Paul Graham Unicomb v Gregory Scott Blais

This is an application by the plaintiffs, Paul Graham Unicomb, HG InvestCorp Pty Ltd and GHT Holdings Pty Ltd (collectively plaintiffs), for a declaration that three affidavits provided in previous proceedings in this court are not the subject of an obligation owed to the court not to use them for any purpose other than that for which they were given. In the alternative, the plaintiffs seek that leave be granted to them and their legal representatives to use the three affidavits in these proceedings.

I will refer to Paul Graham Unicomb by his first name, without intending any disrespect or overfamiliarity.

The proceedings concern land at East Maitland and particular dealings with that land by its then owner Denis Thomas Wilton (now deceased), to whom I will also refer by his first name, without intending any disrespect or overfamiliarity.

The defendants are Gregory Scott Blais, Keith James Wilton and Jennifer Amie Blais (collectively defendants), to each of whom I will also refer by their first name, without intending any disrespect or overfamiliarity.

Keith is the son of Denis. Jennifer is the daughter of Denis. Gregory is married to Jennifer, so is the son-in-law of Denis.

The three affidavits (collectively Relevant Affidavits) which are the subject of this application were each made in earlier proceedings in this court and are the following:

Mr Brent was the accountant for Denis.

The defendants oppose the application.

There are two issues for me to determine:

This case raises interesting questions regarding the application of the principle concerning the implied obligation stated in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 and the manner in which subsequent cases have sought to interpret and apply that principle. There has been considerable uncertainty amongst judges across Australia considering the issue of whether the principle in Hearne applies to affidavits filed and served pursuant to the normal timetabling orders of a court or court rules requiring such affidavits to support particular applications when they are made.

Rather than assuming that the implied obligation applies and determining the application solely on the basis of whether leave to use them should or should not be granted, I have decided to make a substantive decision on both issues.

I am grateful for the succinct and skilful oral and written submissions made by Mr Elliott SC with Mr Chiam as counsel for the plaintiffs, instructed by McCabes, and Mr Knackstredt as counsel for the defendants, instructed by Travis Partners.

I have determined that the implied obligation does not apply to each of the Relevant Affidavits in this case and, even if it did, I would grant leave for the plaintiffs to use each of the Relevant Affidavits in these proceedings.

These proceedings and the earlier proceedings both involve a set of uncontested underlying facts concerning dealings with adjoining parcels of land located at 6 Wilton Drive, East Maitland (being Lot 8 in Deposited Plan 855275) and 62 Mount Vincent Road, East Maitland NSW (comprising Lot 141, Lot 142 and Lot 143 in Deposited Plan 1225076) (together the East Maitland Property).

At all material times up to the date of his death, Denis was the registered proprietor of the East Maitland Property.

On 7 August 2017, Denis executed a Deed of Call Option granting HG InvestCorp an option to purchase the East Maitland Property (Call Option Deed). The Call Option Deed provided, amongst other things, that the call option was granted in consideration for the Call Option Fee of $20,000 and that the Price on the exercise of the call option was the sum of $10.4 million (excluding GST) (cll 1.1(c), (o) and 2.1) and the Call Option Period within which the call option must be exercised by written notice of HG InvestCorp to Denis was between 43 days after 7 August 2017 and the earlier of:

On 5 October 2018, Denis and HG InvestCorp entered into a Deed of Variation of Call Option which varied the Call Option Deed (cl 1) by increasing the Call Option Fee to $20,001 and extending the Call Option Period so that it ended on the earlier of:

On 30 April 2019, Denis and HG InvestCorp entered into a Deed of Further Variation of Call Option which further varied the Call Option Deed (cl 1) by increasing the Call Option Fee to $20,002 and further extending the Call Option Period so that it ended on the earlier of:

On 3 May 2019, Denis executed his last will (Will). The named executors in the Will are Keith and Gregory. The named beneficiaries in the Will are Jennifer, Keith, John Edward Wilton, Paul Denis Wilton and Marie Louise Corrigan. Without intending any disrespect or overfamiliarity, I will refer to Marie Louise Corrigan by her first name.

On 26 November 2020, Denis died. Marie was the partner of Denis at the time of his death.

On or about 9 December 2020, Keith and Gregory as executors under the Will lodged an application for probate over the Estate of Denis in this court commencing proceedings 2020/00349038 (Probate Proceedings).

On 30 March 2021, Gregory swore an affidavit in the Probate Proceedings (Earlier Blais affidavit) to support the Estate’s application for an interim and limited grant of probate of the Estate.

On 13 April 2021, a hearing of the Estate’s application for an interim and limited grant of probate was held before Slattery J, at which the Earlier Blais affidavit was read in open court. On that day, Slattery J made orders that Keith and Gregory be appointed as interim administrators of the Estate, with the power to settle accounts related to the continuation of the rezoning application for part of the East Maitland Property.

On or about 24 May 2021, Keith and Gregory as executors of the Will filed a statement of claim in the Probate Proceedings, joining Marie as a defendant, seeking a grant of probate in solemn form and a declaration that a codicil to the Will dated 5 May 2020 was not valid. There were no other parties to the Probate Proceedings.

On or about 13 July 2021, Keith and Gregory as executors commenced proceedings 2021/00199953 in this court against Marie and the New South Wales Registrar General, seeking declarations and orders that a transfer of property from Denis to Marie on 16 April 2020 be set aside on the basis that it was unconscionable and/or void from its inception (Equity Proceedings). The New South Wales Registrar General filed a submitting appearance in the Equity Proceedings. There were no other parties to the Equity Proceedings.

McCabes acted for Marie in the Probate Proceedings and the Equity Proceedings. Andrew Lacey of McCabes was the solicitor on the record for Marie in the Probate Proceedings and the Equity Proceedings.

On 16 August 2021, Registrar Walton made the following orders, inter alia, in the Equity Proceedings:

On 16 August 2021, Hallen J made the following orders, inter alia, in the Probate Proceedings:

On 14 September 2021, Hallen J made orders in the Probate Proceedings extending the time for compliance with orders 2 and 3 made on 16 August 2021, so that evidence in chief was directed to be filed and served by 4pm on 27 September 2021 and that any evidence in reply was directed to be filed and served by 4pm on 13 October 2021.

No order was ever made that the Probate Proceedings and the Equity Proceedings were to be heard together.

On 8 October 2021, the Wilton affidavit, the Blais affidavit and the Brent affidavit were each filed and served on behalf of Keith and Gregory in the Probate Proceedings and the Equity Proceedings. Mr Lacey of McCabes received the Relevant Affidavits in his capacity as the solicitor acting for Marie.

On or about 22 March 2022, Keith, Gregory and Marie entered into a Deed of Settlement and Release to resolve the Probate Proceedings and the Equity Proceedings.

On 22 April 2022, Hallen J made orders granting probate of the Estate in the Probate Proceedings, noted the settlement agreement between Keith, Gregory and Marie and dismissed the Probate Proceedings and the Equity Proceedings.

The plaintiffs concede that none of the Relevant Affidavits were read in open court in either the Probate Proceedings or the Equity Proceedings, although it appears from evidence provided by the defendants that [1], [8], [9] and [60]–[74] of the Brent affidavit were read in court on 22 April 2022 by Hallen J.

The Relevant Affidavits have not been provided to the plaintiffs by Mr Lacey, who is also acting as their solicitor in these proceedings. The Relevant Affidavits were provided to me as part of a confidential exhibit. In this judgment, I will only refer to the contents of any of the Relevant Affidavits in the most general form, in keeping with the confidentiality orders I made when they were received as evidence in these proceedings.

On or about 14 and 15 July 2022, Keith (as trustee for the K J Wilton Testamentary Trust) and Jennifer (as trustee for the J A Blais Testamentary Trust) became the registered proprietors as joint tenants for most of the East Maitland Property, with the exception that Keith (as trustee for the K J Wilton Testamentary Trust) became the sole registered proprietor of Lot 142 forming the other part of the East Maitland Property.

On 30 April 2023, the administration of the Estate was completed.

On 15 December 2023, the plaintiffs commenced these proceedings against the defendants by filing the summons seeking, inter alia:

As mentioned above, Andrew Lacey of McCabes is acting for the plaintiffs in these proceedings, having also acted for Marie in the Probate Proceedings and the Equity Proceedings.

On 14 February 2024, Slattery J made orders in these proceedings, inter alia, that they proceed by way of pleadings and directed that the plaintiffs file and serve their statement of claim by 8 March 2024, the defendants file and serve any defence by 5 April 2024 and the plaintiffs file and serve any reply by 19 April 2024.

On 19 March 2024, the plaintiffs filed and served the statement of claim in these proceedings.

On 26 April 2024, Slattery J extended the time for the plaintiffs to file and serve any reply to 10 May 2024 and also fixed a timetable for the service of evidence.

On 23 April 2024, each of Gregory, Keith and Jennifer filed and served their respective defences in these proceedings.

On 10 May 2024, the plaintiffs served their reply to the defences of the defendants in these proceedings.

No affidavits have yet been filed by the plaintiffs or the defendants in these proceedings, with the exception of an affidavit of Paul (the first plaintiff) sworn 15 December 2023 which was filed with the summons, and was not read on this application.

The relief sought in the statement of claim in these proceedings is in the same form as that which was sought in the summons, save for the addition of a further or alternative form of relief, being an order that Gregory and Keith pay GHT Holdings an alleged rezoning debt of $56,030.

The facts which the plaintiffs allege in the statement of claim are extensive. In summary, they are essentially as follows:

Based on these essential facts, the claims made in the statement of claim are:

The defence of each of the defendants is essentially in the same terms: admitting that Denis and HG InvestCorp entered into written agreements in the form of the Call Option Deed in August 2017, the Deed of Variation in October 2018 and the Deed of Further Variation in April 2019, but either not admitting or denying that any oral agreements and representations were made.

