Australian Industry Group v Fair Work Australia

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FEDERAL COURT OF AUSTRALIA

Haile-Michael v Konstantinidis [2012] FCA 108

Citation: Haile-Michael v Konstantinidis [2012] FCA 108
Parties: DANIEL HAILE-MICHAEL, ROBERT KOUA, JIBRIL GOD, ZAKARIA GOD, SHUAIB ALI, AHMED MUSSA, MAKI ISSA, HAKIM HASSAN, MAGNUS KABA, ABDUL ABDI and BASHIR HUMED v NICK KONSTANTINIDIS, BRETT PATTIE, SHANE DAVIES, NICK O'BRIEN, PAUL GILMOUR, PETER MEATH, DENIS LINEHAN, CHIEF COMMISSIONER OF VICTORIA POLICE and STATE OF VICTORIA
File number: VID 969 of 2010
Judge: MARSHALL J
Date of judgment: 14 February 2012
Catchwords: PRACTICE AND PROCEDURE – interlocutory application – discovery – implied undertaking in regard to the use of discovered documents – whether a party should be required to make an express confidentiality undertaking in regard to particular discovered documents
Legislation: Australian Human Rights Act 1986 (Cth) s 46PO(4)
Racial Discrimination Act 1975 (Cth) s 9(1), s 18C
Cases cited: Hearne v Street (2008) 235 CLR 125
Kimberley Mineral Holdings v McEwan [1980] 1 NSWLR 210
Kirby v Centro Properties Ltd [2009] FCA 695
Date of hearing: 14 February 2012
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 16
Counsel for the Applicants: Mr R Doyle SC with Ms P Knowles
Solicitor for the Applicants: Arnold Bloch Liebler
Counsel for the Eighth Respondent: Mr P Hanks QC with Ms R Orr
Solicitor for the Eighth Respondent: Norton Rose Australia

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 969 of 2010
BETWEEN:

DANIEL HAILE-MICHAEL
Third Applicant

ROBERT KOUA
Fourth Applicant

JIBRIL GOD
Fifth Applicant

ZAKARIA GOD
Sixth Applicant

SHUAIB ALI
Eighth Applicant

AHMED MUSSA
Tenth Applicant

MAKI ISSA
Twelfth Applicant

HAKIM HASSAN
Thirteenth Applicant

MAGNUS KABA
Fourteenth Applicant

ABDUL ABDI
Fifteenth Applicant

BASHIR HUMED
Sixteenth Applicant
AND:

NICK KONSTANTINIDIS
First Respondent

BRETT PATTIE
Second Respondent

SHANE DAVIES
Third Respondent

NICK O'BRIEN
Fourth Respondent

PAUL GILMOUR
Fifth Respondent

PETER MEATH
Sixth Respondent

DENIS LINEHAN
Seventh Respondent

CHIEF COMMISSIONER OF VICTORIA POLICE
Eighth Respondent

STATE OF VICTORIA
Ninth Respondent

JUDGE:

MARSHALL J

DATE OF ORDER:

14 FEBRUARY 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The eighth respondent’s interlocutory application of 16 November 2011 is dismissed.

2.Order 1 of the orders sought in the applicants’ interlocutory application of 17 November 2011 is made only insofar as it refers to documents “7.00001” and “7.00002”.

3.Costs reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 969 of 2010
BETWEEN:

DANIEL HAILE-MICHAEL
Third Applicant

ROBERT KOUA
Fourth Applicant

JIBRIL GOD
Fifth Applicant

ZAKARIA GOD
Sixth Applicant

SHUAIB ALI
Eighth Applicant

AHMED MUSSA
Tenth Applicant

MAKI ISSA
Twelfth Applicant

HAKIM HASSAN
Thirteenth Applicant

MAGNUS KABA
Fourteenth Applicant

ABDUL ABDI
Fifteenth Applicant

BASHIR HUMED
Sixteenth Applicant
AND:

NICK KONSTANTINIDIS
First Respondent

BRETT PATTIE
Second Respondent

SHANE DAVIES
Third Respondent

NICK O'BRIEN
Fourth Respondent

PAUL GILMOUR
Fifth Respondent

PETER MEATH
Sixth Respondent

DENIS LINEHAN
Seventh Respondent

CHIEF COMMISSIONER OF VICTORIA POLICE
Eighth Respondent

STATE OF VICTORIA
Ninth Respondent

JUDGE:

MARSHALL J

DATE:

14 FEBRUARY…

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Details
Case
[2012] FCA 108
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Australian Industry Group v Fair Work Australia involved an interlocutory application concerning the discovery of certain documents. The Chief Commissioner sought an order requiring the applicants and their solicitors to sign a confidentiality undertaking before inspecting specific documents, the Doney and Feltham reports. These reports were described as confidential interim reviews of police relations with the Horn of Africa community in Flemington. The Chief Commissioner argued that without an express confidentiality undertaking, there was a significant risk of the reports being disclosed to third parties or the media. The applicants, however, contested the necessity of such an express undertaking, asserting that an implied undertaking already existed to prevent misuse of the discovered documents.

The legal issues at the heart of this case revolved around whether an express confidentiality undertaking was necessary in addition to the implied undertaking that typically accompanies the discovery of documents in a legal proceeding. The Chief Commissioner contended that the sensitive nature of the reports and the risk of unauthorized disclosure warranted the requirement of an express undertaking. Conversely, the applicants argued that the implied undertaking was sufficient to protect the confidentiality of the documents and that there were no exceptional circumstances that would justify the additional requirement.

