Analysis and Decision
52 In Hearne v Street, the High Court held that the Harman obligation being the "implied undertaking" not to use documents or information processes of the Court for a purpose unrelated to the conduct of the proceedings in which the documents and information were provided is a substantive obligation which arises by virtue of the circumstances under which the relevant person obtained the documents or information (per Gleeson CJ at 131 [3]; per Kirby J at 145 [56] and [57]; per Hayne, Heydon and Crennan JJ at 154-156 [96]-[98] and at 157-162 [105]-[113]).
53 At 154-156 [96]-[98], Hayne, Heydon and Crennan JJ expressed the relevant principles in the following terms (footnotes omitted):
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, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
It is common to speak of the relevant obligation as flowing from an "implied undertaking".
It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Rules 1970, Pt 65 r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court: see also Practice Note No 97. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The most important paragraphs are:
"6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.
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."
54 It is noteworthy that the list of the types of material protected by the Harman obligation provided by Hayne, Heydon and Crennan JJ at 155 [96] did not include pleadings.
55 The Court also held that a third party will be bound by the Harman obligation if that party knew of the origins of the material.
56 TWE submitted that the observations of Hayne, Heydon and Crennan JJ at 154-155 [96] should be read as merely stating the position under various specific Rules of Court and should not be understood as stating the general law position. I disagree. It is quite clear, I think, that, in that paragraph of the joint judgment, their Honours stated the relevant common law principle.
57 In the present case, there is no dispute that the material set out in pars 18(i.a), 31A, 31B, 31C, 31D and 31E of the Jones 3FASOC and certain particulars provided by TWE in the Jones 2FAD were derived or taken from documents discovered by TWE in this proceeding. For that reason, the use by MB and Mr Donnellan of the relevant discovered documents and the relevant information extracted from those documents and subsequently included in the Jones 3FASOC and the relevant information extracted from those documents and deployed as particulars in the Jones 2FASOC was subject to a Hearne v Street obligation.
58 The material extracted from certain discovered documents (the primary source of that material) was legitimately used by MB and Mr Donnellan to amend Mr Jones' Statement of Claim and to confine TWE's Defence by reference to the particulars of allegations made in that pleading which were provided by TWE by paying appropriate regard to the contents of discovered documents. These uses of some of the documents discovered by TWE in this proceeding and the information contained in those documents was entirely proper and did not constitute a breach of the relevant Hearne v Street obligation. Importantly, TWE has never complained about these uses of the relevant documents and information nor did it seek any confidentiality orders in respect of this material when it was included in the Jones 3FASOC and the Jones 2FAD.
59 Under r 2.32(2) and (3) FCR, any member of the public is permitted to inspect any pleading filed in this Court unless an order has been made denying access.
60 In the present case, once the Jones 3FASOC and the Jones 2FASOC were filed, no order denying or restricting access to those pleadings having been made, any member of the public could inspect those pleadings and use the information for any purpose within the law which she desired.
61 At 297-298 [22]-[23] in Llewellyn, Rares J said:
Significantly, the rules of the Supreme Court of New South Wales are not the same as those in O 46, r 6. That Court had a rule in Supreme Court Rules 1970 (NSW), Pt 65, r 7, which provided that:
A person may not search in a registry for or inspect any document or thing in the proceedings without the leave of the Court.
This Court has clearly taken a very different approach in its rule and has not left it to the parties to keep confidential that which has at least been relied on as the process by which proceedings in this Court are initiated. Parties know that when they file in this Court the rules provide that applications and pleadings are, unless the court orders they be kept confidential, available for inspection. If there is a reason at the time of the filing of documents that any such document, ought not be available for inspection, O 46, r 6(1) provides a means for it to be kept confidential. The need for that exceptional course ought to be established on evidence at the time it is filed. Of course there may be cases of urgency or necessity where it is not always possible to do so and the Court is able, pursuant to its inherent powers and the powers under s 50 of the Act, to accommodate such situations. No such situation was made apparent in this case.
