Plaintiff v Defendant

2 In this proceeding Goulburn Grammar seeks, among other things, to be indemnified in respect of the settlement sum the subject of the Settlement Deed pursuant to a policy of insurance between Goulburn Grammar and the defendant (defendant or Liberty) as insurer.

3 One of the issues in this proceeding between Goulburn Grammar and Liberty is the reasonableness or otherwise of the terms of the settlement reached between the plaintiff and the defendants in the Primary Proceeding and recorded in the Settlement Deed (Settlement).

4 By summons filed 20 June 2025 the plaintiff applied pursuant to the Court's inherent jurisdiction and/or s 27(3)(b) of the Civil Procedure Act 2010 (Vic) (CP Act) that it be released from:

1. its obligation under s 27(1) of the CP Act not to use certain documents and information filed or produced in the Primary Proceeding (Primary Proceeding Documents) for a purpose other than in connection with the Primary Proceeding; and

2. its implied undertaking not to disclose or use the Primary Proceeding Documents other than in connection with the Primary Proceeding.

5 The implied undertaking referred to in paragraph 4(2) above is commonly referred to as the 'Harman undertaking', which is how it is referred to in the balance of these reasons.[1]

6 The purpose of the release which Goulburn Grammar seeks is said to be to allow it to disclose to Liberty in this proceeding the Primary Proceeding Documents so as to enable Liberty to consider and assess the reasonableness or otherwise of the Settlement, and to allow each of the parties to use the Primary Proceeding Documents in this proceeding in the conduct of Goulburn Grammar's claim against Liberty, and Liberty's defence to Goulburn Grammar's claim (collectively, Purposes).

7 For the reasons that follow, insofar as Goulburn Grammar is subject to obligations under s 27(1) of the CP Act (s 27 Obligation), or a Harman undertaking in the Primary Proceeding, in respect of one or more of the documents or items of information referred to in Schedule A to these reasons (Documents and Information), an order should be made releasing Goulburn Grammar from such obligations and undertaking for the specified Purposes.

Background, material relied upon, and submissions

8 The application was supported by two affidavits of the solicitor for Goulburn Grammar, Toby Franklin Chandler, affirmed 20 June 2025, and 25 July 2025 (Second Chandler Affidavit). Goulburn Grammar also relied upon an outline of submissions filed 20 June 2025, which was supplemented by oral submissions made by counsel on the first return of the application on 18 July 2025, and the further hearing of the application on 31 July 2025.

9 Liberty consented to the grant of the relief sought by Goulburn Grammar and was supportive of the application given its claimed need to have access to the Documents and Information for the purpose of conducting its defence in this proceeding, including considering and assessing the reasonableness or otherwise of the Settlement.

10 On the first return of the application I raised with the parties, among other things: some issues regarding the extent and breadth of the Primary Proceeding Documents; the question of whether any of the expert reports referred to contained limitations or statements about not being permitted to use the reports for any other purpose than the Primary Proceeding; and the desirability of the parties reviewing the extent and breadth of the Primary Proceeding Documents so as to ensure that the release being sought related only to documents said to be truly relevant to the issues in this proceeding. I suggested to the parties that the further hearing of the application be adjourned for a short period to enable conferral between the parties about these and other matters, with a view to producing a revised list of documents narrower in scope, and so as to enable any further affidavit material to be filed and served. The parties responsibly adopted this course.

11 By an exhibit to the Second Chandler Affidavit, the Court was provided with a revised and reduced list of documents in respect of which the plaintiff pressed the application (Revised Documents List).

12 By email to the parties' solicitors from my chambers on 28 July 2025, an enquiry was made as to whether there were any existing confidentiality orders in respect of one or more of the documents in the Revised Documents List. By reply email sent later that day, Goulburn Grammar's solicitors informed the Court that the only documents in the Revised Documents List affected by a confidentiality order in the Primary Proceeding were the plaintiff's statement of claim filed 12 May 2023 and the second defendant's defence filed 11 July 2023 (Confidential Pleadings). This was said to be because these documents had identified certain individuals in connection with the sexual abuse claims and, consequently, amended pleadings were subsequently filed in the Primary Proceeding in a form that redacted the relevant names. The Court was also informed by that email that there were no other confidentiality orders in place in respect of any of the other documents in the Revised Documents List, and that Goulburn Grammar was no longer seeking a release in respect of the Confidential Pleadings.

