Saridas v Papuan Oil Search Limited

Catchwords: CIVIL PROCEDURE – application for release from implied obligation stated in Hearne v Street (2008) 235 CLR 125 – where plaintiff seeks to use documents obtained in these proceedings for the sole purpose of prosecuting a separate claim against her former legal advisors – consideration of the categories of documents which the implied obligation applies to – clear commonality between the two proceedings – special circumstances established – application granted

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60
Corporations Act 2001 (Cth), Pt 9.4AAA

Cases Cited: Ainsworth v Hanrahan (1991) 25 NSWLR 155
Australian Trade Commission v McMahon (1997) 73 FCR 211
Comino v Kremetis [2023] NSWSC 32
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Frigger v Trenfield (No 5) [2020] FCA 827
Gavan v FSS Trustee Corporation [2019] NSWSC 667
Haswell v Commonwealth of Australia [2020] FCA 915
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Helicopter Aerial Surveys Pty Ltd v Gary Robertson [2015] NSWSC 2104
Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64
La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201
Lease Collateral Pty Ltd v Johnson [2018] NSWSC 452
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2008] FCAFC 3; 218 ALR 283
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67
Mustac v Medical Board of Western Australia [2007] WASCA 128
R v Silverstein [2020] VSCA 233
Saridas v Papuan Oil Search Limited [2022] NSWSC 825
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Unicomb v Blais [2024] NSWSC 903
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] [2023] WASC 169
Yap v Lee (No 2) [2024] VSC 730

Category: Procedural rulings

Parties: Ayten Saridas (Plaintiff/Applicant)
Papuan Oil Search Limited (Defendant/Respondent)

Representation: Counsel:
D O’Dowd / S Murray (Plaintiff/Applicant)
J Clarke SC / P Boyle (Defendant/Respondent)
Solicitors:
Gillis Delaney Lawyers (Plaintiff/Applicant)
Kingston Reid (Defendant/Respondent)

File Number(s): 2021/00324287

Publication restriction: Nil

JUDGMENT

Introduction

1. This is an application by the plaintiff for orders permitting the use of certain documents, obtained by the plaintiff during her now discontinued proceedings against the defendant, for the sole purpose of prosecuting a separate claim against her former solicitors.

2. In her original claim against the defendant (“the Oil Search proceedings”), the plaintiff alleged, inter alia, that she was entitled to statutory whistleblower protections under Pt 9.4AAA of the Corporations Act 2001 (Cth) (the Corporations Act) and that the defendant breached those protections. Those proceedings have resolved. The plaintiff has now brought a separate claim against her former solicitors, Harmers Workplace Lawyers (“Harmers”), in which she alleges, inter alia, that Harmers failed to advise her of her entitlement to those whistleblower protections (“the Harmers proceedings”).

3. During the Oil Search proceedings, several affidavits (as well as annexures and exhibits annexed to those affidavits) were served by the defendant, some of which were read, while a significant number of other documents were disclosed by the defendant or third parties pursuant to subpoenas, notices to produce or by way of voluntary production. Some of that material will inevitably attract the operation of the implied obligation, as stated in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 (“Hearne”), which provides that where one party to litigation is compelled to disclose documents or information, the party obtaining disclosure cannot, without the leave of the court, use the documents or information for any purpose other than that for which they are given, unless or until the documents or information are received into evidence.

4. By notice of motion filed 18 December 2024, the plaintiff seeks:-

5. Leave to use the documents obtained in the Oil Search proceedings, for the sole purpose of conducting the claim against Harmers;

6. Further and in the alternative, an order releasing the plaintiff from the implied obligation not to use those documents for any purpose other than that for which they were given in the Oil Search proceedings, to the extent required so that the plaintiff may use them for the claim against Harmers.

7. Whether expressed as leave to use the documents or as a limited release from the implied obligation, both prayers of relief seek the same functional outcome, being permission for the plaintiff to use the documents obtained in the Oil Search proceedings in her claim against Harmers.

8. The defendant’s position was that the relief sought by the plaintiff should be refused because the application was too broad and lacked specificity.

9. The plaintiff relied on two affidavits (and their exhibits), sworn by her solicitors Michael Gillis and Nicola Sanchez on 18 December 2024 and 26 March 2025 respectively. Neither were cross-examined. The plaintiff also tendered an email chain between the parties and the Court dated 7 March 2025. The defendant relied on the affidavit of its solicitor Alice DeBoos sworn on 19 March 2025. She was not cross-examined. The defendant also tendered two letters exchanged by the parties on 3 and 4 March 2025.

Relevant facts

8. The defendant was, at the relevant time, a publicly listed company. The plaintiff was employed by the defendant as Chief Financial Officer (“CFO”) Designate from 17 August 2020 to 30 November 2020.

9. Between September 2020 and November 2020, the plaintiff alleges that she raised a number of concerns about the financial position of the defendant.

10. From about 23 September 2020, the plaintiff engaged Harmers to provide her with legal advice in relation to her employment with the defendant.

11. The plaintiff’s employment came to an end by mutual agreement on 30 November 2020, pursuant to a Deed of Release executed by the parties on 19 November 2020 (“the First Deed”). Under the terms of the First Deed, the parties also agreed to a joint communication regarding the plaintiff’s departure. The parties gave mutual non-disparagement undertakings, and the plaintiff gave certain releases and indemnities to the defendant.

