Practice and procedure – consideration of the ‘Harman’/‘Hearne v Street’ obligation – whether the obligation applies to pleadings

The appeal in Treasury Wines Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226 (17 December 2020) concerned the obligation on a person not to use a document or information for any purpose other than the proceeding, where the person knows that the document or information was obtained because another party to the proceeding disclosed the document or information under compulsion (be it by court order, a rule of court or otherwise).

This is the obligation in Harman v Secretary of State for the Home Department [1983] 1 AC 280 as applied in Hearne v Street (2008) 235 CLR 125.

Relevantly, pleadings in a class action proceeding contained information which had been obtained under compulsion (namely, documents produced during discovery). Those pleadings were published on the court’s website and accordingly published to the world. That proceeding was settled and orders were made dismissing it. Subsequently, the solicitors and counsel from the earlier proceeding were retained in another class action against the same respondent. They used the pleadings from the earlier proceeding, which was obtained from the court’s website, to prepare the statement of claim in the later proceeding.

A key issue in the appeal was whether the obligation in Hearne v Street not to use documents produced under compulsion for purposes other than the proceeding applied to pleadings. In respect of this issue, the Full Court held that the primary judge made no error in concluding that the solicitors and counsel (and thus the second respondent, their client) were not bound by the Hearne v Street obligation in respect of the pleadings in the earlier proceeding (at [14](8)).

The Full Court analysed the decision in Hearne v Street and subsequent cases (at [38]-[82]; and see especially their conclusions at [83]). The conclusions of Jagot, Markovic and Thawley JJ included (at [83](5)): “If our view of Hearne v Street at [96] is correct then the formulation of the obligation in the common law of Australia is that the obligation applies to a document filed in court or discovered under compulsion until the document is admitted into evidence. If our view of Hearne v Street is incorrect then, nevertheless, the weight of authority in Australia supports the view that the obligation ceases to apply to a document once it is admitted into evidence: Esso, Ainsworth, Hospital Products, McPherson, and Eltran. Either way, at the least, the rationale for the existence of the obligation in Australia does not extend to a secondary source which has itself become public (the most obvious examples of which are a judgment or a transcript). Harman never suggested to the contrary…”

In any event, if it had been necessary to do so, the Full Court would have ordered that the respondents be released from the Hearne v Street obligation and granted leave to use the information in the pleadings in the earlier proceeding for the purpose of the later proceeding (at [14](9); and [94]-[109]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph 03 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

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