Pit Crew Management Consulting Services Pty Ltd v State of Western Australia [2025] FedCFamC2G 1327

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. On 26 March 2024 I made an order by consent dismissing a proceeding the applicant brought against the respondent in which it claimed infringement of copyright.
2. On 29 May 2025 Ms Kimberley Williams, a freelance podcaster, lodged a request for access (Request) to a "restricted" document the applicant filed with the Court, being a document headed "Outline of Submissions" (Submissions). Ms Williams lodged that request pursuant to r 2.11(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) which provides that a "person may apply to the Court or a Registrar for leave to inspect a document that the person is not otherwise entitled to inspect".
3. On 17 June 2025 I directed my Associate to inform the parties of the request, and I invited the parties to provide submissions by 24 June 2025 on whether they object to the Request being granted. On 23 June 2025 Mr Olynyk, the Assistant State Solicitor for the respondent, sent an email to my Associate in which he communicated the respondent's objection to the Request being granted, and submissions in support of the respondent's objection. Also on 23 June 2025 the applicant, by his lawyer, Mr Mallon, sent an email attaching submissions in support of the granting of the Request.
4. In these reasons for judgment, I consider whether I should grant the Request. To be in a position to consider that question it will be necessary to describe the nature of the Submissions, and the purposes for which they were filed.

1. The Submissions were prepared in support of an application by the applicant for leave to use a number of documents (Documents) the respondent had discovered for a purpose other than this proceeding. The applicant required that leave because of the principle that is often referred to as the "Harman Principle".[1] This principle has been most often used in connection with the compulsory production of documents, either through discovery, or in answer to notices to produce.
2. The Harman principle states that a party to litigation who comes into possession of a document another party to litigation has produced through a compulsory court process is under an obligation (Harman Obligation) not to use the document or information contained in the document for any purpose other than for the purpose of the proceeding in which the document has been produced. This principle, which is sometimes expressed in terms of an "undertaking", but which in truth is an obligation,[2] has been stated in a number of passages which the plurality in Hearne v Street reproduced with approval.[3] Thus, in Riddick v Thames Board Mills Ltd Lord Denning MR said:[4]

Compulsion [to disclose on discovery] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice. . . . A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.

1. And in Harman itself Lord Diplock said:[5]

The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides ... through its rules about abuse of process and contempt of court.

1. The Harman Obligation "also binds others to whom documents and information are given".[6] This will be the case where it is established that the persons to whom documents are given do not know "anything more than the origins of the material [being] in legal proceedings".[7] The Harman Obligation applies to other documents, such as affidavits or witness statements, a court requires a party to provide before the hearing, and which have not been read or adduced into evidence at a hearing.[8]
2. The Harman obligation "is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties". That being the case, "it is an obligation which the court has the right to control and can modify or release a party from"; it is "an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court".[9]
3. In Liberty Funding Pty Ltd v Phoenix Capital Ltd, the Full Federal Court considered the principles that govern the exercise of the power to relieve a party (or any other person) from a Harman Obligation in relation to particular documents. The Full Federal Court said:[10]

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. 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 into the hands of the applicant; and
• most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

1. The Submissions identify the Documents in relation to which the applicant is bound by the Harman Obligation, and the purpose for which the applicant sought to be released from the Harman Obligation in relation to the Documents. In doing these things, the Submissions describe the contents of the Documents.
2. On 4 December 2023 I made an order by consent that the applicant and its legal advisers be relieved from the Harman Obligation in relation to the Documents, on the basis that such "relief . . . be solely limited to the use of the documents . . . for the purpose" for which the applicant sought to be relieved from the Harman Obligation.

1. In the Request Ms Williams says she requests access to the Submissions for the following reasons:
   • - To understand the details of the claim, including timelines of actions and events, the parties involved and detailed points of defence
   • - To assist in the preparation of newsletters and information packages for client organisations, also in the preparation of media statements and releases
2. In its written submissions the applicant submits as follows:

(a) It is in the public interest that the Request be granted because the Submissions set out the "timeline and circumstances relevant to the [respondent's receipt] of the" works in which the applicant claimed copyright subsists, and which the applicant claimed the respondent infringed. The timeline and circumstances, as stated in the Submissions, "are gathered from the [respondent's] own emails".

(b) The Documents are not protected from disclosure under the Freedom of Information Act 1992 (WA).

(c) It is in the public interest for the press to understand the facts relevant to the respondent's claimed entitlement under s 183(1) of the Copyright Act 1968 (Cth) because the "use of statutory licences is complex and not well understood by the public".

(d) The Request should also be granted to assist the public to understand the respondent's approach to the use of a third party's copyright material, how the respondent interacts with the copyright user, and whether the respondent is candid with the copyright owner.

1. The respondent, through the email Mr Olynyk sent to my Associate, submits it would not be in the public interest for the Request to be granted for the following reasons:

(a) The respondent has been notified that the applicant "intends to pursue this matter in the Copyright Tribunal".