62 At [35] in Helicopter, after addressing the question of whether the Hearne v Street obligation applies to affidavits served in the ordinary course of litigation, Brereton J said:
Against that, it has never been the case that pleadings have been regarded as subject to the implied undertaking, nor other evidence served in support of the pleadings, such as the claim book in Attorney-General (N.T.) v Maurice [1986] HCA 80; (1986) 161 CLR 475. …
63 In Payce, Henry J recognised that, in the Supreme Court of NSW, the question of whether the Hearne v Street obligation applies to pleadings was not settled. After referring to eisa and Helicopter, her Honour said that she preferred the view of Brereton J in Helicopter. At [121]-[131], her Honour set out the reasons for that preference as follows:
First, pleadings are, in my view, of a different nature to the species of other documents to which the Implied Undertaking applies. A pleading is a document which a party voluntarily files with the Court and serves on another party to set out the scope of the issues to be determined by the Court. In that sense, pleadings are not produced on compulsion as part of a Court process.
Accepting that Council's defence documents were served in accordance with orders made by this Court is not, in my opinion, enough to bring them within the "Harman" principle and subject to the Implied Undertaking. A defendant is not compelled by Court to put forward a defence by filing a list response, or to disclose evidence by way of documents and information at that time. The rules of the Court require a defendant, if it chooses to defend the claim by lodging a list response, to admit or deny the allegations and provide particulars in support.
Second, the purpose of the Implied Undertaking is to protect the privacy of the person disclosing (under compulsion) the relevant document and thereby encourage full and frank disclosure during litigation: Gavan v FSS Trustee Corporation [2019] NSWSC 667, British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571, at [20]. It is focused on the protection of a party's private documents and the information contained within them, which are obtained during the Court process.
Third, pleadings are not, in the words of the High Court, "received into evidence". They are not read onto the record and are not evidence. They 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.
Fourth, and as Council seems to accept in its written submissions, the Implied Undertaking would not apply to a list statement as it is not a document which a party to litigation is compelled to produce. I query why, in those circumstances, the Implied Undertaking, which if breached is punishable by conviction for contempt of court, would extend to the pleading filed in response by a defendant.
Fifth, extending the Implied Undertaking to pleadings seems to me to be incompatible with the new practice of this Court, which is that access will normally be granted to non-parties in respect of pleadings in proceedings that have not been concluded with leave of a judge or a registrar: Practice Note SC Gen 2 dated 4 October 2019. Accepting that leave is required for access, why should a plaintiff to proceedings by bound by the Implied Undertaking in respect of a defence when it will be normal for non-parties to obtain access with leave and not be bound?
Sixth, in eisa Limited v Damien Brady and 2 Ors, Santow J had to consider and determine an application by a media organisation for access to the pleadings on the court file at a time when the practice notice was in different terms. His Honour's references at [21] and [22] to the Implied Undertaking were by analogy, in the context where the media organisation seeking access to the court file had to demonstrate there were exceptional circumstances, akin to the need to show special circumstances if a party is to be released from the Implied Undertaking.
With respect to His Honour, the statement (at [21]) that "there is a further principle which applies to documents brought into existence or produced for the purposes of litigation" appears to go beyond the scope of the Harman principle, as accepted by the High Court in Hearne v Street. The Implied Undertaking does not apply to all documents brought into existence for the purposes of litigation. Rather, it applies to documents or information which a party to litigation is compelled to disclose to another party.
Other cases referred to by Council in its written submission (Tuquiri v Australian Rugby Union Ltd [2009] NSWSC 781, McLachlan v Brown & Australian Broadcasting Corporation (No 5) [2018] NSWSC 1976) are also less instructive as, like in eisa, they dealt with the question of whether a non-party (the media) could get access to pleadings on the court file under the previous practice note, and not whether the parties to proceedings were bound by an Implied Undertaking.
