Johnston v Allen

1. [1]

   Before the Court are competing applications concerning the use of an affidavit and other documents produced to the Court in proceedings which were later settled. The applications arise out of the implied obligation of confidentiality which attaches to those documents (and, in the case of the documents other than the affidavit, an express confidentiality order made by the Court). One application seeks to enforce the obligations by way of injunction and consequential orders. The other applications seek to have the Court rule that the obligations have not been breached, or, if they have, to make an order nunc pro tunc releasing the affected parties from those obligations.

2. [2]

   A preliminary comment on terminology: the older authorities (and in particular the leading English decision, Harman v Secretary of State for the Home Department [1983] 1 AC 280) proceeded on the basis that a party to proceedings in which documents were compulsorily produced gave an implicit undertaking of confidentiality as a condition of access to those documents. The High Court has adopted a simpler analysis which sees confidentiality as an obligation arising by operation of law upon access to such documents, without the need for an undertaking: Hearne v Street (2008) 235 CLR 125 at [105]-[108]. Therefore, I refer in this judgment to implied obligations, rather than implied undertakings, as to confidentiality.

Background and procedural history

1. [3]

   The principal proceedings were commenced in August 2021. A settlement was reached in September of that year and the file was formally closed in November.

2. [4]

   The parties were all members of the same family. The family matriarch was Phyllis Ruth Johnston (“Mrs Johnston”). At the time the proceedings were begun she was 98 years old and living in an aged care facility at Broulee. Mrs Johnston’s husband had pre-deceased her. Together they had had four children, all of whom were still alive: Jillian Suzanne Allen, née Johnston (“Mrs Allen”); William (“Bill”) Johnston; Bruce Johnston; and Stephen Keith Johnston.

3. [5]

   The trigger for the proceedings was a transaction between Mrs Johnston on the one hand and Jack Edward Johnston and his wife Andrea Elsie Scroope (“Ms Scroope”) on the other. Mr Jack Johnston is the son of Mr Stephen Johnston and was thus the grandson of Mrs Johnston. The transaction involved the transfer of Mrs Johnston’s home to Mr Jack Johnston and Ms Scroope for $2.1 million, with Mrs Johnston providing finance for the purchase by means of a vendor finance agreement. The transfer was registered on 6 August 2021. A contract of sale, purportedly signed by Mrs Johnston, was dated 4 August.

4. [6]

   The contract named the conveyancer acting for Mrs Johnston as BB Smith Conveyancing. This is the business name of a conveyancing firm operated by Gabriel Helena Smith. The firm is affiliated with a solicitors’ firm known as BB Smith & Co. That firm is conducted by a sole practitioner, Bede Augustine Webster. Mr Webster is Ms Smith’s husband. He says that he knew Mrs Johnston socially and was retained by her in connection with the sale in July 2021. It is however unclear whether Mr Webster actually opened a file at that point. He may simply have referred the matter to his wife.

5. [7]

   At the time, Mrs Allen and Mr Stephen Johnston held an enduring power of attorney from Mrs Johnston. It seems that Mrs Allen, at least, played some part in administering her mother’s affairs, or helping her administer them, pursuant to that power.

6. [8]

   When Mr Bruce Johnston learned of the transaction, he formed the view that his mother had been taken advantage of. According to Mr Johnston, at the time of the transaction, his mother’s memory and other mental faculties had been fading for some years. He considered that the transfer price was less than the market value of the property. Mr Johnston retained Ms Lauren Gidley of Glass Goodwin, solicitors, to act for him. Ms Sharna Clemmett, of counsel, was briefed.

7. [9]

   At the time, Mr Johnston was suffering from cancer. In order to relieve him of the burden of dealing directly with Glass Goodwin, the retainer agreement provided that they could communicate with him through his daughter, Amber Johnston (named in the agreement as “Amber Eastwood”) (“Ms Johnston”), or her husband Tim Eastwood. Thereafter, Ms Johnston, at least, appears to have been party to correspondence from Ms Gidley about the matter. Over time she seems to have given instructions as well.

8. [10]

   The proceedings were commenced by summons filed on 13 August 2021. The summons named Mr Johnston as the plaintiff and Mrs Johnston as the defendant. The summons sought both interlocutory and final relief.

9. [11]

   The final relief sought was relevantly:

10. [12]

    The interlocutory relief sought included orders for the appointment of a receiver to Mrs Johnston’s estate. The receiver was proposed to be the same person nominated to be appointed manager in the final orders (Ms Anthea Kennedy or the New South Wales Trustee and Guardian, to which I will refer as the “State Trustee”).

11. [13]

    The interlocutory relief sought also included orders for the production of documents by Mrs Allen, Mr Jack Johnston and Ms Scroope. Specific directions were sought for the receiver to review the documents produced pursuant to the orders for production to which the Court might grant access, and to consider whether proceedings should be commenced in Mrs Johnston’s name to seek relief against the transaction with Mr Jack Johnston and Ms Scroope. The documents sought by way of order for production included: the contract; the transfer; the vendor finance agreement; and the contact details of, and any advice provided by, any solicitor who acted for Mrs Johnston on the transaction.

12. [14]

    Mr Bruce Johnston’s representatives commenced the proceedings by approaching the Court (constituted by Lindsay J), ex parte, on 13 August (a Friday). Ms Clemmett appeared as counsel, instructed and accompanied by Ms Gidley. The summons, an affidavit of Ms Gidley, a further affidavit of a Tamara Goodwin, and other documents, were filed in Court.

13. [15]

    His Honour made orders making the summons returnable on the following Tuesday, 17 August, at 9 am. The time for service was abridged, and, in lieu of personal service on Mrs Johnston, his Honour ordered that the summons and supporting material be served on Mrs Allen and Mr Stephen Johnston as Mrs Johnston’s (ostensible) enduring attorneys. His Honour also made a notation identifying the following questions as possibly being the subject of consideration on the return date:

14. [16]

    Orders 8 to 11 provided for the production of documents by Mrs Allen, Mr Jack Johnston and Ms Scroope as referred to in notation (d). The orders permitted the documents to be produced to the Court in advance of the hearing by being emailed to his Honour’s tipstaff. The orders relevantly stated:

15. [17]

    Mr Webster, according to what he later told Lindsay J (see [27] below), became aware of the commencement of the proceedings and the orders made by Lindsay J later on 13 August. He also seems to have been provided with the Court documents by Ms Gidley. Over the weekend he had a conference with Mrs Allen. At 1:21pm on 16 August (the following Monday), Mr Webster sent an email to his Honour’s Associate/Tipstaff. The subject line was “CONFIDENTIAL NSWSC 2021/(no file number provided) JOHNSTON V JOHNSTON”. Attached to the email were ten PDF documents, three of which are the subject of the present applications.

