FEDERAL COURT OF AUSTRALIA Winters v Fogarty (No 3) [2020] FCA 315 File numbers: VID 1288 of 2013 VID 323 of 2016 Judge: BROMBERG J Date of judgment: 4 March 2020 Catchwords: PRACTICE AND PROCEDURE – application for release from implied undertaking to use documents filed or discovered in civil proceeding for purposes of criminal proceeding – discussion of relevant principles – whether special circumstances exist warranting exercise of discretion to release applicant from the implied undertaking – application granted. Cases cited: Ashby v Slipper (No 2) [2016] FCA 550 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 Date of hearing: 4 March 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 9 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr L Howard Solicitor for the Respondent: Sladen Legal ORDERS VID 1288 of 2013 VID 323 of 2016 BETWEEN: LEILA WINTERS Applicant AND: BASIL MICHAEL FOGARTY Respondent JUDGE: BROMBERG J DATE OF ORDER: 4 MARCH 2020 THE COURT ORDERS THAT: 1. The Respondent has leave to use the following documents filed in the proceeding: (a) the pleadings; (b) the parties' lists of documents; (c) the affidavits, outlines of evidence and medical reports filed by the parties; (d) the records produced under subpoenas issued by the parties; and (e) documents discovered by the parties for the purposes of the conduct of his defence, including the obtaining of legal advice, in the proceeding commenced in the Magistrates' Court of Victoria at Warrnambool (Case No K13235843) and any trial or committal hearing in relation to that proceeding. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BROMBERG J: 1 This application relates to two proceedings before the Court. At the heart of the controversy between the parties and these proceedings are allegations of discrimination and sexual harassment made by the applicant ("Ms Winters") against the respondent ("Mr Fogarty"). 2 By an interlocutory application dated 10 February 2020, Mr Fogarty seeks a release from the implied undertaking that usually applies to documents that have been produced or filed in a proceeding, that exists by reference to the principles outlined in cases such as Harman v Secretary of State for the Home Department [1983] 1 AC 280. 3 The applicable principles for the grant of leave are well settled. In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 at [31], Branson, Sundberg and Allsop JJ expressed the principles to be applied as follows: [31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show 'special circumstances': see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non‑litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre‑existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. 4 Those observations made in Liberty Funding were relied upon by Flick J in Ashby v Slipper (No 2) [2016] FCA 550 at [11]. As his Honour there observed at [10]: Reasons for relaxing the constraint frequently involve considerations going beyond the immediate interests of the parties to particular litigation (and those whose otherwise confidential materials have been subpoenaed) and involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. 5 In support of his interlocutory application, Mr Fogarty, has filed an affidavit dated 10 February 2020. In that affidavit, Mr Fogarty explained that he has been charged with serious indictable offences. The conduct that underpins those charges is conduct alleged to have been taken by Mr Fogarty against Ms Winters; that conduct has given rise to some but not all of the issues raised in the proceedings before this Court. He deposed that he has been provided with a police brief of evidence, which includes witness statements from a number of persons who have filed outlines of evidence in the proceedings before this Court. That brief of evidence also refers to mobile phone evidence of the same kind that has been filed and is to be relied upon in these proceedings. 6 Mr Fogarty deposed that he intends to defend the criminal charges brought against him. He wishes to test the evidence in the police brief and he requires legal advice and representation in order to do so. It is contended for Mr Fogarty that his ability to obtain advice and assistance without constraint is presently undermined due to the potential reach of the implied undertaking. 7 The authorities to which I have referred outline a number of non-exhaustive considerations relevant to whether or not good reason exists for granting leave. One of those considerations, if not the most important of them, is achieving justice in another proceeding. That consideration is of significance in this case. What Mr Fogarty seeks is a fair opportunity to vigorously pursue his defence in the criminal proceeding brought against him. The achievement of justice in that proceeding would no doubt be much facilitated by ensuring that Mr Fogarty is able to pursue his defence without being hampered by the implied undertaking. 8 Additionally, I note that Ms Winters does not oppose the orders sought and no basis for any opposition is apparent. 9 In the circumstances, I am prepared to make the orders sought, subject to some minor amendment to the terms proposed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate: Dated: 11 March 2020