Hearne v Street obligation (issue (5))
38 Grounds 1, 2, 3 and 4 of the appeal contend that the primary judge erred in concluding that the respondents were not bound by the Hearne v Street obligation in respect of the Jones 3 FASOC and Jones 2 FAD. It is contended that the primary judge erred in concluding that:
(1) there was a public domain exception to the obligation;
(2) the obligation did not apply to pleadings;
(3) the documents were in the public domain for the purpose of the law of confidence so the obligation did not apply; and
(4) if the obligation applied to the documents, the obligation was spent when the information in the Jones 2 FASOC (containing the same information as the documents) was tendered in evidence.
39 Hearne v Street concerned the question whether a third party who knows that the origin of a document is its filing in legal proceedings under compulsion is bound by the obligation not to use the document for any purpose other than the legal proceedings in which the document was filed. The High Court held that the third party was bound by the obligation in these circumstances. They also held that the conception of the obligation as an implied undertaking of the person to the court was inapt and the requirement should be understood as a substantive obligation. In so concluding, Kirby J referred to the "historical origins of the 'implied undertaking' in respect of documents filed in court but not yet tendered or read in evidence": [46]. Hayne, Heydon and Crennan JJ, at [95]-[96], identified the obligation in these terms:
[95] Before turning to the appellants' submissions in relation to the extent and enforceability of the 'implied undertaking', it is desirable to set out some background legal principles which were not in controversy.
[96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
40 Hayne, Heydon and Crennan JJ, at [138], noted that:
Of course the consequence of filing and serving affidavits and statements in legal proceedings is that one day their contents might become open to the public when read in open court. But it was not illegitimate to seek to ensure that before that time the defendants, Luna Park Sydney Pty Ltd and Metro Edgley Pty Ltd, and persons acting in their interests, did not abuse their access to the documents in employing them for a purpose outside the proceedings.
41 TWE submitted that the qualification in [96] of the joint judgment of Hayne, Heydon and Crennan JJ ("unless it is received into evidence") needed to be understood as a reference to the applicable rule of the Supreme Court of New South Wales at the time, r 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) which provided (and still provides):
(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.
(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.
42 TWE submitted that this must be so given the High Court in Hearne v Street confirmed the existence of the obligation as discussed in Harman: [1], [2], [97], [105], [107], [109], [124] and [125]. According to TWE, the majority judgments in Harman did not propose any such limitation (indeed, the majority said the obligation continued to apply even if the documents had been received into evidence) or, indeed, any form of public domain exception to the principle. If it were otherwise, submitted TWE, the High Court would have been simultaneously adopting and overturning Harman by stealth.
43 We disagree. The first difficulty is that the High Court does not refer to UCPR 27.1 as qualifying the extent of the obligation in Hearne v Street. The second difficulty is that UCPR 27.1 refers to a document or information from a document obtained as a result of discovery. In Hearne v Street the relevant documents were affidavits which had been filed but not yet adduced into evidence. This explains the observations in the joint judgment at [138] set out above. In other words, UCPR 27.1 would not have applied to the affidavits in any event, yet the High Court still described the obligation as one which ceased on admission of the documents into evidence. Third, and as discussed further below, there was pre-existing authority in Australia which identified the relevant obligation as ceasing when a document is received into evidence. The High Court referred to some of those authorities in Hearne v Street without expressing any disagreement with them. Fourth, the observations of the majority in Harman about the receipt of a document into evidence not causing the obligation to cease were obiter dicta. The fact is that the documents were not received into evidence in Harman; they were merely read aloud in open court. It is not to be assumed that the High Court in Hearne v Street was adopting all of the obiter dicta of the majority in Harman. It was adopting the ratio of Harman which, on analysis, is narrow.
44 It may be accepted that the High Court in Hearne v Street was identifying the obligation as "background legal principles which were not in controversy". As discussed below, however, in so doing the High Court referred to a number of cases in Australia which identified the obligation in precisely these terms - as one that ceased on the receipt into evidence of a document produced or served under compulsion.
45 Accordingly, and to the contrary of TWE's submissions, the High Court's statement of principle in Hearne v Street should be taken to apply in accordance with its terms - the obligation ceases on admission of a document into evidence.
46 In Harman documents had been obtained on discovery. Counsel read them aloud in open court. However, the documents were not admitted into evidence. While judgment was reserved, the solicitor showed the documents to a journalist for a purpose unconnected with making a fair report of the proceeding. The solicitor was found guilty of contempt of court. On appeal to the House of Lords Lord Diplock stressed that the case was not about, amongst other things, documents coming into "the public domain", but was about an aspect of the law of discovery of documents: 299. The argument put for the solicitor was that once the documents had been read aloud in open court then the obligation not to use the documents for any collateral purpose ceased whether or not the documents were admissible or inadmissible in the trial: 302E. Lord Diplock observed that the solicitor, who possessed copies of the documents because of discovery, had a "great advantage" compared to any other person: 304F. His Lordship said that save as to the gravity of the contempt, no distinction is to be drawn between discovered documents which have and have not been admitted into evidence: 304H. To make use of the "special advantage" obtained by having possession of the documents was a contempt: 304H-305A. Lord Diplock dismissed as hypothetical the example that the solicitor might have shown the journalist a transcript of the hearing with impunity (which would have included counsel reading the documents out loud) but could not show the discovered documents to the journalist: 305C. His Lordship concluded that the obligation not to use a discovered document for any collateral purpose does not end on the document being read out loud in court, whether the document is admissible or not. Lord Keith of Kinkel considered that the fact that a certain degree of publicity in respect of the documents had resulted from them being read out in court did not mean that the obligation had ceased: 308D. His Lordship stressed that the source of the obligation was not the law of confidentiality but the interests of the proper administration of justice: 308G. Lord Keith of Kinkel also rejected the transcript example noting, amongst other things, that it was not to be supposed that the journalist would request such a transcript: 309E. Lord Roskill also described the person to whom discovery was made as at a "great advantage in comparison with the rest of the world": 322H. Lord Scarman (in the minority with Lord Simon of Glaisdale) held that once "the litigant's private right to keep his documents to himself has been overtaken by their becoming public knowledge, we can see no reason why the undertaking given when they were confidential should continue to apply to them": 313C.