16. [18]

    In his email Mr Webster wrote:

17. [19]

    Later that afternoon, at 5:17 pm, Mr Webster filed a notice of appearance in the proceedings. At 8:09 pm, he filed an affidavit in the proceedings. It is this affidavit which is the subject of the present applications.

18. [20]

    Both the notice of appearance and the affidavit were filed using the Court’s electronic filing system. Both of them were filed by Mr Webster purportedly on behalf of Mrs Johnston, then the sole defendant in the proceedings.

19. [21]

    The affidavit was headed “Confidential Affidavit of Bede Webster”. The second page was also headed “Confidential Affidavit”. The body of the affidavit indicated that Mr Webster was making it by way of response to Ms Gidley’s affidavit of 12 August. Mr Webster stated at [3]:

20. [22]

    The affidavit canvassed the circumstances in which the transaction involving Mrs Johnston’s house had occurred. I will not try to set its content out in any detail. Its thrust, albeit in conclusory form which probably would not have survived objection, was that the transaction had been a proper one from Mrs Johnston’s point of view, and that there was no indication that Mrs Johnston was in need of protection.

21. [23]

    On 17 August the matter was mentioned before Lindsay J. The hearing took place by telephone link. Ms Clemmett, instructed by Ms Gidley, appeared for Mr Bruce Johnston. A solicitor appeared for the State Trustee. Mr Webster also attended the hearing remotely. Lindsay J confirmed Mr Webster’s appearance at the outset, as follows:

22. [24]

    Lindsay J noted that orders for production, in the nature of subpoenas, had been made, ex parte, on the previous occasion. His Honour indicated that his chambers had received two emails by way of response to those orders. The first was that of Mr Webster (described at [17] above). His Honour noted that Mr Webster had indicated in the email that he acted on behalf of Mrs Allen. The other email had been sent by a solicitor who indicated that she produced documents on behalf of Mr Jack Johnston and Ms Scroope.

23. [25]

    Lindsay J sought to resolve the uncertainty about who Mr Webster was appearing for, given the apparent inconsistency between his email and his appearance as confirmed, at the outset. The transcript records the following:

24. [26]

    Lindsay J then queried whether the summons and supporting documents had been served on Mrs Johnston as the defendant. Ms Clemmett made it clear that they had not been. The transcript continues:

25. [27]

    His Honour then asked Mr Webster if he had discussed the proceedings with Mrs Johnston herself. The transcript continues:

26. [28]

    It therefore appears that, notwithstanding that Mr Webster had filed an appearance and an affidavit on behalf of Mrs Johnston, he did so without having obtained instructions or even having communicated with her. It does appear that Mr Webster had spoken with Mrs Allen, and had obtained instructions to produce the documents to the Court on her behalf.

27. [29]

    Lindsay J then suggested to Mr Webster that he might want to be careful about speaking with Mrs Johnston given his involvement in the transaction:

28. [30]

    His Honour then asked Mr Webster if it was known whether Mrs Allen had spoken to Mrs Johnston about the proceedings. Mr Webster indicated that he did not know.

29. [31]

    His Honour then proceeded to “deal with the documents that have been produced on subpoena”. His Honour marked the bundles for identification. The first was that sent by the solicitor for Mr Jack Johnston and Ms Scroope, at 12:44pm on 16 August (noted at [24] above), which was marked MFI #S7. His Honour noted that they were produced without objection. The second was that sent by Mr Webster on 16 August (see [17] above), on behalf of Mrs Allen, and this was marked MFI #S8. His Honour continued:

30. [32]

    His Honour then asked Mr Webster if he had filed an appearance, and Mr Webster confirmed that he had. His Honour also noted that:

31. [33]

    His Honour then asked Ms Clemmett if there was any application by her client to have access to the documents. The transcript continues:

32. [34]

    His Honour then made the following notation and orders:

33. [35]

    After making the orders his Honour directed his tipstaff to “forward the documents”. This was done at 9:28 am (apparently in the course of the hearing). Mr Webster’s email, including the ten PDF attachments, was forwarded by email to Ms Gidley and Ms Clemmett.

34. [36]

    Ms Clemmett indicated that her instructions were to seek to appoint a receiver as soon as possible, to protect the property from further dealings. But Lindsay J noted that there was a caveat on the property and suggested that Ms Clemmett and Ms Gidley consider the documents which had been produced, and whether further documents should be sought, before going further. His Honour also suggested that the plaintiff’s legal representatives might wish to consider the joinder of Mrs Allen, and other parties, and also the possibility of applying for an order for medical examination of Mrs Johnston. In the end, the proceedings were adjourned for two days, until 19 August, for further mention.

35. [37]

    In accordance with his Honour’s orders, the proceedings returned before Lindsay J on 19 August. The transcript of the hearing is not in evidence (the record of proceedings notes that the hearing occurred by telephone conference without a court reporter), and there was no evidence before me about what was said on that day.

36. [38]

    Ms Clemmett and Ms Gidley attended the hearing, as before, on behalf of Mr Johnston. The New South Wales Trustee and Guardian was represented on a “watching brief” basis. Mr William Johnston (not at that point formally a party) was represented by counsel. There was no appearance for Mrs Johnston, Mrs Allen or Mr Stephen Johnston. Mr Webster did not appear in this hearing or indeed any later ones.

37. [39]

    A notation was made recording agreement between Mr Bruce Johnston and Mr William Johnston that it would be in Mrs Johnston’s interests for her to be the subject of an independent expert medical assessment as soon as one could be conveniently organised. His Honour reserved, for further consideration, any question about appointing such an expert, and the costs associated with that. The proceedings were adjourned until 30 August.

38. [40]

    The other orders made at the hearing were purely procedural. Mrs Allen was made the second defendant, Mr Stephen Johnston the third defendant and Mr William Johnston the fourth defendant. Mr Bruce Johnston was given leave to file an amended summons, which was to be served (subject to further order) on the defendants, other than Mrs Johnston. Leave was also granted to make subpoenas for the production of documents and notices to produce could be made returnable on 26 August.

39. [41]

    For reasons which do not appear in the evidence, further orders were made for the disclosure of documents. An order was made that Mr Webster’s affidavit of 16 August be made available to all parties to the proceedings, and to the State Trustee, but reserving the timing of its provision to Mrs Johnston herself. An order was also made for the disclosure of specified documents, including the affidavit, and the other documents so far produced and marked for identification, to Mrs Allen and Mr Stephen Johnston. Later that day, pursuant to the first order, copies of the affidavit were sent to Ms Gidley, Ms Clemmett, and representatives of the State Trustee and Mr William Johnston.

