Johnston v Allen [2024] NSWSC 187 (29 February 2024)

Last Updated: 26 April 2024

Supreme Court New South Wales

Case Name:	Johnston v Allen
Medium Neutral Citation:	[2024] NSWSC 187
Hearing Date(s):	4 December 2023, further written submissions ending 12 December 2023
Date of Orders:	29 February 2024
Decision Date:	29 February 2024
Jurisdiction:	Equity - Expedition List
Before:	Parker J
Decision:	See [147]
Catchwords:	CIVIL PROCEDURE – confidentiality – implied and express obligations to use documents only for purposes of proceedings – reach of obligations – application to agent, solicitor and counsel for party – use for purposes of complaint against solicitor after proceedings completed – release of obligations by court – release to permit ongoing use for complaint proceedings – release nunc pro tunc to permit past use – order for return or destruction of copies by recipients no longer involved in complaint proceedings
Legislation Cited:	Nil
Cases Cited:	Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; (2019) 269 CLR 333 EB v GB [2020] NSWSC 1291 Findex v iiNet [2019] NSWSC 1198 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Miller v Scorey [1996] 1 WLR 1122 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; [2009] QCA 345 Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 Telnet Pty Ltd v Takapana Investments Pty Ltd (1994) 51 FCR 520 Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226; (2020) 282 FCR 95
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Notice of Motion filed 26 September 2023 Sharna Clemmett (Applicant) Bede Augustine Webster (First Respondent) Amber Johnston (Second Respondent) Lauren Gidley (Third Respondent) Notice of Motion filed 13 October 2023 Bede Augustine Webster (Applicant) Sharna Clemmett (First Respondent) Amber Johnston (Second Respondent) Lauren Gidley (Third Respondent) Jake Johnston (Fourth Respondent) Notice of Motion filed 5 December 2023 Amber Johnston (First Applicant) Jake Johnston (Second Applicant) Bede Augustine Webster (Respondent)
Representation:	Notice of Motion filed 26 September 2023 Counsel: A Horvath SC/ B Smith (Applicant) B A Webster (self-represented) P Abdiel (Second Respondent) K Holcombe (Third Respondent) Solicitors: Collin Biggers & Paisley (Applicant) Rostron Carlyle Rojas Lawyers (Second Respondent) Moray & Agnew (Third Respondent) Notice of Motion filed 13 October 2023 Counsel: B A Webster (self-represented) A Horvath SC/ B Smith (First Respondent) P Abdiel (Second and Fourth Respondent) K Holcombe (Third Respondent) Solicitors: Collin Biggers & Paisley (First Respondent) Rostron Carlyle Rojas Lawyers (Second and Fourth Respondents) Moray & Agnew (Third Respondent) Notice of Motion filed 5 December 2023 Counsel: P Abdiel (Applicants) B A Webster (self-represented) Solicitors: Rostron Carlyle Rojas Lawyers (Applicants)
File Number(s):	2021/231586
Publication Restriction:	Nil

JUDGMENT

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. 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] HCA 36; (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

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.
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.

Transfer of Mrs Johnston’s home

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.
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.
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.
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.
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.

Commencement of proceedings and ex parte orders

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.
11. The final relief sought was relevantly:

7 An order, pursuant to s 41 of the NSW Trustee and Guardian Act 2009 (NSW), that the Defendant's estate be subject to management under that Act.

8 An order that Anthea Kennedy be appointed manager of the Defendant's estate, to act in relation thereto under the order and direction of the NSW Trustee and Guardian.

9 An order that Anthea Kennedy, in her capacity as manager of the estate of the Defendant, may not do anything in reliance on the appointment until the NSW Trustee and Guardian has authorised her to assume management of the Defendant's estate.

10 In the alternative to the orders sought in paragraphs 8 and 9 above: an order that the management of the Defendant's estate be committed to the NSW Trustee and Guardian.