Seventh, and while not determinative, it is, to my mind, relevant that neither the High Court in Hearne v Street nor the commentary in JD Heydon, Cross on Evidence (11th ed, 2017, LexisNexis Australia) (at 913-914) refer to pleadings in the list of documents said to be caught by the Implied Undertaking, although I accept that neither list is exhaustive.
In conclusion, although there were orders of the Court for Council to file a List Response and to provide particulars, I am not satisfied that, as "quasi-pleadings", the Council defence documents were documents produced under compulsion or of the type that are subject to the Implied Undertaking. It follows that I have concluded Payce has not breached the Implied Undertaking by serving a copy of the Daubney Report on Council and the Superintendent as part of the Final Payment Claim, and would not be in breach if it were to rely on it as part of the SoP Act process.
64 Justice Henry's reasoning in Payce is compelling. Her observations at [126] apply a fortiori in this Court given the terms of r 2.32(2) and (3) FCR which allow inspection of pleadings filed in this Court without the need to seek the prior leave of the Court.
65 In Haswell, after explaining the relevant principles (at [11]-[15]), Lee J referred to r 20.03 FCR (at [16]) and then said (at [17]-[20]):
This rule is consistent with the position that would otherwise apply if the rule did not exist. Whatever might have been the position in the United Kingdom (see Harman at 306 (Lord Diplock), 309 (Lord Keith); 326 (Lord Roskill)), the position at common law in Australia is that the obligation comes to an end once a document is tendered in evidence or formally read in open court: Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 (at 32-3 per Mason CJ); Ainsworth v Hanrahan (1991) 25 NSWLR 155 (at 164-5 per Kirby P). Although prior to Hearne v Street, there had been some contrary views expressed by intermediate courts of appeal about the width of the proposition I have just articulated (see Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 (at 342 per Anderson J) and British American Tobacco Australia Services Limited v Cowell [2003] VSCA 43; (2003) 8 VR 571 (at 586-7 [35] per Phillips, Batt and Buchanan JJA)), those doubts (based upon English authority) can be put to one side for at least two reasons.
First, even if it were thought (for some reason) that Mason CJ, unusually, did not mean what he said in observing that the obligation is subject to the qualification that once material is adduced in evidence it becomes part of the public domain (Plowman at 32-3), the majority of the High Court made the position as to documents going into evidence plain in Hearne v Street (at 154 - 5 [96] per Hayne, Heydon and Crennan JJ) (see the extract reproduced at [14] above).
Secondly, and more fundamentally, the continuing maintenance of the obligation is inconsistent with the relevant information being in the public domain. An aspect of open justice is that information (be it contained in evidence or submissions) is communicated publicly to those present in the court, which in turn allows public and professional scrutiny (including fair and accurate reports of judicial proceedings), and courts will not act contrary to the principle save in exceptional circumstances: see Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378 (at 387 [44] per French CJ, Hayne, Kiefel, Bell and Keane JJ). This principle is fundamental to the principled exercise of Ch III judicial power. That open justice principles are jealously guarded finds reflection not only in the limited number of exceptions to the principle (e.g., s 121 of the Family Law Act 1975 (Cth)), but also in the fact that when it comes to the express statutory power to make suppression and non-publication orders in this Court, such orders will only be appropriate under s 37AG of the Act when "necessary" (a "strong word": see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and, in deciding to make them, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see s 37AE of the Act. For the obligation to continue in circumstances where the relevant information is in the public domain, would make no sense given all persons have a common law right to make a fair report of information revealed in any proceeding in open court: see Dickason v Dickason (1913) 17 CLR 50 (at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ agreeing); Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293 (at 296 [16], 298 [25] per Rares J).
The practical and more specific statement of the operation of these principles, in this Court, is that the Hearne v Street obligation no longer subsists in relation to information obtained from public domain documents such as: (a) publicly available Court documents, being pleadings or particulars of a pleading or a judgment or a transcript etc (see FCR 2.32); (b) documents that have been tendered; (c) affidavits which have been read; (d) expert reports which have been adduced into evidence; (e) answers to interrogatories tendered; and (f) a document read or referred to in open court in a way that discloses its contents (see FCR 20.03). As to the nature of a hearing in which such evidence is adduced (be it interlocutory, a voir dire, or a final hearing) this does not matter - as long as the hearing was in open court and there was no order made or relevant statutory exception applicable to the use or publication of the information.
