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Judgment

1. LEEMING JA: My reasons for refusing leave to appeal, and without any order as to costs, at the conclusion of the hearing on 16 August 2017 are those stated by White JA.
2. WHITE JA: This was an application for leave to appeal from a decision of the Equity Division (Robb J) of 9 May 2017 (UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558). The primary judge affirmed the decision of Senior Deputy Registrar Brown made on 10 April 2017 in which she made an order in the following terms: "3. The application to prevent the Defendant's access to the Court file number 2017/4335 is upheld except for the originating process (the summons filed 5 January 2017)."
3. Robb J dismissed the defendant's notice of motion filed on 12 April 2017 in which the defendant sought amongst other relief orders that: "2. The Registrar produce to the parties in these proceedings, pursuant to UCPR 33.13, the Court's file in proceedings bearing case number 2017/4335 in its entirety. 3. Grant leave to the parties in these proceedings, to the extent necessary, to use in these proceedings, all documents filed in proceedings bearing case number 2017/4335."
4. By summons filed on 6 June 2017 the defendant sought leave to appeal from the decision of Robb J of 9 May 2017. On 16 August 2017 this Court ordered that the summons be dismissed with no order as to costs with the intent that the parties bear their own costs. These are my reasons for joining in the making of those orders.
5. Except when dealing with the order as to costs, I refer to the parties as defendant and plaintiff rather than applicant and respondent. It is convenient to do so in describing the course of proceedings that led to the application for leave to appeal.
6. The pleadings in the substantive proceedings below, which are still currently on foot, were not included in the papers on the leave application. It appears from the reasons of the primary judge and the registrar that the plaintiff (respondent to the application for leave to appeal) seeks a declaration that the re-entry by the defendant into premises in Park Street, Sydney, of which the plaintiff claims to have been the tenant, was unlawful and claims damages. According to the learned registrar the lease was entered into by a related company of the plaintiff (UTSG Consortium Pty Ltd) of which company the third respondent, Ms Singh, was the sole director and secretary. It appears from the reasons of the registrar and the primary judge that the plaintiff alleges that the lease was transferred to it. UTSG Consortium is said to have been wound up in insolvency approximately six months later. The directors of the plaintiff are Ms Singh and Dr Baig, the second respondent (but who did not appear at the hearing for leave to appeal). There is apparently an issue as to whether the defendant approved of the alleged assignment of the lease.
7. The primary judge noted that the statement of claim was filed on 8 April 2016. On 16 January 2017 the defendant filed a notice of motion seeking security for costs. That notice of motion has still not been determined.
8. The defendant learned that Dr Baig had commenced proceedings 2017/4335 against Ms Singh. It appears from order 3 made by the registrar that those proceedings were commenced on 5 January 2017. According to the primary judge (at [64]) the only evidence on the court file in those proceedings was an affidavit of Dr Baig. The primary judge said that the summons sought an order for rectification of the share register of certain companies and other relief including an order that any compensation to be paid by Transport NSW relating to the compulsory acquisition of the leasehold interest in the premises be paid into court. The primary judge said that the proceedings in substance concerned a shareholder dispute between Dr Baig and Ms Singh and the proceedings were settled before trial.
9. It appears that as a result of a subpoena issued by the defendant to Transport NSW the defendant was provided with a copy of Dr Baig's affidavit in support of the summons in proceeding 2017/4335. The affidavit was not before this Court. The defendant says that the proceedings in question were a claim by Dr Baig that Ms Singh engaged in fraud, the purpose of which was to deprive him of his share of compensation payable to the plaintiff consequent on the leased premises being compulsorily acquired as part of the Sydney Metro public transport project. The defendant contended that: "Dr Baig made an affidavit in those proceedings which detailed aliases used by Ms Singh, which Dr Baig learned about during their intimate relationship, some of which were claimed to perpetrate fraud."
10. The defendant wished to use the affidavit both in respect of the application for security for costs and to impeach evidence expected to be given by Ms Singh at trial.
