British American Tobacco Australia Services Ltd v Cowell
[2003] VSCA 43
•28 April 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.5288 of 2002
| BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LTD. | Appellant |
| v. | |
| ROXANNE JOY COWELL, as representing the estate of ROLAH ANN McCABE deceased | Respondent |
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JUDGES: | PHILLIPS, BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 and 5 September, 6 December 2002 | |
DATE OF JUDGMENT: | 28 April 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 43 | 1st Revision – 2 May 2003 |
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Courts – Practice and procedure – Documents produced under coercion - Discovered documents - Answers to interrogatories – Witness statement - Implied undertaking limiting use by opponent – Whether undertaking endures once document put in evidence – Distinction between documents brought into existence for use at trial and documents disclosed upon discovery – Use of document itself distinguished from use of information made public about the document – Distinction between tender at trial and tender during interlocutory proceeding.
Evidence – Legal professional privilege – Imputed waiver occurring during interlocutory proceeding – Whether waiver limited to interlocutory proceeding.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr. A.J. Myers QC. and Mr. S.A. O’Meara | Corrs Chambers Westgarth |
| For the Respondent | Mr. B.F. Quinn | Slater and Gordon |
PHILLIPS, J.A.
BATT, J.A.
BUCHANAN, J.A.:
This is an appeal from orders made in the Trial Division on 7 May and 15 May 2002 over the use that might be made by the plaintiff of certain documents produced to the Court in an earlier proceeding between the same parties and put in evidence, but in large part only after the trial judge had overruled a claim by the defendant (the present appellant) to legal professional privilege. The background to the appeal is complicated and needs explanation.
Background
On 26 October 2001 the late Mrs. McCabe commenced proceeding No.8121 of 2001 in the Trial Division against the defendant, British American Tobacco Australia Services Ltd. Mrs. McCabe was seeking damages for personal injury occasioned, it was claimed, through her smoking the defendant’s cigarettes over many years. On 25 January 2002 the plaintiff applied by summons for an order striking out the defence of the defendant on the ground of irregularities in discovery. In brief, it was alleged that the defendant had engaged in a policy of document destruction to put beyond the reach of would-be plaintiffs evidence which they might otherwise obtain on discovery and use to the detriment of the defendant.
In the course of the application to strike out the defence, a great number of documents were produced in response to a notice to produce served on the defendant in consequence of discovery, a call for documents made on it by plaintiff’s counsel during the hearing and two subpoenas for the production of documents served upon Clayton Utz and Mallesons Stephen Jaques, the defendant’s solicitors. During cross-examination of deponents of affidavits filed on behalf of the defendant, many of these documents were put in evidence at the instance of plaintiff’s counsel, together with the defendant's answers to interrogatories and a witness statement from an expert (one Dr. Seiden) prepared for the trial and made available to the plaintiff under Order 44 of Chapter I of the Rules[1]. Some 38 documents are now in question and claims for legal professional privilege in respect of 32 of these were overcome by a finding that the defendant had waived privilege, by imputation.
[1]The statement was a supplementary one by Dr. George Seiden dated 26 February 2002. It was marked as Exhibit P51. Delivered under Order 44, it was not an ordinary witness statement. Rather it was a statement of "the substance of the evidence it is proposed to adduce [at trial] from the witness as an expert" (as required by Rule 44.03), but the difference is of no present significance and it is ignored in what follows.
The imputation was said to arise out of an affidavit of one Graham Franklin Maher, the defendant’s then in-house solicitor, sworn on 29 January 2002 and filed by the defendant in opposition to the application for striking out. That affidavit had exhibited a letter of advice from Mallesons Stephen Jaques dated 19 March 1998 and an earlier letter from Clayton Utz dated 7 July 1992. It was not in dispute that in relation to those two letters legal professional privilege had indeed been waived by the defendant: what was in dispute was whether the waiver should be taken to extend beyond the exhibits to the affidavit. The defendant contended that it should not but the judge disagreed and it was as a result of that ruling that the documents that ultimately went into evidence included the 32 for which privilege was claimed.
In fact those documents formed a base for much of his Honour's reasoning when, on 22 March 2002, he published his reasons for acceding to the plaintiff's application to strike out the defence and directing that the trial proceed as an assessment of damages only. Orders to that effect were made on 25 March 2002, the damages were then assessed and judgment was given for the plaintiff accordingly on 11 April 2002. (An appeal by the defendant was argued in September 2002; it was allowed on 9 December last and a new trial ordered. Regrettably Mrs. McCabe died in the meantime, on 26 October.)
On 24 April 2002 Mrs. McCabe commenced the present proceeding, No.5288 of 2002, by filing an originating motion. The summons which she filed at the same time was supported by an affidavit of her solicitor, Mr. Peter Gordon, in which he asseverated that he had received two requests to provide copies of documents concerning the decision in the earlier proceeding for damages. The first, a request dated 21 April 2002, was from the U.S. Department of Justice in Washington D.C. in relation to a claim (in which it was representing the United States) alleging violation of the Racketeer Influenced and Corrupt Organisations Statute 1961 against “certain cigarette companies, including British American Tobacco (Investments) Ltd. ... and its North American affiliate agent Brown and Williamson Tobacco Corp.”. (Neither of the two named companies was party to either of the proceedings commenced by Mrs. McCabe in the Supreme Court here.) The letter sought Mr. Gordon's "assistance in obtaining materials concerning the recent decision" in proceeding No. 8121 of 2001, with a view in particular to the taking of depositions during April and May 2002. Apparently the department was inquiring into "document management policies" and the letter concluded with a request for "the appendices to the decision dated 22 March 2002, as well as any other record materials that you may be able to provide, or that the court may deem relevant, and just and proper for release".
The second request was from the Australian Competition and Consumer Commission dated 18 April 2002. That Commission said that it was investigating possible breaches of the Trade Practices Act 1974 by the defendant and by Clayton Utz arising from conduct identified in the reasons for judgment of 22 March 2002 in the proceeding for damages. The Commission requested “a copy of documents in your possession which relate to the McCabe matter and which you are able to provide voluntarily”. The documents requested were transcripts of court proceedings, pleadings, affidavits filed on behalf of the plaintiff and “any other document you think may be relevant”. As the judge was later to observe, these two letters of request were by no means specific; none the less they apparently were sufficient to move the plaintiff to commence this, her second, proceeding in the Trial Division.
According to the summons filed on her behalf on 24 April 2002 the plaintiff was seeking the following relief:-
"2.A declaration that the following documents are not the subject of any implied undertaking by the Plaintiff or her solicitors:
(a)All exhibits tendered in evidence during the Plaintiff's application commenced by summons dated 25 January 2002 in proceeding numbered 8121 of 2001.
(b)All Affidavits (and exhibits attached thereto) filed and served by the defendant for the purposes of the plaintiff's application commenced by summons dated 25 January 2002 in proceeding numbered 8121 of 2001.
3.Alternatively, that the plaintiff and her solicitors be released from their implied undertakings in relation to the documents identified in paragraph 2 herein."
Paragraph 2(b) is of no present concern because, when the matter was argued, defendant’s counsel accepted that the plaintiff needed no relief in relation to affidavits (and the exhibits thereto) filed and served by the defendant on the application to strike out the defence, no doubt because such affidavits had been filed voluntarily and had been duly read and relied upon by it on that application. As to paragraph 2(a), during the hearing of the summons the subject of the relief sought in paragraph 2(a) was identified with more particularity, as being the 38 documents already mentioned.