13 Shortly before the hearing commenced on 31 July 2025, the Court was provided with a further revised list of documents (Further Revised Documents List) that addressed with greater precision the particular court documents in the Primary Proceeding in respect of which a release was sought. With the exception of item 4 of the Further Revised Documents List (which was the second defendant's amended defence dated 22 September 2023 (Item 4)) the Further Revised Documents List is relevantly identical to the description of the Documents and Information set out in Schedule A to these reasons.

14 Principles relevant to applications under s 27(3)(b) of the CP Act and applications to be released from the Harman undertaking have been addressed in numerous authorities, are well known, and were not the subject of any controversy. I recently referred to these matters in Re Clarinda Pty Ltd (in liq),[2] and it is efficient and convenient to repeat in large part what I set out in that case, which I do below.

15 In Williams v TT Line (Williams),[3] Digby J said as follows:

[31] Section 27(1) of the CPA imposes an obligation upon any person to whom the overarching obligations apply and who receives information or documents provided by another person in a civil proceeding as a result of disclosure made in accordance with s 26 of the CPA, not to use the information or documents other than in connection with the civil proceeding in which the information or documents were produced.

[32] This obligation is the statutory equivalent of the common law obligation in the nature of an implied undertaking to the Court pursuant to which documents are produced, commonly referred to as the 'Harman undertaking', see Harman v Secretary of State for Home Affairs,[4] and recognised in Australia in Hearne v Street.[5]

[33] In considering whether to make an order under s 27(3)(b) of the CPA releasing a party from its obligation under s 27(1), the Court will generally be guided by principles developed in relation to granting release from a common law undertaking.[6]

[34] Both Williams and TT-Line rely on the Federal Court of Australia decision in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[7] (Springfield Nominees) as authority for the proposition that there must be 'special circumstances' which afford good reason for releasing a party from its obligation under s 27(1) of the CPA.

[35] Accordingly, the Court will exercise its discretion to release a party from the obligation not to disclose or use documents for purposes other than the proceedings in which they are produced or disclosed where 'special circumstances' are sufficiently identified.[8]

[36] In describing such 'special circumstances' in Springfield Nominees, Wilcox J observed that it was neither possible nor desirable to state an exhaustive list of matters that might justify the grant of release from the obligation under s 27(1), stating that:[9]

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 and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it 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 for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.

16 Without setting them out, I refer also to the observations regarding the relevant principles in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd,[10] Australian Securities and Investments Commission v Marshall Bell Hawkins Limited,[11] Hearne v Street,[12] Barrow v McLernon,[13] Clare Hazell-Wright v 32 Domain Pty Ltd (ACN 163 035 603),[14] Khoury v Kirwan (No 4),[15] and R v Silverstein.[16]

17 In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[17] the Full Federal Court stated that:

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. ...[18]

18 Whilst questions can arise in a given case as to whether the obligations under one or both of s 27(1) of the CP Act or the Harman undertaking are engaged in relation to particular documents or items of information, it is not necessary for this issue to be addressed on this application and it was not suggested that the position was otherwise. As was the case in Williams No 2, this is because:

1. as the authorities establish, when the court is considering whether to make an order under s 27(3)(b) of the CP Act releasing a party from its obligation under s 27(1) of the Act, the court will generally be guided by principles developed in relation to the granting of a release from the Harman undertaking. See, for example, Barrow v McLernon[19] and the observations of Digby J on the point in Williams;[20]

2. the current application was conducted on the basis that all of the Documents and Information in Schedule A are subject to the obligations under one or both of s 27(1) of the CP Act or the Harman undertaking;

3. in any event, the grant of any release from the obligations under s 27(1) of the CP Act or the Harman undertaking can be expressed in the order in a way that appropriately covers the obligations under each;

4. in the current circumstances proceeding in this way is efficient and well serves the Court's obligations under the CP Act; and

5. counsel for each of Goulburn Grammar and Liberty confirmed that they considered that this was an appropriate course to follow in the present case.