40. [42]

    The next time the matter came before the Court was a mention on 30 August. This was followed by another mention on 10 September. In the end a settlement was reached under which it was agreed that an independent solicitor would be appointed to manage Mrs Johnston’s estate, the transfer of the property to Mr Jack Johnston and Ms Scroope would be reversed, and the property would be sold on the open market. On 23 September, the Court (again constituted by Lindsay J) made orders in chambers joining Mr Jack Johnston and Ms Scroope as additional defendants and giving effect to the settlement.

41. [43]

    The proceedings were adjourned for directions on 25 November, presumably to allow the settlement to be put into effect. On that occasion it was reported that the property had been sold at public auction. Lindsay J dealt with the costs of the proceedings and made a notation that, subject to any further application for directions or consequential orders, the proceedings were complete. The file was then closed.

42. [44]

    About three months later, in February 2022, Ms Johnston instructed Ms Gidley to make a complaint to the Office of the Legal Services Commissioner (“OLSC”) against Mr Webster concerning his involvement in the transaction and in the proceedings. Ms Gidley retained Ms Clemmett to draft the complaint.

43. [45]

    For this purpose, a fresh brief was sent to Ms Clemmett. The brief contained, among other documents, four documents with which the present applications are concerned. One was Mr Webster’s affidavit of 16 August 2021, to which I will refer as the “Webster Affidavit”. The other three, to which I will refer as the “Transaction Documents”, had been produced by Mr Webster on behalf of Mrs Allen on 16 August. They were: the PEXA settlement statement; the sale contract; and the vendor finance agreement.

44. [46]

    According to Ms Clemmett, she undertook the drafting work in March. It seems to be accepted that for this purpose she made use of the Webster Affidavit and the Transaction Documents.

45. [47]

    Although the evidence does not explain this in any detail, Ms Gidley presumably had copies of these documents on her file from the previous August. I was informed from the Bar Table that she did not open a new file concerning the complaint, but continued to use the same file for the purpose of that matter.

46. [48]

    A draft complaint was prepared by Ms Clemmett in accordance with her instructions, but was not completed and filed on behalf of Mr Bruce Johnston. Ms Johnston’s affidavit makes it clear that she had the carriage of the matter at that stage; she stated that she did not wish to be distracted from spending time with her father during the final stage of his illness.

47. [49]

    Mr Johnston died from his cancer in June 2022. In his will, he appointed Ms Johnston and her brother, Mr Jake Johnston, as his executors.

48. [50]

    Then, in August 2022, Ms Johnston proceeded to lodge a complaint to the OLSC against Mr Webster. This step was taken by Ms Johnston herself, without the involvement either of Ms Gidley or Ms Clemmett. But although Ms Clemmett’s draft does not appear to be in evidence, it seems to be common ground that the wording of Ms Johnston’s complaint followed that draft.

49. [51]

    The complaint consisted of a seven page form, with a document setting out details of the complaint attached. Ms Johnston filled out her details under the heading “Person who is making the complaint”. She did not give details of “Other Complainants”. A section of the form headed “Representative Details” asks whether the complaint is being made on behalf of another person, and Ms Johnston answered it, no. The next question asks if the person filling out the form is authorised to make the complaint on behalf of this person, which Ms Johnston also answered, no.

50. [52]

    It is common ground that in lodging the complaint Ms Johnston was acting in her personal capacity, and not as one of the executors of Mr Bruce Johnston. Presumably, Ms Johnston obtained the draft complaint as a result of giving instructions to Ms Gidley, and through Ms Gidley to Ms Clemmett, earlier in the year. But there is no evidence to confirm that this is so, or whether any consideration was given to whether it was legitimate for Ms Johnston, as the agent for her father, to make use of a document which had been prepared for him and the rights to which had passed to his estate.

51. [53]

    In the application, Ms Johnston was invited to identify the source of her knowledge of the OLSC. She wrote “lawyer”. It was common ground that this was a reference to Ms Gidley, although there was no evidence about what exactly Ms Gidley told Ms Johnston about the OLSC or when those conversations took place.

52. [54]

    The complaint alleged that Mr Webster had engaged in unsatisfactory professional conduct or professional misconduct. It relied on conduct in both the transfer of Mrs Johnston’s property, and the proceedings in this Court.

53. [55]

    Regarding the transfer, the complaint alleged that Mr Webster: had failed to take adequate steps to be satisfied that Mrs Johnston had sufficient capacity to understand the effect of the transfer; and had failed to advise Mrs Johnston that the transfer was not in her interests. The complaint alleged that in all the circumstances, Mr Webster was obliged to refuse to act on the transfer. Regarding these proceedings, the complaint alleged that Mr Webster: had purported to appear for Mrs Johnston without having obtained instructions or having spoken to her (while maintaining that she had capacity, and not applying to have a tutor appointed); had given affidavit evidence, purportedly on Mrs Johnston’s behalf, without instructions; and purported to appear as Mrs Johnston’s legal representative, despite expecting that he would be a material witness in the proceedings.

54. [56]

    Mr Webster did not become aware of the complaint until September last year, more than a year after it was lodged. It seems that he was told about it by the Professional Standards Department of the Law Society. Mr Webster thereupon wrote to Ms Gidley inquiring as to whether she had drafted or settled the complaint, or if someone else at her firm had done so. Ms Gidley replied, advising that any queries should be directed to the OLSC. Mr Webster sent a lengthy reply. In it, he sought an explanation for how Ms Johnston came to possess the Webster Affidavit. He also raised the issue of whether the Affidavit and the documents referred to in it, which he suggested he had been compelled under subpoena to provide, were subject to the Harman obligation.

55. [57]

    In further correspondence, Ms Gidley revealed that the complaint had been drafted by counsel, but did not identify Ms Clemmett as the counsel responsible. In response, on 18 September, Mr Webster intimated that he intended to make an application to the Court for an injunction against Ms Gidley, Ms Clemmett (assuming that she was the unidentified counsel), Ms Johnston, and any other person who had “used confidential court documents for an improper purpose”. The foreshadowed injunction would apply to “all documents filed with the Court or produced under compulsion”, and expressly included the Webster Affidavit of 16 August 2021 and the documents produced by him, on Mrs Allen’s behalf, earlier that day. Orders were also sought requiring Ms Johnston to withdraw the complaint, and not to make any reference to the documents in any subsequent complaint.

56. [58]

    At this point, Ms Gidley told Ms Clemmett about the issue. Ms Clemmett retained solicitors and counsel and had the proceedings listed before the Duty Judge on 26 September. A notice of motion was filed for Ms Clemmett seeking relief, nunc pro tunc, from “the implied obligation”, for the purposes of pursuing any complaint or disciplinary proceedings. Relief was sought not only for Ms Clemmett but also for Ms Gidley and Ms Johnston.

