective evidence he has been subject to serious and unlawful violence whilst a person in custody. He says the evidence warrants at least proper consideration of whether there is a reasonable cause to prosecute Officer Budd. He highlights the passage of time since the offending conduct and the failure of the AFP or the ACT DPP to promote any criminal action in that period. Mr Baker’s concern is significantly related to timing. He notes an internal AFP investigation of the circumstances surrounding his arrest was commenced while he was facing criminal charges of resisting a Territory public official, assaulting frontline community service providers and attempting to hinder and resist Territory public officials. The investigation was then suspended on the basis of resourcing issues until a short time after the criminal action brought against him was dismissed upon the ACT DPP offering no evidence. There was a failure by the AFP and the ACT DPP to advise him an internal investigation into the conduct of some of the police officers had commenced. Mr Baker identifies these matters as prospective evidence of concerning institutional conduct going beyond the behaviour of the individual officers involved.
The first to fourth defendants concede it is appropriate for me to make orders allowing the dissemination of documents to the entities consisting of the Australian Federal Police, the ACT DPP, the Commonwealth DPP and the National Anti-Corruption Commission. They do so on the basis of an acceptance of the first circumstance raised by Mr Baker, namely the public interest in the enforcement of criminal law, as a recognised special circumstance in this case. As to the other categories of special circumstances upon which Mr Baker relies, the first to fourth defendants say: (a) Mr Baker’s assertion his separate right as a victim of crime is a special circumstance is misplaced. Any rights he has, or may have, as a victim of crime form part of the public interest in the enforcement of criminal law; (b) the evidence does not support a finding of institutional failure in the administration of justice. No inference can be drawn from the failure of the AFP to lay a charge against Officer Budd, noting as a result of the internal administrative investigation the officer’s employment with the AFP ceased; (c) assertions as to timing of the suspension and recommencement of the internal investigation are entirely speculative and unsupported by evidence and as a consequence fall short of identifying a special circumstance in the nature of institutional dysfunction; (d) there is no proper basis for asserting the ACT DPP has acted with any institutional impropriety nor is there a basis for concluding that entity would not appropriately address further information placed before them in relation to this matter; and (e) the forensic advantage Mr Baker seeks by using the resources of public authorities to investigate the subject matter of his case is not something overriding the public interest in confidentiality of the documents.
I am satisfied in this instance there are special circumstances warranting a grant of leave to Mr Baker to make use of the documents identified otherwise than for the proper purposes of these proceedings. I have reached that view because I accept there is at least a reasonable prospect the material may facilitate the administration of the criminal law both in examining Mr Baker’s physical interaction with a number of police officers following his arrest and also as it relates to the management of the criminal charges subsequently brought against him and ultimately dismissed with no evidence to offer.
The acceptance by the first to fourth defendants of a special circumstance warranting disclosure to four of the identified entities is a matter of relevance, but it is not determinative. My decision is based first, on the CCTV footage of Mr Baker being stripped naked in the presence of a female officer and then being subject to sustained and extreme physical force used by some of the officers, and secondly, on the evidence comprising email exchanges between two of the identified police officers about the conduct of the criminal proceedings commenced against Mr Baker, which are at least suggestive of some impropriety by those officers.
The residual question is that of the entities to whom disclosure should be allowed. What should be the scope of the permissible disclosure?
The first to fourth defendants consent to disclosure being made to the ACT Director of Public Prosecutions, the Commonwealth Director of Public Prosecutions, the National Anti-Corruption Commission and the Commissioner of the Australian Federal Police. They do so on the basis that each of those entities may have a role in investigating, and a relevant power to act upon, the identified conduct.
As to the balance of the entities to whom Mr Baker seeks leave to make a disclosure (“the additional entities”), the first to fourth defendants say they are entities without a relevant power to act. In short, they argue Mr Baker seeks leave to disclose to those entities as a means of applying public pressure on the defendants, as opposed to facilitating further criminal investigation into the activities of the police officers. The additional entities have no role to play as the investigation and prosecution of criminal offences is not part of their function.
