Federal Court

DAN STAR QC

(03) 9225 8757 danstar@vicbar.com.au

The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.

Federal Court judgments

PRACTICE AND PROCEDURE

Consideration of the “Harman”/“Hearne v Street” obligation – whether the obligation applies to pleadings

The appeal in Treasury Wines Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226 (17 December 2020) concerned the obligation on a person not to use a document or information for any purpose other than the proceeding, where the person knows that the document or information was obtained because another party to the proceeding disclosed the document or information under compulsion (be it by court order, a rule of court or otherwise). This is the obligation in Harman v Secretary of State for the Home Department [1983] 1 AC 280 as applied in Hearne v Street (2008) 235 CLR 125.

Relevantly, pleadings in a class action proceeding contained information which had been obtained under compulsion (namely, documents produced during discovery). Those pleadings were published on the Court’s website and accordingly published to the world. That proceeding was settled and orders were made dismissing it. Subsequently, the solicitors and counsel from the earlier proceeding were retained in another class action against the same respondent. They used the pleadings from the earlier proceeding, which was obtained from the Court’s website, to prepare the statement of claim in the later proceeding. A key issue in the appeal was whether the obligation in Hearne v Street not to use documents produced under compulsion for purposes other than the proceeding applied to pleadings. In respect of this issue, the Full Court held that the primary judge made no error in concluding that the solicitors and counsel (and thus the second respondent, their client) were not bound by the Hearne v Street obligation in respect of the pleadings in the earlier proceeding (at [14](8)).

The Full Court analysed the decision in Hearne v Street and subsequent cases (at [38]-[82]; and see especially their conclusions at [83]). The conclusions of Jagot, Markovic and Thawley JJ included (at [83](5)): “If our view of Hearne v Street at [96] is correct then the formulation of the obligation in the common law of Australia is that the obligation applies to a document filed in court or discovered under compulsion until the document is admitted into evidence. If our view of Hearne v Street is incorrect then, nevertheless, the weight of authority in Australia supports the view that the obligation ceases to apply to a document once it is admitted into evidence: Esso, Ainsworth, Hospital Products, McPherson, and Eltran. Either way, at the least, the rationale for the existence of the obligation in Australia does not extend to a secondary source which has itself become public (the most obvious examples of which are a

judgment or a transcript). Harman never suggested to the contrary . . .”

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

ADMINISTRATIVE AND MIGRATION LAW

Nature of a court order that a matter be remitted to the Administrative Appeals Tribunal “for determination according to law” – complementary protection provisions in the Migration Act 1958

In BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222 (10 December 2020) the Full Court dismissed an appeal from the Federal Circuit Court of Australia. The main issue raised by the appeal was whether the “complementary protection” provisions in the Migration Act 1958 (Cth) are capable of application where an applicant for a protection visa claims that he or she will suffer psychological harm if returned to his or her home country on the basis of an act that occurred in the past in the home country. The Full Court held that, having regard to the text, legislative history and context, the preferable construction of s36 of the Migration Act is that an act or omission that is wholly in the past is not capable of engaging the complementary protection criterion in the Migration Act (at [86]).

One of the grounds of appeal was that the Federal Circuit Court erred by failing to hold that the Administrative Appeals Tribunal (AAT) erred by failing to apply an earlier judgment of the Federal Circuit Court (ground 1). In the earlier judgment the Federal Circuit Court set aside a decision of the AAT and remitted the matter to the AAT for “determination according to law”. The appellant contended that the earlier Federal Circuit Court decided that the complementary protection provisions could apply where a person will suffer the consequences of a past act, and the AAT was bound to apply that decision (particularly in circumstances where the Minister did not appeal from the Federal Circuit Court judgment).

The Full Court rejected ground 1. In so doing, it considered whether the AAT is bound to decide the matter in accordance with a legal conclusion expressed in the reasons for judgment of the court remitting the matter, irrespective of the correctness of that conclusion (at [58]-[60]). Chief Justice Allsop and Moshinsky and O’Callaghan JJ explained (at [58]): “. . . The matter was remitted to the Tribunal “for determination according to law”. The Tribunal was therefore bound to apply the law to the determination of the matter following its remittal. It may be accepted that, in the usual case, the law will have been correctly stated in the judgment of the court that remits the matter. However, there may be exceptional cases where that is not the case. For example, it may be that, in the period between the judgment of the court remitting the matter and its redetermination by the Tribunal, a higher court has resolved the issue differently from the court that remitted the matter. In such a case, the obligation on the Tribunal would be to apply the law as stated by the higher court, this being the correct statement of the law on the point.”

Misleading or deceptive conduct – trading corporation – in trade or commerce

In ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Transport Workers’ Union of Australia [2020] FCA 231 (22 December 2020) the Full Court heard ALDI’s appeal from the dismissal of its claim under s18 of the Australian Consumer Law, and specifically the conclusions that the communications made by the respondent (TWU) were not made in trade or commerce and that the TWU is not a trading corporation.

The events underlying the claim were that, during 2017, the TWU published various communications relating to ALDI in the form of media releases, hand-distributed pamphlets and flyers, a media interview and a Facebook post, and undertook certain protest actions at a number of ALDI stores and an ALDI distribution centre. The communications included statements to the effect that ALDI’s contractual arrangements with trucking companies resulted in truck drivers being underpaid and put under pressure, causing them to speed and drive long hours without mandatory breaks with a detrimental impact on transport safety. ALDI commenced a proceeding against the TWU which included a claim alleging that its conduct constituted a breach of s18 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth), which prohibits misleading or deceptive conduct. The primary judge found that the communications made by the TWU were not made in trade or commerce and also that the TWU was not a trading corporation. Although it was unnecessary to resolve whether the relevant communications were misleading or deceptive or likely to mislead or deceive, the primary judge concluded that the alleged representations made by the TWU in the communications, save in one respect, were likely to mislead.

The Full Court dismissed ALDI’s appeal. On when conduct is “in trade or commerce”, the Full Court analysed the leading authority, being the High Court decision in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (at [27]-[36]). As a matter of fact and as a matter of legal principle, the Full Court rejected ALDI’s submissions that the TWU’s conduct was in trade or commerce because it was intended to discourage consumers from shopping at ALDI (at [47]). Besanko, Bromberg and O’Bryan JJ stated at [53]: “Misleading conduct may affect, and may be intended to affect, the choices of consumers as to the products they purchase and the places they purchase from. However, that circumstance alone does not support a finding that the misleading conduct is in trade or commerce. The misleading conduct certainly relates to trade or commerce. But the conduct will not be in trade or commerce unless in some relevant way the conduct can be said to be an activity that bears a trading or commercial character. Mere advocacy of a social, industrial or political cause is not such an activity. There are many examples of this principle in the decided cases . . .”

The Full Court also rejected ALDI’s contention that the core activities of the TWU, seeking to advance the industrial interests of its members, is a trading or commercial activity such that the TWU is a trading corporation (at [62]). However, that is not to suggest that a union is incapable of conducting a commercial or business activity; for instance, a union may provide training or similar services for reward. The Full Court’s conclusion was limited to the contention advanced by ALDI that the primary activities of the TWU, industrial advocacy, are a commercial or business activity (at [65]).