The defendants also admit that Gregory was assisting Denis with the sale of the East Maitland Property, but deny that Gregory was authorised to make decisions with respect to the East Maitland Property. The defendants admit that Keith, jointly and severally with Gregory, held an enduring power of attorney dated 3 May 2019 on behalf of Denis, but otherwise do not admit that from around 21 December 2019 Gregory was Denis’ agent with respect to the sale of the East Maitland Property.

On 4 April 2024, Mr Lacey as the plaintiffs’ solicitor had a telephone conversation with Marie seeking her consent for McCabes and counsel engaged by McCabes to consider the Relevant Affidavits in the context of these proceedings. On the same day at 12:37pm, Mr Lacey sent an email following up this conversation, asking for Marie’s consent to McCabes considering the Relevant Affidavits in terms of the relevance of their content to the matters in these proceedings. At 1:11pm that day, Marie replied by email relevantly stating:

On 10 April 2024, McCabes sent a letter by email to Travis Partners (the solicitors for Gregory and Keith) outlining their view that there is no obligation on the plaintiffs which precludes the use of the Relevant Affidavits in these proceedings but, for abundant caution and although not strictly required, seeking their consent to a proposed application by the plaintiffs for a declaration that the Relevant Affidavits are not the subject of any obligation owed to the court not to use them for any purpose other than that for which they were given.

Also on 10 April 2024, McCabes sent a letter by email to Mr Brent (the accountant for Denis) asking whether he objected to the use of the Brent affidavit in these proceedings.

On 10 April 2024 at 6:35pm, Travis Partners sent an email to McCabes responding to their letter of even date by requesting a copy of the Relevant Affidavits so that they could take instructions.

On 11 April 2024, McCabes replied by email to Travis Partners, seeking confirmation of certain matters in relation to the Relevant Affidavits before they would be provided to them.

On 22 April 2024, Travis Partners sent a letter to McCabes setting out their view that the Relevant Affidavits are subject to the implied undertaking described in Harman v Secretary of State for Home Department [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 and relevantly stating that whilst the defendants:

On 3 May 2024, the plaintiffs filed the notice of motion making this application in these proceedings seeking the following principal orders:

On 9 May 2024, Mr Brent sent an email to Travis Partners stating that he did not consent to the use of the Brent affidavit in these proceedings.

The fundamental issue raised in this application is whether the Relevant Affidavits are subject to the implied obligation not to use them for any purpose other than that for which they were given. To determine that issue requires me to trace through the main history of the judicial expression of the principle, how it was stated by the High Court of Australia in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 and how it has been subsequently applied by various Australian courts, including by an intermediate appellate court and single judges of this and other courts, in relation to witness statements and affidavits.

I will then detail the submissions made by the parties and, through my consideration of them, apply the relevant principles to the Relevant Affidavits in this case.

In undertaking my determination of the application, I am acutely conscious that it does not lie for intermediate appellate courts or single judges such as me to restate the law pronounced by the High Court. I am bound by the decisions of the High Court and decisions of the Court of Appeal of this court but I must also have regard to decisions of intermediate appellate courts and not depart from them unless I think that they are plainly wrong. My primary task is to consider the language used by the High Court in its reasons to understand its meaning and use the judgments of other courts as no more than a guide to interpreting those reasons.

The principle that I am bound by what the High Court has said but not another court’s interpretation of what the High Court has said is well expressed in Hasler v Singtel Optus Pty Ltd; Curtis v Singtel Optus Pty Ltd; Singtel Optus Pty Ltd v Almad (2014) 87 NSWLR 609; [2014] NSWCA 266, by Leeming JA (with whom Barrett and Gleeson JJA agreed) saying at [98]–[99]:

The doctrine of stare decisis means that I am bound by appellate decisions of the Court of Appeal of this court as a court standing above me in the same hierarchy: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, Gummow J at 504. But I must also have regard to intermediate appellate court decisions, as was made plain in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [135] saying (footnote omitted):

An essential matter which must always be kept in mind in applying the principles stated by a superior court is that any proposition which has been assumed to be correct without argument in the superior court is not binding on a lower court even when it forms part of the ratio decidendi. This was stated in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, by McHugh J at [79]:

Further, in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64, Gleeson CJ, Gummow and Heydon JJ at [13] said (footnotes omitted):

The implied obligation is often referred to as the Harman undertaking in reference to the case of Harman v Secretary of State for Home Department [1983] 1 AC 280. Numerous cases interchangeably refer to the implied obligation as an “implied undertaking” or a “Harman undertaking”.

The notion of an implied obligation, however, has its roots well before Harman was decided, having been stated nearly a century before. In Riddick v Thames Board Mills Ltd [1977] QB 881, Lord Denning MR at 895–896 described the history and form of the implied obligation as resting in the balance that lies between the public interest in compelling discovery to find the truth and the public interest in the protection of the private interests of privacy and confidentiality which are invaded by discovery, saying:

Harman was a case involving an application by the Home Office against Ms Harman for contempt. Ms Harman acted as solicitor for a former prisoner in proceedings against the Home Office concerning his alleged unlawful confinement. During those proceedings, the Home Office gave discovery of documents pursuant to an order of the court after a contested interlocutory application, which included six confidential documents over which the Home Office had unsuccessfully claimed public interest immunity from production. The documents were read out in court during the lengthy hearing. After the hearing, Ms Harman allowed a journalist to inspect the documents, make notes about them and take extracts from them for the purposes of writing a newspaper article.

At first instance, Park J found that Ms Harman was in contempt of court, but imposed no penalty. The Court of Appeal refused leave to appeal from that decision. Although the House of Lords were split three–two in the result (the majority — Lords Diplock, Keith and Roskill — dismissing the appeal, whereas Lords Simon and Scarman would have allowed the appeal), they were all broadly in agreement as to the existence and description of the implied undertaking to the court not to use documents obtained on discovery in proceedings other for the purposes of those proceedings.

Lord Diplock expressed the principle in this way (in masculine language, which might be explained by its times, although it is still odd given the solicitor in Harman was a woman) at 304–305:

Lord Keith said at 307:

Lord Keith emphasised at 308 that:

Lord Keith at 308 further said that the implied obligation:

Lord Scarman (with whom Lord Simon agreed) described the implied undertaking in this way at 312 and 313:

In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19, Mason CJ (with whom Dawson and McHugh JJ agreed) held that the implied undertaking as expressed in Harman and Riddick applied in Australian law to documents produced on discovery in court proceedings and pursuant to directions given in private arbitration. Mason CJ expressed the principle at 32–33 in this way (footnotes omitted):

Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3 is a decision of the Full Court of the Federal Court of Australia. It involved an application to the Federal Court for leave to use an affidavit sworn by the chief executive officer of the respondent in proceedings in the Supreme Court of Victoria. The affidavit had been made, filed and served pursuant to an order of the Federal Court requiring the respondent to state the extent of dissemination of an alleged misleading and deceptive document in lieu of giving discovery of documents on that issue. The Federal Court proceedings then settled at mediation. New proceedings were then commenced in the Federal Court by one of the applicants in the earlier proceedings, which were then transferred to the Supreme Court of Victoria.

Importantly, at [6] the Full Court described the affidavit in this way:

The primary judge concluded that the affidavit remained the subject of legal professional privilege as it had not been read in open court. The Full Court (Branson, Sundberg and Allsop JJ) observed at [15]:

The Full Court allowed the appeal, finding that the affidavit was not privileged once it was filed and served because it was no longer confidential (at [22]–[23]). Before doing so, the Full Court distinguished the decisions on which the primary judge had relied which concerned the evidence anticipated to be given at a hearing in the form of witness statements and the different role of the affidavit in Liberty Funding, saying at [19]–[21]:

The key consideration in the decision in Liberty Funding was therefore that the affidavit which was filed and served was akin to discovery and subject to the implied undertaking. The Full Court proceeded on the basis that leave to use the affidavit was required and there was no argument about whether that was or was not correct. Applying the principle outlined in Coleman and CSR, the implied undertaking was assumed to apply, a determination which is not binding on later courts.

The Full Court expressly stated at [24] that although it was not necessary to analyse the decisions in Smoothdale, Akins and Sevic, there was:

The Full Court at [27] also eschewed consideration of whether statements or affidavits filed in advance of the hearing under procedural directions or orders are provided “under compulsion of law” for the purposes of s 122(1)(c) of the Evidence Act 1995 (Cth).

The balance of the decision in Liberty Funding concerned the principles to be applied in determining whether leave should be granted to release the implied undertaking. I will return to my consideration and application of those principles in dealing with Issue 2 in this judgment below.

In Australia, the guiding authority on the implied obligation is Hearne.

In Hearne, the High Court determined an appeal in an action for contempt by two directors, Mr Hearne and Mr Tierney. The underlying case involved a claim in nuisance against Luna Park Sydney Pty Ltd (the lessee and operator of the famous Luna Park on Sydney Harbour beside the Sydney Harbour Bridge) and Metro Edgely Pty Ltd (a 50% shareholder of Luna Park Sydney Pty Ltd) by nearby residents due to the noise coming from Luna Park during its operations. Mr Hearne was the managing director and chief executive officer of Luna Park Sydney Pty Ltd and Mr Tierney was a director of Multiplex Ltd, the ultimate holding company of Metro Edgely Pty Ltd.