66 TWE submitted that the authorities to which I have referred at [52]-[65] above do not provide an answer to its fundamental submissions to the effect that the Jones 3FASOC and the Jones 2FAD were not independent sources of the information in those pleadings which was subsequently deployed in the Napier SOC and that the use of that information was still protected by a Hearne v Street obligation imposed on MB and Mr Donnellan (as to which see [31]-[36] above).
67 Relying upon the observations of Lord Oliver of Aylmerton at 854A-D in Crest Homes PLC v Marks [1987] 1 AC 829 and the observations of Yates J at [69] in Forty Two International Limited v Barnes [2010] FCA 397, TWE submitted that the Hearne v Street obligation applies not only to discovered documents themselves but also to information derived from those documents whether that information be embodied in a copy of the documents or stored in the mind. This submission is correct and I accept it.
68 Counsel for TWE then addressed Connective. In that case, Counsel for Connective had read in open Court from documents which had been discovered by Slea. These documents were not tendered in evidence. Connective later tried to use in a different proceeding the transcript from the earlier proceeding which recorded the contents of discovered documents which had been read out in open Court. Justice Almond held that Connective could not use the transcript in that way. At 140-141 [24], Almond J quoted from the judgment of Scott J in Sybron at 321-322 where his Lordship said:
… In my judgment the undertaking that binds the party on whom it is imposed prevents use by him of the information contained in a discovered document unless he has obtained the information from a source which is independent of and is not derived from the discovery. If counsel reads a discovered document, if a witness refers to it or if the judge refers to it or reads it, in each case the use being made of the document would be a use made possible by the discovery and a transcript thereof could not in my judgment be regarded as an independent source. It follows that the fact that the contents of a discovered document may have reached the public domain does not, in my judgment, per se relieve a party from the implied undertaking. [Ibid 321-2]
69 TWE then referred me to 148-150 [54]-[62] in Connective where his Honour said:
Observations in Cowell
Connective relied on Cowell [(2003) 8 VR 571, 583 [28], 588 [38], 593 [49]] as authority for the proposition that the Harman undertaking does not prevent a party from making use of information contained in a discovered document if there is a secondary source of the information publicly available and the information is derived from that secondary source. Connective sought to apply this proposition to the facts of the case to justify having pleaded the relevant matters in the statement of claim. In my view, however, Cowell does not stand for the proposition espoused.
Connective's proposition overstates what was said in Cowell. In Cowell, the Court of Appeal, in obiter dicta, expressed an opinion that parties and non-parties alike should be able to make use of what appears in reasons for judgment, and that once a document is copied or quoted in reasons for judgment the parties should be free to make use of that published information [Cowell (2003) 8 VR 571, 588 [38]]. The Court doubted the correctness of a statement of Scott J in Sybron to contrary effect [Ibid].
Other than in respect of information that appears in reasons for judgment, the Court of Appeal was relatively circumspect, observing that its remarks about the use of the contents of the reasons for judgment by party and non-party alike was 'merely to emphasise the possible difference between the documents themselves and some alternative, albeit derivative, sources of information' [Ibid 588 [38] (emphasis added)]. In my view, it does not follow from the persuasive observations in Cowell that the position would be the same with any publicly available secondary source. Further, I note that it is apparent from observations made in Cowell that the position in any given case may be influenced by whether the discovered document has been tendered in evidence and whether the disclosure of information from a discovered document has occurred at an interlocutory stage or at trial [Ibid 592 [47]].
Transcript of argument
In this case, the information from the 2010 Agreement has not been copied or quoted from reasons for judgment (or from a transcript of reasons for judgment). Instead, the information sought to be relied upon in the statement of claim was disclosed in court (substantially by counsel for Connective) during argument at the hearing of an interlocutory application in circumstances where the discovered document being read from had not been tendered in evidence.