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”).
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.
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.
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:

a) whether directions should be given for service of the summons on the defendant personally or members of her family other than Jillian Suzanne Allen and Stephen Johnston;
b) whether the NSW Trustee, Anthea Kennedy or some other person should be appointed as a receiver and manager of the estate of the defendant pending the final determination of these proceedings or further order;
c) whether, if the NSW Trustee is appointed as receiver and manager, it should be authorised to retain Anthea Kennedy to act for it in that capacity or to undertake enquires under its direction; and
d) the production of documents by Jillian Suzanne Allen, Jack Edward Johnston and Andrea Elsie Scroope pursuant to orders set out below.

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:

8) NOTE for the purpose of orders 9 to 11 (inclusive) of these orders:

a) "the Property" means [property details];
b) "the Contract" means the contract for the sale and purchase of the Property pursuant to which the Property was transferred to Andrea Elsie Scroope and Jack Edward Johnston on or about 6 August 2021
c) "the Vendor Finance Agreement" means the document so described referred to in the caveat number [reference] as having been entered into by the defendant, Andrea Elsie Scroope and Jack Edward Johnston, dated 4 August 2021; and
d) "the Transfer" means the memorandum of transfer (registered as dealing number [reference]) of the Property from the name of the defendant to the names of Andrea Elsie Scroope and Jack Edward Johnston.

9) ORDER, subject to further order, that Jillian Suzanne Allen produce to the Court no later than 9:00am on 17 August 2021 the following documents so far as they are within her possession, custody or control:

a) a copy of the Contract;
b) a copy of any valuations or appraisals obtained in relation to the Property prior to the transfer of the Property;
c) a copy of the Vendor Finance Agreement;
d) a copy of any documents which evidence or record what monies were in fact paid by Andrea Elsie Scroope and Jack Edward Johnston to, or for the account of, the Defendant, as consideration for the transfer of the Property, including copies of any cheques, or documents showing any electronic transfer(s);
e) a copy of bank statements for any account(s) held in the name of, or for the benefit of, the Defendant during the period 1 January 2021 to date, as well as any document which evidences or records the current balance held in such account(s) as at the date of production;
f) a copy of any document which evidences or records the contact details for any solicitor who acted for the Defendant in relation to the Contract, the Vendor Finance Agreement and the transfer of the Property, and any letter of advice provided by them; and
g) any and all powers of attorney and guardianship appointments executed, or purportedly executed by the defendant.

10) ORDER, subject to further order, that Jack Edward Johnston produce to the Court no later than 9:00am on 17 August 2021 the following documents so far as they are within his possession, custody or control:

a) a copy of the Contract;
b) a copy of any valuations or appraisals obtained in relation to the Property prior to the transfer of the Property;
c) a copy of the Vendor Finance Agreement;
d) a copy of any documents which evidence or record what monies were in fact paid by Andrea Elsie Scroope and Jack Edward Johnston to, or for the account of, the Defendant, as consideration for the transfer of the Property, including copies of any cheques, or documents showing any electronic transfer(s); and
e) any and all powers of attorney and guardianship appointments executed, or purportedly executed by the· defendant.

11) [an order against Ms Scroope otherwise in the same terms as order (10)].

First hearing: 17 August 2021

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.
18. In his email Mr Webster wrote:

I refer to the above matter and to the orders of the court dated 13 August 2021 and in particular order 9.

I now attach the CONFIDENTIAL documents referred to in order 9 on behalf of Mrs Jillian Allen. Accordingly, this communication is not copied to the plaintiff's lawyer.

Please note that this production is not by consent but by compulsion and that should there be any application for inspection by the plaintiff, the defendant reserves the right to object to such inspection in whole or in part or to apply to the court that any inspection be limited to the lawyers acting for the plaintiff.

In respect to order 9(f), I advise as follows:

i. I advised the defendant with respect to the contract for sale and the vendor finance deed. My contact details will be filed with the court later today via an Appearance.
ii. The conveyancer who acted on the conveyance transaction was Ms Gabriel Smith of BB Smith Conveyancing [the firm’s address was set out]. I further advise that Ms Smith is aware of these proceedings.