12. On 15 November 2021, the plaintiff commenced proceedings against the defendant, alleging that the defendant had breached the First Deed and implied contractual obligations by disparaging her, and that the defendant’s disparagement had caused her economic loss by way of diminished earning capacity and employment prospects. Relevantly, in mid-2021 following the termination of her employment with the defendant, the plaintiff applied unsuccessfully for an interim CFO position with VHM Ltd. The plaintiff alleged that her application was unsuccessful as a consequence of disparagement by the defendant including, and in particular, an allegedly unfavourable reference from one of the defendant’s directors, Ms Fiona Harris.

13. On 6 April 2022, the plaintiff was granted leave to amend her statement of claim to include claims under Pt 9.4AAA of the Corporations Act. Specifically, the plaintiff alleged that she had made disclosures during her employment to officers of the defendant and that she was then subject to detrimental action by officers of the defendant, both before and after the execution of the First Deed, in breach of Pt 9.4AAA and s 1317AD of the Corporations Act (“the whistleblower claims”).

14. On 22 June 2022, the defendant was successful in an application to strike out part of the plaintiff’s claim: Saridas v Papuan Oil Search Limited [2022] NSWSC 825 (Schmidt AJ). The Court found that, because of the releases given by the plaintiff in the First Deed, the plaintiff could not maintain her claims in respect of wrongdoing alleged to have occurred prior to the execution of the First Deed (“the Pre-Deed Claims”). However, her Honour found that the plaintiff could maintain her claims relating to conduct occurring after the execution of the First Deed (“the Post-Deed Claims”), including those allegations of disparagement and breaches of statutory whistleblower protections referable to conduct post-dating November 2020. The plaintiff continued to prosecute those Post-Deed Claims.

15. On 12 September 2023, the plaintiff commenced proceedings against Harmers. Broadly, the plaintiff’s claim against Harmers alleges that it acted in breach of its contractual and tortious duties to the plaintiff, including by failing to advise her of the existence of the possible whistleblower claims, and that had the plaintiff been so advised, she would not have entered into the First Deed, which had the effect of extinguishing her right to pursue the Pre-Deed Claims. The plaintiff claims loss and damage against Harmers, with respect to the loss of the opportunity to pursue parts of the claim which she would have had against the defendant, but for entering into the First Deed.

16. On 30 July 2024, the plaintiff and the defendant resolved the Oil Search proceedings by executing a further deed of release (“the Second Deed”). The terms of the Second Deed are confidential but it evidently operates so that the plaintiff releases the defendant from the alleged whistleblower claims.

17. A large number of documents were generated over the course of the Oil Search proceedings. The defendant served numerous affidavits from former employees and officeholders and exhibited to those affidavits voluminous documentation concerning the events of the second half of 2020. Some (but not all) of those affidavits were read in support of various interlocutory applications which were heard prior to the matter being settled. The defendant also produced additional documents, both in response to notices to produce served by the plaintiff and voluntarily. Several former employees of the defendant produced documents in response to subpoenas, and VHM Ltd produced email correspondence detailing the plaintiff’s unsuccessful application for the interim CFO role and the reference provided by Ms Harris (“VHM documents”).

18. The plaintiff continues to prosecute her claim in the Harmers proceedings. She brings this application to enable her to use the documents obtained in the Oil Search proceedings in the Harmers proceedings.

Principles

The implied obligation

19. It is well established that, where one party to litigation is compelled 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: Hearne at [95]-[96]. The rationale for the imposition of the obligation is to ensure that privacy and confidentiality are not invaded more than is necessary for the purpose of doing justice: Hearne at [107]. Although traditionally described as an “implied undertaking”, properly understood the rule is a substantive legal obligation owed to both the party who produces the documents and to the Court: Hearne at [107]-[108].

20. As Lee J observed in Haswell v Commonwealth of Australia [2020] FCA 915 at [15] (“Haswell”) (citing Crest Homes plc v Marks [1987] 1 AC 829), the obligation extends not only to documents but also to any information derived from these documents. The obligation also extends to anyone who receives the documents or information knowing the documents or information have been disclosed by compulsion: Haswell at [15]. Breach of the obligation constitutes a contempt of court: Ainsworth v Hanrahan (1991) 25 NSWLR 155 (“Ainsworth”) per Kirby P at 168-9.

Release from the implied obligation

21. The Court controls the obligation, in the sense that it can modify or release a party from it: Hearne at [107]-[108]. The power to dispense with or modify the implied obligation will be exercised if there are “special circumstances”: Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 (“Esso”) at [37] per Brennan J; Hearne at [107]; Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22 at [50]. The exercise of the power is a matter for the Court, rather than something that can be resolved between the parties by consent: Lease Collateral Pty Ltd v Johnson [2018] NSWSC 452.

22. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (“Springfield Nominees”) at 225, Wilcox J observed:-

“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.”

23. The Full Court of the Federal Court explained the concept of special circumstances in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2008] FCAFC 3; 218 ALR 283 at [31] as follows:-

“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.”

24. The final consideration referred to above by Wilcox J – “the likely contribution of the document to achieving justice” – has been recognised as being the “most important”: Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67 at [75].