Despite, however, the terms in which paragraph 2 commences, the plaintiff was not contending that the 38 documents in question were never the subject of an implied undertaking by the plaintiff; rather her counsel was contending only they were no longer the subject of an undertaking by reason of their admission into evidence in the earlier proceeding. When the matter was argued, the parties appeared to be ad idem that the documents were such as to attract the undertaking in the first place, no doubt because they were produced under coercion - whether by reason of the notice to produce addressed to the defendant or the subpoenas served on the solicitors or otherwise. That they were produced under the compulsive powers of the court seems to have been common ground, for that was the basis upon which the judge expressly proceeded. None the less his Honour (who was not the trial judge in the earlier proceeding) upheld the plaintiff's submission, ruling that the undertaking had come to an end upon the admission of the documents into evidence and that the plaintiff was therefore free to use those documents for such lawful purposes as she wished. There was no need then for the judge to consider the alternative relief sought in paragraph 3 of the plaintiff's summons.
His Honour so decided on 7 May 2002, delivering comprehensive reasons for judgment in the course of which he pointed out that, while the trial judge in the earlier action for damages had rejected the defendant's claim to legal professional privilege in respect of 32 of the documents in question, that had been for the purposes of the plaintiff's application to strike out the defence and that it had not yet been determined how far, if at all, that ruling went beyond the determination of that interlocutory application, or alternatively the final determination of the whole action (being the judgment on 11 April). No application having yet been made to restrain the plaintiff from dealing with the documents over which the privilege had been claimed, His Honour invited a cross-application to that effect and, supported by an interim restraining order, the defendant duly made such an application by filing an amended summons on 8 May 2002. On 15 May, his Honour dismissed the application, holding that as no limitation had been placed on the waiver when made during the earlier proceeding it would be altogether inappropriate to place a limitation on it now, with the result that the consequences of the waiver endured beyond the determination of the application for striking out on 25 March 2002 and, if it mattered, the giving of judgment for the plaintiff on 11 April.
It is against the orders just described, made on 7 May and 15 May 2002, that the defendant now appeals by notice filed on 17 May 2002. Leave to appeal was granted by this Court on 14 June 2002 nunc pro tunc. Pending the hearing and determination of the appeal a restraining order was obtained first from the trial judge and then, on 14 June 2002, from the Court of Appeal. In both the orders of 7 May and of 15 May, only 37 documents (instead of 38) were identified when the orders were authenticated, but the parties were agreed that this was a slip: the document identified as Exhibit P31 had been omitted by mistake. Accordingly we made an order by consent, under the slip rule, that the orders of 7 and 15 May be corrected and we made a similar and consequential order by consent in relation to the restraining order made on 14 June. Those orders were made by us on the first day of argument and we proceed upon the footing that the necessary corrections have since been effected. The parties were agreed that the appellant's notice of appeal should be treated as if amended mutatis mutandis.
On 6 December last we delivered judgment in the earlier and associated appeal brought by the appellant against the judgment for damages in favour of Mrs. McCabe and, as already mentioned, that appeal was allowed and a retrial ordered when orders were pronounced on 9 December. In the course of our reasons for judgment we held that the trial judge had fallen into error in ruling that legal professional privilege had been waived by the appellant over documents coming into existence over many years - "from early 1990 until late 1998" - and as a result much of his Honour's reasoning for striking out the defence was significantly undermined and could not stand. Our opinion on privilege now has its bearing on the present appeal; for it means that of the 38 documents put in issue on this appeal 32 of them are still properly regarded as subject to legal professional privilege so that, being protected by privilege, they are not available to the respondent on any view; the appellant need establish no more to succeed on this appeal in relation to those 32 documents.
This appeal had been argued in September immediately following upon the conclusion of argument on the earlier appeal against the judgment for damages and we reserved our decision on both appeals. In view of the opinion we expressed on legal professional privilege when delivering judgment in the earlier appeal, we asked counsel on 6 December whether they wished still to pursue this appeal over the remaining documents, given that there were now only six in contest and of those most of them at least seemed pretty innocuous[2]. We were told that the parties did persist in seeking the determination of this appeal and, although we considered revoking leave to appeal, we concluded on reflection that the appeal ought to be determined. In the event it would have been sufficient for us now to express an opinion in respect of only the six documents still in issue, but given the fact that the appeal was fully argued - and very well argued on both sides if we may say so - and given, too, that the respondent has already filed an application in the High Court seeking special leave to appeal against our determination of the earlier appeal, it seemed appropriate for this Court to express its views on all the matters argued, in case this matter, too, is carried further. Accordingly in what follows we deal with all 38 documents, not simply six of them.
[2]More particularly they were Exhibits P4, P5, P6, P8, P45 and P51 on the plaintiff's application to strike out the defence.
Waiver as to 32 documents
When the subject application and cross-application were argued in the Trial Division it had to be accepted, of course, in relation to 32 of the documents put in issue that the appellant had waived its claim to legal professional privilege during the trial of the earlier proceeding; for that had been the trial judge's ruling. It is convenient, then, to deal first with the respondent's contention relating to those 32 documents which succeeded below, that the waiver imputed to the appellant during the application to strike out the defence had not been limited or circumscribed at all, with the result that it endured beyond the end of the application itself, and (if it be different) beyond the end of the whole proceeding when judgment for damages was given.
On this appeal both parties accepted his Honour's view that waiver of legal professional privilege could be limited to purpose or context[3] - although, in Mr. Quinn's submission, that was so only when the waiver was voluntary or express. The appellant contended that his Honour had erred in concluding that in this instance no limitation had been placed upon the waiver in the earlier proceeding. Thus, Mr. Beach took us to passages in the transcript of the proceedings at trial to demonstrate that counsel for the defendant did assert, more than once, that in waiving privilege it was done simply for the purposes of the application before his Honour - meaning the application to strike out the defence. Moreover, the appellant pointed to plaintiff’s counsel, in final address, arguing that there were difficulties in the judge's treating the drawing of inferences adversely to the defendant as a sufficient remedy, in itself, for what he characterised as the wholesale destruction of documents done for the purpose of defeating prospective plaintiffs when, he said, the defendant was likely to rest at trial upon its claim to privilege in order to defeat the tender of the documents grounding the inferences. The appellant contended that in so arguing before the trial judge counsel for the plaintiff had been accepting that the waiver of privilege (as found by his Honour) had been only for the purpose - the limited purpose - of the application to strike out the defence; he had accepted that it had not been for the purpose of the proceeding as a whole.
[3]Goldberg v. Ng (1995) 185 C.L.R. 83 at 95-96. See also Re Stanhill Consolidated Limited [1967] V.R. 749 at 750 per Menhennitt, J., Goldman v. Hesper [1988] 1 W.L.R. 1238, British Coal Corporation v. Dennis Rye Ltd. (No.2) [1988] 1 W.L.R. 1113 and Bourns Inc. v. Raychem Corp. [1999] 3 All E.R. 154.
Mr. Quinn answered that the reference in final address before the trial judge had come too late to matter, coming as it did after privilege had first been waived by the defendant and (he said) waived without qualification in respect of the critical exhibits to Mr. Maher’s affidavit; the rest (that is to say, the waiver of privilege as it affected the 32 documents now in question) was by imputation. Final address by plaintiff's counsel did no more, he said, than to build argumentatively upon a possibility and therefore should not be regarded as a concession. But, as Mr. Beach contended, the plaintiff herself had gained some advantage in proceeding upon the basis that, when waived initially, the waiver had been only limited. Not only did the trial judge dismiss the possibility of drawing adverse inferences as a suitable remedy to meet the alleged destruction of documents (and in that regard he was perhaps moved by counsel’s argument about the difficulties, should the defendant seek to maintain its claim to legal professional privilege), but later the plaintiff argued that a suppression order, sought by the plaintiff, was not really necessary, given the limited nature of the waiver so far in place. The judge accepted that submission and accordingly, the appellant now contended, it was too late for the respondent, on this appeal, to put a contrary argument.