47 The following observations may be made about Harman. One, it concerned documents produced under discovery. Two, the solicitor used the documents themselves for a purpose collateral to the proceeding. Three, but for the reading out loud of the documents in open court (where members of the public may or may not have been present), there is no suggestion that the documents had otherwise been disclosed to the public. Four, it appears that the majority assumed that if instead of using the documents themselves, the solicitor had shown the journalist a copy of a transcript of the proceedings, there would have been no breach of the obligation. Five, the documents were not admitted into evidence, so statements about the relevance of that fact are obiter dicta.
48 Crest Homes PLC v Marks [1987] 1 AC 829 also involved discovered documents. The House of Lords said at 854 that the obligation applies not merely to discovered documents but to information derived from those documents whether embodied in a copy or stored in the mind (citing, with approval, Sybron Corporation v Barclays Bank PLC [1985] Ch 299). This statement of principle founds TWE's submission that the obligation applies to any document that incorporates information from a discovered document, be it a pleading, transcript or otherwise. Crest Homes, however, does not expressly address the issue of the status of a transcript or a pleading. TWE referred to three other decisions in this regard.
49 First, TWE referred to Sybron. Sybron concerned documents produced under subpoena. Some of the documents were referred to by the judge in delivering judgment. Scott J held that such documents must be subject to the same obligation as discovered documents: 318B. His Honour also noted that the obligation must apply not only to the documents themselves but their contents, so that the obligation applies to information from the documents whether embodied in another document or stored in the mind: 318D-E. Accordingly, the persons subject to the obligation (the parties and their privies) could not use a secondary source of the contents of the documents, such as a transcript of a judgment referring to them, for a collateral purpose. Scott J accepted that in Harman it was not said that the solicitor could not have disclosed a transcript of the hearing to the journalist, but considered that principle required that conclusion as the solicitor was in a position different from the public at large including the journalist. Scott J held that the fact that a discovered or subpoenaed document had entered the public domain by being referred to in open court or in a judgment did not relieve the party and the party's privies from the obligation: 321-322.
50 Second, TWE referred to Forty Two International Pty Limited v Barnes [2010] FCA 397 in which Yates J described the obligation as one which applies generally to documents produced in court proceedings under compulsion and to information derived from those documents, citing, amongst other cases, Sybron: [67]-[72].
51 Third, TWE referred to Connective Services v Slea [2017] VSC 182; (2017) 53 VR 130. Connective Services concerned a discovered document. The discovered document was an agreement: [12]. The agreement was also discovered again in a later proceeding: [13]. The contents of the document were discussed in open court. A transcript of the hearing containing that information was used to commence another proceeding. At the time use was made of the transcript for the collateral purpose of commencing the other proceeding the agreement had not been received into evidence (which it subsequently was). Almond J held that the use of the agreement and transcript involved a breach of the Hearne v Street obligation. Almond J at [29] referred to Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 in which Anderson J at 342 referred to Harman and said that "there is no reason why the fact that a document belonging to a party has been referred to in open court should destroy the private right of that party to prevent the public dissemination of it by the party who has obtained discovery of it". Pidgeon and Ipp JJ at 320 agreed with Anderson J in the result but reserved their position with respect to the consequences of a discovered document being referred to in open court. Almond J also noted at [31]-[32] in Connective Services that Anderson J in Hamersley Iron at 341 had referred to the statement of Mason CJ in Esso at 32-33 that the obligation is subject to the "qualification that once material is adduced into evidence it becomes part of the public domain unless the court restrains publication of it" and had said that "he did not consider that Mason CJ intended to lay down a new exception in Australia to the rule in Harman, noting that Mason CJ had cited Harman with unqualified approval". Further, Almond J noted at [33] the observations of the Victorian Court of Appeal in British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571 at [30]-[31] that Mason CJ had not offered any reasoning to "support the introduction of such a general exception to the common law".