11. The registrar recorded that the defendant claims that the plaintiff deliberately took steps to frustrate creditors of UTSG Consortium by taking a transfer of assets of that company, leaving the company without assets to meet the claims of creditors. The defendant submitted before the registrar that it sought documents on the court file in proceedings 2017/4335 to cast doubt on Ms Singh's credibility by revealing conduct which the defendant says might be repeated with the intention of frustrating any costs order made in favour of the defendant. Specifically, the defendant submitted that the evidence would support its application for security for costs.
12. It does not appear to have been in dispute either before the registrar or the primary judge that the defendant to the 2017/4335 proceedings was subject to an implied undertaking only to use Dr Baig's affidavit for the purpose of those proceedings, and that the defendant in the principal proceedings who had come into possession of the affidavit was bound by the same obligation unless leave of the court were obtained to use it in the principal proceedings. This was called the Harman restriction (Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125; [2008] HCA 125 at [96], [97], [109]). As noted above, by the notice of motion filed on 12 April 2017 the defendant sought leave to the extent necessary to use in the principal proceedings all documents filed in proceeding 2017/4335, which would include Dr Baig's affidavit. That order was not made. But no order has been made that in terms precludes the defendant from using the affidavit of Dr Baig apparently sworn on 5 January 2017 and filed in proceeding 2017/4335. Rather, leave has not been granted authorising such use.
13. The primary judge noted that the defendant wished to obtain documents and use the affidavit of Dr Baig in the following ways: "[23] Shortly put, the defendant wishes to support its claim for an order requiring the plaintiff to provide security for its costs on two related grounds, each of which will involve the defendant establishing that the court should infer from the evidence that Ms Singh has engaged in serious Phoenix activity once, that she has a propensity to do so, and may avoid the plaintiff paying any costs that the court orders it to pay to the defendant by repeating the Phoenix activity in relation to the plaintiff. The defendant seeks to put that argument as a stand-alone ground for the court to order security for costs, and also to rely upon it as a ground in conjunction with such evidence as the defendant is able to put before the court to establish the likely impecuniosity of the plaintiff. … [27] The defendant also seeks access to the documents in the court's file, because it wishes to be able to use those documents to undermine the evidence given by, and the credibility of Ms Singh, by showing that Ms Singh frequently used aliases, and by revealing conduct which the defendant says may be repeated with the intention of frustrating any costs order in favour of the defendant."
14. Paragraph 7 of Practice Note SC Gen 2 provides: "7. Access will normally be granted to non-parties in respect of: pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; documents that record what was said or done in open court; material that was admitted into evidence; and information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist."
15. The primary judge held that the registrar was not in error in applying Practice Note SC Gen 2 to the defendant's application to have access to the documents on the court file in proceeding 2017/4335.
16. The defendant's proposed second ground of appeal seeks to challenge that conclusion.
17. The primary judge recorded that the defendant submitted that the principles governing the application for access to documents were those stated by Simpson J, with whom Spigelman CJ and Studdert J agreed, in R v Saleam [1999] NSWCCA 86 that, in short, before access is granted the applicant must identify a legitimate forensic purpose for which access is sought and establish that it is "on the cards" that the documents will materially assist his case (R v Saleam at [11]). The primary judge observed that the principle stated in R v Saleam said nothing about the principles governing circumstances in which the court will permit the use of documents that are not permitted to be used without leave by reason of the application of the Harman restriction (at [57]). His Honour noted the principles in relation to the grant of leave in such cases stated by the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Limited [2005] FCAFC 3; (2005) 218 ALR 283 at [31] ("Liberty Funding"). The court there said: "[31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show 'special circumstances': see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding."
18. The primary judge noted a difference in language between Practice Note SC Gen 2 where the expression "exceptional circumstances" rather than "special circumstances" is used, but said that it was unlikely that it was intended when the Practice Note was promulgated that the expression "exceptional circumstances" as used in para 7 of the Practice Note was to have a materially different meaning than the expression "special circumstances" when used in the authorities to discuss the general position in cases where a party seeks leave to be excused from the Harman restriction (at [59]).
19. The primary judge stated (at [63]): "[63] I do not understand the defendant on the present application to have made any submissions to support a claim that any documents in the file ought to be provided to it because there are exceptional or special circumstances. The defendant only submitted that the file may contain documents that will provide some assistance to the defendant in establishing that Ms Singh had engaged in Phoenix activity in relation to the assignor of the lease to the plaintiff in these proceedings, that the documents may controvert the evidence given by Ms Singh on the substantive claim in these proceedings, and may assist the defendant in discrediting her evidence. The Registrar did not record any submission made on behalf of the defendant that was to a different effect than that which I have just recorded."