In our opinion, the appellant's submission should be accepted: the waiver of privilege was for the limited purpose of the application before the judge to strike out the defence. It attached, in that limited form, to the documents exhibited to Mr. Maher’s affidavit and, if (as the trial judge held) it followed through to other documents by imputation, then it surely attached in the same limited form to those other documents, which included the 32 now in question[4]. We reject Mr. Quinn's submission that imputed waiver flows directly from notions of "fairness", which makes altogether irrelevant the actual intention of the party to whom the waiver is imputed. It follows, then, that an order ought to have been made on 17 May as sought by the appellant by its cross summons, restraining the respondent from making free with those 32 documents even to the limited extent described in her summons of 24 April.
[4]In Golberg v. Ng 185 C.L.R. at 96, Deane, Dawson and Gaudron, JJ. said that, like an express waiver, an imputed waiver could be limited in application to "particular persons, materials or purposes".
Of course the foregoing merely provides an additional reason why the restraining order should have been made on 17 May. The primary reason for such an order must be our holding on 6 December last, when allowing the appeal in the earlier proceeding, that during the application to strike out the defence there had been no waiver of legal professional privilege by imputation. But if (contrary to our opinion) there was such imputed waiver in respect of the 32 documents now in question, then that waiver was for the purpose only of the application to strike out the defence and not otherwise. Beyond that application it was as if there had been no waiver at all.
The implied undertaking
It was common ground before us that the 38 documents, the subject of this proceeding, were produced to the court only as a result of the coercive processes of the Court (whether by subpoena duces tecum addressed to the appellant's solicitors, or by notice to produce addressed to the appellant itself after discovery, or otherwise) and that, accordingly, all 38 were subject to an implied undertaking by the party gaining access to the documents not to make use of them or their contents otherwise than for the legitimate purposes of the litigation: Distillers Co. (Bio-chemicals) Ltd. v. Times Newspapers Ltd.[5], Riddick v. Thames Board Mills Ltd.[6], Harman v. Secretary of State for the Home Department[7], Sybron Corporation v. Barclays Bank Plc[8], Crest Homes PLC v. Marks[9], Bibby Bulk Carriers Ltd. v. Cansulex Limited[10], Esso Australia Resources Ltd. v. Plowman[11], Mobil Oil Australia Ltd. v. Guina Developments Pty. Ltd.[12] and more recently Hamersley Iron Ltd. v. Lovell[13], to name but a few.
[5][1975] Q.B. 613 at 618-20.
[6][1977] Q.B. 881 at 895-6.
[7][1983] 1 A.C. 280.
[8][1985] Ch. 299.
[9][1987] A.C. 829 at 853.
[10][1989] Q.B. 155 at 160-2.
[11](1995) 183 C.L.R. 10 at 32, 46.
[12][1996] 2 V.R. 34 at 37-38.
[13](1998) 19 W.A. R. 316, where the common law in respect of the implied undertaking is, if we may say so with respect, very helpfully explored.
The primary purpose of implying such an undertaking, it seems, is to protect the subject party's privacy and thereby inter alia to encourage full and frank disclosure whenever required for the purposes of the litigation. As Lord Roskill said in Harman[14] of documents obtained on discovery:-
"My Lords, a party to whom discovery has been made is in relation to his opponent’s documents at a great advantage in comparison with the rest of the world. Their owner until the moment of discovery arrives is entitled, subject only to such exceptions as a subpoena duces tecum, to absolute protection and privacy for them against all who seek them out however meritorious the motives may be of those who seek them out in the search for truth. Regret it as some may, there is no freedom of information statute in force in this country. That absolute right is qualified once the moment for discovery in litigation has arrived. But it is only qualified as respects the other party to that litigation who thereupon acquires a privilege special to himself of seeing his opponent’s documents but on terms that those documents may only be used by him or his advisers in furtherance of the litigation between them. This is a privilege or an advantage upon which our judicial process insists. Other judicial processes do not insist upon the like practice. But our judicial process insists upon this and that process involves invasion of an otherwise absolute right to privacy, albeit on strict terms in order that that privilege or advantage should not be abused. The sole purpose of according that privilege is that once discovery and inspection have taken place the party who has thus acquired this privilege or advantage may use those documents in the litigation against the party who has disclosed and produced them.” [Emphasis added]
To that end the party gaining access to the documents is bound to the court by means of the implied undertaking not to use the documents which it has been privileged to see for any "collateral or ulterior purpose", as that phrase was explained by Lord Diplock in Harman[15] - or at all events not to so use them without the leave of the court.
[14][1983] 1 A.C. at 322-33.
[15]At 302.
And so much was not in dispute here. As noted in the judgment under appeal, although the common law principle was abrogated in England in 1987[16] and in the Federal Court of Australia in 1989[17], it remains the law in Victoria. The issue at first instance, and on this appeal, was whether the marking of the 38 documents as exhibits during the hearing of the respondent’s application to strike out the defence of the appellant brought the implied undertaking to an end, leaving the respondent free to make whatever use she wished of the documents in question, without the need for leave of the Court. That was the contention of the respondent below and it was the view espoused by the judge. The appellant contends that that was error.
[16]Order 24 rule 14A, the origin and terms of which are recounted by Hirst, J. in Bibby Bulk Carriers [1989] Q.B. at 158-9.
[17]F.C.R. Order 15 rule 18.
For the appellant the argument focussed on the two English cases of Harman and Sybron. In Harman, the plaintiff had brought an action against the Home Office and on discovery the defendant produced some 2,800 documents, 800 of the more relevant of which were made up by the plaintiff 's solicitor into two bundles. In due course the two bundles of documents were put before the court and all, or nearly all 800, were read out by counsel in his opening address (which occupied some five days). Included amongst them were six for which the defendant had claimed public interest immunity from production, but unsuccessfully (although subsequently, and after counsel's opening address, those six were later held inadmissible as containing no admissions: see Williams v. Home Office[18]). A few days after counsel's opening address, the plaintiff's solicitor allowed a journalist, whom she knew to be a feature writer and who had been present during part of the opening address, to have access to the two bundles of documents and this was held to be a contempt - at first instance, in the Court of Appeal and again in the House of Lords.
[18][1981] 1 All E.R. 1151 and (No.2) [1981] 1 All E.R.1211, especially at 1232-5.
A majority of the Law Lords held that counsel’s reading of the documents had not operated to free the plaintiff or her solicitor from the implied undertaking not to use the documents, or to allow them to be used, for any purpose other than the proper conduct of the action on behalf of the client. The appellant contended that because legal proceedings were conducted in public and because, when the documents were read out, the public were notionally present, the implied obligation against improper use of the document must have come to an end with the reading of the document in open court, but three of their Lordships rejected that contention. Thus, Lord Keith of Kinkel said[19]:-
“The theory behind the proposition is that the reading out of the document destroys its confidentiality, and that, apart from considerations of copyright and defamation, the law does not prohibit the dissemination of documents which are not confidential. The implied obligation not to make improper use of discovered documents is, however, independent of any obligation existing under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality. There is good reason to apprehend that, if the argument for the appellant were accepted, there would be substantially increased temptation to a litigant to destroy or conceal the existence of relevant documents which would fall properly within the ambit of discovery. There is also reason to apprehend the introduction into proceedings of tactical manoeuvrings on either side designed to secure that discovered documents are or are not read out in full. Both these developments would be undesirable from the point of view of the proper administration of justice."
[19][1983] 1 A.C. at 308.
