(This judgment was delivered extemporaneously on 26 November 2025 and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities).
[2]
The plaintiff in this action, Ms Michelmore, is a legal practitioner. The defendants are the former clients of the plaintiff. The plaintiff sued the defendants in defamation.
There are four defendants in the action. The first defendant, Mr Brown, was momentarily in court, but as this application does not primarily concern him. I gave him the opportunity to leave, and he took that opportunity.
The application primarily concerns the first named and second named second defendants, who have invited me to call them Jerald and Emma, which I have done.
The third defendant is a company which I do not need to consider.
The action arises from the publication of two emails containing statements which the plaintiff says impugned her integrity and professional confidence. One email was published by Mr Brown and one email was published by all the defendants.
In a decision delivered earlier this year, Tottle J found the defendants' statements were grossly defamatory of the plaintiff. They had no foundation in fact. They were wholly indefensible and should never have been made. His Honour awarded damages against the defendants and imposed an injunction restraining the defendants from making statements that repeat the defamatory imputations contained by the two emails or statements to a like effect.
In submissions this afternoon, Jerald has sought to place before the court material to the effect that, and has argued that, the decision of Tottle J is based on fraud, and consequently, that anything that has happened after that decision is also tainted by fraud. A decision of the Supreme Court is valid and must be given effect to unless and until it is set aside on appeal. So in the application this afternoon, I am proceeding on the basis that the decision of Tottle J stands, and all orders made subsequently are valid, as are all decisions made subsequently by Tottle J and, as I will say in a moment, Solomon J. None of those decisions have been either the subject of appeal, let alone set aside on appeal.
Almost immediately after the injunction imposed by Tottle J was made, Jerald and Emma breached the injunction.
In a decision delivered in April of this year, Solomon J found Jerald and Emma to be in contempt of court.[2] His Honour then sentenced each of Jerald and Emma to a term of imprisonment of 30 days.[3]
The application before me this afternoon is by Ms Michelmore to be released from the implied obligation of confidence in relation to a document filed in these proceedings, which she wants to use in two Magistrates Court matters. The two Magistrates Court matters are restraining order proceedings commenced by Ms Michelmore against each of Jerald and Emma.
Ms Michelmore applied for and obtained interim restraining orders against each of Jerald and Emma on 2 April 2025. The applications are now listed for final order hearings. As I understand it, Jerald's was scheduled this morning, Wednesday 26 November 2025, and Emma's was scheduled for Friday 28 December 2025, but has been adjourned.
The documents are described as folios 182 and 183 in the present action. They are an affidavit filed by Jerald on 18 August 2025 and its annexures (August Affidavit). The August Affidavit was filed in this action on the issue of costs of the contempt application.
Ms Michelmore has sworn an affidavit dated 21 November 2025 in support of her application. Her counsel has filed submissions. In her affidavit, Ms Michelmore deposes the August Affidavit contains statements which, amongst other things, repeat the statements subject to the contempt. The materials refer to an organisation by the name of the Sovereign People's Association of Western Australia. This organisation and its role in the contempt was discussed in some detail by Solomon J in his decision in relation to contempt.[4]
Ms Michelmore says in her affidavit as follows (paragraphs 15 to 18):
[3]
a) they consider that the Sovereign People's Association of Western Australia is a lawful common law court and is a court whose jurisdiction exceeds that of the Supreme Court of Western Australia;
b) they consider that they are entitled to put materials which breach the permanent injunction before the Sovereign People's Association of Western Australia;
c) they consider that I am required to comply with the 'verdict' of the Sovereign People's Association of Western Australia, which includes -
(i) seizing all the property I own;
(ii) an attempt to prevent me from practising as a lawyer;
(iii) a prohibition on my employment;
(iv) a suggestion that I should be re-educated in their 'law'.
[4]
And despite being imprisoned for contempt in Michelmore v Brown [No 7] [2025] WASC 247, the Second Defendants continue to assert that the Sovereign People's Association of Western Australia's verdict is valid, and I need to comply with it. I'm very concerned about what the second defendants or other members of the Sovereign People's Association of Western Australia might do. There have been media reports regarding members of the Sovereign People's Association of Western Australia having guns seized in recent police raids. The risks they pose to me is a matter which will be dealt with in the Magistrates Court trial on 28 November 2025.
The claims and (indistinct) 182 and 183 make me feel incredibly vulnerable. I wish to refer to the documents now prepared in trial, so I can defend the VRO to protect myself.