52 After considering the reasoning in Cowell in detail, Almond J said at [37] that the Victorian Court of Appeal followed Harman and held that the marking of the relevant documents as exhibits did not bring the obligation to an end (as discussed below, the documents in Cowell had been admitted into evidence on an interlocutory application, not the substantive proceeding). At [54] in Connective Services Almond J characterised the obiter dicta in Cowell as not going so far as the applicant had submitted (that is, that the obligation does not prevent a party from making use of information contained in a discovered document if there is a secondary source of the information publicly available and the information is derived from that secondary source). Rather, Almond J at [55] described the obiter dicta in Cowell as the expression of an opinion that parties and non-parties alike should be able to make use of what appears in reasons for judgment, and that once a document is copied or quoted in reasons for judgment the parties should be free to make use of that published information (contrary to Sybron). Almond J described the factual circumstances in the case as involving use of a transcript referring to documents in open court during an interlocutory application where the documents being read from had not been tendered into evidence: [57]. Almond J held that the obligation in respect of the documents continued: [52]-[53]. In obiter dicta at [73] Almond J was not satisfied that the statement in Hearne v Street at [96] established that the obligation ceased once a document had been tendered in evidence. For the reasons already given, we are unable to agree with this conclusion. We are also unable to agree with Almond J's characterisation of the obiter dicta in Cowell. Had Almond J taken what we consider to be the correct view of Esso at 32-33, Hearne v Street at [96] and of Cowell, we doubt that his Honour could have held that the obligation applied to the agreement or a transcript of a hearing not subject to any non-publication order.
53 In Esso the issue was documents produced in an arbitration. Mason CJ stressed the private nature of arbitrations: 26. Mason CJ rejected confidentiality and an implied contractual term as the foundation of an obligation of parties to an arbitration not to disclose the proceedings or information provided in them: 30. Rather, his Honour considered that the implied undertaking which applies in court proceedings not to use any discovered document for a purpose collateral to the proceeding in which discovery was made applied to arbitrations: 33. In that context Mason CJ referred to the "qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it": 32-33. Dawson and McHugh JJ agreed with Mason CJ: 39 and 48. While obiter dicta, the statement of Mason CJ is neither unreasoned, nor merely in passing. His Honour explained that the rationale for the cessation of the obligation was that once received into evidence, the documents entered the public domain. It is also apparent that Mason CJ's statement of the principle accords with a line of authority in Australia both before and after Harman: see at [74] below.
54 Accordingly, we are unable to agree with the observations in Cowell at [30]-[31] and Hamersley Iron at [32], as well as in Connective Services, about Mason CJ not having meant what he said in Esso at 32-33. As discussed below, the qualification on the obligation once a document had been received into evidence to which Mason CJ was referring was not a new development in the common law of Australia. It reflects a considered approach to the operation of the principle which had been applied in Australia before and after Harman. This also supports the view that the High Court meant what it said in Hearne v Street.
55 In Cowell the Victorian Court of Appeal considered discovered documents, witness statements and interrogatories. Despite applying Sybron (at [35]), their Honours referred to Scott J's view in Sybron that a party was not free to make use of a transcript or judgment to the extent they referred to discovered documents and doubted the correctness of this proposition at [28], saying that it:
…seems to us that if the party has available an alternative source of information about the contents of the documents, even a source deriving from the discovery of the documents, then, if that source be public, the party to whom the documents were first discovered should arguably be as free to make use of that alternative source of information as any member of the public undoubtedly is. That would mean that in Harman the solicitor should be regarded as having transgressed because she made free with the documents themselves as distinct from the transcript of what had been said in open court.
56 Their Honours reinforced this view at [33], saying:
…evidence, once given orally in open court, can ordinarily be used subsequently for any lawful purpose without restriction (subject of course to any order made specifically to the contrary in a given case).
57 Their Honours were not convinced, however, that the obligation ceased to exist in respect of documents produced under subpoena and tendered against the party on an interlocutory application: [21] and [35]. At [36] their Honours referred to the nebulous nature of the concept of the "public domain" having regard to the fact that the documents in the case, although tendered in evidence, had not been read aloud in open court. Ultimately, their Honours preferred the view that the obligation continued, not least because it avoided debate about whether the documents had entered the "public domain": [37]. At [38] their Honours returned to Sybron, saying:
As already mentioned, we do not as yet subscribe to the opinion expressed by Scott J that the parties may not make use of what appears in the judgment; we should have thought that once a document is copied or quoted in the reasons for judgment, its contents to that extent are public knowledge and use can accordingly be made, by party and non-party alike, of what appears in the judgment. That is merely to emphasise the possible difference between the documents themselves and some alternative, albeit derivative, sources of information. But, as with all the other evidence at trial, it will be the parties who are well aware of the special status of the documents provided between them under compulsion and it is only the parties who are affected by the distinction. The party gaining access to another's documents is properly regarded as in a privileged position by reason of the court's processes, and it is that privilege which ought not to be abused.
58 Their Honours returned to the issue at [41], saying:
As earlier indicated, we see it as at least strongly arguable that, if it [a discovered document] has become public knowledge in all respects, unlimited use can then be made of it outside the court room on the ground that the party, who must be taken to have given the undertaking, should not then be in any better or worse position than a stranger to the litigation.
59 At [43] their Honours considered further the tender of evidence and distinguished between discovered documents and documents brought into existence for the purpose of the litigation, saying:
… if the witness statement be adopted by the witness in the course of the hearing with the result that it passes into evidence, the implied undertaking - or the duty analogous to the implied undertaking - not to use the statement otherwise than for the purpose of the litigation will arguably have come to an end, for want of any further purpose to be served by maintaining the undertaking. It is much the same with answers to interrogatories. Like answers to interrogatories, the witness statement has been brought into being solely for the purpose of its going into evidence at trial and therefore, once that happens, the undertaking which initially attaches in order to protect it from misuse in the meantime would appear to be spent. It is otherwise with documents provided to an opponent upon discovery or the like, for such documents commonly predate the commencement of the proceeding and ordinarily have not been brought into existence for the purposes of the litigation. Hence the greater need for care to guard against their being used by an opponent for a "collateral or ulterior purpose" even after they have been marked as exhibits in the proceeding in which they were made available.
