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[2025] NSWSC 1451

Western Sydney University v Kingston

Plaintiff released from implied undertaking

Catchwords

CIVIL PROCEDURE — Implied undertakings — Release from — Special circumstances — To assist in criminal prosecution

Cases cited

  • Ashby v Slipper (No 2)[2016] FCA 550
  • Hearne v Street(2008) 235 CLR 125
  • Prime Finance Pty Limited & Ors v Randall & Ors[2009] NSWSC 361
  • Qantas Airways Limited v Persons Unknown (No 2)[2025] NSWSC 1328
  • Springfield Nominees Pty Ltd v Bridgelands Securities Ltd [1992] 38 FCR 217

Legislation cited

  • Court Suppression and Non-publication Order Act 2010 (NSW)

Judgment

Summary

  1. [1]

    By a notice of motion dated 4 November 2025, the plaintiff, Western Sydney University (WSU), seeks to be released from its Hearne v Street (2008) 235 CLR 125 obligation (undertaking) nunc pro tunc in respect of documents produced in response to subpoenas issued to two internet service providers, Telstra and Superloop, (ISPs). WSU wishes to disclose the contents of the documents to New South Wales Police and the Office of the Commonwealth Director of Public Prosecutions (DPP) for the purposes of any investigation or prosecution by those authorities, in particular in relation to the defendant, Ms Kingston.

  2. [2]

    These proceedings were originally commenced against persons unknown and then continued against Ms Kingston in relation to a cyber security incident against WSU. The proceedings are currently stayed on a conditional basis by orders made by Hmelnitsky J on 12 August 2025. The proceedings have been stayed because Ms Kingston is the defendant in criminal proceedings arising out of the same conduct that forms the subject matter of these proceedings. The present motion therefore seeks that the stay be lifted only to the limited extent necessary to permit WSU to make the present application, including for a suppression and non-publication order.

  3. [3]

    The evidence today discloses that in the course of these civil proceedings the general nature of the information contained in at least some of the documents has already been disclosed by WSU to the Police and the DPP. No criticism is to be made of that, however for more abundant caution and entirely properly WSU seeks an order nunc pro tunc, so no issue can be raised in relation to what already may have been disclosed.

  4. [4]

    The information contained in the documents, which the Court has seen, is on its face relevant to the issues that are likely to arise in the prosecution of Ms Kingston. For the reasons which follow, with a slight modification in relation to the prosed non-publication regime, the Court will make the orders sought in the motion.

  5. [5]

    Ms C Gleeson of Senior Counsel appeared with Mr T Scott of Counsel for WSU. The Court expresses its gratitude to them for their very thorough written submissions and careful oral exposition of the issues. In circumstances I next explain, there was no appearance for Ms Kingston.

Notice to Ms Kingston

  1. [6]

    Before turning to a consideration of the merits of the application, I should observe that there was no appearance today for Ms Kingston. The evidence discloses that she is subject to bail conditions which include having no contact with any representative of WSU. This obviously somewhat complicates WSU’s ability to serve material on Ms Kingston because she is now unrepresented. I am satisfied by the evidence that appropriate steps have been taken to serve the material on her at what I take to be her residential address and that service appears to have been successful based upon Australia Post delivery records.

Consideration

  1. [7]

    The principles in relation to releasing a party from its undertaking are not in doubt. The leading case is Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, a decision of Wilcox J. His Honour there identified the basis on which the Court could release an applicant as being the demonstration of "special circumstances". If the Court does find such special circumstances, then it has a broad discretion as to whether or not it should release the applicant.

  2. [8]

    It is also not controversial that "special circumstances" does not require extraordinary factors, but rather involves an inquiry as to whether there is a good reason for the release from the undertaking. That inquiry necessarily involves balancing the public interest between, on the one hand, the importance of parties maintaining the confidentiality of information obtained pursuant to compulsion in the course of proceedings against, on the other hand, the public interest, in this case, in assisting prosecutorial authorities to enforce the criminal law.