(b) The Submissions contain serious and unsubstantiated allegations against named individuals, including current and former senior public servants.

(c) The reasons for which the Request is made do not outweigh the public interest in maintaining the confidentiality of the Submissions. These reasons are plainly extraneous to the proper administration of justice, and are directed toward advocacy and publicity rather than legal accountability or transparency through any appropriate freedom of information process.

1. Whether I should grant the Request is to be determined by the application of the principles Jacobson J considered and applied in Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd.[11] His Honour stated the following principles:

(a) Unless the interests of justice require otherwise, the Court would ordinarily take the view that a non-party should have access to all non-confidential documents and other material admitted into evidence.[12]

(b) Where leave is sought to inspect documents that have not been read in open court, or at least tendered in evidence and considered by the judge as evidence or submission, leave will ordinarily be refused to inspect that material.[13]

(c) It follows from Harman that third parties are subject to the same type of restrictions in relation to documents that have not been read in open court, or at least considered by the judge as evidence or submission. His Honour continued:[14]

After all, why should a non-party, by the side-wind of access to a court file, be free from the constraint which applies to the persons who supplied the contents of the file?

It also seems to me that this restriction informs the requirement of leave to inspect the categories of documents referred to in O 46 r 6(3) and the approach taken in the authorities which draw a distinction between access to documents admitted into evidence and those which are not.

1. The Submissions were not read or otherwise referred to in open court, and, for that reason alone, unless there is some justifiable reason, the Request should be rejected. The Request, however, does not identify any justifiable reason on the basis of which access to the Submissions could be granted.

(a) First, the Submissions were prepared in support of an application by the applicant to be released from the Harman Obligation in relation to the Documents; the Submissions, therefore, disclose very little about the "details of the claim, including timelines of actions and events, the parties involved and detailed points of defence", being one of the two reasons for which Ms Williams says she makes the Request.

(b) Second, although Ms Williams says she seeks access to the Submissions to "assist in the preparation of a newsletter and information packages for client organisations", and to assist "in the preparation of media statements and releases", Ms Williams does not identify the nature of the newsletter, information packages, media statements, or releases she will be preparing, or how the information contained in the Submissions will be used in those publications.

1. There is an additional, and more important reason for not granting the Request. The Submissions refer and describe documents the respondent produced by a compulsory process. That means the applicant is bound by a Harman Obligation in relation to the Documents, a fact the Submissions themselves recognise. Ms Williams herself would be bound by a Harman Obligation if she came into the possession of the Submissions, unless she were released from that obligation. Whether I should grant the Request for the purpose for which Ms Williams seeks access, therefore, would depend on Ms Williams establishing "special circumstances", having regard to factors such as those the Full Federal Court identified in Liberty Funding. Ms Williams has not attempted to establish any special circumstances; and the reasons on which she relies for the Request do not disclose any special circumstances. Of particular significance is that Ms Williams does not say that she needs access to the Documents for the purpose of some other proceeding.
2. The applicant, in its submissions, does not appear to appreciate that the granting of the Request would in effect amount to a release of the Harman Obligation that attaches to the Documents by which the applicant is bound, and by which any other person who comes into their possession would be bound. The applicant, therefore, does not in its submissions attempt to show there are special circumstances warranting the granting of the Request and thus relieve Ms Williams of the Harman Obligation in relation to the Submissions to which she would otherwise be subject; and the applicant's submissions do not disclose any special circumstances.

1. For these reasons I propose to order that the Request be refused.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

[1] Named after Harman v Secretary of State for the Home Department [1983] 1 AC 280.

[2] Hearne v Street [2008] HCA 36, at [108], where the plurality quote with approval the following passage from the judgment of Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756, at page 764: "The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information."

[3] Hearne v Street [2008] HCA 36, at [105], and [107].

[4] Riddick v Thames Board Mills Ltd, [1977] QB 881, at page 896.

[5] Harman v Secretary of State for the Home Department [1983] 1 AC 280, at page 300.

[6] Hearne v Street [2008] HCA 36, at [109].

[7] Hearne v Street [2008] HCA 36, at [112].

[8] That was the case in Hearne v Street [2008] HCA 36, which concerned part of an expert report and part of an affidavit that were filed and served pursuant to orders of the court.

[9] Watkins v A J Wright (Electrical) Ltd [1996] 3 All ER 31, at page 42, quoted with approval in Hearne v Street [2008] HCA 36, at [107].

[10] Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, at [31].

[11] Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd [2008] FCA 783. The case concerned the power to grant leave to inspect and copy documents on a court file conferred by Ord 46, r 6 of the Federal Court Rules 1979 (Cth) which in substance are the same as r 2.11(4) of the GFL Rules.

[12] Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd [2008] FCA 783, at [36].

[13] Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd [2008] FCA 783, at [43].

[14] Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd [2008] FCA 783, at [60], [61].