25. As counsel for the plaintiff, Mr O’Dowd, pointed out, there is a public interest in ensuring that all relevant material is before a Court to enable it to discharge its function. It has been said that “[s]pecial circumstances will fairly readily be found where it is established that the use of documents discovered in proceedings is reasonably required for the purpose of doing justice between the parties in other proceedings”: Australian Trade Commission v McMahon (1997) 73 FCR 211 at 217 per Lehane J.

26. Where the purpose of the release from the obligation is so that documents or material can be used in another proceeding, the degree of “commonality” between the proceedings may constitute special circumstances: Springfield Nominees at 224.

27. The plaintiff referred me to Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 21] [2023] WASC 169. In that case, Smith J released Bianca Rinehart and John Hancock from their implied obligation in respect of documents (called the “Annexure A” documents) produced in a confidential arbitration (referred to as the “Martin Arbitration”) so that they could be used to defend separate proceedings. Her Honour considered that, amongst other things, the commonality between the two proceedings militated in favour of release, stating at [178]-[182] and [192]-193]:-

“178 First, the issues raised by them in their defences in the curial proceedings are in effect a subset of the issues they raise as claimants in the Martin Arbitration.

179 The stay of Bianca and John’s counterclaims and referral of their counterclaims to arbitration has led to a somewhat unique circumstance whereby the issues that arise in their defences in the curial proceedings are replicated in the issues that they raise in the Martin Arbitration in respect of the East Angelas and Hope Down tenements. Consequently, the commonality of the subject matter raised in their defences and in the Martin Arbitration establishes that Bianca and John have a legitimate forensic purpose to use the Annexure A documents in the curial proceedings. This circumstance on its own is sufficient to constitute special circumstances.

180 For this reason, it is not necessary to have regard to the specific content of the information in each of the documents listed in Annexure A.…

…

182 In light of the extent of the commonality of issues raised in the Martin Arbitration by Bianca and John and in the curial proceedings, and in the absence of any submission that the documents listed by Bianca and John are not relevant to the issues they raise in their defences, I am satisfied that it is likely that these documents are likely to be reasonably required for the purpose of doing justice between the parties….

…

192 For these reasons, I am satisfied that when all of the relevant factors are considered, including the conduct of the parties in the curial proceedings since 14 December 2022, the public interest in the proper administration of justice, in particular the public interest in the promotion of the ascertainment of truth in litigation, requires that Bianca and John be granted leave to use the Annexure A documents for the purposes of the conduct of their defences.

193 To refuse Bianca and John leave to use these documents for the purpose of the conduct of their defences would hinder the achievement of doing justice to the parties in the curial proceedings.”

28. The authorities make clear that the assessment of special circumstances must be undertaken in relation to the specific documents in respect of which the release is sought: Gavan v FSS Trustee Corporation [2019] NSWSC 667 at [125] (“Gavan”) per Ward CJ in Eq, as her Honour then was. If the documents are not sufficiently specified, a court will not be in a position to assess matters of the kind identified by Wilcox J in Springfield Nominees; that is, the nature of the document, the circumstances in which it came into existence, any prejudice the author might sustain, the nature of the information in the document and the likely contribution of the document to achieving justice in the second proceeding: Gavan at [125].

29. The scope of the leave may be general or limited and may be granted on terms.

Scope of the obligation

30. It is important to observe that not every document or piece of information disclosed compulsorily will come within the scope of the implied obligation.

31. First, documents which are in the “public domain” do not attract the operation of the obligation: Ainsworth at 164–5. It may be observed that publicly available information does not have the necessary quality of confidence that would make the disclosure of it an invasion of privacy, the avoidance of which is the rationale for the implied obligation in the first place.

32. Further, the obligation will not apply to a document once it has been tendered in evidence or read formally in open court. In Esso, Mason J (as his Honour then was) observed at 32-3 that “[t]he implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain”, and see Ainsworth at 164-5 per Kirby P.

33. In the present case, it was agreed that the implied obligation did not apply to affidavits which were read in the proceedings. However, there was a difference of emphasis about the position I should adopt with respect to affidavits which were created and served pursuant to court timetabling orders, but were never read in open court.

34. This question was explicitly addressed by McGrath J in the recent decision of Unicomb v Blais [2024] NSWSC 903 (“Unicomb”). In a comprehensive and erudite judgment, his Honour extensively traced the history of the principle stated in Hearne and its application by various Australian courts with respect to witness statements and affidavits. Following a careful review of all the authorities, his Honour concluded that the “argument that every affidavit filed and served in the course of proceedings in accordance with normal timetabling directions is the subject of the implied obligation must be rejected”: at [234]. His Honour held that the affidavits produced in those circumstances do not satisfy the basal criterion required for the obligation to be engaged, that of compulsion:-

“I consider that in the context of an affidavit made in court proceedings, “compelled” must have its natural meaning of being forced or required to undertake the course of action, being disclosure of the affidavit, in a manner which involves an invasion of the privacy and confidentiality of the contents of that affidavit. It is to be contrasted with a voluntary disclosure of the affidavit. It is not germane to that inquiry whether a party is vindicating rights or defending them. The imposition of the implied obligation in legal proceedings does not arise from the designation of a party as either a plaintiff or a defendant but turns on the circumstances in which the disclosure has been made.