  3. [9]

    An important point to note is that while there is obviously a public interest in assisting in the prosecution of alleged criminal offences, the fact that such proceedings are on foot does not automatically give rise to an entitlement to be released from the undertaking. As was observed by Flick J in Ashby v Slipper (No 2) [2016] FCA 550 at [12]:

  4. [10]

    The observations of Johnson J in Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361 at [39] are to like effect.

  5. [11]

    Nevertheless, in my respectful opinion, where potential use in criminal proceedings is the reason why relief is sought from the undertaking, that is a powerful factor in the ordinary course in favour of the release being granted. As Ms Gleeson SC fairly conceded, much could depend upon the nature of the documents that are being sought to be released. There is obviously a material difference between an application to be allowed to release incriminating documents produced by the person accused of the crime and documents produced by third parties in the ordinary course of business.

  6. [12]

    This case concerns documents produced by third parties. One of those parties, Superloop, has indicated that it does not oppose the application and the release of the material to the prosecuting authorities. Telstra has also raised no objection to that course.

  7. [13]

    Turning to the merits, I accept that special circumstances are established in this case and that there is good reason for the release from the undertaking. I accept WSU’s submissions to this effect:

    1. (1)

      There is a public interest in the investigation and prosecution of serious criminal conduct. As I observed recently in Qantas Airways Limited v Persons Unknown (No 2) [2025] NSWSC 1328 at [46], in the current environment there is a real public interest in meeting the challenges to commerce and society generally posed by hacking and other cyber-attacks;

    2. (2)

      It is obvious that there is a significant factual overlap between the contents of the documents and the matters the subject of the criminal charges. The material clearly goes to the course of what occurred and by whom the conduct was undertaken and is therefore, on its face, likely to make a meaningful contribution to the proper administration of justice in the criminal proceedings;

    3. (3)

      Referring to the observation I made in [11] above, the documents are not produced by or belong to Ms Kingston. The information in them was maintained by the ISPs in the ordinary course of business and was created for the purpose of demonstrating a connection between the service provided by the providers and a particular subscriber. Insofar as it may be said that there is any confidence in the documents or prejudice to the defendant, I accept the submission that that is readily outweighed by the public interest identified in the preceding paragraphs; and

    4. (4)

      The ISPs raise no objection to the proposed release of the documents to the authorities.

  8. [14]

    Finally, I accept WSU’s submission that, given their content and the ongoing prosecution, this is an appropriate case for the making of non-publication and suppression orders limited only to the documents themselves for a five year period. Nevertheless, the Court must be astute to keep to the necessary minimum the encroachment on the open justice principle made by such orders. It is for that reason that, while I accept that in the ordinary course a period of five years is appropriate, I have amended the proposed orders to allow for the possibility that the documents may be deployed before that date in the course of any prosecution. Even if the material is not so used, the reason for non-publication and suppression will be spent at the conclusion of the prosecution. Therefore, if that occurs before a period of five years from today, the orders which I am about to make will terminate at the conclusion of that prosecution.

Conclusion

  1. [15]

    The orders of the Court are:

    1. (1)

      To the extent necessary, the stay of this proceeding which was ordered on 12 August 2025 be lifted for the purpose of making the orders set out below.

    2. (2)

      In respect of the documents listed in Schedule 1 to these orders, the Plaintiff be released nunc pro tunc from the implied undertaking that such documents only be used for the purposes of this proceeding, such that the Plaintiff is permitted to use the said documents for the purpose of providing them, or referring to or disclosing their contents, to the New South Wales Police Force and the Office of the Commonwealth Director of Public Prosecutions in connection with any investigation or prosecution by those authorities.

    3. (3)

      Pursuant to s 7(b) of the Court Suppression and Non-publication Order Act 2010 (NSW) (Act) and on the grounds in s 8(1)(a) and (c) of the Act, that until the first to occur of (a) the conclusion at first instance of any prosecution of the defendant in connection with the events the subject of these proceedings or (b) 5 years from the date of the order there be no publication or disclosure of pages 32-33, 50-51, 61-65 and 75-85 of Exhibit-MDR-21 with such order, pursuant to s 11 of the Act, to apply both within New South Wales and in all States and Territories in Australia.

    4. (4)

      No order as to costs.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.