In Harman, the appellant argued that because the implied undertaking operated only to inhibit the use that might be made of the document by the party gaining access to it, it would be inconsistent, once the document had been read out in open court and so had entered "the public domain", to require the party to honour the undertaking while allowing the rest of the world to make whatever use it might of what had been read aloud in public. That argument, too, was rejected by the majority, Lord Roskill pointing out[20] how adventitious it was whether a document was read aloud by counsel or read by the judge for himself. If carried to its extreme (he said), logic would require, if the appellant was right, that all documents placed before the judge in the course of the opening were in "the public domain", whether read aloud or not and even if later ruled inadmissible; yet surely such was not so.
[20]At 324-5.
The point of inconsistency was revisited in Sybron, where Scott, J. (as he then was) simply distinguished the two positions thus[21]:-
[21][1985] Ch. at 321.
"It is necessary, in my judgment, to distinguish between the party on whom the undertaking is imposed on the one hand and third parties on the other hand. The undertaking binds the former, it does not bind the latter, who have given no undertaking. This distinction was recognised in Home Office v. Harman."
After describing Harman and the plaintiff 's contention that had the journalist obtained a transcript of what had been said by counsel in open court he could have used it without inhibition, as any other member of the public was free to do, and that therefore the solicitor could have done likewise, Scott, J. said[22]:-
"The reason why the journalist [in Harman] or any third party could have used information derived from a transcript is that third parties have not given and are not bound by any undertaking. If proceedings are held in open court information derived from any record of those proceedings can be used by third parties without regard to undertakings which may bind the parties thereto or their solicitors. But the position of the parties themselves depends not on what third parties may be able to do but on the scope of the undertaking that binds them. The purpose of the undertaking is to protect, so far as is consistent with the proper prosecution of the action, the confidentiality of the party’s private documents, and thereby to encourage the full and proper disclosure of documents that the administration of justice requires.”
Again the emphasis is on the right of the party to its privacy which the court will protect by means of the implied undertaking, albeit that that binds only the party gaining access to the document and does not inhibit the public at large.
[22]At 322.
The contrast drawn by Scott, J. may be thought striking, for it appears to put the party and its legal advisers in a much more restricted position than any third person who happens to be in court when the document in question is read out. On the other hand, the difference can surely be justified, given that the reading aloud of the document might well be less than complete, the judge might read the document to himself to save time, or counsel might be content to do no more than refer to it. If none the less the document goes into evidence the respondent would have it that the document has passed into "the public domain" and so beyond the reach of the party's implied undertaking, although the casual bystander in court at the time might have learnt little or nothing of the document's contents. Use of the documents themselves can then be validly contrasted with, say, use of the transcript of what, perhaps by chance, had been said in open court. To distinguish in that fashion is not to say that public discussion of the document is altogether irrelevant to the position of the party gaining access to it; for, as Scott, J. observed[23], it might then be easier for the party to gain the necessary leave to use the document otherwise than in the proceeding in which it was discovered, especially if the publicity attaching has been such as to diminish the need to protect privacy (a point taken up in Bibby Bulk Carriers[24]).
[23]At 322-3.
[24][1989] Q.B. at 165.
While accepting the general principles by which the implied undertaking was attracted in the first place, the respondent argued that Harman and Sybron were concerned with documents read in open court, and not with documents admitted into evidence. But this was a distinction which Lord Diplock at least was not prepared to recognise; for he said expressly[25]:
“Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party’s documents obtained upon discovery is, in my view, a contempt of court.” [Emphasis added]
The reasoning of Lord Roskill[26] suggests much the same line of thought, in that his Lordship's expressed concern over documents referred to in open court but later ruled inadmissible implies that, for the rest, the documents in mind may be supposed to have gone into evidence. Moreover, in Sybron the plaintiffs argued that the implied undertaking no longer had effect, in part because three of the documents in question had been included by the judge in an earlier judgment in the very proceeding in which they had been produced upon discovery - and if included in a judgment the documents had surely gone into evidence.
[25][1983] 1 A.C. at 304-5.
[26]At 324-5.
In Sybron, Scott, J. held that even disclosure of the documents within the reasons for judgment did not entitle the party to whom they had been discovered (as distinct from any member of the public) to make free with the contents of the documents. Indeed his Lordship was apparently of the view that that party was not free (without leave) to make use even of the transcript of proceedings or (as we follow it) the contents of the judgment itself, in so far as that transcript or that judgment dealt in any detail with discovered documents. With respect, however, we take leave to doubt that that is correct. It seems to us that if the party has available an alternative source of information about the contents of the documents, even a source deriving from the discovery of the documents, then, if that source be public, the party to whom the documents were first discovered should arguably be as free to make use of that alternative source of information as any member of the public undoubtedly is. That would mean that in Harman the solicitor should be regarded as having transgressed because she made free with the documents themselves as distinct from the transcript of what had been said in open court; but that is not the point of the case under appeal. What the respondent seeks in this instance is to make use of the documents themselves. Suffice it to say here that both Harman and Sybron were concerned, to a greater or lesser extent, with documents that actually went into evidence[27], so that both cases do lend weight to the appellant's argument that the respondent remained bound by her implied undertaking despite the marking of these 38 documents as exhibits in the course of the application to strike out the defence.
[27]The statement to the contrary made by Pincus, J. in Eltran Pty. Ltd. v. Westpac Banking Corporation (1990) 25 F.C.R. 322 at 324 appears to be inaccurate. The 800 documents were read out and only a few were held inadmissible: see paragraph [22] above and Harman at 296 (arguendo), 301.
For his part, Mr. Quinn relied principally upon dicta in two of the Australian cases: Esso Australia Resources Ltd. v. Plowman[28] and Ainsworth v. Hanrahan[29]. Esso was a case involving documents produced under compulsion in an arbitration and the question was whether they were protected in a similar manner to documents produced in court. After identifying the implied undertaking which attaches to documents produced upon discovery in proceedings in court (the authorities given for which included Harman) Mason, C.J. added[30]:-
”The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.”
The respondent contended that this was a clear qualification upon the implied undertaking that otherwise attached, meaning that the undertaking was at an end once the documents were put in evidence and passed thus into "the public domain".
[28](1995) 183 C.L.R. 10.
[29](1991) 25 N.S.W.L.R. 155.
[30]183 C.L.R. at 32-33.
The appellant, however, submitted that what his Honour said in Esso was capable of being understood as meaning only that a document, once adduced in evidence, became part of the public domain in which it could be used by any stranger to the litigation, which is not to say that the document therefore ceased to be subject to the implied undertaking binding the parties themselves - the distinction drawn so strikingly in Sybron. Indeed that submission can call in aid the like view expressed by Anderson, J. in Hamersley Iron[31] (albeit that that was a matter on which the other members of the Full Court specifically refrained from expressing an opinion[32]). If it be said that to admit of the use of the document by a stranger to the litigation is scarcely a "qualification" on the undertaking binding a party if the undertaking none the less subsists to bind that party, there is the further possibility (to which we have just adverted) that the party, too, enjoys the same freedom as the stranger to use whatever knowledge of the document has truly been made public. It is possible that Mason, C.J. had in mind no more than that making public the document or its contents (a result which may not follow simply from the document's being marked as an exhibit in the proceeding) may well work, to some extent at least, an easing of the undertaking or its consequences for the party (if the party's position is pro tanto like that of the stranger to the litigation); and such an easing would amount to a "qualification" on the operation of the undertaking, if not on the undertaking itself. But it would not mean that every time a document is put in evidence the undertaking ceases ipso facto.
[31]19 W.A.R. at 341.
[32]At 320 and 323.