60 At [46] their Honours also distinguished between documents produced for the purpose of the litigation and tendered in evidence other than for the purpose for which they were produced (such as in an interlocutory application). At [47] they said:
For present purposes, suffice it say that the use of a document on an interlocutory proceeding may not always be as significant as its use at trial and in our opinion that was so in relation to both the answers to interrogatories and the witness statement here in question: both have yet to be used on the trial of the issues arising in the plaintiff's action for damages and so meanwhile both remain subject to the implied undertaking despite their going into evidence on the interlocutory application.
61 At [48]-[50] their Honours said:
[48] For these reasons, it may be concluded as follows. Where documents are provided to a party to litigation under some coercive process of the court with the result that an implied undertaking attaches to the effect that, without the leave of the court, they not be used otherwise than for the purposes of the litigation, the party bound by that undertaking is not freed of it simply because the document in question is marked as an exhibit in the proceeding in the course of which it was provided. To the extent that knowledge of the document has become public by dint of its tender in open court, members of the public will be free to make use of that knowledge as they will (subject always of course to any order specially made protecting confidentiality and the like), but the party affected by the undertaking remains bound as to use of the document itself. The distinction seems to us a valid one between, on the one hand, use of the document the contents and probably the provenance of which are known in detail to the party by virtue of a privilege extended to it by the processes of the court and, on the other hand, use of the information about it which comes to the knowledge of the public by reason of the proceedings in open court (and during which, it may be supposed, the document is marked as an exhibit). The knowledge of the one cannot be equated with the knowledge of the other.
[49] Given the particular considerations requiring that a party's privacy be respected so far as compatible with the administration of justice in open court, there seems no logical, or indeed practical, reason why the mere passing of the document into evidence (as witness its being marked as an exhibit) should be taken to relieve the party bound by the implied undertaking from its obligations in that respect. Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into "the public domain") by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large - but only as to such information - there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case.
[50] The foregoing applies in particular to documents provided to an opponent as the result of discovery, subpoena duces tecum or the like, documents which for the most part will have come into existence well before the commencement of the proceeding in which they are made available and generally without thought to their being required at some stage in evidence. It is otherwise with the witness statement of Dr Seiden, Exhibit P51, and the answers to interrogatories, Exhibit P45, for these were brought into existence specifically for use in the proceeding between the appellant and the respondent and their being made public at the trial of the proceeding was to be expected. That does not mean that the witness statement and the answers to interrogatories were not the subject of the implied undertaking when first provided by the appellant to its opponent; for they were, by reason of the circumstances of their creation. It may, however, mean, if (as we have suggested) the undertaking is properly regarded as intended to provide protection only pending their use at trial, that once put in evidence at trial everyone, parties and members of the public alike, are free to make whatever use they choose of the contents of such documents. But here the witness statement of Dr. Seiden and the answers to interrogatories did not cease to be subject to the implied undertaking by reason of their going into evidence because, even if that would have resulted from the tender of such documents at trial, in this instance they were tendered only on an interlocutory application and then for a purpose other than that for which they were brought into being.
62 There is no doubt that the observations of the Victorian Court of Appeal about the "public domain" referred to above are obiter dicta. The Court of Appeal also endorsed Harman and, albeit with some qualifications, Sybron, in particular with respect to the distinction between a party and its privies and a stranger to litigation. It also seems fair to say, however, that the result in Cowell depended on their Honours' view that the documents, although tendered in evidence, remained private to the party who had discovered them.
63 TWE contended that the primary judge erred by following Cowell at [70]. The primary judge said at [70], referring to Connective Services at [54]-[62], that:
It seems to me that the reasoning of Almond J in the above paragraphs of Connective and of Scott J in Sybron relied upon by Almond J is contrary to the observations of the Victorian Court of Appeal in Cowell at 583 [28] and 588 [38] to the effect that the Hearne v Street obligation does not prevent a party from making use of information contained in a discovered document if there is a secondary source of the information publicly available and the information is derived from that secondary source. For this reason, I consider that I am bound to follow Cowell on this point and propose to do so. In any event, with respect to Almond J, I think that his opinion to the contrary does not state the law in Australia.
64 TWE submitted that in Cowell the Court mentioned in passing two possible common law exceptions to the Hearne v Street obligations. First, information incorporated in reasons for judgment: [38]. Second, a discovered document which passes into the public domain by reason of its use in open court: [49]. According to TWE, however, as Cowell applied the majority view in Harman the second potential exception must be distinct from the notion of the "public domain" for the law of confidence. Thus, the Court in Cowell must be taken to have accepted that the obligation continues to apply to discovered documents exhibited to an affidavit and read in open court as per Harman, Hamersley Iron, Citicorp Life Insurance Ltd v Lubransky [2005] VSC 101, and Connective Services.