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.
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.
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]:

In order to assist the court to obtain the true and accurate version of events, I have referred to relevant documents in this affidavit. I have no instructions at present to allow for the inspection of those documents by the plaintiff. Accordingly, I seek the necessary order to maintain the confidentiality of this affidavit and the documents referred to in it.

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.
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:

HIS HONOUR: I'm told we have on the line as solicitor for the defendant, Mr B Webster, solicitor of Just Dispute Resolution. Is that correct Mr Webster?

WEBSTER: Yes, it is, your Honour.

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.
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:

HIS HONOUR: The first thing I'll do is just clear the air if I can in terms of appearances. Mr Webster, you have announced your appearance today on behalf of the defendant. The e-mail that came in yesterday at 1.21 pm says you were producing documents on behalf of Mrs Jillian Allen. Is there some relationship between those appearances? Mrs Allen holds a power of attorney; correct?

WEBSTER: That is correct. I was simply assisting Mrs Allen. I'm not aware that she's a party to these proceedings. I had a conference with her on the weekend. I offered to assist in the timely production of the documents and she agreed to allow me to do that. I don't have formal instructions to act for her.

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:

HIS HONOUR: Were they served on plaintiff [scil defendant] in any other way?

CLEMMETT: No, your Honour. They've not been served on her. They've been sent to all of Jillian Allen and the e-mail was also addressed to Stephen [Johnston] but has not been served on him personally.

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

WEBSTER: Before I answer that question and the short answer is no but I will come to that in a moment. I was forwarded by Ms Gidley, a copy of the document and I'm willing to accept service on the part of the defendant on that basis. They were served on me late on Friday afternoon. Mrs Johnston is not able to leave Banksia Village at the moment and because of lockdown rules, I'm not able to go in.

HIS HONOUR: There is a bit of a gap there that I need to understand. You have not spoken to Mrs Johnston about these proceedings?

WEBSTER: Correct.

HIS HONOUR: By what authority do you say you act for her in these proceedings?

WEBSTER: Your Honour, at the moment, I only hold the ability to provide to the Court an appearance on the basis that I have yet to receive detailed instructions from her.

HIS HONOUR: You've had no discussions with her about this case?

WEBSTER: No, your Honour.

HIS HONOUR: How is it that you can say, on any basis, that you have a retainer from her?

WEBSTER: At this stage, your Honour, I only have very limited. I spoke with Mrs Allen on the weekend about the need to respond appropriately and promptly to these proceedings. We haven't been able to arrange yet a conference with Mrs Johnston. I'm here to assist the Court as best I can.

HIS HONOUR: What I'm hearing is either you have taken your instructions from Mrs Allen in her capacity as an attorney of Mrs Johnston or you don't have any retainer at all.

WEBSTER: Although I haven't - your Honour, I'm here to assist the Court. expect to receive instructions, more detailed instructions from Mrs Johnston as soon as I can make arrangements to see her.

HIS HONOUR: You need to face up to this. I need to know this because this could be significant in some way. You have had no contact about these proceedings with Mrs Johnston; correct?

WEBSTER: That's correct.

HIS HONOUR: There's no way that you can present yourself here as having a retainer from her unless possibly you have received instructions to do so from her attorney and a little while ago I understood you to say you did not act for Mrs Allen but are you saying that she retained you on behalf of Mrs Johnston?

WEBSTER: Your Honour, at the conference that I had with Mrs Allen on the weekend she agreed for me to appear today. I didn't take that as instructions to appear for her, Mrs Allen personally but to assist in the production of the documents that were sought and to assist the Court this morning and that was the limit, at this stage that the agreement that I came to with Mrs Allen.

HIS HONOUR: Right. Well, I think your appearance has to be marked as provisional.

WEBSTER: Indeed, I agree.

HIS HONOUR: As "provisional (on instructions from Mrs Jillian Allen)." That's the only way--

WEBSTER: I accept that.

HIS HONOUR: --it can be rationalised.

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.
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:

HIS HONOUR: I'm not sure that it would be wise for you to go talking to Mrs Johnston frankly because there is a question about her capacity and I'm not being critical about this but you acted I gather for her on the contract for sale and on the vendor for finance agreement.