The court considered the principles governing the use of discovered documents, noting the existence of an implied undertaking that prevents their use for purposes unrelated to the proceeding. The court also acknowledged that in special or exceptional cases, an express undertaking may be required to reinforce the seriousness of the obligation. However, the court found that the Chief Commissioner had not demonstrated any exceptional circumstances that would necessitate an express confidentiality undertaking. The nature of the reports, which concerned allegations of abuse of police power and human rights infringements, did not present the same risks as commercial litigation where trade secrets or competitive advantages might be at stake. Consequently, the court dismissed the Chief Commissioner's application, ruling that the implied undertaking was sufficient to safeguard the documents against improper use.

The court made several orders, including dismissing the Chief Commissioner's interlocutory application and granting a specific order relating to the inspection of documents "7.00001" and "7.00002" as sought by the applicants. Costs were reserved for a later determination.

Orders

Orders of the court

1. The eighth respondent’s interlocutory application of 16 November 2011 is dismissed.

2. Order 1 of the orders sought in the applicants’ interlocutory application of 17 November 2011 is made only insofar as it refers to documents “7.00001” and “7.00002”.

3. Costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

By an earlier interlocutory application filed on 14 November 2011, the Chief Commissioner sought an order that any applicant in the proceeding, and any solicitor acting for any applicant, prior to inspecting the Doney and Feltham reports, sign a confidentiality undertaking and provide it to the Chief Commissioner’s solicitors. The evidence The Chief Commissioner relies on an affidavit of Superintendent Peter Lardner. In that affidavit the Doney report is described from its terms. The following points are made:·it is an interim report resulting from a review of the relations between the police and the Horn of Africa community in Flemington;·Inspector Doney was appointed as an independent investigator to ensure confidentiality and to encourage open and honest reports from participants to the review;·the names of police members who participated in one-on-one interviews as part of the review are to remain in the possession of the author and are not included in the report;·the report was to be kept confidential;·disclosure of its contents would impede full and frank contributions by the police members in future inquiries; and·in the absence of express undertakings there is significant risk that the Doney report and the Feltham report would be disclosed to third persons or the media. In support of that view the affidavit refers to contact with the media about this proceeding by legal representatives of the applicant, their express desire to publicise information of the Doney report and the potential for dissemination as a result of the large number of volunteers working for the Flemington and Kingston Community Legal Centre (“the Legal Centre”). In respect of the last point, the affidavit refers to press articles containing quotes from Ms Tamar Hopkins of the Legal Centre and from one applicant, Mr Haile-Michael. The first is an article which appeared in the Moonee Valley Leader on 7 July 2011. There is nothing in the article that suggests Ms Hopkins or Mr Haile-Michael would breach any implied undertaking not to use the Doney report for any purpose unconnected to this proceeding. The second is an article which appeared in The Age on 24 July 2011. Again, there is nothing in that article to suggest it likely that any implied undertaking would be insufficient to stop improper use of the Doney report or the Feltham report. The affidavit also asserts a strong desire in the Legal Centre to disclose information of the nature of that contained in the relevant documents. Reference is made to Ms Hopkins’ view that it is in the public interest for the community to know what was happening at Flemington Police Station. An expression of such a desire is not inconsistent with accepting an obligation to be bound by an implied undertaking with respect to the documents now that they have been discovered. Further, the affidavit refers to a large number of volunteers who work at the Legal Centre and the fact that at least one volunteer has disclosed her role in the proceeding. The description by one volunteer of her role in the proceeding is not inconsistent with that volunteer or others accepting that she or they are bound by an implied undertaking.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The relevant principles for current consideration are as follows:·there is an implied undertaking by parties to any proceeding that they will not use documents produced during discovery other than for the purpose of conducting that particular proceeding (Hearne v Street (2008) 235 CLR 125 at [105]);·it is open to the court to take particular steps to ensure that access to certain discovered materials be restricted to use in connection with the particular proceeding by the requiring of an express undertaking in special cases (Kimberley Mineral Holdings v McEwan [1980] 1 NSWLR 210 at [212]-[213] or exceptional cases (Hearne at [116]);·express undertakings as to the use of discovered documents have frequently come to be extracted in commercial litigation, especially where the documents are particularly sensitive, to reinforce to those who are required to sign them the seriousness of their obligation not to use the documents for a collateral purpose (Hearne at [116] and Kirby v Centro Properties Ltd [2009] FCA 695, per Ryan J).Consideration I agree with counsel for the applicants that the Chief Commissioner has not articulated any exceptional (or special) circumstances which warrant the requirement that an express undertaking as to the discovered documents is required from the applicants and their advisors. The implied undertaking applies to the applicants, their legal advisors (including volunteers at the Legal Centre) and expert witnesses. The implied undertaking gives sufficient protection against the use of those documents other than for the purpose of this proceeding. This is not a case where trade secrets may be divulged or some commercial advantage may be lost. It is a case involving what amounts to an allegation of abuse of police power and infringing of human rights. If the applicants and their advisors and those assisting them were in any doubt about their obligations in respect of the discovered documents the subject of this judgment they can no longer be in any doubt about their obligations with respect to their proper use. It is beside the point that the Victorian Civil and Administration Tribunal (“VCAT”) declined to allow public release of the documents. The issues relevant to VCAT’s consideration are not those the subject of current consideration. The documents have been discovered. No objection is made to their inspection per se. It is only that an express undertaking is said to be appropriate. For the reasons set out above I disagree!Disposition of this issue The Chief Commissioner’s interlocutory application of 14 November 2011 will be dismissed. Order 1 of the orders sought in the applicant’s interlocutory application of 17 November 2011 will be made insofar as it refers to documents “7.00001” and “7.00002”.Other interlocutory issues Other interlocutory issues dealt with today will be the subject of separate reasons at a later time.