20. His Honour concluded: "[67] No reason has been given by the defendant as to why there are exceptional or special circumstances that would justify the defendant being given access to the file, or leave to use the affidavit of Dr Baig that came into the defendant's possession as a result of a subpoena answered by Transport NSW, and no sufficient reason has appeared to me from my examination of the summons or the affidavit."
21. The proposed first ground of appeal is: "1. The court below made an error of legal principle in finding that whatever might be necessary to satisfy the requirement that there be either special or exceptional circumstances to justify the court authorising a departure from the Harman principle, satisfying the test in R v Saleam [1999] NSWCCA 86 will not ordinarily be sufficient."
22. Mr Doyle Gray who appeared for the defendant disclaimed any submission that where the Harman restriction applies and a party to some existing proceeding seeks access to another court file for the purposes of that proceeding, it is sufficient for it to demonstrate a legitimate forensic purpose and that it is on the cards that the documents in question will materially advance its case. He submitted that in reverting to the language of exceptional or special circumstances the primary judge failed to apply what was said in Liberty Funding, namely, that the question will be whether in all the circumstances good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation. The primary judge expressly addressed that matter. His Honour accepted the principles that govern when a court will allow a party to have access to and to use documents that are protected by the Harman restriction by quoting Flick J in Ashby v Slipper (No. 2) [2016] FCA 550 at [10]-[11] who in turn quoted what was said by the Full Court of the Federal Court in Liberty Funding. This ground discloses no arguable error.
23. Nor, in my view, was the primary judge in error in holding that Practice Note SC Gen 2 is relevant to the exercise of the court's discretion to allow access to documents on a court file where the documents in the file are produced by the registrar in accordance with r 33.13(2) of the Uniform Civil Procedure Rules 2005 (NSW).
24. In the frequently cited words of Jordan CJ in Re Will of Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 323 if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be disastrous to the proper administration of justice. In the present case the disposal of the plaintiff's claim and of the defendant's application for security for costs have been significantly delayed by the present dispute in relation to access to and use of documents.
25. That is not to say that there may not be an important question of principle underlying the present dispute. In Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 Brereton J doubted whether the implied obligation that documents not be used for any purpose extraneous to the proceeding in which it was produced without leave applies to affidavits made and served in the ordinary way in the course of proceedings (as distinct from affidavits made pursuant to an obligation of compulsory disclosure) (at [9]-[10], [31]-[39]). His Honour also observed (at [42]) that if the implied undertaking did attach to such documents: "… the voluntary nature of the affidavit, the intent that it be used and read in open court, and the circumstance that it is not a confidential, let alone privileged document, are highly relevant to the approach that one takes on an application for leave to use the material for an extraneous purpose."
26. These matters were not raised before the registrar, nor before the primary judge. Nor were they raised by the parties on the application for leave to appeal. Whether it is still open to the defendant to use Dr Baig's affidavit on the ground that the Harman restriction does not apply was not a matter before us. Whether it would be open to the defendant to renew the application for leave to use the affidavit was also not a matter before us.
27. In short, as the application for leave to appeal involves a challenge to the primary judge's exercise of his discretion on a matter of practice and procedure; the grounds of challenge sought to be relied upon would not in my view enjoy a substantial prospect of success; and the application is not a suitable vehicle for considering the question of principle raised in Helicopter Aerial Surveys Pty Ltd v Garry Robertson, I considered that the application for leave to appeal should be refused.
28. The application was dismissed with no order as to costs in the following circumstances. Not all of the respondents appeared. Those who did were in breach of the court's direction for them to serve submissions. The day before the hearing new solicitors retained by the first, third, fourth, sixth and seventh respondents foreshadowed applying for an adjournment of the hearing of the application. That application was made, but was refused. Counsel for those respondents provided oral submissions, but because counsel was not briefed until the last moment he could not provide the court with all the assistance that might otherwise have been expected. In these circumstances, I did not consider that the respondents should obtain an order for payment of their costs, notwithstanding the applicant's application failed.