Mr Baker says the two institutions ordinarily relied upon to act in circumstances such as this, namely the AFP and the ACT DPP have failed to act. He says the issue of where the fault lies is unresolved, but the evidence suggests either dysfunction or misfeasance. Mr Baker argues the lack of action by those entities has forced the need to go to other institutions that are public facing, with a view to seeking some public justice in relation to these matters. He expresses hope that the overlapping functions of the identified bodies may lead to findings that will assist him. He summarises the position in this way: It is, in our submission, quite clear that public accountability sometimes has to come through adjacent channels to the orthodox institutions because the orthodox institutions for one reason or another, conflict of interest or whatever it might be, simply not functioning and it's quite legitimate in those circumstances to approach other organisations and to do so in a controlled way where those obligations that attach to a Harman undertaking would be maintained and that's paragraph 99 of Hearne v Street that third-party organisations remain bound. (Transcript, 5 June 2026, 12.29 – 36 [sic])
Specifically in relation to the Attorneys-General, he notes their roles in relation to broad oversight of the functions of the AFP and the Commonwealth and ACT DPP respectively. The other institutions to whom disclosure is sought are public facing institutions with some level of public standing. For each of the additional entities Mr Baker does not identify specifically the statutory function or power to be utilised by that body in the context of the offending conduct complained of which would, if exercised, promote or further the public interest.
The court is required to engage in a balancing exercise between the public interest in maintaining the confidentiality of information received through the compulsion of court proceedings and other identified public interest considerations such as facilitating the administration of the criminal law. The additional entities have not been demonstrated by Mr Baker to have a relevant role in facilitating the administration of the criminal law, save for the oversight function exercised by the Attorneys-General. In addition to the Attorneys-General I note the following relevant provisions in the Ombudsman Act 1976 (Cth): 3 Interpretation … (9) For the purposes of this Act, the Australian Federal Police shall be deemed to be a prescribed authority. (10) In the application of this Act in relation to the Australian Federal Police, references in this Act to an officer of a prescribed authority shall be read as references to an AFP appointee. … 5 Functions of Ombudsman (1) Subject to this Act, the Ombudsman: … (b) may, of his or her own motion, investigate any action, being action that relates to a matter of administration, taken either before or after the commencement of this Act by a Department or by a prescribed authority; and … 8D Investigations by Ombudsman and Australian Federal Police (1) The Ombudsman may, if he or she thinks fit, make an arrangement with the AFP Commissioner for: (a) a category 3 conduct issue; or (b) an AFP practices issue; to be dealt with jointly by the Ombudsman and the Australian Federal Police. (2) The arrangement may relate to: (a) a particular category 3 conduct issue or issues; or (b) a series of related category 3 conduct issues; or (c) a particular AFP practices issue or issues; or (d) a series of related AFP practices issues. (3) The Ombudsman may arrange with the AFP Commissioner for the variation or revocation of the arrangement. (4) The arrangement, or the variation or revocation of the arrangement, must be in writing. (5) Nothing in this section affects the powers or duties of the Ombudsman under any other provision of this Act. (6) In this section: category 3 conduct issue has the same meaning as in the Australian Federal Police Act 1979.
I am, on the basis of the portions of the Ombudsman Act set out above, satisfied the Commonwealth Ombudsman also holds powers relevant to facilitating the administration of the criminal law in a relevant respect. As to the balance of the special circumstances relied upon: (a) I am not satisfied the prospect of Mr Baker being found to be a victim of crime is a special circumstance separate and distinct from the facilitation of administering the criminal law. (b) While I accept he may have an interest in the context of these proceedings in there being an independent investigation of the subject matter, I am not satisfied Mr Baker’s personal interest in that regard outweighs the public interest in refusing disclosure. Indeed, it may be a factor weighing against disclosure. (c) Although the material before me raises the possibility of institutional dysfunction in the management of these matters, Mr Baker has not demonstrated how the additional entities, other than the Attorneys-General, exercise functions relevant to the investigation and management of such dysfunction even where it is proved. (d) The Commonwealth Ombudsman is a relevant entity for the reasons I have indicated.
For the reasons set out above, I am satisfied the special circumstances identified warrant extending disclosure to the Commonwealth Attorney-General, the ACT Attorney-General and the Commonwealth Ombudsman.
Mr Baker proposes a further order be made granting leave to amend the name of the fifth defendant to read “Custody Manager – Scott Budd”. I note the fifth defendant expresses no view, and the other defendants do not oppose the granting of leave but note the proposed name change differs to that reflected in the orders made in court on 5 June 2026, amending the originating process. In the circumstances, where it is required and necessary I will grant leave to Mr Baker and his legal representative to amend the name of the fifth defendant.
Orders
Baker (a pseudonym)
Commonwealth (No 3)