[5]
Jerald filed an affidavit in response dated 25 November 2025. This appears to be a copy of the affidavit which he has filed in opposition to the final restraining order being made. In the affidavit, Jerald repeats matters that have previously been raised in the course of this action, including that the statements found to be defamatory were protected by absolute privilege, that the defamation decision is nullified by reason of fraud on the court and that he and his wife are denied a fair trial. Mr Brown also details concerns he has about the manner in which Ms Michelmore has conducted herself in this action.
In relation to the restraining order proceedings, Jerald says, among other things:
[6]
(a) the plaintiff perjured herself on multiple occasions throughout the hearing on 2 April 2025;
(b) from the moment of service, he has complied with the restraining order;
(c) since the order was granted, the plaintiff has sent him at least 22 emails showing no genuine fear; and
(d) the restraining order has caused him severe personal and financial hardship.
[7]
In the hearing this afternoon, I am not concerned with the issue of whether or not a final restraining order should be granted. Rather, I am concerned with the issue of whether or not Ms Michelmore should be permitted to rely on the August Affidavit in the final order hearings.
The starting point is the rule that where one party to litigation is compelled by reason of a rule or 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 the documents or information for any purposes other than which they are given unless they are received into evidence. I refer to this rule as the Disclosed Documents Obligation. The Disclosed Documents Obligation applies to a range of material, including discovered documents, answers to interrogatories, and documents produced on subpoena. For present purposes, I accept that this rule applies to the August Affidavit, though it may have been received into evidence at one of the hearings.[5]
The court then has the power to dispense with or modify the Disclosed Documents Obligation. As counsel for the plaintiff points out in submission, the principles governing the exercise of this power were recently summarised by the Court of Appeal in Murray Riverside.[6] I accepted these statements of law as being the appropriate basis on which to determine the application.
In summary terms, the power to dispense with or modify the Disclosed Documents Obligation is not freely exercised, but will be exercised if there are special circumstances. 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.
Among the considerations that may be relevant to the exercise of the discretion are:
[8]
(a) the nature of the document;
(b) the circumstances under which the document came into existence
(c) the attitude of the author of the document and any prejudice the author may sustain;
(d) whether the document existed before the litigation was created for that purpose and therefore expected to enter the public domain;
(e) the nature of the information in the document, in particular, whether it contains personal data or commercially sensitive information;
(f) the circumstances in which the document came into the hands of the applicant; and
(g) the likely contribution of the document to achieving justice in the other proceedings.
[9]
Going through these factors, as to the nature of the document, the document is an affidavit. The document came into existence in the course of the present action. It was filed in relation to costs.
As to the attitude of the authors, both Jerald and Emma, who is not the author but in whose action it is going to be used, object to Ms Michelmore being able to use the August Affidavit.
The August Affidavit did not exist before the litigation; rather, it was created for the purpose of litigation. As it was an affidavit that was going to be used at a hearing, there was some expectation that it would enter the public domain. In terms of the nature of the information in the August Affidavit, my review of the document is to the effect that it does not contain any personal data or commercially sensitive information. As to the circumstances in which the document came into the hands of Ms Michelmore, it was filed in the current action.
In terms of the other substantive points, Emma makes the point that the document was created for a particular purpose. It was created for the purpose of use in this litigation, in particular opposing a costs order. It was not created for any other purpose. Therefore it would be unfair or prejudicial if it was able to be used for an entirely different purpose, that is, in the restraining order proceedings. Emma also makes the point that there is nothing stopping Ms Michelmore from giving her own evidence in relation to the matters the subject of the August Affidavit.
In the end, the critical factor here is what is in the interests of justice. In my view, what is in the interests of justice is that the restraining order hearing take place on the basis of all relevant information. It is significant in this case that the August Affidavit is, in effect, primary evidence of the conduct said to found the restraining order. The statements made in the August Affidavit are part of the statements which comprise the conduct from which Ms Michelmore is going to submit to the Magistrates Court that a final restraining order is appropriate.
It is not a case that Ms Michelmore can give this evidence. The evidential value of the August Affidavit is not based on anything Ms Michelmore can say. The evidential value is that it contains statements by Jerald in these proceedings. So given that the August Affidavit is in the nature of primary evidence of the conduct said to found the restraining order, in my view, the interests of justice strongly favour releasing the plaintiff from the disclosed document undertaking. This will enable her to present a complete picture of why she apprehends that Jerald and Emma may continue to intimidate her or pose a risk to her. This, in my view, reasonably constitutes special circumstances sufficient to dispense with the Disclosed Document Obligation.
Accordingly, the court orders that:
[10]
(1) The plaintiff be released from the obligation not to use the affidavit of Jerald Martin and annexures filed on 18 August 2025, folios 182 and 183, for a purpose other than in connection with this action, for the limited purpose of using the documents in Magistrates Court proceedings RO 2249 of 2025 and RO 2250 of 2025.
[11]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.