19 In the context of the consideration of applications to be released from a s 27 Obligation or Harman undertaking, issues can arise as to whether or not relevant documents and information were disclosed or produced by a party under compulsion. This issue was addressed by the Court of Appeal in R v Silverstein,[21] where Kyrou, Kaye and McLeish JJA undertook a detailed analysis of the cases on the topic, to which I refer but will not recite. The primary cases to which reference was made in this context included: Harman v Secretary of State of the Home Department;[22] Esso Australia Resources v Plowman;[23] Mobil Oil Australia Ltd v Guina Developments Pty Ltd;[24] and Hearne v Street.[25]

20 For present purposes it is not necessary to address this 'compulsion' issue with respect to each of the documents in Schedule A. This is because the parties conducted the application and proceeded on the basis that each of the items in Schedule A were disclosed or produced in the Primary Proceeding pursuant to one or more of: the discovery obligations of the parties, the obligation under s 26(1) of the CP Act, or court orders and directions made in relation to the filing and service of various documents. In any event, the orders I propose to make will be drafted so that the relevant releases operate only insofar as the plaintiff is subject to a s 27 Obligation or Harman undertaking in the Primary Proceeding.

21 In considering this application, I have: read and considered the affidavit material; reviewed the court file in this proceeding, including the pleadings; considered the oral submissions of the parties; had regard to and taken into account the applicable principles and observations earlier referred to, as well as the objects in s 9 of the CP Act; and sought to give effect to the overarching purpose in s 7 of the CP Act as required by s 8 of that Act. Having undertaken this exercise, including weighing the evidence before me, I am satisfied that there are special circumstances which afford good reason to grant the substance of the relief sought by Goulburn Grammar, and I have concluded that this is the just, fair, efficient and appropriate outcome. I elaborate briefly below regarding the factors and circumstances that have caused me to be so satisfied.

22 First, it is readily apparent from the affidavit material, the pleadings, and the issues in the case, that the reasonableness or otherwise of the Settlement is a material issue for determination in this proceeding.

23 Second, having reviewed the Documents and Information in Schedule A, it can be seen from the description of these documents that they are at least likely to be relevant to the issues in the proceeding, including the question of the reasonableness or otherwise of the Settlement.

24 Third, as deposed to by Mr Chandler, the solicitors acting for the plaintiff in the Primary Proceeding have confirmed that the plaintiff has no objection to the Documents and Information being used in this proceeding. In fact, the said plaintiff's position was in respect of a broader range of documents than is now the subject of the application.

25 I add, however, that whilst consent or non-opposition of parties or others is typically relevant for the Court to take into account in applications of this kind, being released from a Harman undertaking or s 27 Obligation is not a matter that can be addressed between the parties by consent or non-opposition. It is a matter for the Court's discretion, to be exercised judicially, in the manner earlier referred to.

26 Fourth, the collection and use of the Documents and Information in the manner proposed is, in the circumstances of this case, an efficient and cost-effective way of seeking and gaining access to the relevant material, as opposed to invoking other processes that might be available, including, for example, bringing non-party discovery applications or issuing subpoenas against various people.

27 Fifth, and noting the sensitive and personal nature of the issues for the plaintiff in the Primary Proceeding, granting the relief proposed has the advantage of limiting the contact with, or involvement of, the plaintiff in the Primary Proceeding for present purposes - noting also that the issue has been able to be dealt with through the solicitors who acted for the plaintiff in the Primary Proceeding.

28 Sixth, Mr Chandler's evidence addresses the fact that the relevant expert reports do not contain statements or disclaimers to the effect that the reports are not to be used for any purpose other than the Primary Proceeding and/or not to be used without the consent of the relevant expert first being obtained.

29 Seventh, it is readily apparent that the overwhelming majority of the Documents and Information relate to the personal circumstances or position of the plaintiff in the Primary Proceeding, which Documents and Information can also be seen to be (at least) likely relevant to issues in this proceeding. Indeed, counsel for Goulburn Grammar informed the Court that, except for Item 4, all the other documents and information were essentially of this character, and I note again the absence of objection of the plaintiff in the Primary Proceeding to the use of the Documents and Information in this proceeding.[26]

30 Eighth, having regard to what transpired upon and subsequent to the first return of the summons, the evidence of Mr Chandler in the Second Chandler Affidavit, and the revised and reduced list comprising the Documents and Information, I am satisfied on the evidence before me that appropriate and considered attention has been given by the parties to the question of relevance, and I am satisfied that there does not appear to be any overreach of the kind I initially had some concern about. I add that this is not intended to be, and is not, a criticism of any of the practitioners or counsel involved. On the contrary, the material before me, and the submissions made, revealed that the parties and their respective solicitors and counsel have sought to approach this sensitive matter in a careful and responsible way.