57. [59]

    The listing of the proceedings resulted in the file being re-opened. As already mentioned, Mr Bruce Johnston, the original plaintiff, had died in June 2022. Mrs Johnston, the original defendant had died two months later, in August. Ms Clemmett’s notice of motion noted Mr Johnston’s executors (Ms Johnston and Mr Jake Johnston) and Mrs Johnston’s executors (Mrs Allen and Mr William Johnston) as interested parties (a formal substitution order was made to regularise this a few days later), along with the other family members who had been joined as additional defendants in their personal capacities (Mrs Allen, Mr Stephen Johnston, Mr William Johnston, Mr Jack Johnston and Ms Scroope). Mr Webster, who had not been a party to the proceedings, was also joined as a respondent.

58. [60]

    None of the parties to the original proceedings named in Ms Clemmett’s notice of motion opposed her application, and none of them participated in the further proceedings.

59. [61]

    The matter came back before the Duty Judge on 13 October. A notice of motion was filed by Mr Webster in Court (and taken to have been filed on 12 October). The relief sought was broadly similar to the relief previously foreshadowed by Mr Webster, with the addition of a claim for compensation for harm allegedly caused to him by the use of the documents to support the complaint. The notice of motion named three respondents: Ms Clemmett, Ms Johnston and Ms Gidley.

60. [62]

    The hearing of the applications took place on 4 December. Ms Clemmett was represented by Ms Horvath of senior counsel, and Mr Smith of counsel (who did not appear at the hearing but signed written submissions). Ms Gidley was represented by Ms Holcombe of counsel. Ms Johnston was represented by Ms Abdiel of counsel. Mr Webster appeared for himself.

61. [63]

    The evidence at the hearing consisted of affidavits from four witnesses: Ms Clemmett, Ms Gidley, Ms Johnston, Mr Webster and Mr Jake Johnston. There was no cross-examination.

62. [64]

    As already noted, none of the original parties to the proceedings participated in the applications. Nor was the OLSC involved. Indeed, there was little evidence about the current state of the complaint made by Ms Johnston against Mr Webster, although it is apparently still pending. Neither Ms Gidley nor Ms Clemmett (nor, it seems, anyone else) has been retained to act for Ms Johnston on the complaint. In theory the OLSC might seek further information or submissions in support of the complaint from Ms Johnston. But there is no evidence that this has happened in the past, or is likely to happen in the future.

63. [65]

    In the course of submissions, I was told by Mr Webster that he had lodged a professional conduct complaint against Ms Clemmett. The terms of that complaint do not appear to be in evidence. Nor, apparently, does the evidence indicate what point that complaint has reached.

64. [66]

    As already noted, although this is not necessarily reflected in the prayers for relief in the various notices of motion, the confidentiality obligations with which the Court is concerned on the present applications are not confined to implied obligations arising under the Harman doctrine. Lindsay J also made some express confidentiality orders (see [34] above). In what follows, the term “Confidentiality Obligations” refers collectively to express and implied obligations.

65. [67]

    As already noted, the application for relief from the Confidentiality Obligations (to the extent required) was made by Ms Clemmett as applicant on behalf of herself, Ms Gidley and Ms Johnston. Counsel for Ms Clemmett took the lead both in presenting the application and in resisting Mr Webster’s application for enforcement of the Obligations. But while what has happened procedurally has been perfectly understandable, the way in which the parties presented their applications to the Court was, in a sense, back to front.

66. [68]

    The complaint against Mr Webster was drafted for Mr Bruce Johnston and later lodged by Ms Johnston. To the extent that Ms Clemmett was involved, she acted only on instructions. She had, and has, no personal interest in the matter. If the Confidentiality Obligations do not prevent Ms Johnston from pursuing the application, or relief is granted to permit her to do so, and if Ms Clemmett is retained for that purpose, then Ms Johnston’s immunity as client will extend to her as counsel. The same can be said of Ms Gidley, or, indeed, any other solicitor or counsel who might be retained by Ms Johnston.

67. [69]

    In these circumstances, it is Ms Johnston who is really the person primarily interested in obtaining a ruling from the Court that the Confidentiality Obligations do not prevent the complaint from proceeding. The interests of Ms Clemmett and Ms Gidley in the issue are limited to past events. For the same reasons, it is Ms Johnston who is really the primary target of Mr Webster’s application.

68. [70]

    I pointed this out to the parties in the course of the hearing. Ultimately, counsel for Ms Johnston sought leave for her to file her own application by way of notice of motion. There was no opposition to this course, and I granted the necessary leave on the basis that the notice of motion would be filed after the hearing.

69. [71]

    There is a further point. As already noted, neither Ms Gidley nor Ms Clemmett is acting for Ms Johnston in prosecuting the complaint, nor, it seems, has any of them actually done so. Their work on the complaint (and, including, in Ms Clemmett’s case, in drafting it) may well have been undertaken on the instructions of Ms Johnston, but strictly speaking, the client was her father, Mr Bruce Johnston. He was the party for whom Ms Gidley was acting when she received the documents, and he was, as a party to the proceedings, directly bound by the relevant Confidentiality Obligations. Any complaint about what Ms Gidley and Ms Clemmett did is a complaint about what they did as his lawyers.

70. [72]

    This point also emerged at the hearing and was acknowledged by the parties. Mr Webster sought leave to amend his notice of motion so as to join Mr Jake Johnston, the other executor of Mr Bruce Johnston’s estate, as a respondent. Again, I granted the necessary leave. The proceedings were adjourned until 8 December to provide Mr Jake Johnston with an opportunity to consider his position, and for all parties to consider whether any further submissions were required in light of the developments. In the end, Mr Jake Johnston filed an affidavit and there were supplementary written submissions dealing with his position.

71. [73]

    In its final form, Mr Webster’s notice of motion relevantly sought the following relief:

72. [74]

    As a result of the amendments, Mr Webster ultimately sought enforcement of the Confidentiality Obligations: against Ms Johnston and Mr Jake Johnston as legal personal representatives of the estate of their father, Mr Bruce Johnston; against Ms Johnston in her personal capacity (including as complainant in the complaint proceedings against Mr Webster); and against Ms Gidley and Ms Clemmett. There is no dispute that in the course of the proceedings each of those respondents received copies of the Webster Affidavit and of the Transaction Documents produced by Mrs Allen (although, as I discuss below, Mr Bruce Johnston’s receipt may have been through Ms Gidley as his solicitor or Ms Johnston as his agent). I will refer to the respondents to Mr Webster’s motion collectively as the “recipient parties”.

