Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036

Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036

The unredacted defence and unredacted reply had never entered the public domain, were provided to the intervening parties only for the purpose of being heard on further or final suppression or non-publication orders, and were provided under sufficient compulsion arising from the orders of 10 May 2021 and the intervening parties' request invoking those orders. In those circumstances, the Hearne v Street obligation attached to the copies in the hands of the intervening parties and their lawyers, and a declaration was appropriate to quell the justiciable controversy about their permitted use.

Jurisdiction
Australia
Judgment Date
31 August 2021
Procedural Posture
Practice and Procedure; Interlocutory Application for Declaration Concerning Use of Documents Provided to Intervening Parties / Interlocutory Hearing After Notice of Discontinuance
Outcome
Declaration made; leave granted nunc pro tunc to file and serve the interlocutory application; intervening parties ordered to pay the applicant's costs of the interlocutory application as agreed or taxed.
Legal Topics
['hearne V Street Obligation' 'use of Documents Disclosed in Litigation' 'intervening Parties' 'access to Court Documents' 'declaration' 'permanent Suppression and Non Publication Order' 'discontinuance']
['practice and Procedure' 'court Procedure' 'suppression and Non Publication Orders'] ['hearne V Street Obligation' 'use of Documents Disclosed in Litigation' 'intervening Parties' 'access to Court Documents' 'declaration' 'permanent Suppression and Non Publication Order' 'discontinuance']

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Procedural Posture

Practice and Procedure; Interlocutory Application for Declaration Concerning Use of Documents Provided to Intervening Parties / Interlocutory Hearing After Notice of Discontinuance

Legal Issues

  1. 1 ["Whether the Hearne v Street obligation applied to copies of the unredacted defence and unredacted reply provided by the applicant's lawyers to the intervening parties' lawyers on 17 May 2021." 'Whether a declaration should be made to quell the controversy between the applicant and the intervening parties about the permitted use of those documents.' 'Whether, in the alternative, a permanent suppression and non-publication order should be made binding the intervening parties.' 'Whether the Court had power to grant declaratory relief in the discontinued proceeding.']

Ratio Decidendi

The unredacted defence and unredacted reply had never entered the public domain, were provided to the intervening parties only for the purpose of being heard on further or final suppression or non-publication orders, and were provided under sufficient compulsion arising from the orders of 10 May 2021 and the intervening parties' request invoking those orders. In those circumstances, the Hearne v Street obligation attached to the copies in the hands of the intervening parties and their lawyers, and a declaration was appropriate to quell the justiciable controversy about their permitted use.

Court Disposition

Declaration made; leave granted nunc pro tunc to file and serve the interlocutory application; intervening parties ordered to pay the applicant's costs of the interlocutory application as agreed or taxed.

Orders

  • ['Subject to any grant of leave by the Court to the contrary, each of Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and the Age Company Pty Ltd and their legal representatives may not use Schedules 1, 2 and 3 of the defence dated 4 May 2021 and paragraphs 2(ll) to (pp) and 8 of the reply dated 4 May...