A party who is required by an ordinary timetabling order of the court to provide any affidavits on which they intend to rely at the hearing is not compelled to provide them. The party in those circumstances has a choice whether to provide a particular affidavit and what the contents of that affidavit should be. Doing so is not a “very serious invasion of privacy and confidentiality” of the party’s affairs in the sense described in Riddick and Harman, as applied by Hearne, as the rationale for the implied obligation.”

35. The decision in Unicomb has been cited with approval by the Victorian Supreme Court in Yap v Lee (No 2) [2024] VSC 730 at [93]-[94] by Waller J (who noted that the decision is consistent with appellate authority in that jurisdiction in R v Silverstein [2020] VSCA 233).

36. Before me, the plaintiff’s position was that I should follow the decision of McGrath J. The defendant’s position was that it was incumbent on the plaintiff to convince me that McGrath J’s decision should be followed, in light of what the defendant described as conflicting authority. The defendant referred me to the decision of Brereton J, as his Honour then was, in Helicopter Aerial Surveys Pty Ltd v Gary Robertson [2015] NSWSC 2104 (“Helicopter Aerial Surveys”), where his Honour expressed doubt that the implied obligation attaches to affidavits voluntarily filed in proceedings but considered that, as a single judge, he was bound by the principle in Hearne to hold that it did: at [41]. The defendant said that, while it was not seeking to relitigate McGrath J’s decision, the question of whether I would follow it in light of “conflicting” authority in Helicopter Aerial Surveys remained.

37. That submission can be put to one side. Justice McGrath acknowledged and carefully analysed Brereton J’s decision in Helicopter Aerial Surveys at [129]-[144]. His Honour also referred to Frigger v Trenfield (No 5) [2020] FCA 827, where Jackson J addressed Helicopter Aerial Surveys, and concluded, contrary to the conclusion of Brereton J, that “[s]ince the point was not in issue in Hearne, the fact that the High Court proceeded on the basis that the implied undertaking applied did not bind Brereton J and does not bind this court: see CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13].”

38. In Unicomb, McGrath J concluded at [144]:-

“I do not consider myself to be bound by the High Court in Hearne in the same way that Brereton J considered that he was bound on the question of whether an affidavit provided in the ordinary course is subject to the implied undertaking. As I have already stated above, that question was not decided in Hearne because the parties did not put the issue in contest and the High Court assumed the position to be that the implied undertaking did apply. The application of the principle in Coleman and CSR as described above means that I am not bound by the ratio decidendi in Hearne on that issue.”

39. I observe that a judge of this Court should follow an earlier decision of another judge unless he or she is of the view that it is plainly wrong: see Comino v Kremetis [2023] NSWSC 32 at [61]-[62] per Chen J, citing Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; [2003] FCA 1263 at [52]; Mustac v Medical Board of Western Australia [2007] WASCA 128 at [38]; see also La Macchia v Minister for Primary Industries and Energy [1992] FCA 673; 110 ALR 201 at 204 (Burchett J). Indeed, there are no compelling reasons not to follow it. Given that I do not consider Unicomb to be plainly wrong (I consider it to be correct), and given that it appears that Helicopter Aerial Surveys has been overtaken by the weight of authority in this Court, the Victorian Supreme Court and the Federal Court, I am comfortably satisfied that I should follow the decision of McGrath J.

40. I therefore proceed on the basis that affidavits (with annexures and exhibits) which were filed and served but never read in open Court also fall outside of the scope of the implied obligation. Notwithstanding that conclusion, had the affidavits not read been subject to the implied obligation, I would have released the plaintiff from it on the basis that special circumstances exist; ie that they are likely to contribute to determining the real issues and achieving justice in the Harmers proceedings.

The current application

41. By her notice of motion, the plaintiff initially sought to be able to use, for the purpose of the Harmers proceedings, all “Relevant Documents” from the Oil Search proceedings, which she defines in her notice of motion as follows:-

“Relevant Documents means:

a. the affidavits of the Defendant served in the Oil Search Proceedings;

b. the exhibits to those affidavits;

c. documents the subject of disclosure by the Defendant in the Oil Search Proceedings, including by way of notice to produce or voluntary production; and

d. documents produced on subpoena by third parties in the Oil Search Proceedings.”

42. On 5 March 2025, the Court made orders by consent for the plaintiff to provide a specific list of all documents the subject of her application. Pursuant to those orders, on 12 March 2025 the plaintiff provided a list of 408 documents in respect of which she seeks a release from the implied obligation. Consistent with the plaintiff’s definition of “Relevant Documents”, those 408 documents broadly include all affidavits and associated annexures and exhibits relied on by the defendant in the Oil Search proceedings, and almost every document produced in the Oil Search proceedings in response to notices to produce or in response to subpoenas.

43. I leave to one side the affidavits which I have dealt with above.

Submissions

Plaintiff’s submissions

44. The plaintiff submitted that special circumstances warranted a release from the implied obligation in the present case.