The residents had filed affidavits in support of their case, which had not become evidence in the proceedings, but found their way into a newspaper article. The defendants gave an unreserved apology for the release of the affidavits and an express undertaking not to release any unread affidavits to the media or any other person not properly connected to the proceedings. The court then made orders for further discovery and experts’ reports, pursuant to which a noise impact assessment report and an affidavit sworn by one of the plaintiffs were filed and served in the proceedings on behalf of the plaintiffs. Mr Hearne sent an email to the office of the Minister for Tourism, Sport and Recreation which attached an excerpt from each of the affidavit and the acoustic expert’s report. The plaintiffs then brought the contempt proceedings against Mr Hearne and Mr Tierney.

The primary judge, Gzell J of this court, dismissed the contempt charges on the basis that Messrs Hearne and Tierney had not given any undertaking to the court and neither had any knowledge of the implied undertaking given by Luna Park Sydney Pty Ltd and its solicitors. The Court of Appeal of this court held that the implied undertaking given by Luna Park Sydney Pty Ltd and Metro Edgely Pty Ltd was imposed by law and binding on Messrs Hearne and Tierney, even though they did not know of it, which they breached because they knew that the proceedings were pending and that documents had been produced in accordance with the processes of the court.

There are three important points to keep in mind when considering the judgments of the High Court in Hearne.

In Hearne, Hayne, Heydon and Crennan JJ delivered the principal judgment. On the issue of the implied undertaking, both Gleeson CJ (at [3]) and Kirby J (at [57]) explicitly agreed with the reasons expressed by Hayne, Heydon and Crennan JJ.

At [3] Gleeson CJ agreed with Hayne, Heydon and Crennan JJ that the implied undertaking is now better understood as a substantive legal obligation. Describing the basis for the obligation, Gleeson CJ at [5] said:

Hayne, Heydon and Crennan JJ commence their reasons at [61] with the expression of the central issue, being:

There was no analysis whether or not the implied undertaking even applied to the expert report and affidavit at issue in Hearne. This is explicable because the parties did not put that issue in contest. There was also no controversy over the applicable legal principles. Those principles and the lack of controversy about them are expressed by Hayne, Heydon and Crennan JJ at [95]–[97] as follows (footnotes omitted):

Although I have removed the footnotes in the quoted passages above, it is necessary to consider a number of the cases which are referenced in those footnotes to give greater insight into the basis for the statements which are made.

Before turning to that consideration, it is noteworthy that the joint judgment in Hearne at [105]–[108] also traced the history of the implied undertaking up until Harman to establish it as being regarded as a substantive obligation, commencing with it depending upon an express undertaking, then moving to it being variously described in different cases as a rule, an implied undertaking, a condition and an implied obligation or duty. Hayne, Heydon and Crennan said at [106]–[107] (footnotes and excerpt omitted):

The footnote references from which the rationale for the implied undertaking in [107] are drawn are the statements made by Lord Denning in Riddick and Lord Keith in Harman. In summary, the rationale is the outcome of the balancing of the serious invasion of the private rights in the privacy and confidentiality of the documents and information compelled to be disclosed with the public interest in securing justice.

On the subject of those who are subject to the implied obligation, the joint judgment in Hearne held at [109]–[112] that the primary person bound is the litigant who receives the documents or information from the other side pursuant to the litigious process, as are others to whom documents and information are given such as expert witnesses, litigation funders and those with knowledge of the origins of the material in legal proceedings.

I will now turn to consider the authorities on which the principle of the implied obligation expressed by Hayne, Heydon and Crennan JJ in Hearne at [96] are based.

The principal passage in the judgment is [96], the opening sentence of which conditions the rest of the paragraph with the concept that the party to the litigation must be “compelled” to disclose documents or information in one or more of three ways — (1) a rule of court; (2) a specific order of the court; (3) otherwise.

The footnote which appears after the word “otherwise” at [96] refers to Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 916 [19]; affirmed in [1999] 3 All ER 154 at 169–170 (Bourns appeal).

Bourns involved a party who had disclosed documents on a previous taxation seeking to restrain the party to whom they were disclosed from using them for a collateral purpose. In Bourns at first instance, Laddie J found that the implied undertaking applied to the documents produced during the taxation, even though it was not a disclosure compelled by order or rule of the court. In Bourns, Laddie J at [19] said:

In the same footnote, Hayne, Heydon and Crennan JJ also refer to the Bourns appeal judgment at 169–170, which upheld Laddie J’s finding that the implied undertaking applied to the documents provided in the taxation. In the Bourns appeal, Aldous LJ (with whom Swinton Thomas LJ and Sir Stephen Brown P agreed) at 169–170 said:

It is curious that the Bourns appeal, the very case which the joint judgment in Hearne expressly references in support of the notion that the compulsion need not be sourced in a court order or rule, refers to Prudential Assurance in which Hobhouse J found that witness statements and experts’ reports served pursuant to a direction in accordance with the court rules are not served under compulsion.

The second sentence of [96] in the judgment of Hayne, Heydon and Crennan JJ in Hearne contains a non-exhaustive list of what are described as “[t]he types of material disclosed to which this principle applies”. Clearly this means that the “types of material disclosed” which might be caught by the implied undertaking are not closed.

The last two items in that inclusive list are expressed as “witness statements served pursuant to a judicial direction and affidavits”. Each of those items are separately footnoted in the judgment.

The three cases that are footnoted in support of “witness statements served pursuant to a judicial direction” as part of the inclusive list in Hearne at [96] are Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 510– 511, Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 at 223; [1992] FCA 720 and State Bank of South Australia v Smoothdale (No 2) Ltd (1997) 64 SASR 224 at 229.

The two cases which are footnoted in support of “affidavits” as part of the inclusive list in Hearne at [96] are Medway v Doublelock Ltd [1978] 1 WLR 710; [1978] All ER 1261 (the defendant party misspelt as “Doublock” in the footnote) and Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156.

I will consider each of these decisions in turn.

Central Queensland Cement is a judgment of McPherson J of the Supreme Court of Queensland on the plaintiff’s application for an interlocutory injunction to prevent the use of a witness statement provided by the plaintiff to the defendant pursuant to a practice direction made by the court requiring the service of signed witness statements in advance of the trial. After the service of the witness statement, reports appeared in the press and other media from which McPherson J drew the inference that the authors of those reports had seen the witness statement or at least part of it and that they obtained it from the defendant.

It is notable that this is a judgment on an application for an interlocutory injunction and the reasons are very briefly expressed, barely occupying more than two pages in the authorised report.

At 510 McPherson J described the basis for the interlocutory injunction in the following way:

The defendant argued that the implied undertaking only applied to discovered documents and should not be applied to witness statements. In holding that the interlocutory injunction should be granted, McPherson J rejected this argument at 510–511, saying:

It is noteworthy that whilst Central Queensland Cement (on which the joint judgment in Hearne relied) held that the implied undertaking applied to a witness statement served pursuant to a court rule, the width of the principle expressed in that case (“a document furnished for use for one purpose may not legitimately be used for another”) does not find anything like that formulation in the principle stated in the joint judgment at [96] in Hearne.

Springfield Nominees is a decision of Wilcox J of the Federal Court of Australia. It also involved a witness statement served pursuant to a direction of the court that witnesses’ statements be exchanged before trial. In that case the proceedings settled before the witness statement was tendered as an exhibit in open court. An application was then made by a company that was not a party to those proceedings, seeking leave to use the witness statement in other proceedings.

Wilcox J referred to the cases cited in argument, including Harman and Central Queensland Cement (the latter reference being to the second paragraph, “I am therefore in no doubt … for no other”, quoted above), and said at 223:

The important points arising from Springfield Nominees are that Wilcox J considered a witness statement to be functionally similar to an affidavit and there existed a court rule which prevented access to the court file without leave, that file containing documents brought into existence for the proceedings which should be treated the same. Yet the parties did not put in contest the issue of whether or not that the implied undertaking applied to the witness statement. They both agreed that it did. So, as in Hearne itself, there is a limit on the value of Springfield Nominees as a decision providing a principled basis for determining that question.

Further, as in the case of Central Queensland Cement, the fact that a witness statement provided pursuant to a court direction was the subject of the implied undertaking was relied upon by Hayne, Heydon and Crennan JJ in Hearne at [96], yet the expansive notion that a document provided for one purpose cannot be used for another is not embraced in the principle which their Honours express. Nor does any aspect of that principle depend on what documents can and cannot be accessed on the court file.

Smoothdale is a judgment of the Full Court of the Supreme Court of South Australia on the application of the appellant for an order that the respondent produce seven witness statements which had been brought into existence in proceedings in this court involving the respondent. The respondent had provided those witness statements to the other party in this court in accordance with an order made by this court pursuant to a Practice Note which required the delivery of a witness statement containing the evidence proposed to be led from each witness.

When called upon to provide the witness statements to the appellant, the respondent claimed legal professional privilege in relation to the witness statements. The appellant conceded before the primary judge that the witness statements were privileged but contended that the delivery of the witness statements to the other party in the proceedings in this court was a waiver of the privilege. The primary judge held that there had been no waiver. The question the court had to decide was whether the documents were protected from production on the basis of that privilege.

The Full Court (King CJ, with whom Mullighan and Nyland JJ agreed) held that there was no waiver, express or implied, in the provision of the witness statements. In the course of doing so, King CJ at 229 said:

As stated above, although the Full Court in Liberty Funding at [24] expressed that there was a real issue in relation to the correctness of the decision in Smoothdale, that doubt was said to be limited to the question of waiver at common law by service of statements (or affidavits) of witnesses in advance of the trial.