I am not persuaded by Connective's submission that the transcript of the argument at the 17 June hearing was able to be freely used by Connective as a secondary source of the contents of the document for the purposes of commencing this proceeding. If Connective's submissions were accepted, a party could effortlessly sidestep the obligations which otherwise attach to private and personal documents disclosed under the coercive process of discovery.
The practical consequence would be to enable a party bound by the implied undertaking to self-reference the contents of a document through its counsel during argument, and in the process easily evade the substantive obligation inherent in the implied undertaking (to the extent that counsel has been able to read the document aloud and thereby cause the contents to be transcribed). If the contents of private and personal documents could be so easily accessed, it would likely operate as a disincentive to a party giving proper discovery and lead to 'tactical manoeuvrings' [Harman [1983] 1AC 280, 308] by parties to ensure that discovered documents were or were not read out in court.
In my view, this outcome cannot have been what the Court of Appeal in Cowell intended in its passing remarks about 'alternative, albeit derivative, sources', particularly given that the Court followed Harman and expressly endorsed the considerations underlying the decision of Scott J in Sybron. Rather, I expect the sources in contemplation include information derived from the transcript of reasons for judgment or information derived from the transcript of an unrelated court proceeding, where the contents of a discovered document in evidence in that unrelated proceeding are revealed in open court and are therefore truly in the public domain.
A key theme in the authorities, expressly or by implication, appears to be whether the contents of documents have entered the public domain. The position is not uniform between jurisdictions [The Federal Court Rules provide that the implied undertaking no longer applies if a document is read or referred to in open court in a way that discloses its contents: Federal Court Rules 2011 (Cth) r 20.03. Regulation 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) provides that no copy of a document or information from a document may be disclosed or used otherwise than for the purpose of the conduct of the proceeding, except by leave of the court, unless the document has been received into evidence in open court.
In Deputy Commissioner of Taxation v Karas [[2012] VSC 143 (Karas)], J Forrest J had occasion to consider whether certain affidavits and exhibits used in interlocutory applications for freezing and related orders (which contained documents or information disclosed pursuant to coercive court orders) could be used by the Deputy Commissioner in the course of enforcement of a judgment debt obtained in a separate proceeding [Ibid [2]].
In determining whether the contents of documents had entered the public domain, J Forrest J stated that the mere filing of an affidavit in the course of a proceeding does not mean that its contents (or any exhibits) have entered the public domain and that, at the very minimum, it is necessary for the relevant affidavit to have been deployed in open court - in the sense that it constituted admissible evidence on a particular application or in a trial and was, in fact, utilised for the purpose of the decision. His Honour observed there may be cases where, notwithstanding the use of the affidavit and exhibits in the course of an application, the disclosed material could not properly be said to have entered the public domain [Ibid [50]]. The approach taken by J Forrest J in Karas fortifies my view that the contents of the document in issue in this case cannot properly be said to have entered the public domain.
70 It seems to me that the reasoning of Almond J in the above paragraphs of Connective and of Scott J in Sybron relied upon by Almond J is contrary to the observations of the Victorian Court of Appeal in Cowell at 583 [28] and 588 [38] to the effect that the Hearne v Street obligation does not prevent a party from making use of information contained in a discovered document if there is a secondary source of the information publicly available and the information is derived from that secondary source. For this reason, I consider that I am bound to follow Cowell on this point and propose to do so. In any event, with respect to Almond J, I think that his opinion to the contrary does not state the law in Australia.
71 The decision of Santow J in eisa should not be followed for the reasons explained by Henry J at [127]-[128] in Payce. In Chandrasekaran, the applicant conceded that pleadings are subject to the Hearne v Street obligation without explaining why.