45. The plaintiff’s overarching submission is that there is a commonality of issues between the Oil Search proceedings and the Harmers proceedings. The plaintiff says that this commonality is apparent on a review of the pleadings in each matter. The plaintiff says that it is apparent that the plaintiff’s allegations against the defendant in her Third Further Amended Statement of Claim in the Oil Search proceedings are virtually replicated in the plaintiff’s Statement of Claim in the Harmers proceedings. The plaintiff submitted that this is because the same matters in issue in the Oil Search proceedings, concerning the plaintiff’s status as an eligible whistleblower and her consequent entitlement to the statutory protections under the Corporations Act, are also squarely in issue in the Harmers proceedings.

46. As the plaintiff points out, in the Harmers proceedings the plaintiff claims that she should have been, but was not, advised by Harmers of her status as an eligible whistleblower and the remedies consequent upon that status. The plaintiff further contends that, had she received proper advice, she would not have entered into the First Deed and would therefore have retained her right to pursue the Pre-Deed claims against Oil Search including the whistleblower claims (which, as explained above, were precluded by her entering into the First Deed). Accordingly, the most significant component of the plaintiff’s alleged loss and damage as against Harmers is the loss of opportunity to pursue the Pre-Deed claims against the defendant in the Oil Search proceedings.

47. In its defence to the Harmers proceedings, Harmers:-

48. does not admit the factual allegations underpinning the plaintiff’s alleged whistleblower status;

49. denies or does not admit the loss or damage advanced by the plaintiff;

50. asserts concurrent wrongdoing by Oil Search, for the purpose of an apportionment defence, by repeating the plaintiff’s allegations against the defendant made in the Oil Search proceedings; and

51. raises various allegations in response to the plaintiff’s claim (including with respect to causation, mitigation, contributory negligence, and estoppel).

52. In view of the foregoing, the plaintiff submits that relief should be granted for four interconnected reasons.

53. First, the plaintiff submits that there is a clear overlap between the allegations in the Oil Search proceedings and the Harmers proceedings. The plaintiff points to the “almost identical” nature of the pleadings in each of the two proceedings regarding the plaintiff’s whistleblower disclosures, as well as the fact that Harmers expressly adopts or relies on the plaintiff’s allegations in the Oil Search proceedings in its apportionment defence in the Harmers proceedings. The plaintiff submits that such commonality in and of itself constitutes special circumstances warranting a release from the implied obligation.

54. Second, the plaintiff points to the evidence of her solicitor Mr Gillis, who is on record in both matters, and who says that the documents sought are directly relevant and necessary to determine:-

55. Whether the plaintiff in fact made the alleged disclosures during her employment with the defendant, and whether she had reasonable grounds for doing so;

56. The counterfactual valuation of the Pre-Deed claims that were lost by entry into the First Deed; and

57. The overlap or distinction between the Post-Deed claims and the foregone Pre-Deed claims, including how that bears on Harmers’ defences of mitigation, causation, estoppel and apportionment. The plaintiff submits that the VHM documents are relevant to establish the plaintiff’s case on causation and loss had the Oil Search proceedings continued to completion.

58. Mr Gillis also says that many of the Relevant Documents are expected to form part of the plaintiff’s lay and expert evidence in the Harmers proceedings, in addition to being foundational in the preparation of the plaintiff’s case generally. The plaintiff submits that, if the plaintiff cannot rely on or refer to these documents in the Harmers proceedings, she will be prejudiced in presenting her case and the Court will be deprived of important evidence bearing upon the factual disputes. The plaintiff further notes that she may well seek to amend her statement of claim in the Harmers proceedings to reflect the evidence contained in the “Relevant Documents”, something she has heretofore been unable to do.

59. The plaintiff contends that, to prosecute her case and rebut Harmers’ defences, she needs to be able to refer to the documents that establish the nature and timing of her disclosures, whether they related to misconduct or an improper state of affairs at Oil Search, and how those disclosures, if valid, gave rise to potential whistleblower claims prior to the execution of the First Deed. The plaintiff says that these issues go to both the plaintiff’s claim and Harmers’ defences in the Harmers proceedings and therefore the Relevant Documents are of significant relevance to the Harmers proceedings. The plaintiff says that if she is unable to rely on contemporaneous records or admissions contained in documents produced in the Oil Search proceedings, the Court will be deprived of the best available evidence about the events in the second half of 2020.

60. Third, the defendant submitted that, if her application for release is refused, either or both of the parties in the Harmers proceedings will need to seek disclosure or production of the same documents again. The plaintiff says that this will cause unnecessary cost and delay. The plaintiff also observes that this will create practical issues for the plaintiff and her representatives, who cannot use their knowledge of the Relevant Documents to seek disclosure of the same documents again. The plaintiff also raises the prospect of an invidious scenario whereby Harmers could seek disclosure of the Relevant Documents from the defendant, and could use them in its defence, while the plaintiff remained bound by the implied obligation and could not. The plaintiff submits that this would cause unfairness to her.

61. Fourth, the plaintiff submits that it would be more efficient to have a single release order allowing the use of the Relevant Documents, rather than having to make multiple applications for leave as and when specific documents were required in the Harmers proceedings. The plaintiff submits that ensuring all relevant evidence is available at once would promote the case management principle of efficiency and reduce cost and delay.

Defendant’s submissions

55. The defendant submits that, having regard to the factors set out in Springfield Nominees and the observations of Ward CJ in Eq (as her Honour then was) in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 (“Findex”), the Court ought to refuse the plaintiff’s application for release from the implied obligation “in the broad and unfiltered terms in which it is sought”, for the following reasons.