The Full Court in Smoothdale relied on the decision in Springfield Nominees to express that a recipient of a witness statement given pursuant to an order of the court is subject to the implied undertaking. That question does not appear to have been the subject of contest in Smoothdale. As I have already observed, that question was also not debated by the parties in Springfield Nominees, nor was it debated in Hearne.

In Medway the plaintiff had been involved in earlier proceedings brought by his former wife in the Family Division to vary a maintenance agreement in which he was ordered to swear affidavits of his means. The plaintiff also controlled a company which later brought proceedings in the Queen’s Bench Division and applied for summary judgment. The defendant in those proceedings sought a stay of the proceedings pending the plaintiff’s company providing security for costs, supporting the stay application with an affidavit which exhibited the plaintiff’s affidavits of means from the earlier proceedings, which had been obtained from the wife’s solicitor. The plaintiff then made an application to restrain the defendant from disclosing or making use of his affidavits.

In Medway, Goulding J decided that the disclosure and use of the affidavits compelled to be produced by process of law should be restrained. At 713 Goulding J referred to the passage from Lord Denning MR’s judgment in Riddick at 896 quoted above regarding the competing public interests, and then said at 713–714:

Clearly, the decision in Medway was one grounded in the compulsion under which the plaintiff was required to provide the affidavits.

Addstone is a decision of Mansfield J of the Federal Court of Australia. Mr Macks was the liquidator of the Emanuel Group of companies who applied for a direction as to whether he had the power under the Corporations Law to enter into funding arrangements to conduct litigation against particular creditors in the Supreme Court of South Australia. In the application Mr Macks relied on four affidavits sworn by him and another affidavit sworn by another person. Orders were made that the affidavits and the transcript of hearing were confidential and not available for inspection. The court ordered that Mr Macks had the power sought and gave Mr Macks, the creditors and the contributories of the Emanuel group an extension of time within which to apply to set aside particular transactions. The creditors against whom the action was brought then applied for access to the confidential affidavits, which Mr Macks agreed to provide. The issue to be decided was whether the creditors should only be entitled to use the information provided in their capacity of creditors and not as defendants in the proceedings against them.

Expressing the principles to be applied, in Addstone Mansfield J said at 160:

The decision in Addstone therefore turned on the order to produce the affidavits being equated with discovery.

Since the decision in Hearne, there have been hundreds of cases in which the principle has been applied without hesitation or question. It is, however, troubling that there appears to be judicial quandary over the application of the principle to witness statements and affidavits. In the course of those decisions where uncertainty remains, several have sought to delve behind Hearne to consider the judgments to which it directly refers. The conflicting submissions before me in this case have brought the issue directly to the fore. For that reason, it is necessary to look at each of the differing approaches that have been taken in those judgments.

In Helicopter Aerial Surveys Pty Ltd v Garry Robertson [2015] NSWSC 2104, Brereton J as a single judge of this court considered the application of the principle in Hearne as well as the decisions in Bourns, the Bourns appeal, Central Queensland Cement, Springfield Nominees, Medway and Addstone. The context was an application by the plaintiff company against a former employee for alleged misuse of confidential information, in the course of which proceedings the parties had sworn and served affidavits and the plaintiff had informally produced documents without an order for disclosure.

The two principal issues for determination were whether the implied undertaking attaches to documents produced by way of disclosure by the plaintiff under informal arrangements in the absence of an order for discovery or other compulsory process and, if it did, whether the defendant should be released from it.

In Helicopter Aerial at [9]–[10], Brereton J commenced the analysis of the first issue by referring to the passage of the judgment of Hayne, Heydon and Crennan JJ at [96] in Hearne and observing that:

Brereton J then said at [12]:

At [13]–[16] of Helicopter Aerial, Brereton J noted that the decision in Bourns, which had been footnoted in Hearns at [96], quoted the passage from Bourns at [19] by Laddie J (which is set out above) and also noted that it had been affirmed in the Bourns appeal. Brereton J concluded at [17]:

It was then necessary for Brereton J to determine the defendant’s application for leave to use the affidavits served, and open correspondence sent, by the plaintiff in the proceedings, or the information contained in them, for the purposes of related proceedings. Brereton J commenced the consideration by stating at [30]:

At [31]–[32] Brereton J returned to the expression of principle in Hearne at [96] and the reference to “witness statements served pursuant to a judicial direction and affidavits” for which support for the latter was cited in the decisions of Medway and Addstone. Brereton J reviewed the reasons stated in Medway at [31] (concluding that the affidavit in that case was a form of compulsory disclosure) and Addstone at [32] (concluding that the subject matter happened to be an affidavit, but the circumstances were not that of an affidavit served in the ordinary course of proceedings for use in the hearing). Brereton J then said at [33]:

At [34] Brereton J then considered the decisions in Central Queensland Cement and Springfield Nominees, emphasising that the latter rested on the reasoning in the former to the effect that “the practice directions pursuant to which the witness statements were served were a means of making information available only for the purpose of the proper preparation and conduct of the litigation”.

At [35]–[36] Brereton J reviewed the reasoning in Smoothdale, finding that the crucial observation was that a witness statement remained confidential and privileged in the hands of the party who obtained it from the witness and the implied undertaking applies to witness statements until they are deployed in open court because of their initial confidential and privileged character.

Brereton J contrasted an affidavit with a witness statement, saying at [37]:

Having reviewed Hearne and the decisions on which it is expressed to be based, Brereton J stated at [39]:

Brereton J at [40] observed that the High Court in Hearne did not have to decide whether the implied undertaking applied to the affidavit and expert’s report because it was not in contest.

Having conducted the lengthy review, Brereton J stated that as a single judge his Honour was bound by the statement of principle in Hearne, at [41] saying:

Brereton J then explained at [42] that the issue concerning the characteristics of an affidavit become relevant to the question of whether leave should be granted to use it for another purpose, saying:

The conclusion that Brereton J reached in Helicopter Aerial was that the specified use of the plaintiff’s affidavits by the defendant should be permitted.

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.

In Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208, the Court of Appeal of this court (White JA, with whom Leeming JA agreed) at [25]–[26] declined to determine the point of principle raised by Brereton J in Helicopter Aerial doubting whether the implied undertaking applies to affidavits made and served in the ordinary way in the course of proceedings (as distinct from affidavits made pursuant to an obligation of compulsory disclosure). White JA concluded at [27]:

Sinnott v Chief of Defence Force [2020] FCA 643 involved Ms Sinnott as a former member of the Royal Australian Air Force (RAAF) bringing proceedings in the Federal Court of Australia for judicial review of a decision made by the Chief of Defence Force (CDF) not to permit her re-enlistment as a member of the RAAF. The application, including a request for an extension of time, was filed with accompanying affidavits made by Ms Sinnott and by her solicitor respectively. An order limiting access to the solicitor’s affidavit was made at the first case management hearing.

The judicial review application was resolved without the hearing taking place. The CDF then applied to use the solicitor’s affidavit for the purposes of investigating and considering any security, disciplinary or administrative issues that might arise from its contents and to provide a copy of it to the Queensland Legal Services Commissioner for the purposes of any investigation or consideration of issues.

In Sinnott, Logan J at [23] referred to Liberty Funding and its reliance on Springfield Nominees in respect of the factors to be considered on an application to be released from the implied undertaking and at [24] observed:

At [25] in Sinnott, Logan J quoted the joint judgment in Hearne at [96] and at [26] Logan J concluded that the solicitor’s affidavit was “necessarily filed and served in support of the application for an extension of time, as well as in relation to the substantive application”. Logan J considered at [28] that the document annexed to the affidavit “was an advanced form of discovery of a relevant document”.

Logan J found that the solicitor’s affidavit was subject to the implied undertaking, saying at [29]:

As I have stated above, none of the decisions in Central Queensland Cement, Springfield Nominees, Liberty Funding or Hearne can be regarded as binding decisions on the question of whether or not an affidavit provided in the ordinary course of proceedings is subject to the implied undertaking because that question was not the subject of debate before the court in each case. Further, I do not think that Hearne supports any formulation of the principle that found its expression in Central Queensland Cement and Springfield Nominees to the effect that a document furnished for use for one purpose may not legitimately be used for another. For this reason, I consider the decision in Sinnott to be of limited relevance to what I must determine in this case.

In Frigger v Trenfield (No 5) [2020] FCA 827 Jackson J of the Federal Court of Australia determined an application for contempt brought by the applicants against the respondent trustee of their bankrupt estates for an alleged breach of the implied undertaking in relation to documents attached to an affidavit filed by the applicants in support of their originating application in the proceedings, which the respondent sent to the Australian Taxation Office. Jackson J decided that the affidavit was not subject to the implied undertaking.

At [14]–[18] Jackson J assessed the relevant court rules and practice directions and concluded that the affidavit was not required to be filed by any rule of court or practice direction and “[o]n no view, then, was Mrs Frigger compelled to file an affidavit annexing the two documents that are the subject of the charges”.

Jackson J had regard at [20]–[24] to the principle expressed in Hearne and its references to Harman and Esso, determining at [24] that Hearne supported the proposition that the “implied undertaking does not extend to a document, including an affidavit, filed at a party’s initiative and discretion rather than as a consequence of any compulsion”.

Jackson J then considered what his Honour at [24] called “a competing line of authority”, which was said at [33]–[34] to derive from the statement in Central Queensland Cement that “a document furnished for use for one purpose may not legitimately be used for another”. Jackson J at [36] observed:

At [39] Jackson J rejected the width of the proposition said to derive from Central Queensland Cement, stating:

Jackson J at [40]–[43] referenced the reliance of Springfield Nominees on Central Queensland Cement. Jackson J considered at [46] that as both Central Queensland Cement and Springfield Nominees pre-date Hearne, they must be considered with that in mind and importantly:

The decision in Sinnott was next in Jackson J’s consideration at [47]–[49], noting its reliance on Liberty Funding and concluding that the parties in Sinnott accepted that leave to use the affidavit was required and that Logan J in Sinnott was influenced by the clear requirement in the court rules that the affidavit be filed and by his Honour’s characterisation of the annexure to the affidavit as an advanced form of discovery.