72 TWE sought to obtain support for its fundamental argument from Eckert. It submitted that, although Doyle CJ did not expressly say so, his Honour's approach to the facts in Eckert demonstrated that his Honour did not regard the earlier pleading under consideration in that case which embodied information taken from discovered documents as an independent or secondary source for that information. In my view, nothing in the Chief Justice's judgment supports that submission and I reject it.
73 In K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228, at [65], Debelle J said:
An important aspect of the reasoning in Harman and in British American Tobacco to justify the conclusion that persons subject to the obligations of the implied undertaking remain subject to these obligations notwithstanding that third parties may make what use they can of what they hear in court or read in transcript is that the party gaining access to another's documents is in a privileged position by reason of the process of the court and it is that privilege which should not be abused: see the last sentence in para 38 of British American Tobacco, Lord Roskill in Harman at 322 - 323 and see also Scott J in Sybron Corporation at 322. There can be no doubt as to the solemn nature of the undertaking and the gravity of the obligation it imposes. However, once the document has been admitted into evidence, the rationale for the undertaking evaporates. If third parties are at liberty to make what use they can of the documents, the person to whom they are disclosed should also be able to use them. The fact that the documents were initially disclosed to a person does not justify discriminating between that person and members of the public. The solemnity of the undertaking is not enhanced by such a rule. Instead, the unequal operation of the rule is likely to erode confidence in it. Sanctions exist to punish those who flout the undertaking. Courts may make orders to protect the confidentiality of documents admitted into evidence. In short, no public purpose is served by discriminating between the person to whom the document is disclosed and the third parties who may make what use of what they can of what they have heard in court or what they see in a transcript.
74 I think that these remarks correctly state the law. I propose to apply them in the present case.
75 TWE's submissions which I have endeavoured to summarise at [31]-[36] above cannot be sustained. The authorities relied upon by TWE either do not support its submissions or do not correctly state the relevant principles. In this Court, pleadings are available for inspection by any member of the public. In addition, in the present case, the information originally sourced in discovered documents which found its way into the Jones 3FASOC and the Jones 2FAD was included in those pleadings as a result of amendments sought by the relevant parties and granted by the Court and were so included as a result of the legitimate and quite proper exercise of the parties' rights to seek such amendments in light of information gained from reading and considering discovered documents. No restriction was sought or placed upon public access to the information which had been included in the Jones 3FASOC and the Jones 2FAD which had been taken from discovered documents and that material was available for inspection by any member of the public as part of those pleadings. MB and Mr Donnellan did not access the primary source for that information (viz discovered documents) when they came to draft the Napier SOC. The only documents used by them for the purpose of drafting the Napier SOC were the Jones 3FASOC and the Jones 2FAD. The only information used by them for that purpose was information contained in those pleadings. Those pleadings were not subject to any Hearne v Street obligation insofar as MB and Mr Donnellan were concerned. Nor was the information in those pleadings extracted from discovered documents subject to any such obligation.
76 Accordingly, I am of the opinion that MB and Mr Donnellan are entitled to the declaration which they seek.
77 If I am wrong in this conclusion and the information which I have described at [22] above which was included in the Jones 3FASOC and the Jones 2FAD was subject to a relevant Hearne v Street obligation, that obligation ceased to be enforceable or was spent when the pleadings were published on the Federal Court website in the manner described in the evidence and when that information was tendered in evidence at the Amendment Application heard on 27 April 2017.
78 The "public domain" exception was explained by Lee J in Haswell at [18]-[20] (as to which, see [65] above).
79 TWE submitted that, if there was a common law public domain exception, it was only engaged if the document or the relevant information is made public by being deployed in open Court. In support of that proposition, TWE relied upon observations made by the Court in Cowell at 593 [48]-[49].
80 As submitted by Senior Counsel for MB and Mr Napier, TWE's submission is to take a far too literal approach to the relevant statements of principle in Cowell (see esp the second half of 593 [49] in Cowell). At 593 [49] in Cowell, the Court said:
Given the particular considerations requiring that a party's privacy be respected so far as compatible with the administration of justice in open court, there seems no logical, or indeed practical, reason why the mere passing of the document into evidence (as witness its being marked as an exhibit) should be taken to relieve the party bound by the implied undertaking from its obligations in that respect. Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into "the public domain") by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large - but only as to such information - there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case.