56. First, the defendant contends that the plaintiff’s application is “extremely broad in scope and lacks specificity”. In this respect, the defendant referred me to the observations of Ward CJ in Eq in Findex at [83] where her Honour observed:-

“[w]hat is more pertinent to the current application, in my opinion, is that the plaintiffs have sought the release from the Harman undertaking in respect of large swathes of documents sought to be referred to in a collective and generalised way in support of the proposed pleading — not…with any real specificity.”

57. The defendant says that the plaintiff’s application has been couched in very broad terms, without clearly “identify[ing] the particular documents or classes of documents and the matters relied upon to support the contention that special circumstances exist to warrant the release of the undertaking in relation to those documents”, quoting from Gavan at [126].

58. The defendant pointed to various features of the plaintiff’s application which it says support this criticism. The defendant observes that a number of the documents sought are affidavits which were read in open Court and are therefore not subject to the implied obligation at all. The defendant also observes that the application includes other affidavits which were not read in Court but which were produced pursuant to ordinary court timetabling, which, if I were to follow McGrath J’s decision in Unicomb, would not be the subject of the obligation either. Further, the defendant points out that a number of the documents were publicly available, or held by the plaintiff in her own right, and says that no release is required with respect to these documents. The defendant also takes issue with various documents which the defendant says could not be relevant to the Harmers proceedings at all. The defendant says that this is illustrative of the overarching issue with the application, that is, it is indiscriminate and made without sufficient consideration.

59. Second, the defendant submits that the plaintiff has failed to show how the documents could make a significant contribution to achieving justice in the Harmers proceedings. The defendant observes that the plaintiff’s claim against Harmers is for a failure to advise the plaintiff of her whistleblower entitlements, in circumstances where she then did bring a whistleblower claim for conduct occurring following the conclusion of her employment and when she was able to compromise the Oil Search proceedings in full knowledge of her whistleblower rights. The defendant submits that this must mean that any claim the plaintiff might have had against Harmers with respect to such claims has caused no loss. The defendant submits that the only thing that the plaintiff lost was the opportunity to negotiate different or better terms for the First Deed.

60. The defendant submits that it is not clear how the loss and damage alleged in the plaintiff’s statement of claim in the Harmers proceedings requires the plaintiff to prove that she in fact had a whistleblower claim, as opposed to simply proving that, had the plaintiff known of the possibility of such a claim, she might have proceeded differently. Thus, it is unclear how documents sought by the plaintiff which go to whether or not she was in fact a whistleblower could be relevant to the Harmers proceedings. The defendant similarly disputes the relevance of the VHM documents.

61. Third, the defendant submits that the more appropriate mechanism is for the plaintiff to obtain the documents she seeks by way of the ordinary compulsive discovery and subpoena processes in the Harmers proceedings. The defendant suggests that the relative merits of that approach have not been considered or explained by the plaintiff.

62. Fourth, the defendant submits that the broad terms of the release sought by the plaintiff would cause prejudice to both the defendant and potentially Harmers in the Harmers proceedings. The defendant says that it would be prejudiced because many of the documents reveal internal communications within the company and were only deployed in the Oil Search proceedings to defend the plaintiff’s claim. The defendant points out that it had previously made an application for confidentiality orders over certain documents and that the plaintiff’s application includes some of the documents that were the subject of that application by the defendant. That application was resolved by the parties on the basis that the plaintiff’s legal representatives would undertake to comply with the implied obligation. While the defendant accepts that a combination of the passage of time and the fact that Oil Search as an entity no longer exists (having since been acquired by another company) reduces confidentiality and commercial sensitivity issues, the defendant submits that the plaintiff’s inclusion of documents already subject to an agreement is indicative of the general overreach of the plaintiff’s application and is relevant to the Court’s discretion as to whether to grant the relief sought.

63. With respect to prejudice to Harmers, the defendant submits that there is potential prejudice because Harmers will not have access to documents obtained by the plaintiff through this application until such time as those documents are deployed by the plaintiff in the Harmers proceedings. The defendant submits that this could not achieve justice in the Harmers proceedings and can be contrasted with the compulsory processes of the Court whereby each party enjoys equal access to the documents sought.

Plaintiff’s reply

64. In reply, the plaintiff addressed three main issues which she distilled from the defendant’s submissions, being that:-

65. There is risk of prejudice to both the defendant and Harmers;

66. The Relevant Documents are not sufficiently relevant to the Harmers proceedings; and

67. The relief sought is too broad and indiscriminate.

68. As to the first issue, the plaintiff submits that the defendant is unable to point to any meaningful prejudice to it arising from the plaintiff’s application. With respect to the defendant’s complaint that some of the documents were subject to a confidentiality claim, the plaintiff says that this cannot be seriously advanced, given the concession by the defendant that the passage of time has reduced the confidentiality or commercial sensitivity of that material, and given that the defendant has not put on any evidence to support the confidentiality claim. The plaintiff also submitted that the confidentiality issue has been overtaken in any event, in view of the defendant’s implicit acceptance that the implied obligation does not apply to affidavit material served but not read in the proceedings.