WEBSTER: That is correct your Honour.

HIS HONOUR: What do you say about her capacity to sign those two documents?

WEBSTER: Unquestionable your Honour.

HIS HONOUR: You might end up being a witness.

WEBSTER: I fully expect to be a witness.

HIS HONOUR: I'm not sure that it would be wise if you are to be a witness in the case like this for you to be acting for and speaking to Mrs Johnston.

WEBSTER: I note your Honour's advice.

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.
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:

In relation to the documents produced by Mrs Allen, MFI S8, there is a passage which will be familiar to you, Mr Webster, I will read it out the benefit of the plaintiff’s lawyers:

"I now attached the confidential documents referred to in order 9 of the Court's orders on behalf of Mrs Jillian Allen. Accordingly, this communication is not copied to the plaintiff’s lawyer. Please note that this production is not by consent but by compulsion and that should there be any application for inspection by the plaintiff, the defendant reserves the right to object to such inspection in whole or in part, or to apply to the Court that any inspection be limited to the lawyers acting for plaintiff."

And then there is some explanation of who did what and a suggestion an appearance being filed.

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:

The e-mail goes on to refer to the conveyancer who acted on a conveyancing transaction, Ms Gabriel Smith of BB Smith Conveyancing.

These documents have been produced to the Court as on subpoena.

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

CLEMMETT: Yes, your Honour. My client seeks access to those documents. I would need to take instructions, but I don't think there is any problem with the documents produced in the first instance for inspection by solicitors only.

HIS HONOUR: Righto. A problem we have is that there has been no personal service on the defendant rightly or wrong. Mr Webster says the defendant is in charge of her faculties. If you take what Mr Webster says on the one hand and the evidence thus far adduced in support of the summons there is a conflict there but the question arises, would it be appropriate for there to be access to these documents before the personal service of the defendant. Is that something that either you, Ms Clemmett, or you, Mr Webster, wish to address?

...

CLEMMETT: ... My instructions are that personal service of the documents on the defendant, we have someone be with her to explain what is going on cause some distress and she's very unlikely to understand what the documents mean in any event. It is a rather difficult situation in the circumstances.

HIS HONOUR: What you have said to me is consistent with the affidavit evidence in support of the summons.

CLEMMETT: Yes.

HIS HONOUR: Mr Webster, in your e-mail, you indicate what might be taken as an objection to inspection. Is that an objection that you seek to advance and, if so, on whose behalf?

WEBSTER: Your Honour, it is an objection that I would seek to advance. Due to the lockdown restrictions, I have not been able to obtain in the short period of time from when these e-mails were e-mailed to me—

HIS HONOUR: --we get to the same point. You have not spoken to the defendant.

WEBSTER: Correct.

HIS HONOUR: You cannot say you have a retainer to appear for her in these proceedings from her personally. If you have any retainer at all it is a result of a conversation you had with Ms Allen who, on the face of it, is one of two attorneys. What I think I should do acknowledging the difficulties of it but concerned about the welfare of Mrs Johnston is I should grant access to the lawyers for the plaintiffs. I think that might be appropriate. That's something that was contemplated in your e-mail Mr Webster. Is there anything that you want to say against access so limited?

WEBSTER: No, your Honour.

34. His Honour then made the following notation and orders:

1. Note that Mr BA Webster, who filed a notice of appearance (MFI A9) on behalf of the defendant, informs the Court that he has not spoken to the defendant, but has today appeared at the request of Mrs Gillian Allen, a person who holds, jointly and severally with Steven Keith Johnston, an enduring power of attorney from the defendant dated 7 May 2019.

2. Order that the lawyers acting for the plaintiff (namely, Ms S Clemmett of counsel and Glass Goodwin Lawyers) be granted access to the documents produced as MFI S7 and MFI S8.

3. Order, subject to further order, that those documents not be disclosed to any other person by the plaintiff's lawyers save as may be necessary for the purpose of obtaining instructions from the plaintiff in the conduct of these proceedings.

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.
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.