65 We do not think that the obiter dicta in Cowell is as limited as Almond J considered in Connective Services and TWE proposes. In Cowell the Court's repeated obiter dicta indicated that it did not consider the obligation would apply to the use of a source of information other than the document produced under compulsion if that source was itself public. Their Honours concluded that the obligation continued to apply in Cowell because the proposed use was of the subpoenaed documents themselves (not a secondary source, let alone a secondary source that was public) and the documents had been exhibited to an affidavit tendered in evidence on an interlocutory application but were not otherwise public, the documents not having been read aloud in open court [35]-[36]. It is apparent from their Honours' reasons that if the proposed use had been of a secondary source of information about the content of discovered documents which was itself public then it was doubtful that the obligation would apply to that public secondary source: [28], [38], [41], [48]-[50]. In any event, Cowell pre-dates Hearne v Street which expresses the obligation in precisely the same terms as Mason CJ in Esso.
66 In Hamersley Iron (which pre-dates Cowell) Anderson J, Pidgeon J and Ipp J held that the obligation continued to apply to discovered documents annexed to an affidavit which had been tendered only in relation to an interlocutory application and which had not been otherwise adduced into evidence or read aloud in open court (but had merely been referred to in open court). In so doing Ipp J at 323 observed that the approach of the minority in Harman and the majority in obiter dicta in Ainsworth v Hanrahan (1991) 25 NSWLR 155 (Kirby P and Samuels JA), as well as Mason CJ in Esso, did not mean that any discovered document tendered in evidence was no longer the subject of the obligation. Rather, the obligation ceased to apply to discovered documents tendered in evidence which were held to be admissible in the substantive (and not some mere interlocutory) proceeding. As noted, Anderson J considered that Mason CJ did not mean what he said in Esso at 32-33.
67 We are unable to accept the reasoning in Hamersley Iron and Cowell which, in our view, is inconsistent with Mason CJ in Esso, Ainsworth and, more importantly, Hearne v Street. But in any event, neither the ratio nor the obiter in Hamersley Iron and Cowell are applicable to the facts of the present case. In neither case was the relevant use of a secondary document which had itself been made fully public by publication on a court's website as expressly contemplated by the orders of the court for notification of the proposed settlement of the proceeding. No considerations of judicial comity, accordingly, arise.
68 In Ainsworth the issue was the application of the obligation to answers to interrogatories received but not put into evidence. The New South Wales Court of Appeal held that the obligation applied. In so doing Kirby P noted that the answers to the interrogatories "had never been disclosed in public, whether in court or otherwise": 164. At 168 Kirby P said:
Once the answers are tendered or read in open court, pace Harman, the liability in contempt for their later use will evaporate…
69 Samuels JA agreed with Kirby P: 169. Handley JA also agreed with Kirby P but reserved his position on the correctness of Harman: 169.
70 In Citicorp (decided before Hearne v Street) Hargrave J at [50]-[51] said that:
[50] In my view, Cowell stands as authority for the narrow proposition that the mere passing of a document into evidence does not relieve the party bound by the implied undertaking from its obligations in respect of that document. Beyond this, the joint judgment of the Court contains many obiter dicta statements, some of which are set out above, concerning the use which a party may arguably make of information about documents which, by reason of their use in open court, enters "the public domain".
[51] In my opinion, pending resolution of the questions left open by the Court of Appeal in Cowell, I ought to apply Harman and Sybron. As I have said, Cowell itself stands for a narrow proposition which, although relevant, is not decisive of the issues which I must decide.
71 We would characterise the ratio of Cowell more narrowly than Hargraves J. The case did not concern documents produced under compulsion which were tendered in evidence. It concerned documents produced under compulsion tendered in evidence on an interlocutory application only and which were referred to but not read aloud from in open court. We agree that all else in Cowell is obiter dicta.
72 To return to Citicorp, at [59] Hargraves J concluded:
In my view, the reference to the Steiner reports in evidence at the trial of the Bagiotas proceeding has not operated to relieve Citicorp of its implied undertaking to only use those documents for the purposes of the Bagiotas proceeding. In this regard, I follow Harman, Sybron and Hamersley Iron. In my opinion, the fact that the Steiner reports were not admitted into evidence is conclusive. However, even if they were admitted into evidence, this would not, by itself, be enough to extinguish the implied undertaking in respect of them. This was the narrow point decided in Cowell.
73 For the reasons given above we do not consider Citicorp to be good law after Hearne v Street.
74 TWE submitted that other first instance decisions relied upon by the primary judge should not be followed. In this regard, it may be noted that Connective Services and Citicorp are also both first instance decisions. Apart from these decisions, in defining the scope of the obligation at common law (leaving aside the issue of the status of pleadings for the moment), the primary judge referred to K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228 in which Debelle J at [53] identified two distinct lines of authority in Australia. In the first (Hamersley Iron and Cowell) Harman was applied so that the admission into evidence of a document did not result in the cessation of the obligation. In the second the obligation ceases on the admission of the document into evidence, citing Esso, Registrar of the Supreme Court v McPherson [1980] 1 NSWLR 688, United States Surgical Corporation v Hospital Products International Pty Ltd (unreported, Supreme Court of NSW, McLelland J, 7 May 1982), Ainsworth, Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322, and Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218.
75 We note that in Hospital Products McLelland J referred to Harman and said:
It seems to me that the Court must attempt to distinguish between the consequences of access to a document in its character of a discovered (or subpoenaed) document on the one hand, and of access to the same document in its character of a document admitted into evidence on the other hand. Prima facie the Court should prevent utilisation for collateral purposes of access of the first kind and permit utilisation for legitimate collateral purposes of access of the second kind…
As between the parties such documents have lost their confidentiality by being admitted in evidence in open court in the (at least notional) presence of the public and of the plaintiff, and there is every reason why in such circumstances they should be available for the purposes of the related litigation in the United States.