69. As for potential prejudice to Harmers, the plaintiff says that it is open for Harmers to seek production of any of the Relevant Documents in the usual way in the Harmers proceedings. The plaintiff observes that Harmers are on notice of this application because the timetable for the plaintiff to serve her evidence in the Harmers proceedings has been expressly extended to accommodate it.

70. The plaintiff disputes the defendant’s assertion that the only thing that the plaintiff lost was the opportunity to negotiate a different or better deal regarding the terms of the First Deed. The plaintiff submits that, by her statement of claim in the Harmers proceedings, she has pleaded a “no transaction case” and not an “alternative transaction case” – that is, but for the alleged breaches of duty by Harmers, the plaintiff would not have entered into the First Deed at all. The plaintiff referred to the principles expressed in Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64 at 371-2 per Brennan J and to his Honour’s comment that it may be necessary to conduct a trial within a trial to determine what the cause of action was worth to the plaintiff. The plaintiff submits that the valuation of her whistleblower claims, which she relinquished by entering into the First Deed, will be determinative on the question of damages. The plaintiff says that this is why proving the extent of her whistleblower claim, as opposed to simply proving that had she known of the possibility of the claim she would have proceeded differently, is central to determining the value of that claim and the consequent damages arising from her entry into the First Deed.

71. The plaintiff also disputes the defendant’s assertion that the VHM documents are not relevant. The plaintiff submits that damages in the Harmers proceedings will be calculated by reference to the “delta” between the actual position of the plaintiff (ie the claim actually advanced by the plaintiff) and the counterfactual position of the plaintiff (ie the claim that was precluded by the First Deed) and submits that the VHM documents are relevant to that differential.

72. The plaintiff denies the defendant’s suggestion that no consideration has been given to alternative means of obtaining the same outcome, pointing to the affidavit of Mr Gillis in which he expressly deposes that other options were considered. I observe, again, that he was not cross-examined.

73. As to the defendant’s criticism that the application is too broad and indiscriminate, the plaintiff submits that the application is appropriately targeted. She accepts that her application captures a number of affidavits, some of which were read in the Oil Search proceedings and some not, and acknowledges that, prima facie, the implied obligation does not apply to either. However, the plaintiff submits that this course was adopted out of an abundance of caution which ought not to warrant criticism. The plaintiff submitted that it was not clear whether the defendant intended to relitigate the decision in Unicomb and observed that the implied obligation is a substantive legal obligation, a breach of which is punishable as contempt. Against that possibility, the plaintiff says that it was prudent for her to adopt a cautious and “overinclusive” approach to the application generally.

74. The plaintiff disputes the defendant’s complaint that the application “lacks specificity” and has been brought “without any apparent or careful consideration of the relevance of each item sought”. The plaintiff submits that there is no principle of law which requires that each document subject to an application for release to be specifically identified and its relevance addressed, and that documents can be sought by way of “class”: see Gavan at [126]. The plaintiff further submits that the defendant’s submission is wholly inconsistent with modern case management principles set out in ss 56-60 of the Civil Procedure Act 2005 (NSW), whereas the plaintiff’s approach to the application has been as cost-effective and efficient as possible.

75. The plaintiff further submits that the defendant’s submission is inconsistent with the objective of achieving justice between the parties in the Harmers proceedings. Given the commonality of issues between the two sets of proceedings, it was appropriate for all documents to be treated in the same way, as opposed to adopting a document-by-document approach. The plaintiff further says that, even if the application is found to be unnecessarily broad, no prejudice could result from it, given that release is only sought for the limited purpose of the Harmers proceedings. The plaintiff observes that either the documents will be deployed in those proceedings or they will not be and that they will continue to be subject to the implied obligation for all other purposes.

Which documents should be included in the application?

73. I have already determined that all affidavits filed and served in the proceedings (and their annexures and exhibits) are not subject to the implied obligation. Furthermore, any documents that are otherwise publicly available, and any documents that are in the possession of the plaintiff in her own right (that is, separately to being produced by affidavit or under compulsion) are not subject to the implied obligation. No orders are needed with respect to any of those documents.

74. The defendant submitted that there is a class of documents which should not have been included in the application because they could not be relevant to the Harmers proceedings on any view and which were produced on compulsion pursuant to notices to produce or subpoenas, and to which the implied obligation applies. The plaintiff seeks the release from the implied obligation with respect to these documents. I observe that I have not looked at any of these documents (and neither was I invited to).

75. At the hearing before me, the parties agreed on a schedule which identified the documents which fell into each category. The documents said not to be relevant are marked in the colour red on the schedule, which was marked as MFI 4 in the proceedings before me. An updated agreed schedule was provided to me after the hearing and has been marked MFI 5.

76. The plaintiff submits, broadly, that these documents will be required in the Harmers proceedings to establish the value of those parts of the claims which the plaintiff says she would have had against the defendant, but for the execution of the First Deed, relative to what in fact occurred (that is, for the purpose of what was referred to by the parties as the “delta”). Against this, the defendant submits that, given that the parties to the Oil Search proceedings have already compromised all of the plaintiff’s claims by executing the Second Deed, there is no need for the proposed valuation exercise, because the value of the plaintiff’s claim has effectively been subsumed by, or is already reflected in, the terms of the Second Deed. The defendant says that the question of valuation does not ultimately fall for determination for that reason. Accordingly, the defendant says that the documents sought by the plaintiff in this category cannot be relevant to the Harmers proceedings for the reasons given by the plaintiff.

