Background
Kyle Sandilands and companies associated with him brought proceedings against Commonwealth Broadcasting Corporation Pty Ltd and Australian Radio Network Pty Ltd. The case was jointly managed with a related proceeding brought by Jacqueline Henderson and associated companies because the disputes had substantial factual and legal overlap. Sandilands and Henderson had formerly co-hosted a radio program for the respondents, and both proceedings arose from a falling out between them and subsequent disputes with the related broadcasting companies.
After the Sandilands parties and the respondents executed a deed of release on 16 June 2026, their claims and cross-claims were discontinued. Shortly before the Sandilands parties returned the executed deed, however, they filed affidavits from Sandilands and his business manager, Bruno Bernard Bouchet. The respondents sought a declaration that the affidavits were not restricted by the obligation described in Hearne v Street, which ordinarily prevents material obtained through compulsory court processes from being used for another purpose without leave. Alternatively, they sought permission to use the affidavits in the continuing Henderson proceeding.
The Court’s Holding
Justice Stewart declared that neither affidavit was subject to an obligation owed to the Court restricting its use to the Sandilands proceeding. An ordinary timetable requiring a party to file the evidence on which it intends to rely does not compel disclosure in the relevant sense: the party remains free to decide whether to file a particular affidavit and what information it will contain.
The chronology provided an additional reason for the conclusion. Before filing the affidavits, the Sandilands parties already possessed a deed of release executed by the respondents on terms the Sandilands parties themselves had proposed. They could have executed the deed and completed the settlement without filing the affidavits, so the disclosure was voluntary. The Court distinguished any use of information from the separate question whether the affidavits themselves would be admissible in the Henderson proceeding. It also rejected the respondents’ argument that late filing alone negated compulsion, observing that material produced late in attempted compliance with an order may still be produced under compulsion.
Key Takeaways
- The Hearne v Street obligation applies to documents or information disclosed under compulsion, not automatically to every affidavit filed in litigation.
- An ordinary evidence timetable does not compel the contents of an affidavit when the filing party controls whether to rely on that affidavit and what to include.
- Permission to use information from an affidavit is a distinct issue from whether the affidavit will be admissible in another proceeding.
Why It Matters
The decision clarifies the boundary between compulsory disclosure and a party’s voluntary filing of evidence. Litigants should not assume that affidavits filed pursuant to routine evidence timetables receive the same use restrictions as documents produced through discovery, subpoena, or another compulsory process.
The ruling also highlights the importance of timing around settlement. Filing evidence after the practical ability to conclude a settlement has arisen may support a finding that the disclosure was voluntary, leaving the information available for use beyond the proceeding in which it was filed.