73. [75]

    In its final form (the notice of motion was amended prior to the hearing), Ms Clemmett’s notice of motion relevantly sought the following relief:

74. [76]

    The notice of motion filed for Ms Johnston after the 4 December hearing relevantly sought the following relief:

75. [77]

    Ms Johnston’s notice of motion identified the parties on whose behalf relief was being sought as Ms Johnston and her co-executor, Mr Jake Johnston, on behalf of their father’s estate. Ms Johnston was the first applicant and Mr Jake Johnston was the second applicant. But as already noted, the relief sought was confined entirely to Ms Johnston’s prosecution of the complaint against Mr Webster. This, it had been agreed, was not being done in her capacity as her father’s executor. No relief was sought on behalf of the estate to the extent that documents from the proceedings may still be held on its behalf.

76. [78]

    I will deal with the applications before the Court in three stages. First, I will consider whether the Confidentiality Obligations apply so as to prevent the use, by the recipient parties, of the documents for the purpose of prosecuting complaint proceedings against Mr Webster to the OLSC. Second, I will consider the applications for the Court to release the recipient parties (other than Mr Johnston’s estate, on whose behalf no application has been made) from the Obligations, to the extent that they do apply. Third, I will consider Mr Webster’s application to enforce the Obligations against the recipient parties, to the extent that they apply and I do not consider that those parties should be released from them.

Reach of Confidentiality Obligations

1. [79]

   The principal issue debated by the parties so far as the reach of the Confidentiality Obligations was concerned was whether those Obligations prevented the use of the documents in the complaint proceedings. It was contended for the recipient parties that they did not. But before addressing that issue, I think it is useful to analyse whether, and if so how, the different Obligations applied to the different documents.

2. [80]

   The paradigm case for the application of the Harman doctrine is when documents are produced to a court by means of discovery or other compulsory process. There is no doubt that the Transaction Documents, having been produced “as on” subpoena, are covered by the doctrine (see, e.g. Telnet Pty Ltd v Takapana Investments Pty Ltd (1994) 51 FCR 520). Moreover, Lindsay J made an express order for confidentiality covering the Transaction Documents, which applied at least to Ms Gidley and Ms Clemmett (see below).

3. [81]

   But the Webster Affidavit, although described as confidential, was not given to the Court pursuant to a compulsory process such as a subpoena or discovery. Rather, it was prepared and filed with the Court by Mr Webster without any prior order being made. It is true that a formal order was later made for its provision to the parties, but, on the face of it, the plaintiffs’ legal representatives would have been entitled to access the Affidavit through the Court’s electronic filing system independently of any order of the Court. A further complication is that Mr Webster purported to file the Affidavit on behalf of Mrs Johnston, when, on the face of it, he had no authority to do so. Nevertheless, in the course of the hearing before me, all of the recipient parties’ counsel accepted that the Affidavit was subject to an obligation of confidentiality.

4. [82]

   Next it is necessary to say something about how the different Confidentiality Obligations operated. Parties to litigation who have obtained access to compulsorily-produced documents are automatically bound by the implied obligation. Liability is strict, in the sense that disclosure otherwise than for the purposes of the proceedings is a contravention irrespective of whether the party is subjectively aware of the provenance of the documents. Authorities before Hearne v Street made it clear that non-parties are liable for breach by a party on the same basis as for an express undertaking, ie, if they know that the conduct has been forbidden by the court. The High Court’s decision, however, takes matters further: any persons who come into possession of such documents in the course of the litigation are personally liable for disclosure if they know of “the origins of the material in legal proceedings”: see at [3], [99], [109]-[112].

5. [83]

   In these proceedings the relevant party was Mr Bruce Johnston (now represented by his executors). The evidence does not establish whether he had any personal involvement in giving instructions for a complaint to be prepared against Mr Webster, or in Ms Clemmett being briefed with the Webster Affidavit and the Transaction Documents to draft that complaint. The instructions may have been given by Ms Johnston. But that would not affect Mr Johnston’s liability if use of the documents for that purpose was a breach of the implied obligation of confidentiality.

6. [84]

   Ms Gidley was not a party to the proceedings but could not have been unaware that the documents in question had been obtained through participation in those proceedings. Ms Clemmett would seem to have been in the same position. Thus, on the principles stated by the High Court, both of them would have been liable for any breach of the implied obligation. In any event, both of them were directly bound by the express order for confidentiality made by Lindsay J concerning the Transaction Documents.

7. [85]

   The evidence does not descend into specifics about what Ms Johnston knew about how the documents were to be used in preparing the complaint. But it was not suggested that she lacked sufficient knowledge to be liable for use of the documents for that purpose. Indeed, on Ms Johnston’s own evidence (see below) she was aware that the Webster Affidavit came from the proceedings. Furthermore, Ms Johnston still wishes to proceed with the complaint in her personal capacity, and to use the documents in support of it. She too will therefore be liable for breach if the use of the documents is a breach of the implied obligation.

8. [86]

   For the purposes of determining whether the use of the Webster Affidavit and the Transaction Documents for the purposes of the complaint proceedings contravened the Confidentiality Orders, I was referred to the concurring judgment of Chesterman JA in Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145. In that case documents were produced compulsorily in the course of court proceedings in which a freezing order had been sought. The documents were later used by the opposing party in an expert determination. A point was raised about whether this was permitted by the confidentiality obligation, and an application was made by the plaintiff for leave to use the documents for the purpose of the expert determination.

9. [87]

   The leave application was successful. The remarks of Chesterman JA in his concurring judgment were therefore obiter. But they have been cited with approval in subsequent first instance decisions: see for example Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 at [47].

10. [88]

    Following a review of earlier authority, his Honour stated (at [38]-[40]):

11. [89]

    After describing the facts of various earlier decisions in which the courts had found that the implied obligation had been contravened, his Honour stated (at [44]):

12. [90]

    His Honour distinguished these cases from the case before the Court of Appeal. He reasoned:

13. [91]

    Counsel for Ms Clemmett, supported by counsel for Ms Gidley and Ms Johnston, submitted that, on the application of the principles stated by Chesterman JA, use of the Transaction Documents and the Webster Affidavit for the purposes of making an OLSC complaint was permissible. Counsel characterised the complaint as an “epilogue” to the proceedings before Lindsay J.

14. [92]

    It is convenient to begin with the preparation of the draft complaint in the name of Mr Bruce Johnston. It is true that the complaint was concerned with conduct of Mr Webster which was part of the subject matter of Mr Johnston’s claim, and with conduct of Mr Webster in the proceedings themselves. But Mr Johnston’s claim was directed to protecting his mother’s estate and reversing the transfer of her property. Mr Webster was not a party to the proceedings, and by the end of the hearing on the first return date it was clear that he was likely to be a witness and that this would make it difficult, if not impossible, for him to act as a solicitor for any of the parties. Mr Webster does not, in fact, appear to have played any active part in the conduct of the proceedings thereafter.