Be that as it may, the observation of Mason, C. J. was but a passing remark[33] of no direct relevance to the issue then before the Court (which was whether an implied undertaking attached at all to documents produced upon discovery in an arbitration); the remark itself followed closely upon the citing of Harman without qualification; and no reasoning was offered to support the introduction of such a general exception to the common law as that for which the respondent now contends. However deserving of respect, the dictum is not enough in itself to establish the respondent's case in this regard.
[33]Although in Esso both Dawson and McHugh, JJ. concurred in the Chief Justice’s judgment (183 C.L.R. at 39 and 48) it may be doubted whether their concurrences are to be taken as extending to the dictum in question.
In Ainsworth, the Court of Appeal was considering whether the implied undertaking attached, not to documents produced upon discovery, but to answers to interrogatories, and the court held that it did. In the course of his judgment, Kirby, P. pointed out[34] that there were powerful reasons for distinguishing between the two, for the deponent “will have thought carefully and seriously about what is said” when answering interrogatories: in contrast, pre-existing documents have usually been produced without thought to litigation or public exposure. He said[35]:-
[34]25 N.S.W.L.R. at 167.
[35]At 167. The typographical slip of "risks" has been corrected.
“The risk of private, hurtful, extraneous or secret information being given in answer to interrogatories is considerably reduced when compared to the risk that discovery will produce to the public eye material which is private or confidential to the holder of the document. There is much greater opportunity ex post [facto] to control the supply of information than in [a] document produced without a moment’s thought to its subsequent public disclosure.”
Interrogatories on the other hand "are part of the civil procedure of the courts". Despite this contrast, his Honour concluded that the same rules (serving to attract an implied undertaking) should attach to each, answers to interrogatories and discovered documents. He said[36]:-
“The history and characteristics of each are not sufficiently distinguishable to permit the principled adoption of a different rule: see Adams v. Dickeson [1974] V.R. 77 at 79. Furthermore, the general privacy rule is one which should be respected. That rule can be applied without injustice in the case of the use of answers to interrogatories. It is always open to a party wishing to secure the use of such answers for other purposes to seek the permission of the court in whose process the answers have been given under compulsion. Once the answers are tendered or read in open court, pace Harman, the liability in contempt for their later use will evaporate: cf Gardner v. Moult (1839) 10 Ad & El 464; 113 ER 176; Richards v. Morgan (1863) 4 B & S 641; 122 ER 600 and Fleet, Administratrix of Mary Anne Ross v. Perrins (1868) LR 3 QB 536 at 540.”
Not surprisingly, the respondent seized upon the last sentence from this quotation to buttress the argument that, once tendered (in the sense of put in evidence), documents produced on discovery ceased to be subject to any implied undertaking as to use. We do not understand that his Honour, in adding “or read in open court”, was indicating other than that the answers had passed into evidence; and it may be accepted that once tendered and admitted at trial, answers to interrogatories do become available to all, for use thereafter as admissions against the party making those answers if for nothing else.
[36]At 168.
The appellant is correct in submitting that, as in Esso so also in Ainsworth, the comments relied upon by the respondent were obiter dicta. In Ainsworth the answers to interrogatories had not in fact gone into evidence before they were disclosed by one of the parties to a third person for purposes unconnected with the proceedings, and it was that which the court held to be contempt. It is, however, the considerations underlying the comments made which seem to us more important than the comments themselves. The several cases cited by Kirby, P. in the passage set out above from Ainsworth concerned depositions and the like and the use that might properly be made in subsequent proceedings of depositions earlier taken. Such cases serve to emphasise that evidence, once given orally in open court, can ordinarily be used subsequently for any lawful purpose without restriction (subject of course to any order made specifically to the contrary in a given case). The general position was emphasised by the High Court in Johns v. Australian Securities Commission[37] where transcript of private examinations, once authorised for use in public hearings of a Royal Commission, was held to be available to the media without restriction. Yet evidence, even when given orally, may be given under compulsion. Many a witness has had to be subpoenaed and many a witness has been told while in the box to answer the question or face the consequences. It is consistent with that approach that answers to interrogatories may be used for any purpose once those answers have been tendered at trial, and so it cannot be that compulsion per se is determinative. What is important in this context is the limited purpose for which the answers are made available in advance of the trial itself.
[37](1993) 178 C.L.R. 408.
We return to documents disclosed upon discovery. Such are, of course, documents disclosed in response to the coercive processes of the court and they, too, are provided in advance of the trial for the limited purpose of one's opponent preparing for trial; but with such documents there is the added consideration mentioned by Kirby, P. in Ainsworth, that, at least in the ordinary course, such documents will have been generated pre-trial and without thought to their production as evidence in subsequent litigation or any attendant publicity attaching in consequence. The implied undertaking recognises that a party’s own documents are personal and private and are not to be used in the same fashion as other evidence which comes forth in the course of the trial. That the implied undertaking attaches because the documents have been produced under coercion is recognised in the present instance by the appellant's not claiming protection for those documents which, though discovered, were subsequently tendered by the appellant itself in the course of the hearing of the application to strike out the defence. Affidavits filed and exhibits to those affidavits, when put forward by the appellant, were not documents for which the appellant claimed any protection. It sought protection only for documents disclosed upon compulsion (and in respect of which its claim to legal profession privilege was in many cases overruled) and put in evidence against it in the course of the hearing. What seems to us significant is that, despite the tender, the character of the documents as "personal and private", at least in origin, was not qualified or diminished by their tender in evidence, though the publicity attaching in consequence of their tender might well have served to qualify or diminish (though not necessarily to extinguish) the need for the protection to be otherwise accorded. These are the considerations underlying the judgment of Scott, J. in Sybron and they are the considerations which should guide us now.
In this instance, the documents in question were not produced only by the appellant itself; they were produced also by its solicitors in response to subpoenas duces tecum. As such, the documents were still "personal and private" to the appellant, relating in the main to legal advice being sought and tendered. It is unnecessary in this case to consider how far protection might be afforded when the documents are produced by someone altogether independent of the parties: obviously the more tenuous the connection between the person producing the document and the party concerned to seek protection, the less likely it is that the document will contain information personal to the party or private in nature. But if the document does contain material personal to the affairs of the party which is of a private or confidential nature, then, no matter by whom produced, the implied undertaking will ordinarily be important to the party and its enforcement of concern. In such circumstances, we see no reason why, if it once attaches, the implied undertaking should not endure despite the tender of the document in evidence against the party seeking protection. The fact that, by reason of its tender, it has passed into "the public domain” may be a consideration when leave is sought to use the document otherwise than for the purposes of the litigation in which it was produced, but it does not per se gainsay the continuance of the undertaking. The distinction between the use that may be made of the document by a stranger to the litigation who encounters the document in the public domain and the use that may be made of it by a party to whom it has been disclosed involuntarily in the course of the proceeding has already been explored.
The very concept of "the public domain" was criticised as "of doubtful precision", by Lord Roskill in Harman[38], and with respect we agree. Lord Scarman, who was in dissent, considered it to mean only that the document in question had become public knowledge[39], but even so some uncertainty must remain in cases like the present[40]. The respondent sought to escape the problem here by pointing to the admission of the documents into evidence, as witness their being marked as exhibits in the course of cross-examination of the appellant's witnesses on the application to strike out the defence; but the focus is none the less upon the passing of the documents into "the public domain". From one angle, it might be thought clearer here than in Harman that the documents had passed into "the public domain" because they were marked as exhibits in open court; from another, it was less clear that any publicity attended them because, so far as we are aware, most if not all were not read aloud by counsel, the witness or the judge. If, as the respondent contended, they were in "the public domain" once they were marked as exhibits, the contrast can be made again between the scant knowledge of the documents likely to be obtained by the casual bystander who is in court at the time and the more complete knowledge gained by the party to whom they have earlier been disclosed under compulsion[41]. The contrast is only the greater if the documents have been put before the court by means of an affidavit to which they are exhibited; the affidavit becomes evidence, together with its attendant exhibits, once it is relied upon in open court but not uncommonly that does little or nothing to publicise the contents of the documents exhibited, to which only passing reference may happen to be made in the affidavit. Moreover, exhibits are not normally available for inspection: R. v. Waterfield[42] per Lawton, L.J. (quoted by Mandie, J. in Herald & Weekly Times v. Magistrates' Court[43]).