76 In Eltran Pincus J held that subpoenaed documents which had been tendered in evidence were no longer the subject of the obligation, following Hospital Products. Pincus J described Harman as authority for a narrow proposition that where documents obtained by compulsory process are read out in open court but excluded from evidence it is a breach of the obligation to supply those documents to the press for the purpose of writing about them other than merely by way of reporting the litigation: 324. Pincus J found it difficult to accept that the obligation would have applied to the documents in Harman had they been admitted into evidence: 324.
77 In Ampolex the issue of a document being admitted into evidence did not arise but Giles CJ Comm D identified the relevant principle as one which had been accepted in NSW "with the qualification that the undertaking does not apply once the document has been produced and read out in open court": 221.
78 In K & S Corporation Debelle J said at [65]:
An important aspect of the reasoning in Harman and in British American Tobacco to justify the conclusion that persons subject to the obligations of the implied undertaking remain subject to these obligations notwithstanding that third parties may make what use they can of what they hear in court or read in transcript is that the party gaining access to another's documents is in a privileged position by reason of the process of the court and it is that privilege which should not be abused: see the last sentence in para 38 of British American Tobacco, Lord Roskill in Harman at 322 - 323 and see also Scott J in Sybron Corporation at 322. There can be no doubt as to the solemn nature of the undertaking and the gravity of the obligation it imposes. However, once the document has been admitted into evidence, the rationale for the undertaking evaporates. If third parties are at liberty to make what use they can of the documents, the person to whom they are disclosed should also be able to use them. The fact that the documents were initially disclosed to a person does not justify discriminating between that person and members of the public. The solemnity of the undertaking is not enhanced by such a rule. Instead, the unequal operation of the rule is likely to erode confidence in it. Sanctions exist to punish those who flout the undertaking. Courts may make orders to protect the confidentiality of documents admitted into evidence. In short, no public purpose is served by discriminating between the person to whom the document is disclosed and the third parties who may make what use of what they can of what they have heard in court or what they see in a transcript.
79 The primary judge also referred to Haswell v Commonwealth of Australia [2020] FCA 915 in which Lee J said at [17] that the scope of r 20.03 of the FC Rules reflects the common law in Australia that "the obligation comes to an end once a document is tendered in evidence or formally read in open court", citing in support Esso at 32-33 and Ainsworth at 164-165. Lee J explained the rationale for this conclusion as follows:
[18] First, even if it were thought (for some reason) that Mason CJ [in Esso], unusually, did not mean what he said in observing that the obligation is subject to the qualification that once material is adduced in evidence it becomes part of the public domain (…[Esso] at 32-3), the majority of the High Court made the position as to documents going into evidence plain in Hearne v Street (at 154 - 5 [96] per Hayne, Heydon and Crennan JJ)…
[19] Secondly, and more fundamentally, the continuing maintenance of the obligation is inconsistent with the relevant information being in the public domain. An aspect of open justice is that information (be it contained in evidence or submissions) is communicated publicly to those present in the court, which in turn allows public and professional scrutiny (including fair and accurate reports of judicial proceedings), and courts will not act contrary to the principle save in exceptional circumstances: see Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378 (at 387 [44] per French CJ, Hayne, Kiefel, Bell and Keane JJ). This principle is fundamental to the principled exercise of Ch III judicial power…For the obligation to continue in circumstances where the relevant information is in the public domain, would make no sense given all persons have a common law right to make a fair report of information revealed in any proceeding in open court: see Dickason v Dickason (1913) 17 CLR 50 (at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ agreeing); Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293 (at 296 [16], 298 [25] per Rares J).
80 Accordingly, Lee J considered at [20] that the obligation no longer applied to:
…information obtained from public domain documents such as: (a) publicly available Court documents, being pleadings or particulars of a pleading or a judgment or a transcript etc (see FCR 2.32); (b) documents that have been tendered; (c) affidavits which have been read; (d) expert reports which have been adduced into evidence; (e) answers to interrogatories tendered; and (f) a document read or referred to in open court in a way that discloses its contents (see FCR 20.03). As to the nature of a hearing in which such evidence is adduced (be it interlocutory, a voir dire, or a final hearing) this does not matter - as long as the hearing was in open court and there was no order made or relevant statutory exception applicable to the use or publication of the information.
81 The primary judge also referred to Eckert v National Australia Bank Ltd (1997) 191 LSJS 221. At [72] the primary judge said:
It submitted that, although Doyle CJ did not expressly say so, his Honour's approach to the facts in Eckert demonstrated that his Honour did not regard the earlier pleading under consideration in that case which embodied information taken from discovered documents as an independent or secondary source for that information. In my view, nothing in the Chief Justice's judgment supports that submission and I reject it.
82 We agree with the primary judge in this regard.
83 What should be made of all this? We consider that:
(1) Harman concerned only the use of discovered documents themselves. The mere reading out of the documents in open court, according to the majority, did not cause the obligation to cease. In obiter dicta, the majority considered that the result would not change if the documents were admitted into evidence. It is also implicit in the reasons of the majority, however, that if instead of the documents, a transcript recording the contents of the document as read out loud in open court had been used by the solicitor, no obligation would have applied to the transcript.