81 The emphasis in that case placed upon the need for the relevant documents or information to be disclosed in open Court is explicable by the Court's recognition of the fact that there must be a clear and readily accessible disclosure to the public before the protection given to the relevant documents or information by the Hearne v Street obligation is lost. In my view, a clear and readily accessible disclosure was made in the present case when the pleadings were placed on the Court's website for all to see in a part of that website which was readily accessible. The public display of the pleadings on the Court's website was put in place at the behest of the Court and was notified to those members of the public most interested in this proceeding through the medium of the Settlement Notice which I ordered to be published in September 2017. In this day and age, it is fair to say that placing the pleadings in a prominent position on the Court's website was a much more effective way of making the contents of those pleadings "public" than reading them out in open Court.
82 I do not think that the making of the settlement approval orders on 10 November 2017 rendered the contents of the Jones 3FASOC and the Jones 2FAD publicly available. I do, however, think that the tender of the proposed Jones 2FASOC on 27 April 2017 did render the contents of that document publicly available.
83 I now turn to the question of leave. The need for the Court to grant leave nunc pro tunc to use the relevant information included in the Jones 3FASOC and the Jones 2FAD which was taken from discovered documents only arises if there was a breach of the relevant Hearne v Street obligation. I have held that there was no such breach. However, against the possibility that I am wrong in that conclusion, I will briefly address the question of whether leave should now be granted.
84 In Springfield, Wilcox J held (at 225) that special circumstances must exist for leave to be granted. He held that, for special circumstances to exist, it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking that is not usually present.
85 At [48] and [51] above, I have set out the Written Submissions made on behalf of MB, Mr Donnellan and Mr Napier in support of the grant of the appropriate leave. In addition, the following matters were relied upon in oral submissions:
(a) The Jones 3FASOC and the Jones 2FAD were never private documents that existed independently of the litigation. They were brought into existence for the purpose of the litigation. They were created at a time when r 2.32 FCR provided that they would be open for inspection by any member of the public. For these reasons, there was no expectation of privacy in relation to those pleadings at the time they were filed;
(b) The pleadings have been available on the Court's website for many years;
(c) There is no prejudice to the privacy interests of TWE because the pleadings were available to the public for a very long time and remain available to the public to this day;
(d) Everyone else in the world can use the pleadings for any legal purpose that they desire but MB, Mr Donnellan and Mr Napier may not.
86 I do not consider the matters raised by TWE in opposition to the grant of leave as justifying a refusal of leave.
87 Although MB, Mr Donnellan and Mr Napier have not formally apologised to the Court, the absence of such an apology is explicable by the fact that the primary contention advanced on their behalf is that they never breached any relevant Hearne v Street obligation. I have upheld that contention. While it may be possible for those persons to offer a qualified apology along the lines of "if our primary contentions are not upheld and if the Court considers that we breached the relevant Hearne v Street obligation, we unreservedly apologise for doing so", such a course is somewhat unreal and I do not consider that the absence of such a qualified apology is of any significance. In addition, in circumstances where I have held that there was no breach of any relevant Hearne v Street obligation, I do not consider it appropriate to order MB, Mr Donnellan or Mr Napier to pay TWE's costs of the present applications.
88 Next, I do not accept that the grant of leave at the present time will unfairly prejudice the breach of confidence case which TWE now wishes to maintain in the Supreme Court.
89 Having carefully considered the matter, I am of the view that, for more abundant caution, I should make an order granting the appropriate leave to the extent that it may be necessary to do so. I do so for the reasons advanced by MB, Mr Donnellan and Mr Napier. In this way, the orders which I make will make clear that, had I not found that there was no breach of the relevant Hearne v Street obligation, I would have granted the leave applied for by MB, Mr Donnellan and Mr Napier.