[38][1983] 1 A.C. at 322.
[39]At 312.
[40]Compare Johns v. A.S.C. 178 C.L.R. at 432 per Brennan, J., at 438 per Dawson, J.
[41]There was no such contrast and no such problem in Johns v. A.S.C.
[42][1975] 1 W.L.R. 711 at 713-5, where Lawton, L.J. was speaking for the Court of Appeal. Leave to appeal was refused by the House of Lords.
[43][1999] 3 V.R. 231, on appeal (2000) 2 V.R. 346.
In argument, both the appellant and the respondent sought to reinforce their submissions by relying upon the practicalities of the situation. Thus, for the respondent Mr. Quinn contended that there should be no difficulty if the implied undertaking ceases upon the document's going into evidence; for at that point, if protection was still wanted against its subsequent use for other purposes, the party seeking protection could quite simply apply to the Court for an order to that effect. Equally, said Mr. Beach for the appellant, if the passing of the document into evidence did not bring the implied undertaking to an end, there should be no difficulty if the party seeking to use the document otherwise than for the purposes of the current litigation, were to apply for leave to that effect, justifying its application. After all, counsel added, it was the applicant for leave who alone could know the use to which it was intended that the document be put and hence it was sensible to cause it to make application accordingly. In contrast, if the party seeking protection was left to apply upon a document's being put into evidence against it, an order for protection might well have to be sought as a matter of course and simply for safety's sake, lest the party whose affairs were in issue was later confronted by some altogether unexpected and unwelcome use of its documents. There is, of course, much to be said for both positions and counsel both argued their respective positions attractively. But in the end we think that Mr. Beach’s submission is to be preferred. It has the added merit of avoiding debate about precisely when the document in question has entered "the public domain".
For a time we were troubled about the difficulties that might be caused in practice if a distinction were to be drawn between documents made available under coercion and tendered otherwise than by the party seeking protection (if they are to remain subject to the implied undertaking) and all other evidence in the cause or matter, which is available for use by anyone at least to the extent that it is in "the public domain". But on reflection we think the problem more apparent than real. The parties are the very persons who will be aware of the status of documents produced under coercion and it is only the parties who are made subject to the implied undertaking. Strangers to litigation are entitled to make what use they can of what they hear in open court (whether or not of documents) or read in the transcript of the proceedings (if they have a transcript) or see in the reasons for judgment once published (which happens not uncommonly on the internet these days). As already mentioned, we do not as yet subscribe to the opinion expressed by Scott, J. that the parties may not make use of what appears in the judgment; we should have thought that once a document is copied or quoted in the reasons for judgment, its contents to that extent are public knowledge and use can accordingly be made, by party and non-party alike, of what appears in the judgment. That is merely to emphasise the possible difference between the documents themselves and some alternative, albeit derivative, sources of information. But, as with all the other evidence at trial, it will be the parties who are well aware of the special status of the documents provided between them under compulsion and it is only the parties who are affected by the distinction. The party gaining access to another’s documents is properly regarded as in a privileged position by reason of the court's processes, and it is that privilege which ought not to be abused.
Before proceeding further, we mention more particularly three of the cases from interstate upon which respondents' counsel placed some reliance. The first, United States Surgical Corporation v. Hospital Products International Pty. Ltd.[44], was concerned with documents which had been earlier produced to the court as a result of subpoenas or by way of discovery but in respect of which the court had made specific orders to preserve confidentiality. The question was how far those orders should be eased after the documents had gone into evidence, a problem not on all fours with the problem here. Eltran Pty. Ltd. v. Westpac Banking Corporation[45], too, concerned documents which had been produced under compulsion, this time in earlier criminal proceedings, and which had later been used to draft a statement of claim in a fresh proceeding. The question, however, was not contempt but whether the use of the documents constituted an abuse of process, so again the problem was a different one. Mr. Quinn sought to call in aid a number of statements in the reasons for judgment but their authority was somewhat diminished by the judge's description of Harman as concerned only with documents that, though read in counsel's opening, had later been ruled inadmissible. Examination of the preceding litigation shows that that was not so[46]. His Honour's opinion that it would be difficult to accept that “had the documents been received as exhibits their disclosure could have been a contempt” does not sit well, in our respectful view, with the speeches of the majority in Harman. In the end neither U.S. Surgical nor Eltran really afforded much help to the respondent.
[44]Supreme Court of N.S.W., Equity Division, McLelland, J., 7 May 1982, unreported.
[45](1990) 25 F.C.R. 322.
[46]See above, footnote 27.
The third case to be mentioned was Ampolex Ltd. v. Perpetual Trustee Co. (Canberra) Ltd[47]. There, application was made for leave to use documents obtained on discovery and under subpoena for the purpose of mounting new claims against new defendants, that is, otherwise than in the proceeding (before amendment) in which they had been produced and inspected. In the course of granting the leave sought, Giles, C.J. Comm.D. made reference to the implying of an undertaking limiting use when documents were produced for inspection under compulsion, described the principle as "well established" according to authority, and then added (in words not unlike those used by Mason C.J. in Esso less than six months earlier[48]):-
"It [the principle] has been accepted in this State with the qualification that the undertaking does not apply once the document has been produced and read out in open court, see Kimberley Minerals Holdings Ltd. v. McEwan [1980] 1 N.S.W.L.R. 210, Registrar of the Supreme Court v. McPherson [1980] 1 N.S.W.L.R. 688, U.S. Surgical Corporation v. Hospital Products International Pty Ltd ... , Ainsworth v. Hanrahan... ."
Again the comment was obiter, for the documents in question had not yet been read in open court.
[47]Supreme Court of N.S.W., Commercial Division, 12 September 1995, unreported.
[48]The judgments in Esso were delivered on 7 April 1995.
Of the four cases cited in Ampolex for “the qualification” identified by the judge, the last two have already been canvassed. As to the first, Kimberley Minerals Holdings, this contains no more than a statement of the implied undertaking (in the judgment of Hope and Glass, JJ.A.[49]) and (in the judgment of Moffitt, P.[50]) a helpful summation of the policy reasons behind it. As to the second case, McPherson, the question was whether the deliberate destruction of a document to avoid the obligation to produce it upon subpoena in a proceeding already pending constituted contempt of court, though a copy was available. In the joint judgment of Moffitt, P. and Hope, J.A.[51] it was stated, in passing, that a document produced under subpoena, if subsequently “admitted into evidence”, is then simply part of the evidence in the case, evidence given in a court held in public, and in consequence “that which may have been confidential may become public knowledge”. This statement, too, was obiter, but more importantly it leaves open the question how far the document, though admitted into evidence, has “become public knowledge”. As earlier indicated, we see it as at least strongly arguable that, if it has become public knowledge in all respects, unlimited use can then be made of it outside the court room on the ground that the party, who must be taken to have given the undertaking, should not then be in any better or worse position than a stranger to the litigation. But that is not the primary concern at this stage. In our opinion none of the cases cited in Ampolex carry the case for the respondent any further than Ampolex itself and what was said there was but a reflection of what had earlier been said by Mason, C.J in Esso. In none of these cases was there any attempt to analyse the problems arising on this appeal and to that extent they afford little if any assistance.