(2) In Hearne v Street the High Court adopted Harman but, in so doing, expressly framed the obligation as one which ceased to apply on the admission of the document (be it a discovered document or an affidavit or witness statement) into evidence: [46], [96] and [138]. As noted, there was earlier authority to this effect in Australia - Esso (referred to in Hearne v Street at [96], [107], [110]), Ainsworth (referred to in Hearne v Street at [96], [104]), Eltran (referred to in Hearne v Street at [96]), Hospital Products, McPherson, and Ampolex. When the references in Hearne v Street to Esso, Ainsworth, and Eltran are taken into account, it lends support to our conclusion above that the High Court meant what it said when it described the obligation as ceasing to apply to a document once it had been received into evidence. The rationale for this is that court hearings (subject to limited exceptions) must occur in public as a fundamental component of the requirement for open justice. Once a document is received into evidence, it is taken to be a public document which any member of the public may use (subject to an order from the court to the contrary). For the obligation not to use the document for any collateral purpose to continue to apply only to the parties and their privies would serve no useful purpose. In effect, they no longer hold a position of special advantage with respect to the document.
(3) The proposition that the obligation applies not only to the documents themselves but also to the information in the documents must be correct (as the primary judge held at [67]). If it were otherwise, the obligation would be hollow. However, to the extent that Sybron refers to use of a secondary source of information being a transcript or judgment, its correctness has been doubted in Australia: Cowell. For our part, we consider this aspect of Sybron should not be adopted. It is contrary to the foundational principle that court hearings are open to any member of the public and thus, subject to any order to the contrary, a transcript of a hearing is taken to be a public document (accessible on payment of the relevant fee). Judgments are public documents. To hold that a party or its privy is precluded from using information in a transcript or judgment would go beyond Harman and would be inconsistent with the rationale which must underlie the statement of principle in Hearne v Street that the obligation ceases to apply to documents once they are received into evidence.
(4) There is obiter dicta in Cowell that the obligation does not apply to use of a secondary source that is itself public. There is also obiter dicta in Cowell that the obligation does not apply to a discovered document if that document has become public knowledge in all respects. Contrary to the submissions of TWE, the obiter dicta in Cowell is not confined to two possible exceptions to the obligation - information incorporated into a judgment and a discovered document which has become public by reason of its use in open court.
(5) If our view of Hearne v Street at [96] is correct then the formulation of the obligation in the common law of Australia is that the obligation applies to a document filed in court or discovered under compulsion until the document is admitted into evidence. If our view of Hearne v Street is incorrect then, nevertheless, the weight of authority in Australia supports the view that the obligation ceases to apply to a document once it is admitted into evidence: Esso, Ainsworth, Hospital Products, McPherson, and Eltran. Either way, at the least, the rationale for the existence of the obligation in Australia does not extend to a secondary source which has itself become public (the most obvious examples of which are a judgment or a transcript). Harman never suggested to the contrary. Sybron, to the extent it is to the contrary with respect to transcripts and judgments, has been expressly doubted: Cowell. It is not possible to reconcile the reasoning in Sybron about the obligation applying to information in judgments and transcripts with the authorities in Australia.
84 Having regard to these matters we consider that the following facts are critical. One, in preparing the Napier SOC, no use was made of any discovered document (which is different from the facts in Harman). Two, rather, use was made of documents (the Jones 3 FASOC and Jones 2 FAD) derived in part from discovered documents. Three, the secondary documents (the Jones 3 FASOC and Jones 2 FAD) had been made public. They had been published in full on the Court's website and were available to any member of the public to read. In these circumstances, we consider that the primary judge was not in error in concluding that the Hearne v Street obligation did not apply to the secondary documents. In our view, from the moment they were placed on the Court's website pursuant to an order of the Court, the secondary documents ceased to be the subject of any Hearne v Street obligation. The secondary documents in the present case are in no different position from the transcript in Harman. As noted, it was implicit in the reasoning of the majority in Harman that the obligation would not have applied to the solicitor using a transcript of the submissions made in open court which disclosed the contents of the documents. Sybron, to the extent it is to the contrary, should not be followed.
85 While not necessary to say so, we consider the views of Lee J in Haswell correctly reflect the state of the law in Australia. The obligation was recognised and applied in Australia before Harman. The obligation was defined in Australia as a duty not to use documents filed or produced under compulsion in litigation for any purpose other than the litigation unless and until the document was received into evidence. The rationale for the cessation of the obligation at that point is that there was no reason for the obligation once the documents had entered the public domain. The party and its privies, by reason of the document entering the public domain, were no longer in a position of special advantage with respect to the document. There was also no need to attempt to identify the extent to which any document had entered the public domain as it was a given that once received into evidence, and subject to any order to the contrary, the document was public by definition. The observations to the contrary in Harman, that admission of the documents into evidence would not cause the obligation to cease, are obiter dicta. Harman, as approved in Hearne v Street and other cases, decided a narrow issue - that the obligation does not cease in respect of discovered documents which are read aloud in court but are not admitted into evidence. To the extent that other cases (Cowell and Hamersley Iron in particular) hold to the contrary in respect of documents received into evidence for the purpose of an interlocutory application rather than the substantive hearing, we consider them inconsistent with Hearne v Street (and with the obiter dicta in Esso and Ainsworth).