15. [93]

    In these circumstances, disciplinary action against Mr Webster would not have advanced Mr Johnston’s position in the proceedings, or in any wider dispute of which the proceedings formed part. In my view, a complaint during the pendency of the proceedings would have been collateral in the relevant sense. But in fact, the proceedings had been settled and the file had been closed by the time that work on the complaint began. I think this makes it even clearer that that work had no relevant connection with advancing Mr Johnston’s position in the dispute.

16. [94]

    I therefore do not accept counsel’s submission. Prima facie, the preparation of the complaint in February and March 2022 was a breach of the implied obligation of confidence, so far as it concerned both the Webster Affidavit and the Transaction Documents, on the part of Mr Johnston (through his agents), and, it seems, on the part of Ms Johnston, Ms Gidley and Ms Clemmett. It was also a breach of the express orders concerning the Transaction Documents on the part of Ms Gidley and Ms Clemmett.

17. [95]

    So far as Ms Johnston’s conduct in picking up the complaint and pursuing it is concerned, I think the position is clearer still. Ms Johnston was never a party to the proceedings. She only came into possession of the relevant documents as her father’s agent. She has used those documents to pursue a complaint of her own which has no relevant connection with her father’s proceedings or the dispute of which those proceedings formed part. If I am wrong in thinking that her prior involvement in preparing the complaint on behalf of her father was a breach of the implied obligation of confidentiality, then her conduct in pursing the application herself following her father’s death was.

Release of Confidentiality Obligations

1. [96]

   It is convenient to consider the applications for release of the Confidentiality Obligations in two stages. The first question is whether relief should be given for the future, to allow the documents to be used in the further prosecution of the OLSC complaint against Mr Webster. The second question is whether, if so, the order should be made nunc pro tunc, so as to have the retrospective effect of nullifying any past breach.

2. [97]

   Both in written submissions lodged prior to the hearing, and in oral submissions at the hearing, counsel for Ms Clemmett urged me to grant the necessary dispensation. Counsel emphasised the important public interest involved in maintaining an accessible and robust complaint system against lawyers. These submissions were supported by counsel for Ms Gidley and Ms Johnston.

3. [98]

   For his part, Mr Webster emphasised the importance of maintaining the confidentiality of documents produced to the Court under compulsion, or effectively under compulsion. By way of comparison, Mr Webster referred me to the guidelines under which the Court operates in determining applications by third parties for access to a file. Those guidelines appear in Practice Note SC Gen 2 which states that access to pleadings will usually be granted, but that access to affidavits will require “special circumstances”. He submitted that I should adopt the same attitude to the resolution of the present application and that “special circumstances” had not been demonstrated.

4. [99]

   Mr Webster also emphasised that Ms Johnston was not herself a party to the proceedings. She had no personal interest, so far as appears, in the subject matter of the proceedings, and she only obtained the documents fortuitously as the result of her involvement in giving instructions on Mr Bruce Johnston’s behalf. Mr Webster also made submissions on the merits of the complaint, arguing that it: was misconceived; included baseless allegations; and amounted to malice or spite. In all the circumstances, he submitted that the application should be refused.

5. [100]

   I have already mentioned that the primary dispute on the present applications is between Mr Webster and Ms Johnston, not Ms Clemmett (or Ms Gidley). Indeed, Ms Gidley and Ms Clemmett have not acted for Ms Johnston on the prosecution of the complaint and therefore have no interest in that matter. Nevertheless, Ms Johnston has made her own application for leave and the submissions which support that application must be addressed on their merits.

6. [101]

   In Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85, Barrett AJA, speaking for the Court of Appeal, said of the discretion to release the undertaking (at [30])

7. [102]

   I was referred by counsel to the decision of Robb J in EB v GB [2020] NSWSC 1291. In that case (which incidentally was a protective matter) the defendants had foreshadowed making an OLSC complaint against the former solicitor for the plaintiff about the solicitor’s conduct in the proceedings and in related proceedings. An application was made for leave to use certain documents prepared in the proceedings for the purposes of the foreshadowed complaint proceedings. The application was not opposed by the plaintiff or, in the end, by the solicitor. Indeed, he made a cross-application for leave to use his own list of specified documents for the defence of the foreshadowed complaint.

8. [103]

   His Honour granted leave to the defendants (and to the solicitor on his cross-application). He reasoned (at [11]):

9. [104]

   The present case is not completely on all fours with EB. In the present case, the respondent to the complaint, Mr Webster, is vehemently objecting to the undertaking being released. But I do not think that makes any real difference. It does not affect the public interest identified by his Honour in facilitating genuine complaints being made about the conduct of legal practitioners.

10. [105]

    Furthermore, I think that a critical factor in the present case is the lack of opposition from the parties on whose behalf the documents were produced to the Court. Ostensibly, the Transaction Documents were produced by Mr Webster on behalf of Mrs Allen, and the Webster Affidavit was filed on behalf of Mrs Johnston. Mr Webster was of course, as their solicitor, obliged to keep those documents confidential on their behalf. But it would always have been open to Mrs Allen or Mrs Johnston to disclose the documents as they saw fit, or even to publish them to the whole world, and if they had done so, Mr Webster could not have been heard to complain.

11. [106]

    In these circumstances one might wonder whether Mr Webster should have any right to be heard on the application for release of the Confidentiality Obligations. But his standing was not disputed by the other parties, and it is unnecessary to consider that question further. The important point is that neither Mrs Allen, nor Mrs Johnston’s executors, have objected to their documents being used in the complaint proceedings. Nor is there anything to suggest that those proceedings, whatever the outcome, will have any adverse effect on them.

12. [107]

    I appreciate that this is not a case of breach of confidence, where the only question would be the attitude of the party entitled to maintain the confidentiality of the documents in question. There is a public interest which it is the court’s responsibility to protect: see Hearne v Street at [107], and the authorities there cited). But if the parties entitled to maintain confidentiality do not seek to do so, why should the court be concerned? An objection by a third party who has produced the documents to the court on behalf of those parties must, it seems to me, generally carry very little weight.

13. [108]

    As the complaint has been, and will continue to be, considered by the OLSC, it is desirable not to comment on its merits, and I do not propose to do so. Mr Webster did not seek to cross-examine Ms Johnston on her affidavit, for the purpose of exploring her motives in bringing the complaint. It is sufficient to say that I see no reason to think that the complaint is a vexatious or malicious one.

14. [109]

    In the course of the argument, there was some debate about whether the release would make any practical difference. Copies of the relevant documents have been provided to the OLSC. While there is a statutory right to withdraw the complaint, it is far from clear that such a withdrawal would necessarily oblige the OLSC to return the documents. Nor is there any sign of the OLSC seeking further submissions or information from Ms Johnston. Nevertheless, I think there is some practical use in granting leave, if only to make it clear that Ms Johnston is under no obligation to withdraw the complaint or to make any attempt to retrieve the documents.

15. [110]

    For these reasons, I am satisfied that there are “special circumstances” in the relevant sense and the necessary leave should be granted to Ms Johnston to allow her to maintain, and, if necessary, advance, the complaint.

16. [111]

    Whether leave should be granted nunc pro tunc gives rise to further questions, which make it necessary to look at the evidence about how the prima facie breaches which I have identified came to occur. Each of Ms Gidley, Ms Johnston and Ms Clemmett gave evidence about this in their affidavits, which, as I have indicated, were not the subject of cross-examination.

17. [112]

    Ms Gidley first addressed the topic in an affidavit made on 3 November in support of Ms Clemmett’s application. At the time, Ms Clemmett’s application only sought leave to rely upon the Webster Affidavit. Ms Gidley stated:

18. [113]

    Ms Gidley returned to the subject in a supplementary affidavit made on 9 November, after Ms Clemmett’s application had been amended to cover the Transaction Documents included in her brief. Ms Gidley stated:

19. [114]

    Ms Clemmett likewise initially confined her evidence to the Webster Affidavit. She stated in her 25 September affidavit:

20. [115]

    Ms Clemmett addressed the Transaction Documents in a supplementary affidavit of 6 November:

21. [116]

    Ms Johnston’s affidavit was confined to the use of the Webster Affidavit in the complaint. In her 3 November affidavit she stated:

22. [117]

    The questions which arise when an application is made, nunc pro tunc, for leave to use documents which are subject to an obligation of confidentiality were discussed by Rimer J in Miller v Scorey [1996] 1 WLR 1122. His Honour was dealing with a strike-out application. The basis for the application was that the proceedings in question (referred to as the “1995 action”) were based on documents and information obtained through discovery in earlier proceedings, (the “1993 action”). The contention was that use of the documents for the 1995 action had involved a breach of the implied obligation of confidentiality, and the 1995 action was therefore an abuse of process.

23. [118]

    Rimer J found that there had been a breach of the implied obligation. Nevertheless his Honour was prepared to grant leave to bring fresh proceedings. But the plaintiffs wished to be able to continue with the 1995 action (apparently to avoid a potential limitation bar which had arisen in the meantime). They therefore asked for an order, nunc pro tunc, in the 1995 action.

24. [119]

    It was argued for the defendants that the court had no power to grant leave nunc pro tunc. Rimer J did not find it necessary to decide this point (which is not taken in the present case). His Lordship stated (at 1133):

25. [120]

    The special consideration to which his Honour referred was that backdating the leave would avoid the potential limitation bar. His Honour saw this as allowing the plaintiffs to profit from their own wrong. He declined to grant retrospective leave and struck the 1995 action out.

26. [121]

    Counsel for Ms Clemmett, however, referred to the decision of the Full Court of the Federal Court in Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd (2020) 282 FCR 95 as qualifying what Rimer J said in Miller v Scorey. In the Treasury Wine Estates case, the appellant (“TWE”) was the defendant in a class action brought by a Mr Napier. Mr Napier was represented by solicitors and counsel who had acted in an earlier class action brought against TWE by a Mr Jones. TWE contended that Mr Napier’s statement of claim had been based on pleadings filed for Mr Jones in the earlier proceedings, and that this was a breach of the implied undertaking of confidentiality. Mr Jones’ pleadings had, however, been published on the Court’s website. Among the questions for the Full Court were whether, following such publication, the implied undertaking of confidentiality continued to apply; and, if so, whether Mr Napier, his solicitors and counsel should be released from that obligation.

27. [122]

    The Full Court found that there was no breach of the implied obligation of confidentiality. Accordingly, the question of release did not strictly arise. Nevertheless, the Full Court stated that, had the obligation applied, it would have been appropriate to grant a release. The Court stated (at [107]-[108]):

28. [123]

    Counsel for Ms Clemmett seized on the statement by the Full Court that “the guiding consideration should be whether orders would have been made had they been sought before the use was made of the documents”. Counsel submitted that this was a considered statement of an intermediate appellate court which was binding on me. If I were to conclude (as I have) that a release should be granted to allow the subject documents to be used in the complaint proceedings, I had no alternative, in counsel’s submission, but to make the release order operate nunc pro tunc.

29. [124]

    I do not accept this submission. In the first place, the circumstances in which a breach might occur and an application for release, nunc pro tunc, might be made, may vary. I do not read the Full Court as prescribing a fixed rule to apply in all cases. The Court itself noted that “breach will always be a significant concern”.

30. [125]

    Second, the statement by the Full Court was premised on the finding that the lawyers advising Mr Napier had either reasonably not appreciated that there might be a Hearne v Street issue or had reasonably taken the position in good faith that such an obligation did not apply, and no forensic advantage had been taken. While there is no suggestion in the present case of a forensic advantage being taken, I think the reasonableness of the recipient parties’ conduct could be questioned.

31. [126]

    I have set out above the evidence given by Ms Clemmett, Ms Gidley and Ms Johnston on this subject. That evidence was not challenged and I accept it so far as it goes. I do not suggest that Ms Clemmett, Ms Gidley or Ms Johnston was consciously aware of any breach of the implied obligation, or the confidentiality order made by Lindsay J. But their evidence does, in my view, leave some questions unanswered.

32. [127]

    On Ms Clemmett’s evidence, she was conscious of the implied obligation of confidentiality and turned her mind to its potential application in the context of drafting the complaint. Indeed, she says that she positively considered that the obligation of confidentiality would apply to documents produced on subpoena in the proceedings. In this context it is not clear to me why the Transaction Documents would have been perceived to be in a different position, especially given Ms Clemmett’s involvement in obtaining the ex parte orders which led to the production of those documents. Furthermore, she does not mention the express confidentiality order made by Lindsay J, which was addressed to her as one of Mr Bruce Johnston’s lawyers, at all.

33. [128]

    The same comments apply to Ms Gidley’s explanation, which was in substantially the same terms.

34. [129]

    So far as Ms Johnston is concerned, she is a lay person who might not necessarily have been expected to have been aware of the implied obligation. Her explanation concerning the Webster Affidavit, however, takes the point of a lack of compulsion, which rather implies that she was aware of how the obligation worked. But she does not say how she learned of the principle, and she does not address the Transaction Documents at all.

35. [130]

    In saying this, I do not wish to suggest that the evidence given by Ms Clemmett, Ms Gidley or Ms Johnston is inaccurate. There may well be satisfactory answers to the questions which I have raised. All I am saying is that the issue has not been fully investigated.

36. [131]

    On my findings, there were prima facie breaches of the Confidentiality Obligations and the explanations offered for those breaches are incomplete. Mr Webster would be entitled to pursue the issue further by way of contempt proceedings if he wished. Given the gaps in the evidence, I would be very reluctant to make a retrospective order which would prevent him from doing so.

37. [132]

    However, it became clear at the hearing that there is no realistic prospect of contempt proceedings being stifled. Counsel for Ms Clemmett provided a formal acknowledgment that the making of an order nunc pro tunc would not be relied upon to foreclose anything in the complaint proceedings brought against her by Mr Webster. Mr Webster, for his part, indicated that he had no intention of bringing any contempt proceedings against any of the parties involved.

38. [133]

    In the circumstances, I think the convenient thing is to make an order nunc pro tunc so as to bring the matter to an end. In retrospect it is clear that leave should have been sought before using the documents for the complaint. Apologies have been offered, and, on behalf of the Court, I accept them. So far as the Court is concerned, the issue is closed.

Enforcement of remaining Confidentiality Obligations

1. [134]

   In view of the conclusions I have reached, the injunctions sought by Mr Webster against using the Webster Affidavit and the Transaction Documents for the purposes of the complaint proceedings, and requiring the withdrawal of the complaint proceedings, must be refused. The question is whether any of the other relief sought in Mr Webster’s notice of motion should be granted.

2. [135]

   Mr Webster’s application for injunctions was not limited to the Webster Affidavit and the Transaction Documents. It extended to all of the documents produced on compulsion in the proceedings, which included documents produced on subpoena by various parties (and also the documents produced on 17 August other than the Transaction Documents).

3. [136]

   On my findings, documents produced in the proceedings other than the Webster Affidavit and the Transaction Documents remain subject to implied (and in some cases express) obligations of confidentiality. But there is no evidence of any threat to breach those obligations. In particular, I see no reason to think that, following publication of this judgment, any of the recipient parties are likely to commit a contempt of court by using the documents for the purposes of the complaint proceedings or any other collateral purpose. I therefore do not intend to take the further step of issuing an injunction concerning those other documents.

4. [137]

   Next, there are the orders sought by Mr Webster for the return or destruction of copies of the Webster Affidavit and the Transaction Documents held by the recipient parties. As I have granted leave to Ms Johnston to use the documents for the purposes of the complaint proceedings, no question of ordering her to return or destroy the copies which she holds can arise. But neither Ms Gidley nor Ms Clemmett is acting in the complaint proceedings and there is no need for them to retain the documents they hold for that purpose. If they are later retained by Ms Johnston, she would be at liberty to provide copies to them for that purpose, just as she would be entitled to provide copies to any other solicitors or counsel who she might retain. And clearly the complaint will not be pursued by Mr Bruce Johnston’s executors on behalf of his estate.

5. [138]

   But this does not mean that there are no circumstances which might justify the retention of the documents. One possibility mentioned by counsel was that Ms Gidley might wish to retain copies of the documents, on behalf of Glass Goodwin, in case of any professional negligence claim or other proceedings against the firm arising out of their conduct of the original proceedings. As I understand it, the retainer of documents for this purpose is commonplace among solicitors’ firms, and it may even be a term of their professional indemnity insurance. Of course, leave might be required to make actual use of them for this purpose but arguably it would be legitimate to retain the documents, provided no other use was made of them, against the possibility of such an application being made in the future.

6. [139]

   Counsel are not quite in the same position. In the days of paper briefs counsel would usually, upon their instructions coming to an end, return the brief without retaining a copy. But I am not sure whether that practice is followed, or at least universally followed, in the days of electronic briefs.

7. [140]

   In these circumstances, I do not think that a further investigation would be warranted into whether the documents can be retained by the recipient parties against the possibility of making some application in future to use them for some legitimate purpose. I do not propose to make any order compelling the return or destruction of the documents by those parties. But nothing I say should be taken as encouragement to any of them to retain the documents for the sake of it. They would be well advised to return or destroy the documents unless there is a real prospect of making an application to use them for professional negligence proceedings, or some other arguably legitimate purpose, in future.

8. [141]

   Finally, Mr Webster claimed compensation for distress and disruption he alleged to have suffered. He claimed that the allegations in the complaint were professionally damaging and had resulted in loss of work and opportunity.

9. [142]

   These allegations potentially raise complex causation questions. For instance, would any loss be recoverable if the documents could have been obtained, without any breach of the obligation, from Mrs Johnston or Mrs Allen? Were the documents so integral to the complaint that it could not have been pursued without them? To what extent, if at all, can the making of a non-spurious and non-malicious complaint properly sound in compensation? I do not, however, consider that Mr Webster has presented any evidence that release of Mrs Allen’s documents has caused him any quantifiable loss. In particular, he has not demonstrated any downturn in his business, or any retainers actually being lost. It is therefore unnecessary to consider that aspect of his claim any further.

10. [143]

    Mr Webster also sought compensation for time spent on the application. While accepting that he could not recover costs for his professional time (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333) he submitted, as I understood him, that no such limitation applied to the Court’s power to award compensation to redress the effects of a breach of its orders. There was, however, no evidence that Mr Webster had turned away paying work in order to work on the applications, and the question does not need to be decided.

11. [144]

    In these circumstances, Mr Webster’s application will be dismissed.

Conclusions and orders

1. [145]

   I have concluded that:

   1. (1)

      the Confidentiality Obligations prohibited the use of the Webster Affidavit and the Transaction Documents for the purpose of making or prosecuting the OLSC complaint against Mr Webster;

   2. (2)

      the Court should, however, order, nunc pro tunc, that leave be granted to Ms Johnston, Ms Gidley and Ms Clemmett to use those documents for that purpose;

   3. (3)

      Mr Webster’s motion for enforcement of the Obligations, and for other relief, should be dismissed.

2. [146]

   In the course of the hearing, counsel for Ms Clemmett indicated that she did not seek costs of her motion. To the extent that any other party wishes to make a claim for costs (Mr Webster was self-represented and therefore cannot recover any professional costs, but he may have incurred recoverable disbursements) the parties should try to agree a minute of order to be made in chambers. If agreement cannot be reached, I will hear argument. The parties will have 28 days to lodge an agreed minute of order or notify any necessary contested application.

3. [147]

   The orders of the Court are:

   1. (1)

      Order that, nunc pro tunc, Amber Johnston, Lauren Gidley (solicitor employed by Glass Goodwin), Sharna Clemmett (barrister) be released from the implied obligation to the Court in relation to the following documents for the purposes of instructing or acting or advising in relation to a complaint to, or investigation by, or proceedings in, a professional disciplinary body:

   2. (2)

      Order that Mr Webster’s motion be dismissed

   3. (3)

      Direct that any agreed minute of order concerning costs of the motions be lodged with my Associate, or any contested costs application be notified to my Associate, within 28 days.