[49][1980] 1 N.S.W.L.R. 210 at 215-216.
[50]At 212.
[51][1980] 1 N.S.W.L.R. 688 at 695.
Thus far we have been dealing generally with the 38 documents in question on this appeal. It is necessary now to deal more specifically with two of them, the expert witness statement of Dr. Seiden[52], Exhibit P51, and the appellant's answers to interrogatories, Exhibit P45. Both can properly be regarded as coming into being by reason of the coercive practices of the court, but there are some differences. First, as Hobhouse, J. observed in Prudential Assurance Co. Ltd. v. Fountain Page Ltd.[53], witness statements are not secured under compulsion in the same way as are documents which are discovered upon notice or answers which are given to interrogatories; for a party always has the right to choose the extent to which to adduce evidence, unlike the position when discovery is required or interrogatories are administered. (As this Court observed in Sidebottom v. Commonwealth of Australia[54], it does not follow because the privilege against self-incrimination qualifies the obligation arising to discover documents or to answer interrogatories that that privilege is relevant to the delivery of witness statements in advance of the trial.) None the less, whether by rule of court or by order, witness statements are now commonly ordered in advance of the trial in civil proceedings and consequences may attach for their non-delivery. So even if there is no compulsion over content, there may well be compulsion over timing. (Indeed, before the Administrative Appeals Tribunal an applicant may have an application dismissed for non-compliance: see Administrative Appeals Tribunal Act 1975 (Cth) s.42A(5)(b), considered in Re P.J. Beaconsfield Gold N.L. and Australian Securities Commission(No.2)[55].) It is consistent with that element of compulsion that, when a witness statement is supplied by one party to the other, it should not be used by that other for any "collateral or ulterior purpose". That is to say, pending its use in evidence at the trial, the party receiving it is not entitled to use it for any purpose outside the proper prosecution of the litigation.
[52]See footnote 1.
[53][1991] 3 All E.R. 878 at 888-890.
[54][2003] VSCA 2.
[55](1998) 28 A.A.R. 320 at 329-30.
Thus, in Prudential Assurance Co. Hobhouse, J. held a party in contempt for handing a witness statement to a journalist in advance of the hearing, by reason of what his Lordship identified as "a duty analogous to that owed under the implied undertaking" commonly attaching to discovered documents (and, we would add, attaching to answers to interrogatories which are themselves a form of discovery). See also Central Queensland Cement Pty Ltd v. Hardy[56] and Re Addstone Pty. Ltd. (in liq.), ex parte Macks[57] where the like inhibition was recognised on the use of witness statements before their use in court[58]. Yet, if the witness statement be adopted by the witness in the course of the hearing with the result that it passes into evidence, the implied undertaking - or the duty analogous to the implied undertaking - not to use the statement otherwise than for the purpose of the litigation will arguably have come to an end, for want of any further purpose to be served by maintaining the undertaking. It is much the same with answers to interrogatories. Like answers to interrogatories, the witness statement has been brought into being solely for the purpose of its going into evidence at trial and therefore, once that happens, the undertaking which initially attaches in order to protect it from misuse in the meantime would appear to be spent. It is otherwise with documents provided to an opponent upon discovery or the like, for such documents commonly predate the commencement of the proceeding and ordinarily have not been brought into existence for the purposes of the litigation. Hence the greater need for care to guard against their being used by an opponent for a "collateral or ulterior purpose" even after they have been marked as exhibits in the proceeding in which they were made available.
[56][1989] 2 Qd.R. 509.
[57](1998) 30 A.C.S.R. 162.
[58]The implied undertaking as it affects witness statements was also considered in Re P.J. Beaconsfield Gold N.L. and Australian Securities Commission (No. 2) (1998) 28 A.A.R. 320 at 327-8.
That last statement applies to most of the 38 documents now in question, for most of them were brought into being well before the commencement of the proceeding and were produced to the respondent for inspection only upon discovery or in response to some other form of coercive demand and on that account we think that they remain protected by the implied undertaking, despite their being marked as exhibits on the application to strike out the defence. But the witness statement made by Dr. Seiden under Order 44, like the appellant's answers to interrogatories, are in different case. Both are among the 38 documents now in question - and indeed they are among the remaining six if our ruling about legal professional privilege stands. Unlike the other documents in issue, that witness statement and those answers, though produced under relevant compulsion at the instance of the respondent, were brought into being for the purposes of the proceeding and they were in fact put into evidence by the respondent on the application to strike out the defence. Should the implied undertaking by the party to whom they were first provided be regarded now as spent simply because they have gone into evidence?
In our opinion the answer depends upon comparing the purpose for which these particular documents were brought into being with the use to which they have so far been put in the course of the respondent's proceeding for damages. The appellant's answers to interrogatories were put into evidence not as evidence of some admission contained within them, but rather, we were told, for the quite different purpose of demonstrating that the respondent did not obtain from those answers the information she was otherwise seeking on discovery. The witness statement was put into evidence, not for the evidence it contained about the issues raised by the respondent's claim for damages, but to show (it was argued) that despite its destruction of documents bearing upon knowledge about the risks of smoking and the like the appellant still had available to it, through the possession of others, some at least of the very documents it had purported to destroy. Neither the answers to interrogatories nor the witness statement, then, was tendered for the purpose for which it was brought into existence, but for a collateral purpose; nor was either tendered at trial, but only on an interlocutory application before trial.
Why, then, should the respondent be regarded as freed of the implied undertaking attaching to these two documents when first provided to her by the appellant (or, in relation to the witness statement, "the duty analogous to the implied undertaking" on the analysis adopted by Hobhouse, J. in Prudential Assurance)? Given the circumstances in which they went into evidence, we see no sufficient reason why the implied undertaking (or the analogous duty) should be treated as at an end, even if the admission of the answers in evidence at trial or the adoption at trial of the witness statement were to lead to that result. Other similar cases no doubt come to mind. For example, suppose the use of a discovered document as an exhibit to an affidavit which one's opponent relies upon on in the course of an interlocutory application to have the document ruled admissible at trial: it would surely be absurd if that operated to bring the implied undertaking to an end - and in Hamersley Iron, which was just such a case, that was the view of Anderson, J. He said of the four discovered documents which were exhibited to an affidavit upon which the applicants had relied[59]:-
"Yet the contemnors claim that the fact that the documents were referred to in open court for the above very limited purpose (in a procedural application to decide their admissibility) gave the contemnors the right to take the documents in their entirety and use them publicly to their own advantage for purposes unconnected with the legal proceedings. In my opinion, there is no justification for such a substantial erosion of the ‘private right to keep one’s documents to oneself’: see Riddick v. Thames Board Mills Ltd [1977] Q.B. 881, per Lord Denning MR (at 896).”
Such use of a discovered document as an exhibit to an affidavit on an interlocutory application is surely even less relevant to ending the implied undertaking if (as was the case in Hamersley Iron) the application to determine admissibility proves unsuccessful (as was noticed by Lord Roskill in Harman[60] and again by Ipp, J. in Hamersley Iron[61]). We simply note that in Eisa Ltd v. Brady[62] Santow, J. rejected a claim by the media to inspect pleadings which had as yet been considered only for the purpose of interlocutory relief and in Van Stokkum v. Finance Brokers Supervisory Board[63], McLure, J. held that the stage reached in the proceedings was relevant when considering third party access to court documents.
[59]19 W.A.R. at 342.
[60]At 325.
[61]At 323.
[62][2000] NSWSC 929.
[63][2002] WASC 192.
But other possibilities need not detain us. For present purposes, suffice it say that the use of a document on an interlocutory proceeding may not always be as significant as its use at trial[64] and in our opinion that was so in relation to both the answers to interrogatories and the witness statement here in question: both have yet to be used on the trial of the issues arising in the plaintiff's action for damages and so meanwhile both remain subject to the implied undertaking despite their going into evidence on the interlocutory application.