Second hearing: 19 August 2021

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.
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.
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.
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.
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.

Further course of proceedings

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.
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.

Complaint against Mr Webster

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

Applications concerning confidentiality

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

1. That documents of a confidential nature filed with the Court or produced under compulsion or obtained pursuant to an order of the Court in [these proceedings] (the Proceedings) and that have not been unconditionally received into evidence in the Proceedings are declared to be Protected Documents for the purposes of these orders.

2. Without limitation, the Protected Documents include:

a. The confidential affidavit of Bede Webster affirmed 16 August 2021 (the Confidential Affidavit);
b. Documents produced in response to subpoena dated on or about 19 August 2021 by Bede Webster including the document headed “Vendor Finance Agreement”;
[other documents produced on subpoena].

3. That the Respondents are restrained from:

a. using the Protected Documents for any purpose not directly associated with the conduct of the Proceedings;
b. directing or instructing any other person to use the Protected Documents for any purpose not directly associated with the conduct of the Proceedings;
c. providing any Protected Document to any person not being a party to the Proceedings or that party’s legal advisers other than under compulsion of law.

3A. That within 28 days, each of the second and fourth respondents:

a. Permanently delete all electronic copies of the Protected Documents in his or her possession as at the date of these Orders; and
b. Destroy by commercial grade shredding or incineration all physical copies of the Protected Documents in his or her possession as at the date of these Orders.

3B. That within 42 days, each of the second and fourth respondents:

a. File and serve an affidavit confirming his or her compliance with Order 3A; and
b. Prepare and annex to the affidavit referred to in Order 3B(a) above a schedule of all persons, other than the first and third respondents, to whom he or she provided a copy of any one or more of the Protected Documents at any time.

4. That the second Respondent Amber Johnston forthwith:

a. withdraw the complaint (the Complaint) made to the Office of the Legal Services Commissioner dated 6 August 2022 in respect of the Applicant;

5. That the Respondents pay to the Applicant compensation for the distress and disruption caused by use of Protected Documents as part of the Complaint including in respect of the Applicant’s notice of motion and the Respondent Sharna Clemmett’s notice of motion.

...

NOTATIONS

A. The Proceedings were substantively settled by consent on 23 September 2021.

B. The Complaint is not directly associated with the conduct of the Proceedings for the purposes of order 3.

C. Order 4 does not affect the second respondent’s rights pursuant to section 273(2)(b)(i) of the Legal Profession Uniform Law (NSW) otherwise in compliance with these Orders.

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”.
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:

1. Order that, nunc pro tunc, Amber Johnston, Lauren Gidley (solicitor employed by Glass Goodwin), Sharna Clemmett (barrister) and any other person, be released from the implied undertaking 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:-

a. affidavit of Bede Webster affirmed 16 August 2021and filed in these proceedings on that date;
b. the following documents produced by Mr Webster for Jillian Allen by email on 16 August 2021,in response to the order made in these proceedings dated 13 August 2021:

i. PEXA statement;
ii. Contract for the Sale and Purchase of Land;
iii. Vendor Finance Agreement.

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

Orders Sought

1. Order nunc pro tune that Amber Johnston is able to use the following documents for the purposes of making and prosecuting a complaint to the Office of the NSW Legal Services Commissioner in respect of the conduct of Mr Bede Webster in these proceedings:

a. affidavit of Bede Webster affirmed 16 August 2021 and filed in these proceedings on that date;
b. the following documents produced by Mr Webster for Jillian Allen by email on 16 August 2021, in response to the order made in these proceedings dated 13 August 2021:

i. PEXA statement;
ii. Contract for the Sale of Purchase and Land;
iii. Vendor Finance Agreement.

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.
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

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.

Documents covered

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).
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.
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].
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.
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.
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.

Use for purposes of OLSC complaint

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

One gleans from this review of some of the authorities that what a party to litigation may not do with documents produced pursuant to compulsive processes is to utilise them for purposes “unconnected” with the litigation; or “unrelated” to it; or for a purpose “not reasonably necessary for the conduct of the litigation”.