77. Without addressing the merits of that argument (which in my view goes to a triable issue in the Harmers proceedings), at the hearing before me I asked senior counsel for the defendant, Mr Clarke SC, if the documents could not be relevant to the Harmers proceedings for some other purpose including, for example, a credibility purpose. Although that was not the way that the issue was argued by the plaintiff, Mr Clarke SC obtained instructions on the issue from the defendant’s solicitors, and he appropriately conceded that the documents might well be relevant for such a purpose.

78. With that in mind, I am cautious about limiting the availability of documents which are potentially relevant to issues that may arise in the Harmers proceedings. I consider that, given that the documents are prima facie subject to the implied obligation and that they may have relevance to the Harmers proceedings with respect to, at the very least, credibility, it is appropriate for these documents to be included in the plaintiff’s application.

79. The remaining documents are those which were produced under compulsion in the Oil Search proceedings, and which do not fall into one of the aforementioned categories. There is no reason why these documents would not also engage the principle stated in Hearne and attract the operation of the implied obligation. In my view, they are properly the subject of this application for release and fall for determination below.

Should the plaintiff be released from the implied obligation?

80. I consider that there are special circumstances in this case which justify releasing the plaintiff from her implied obligation with respect to the Relevant Documents, but only to the extent necessary and for the sole purpose of litigating the Harmers proceedings.

81. In my view, this application comes squarely within the principles articulated in Springfield Nominees. There is a clear commonality between the Oil Search and the Harmers proceedings. The Harmers proceedings effectively raise a subset of the issues raised in the Oil Search proceedings. I consider that the documents may be relevant to a number of the factual issues that may arise in the Harmers proceedings. There is an obvious overlap between the Oil Search proceedings and Harmers’ apportionment defence, where Harmers alleges concurrent wrongdoing by the defendant by simply repeating the plaintiff’s allegations against it in the Oil Search proceedings. In my opinion, special circumstances have been demonstrated.

82. To refuse the plaintiff permission to use the documents in the Harmers proceedings in the circumstances would be productive of needless cost, delay and interlocutory burden for all parties involved. For the same reason, I accept the submission that it also makes more sense for me to grant a global release with respect to all of the Relevant Documents subject to the implied obligation, rather than proceeding in a piecemeal fashion with multiple applications for release at different stages over time, as and when various documents are required in the Harmers proceedings.

83. I observe that, while there may have been some force to the defendant’s complaint that the plaintiff’s application was initially too widely cast, that criticism must necessarily fall away now given how the list of Relevant Documents has narrowed.

84. As to any prejudice to the defendant, I propose to grant the release for the limited purpose of prosecuting the Harmers proceedings. As the plaintiff correctly points out, either the documents will be deployed in those proceedings or they will not be, in which case those limited documents would continue to be subject to the implied obligation, leaving the defendant in substantially the same position.

85. I also observe that, in view of the concerns that were expressed about the potential commercial sensitivity of some of the documents sought by the plaintiff (and while also acknowledging that any such sensitivity may have dissipated to a certain extent with the effluxion of time), it was agreed between the parties that any orders made by me in respect of this application should be subject to a confidentiality regime. The terms of such a regime were agreed by the parties and provided to my chambers following the conclusion of the hearing. I am comforted that this regime will also have the effect of diminishing the risk of any prejudice to the defendant. I will make orders noting that agreed regime, which I will include as Annexure A to this judgment.

86. For these reasons, I will grant the relief sought by the plaintiff in respect of the Relevant Documents that I have found to be subject of the implied obligation.

Costs

87. Both parties sought their costs of the application.

88. I consider this to be a case where it is appropriate that each party bear her and its own costs. As both parties acknowledged, the plaintiff was required to bring this application, as whether to grant a release from the implied obligation remains a matter for the court, and the relief sought by the plaintiff could not have been effected entirely and exclusively by agreement between the parties. Having said that, the application could have proceeded by way of consent orders with the plaintiff mentioning the appearance of the defendant. Although the defendant sought to characterise its role narrowly as a contradictor, in substance the defendant came to be heard in opposition to the application, with all the attendant impact on costs.

89. On the other hand, the defendant (like the plaintiff) did provide me with substantial assistance by way of helpful written and oral submissions. The defendant was also responsible for furnishing the original version of the schedule setting out the various categories of documents and the defendant’s objections to them, a document which ultimately was agreed between the parties. However, the defendant had little success on its relevance objections.

90. Costs being in my discretion, and in light of all of the circumstances, I consider that the most appropriate order is that there be no order as to costs, with the intent being that each party pay their own costs.

Orders

91. I make the following orders:-

92. The plaintiff is released from the implied obligation not to use the documents in the column headed “Documents not relevant to Harmers proceedings” in MFI 5 and which relate to documents produced pursuant to notices to produce and subpoenas for any purpose other than that for which they were given in the Oil Search proceedings, and may use them for the sole purpose of conducting her professional negligence claim against Harmers Lawyers.

93. No order as to costs to the intent that each party bear her and its own costs.

94. Note the confidentiality regime agreed upon by the parties, annexed to this judgment and marked “A”.

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Annexure A - Confidentiality Regime (78.6 KB, pdf)