86 This conclusion is sufficient to dispose of the appeal. Nevertheless, we will consider the remaining arguments.
87 The primary judge accepted the respondents' contention that the Hearne v Street obligation does not apply to pleadings at all: [59]-[65], [71]-[72], [75]. Critical to the primary judge's conclusion in this regard is r 2.32(2) and (3) of the FC Rules which provide that any member of the public is permitted to inspect any pleading filed in the Court, subject to any contrary order: [59]. The primary judge referred to Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104 in which Brereton J said at [35] that "it has never been the case that pleadings have been regarded as subject to the implied undertaking, nor other evidence served in support of the pleadings". Henry J reached the same conclusion in Canterbury-Bankstown Council v Payce Communities Pty Ltd [2019] NSWSC 1419. Santow J expressed a contrary view in eisa Limited v Damien Brady [2000] NSWSC 929 at [21].
88 TWE submitted that the primary judge was in error in this regard. First, the conclusion is inconsistent with the principle that the Hearne v Street obligation applies to information derived from a document subject to the obligation. Second, as TWE otherwise submitted, there is no nebulous "public domain" exception to the obligation. The first proposition may be accepted. There is no reason in principle why the obligation might not attach to a pleading to the extent that the pleading has been prepared using information from documents otherwise the subject of the obligation (such as discovered documents not tendered into evidence). In this Court, however, once a pleading is filed (see r 2.25 of the FC Rules) it is in the custody of the relevant District Registry (see r 2.31) and any member of the public may inspect it if it is identified in r 2.32(2) of the FC Rules (subject to r 2.32(1) and (3)). A pleading or similar document is identified in r 2.32(2)(c). Rule 2.32, by giving a stranger a right of inspection of such documents, necessarily assumes that the stranger will be able to use the documents for any purpose. The rule does not purport to place any limit on the use a stranger to the litigation might place on the documents. While the purpose might be a fair report of the litigation (which is a fundamental aspect of the principle of open justice and has always been permissible, subject to any order to the contrary), it might well be a purpose unconnected to the litigation. The necessary effect of the rule is that all such uses are permitted, despite the stranger knowing that the documents must have been created for the purpose of the litigation.
89 In the present case, no orders restricting access to the Jones 3 FASOC and Jones 2 FAD were made either at the time they were filed or subsequently. Accordingly, on filing, any member of the public was entitled to inspect those documents and, it must be accepted, to use them for any purpose. Consistently with our reasoning in relation to the rationale underlying the obligation as discussed above, we are not persuaded that the obligation applies to a pleading filed in this Court. Once the pleading has been filed then, subject to any contrary order, it is a public document. There is no sound reason for the obligation to continue to apply to the parties and their privies when any other person in the world would be free to inspect and make use of the pleading as they saw fit. The distinction between the special advantage of a party and its privies compared to the position of a stranger, in our view, does not hold in the face of r 2.32(2). Accordingly, the status of the Jones 3 FASOC and Jones 2 FAD as pleadings filed in this Court and as documents available for public inspection under r 2.32(2)(c) is an independent basis for concluding that the Hearne v Street obligation (assuming it applies to a pleading at all) ceased to apply once the pleadings had been filed and became subject to the rule.
90 The primary judge also concluded that the tender into evidence of the Jones 2 FASOC on 27 April 2017, which contains the same information from the discovered documents as the Jones 3 FASOC and Jones 2 FAD, placed that information into the public domain so that the Hearne v Street obligation no longer applied to that information: [82]. TWE submitted that the primary judge erred in this regard. The Jones 2 FASOC which was tendered was a draft proposed amended pleading. It was not evidence of the matters alleged in it.
91 We agree with the respondents that TWE's submissions miss the point. The allegation is a misuse of information, being information in the Jones 3 FASOC and Jones 2 FAD which was derived from discovered documents. The same information was contained in the Jones 2 FASOC which was received into evidence. On receipt of that document into evidence any Hearne v Street obligation which might have applied to it and the information it contained ceased. It is not to the point that, being a pleading, the Jones 2 FASOC was not evidence of the facts alleged in it. The point is that the information in the Jones 2 FASOC became public on its receipt into evidence. That fact brought any Hearne v Street obligation with respect to the Jones 2 FASOC and its contents to an end.
92 The other matter raised during the appeal but not before the primary judge was r 20.03 of the FC Rules (set out above). TWE suggested that the rule was narrower than the qualification about receipt into evidence as referred to in Hearne v Street at [96]. We think this wrongly assumes that the rule does not pre-suppose that the relevant obligation ceases in any event once a document is admitted into evidence. Properly understood, r 20.03 is a direct response only to Harman, where the documents were not admitted into evidence. The rule overcomes the effect of Harman but says nothing as to whether the obligation applies once a document has been received into evidence. Nevertheless, we agree with TWE that r 20.03(1) does not speak to the facts of the present case. The qualification "in open court in a way that discloses its contents" must apply to both the act of "read" and "referred to". There is no evidence that in the present case that the Jones 2 FASOC, the Jones 3 FASOC, or the Jones 2 FAD were read or referred to in open court in a way that disclosed their contents. Accordingly, r 20.03(1) does not apply. The issue having been fully argued, however, we would grant the respondents leave to raise the argument and the first and second respondents leave to file the notice of contention which they provided after the hearing of the appeal raising this issue.
93 Grounds 1 to 4 (as well as 8 and 9 relating to the primary judge's decision to grant a release and leave retrospectively) of the appeal should be dismissed for these reasons.