The scope of the undertaking is, I think, not entirely accurately expressed in the narrower phrase; “for the purposes of that action” or “use in the action in which they are disclosed”.

The wider designation has the support of Mason CJ in Esso and Kirby P in Ainsworth as well as Lord Diplock in Harman. The undertaking will not be broken unless the disclosure which is impugned can be seen to be for a “collateral purpose”, or an “ulterior purpose”. Both terms indicate some disconnection between the proper conduct of the proceedings or litigation, and the use to which the documents are put.

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]):

In all these cases the purpose to which the disclosed documents were put had no connection with the prosecution of the proceedings in which and for which the documents were produced. The use was therefore improper, and in breach of the implied undertaking. In each case the impugned use can be easily described as ulterior or collateral to the purpose behind the documents’ production.

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

These cases are all very different from the present case in which the documents are sought to be used between the same parties and with respect to the same dispute. As the President has pointed out the application for a freezing order was made so as to protect the value of the cause of action which the appellants are pursuing in the expert determination. The successful application for an order restraining the respondent from dissipating its assets was a means of ensuring that success in the determination would not result in a pyrrhic victory.

I would not regard the purpose of the production of the documents in the application for the freezing order as being limited to the conduct of that application. It was ancillary to, and an adjunct of, the wider dispute between the parties to be determined by the expert. They were “connected”, and each “related” to the other. It was, in my opinion, reasonably necessary for the conduct of the proceedings between the parties that the documents produced in the application for the freezing order be used in the expert determination.

When one comes to answer the question: are documents produced on discovery being used for a purpose unrelated to or unconnected with the proceeding, or litigation, in question or not for a purpose reasonably necessary for the conduct of the litigation?, one must analyse what is the litigation or proceeding in question. One should not take any narrow or technical approach to the analysis.

If the parties here had kept their dispute in the court, where it commenced, and not embraced alternative dispute resolution there can be no doubt that the documents produced in the application for the freezing order could have been used in the cross–examination of witnesses at the trial. The “proceedings” or “litigation” in which the documents were produced would not have been confined to the interlocutory application for the freezing order. The purposes of the litigation would encompass all the disputes arising out of or occurring in the conduct of the action from the commencement to judgment.

The position cannot be any different where the parties commit a part, even the major part, of their dispute to arbitration or determination. To take such a view would be to ascertain the scope of the undertaking not by reference to the purpose for which documents were used but by the forum in which the dispute was to be adjudicated. The authorities make it plain that it is purpose which is the determinant of whether or not use is permitted.

The scope of the undertaking may be better expressed by saying that documents produced on discovery or other compulsive process may only be used for a purpose connected with or related to the determination of the dispute in which the parties are engaged and to assist in the resolution of which the documents were required. Such a formulation extends to the determination of disputed rights other than by trial.

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.
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.
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.
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.
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

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.

Release for future

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.
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.
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.
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.
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])

That matter was considered by the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283. It was there said (at [31]) that a party in the position here occupied by Aristotelis and Efthemia must show “special circumstances” in order to be released from the obligation. This does not mean that “some extraordinary factors must bear on the question before the discretion will be exercised”. In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, (1992) 38 FCR 217, Wilcox J said (at 225) that for “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. In other words, good reason must be shown why, contrary to the usual position, the constraint should not apply; and that reason must be found in all the circumstances of the case. If the court does find “special circumstances”, it then has “a broad discretion as to whether or not to grant leave”: James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673 at [27] (Edmonds J).

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

I am satisfied that, at least in cases where the party to proceedings, or a legal representative who has participated in proceedings, does not actively oppose a party involved in those proceedings seeking a release from the Harman restriction, for the purpose of using documents produced for the purpose of the proceedings to make or defend a disciplinary complaint against a lawyer arising out of the conduct of the proceedings, the Court should readily find that there is a good reason why the restriction should not apply. It is in the interests of the proper administration of justice that the Court should facilitate, and not in any way impede, the making of legitimate disciplinary complaints about the conduct of lawyers involved in proceedings before the Court, and in the pursuit of the investigation and prosecution of the complaints fully in accordance with the processes established by the legislation that creates the mechanism for the supervision of lawyers within this State.