At [50] Jackson J noted that the Full Court in Liberty Funding was not called upon to consider whether the implied undertaking applied to the affidavit, and that the affidavit was filed pursuant to an order of the court specifically requiring the affidavit to be filed dealing with a particular subject. Jackson J concluded that the affidavit had been provided under direct compulsion by the power of the court and it was an application for leave to use the affidavit, when it was common ground that leave was required.

Jackson J said at [52]:

The final case to which Jackson J referred was the decision of Brereton J in Helicopter Aerial, which was the subject of detailed consideration at [55]–[58], with his Honour commenting at [56]–[57]:

In Frigger at [61]–[62], Jackson J rejected the notion that the decision in Central Queensland Cement stood for the proposition that the mere fact that an affidavit is provided for the purposes of litigation means that it is subject to the implied undertaking and a contempt of court to use it for any other purpose. At [62] Jackson J said:

Jackson J then considered at [63] what is meant by the concept of “compulsion” as used in Hearne, rejecting the view that the courts apply it narrowly, as demonstrated by the reference to Bourns in Hearne to support the principle that compulsion can arise “otherwise” than from a rule of court or a specific order of the court.

At [64] Jackson J found that the implied undertaking did not apply the affidavit in question before his Honour, rejecting the argument that it would be enough to amount to compulsion for a litigant to say that it was necessary to file the affidavit to vindicate rights or to defend a claim, and concluding:

Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 involved an application by the Commissioner of Taxation in the Federal Court of Australia for the release from Harman undertakings in relation to affidavits filed in six different proceedings by the same deponent to enable the Commissioner to use those affidavits in separate defamation proceedings brought by that deponent in the Federal Court against the Commissioner.

In Leagou, White J at [14]–[16] outlined the form of the Harman undertaking by reference to the principles expressed in Hearne at [96] and Esso at 33, and stated the rationale for the obligation as explained in Hearne at [107]. At [19], White J considered the question of whether the Harman undertaking applied to the affidavits in question by referring to the classes of documents which may be subject to it as stated in Hearne at [96] (citing Central Queensland Cement, Springfield Nominees, Smoothdale, Medway and Addstone) to include witness statements served pursuant to a judicial direction and affidavits.

White J at [20]–[27] surveyed the difference in the authorities (including Helicopter Aerial) on the question of whether affidavits filed in compliance with orders of the court fixing a timetable for the provision of trial evidence are disclosed under the relevant degree of coercion required to meet the test of compulsion in Hearne, finding that some cases considered that they did meet the test and others did not. White J concluded at [28] that a conservative approach should be taken and it should be assumed that the Harman undertaking was applicable to each affidavit. Because of this assumption, the value of the guidance of Leagou in respect of the issue I must decide is constrained.

His Honour then went on to consider whether the Commissioner should be released from the undertaking, finding that the Commissioner should be released (at [48]).

The Queen, on the application of Davey v Silverstein [2020] VSCA 233 is a decision of the Court of Appeal of the Supreme Court of Victoria. It dealt with an appeal from contempt claims. It has a complicated set of facts, not all of which require exposition for the purposes of this judgment.

Mr Davey was a solicitor in Victoria. He was declared bankrupt in February 2014.

In 2016 Mr Davey commenced debt recovery proceedings, whilst an undischarged bankrupt, in the Magistrates Court against Mr Dessman and Dessco Pty Ltd, alleging that they owed him legal fees for legal services provided to them. In February 2017, Mr Silverstein commenced to act as solicitor for Mr Dessman and Dessco Pty Ltd in the debt recovery proceedings. During the debt recovery proceedings, Mr Davey filed three affidavits.

In September 2016, Mr Davey commenced preliminary discovery proceedings in the Magistrates Court seeking documents from Australian Conservation Services Pty Ltd (ACS), a trustee company of a trust of which Mr Davey was the principal beneficiary, due to his concern that ACS was attempting to sell the main property asset of the trust. During the preliminary discovery proceedings, Mr Davey filed one affidavit in support of his application.

Mr Silverstein acted for ACS in proceedings which it had brought in the Supreme Court of the Australian Capital Territory and also acted for Mr Davey’s father relating to matters concerning the trust.

As part of an effort to ensure that the bankruptcy of Mr Davey was not discharged, Mr Silverstein sent copies of the three affidavits which had been filed in the debt recovery proceedings and the affidavit which had been filed in the preliminary discovery proceedings to the trustee in bankruptcy of Mr Davey.

Mr Davey brought proceedings in the Supreme Court of Victoria seeking orders that Mr Silverstein, Mr Dessman and Dessco Pty Ltd be found guilty of contempt of the Magistrates Court by, amongst other matters, breaching their obligation to the Magistrates Court not to use the affidavits created in the course of litigation, or otherwise without the permission of the court, or the information contained in them for any purpose not directly connected with the conduct of the proceedings.

At first instance, the contempt application was dismissed and Mr Davey was ordered to pay costs. The trial judge found that two of the affidavits in the debt recovery proceedings were filed by Mr Davey to support the summary judgment application as required by the rules of the Magistrates Court and the affidavit in the preliminary discovery proceedings was also filed by Mr Davey pursuant to the rules of the Magistrates Court. The trial judge held that although each of the rules required those affidavits be filed in support of each application, they did not compel each application to be made and therefore those affidavits were not subject to the implied undertaking. The trial judge also found that it was not clear why the third affidavit had been filed in the debt recovery proceedings, that it was not filed in accordance with a court order and therefore held that the affidavit was filed voluntarily in the debt recovery proceedings and was not subject to the implied undertaking.

The joint judgment in Silverstein was given by Kyrou, Kaye and McLeish JJA. At [59] their Honours summarised the issue before the court in this way:

The joint judgment in Silverstein at [60]–[68] contains an analysis of Harman, the implied undertaking stated in it and the subsequent cases which have considered the rationale for it before arriving at the judgment of Hayne, Heydon and Crennan JJ in Hearne at [96]–[97]. In turn, in Silverstein at [69]–[76] the judgments in Bourns, the Bourns appeal, Central Queensland Cement, Springfield Nominees, Smoothdale, Medway and Addstone were analysed and then conclusions arising from them expressed at [77]–[78] as follows:

The appeal judges in Silverstein at [82] also regarded the decision of the Full Court in Liberty Funding to be relevant to their analysis of Hearne, saying (footnote omitted):

The appeal judges in Silverstein at [83]–[84] specifically rejected the proposition as found in Sinnott by Logan J that an affidavit filed and served in support of an application for an extension of time was “necessarily” so filed and served and that Logan J was bound by Liberty Funding and Hearne to hold that such an affidavit was subject to the implied undertaking. The appeal judges stated at [84]:

Applying this reasoning, in Silverstein at [85], [86] and [90] Kyrou, Kaye and McLeish JJA held that because Mr Davey was under no compulsion to make the application for summary judgment in the debt recovery proceedings or the application in the preliminary discovery proceedings, the requirements in the respective rules that each such application must be filed with an affidavit in support did not provide any basis for the implied undertaking to apply to them and there was no contempt.

At [87] in Silverstein, the Court of Appeal specifically contrasted the nature of the affidavits before the court and the documents contained in the cases referred to in Hearne, saying (footnote omitted):

Without reference to Helicopter Aerial, but in a similar vein, in Silverstein at [88] the difference between witness statements and affidavits was drawn in the following terms (footnote omitted):

Continuing on the theme expressed at [77] that the categories of documents caught by the Harman undertaking are not closed, in Silverstein at [89] it was emphasised that it is not necessary to define with precision the limits of the kinds of documents contemplated by the authorities as having been provided under compulsion for the purposes of applying the Harman undertaking and that it would be undesirable to do so.

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 7) [2020] NSWLEC 140 is a decision of Pepper J of the Land and Environment Court of New South Wales. Amongst the questions to be determined by her Honour was whether nine affidavits made in earlier 2012 proceedings in the Land and Environment Court were the subject of the implied undertaking and, if they were, whether leave should be granted to the plaintiffs to allow their use in the later 2019 proceedings. Two of the affidavits had been served but not filed by the defendant and all of the affidavits except one had been filed and/or served by the defendant pursuant to ordinary timetabling directions made by the court.

Pepper J at [40] referred to the Harman or implied undertaking as described in Hearne at [95]–[96] and said at [41]:

At [42]–[45] her Honour set out the relevant principles with respect to the matters which must be considered in determining whether to grant leave to a party to be released from the implied undertaking. I will consider those principles below in relation to my determination of Issue 2 in these proceedings.

The plaintiffs argued that the implied undertaking did not apply to the affidavits as they were not filed under compulsion. At [48] Pepper J stated the uncertainty that has arisen in light of Hearne in the following way:

At [49] Pepper J held that the ordinary timetabling directions of the court “were not compulsive”. Pepper J at [50]–[54] then recorded the submissions made by the plaintiffs as follows:

Pepper J at [55]–[56] referred to the extensive analysis to a similar effect conducted by Brereton J in Helicopter Aerial, concluding at [57] that her Honour endorsed and applied that reasoning.