[64]In Australian Rugby Union Ltd v. Hospitality Group Ltd [1999] FCA 1136, Sackville, J. treated exhibits tendered on an interlocutory application as having been "read in open court" but that was for the very different purposes of F.C.R. Order 15 rule 18.
Conclusion as to implied undertaking
For these reasons, it may be concluded as follows. Where documents are provided to a party to litigation under some coercive process of the court with the result that an implied undertaking attaches to the effect that, without the leave of the court, they not be used otherwise than for the purposes of the litigation, the party bound by that undertaking is not freed of it simply because the document in question is marked as an exhibit in the proceeding in the course of which it was provided. To the extent that knowledge of the document has become public by dint of its tender in open court, members of the public will be free to make use of that knowledge as they will (subject always of course to any order specially made protecting confidentiality and the like), but the party affected by the undertaking remains bound as to use of the document itself. The distinction seems to us a valid one between, on the one hand, use of the document the contents and probably the provenance of which are known in detail to the party by virtue of a privilege extended to it by the processes of the court and, on the other hand, use of the information about it which comes to the knowledge of the public by reason of the proceedings in open court (and during which, it may be supposed, the document is marked as an exhibit). The knowledge of the one cannot be equated with the knowledge of the other.
Given the particular considerations requiring that a party's privacy be respected so far as compatible with the administration of justice in open court, there seems no logical, or indeed practical, reason why the mere passing of the document into evidence (as witness its being marked as an exhibit) should be taken to relieve the party bound by the implied undertaking from its obligations in that respect. Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into "the public domain") by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large - but only as to such information - there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case.
The foregoing applies in particular to documents provided to an opponent as the result of discovery, subpoena duces tecum or the like, documents which for the most part will have come into existence well before the commencement of the proceeding in which they are made available and generally without thought to their being required at some stage in evidence. It is otherwise with the witness statement of Dr. Seiden, Exhibit P51, and the answers to interrogatories, Exhibit P45, for these were brought into existence specifically for use in the proceeding between the appellant and the respondent and their being made public at the trial of the proceeding was to be expected. That does not mean that the witness statement and the answers to interrogatories were not the subject of the implied undertaking when first provided by the appellant to its opponent; for they were, by reason of the circumstances of their creation. It may, however, mean, if (as we have suggested) the undertaking is properly regarded as intended to provide protection only pending their use at trial, that once put in evidence at trial everyone, parties and members of the public alike, are free to make whatever use they choose of the contents of such documents. But here the witness statement of Dr. Seiden and the answers to interrogatories did not cease to be subject to the implied undertaking by reason of their going into evidence because, even if that would have resulted from the tender of such documents at trial, in this instance they were tendered only on an interlocutory application and then for a purpose other than that for which they were brought into being.
Accordingly, we consider that for one reason or another his Honour did err by regarding the implied undertaking as at an end when these 38 documents went into evidence. As we said at the outset, if we are correct in our view about legal professional privilege the conclusion just expressed affects only six of the 38, but as to those the implied undertaking should be taken as enduring. The question then becomes whether leave should be given to make use of those six documents for purposes quite outside the litigation during which they were discovered.
Use of the documents outside the proceeding
The matters relevant to releasing a party from its implied undertaking in respect of documents to which it has gained access through the coercive processes of the court must vary of course from case to case. Some of the cases in which the problem has been examined are Halcon International Inc. v. Shell Transport and Trading Co. Ltd.[65], Crest Homes Plc v. Marks[66], Bibby Bulk Carriers Ltd. v. Cansulex[67], Milano Assicurazioni S.p.A. v. Walbrook Ins. Co. Ltd.[68], Dagi v. B.H.P. Co. Ltd.[69], and Re Addstone Pty. Ltd. (in liq.); ex parte Macks[70]. A number of considerations stand in the way of granting to the respondent, or indeed to her solicitors, the leave which is being sought, to make use of the documents in question outside the proceedings in the Trial Division.
[65][1979] R.P.C. 97.
[66][1987] A.C. 829.
[67][1989] Q.B. 155.
[68][1994] 1 W.L.R. 977 at 983.
[69][1996] 2 V.R. 567.
[70](1998) 30 A.C.S.R. 162.
First and foremost, the plaintiff was applying for leave to use the documents not for some purpose of her own, but for the purposes of others. The plaintiff was seeking for some reason which is not divulged to assist the United States Department of Justice and the A.C.C.C. in their respective inquiries into the conduct of the defendant and perhaps its solicitors. Why the appellant or its solicitors should be exposed, at the instance of the plaintiff and now the respondent, to such inquiries was not explained to us; nor was it explained why this Court should be quick to assist the inquiries if as to penalties. Nor could any such use of the documents by others be supervised by the court, or even by the respondent and her solicitors if she or they were so minded. Any improper use of the documents afterwards could scarcely be prevented: compare Bibby Bulk Carriers[71].
[71][1989] Q.B. at 166-7.
The court is really being asked to authorise the handing over of the documents in question and to transfer all supervision without rhyme or reason. No public interest has been demonstrated; reliance is placed merely upon the requests which have been received by the respondent's solicitors, and, as earlier seen, those requests are couched in the vaguest of terms[72]. It has not been explained to us why the particular documents now sought might perhaps be relevant to the requests that have been made and inspection of the six documents identified earlier[73] does not help. That the documents are subject to an implied undertaking given for the purpose of proceedings in the Trial Division which are still pending is not an irrelevant factor. Whatever test be applied, we are clear that this application fails. Perhaps it suffers because it was not articulated below, but, as will be seen, that was the choice of the respondent. Quite simply this is not an appropriate case in which to grant relief from the undertaking.
[72]Paragraphs [6] and [7].
[73]Paragraph [13].
There was a preliminary debate before us over whether we should entertain submissions from the respondent on this issue because, we were told, her counsel did not make any such submissions below, choosing to rest apparently upon the argument (which succeeded) that the implied undertaking had not survived the admission of the documents into evidence. Moreover, as pointed out by appellant’s counsel, no notice of contention was filed (nor, perhaps more to the point, was any notice of cross appeal). We therefore heard Mr. Quinn subject to objection. But the absence of a notice is now of no consequence because, having heard argument, we think that we should not give the leave sought, as already stated.
In so concluding, we do not overlook that we have heard nothing from the appellant as to why the six documents which are not the subject of legal professional privilege are so confidential or so private as to warrant continuing protection (documents which in passing we have already described as appearing to be pretty innocuous[74]). Ordinarily, we suppose, that character of the particular documents in question as confidential or private would be a factor for the Court in considering whether to relieve a party from its undertaking - although in this instance the appellant might perhaps seek to rest simply upon the documents' having been produced under coercion and, as yet, not put in evidence at trial. None the less, it is the fact that we have not heard the appellant on this aspect. In this instance, however, we do not see that as determinative.
[74]Paragraph [13].
Orders
Accordingly, we would uphold the appellant's claim to legal professional privilege in relation to 32 of the 38 documents in question on this appeal. We would therefore allow the appeal from the order made on 15 May 2002 and reverse the decision below.
As to all 38 documents, we think that the judge erred in concluding that they were no longer the subject of an implied undertaking. We would therefore allow the appeal from the orders made on 7 May 2002 which is, strictly speaking, an appeal against paragraph 1 only. We would set aside paragraph 1 of those orders and in lieu dismiss the plaintiff’s application which, as earlier stated, was for a declaration that the 38 documents were not the subject of any undertaking or alternatively for an order relieving the plaintiff from her undertaking.
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