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.
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.
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.
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.
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.
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.
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.

Retrospective release

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.
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:

When I was instructed to brief counsel to prepare a complaint to the OLSC regarding Mr Webster, I did not turn my mind to the fact that whilst [the Webster Affidavit] was voluntarily filed by Mr Webster on 16 August 2021, the Court had made orders on 19 August 2021 directing that it be provided to the parties in the Proceeding.

If I had turned my mind to these matters, I would have sought counsel's advice as to whether [Mr Bruce Johnston] and/or [Ms Amber Johnston] required the Court's leave to use the [Webster Affidavit] in making a complaint to the OLSC. I apologise unreservedly to the Court for not turning my mind to these matters.

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:

When I was instructed to brief counsel to prepare a complaint to the OLSC regarding Mr Webster, I had in mind that the complaint could not refer to, or disclose the content of, any document produced on subpoena in the proceeding, because those documents were produced under compulsion.

However, I did not turn my mind to the fact that the [Transaction Documents] were provided to me pursuant to a Court order, and therefore also under compulsion.

If I had turned my mind to this matter, I would have sought counsel's advice as to whether [Mr Johnston] and/or [Ms Johnston] required the Court's leave to use the Documents in making a complaint to the OLSC. I apologise unreservedly to the Court for not turning my mind to these matters.

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

In preparing the draft complaint, I specifically:

(a) considered that the documents produced under subpoenas in the proceedings could not be used by reason of the operation of the implied undertaking arising pursuant to Harman...; and
(b) thought that the Affidavit would not be subject to the implied undertaking because Mr Webster had not been ordered to file the Affidavit.

...

Upon reading the correspondence [exchanged between Mr Webster and Ms Gidley, commencing 15 September 2023], I realised that I had not previously turned my mind to the fact that [Ms Johnston] had received the Affidavit on 19 August 2021 pursuant to an order (being the order quoted at paragraph [12] above), notwithstanding that it had been filed voluntarily, meaning it was a document obtained under a compulsory process.

If I had turned my mind to that question, for an abundance of caution, prior to preparing a complaint to the Legal Services Commissioner, I would have recommended that [Ms Johnston] ask the Court for leave to use the Affidavit in her complaint to the Legal Services Commissioner.

I am embarrassed that I failed to consider the fact of the 19 August 2021 orders and I unreservedly apologise to the Court.

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

When I prepared a draft of the Supporting Document [the attachment to the complaint form, see [51] above], l was conscious about not using any documents produced on subpoena, however I did not turn my mind to whether [the Transaction Documents] contained in the Brief were provided to Ms Gidley under compulsion.

I did not turn my mind to the source of those three documents, before they were included in the Brief. As set out in paragraph 14 of my 25 September 2023 affidavit, the proceedings had been substantially settled by consent on 23 September 2021. After those orders had been made, I had no reason to review the email correspondence. In the six months between 23 September 2021 and March 2022 when I drafted the complaint, I did not look back through the emails in relation to the matter.

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

In accordance with the Authority [granted by Mr Johnston in the costs agreement with Glass Goodwin: see [9] above], I was informed by Glass Goodwin, and verily believe that:

(a) at the time when [the Webster Affidavit] was filed, there were no orders before the Court compelling [Mr Webster] to file any material; and
(b) the Substantive Proceedings were settled, by consent, on about 23 September 2021 on, inter alia, relevantly, the following terms:

i. the Transaction being set aside; and
ii. a solicitor being appointed to act as a financial manager of the estate of [Mrs Johnston].

...

I did not foresee any issue with attaching [the Webster Affidavit] to the complaint as I felt it provided context to [Mr Webster’s] conduct. If I have been a party to a contravention of Court rules, I regret that unreservedly, and apologise for same.