Her Honour then at [59] considered the “same conclusion” which had been reached in Silverstein at [78] that:

Her Honour at [60] expressed surprise that the “important question of principle” raised in Helicopter Aerial had not been expressly considered by the Court of Appeal of this court (referring to the remarks of White JA in Gwynvill at [25]–[27]), surmising that it might be because the issue invariably focused on whether the undertaking should be released. At [61] Pepper J then referred to the authorities of the Federal Court of Australia (reviewed in Leagou at [22]–[27]), concerning the question of whether or not affidavits filed in compliance with orders of the court fixing a timetable for the preparation of evidence for a hearing, noting that they had not “definitively resolved the controversy”.

Ultimately, at [62] Pepper J decided to adopt the same approach as Helicopter Aerial and Leagou, saying:

Stokes v Toyne [2021] NSWSC 1049 is a decision of Rein J sitting as a single judge of this court. The plaintiff applied for leave to use four affidavits and three experts’ reports which had been served by the defendants in the proceedings, but not read or tendered at the hearing, in other proceedings which had been brought by the defendant in the Federal Circuit Court of Australia (as it was then called) and the District Court of New South Wales. The plaintiff contended that the affidavits and experts’ reports were not subject to the Harman undertaking but, in the event that the court held that they were, sought to be released nunc pro tunc from that undertaking to the extent necessary to adduce that evidence in the other proceedings.

At [18] Rein J stated that the Harman undertaking is not really an undertaking but rather a substantive obligation “which arises as a result of the circumstances in which documents are generated and received and regardless of the intentions of the parties”, referencing Frigger at [19] which in turn cited Hearne at [3], [46], [102] and [105]–[108].

Rein J at [18] then described the joint judgment in Hearne at [96] as being a statement of the “fundamental principle”, and at [19] and [20] referenced the statement of the principle by Lord Scarman in Harman (at 312–313) and Lord Roskill in Harman (at 896) quoting Lord Denning MR’s explanation of the basis of the principle in Riddick resting in the compulsion to invade “a private right to keep one’s documents to oneself” which should not be “pressed further than the course of justice allows”.

At [21] Rein J summarised the position as follows:

In the next portion of [21], his Honour then moved to consider what amounts to documents being produced “under compulsion”, referring to Central Queensland Cement as an authority which holds that witness statements and affidavits required to be filed and served before hearing are regarded as documents produced under compulsion and Helicopter Aerial, Frigger and Verde Terra as authorities for the doubt that has been expressed in the notion that all affidavits filed in the proceedings are subject to the Harman undertaking. The doubts stated and the approach ultimately taken in Helicopter Aerial were specifically quoted by Rein J at [22]–[23].

Rein J at [24]–[25] summarised the conclusions reached in Silverstein that “[t]he cases do not support the conclusion that every affidavit filed in compliance with a rule of court is relevantly produced under compulsion”.

At [26] Rein J stated his Honour’s approach as follows:

In case Rein J was wrong about this conclusion, his Honour then proceeded to consider whether the implied undertaking should be released.

In the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220 is a decision of Derrington J of the Federal Court of Australia which determined an application by the plaintiff, Mr Woods, to use affidavits which had been filed and served by the first plaintiff in those proceedings for the purposes of other proceedings brought in the Federal Circuit and Family Court of Australia. The proceedings in the Federal Court of Australia were brought by Mr Woods on behalf of the second plaintiff company, T & F.S Woods Pty Ltd.

In the Federal Court proceedings, Mr Woods sought leave retrospectively to bring and conduct those proceedings on behalf of T & F.S Woods Pty Ltd. Mr Woods filed two affidavits in support of his application pursuant to a court rule that the originating process must be supported by an affidavit stating the facts in support. Mr Woods also filed a third affidavit but it was not clear why it had been filed. Before any substantive step was taken in the Federal Court proceedings, Mr Woods discontinued them with the consent of the defendant.

At [11]–[16] Derrington J set out a summary of the decisions in each of Harman and Hearne and then analysed the reliance in Sinnott on what was described as an underlying principle in Central Queensland Cement (“a document furnished for use for one purpose may not legitimately be used for another”), about which Derrington J said at [16]:

This is a noteworthy observation, particularly in light of the fact that the joint judgment in Hearne at [96] specifically referenced Central Queensland Cement to support the application of the implied undertaking to witness statements served pursuant to a judicial direction.

Derrington J at [17]–[20] considered Silverstein in detail, arriving at the following conclusions at [21]–[22]:

Derrington J further concluded at [23] that:

Derrington J cited Leagou as support for his Honour’s conclusion, yet White J in Leagou expressly did not decide that issue but proceeded on the assumption that affidavits required pursuant to timetabling orders were compelled and therefore subject to the implied undertaking.

Johnston v Allen [2024] NSWSC 187 is a decision of Parker J as a single judge of this court. It involved earlier proceedings in which an affidavit of the defendant’s solicitor had been filed and served on behalf of the defendant. The affidavit was headed “confidential” and filed without any order of the court. Subsequently, an order was made that the affidavit be made available to all parties in the proceedings. The affidavit was then sent to the other parties. The proceedings then settled. The plaintiff applied to be released from the implied obligation so that the affidavit could be used in complaint proceedings against the defendant’s solicitor. The defendant’s solicitor applied to restrain the use of the affidavit.

At [80] Parker J said:

Parker J at [81] described the circumstances in which the affidavit came to be provided, saying:

His Honour then proceeded to deal with the question of whether leave to release the implied obligation should be given. There was no debate about whether or not the implied obligation applied to the affidavit. It was not an issue put in contest in Johnston. Parker J decided to release the implied obligation.

The plaintiffs’ primary submission is that the implied obligation does not apply to each of the Relevant Affidavits because they were not served under compulsion as they were voluntarily filed and served on 8 October 2021 on behalf of Keith and Gregory pursuant to ordinary timetabling orders for the filing and service of evidence in the Probate Proceedings and the Equity Proceedings.

In support of this argument, the plaintiffs cited the statement of principle in Hearne at [96] which requires that the party be compelled to disclose the documents or information. The plaintiffs say that the description of being “compelled” readily applies to affidavits which a party is obliged to serve, such as in response to an order in support of a freezing order that a party disclose their assets, but does not readily apply to affidavits which are voluntarily served in the usual course of litigation. According to the plaintiffs, for an order that a party provide an affidavit pursuant to timetabling orders there is no requirement that the party in fact provide an affidavit let alone an affidavit in the terms ultimately served.

The plaintiffs submitted that this is consistent with the authorities which are referred to in Hearne as well as the expressed rationale for the obligation. In short, while Hearne lists “affidavits” in the second sentence of [96] as an example of the type of material to which the principle applies, this should not be understood as meaning that any affidavit served attracts the obligation but that the principle can apply to affidavits if they are disclosed by compulsion.

The plaintiffs referred to the decisions in Medway and Addstone which are referenced in Hearne at [96] to support this interpretation of the principle, with Medway involving an express order that the husband disclose his assets in the family law proceedings and Addstone concerning a direction for an affidavit akin to discovery.

The plaintiffs also placed reliance on the rationale for the obligation expressed in Hearne at [107] to ensure that a person experiencing a very serious invasion of privacy and confidentiality does not have placed upon them any burden which is harsh or more oppressive than is strictly required for the purpose of securing that justice is done. The plaintiffs asserted that this rationale does not apply in relation to a person who voluntarily chooses to provide an affidavit in support of litigation.

The plaintiffs specifically relied on the decision in Silverstein and its analysis that the affidavits in that case were not filed and served by compulsion and that the authorities do not support the proposition that every affidavit filed in compliance with the rule of court is produced under compulsion. The plaintiffs also observed that Silverstein cast doubt on the conclusion in Sinnott that an affidavit filed in support of an extension of time application and the substantive claim is subject to the implied obligation. The plaintiffs also relied on the observation in Silverstein that the party was not compelled to make applications for summary judgment or preliminary discovery and therefore the affidavits filed in support of those applications could not be considered to have been compelled.

The plaintiffs also relied on the decisions in Helicopter Aerial, Woods and Stokes which all concluded that affidavits filed pursuant to timetabling orders in the ordinary course of litigation are not to be regarded as having been compelled and are therefore not subject to the implied obligation (although in the case of Helicopter Aerial, Brereton J proceeded on the basis that the implied obligation did apply to the affidavit in question).

The defendants submitted that Hearne is binding High Court authority. They say that even though it was not in contest in Hearne that the affidavit and expert report served pursuant to timetabling orders were subject to the implied obligation, the High Court did not say that the concession was wrongly made. The defendants asserted that in the context of a contempt charge it might reasonably be expected that the High Court would have said so in Hearne.

The defendants said that each of the cases relied upon for the statement of principle by the joint judgment in Hearne at [96] supports the proposition of witness statements and affidavits being protected by the implied obligation. According to the defendants, the following conclusions arise from each of those cases covering a wide range of scenarios, which are inconsistent with the plaintiffs’ primary submission that voluntarily served affidavits do not attract the implied obligation:

The defendants also submitted that the terminology in Hearne at [96] of “witness statements served pursuant to a judicial direction” and “affidavits” could only mean one thing which is that an affidavit, whether or not served pursuant to a direction of a court, is protected by the implied undertaking. It was said by the defendants that this statement in Hearne means that witness statements served pursuant to judicial direction and affidavits are to be regarded as one and the same, so that the authorities which support the implied obligation protecting witness statements equally support the implied obligation protecting affidavits. In the alternative, the defendants submitted that if only witness statements that are produced “pursuant to a judicial direction” are protected by the implied obligation, then, by the absence of those words in Hearne at [96] with respect to affidavits, affidavits have a greater protection than witness statements.