31 Ninth, although a number of the documents and items of information were prepared or created prior to the commencement of this proceeding, given the issues arising in this proceeding, the relevance of the Documents and Information to the reasonableness or otherwise of the Settlement, and the other circumstances referred to in the affidavit material and these reasons, this consideration does not weigh against the grant of the relief now sought.

32 Tenth, the Court was informed that there are no confidentiality or related orders impacting upon disclosure of the Documents and Information, noting also that a release is no longer sought in respect of the Confidential Pleadings.

33 Eleventh, in order to cater for any currently unforeseen or unanticipated issues that might arise in the future, the order granting the release will be made subject to further order.[27]

34 Twelfth, counsel confirmed that, except for the matter raised about Item 4, they were not aware of any prejudice that might be raised or suffered by any person as a result of one or more of the Documents and Information being used for the specified Purposes.

35 Finally, in all of the circumstances it is my view that the grant of relief to Goulburn Grammar to the substantive effect sought well serves the overarching purpose under s 7 of the CP Act, whereas to refuse such relief, whether in whole or in part, would not.

36 For the reasons stated above, insofar as Goulburn Grammar is, in the Primary Proceeding, subject to a s 27 Obligation or Harman undertaking in respect of one or more of the documents or items of information in Schedule A, Goulburn Grammar should be released from such obligations to enable the Documents and Information to be used in this proceeding for the specified Purposes.

37 Subject to hearing from the parties regarding the precise form of the order and the question of costs, I propose to make orders to the following effect:

1. Insofar as the Documents and Information described in Schedule A to this order (Documents and Information) are documents and information of the character described in s 26(1) of the Civil Procedure Act 2010 (Vic) (CP Act) in respect of proceeding S ECI 2023 02003 (Primary Proceeding), the plaintiff is released from its obligations under s 27(1) of the CP Act for the purpose of disclosing the Documents and Information to the defendant in this proceeding, and for the purpose of each of the plaintiff and the defendant using the Documents and Information for the conduct in this proceeding of the plaintiff's claim and the conduct of the defendant's defence (Specified Purposes).
2. Insofar as the Documents and Information are subject to an implied undertaking on the part of the plaintiff not to use the Documents and Information other than in connection with the Primary Proceeding, the plaintiff is released from the implied undertaking for the purpose of using the Documents and Information in this proceeding for the Specified Purposes.
3. Exhibit TFC-1 to the affidavit of Toby Franklin Chander,[28] affirmed 20 June 2025, may not be inspected or copied by any person, other than judicial officers of the Court or Court staff, without leave of the Court, and shall be treated as confidential and private, and be held on RedCrest in the part of the electronic file maintained for this proceeding in a place that prevents their inspection without leave of the Court.
4. The costs of and incidental to the plaintiff's application by summons filed 20 June 2025 shall be each party's costs in the proceeding.
5. There is liberty to apply.

Deed of Settlement and Release dated 4 February 2025

Plaintiff's amended statement of claim dated 24 May 2023 (in which the names of individuals named within that document who are not parties to the proceeding with pseudonyms in the form of 'Individual A', 'Individual B', 'Individual C', and so on)

First Defendant's amended defence dated 17 August 2023

First Defendant's affidavit of documents dated 24 November 2023

Plaintiff's affidavit of documents dated 23 January 2024

Plaintiff's Interrogatories for the First Defendant dated 23 January 2024

First Defendant's Request for Further and Better Particulars dated 8 February 2024

First Defendant's Answers to the Plaintiff's Interrogatories dated 8 March 2024

Plaintiff's Answers to the Second Defendant's Interrogatories dated 11 July 2024

First Defendant's Answers to the Second Defendant's Interrogatories dated 22 August 2024

First Defendant's Further and Better Answers dated 4 September 2024

First Defendant's Further Affidavit of Documents dated 4 September 2024

Plaintiff's Particulars of Special Damage and Loss of Earnings dated 5 September 2024

Report of Ms Karen Ballinger dated 10 December 1997

Talk Wandsworth referral for crisis treatment dated 30 November 2021

Adult Eating Disorder referral dated 2 December 2021

Report of Associate Professor Andrew Carroll dated 22 August 2023

Letter of Instruction to Associate Professor Carroll 17 July 2023

Report of Professor Ian Coyle (obtained by the Second Defendant) 30 October 2024

Report of Oral Surgeon, Dr Naser Albarhari 14 May 2024

Psychiatric assessment of [REDACTED] by Timothy J. Entwisle 9 July 2024

Independent Psychiatric Report - Dr Gregor Schutz 1 August 2024

Expert Report of Dr Georgina Reynout 26 September 2024

Letter of Instruction to Nola Ross 20 February 2024

Records of Dr Katie Ashcroft dated 2 September 2024

Letter from Lander & Rogers Lawyers dated 20 September 2021 with attached PDF document containing all of the documents in the School's possession regarding [REDACTED]

GVGS Certificate for helping at GV family care drink stall 1990

Science Talent Search Participation Certificate 1990

Australian Scientific Industry Association Participation Certificate 1991

London South Bank University Transcript for 2015 to 2018

University of Westminster, Record of Learning and Achievement 2020

Email from University of Westminster - Confirmation of Fellowship Completion 28 February 2020

Bundle of Universal Credit Notices from the UK Government

Letter from HM Revenue & Customs dated 9 September 2022 with enclosed:

HM Revenue & Customs Employment Schedule for 2006 - 2022

Bundle of emails between [REDACTED] and Goulburn Valley Grammar Principal, Mark Torriero

ASIC Property Title Search on 108 Crompton Street Soldiers Hill VIC 3350

Plaintiff's Diary Entries 22 November 1999 to 31 December 1999

Letter from Mark Torriero to the Goulburn Valley Grammar School Community dated 26 April 2023

Bundle of London 2007 photos when the Plaintiff was suffering from an eating disorder

Photo following [REDACTED] 16th birthday with swollen lip after being hit

[1] Being a reference to the case of Harman v Secretary of State for the Home Department [1983] 1 AC 280. See also Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, [96] (Hayne, Heydon and Crennan JJ).

[2] [2023] VSC 109, [17]-[24], and drawing from my decision in Williams v TT-Line (No 2) [2022] VSC 413, [18]-[24] (Williams No 2).

[3] [2021] VSC 150, [31]-[36].

[4] [1983] 1 AC 280.

[5] [2008] HCA 36; (2008) 235 CLR 125.

[6] Barrow v McLernon [2012] VSC 134, [23]. See also Perez v Reynolds & Anor (Ruling No 2) [2020] VSC 298, [6]; Moodie v Perna (Ruling No 1) [2018] VSC 158, [8]; Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking) [2017] VSC 735, [15].

[7] (1992) 38 FCR 217. See Williams Submissions, [7]; TT-Line Submissions, [2]; TT-Line Supplementary Submissions, [7].

[8] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, [107].

[9] (1992) 38 FCR 217, 225.

[10] (1992) 38 FCR 217.

[11] [2003] FCA 833.

[12] [2008] HCA 36; (2008) 235 CLR 125.

[13] [2012] VSC 134.

[14] [2020] VSCA 129.

[15] [2021] VSC 333.

[16] [2020] VSCA 233.

[17] [2005] FCAFC 3; (2005) 218 ALR 283, [31] (Branson, Sundberg and Allsop JJ) (Liberty Funding).

[18] The Court then set out in a bullet point list the matters referred to by Wilcox J, being the matters set out in the extract in paragraph 18 above.

[19] [2012] VSC 134, [23].

[20] [2021] VSC 150, [33] and footnote 32.

[21] [2020] VSCA 233.

[22] [1983] 1 AC 280.

[24] [1996] VicRp 54; [1996] 2 VR 34, 37-38.

[25] [2008] HCA 36; (2008) 235 CLR 125, [96]-[97].

[26] As I have mentioned, Item 4 of the Further Revised Documents List received by the Court on 31 July 2025 has been removed from the Documents and Information in Schedule A.

[27] Although this does not mean that I currently have any concern looking forward. I do not.

[28] Which is the confidential Settlement Deed.