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.
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.
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):

It may be that the court does have some such jurisdiction but, if so, it seems to me that the circumstances in which it would be proper to exercise it would be rare. It is one thing to release a party from an undertaking to the court so as to permit him to do in the future that which he has been prevented from doing in the past. It is another thing for the court to find, as I have, that a party has abused the process of the court by his breaches of an undertaking to it and for it then to give that party a retrospective release from the undertaking so as to wipe away the abuse of the process which he has committed.

If I do have the jurisdiction, I can anyway see no good reason to grant any such retrospective leave. Undertakings of the present sort are important ones. They have been the subject of considerable discussion in the reported cases over recent years and their nature and effect are, or should be, well known to practitioners. It seems to me that if, as I have found, the prosecution of the 1995 action to date has involved an abuse of the process then, in a sense, that finding by itself suggests that the action should be struck out.

I do not, however, consider that the result must inevitably follow. If in principle, I considered it just to allow the plaintiffs to use the discovered documents for the purposes of a separate action raising the same claims as the 1995 action, then, absent any special considerations pointing in a different direction, there would in my view be much to be said for declining to strike out that action and for giving leave to the plaintiffs to make use of the documents for its further prosecution. Such an order would, no doubt, amount to a de facto validation of what had happened to date, although the court could perhaps reflect its disapproval of that by the making of appropriate costs orders. The alternative course would be to strike the action out, with the usual orders as to costs, but to give leave to the plaintiffs to start a new like action. The latter course is one which would no doubt visit a greater penalty on them and it may be that, in appropriate cases, it would be the right type of order to make. In the circumstances of the present case, however, I would, in principle, subject to the special consideration to which I shall come, favour the former alternative, which would be likely to achieve both an overall saving of costs and the prospect of an earlier trial of a proper claim.

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.
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] FCAFC 226; (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.
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]):

There is no suggestion in the evidence that the respondents knew of the existence of the Hearne v Street obligation and disregarded it in preparing [Mr Napier’s statement of claim] in the hope of gaining some forensic advantage by not seeking the orders for release from the obligation in advance. To the contrary, the respondents always maintained they were not in breach of the obligation. The respondents’ position (which we have found to be correct) always involved a more than reasonably arguable approach to the relevant law. In contrast to the observations of Rimer J in Miller v Scorey ... this is not a case in which it can be said that the respondents have taken advantage of their own wrong. Justice Rimer also said [(The Full Court quoted the first paragraph from the judgment quoted above]

These considerations may well be relevant in a case where a person has sought to obtain some forensic advantage by refraining from seeking appropriate orders in advance of using the relevant documents the subject of the Hearne v Street obligation. If a breach is found then ... the breach will always be a significant concern. But where, as here, any assumed breach was the result of the lawyers reasonably not appreciating that there might be a Hearne v Street issue, or reasonably taking a position in good faith that the Hearne v Street obligation did not apply to the documents and no forensic advantage was sought to be or was in fact obtained by the failure to seek, or a decision to refrain from seeking, appropriate orders, the guiding consideration should be whether orders would have been made had they been sought before the use was made of the documents. In the present case, the answer to that issue would undoubtedly be in the affirmative in the circumstances we have described above.

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

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.
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).
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.
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.
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.
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.
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.
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.
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.
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] HCA 29; (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.
144. In these circumstances, Mr Webster’s application will be dismissed.

Conclusions and orders

145. I have concluded that:

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

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.
147. The orders of the Court are:

Notice of Motion by Sharna Clemmett filed 26 September 2023

Notice of Motion by Bede Augustine Webster filed 12 October 2023

Notice of Motion by Amber Johnston and Jake Johnston filed 5 December 2023

(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:

(a) affidavit of Mr Webster affirmed 16 August 2021 and filed in these proceedings on that date;

(b) the following documents produced by Mr Webster for Jillian Allen by email on 16 August 2021, in response to the order made in these proceedings dated 13 August 2021:

(i) the PEXA settlement record;

(ii) the Contract for the Sale and Purchase of Land;

(iii) the Vendor Finance Agreement

(2) Order that Mr Webster’s motion be dismissed

(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.

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Amendments

26 April 2024 - [49] year inserted