The defendants stated that there is no authority in this court which has declined to follow Hearne in respect of affidavits. The defendants reasoned that the comment made in Stokes by Rein J expressing doubt that affidavits filed and served in the ordinary course of litigation attracted the implied obligation should be considered strictly obiter given that in Stokes it was held that the implied obligation ought to be released in any event. The defendants also submitted that while Brereton J in Helicopter Aerials also expressed doubt that the implied obligation applied to voluntarily produced affidavits, Brereton J rightly considered that he was bound to apply Hearne and did so. The defendants also referred to the decision of Parker J in Johnston as an example of the implied obligation applying to a voluntarily produced affidavit, in circumstances where use of the affidavit was in breach of the obligation. The defendants said that while there was agreement between the parties that the implied obligation applied, if Parker J thought that agreement was wrong in law, it might reasonably be expected that he would have said so.

It was put by the defendants that there is no substantive difference in modern practice between witness statements and affidavits and therefore the implied obligation applies to them in equal measure. It was said that they both:

The defendants submitted that other cases relied on by the plaintiffs, such as Woods and Silverstein, are interstate cases which unlike Hearne itself and the weight of authority in New South Wales, this court is not bound to follow and, in any event, Sinnott is against the plaintiffs’ argument.

The defendants said that in any event the interstate cases relied on by the plaintiffs should not be followed, particularly Silverstein which reasons that affidavits voluntarily produced as a matter of choice are not protected by the implied obligation because the plaintiffs providing such affidavits can simply choose not to pursue those claims. According to the defendants:

The defendants argued that the Relevant Affidavits were served by the defendants in their capacity as executors in support of an application for probate and an equitable claim benefiting the Estate, which they were duty and legally bound to pursue, including in discharge of their fiduciary duties owed as executors and trustees. It was submitted that they could not, without abandoning their assigned role as executors, withdraw their application for probate. The defendants argued that the Relevant Affidavits were not then voluntary in the relevant sense, as they were not, by analogy, in Bourns.

The defendants also submitted that the Relevant Affidavits are the subject of the implied obligation because the plaintiffs were not involved in the Probate Proceedings in any capacity and are strangers to that litigation, a matter which was the subject of comment in Stokes at [26].

The plaintiffs addressed the defendants’ submissions by replying as follows:

In my opinion, this case can be decided by the application of the principle expressed in Hearne at [96], using the approach explained in Hasler that the primary guide to understanding the principle as stated by the High Court is the language of that court’s reasons. To restate, [96] in Hearne relevantly says (footnotes omitted and emphasis added):

I need to determine whether or not each of the Relevant Affidavits was compelled to be disclosed by Keith and Gregory in the Probate Proceedings and the Equity Proceedings by reason of a rule of the court, a specific order of the court or otherwise. If they were not so compelled, then the disclosure of the Relevant Affidavits to Marie and her solicitor (Mr Lacey) in the Probate Proceedings and the Equity Proceedings was not subject to the implied obligation and they are able to be disclosed in turn to the plaintiffs in these proceedings and used by them for the purposes of these proceedings.

The need to find “compulsion” as stated in the principle in the first sentence of [96] in Hearne necessarily conditions the “types of material to which this principle applies” as catalogued in the second sentence of [96]. The ordinary meaning of the language used in [96] does not allow for it to be interpreted in any other way. To come within the principle, the disclosure of the documents or information must have been compelled. It is not enough to simply conclude that a document disclosed is an affidavit because to do so is to ignore the requirement that the disclosure has been compelled.

I am fortified in this conclusion by the rationale for the protection of the implied obligation expressed by the joint judgment in Hearne at [107], leaning on the words used in Riddick and Harman, which is that because the disclosure by compulsion involves a very serious invasion of privacy and confidentiality, the disclosure should be on the terms of the implied obligation so that it is no more than is strictly necessary to secure justice. The protection that exists for the disclosing party lies in an action for contempt against any party who breaches the implied obligation. The seriousness of that possible consequence impacts on the manner in which the principle is articulated.

This means that the defendants’ 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. Reading the expression of principle in Hearne as having that outcome gives too much importance to the mention of “affidavits” in the second sentence of [96] of Hearne over the need to find the compulsion in the expression of the principle in the first sentence of [96]. It would render “compelled” in the first sentence bereft of any meaning. It would also have the very real consequence of subjecting the recipients of affidavits in court proceedings to the constant prospect of alleged contempt against them. This cannot have been intended by Hearne.

Further, as I stated above, in Hearne it was not in contest that the disclosure of the expert report and affidavit provided in accordance with normal timetabling orders were subject to the implied obligation, a matter which was assumed by the High Court. Applying the principle stated in Coleman and CSR means that I am not bound by the High Court’s assumption in my application of the principle in Hearne. I reject the defendants’ argument to the contrary. In this case, I need to find the compulsion for myself.

I have taken into account the analysis of the principle in Hearne and its application in each of Helicopter Aerial, Sinnott, Frigger, Leagou, Silverstein, Verde Terra, Stokes, Woods and Johnston, all of which I have summarised above. In particular, while Silverstein is a decision of an intermediate appellate court, I do not consider that I am bound by it on the application of the principle in Hearne, but I may use it as a guide to my understanding and interpretation of the High Court’s reasons in Hearne. In my opinion, Silverstein did not depart from the principle stated in Hearne but applied it.

In my view, none of the references which are footnoted in [96] of Hearne support the defendants’ arguments. As mentioned in Helicopter Aerial, Frigger, Leagou, Silverstein, Verde Terra, Stokes and Woods, those references do not underpin a finding that any disclosure of an affidavit in proceedings to another party is subject to the implied obligation.

The principle on which the interlocutory judgment in Central Queensland Cement was decided in relation to a witness statement — a document furnished for one purpose may not legitimately be used for another — is not the principle stated in Hearne and is considerably wider. I do not consider that the footnote reference to Central Queensland Cement in Hearne is an endorsement of a different principle. I share the misgivings about that different principle voiced in Frigger at [62]. As stated in Woods at [16], I think that the application of the wider principle from Central Queensland Cement in Sinnott was misplaced.

Springfield Nominees applied the principle in Central Queensland Cement in circumstances where the parties did not put in contest whether the implied obligation applied to a witness statement. Further, Springfield Nominees placed importance on the question of whether a court rule prevented access to the court file, a factor which also does not find its expression in Hearne. I do not consider that the footnote reference to Springfield Nominees in Hearne is an endorsement of some other consideration.

Accordingly, I will apply the principle as stated in Hearne. I will not apply the wider principle from either Central Queensland Cement or Springfield Nominees for establishing whether there is an implied obligation in this case.

I also agree with the observations made in Helicopter Aerial and Silverstein regarding the decisions in Smoothdale, Medway and Addstone which were referenced in Hearne. In summary, these are:

I concur with Brereton J’s observations in Helicopter Aerial at [37] about the crucial difference between a witness statement served pursuant to a judicial direction and an affidavit, which turns on the fact that the witness statement is merely advance notice of the evidence the witness is expected to give and remains confidential unless and until it is deployed, at which time it will become evidence. In contrast, an affidavit is sworn or affirmed as the truth and is the evidence of the witness. Absent a court order or an agreement between the parties, an affidavit is not confidential. It is this difference which explains the separation of those two types of documents in the second sentence of [96] in Hearne. For this reason, I do not accept the defendants’ argument that there is no substantive difference between them.

As I have said, the crucial question that I discern from the principle in Hearne is whether the documents or information were compelled to be disclosed. There are countless ways in which documents or information are provided in legal proceedings. In some circumstances it will be obvious that a disclosure has been compelled by a rule of court, order of the court or otherwise, as stated in Hearne. In other cases, it will not be.

The defendants argue that the Relevant Affidavits cannot be regarded as voluntary because they were served in their capacity as executors in support of an application for probate and an equitable claim that would benefit the estate, which they were duty and legally bound to pursue. They rely on the decision in Bourns, referenced in Hearne, by analogy. But Bourns does not support the defendants’ argument in my view, particularly when consideration is had to the Bourns appeal, which was also referenced in Hearne.

Bourns and the Bourns appeal both concern the question of whether a party is under a duty to disclose documents in a taxation, which is a court process. The finding in Bourns was that there was a compulsory disclosure of private documents for the purposes of the taxation. In other words, the duty arose from the court process which provided the circumstances in which the documents were disclosed, not some wider duty such a fiduciary duty, an executor’s duty or a duty arising from some other source.

I do not think that the question of compulsion in the principle expressed in Hearne is answered simply by considering whether a party is duty or legally bound to undertake a particular step by virtue of some responsibility, position or office that they hold. Otherwise the principle will default into an investigation of why the proceedings were brought or defended, which is no part of the principle expressed in Hearne. In my view, the compulsion expressed in Hearne must arise from the court process in the legal proceedings themselves or, to put it another way as stated in Frigger at [64], “an intrusion by the court into the rights of a party not to disclose private documents which is essential to the obligation”.

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.

I agree with the observations made in Woods at [21]–[22] that the focus of the inquiry in Hearne is on whether the specific documents or information were compelled to be disclosed, not on whether the application to which they relate was compelled. In that regard and with respect, I depart from what was said in Silverstein at [85], [86] and [90] which focussed on whether there was any compulsion to bring the applications to which the affidavits related. In my view, that is not the relevant inquiry.

In my opinion, it is clear that:

It follows that the plaintiffs are also not subject to the implied obligation with respect to the Relevant Affidavits, nor is Mr Lacey as their solicitor in these proceedings.

In case I am wrong in my conclusion on Issue 1 that the implied obligation does not apply to the Relevant Affidavits, I will now consider whether leave should be granted to the plaintiffs to use the Relevant Affidavits in these proceedings.

The parties were in agreement as to the legal principles I should apply in deciding whether to grant leave to release a party from the implied obligation.

Those principles derive from what was said in Crest Homes Plc v Marks [1987] AC 829, by Lord Oliver at 860:

The notion of “special circumstances” in this test was then considered by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; [1991] FCA 354, who said at 578–579:

Having analysed what was said in Crest Homes and Holpitt, the principles applied by the court in deciding whether to release the implied undertaking were then classically stated by Wilcox J in Springfield Nominees at 225 as follows:

This expression has been repeatedly approved and applied by courts dealing with the question since, specifically by the Full Court of the Federal Court in Liberty Funding, Branson, Sundberg and Allsop JJ saying at [31]:

The plaintiffs submitted that “special circumstances” exist in the present case to support a finding that leave to should be granted to enable the plaintiffs to use the Relevant Affidavits in the present proceedings. They relied on the following factors:

The defendants contest that there are any “special circumstances” which would justify a grant of leave in favour of the plaintiffs’ use of the Relevant Affidavits.

The defendants said that the Wilton affidavit and the Blais affidavit were not voluntarily produced. They submitted that they were duty and legally bound to pursue the application for probate in the Probate Proceedings and the equitable claim benefitting the Estate against Marie in the Equity Proceedings.

The defendants submitted that it is a neutral factor that the Relevant Affidavits were served with a view to use in the final hearing, as the implied obligation attaches to affidavits before they are read or documents tendered.

The defendants also contended that the implied obligation should not be released as the Relevant Affidavits traverse highly sensitive information to the family of Denis, including Denis’ financial interests, health issues, family conflict and dying wishes. They say that none of the sensitivity of this information has disappeared with the death of Denis and the executors and beneficiaries of the Estate have a strong interest in not having to relive this unfortunate and sad chapter of their lives.

The defendants argued that Marie has no authority to give consent to the plaintiffs to use the Relevant Affidavits because she is bound by the implied obligation and, in any event, her consent is immaterial as the defendants can publish their affidavits without her approval because it is their own information.

The defendants said that there is a risk, if the Relevant Affidavits are made public, they could potentially be used on social media in a defamatory manner.

The defendants referred to the fact that Keith, Gregory and Mr Brent (who is a non-party) do not consent to the use of their respective Relevant Affidavits in these proceedings. The defendants highlighted that:

The defendants submitted that any relevance of the Relevant Affidavits to the present proceedings is unclear or limited, as:

The defendants accepted that Mr Lacey is in a difficult position as the solicitor for the plaintiffs who has knowledge of the contents of the Relevant Affidavits, but asserted that this it is not a reason to grant leave to release the implied obligation because it is the position in which Mr Lacey has put himself.

The plaintiffs submitted that it is obvious from the contents of the Relevant Affidavits that they have nothing to do with the application for probate but are all about the dispute between Keith and Gregory as executors and Marie. The plaintiffs said that the attempt by the defendants to justify compulsion on the basis that the Relevant Affidavits were required to obtain probate and probate was something they were duty bound to obtain is not supported.

The plaintiffs pointed out that the defendants made no submission dealing with the threshold issue of whether an affidavit served in these proceedings is or is not consistent with what is set out in the Relevant Affidavits. The plaintiffs argued that the only way in which that exercise can be performed is by taking the Relevant Affidavits and comparing them to what might be served and this comparison can only be undertaken if leave to use the Relevant Affidavits is granted. It is this use for which leave is sought.

The plaintiffs contested the notion that the application for leave is premature. They submitted that the defendants’ suggestion seemed to be that the plaintiffs should wait and see what they serve as evidence in these proceedings, but doing so would not solve the existing problem because the threshold issue that will immediately arise as soon as anything is served is — to what extent is it consistent or not? The plaintiffs said that is a legitimate circumstance which would warrant a release from the implied obligation, citing Helicopter Aerial at [48] where Brereton J said although it was not possible to say at that stage of the proceedings whether any of the documents would be highly important to the defence in that case, “they touch on some aspects of it and deal with some matters relevant to them, and at least have the potential to assist in the preparation of his defence”. According to the plaintiffs I should be satisfied that there ought to be a release of the implied obligation because there is the potential for the Relevant Affidavits to assist at a subsequent stage in the proceedings.

The plaintiffs dealt with the asserted sensitivity of the material in the Relevant Affidavits by submitting that any use of the Relevant Affidavits would only be in these proceedings and not for any other purpose. The plaintiffs acknowledged that they could not use the contents otherwise.

The plaintiffs submitted that the Relevant Affidavits have the potential to be quite important if the defendants’ evidence in these proceedings does not describe any of the conversations in detail, as inferences may be drawn based upon statements in the Relevant Affidavits. Using the example of the Brent affidavit, the plaintiffs said that Mr Brent has admitted that during the decade to 2020 (a critical period in the plaintiffs’ case), he was discussing various matters with Denis that included the options. The plaintiffs submitted that if Mr Brent does not say anything about what was said in those discussions or denied them in an affidavit in these proceedings, then it may well be that inferences can be drawn about that fact.

I will address each of the factors relevant to the exercise of my discretion whether I would grant leave to the plaintiffs to use the Relevant Affidavits for the purposes of these proceedings.

Each of the Relevant Affidavits is clearly a solemn document on which each deponent (Keith, Gregory and Mr Brent) has made an oath or affirmation (as the case may be) before a person authorised to administer that oath or affirmation stating that the contents of it are true.

This factor is against the grant of leave to use the Relevant Affidavits for the purposes of these proceedings, although of slight weight.

Each of the Relevant Affidavits was made for the purpose of standing as the evidence of the deponent who made it at the hearing of the Probate Proceedings and the Equity Proceedings. As I have found above in relation to Issue 1, each of the Relevant Affidavits was voluntarily made.

This is a neutral factor in the exercise of my discretion.

Each of Keith, Gregory and Mr Brent do not consent to the use of the Relevant Affidavits for the purposes of these proceedings but none of them had pointed to any particular prejudice that would arise for them from that use or articulated any real basis for their objection.

On balance, this is a neutral factor in the exercise of my discretion.

The Relevant Affidavits were created for the purposes of the Probate Proceedings and the Equity Proceedings and would be expected by each of the deponents to have been read in open court at the hearing of those proceedings. Once read in open court, the Relevant Affidavits would not be subject to the implied obligation, as the terms of the principle expressed at [96] in Hearne make clear.

This factor favours the grant of leave to use the Relevant Affidavits for the purposes of these proceedings.

Although the Relevant Affidavits deal with events leading up to and after the death of Denis which may be the subject of distress to his family and friends (including Keith, Gregory and Mr Brent), there is no particular personal data or commercially sensitive information about the financial affairs of Denis contained within them which the defendants say will cause any particular harm or prejudice.

The fact is that the events of any personal sensitivity which are the subject of the Relevant Affidavits are the same events which are the subject of these proceedings. Those events are going to be scrutinised in these proceedings.

The plaintiffs only sought leave to use the Relevant Affidavits for the purposes of these proceedings and therefore I do not consider that the granting of leave to enable them to do so would cause any more harm or distress than the fact of these proceedings already does.

On balance, this is a neutral factor in the exercise of my discretion.

The Relevant Affidavits came into the hands of the solicitor for the plaintiffs in these proceedings, Mr Lacey, when he was acting as the solicitor for Marie in the Probate Proceedings and the Equity Proceedings. Mr Lacey has the Relevant Affidavits with the consent of Marie. There is no impropriety of any sort alleged in relation to the manner in which they were received.

This is a neutral factor in the exercise of my discretion.

In my view, if the implied obligation existed in relation to the Relevant Affidavits, unless leave was granted the plaintiffs would not be permitted to use the Relevant Affidavits in any way, even for the purposes of conducting a comparison of their contents with any affidavits which are filed and served by the defendants in these proceedings. I am satisfied that the contents of the Relevant Affidavits may have some relevance to the events which are in issue in these proceedings, particularly:

Further, because the plaintiffs’ case in these proceedings significantly depends on allegations of oral representations, the contents of the Relevant Affidavits may become relevant to the consistency of evidence about those conversations in subsequent affidavits made by the defendants in these proceedings.

In my view, to paraphrase what was said in Helicopter Aerial at [48], I am satisfied that the contents of the Relevant Affidavits touch on some aspects of the plaintiffs’ case, deal with some matters relevant to it and have the potential to assist in the preparation of it.

I reject the defendants’ submission that this application is premature and the plaintiffs should wait to see what evidence is filed and served by the defendants in these proceedings and then make the application. In my view, the application has been made at an appropriate time so that the plaintiffs can know whether they can take into account the contents of the Relevant Affidavits when they consider the contents of any future evidence. Waiting to receive the defendants’ evidence in these proceedings or, worse still, until one or more of the deponents of the Relevant Affidavits give oral evidence at the trial before making this application would run straight into the strictures of the implied obligation not to use the Relevant Affidavits for any purpose other than the Probate Proceedings and the Equity Proceedings.

The defendants were not able to satisfactorily explain how the implied obligation in relation to the Relevant Affidavits (assuming it applied) could be navigated once the evidence of the defendants in these proceedings was received by the plaintiffs.

I consider that achieving justice in these proceedings requires that the plaintiffs be permitted to use the Relevant Affidavits for the purposes of these proceedings.

In my view this is a factor which heavily weighs in favour of the grant of leave to use the Relevant Affidavits for the purposes of these proceedings.

If, contrary to the conclusion I have reached in relation to Issue 1 above, I had been required to decide whether to grant leave to the plaintiffs and their legal representatives to use the Relevant Affidavits for the purposes of these proceedings, for the reasons stated above I would have done so.

For the reasons stated above, I propose to make the following orders: