Dray v BAe Systems Plc
[2011] WADC 93
•17 JUNE 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DRAY -v- BAE SYSTEMS PLC [2011] WADC 93
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 25 MAY 2011
DELIVERED : 17 JUNE 2011
FILE NO/S: CIV 2601 of 2002
BETWEEN: MELISSA ANN DRAY
Plaintiff
AND
BAE SYSTEMS PLC
Defendant
Catchwords:
Practice and procedure - Discovery - Inspection - Limits on ability of party to inspect documents discovered by the other party
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr K Tang
Defendant: Mr G I Macnish
Solicitors:
Plaintiff: GV Lawyers
Defendant: Cocks Macnish
Case(s) referred to in judgment(s):
Carter v Ansett Australia Limited [2000] QDC 49
Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Hotrox Charcoal Company v Gebauer Nominees Pty Ltd [2002] WASCA 293
Irawan v AWB Ltd [2001] VSC 374
Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210
Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
Rawson v National Jet Systems Pty Ltd [2005] ACTSC 129
PRINCIPAL REGISTRAR GETHING: By application dated 18 March 2011, the defendant sought orders in relation to discovery and inspection in the action. Two sets of orders were sought. The first was to make inspection conditional upon the plaintiff's solicitors undertaking that copies of discovered documents would not be given to the plaintiff personally. Rather, she would have to inspect the documents at her solicitor's office.
The second set of orders were in relation to certain documents disclosed by the plaintiff in the course of the action to date. Counsel for the defendant submits that it is apparent that these documents were part of discovery in other proceedings. They were therefore being used in breach of the implied undertaking of confidence that relates to discovered documents. At the hearing on 25 May 2011, I adjourned this part of the application for later hearing and made programming orders to better identify the scope of the issue.
The plaintiff filed two affidavits in support of its application, each by Julia Anne Routley who is a solicitor employed by the defendant's solicitors. These affidavits were sworn 18 March 2011 and 6 May 2011.
The plaintiff filed three affidavits in opposition to the application, sworn 4 April 2011, 18 May 2011 and 23 May 2011.
The application was initially listed for hearing on 14 April 2011. By consent orders filed 6 April 2011, the action was listed for a special appointment with programming orders made. The special appointment was the hearing on 25 May 2011 before me.
Background of the action
By writ filed on 20 September 2002 the plaintiff commenced an action against the current defendant, BAE Systems PLC, as well as a second defendant, BAE Systems Australia Limited. In the endorsement of claim, the plaintiff claimed damages for injuries suffered by her from 1 October 1997 to 30 September 1999 as a result of the negligence of the defendants, their servants or agents whilst the plaintiff was a flight attendant on passenger aircraft manufactured and/or supplied by the first defendant and/or the second defendant. The plaintiff claims that she suffered injuries as a result of her work as a flight attendant for Ansett Australia Limited. In particular, she alleges that she suffered injuries as a result to being exposed to contaminant fumes on an aircraft type known as a BAe 146. The action against the second defendant was subsequently discontinued by consent.
The plaintiff has filed a statement of claim and there is a current application for leave to amend the statement of claim. That application is listed for hearing on 12 July 2011.
The defendant (then the first defendant) filed a defence on 18 August 2010. Accordingly, within 60 days of this date, each party was required to give discovery: District Court Rules 2005 (WA) (DCR) r 46. Each of the plaintiff and defendant have given some informal discovery.
Relevant law
The starting point in considering the application is Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 8, which so far is relevant provides:
(1)A party who has served a list of documents on any other party in compliance with Rule 1 or with an order under Rule 7 must allow the other party to inspect the documents mentioned in the list, other than any which he objects to produce, and must when serving the list on the other party also serve on him a notice stating a time within 7 days after the service thereof at which the said documents may be inspected at the place specified in the notice.
…
(4)Subject to Rule 9, inspection under this Rule shall be made at the office of the solicitor for the party producing the documents or if the party appears in person at a place that is reasonable for the purpose or in the case of bankers' books or other books of account or books in constant use for the purpose of any trade or business, at their usual place of custody.
(5)The party making the inspection shall be entitled to make copies of any documents produced for inspection under this Rule.
RSC O26 r 9(1) contains a power to enforce inspection pursuant to r 8(1). That power may be exercised, among other things, where the party providing discovery 'objects to produce any document for inspection': r 9(1)(b). It may also be exercised where the party providing discovery offers 'inspection at a time or place which in the opinion of the Court is unreasonable for such purpose': r 9(1)(c). The power of the court is to 'make an order for production of the documents in question for inspection at such time and place, and in such manner as it thinks fit': r 9(1).
The defendant contends that the court has the discretionary power to place further limits on the inspection process, in particular a limit on the plaintiff being able to have copies of any discovered documents in her possession. The defendant further contends that this discretion ought to be exercised against the plaintiff in the particular circumstances of this action.
The discretionary power sought does not neatly fit within RSC O 26 r 9(1). One could, if pressed, construe the defendant as objecting to the production of documents for inspection save on conditions that are unacceptable to the plaintiff within r 9(1)(b). However, there is no need to resort to this approach.
There are two clear bases for the existence of the discretionary power. The first is DCR r 24, r 26, r 32 and r 33. Pursuant to r 26, r 32 and r 33 the court may make case management directions in relation to an action either on a separate application or in dealing with a chamber summons. Rule 24(1) defines a case management direction to be 'any procedural direction that in the Court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously'. This would include a direction placing limits on inspection. However, the limit must be able to be related to the purpose in r 24(1). The nature of the limitation sought to be imposed in the present case does not fit comfortably within the exercise of the general case management power. The limits are sought to restrict the plaintiff's ability to access discovered documents, not to facilitate the efficient, economic and expeditious conduct of the action.
The second clear basis is the inherent power of the court to act to prevent an abuse of its processes. In the present case, the abuse in question is the use of discovered documents for a purpose other than which is was given. The principle is summarised in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 [96] ‑ [97] (Hayne, Heydon and Crennan JJ) in the following terms (footnotes omitted):
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. … It is common to speak of the relevant obligation as flowing from an "implied undertaking"
The inherent power of the court to act to prevent an abuse of its processes extends to placing limits on the 'right' of a party to inspect discovered documents: Church of Scientology of California v Department of Health and Social Security [1979] 3 All ER 97, 111, 112, 115; Magellan Petroleum Australia Ltd v Sagasco Amadeus Pty Ltd [1994] 2 Qd R 37, 41; Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210, 213, 215 ‑ 216; Irawan v AWB Ltd [2001] VSC 374 [51]. The main use of the inherent power in this context has been in cases involving commercially sensitive information such as secret processes or information in connection with a contested takeover: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, 38; Hotrox Charcoal Company v Gebauer Nominees Pty Ltd [2002] WASCA 293, [25], [50]; Magellan. In this context, orders have been made limiting inspection to solicitors, counsel and relevant experts: see for example, Magellan. In looking at the issue, the court endeavours, as best as it can, to do justice, in all the circumstances, as between the parties: Hotrox [56].
Of the authorities I am aware of, the decision in Church of Scientology seems most on point. In that case, the plaintiff sued the defendants for libel alleging that the defendants had made statements to the effect that the plaintiffs were 'dangerous charlatans who give inexpert medical treatment to mentally sick persons and make them worse rather than better; and that they are an undesirable and evil body' (98). The defendants sought orders limiting inspection in relation to two classes of documents. The first was a bundle of medical records for patients whom it was alleged the plaintiff treated. The second was a bundle of documents from, or which could identify, persons who gave information to the defendants adverse to the plaintiff. There was evidence before the court to the effect that the plaintiff encouraged it adherents to harass people who had made an attack on 'scientology', that is, the beliefs or practices of the plaintiff (114). The defendants did not claim privilege for any of the documents.
At first instance before a Master, and affirmed by a Judge, the court made an order that inspection of the first bundle be limited to a registered medical practitioner appointed by the plaintiff. In relation to the second bundle, the court ordered that inspection be subject to an undertaking that 'the said documents will not be shown nor their contents revealed to anyone other than Counsel for the Plaintiffs and that the Plaintiffs will not use the said documents for any purpose collateral to or ulterior to the conduct of this action' (98).
On appeal, the Court of Appeal unanimously allowed the appeal, affirming the power to make an order of kind made, but holding that the conditions imposed in the decision under appeal were too onerous. The order made inspection of the documents in question conditional upon the plaintiff undertaking, among other things (111 - 112):
(a)to take one copy of the documents in question;
(b)to keep the same confidential to himself and counsel save insofar as he be advised in writing to the contrary by counsel;
(c)to waive privilege on any advice by counsel on the issue;
(d)to show a copy of the order to anyone person to whom a copy of the document was provided or information therefrom; and
(e)to permit counsel for the plaintiff to inform counsel for the defendants if he entertained any reasonable apprehension that the plaintiffs were not acting in accordance with his advice.
Significantly, the only limit was placed on the class of the people within the plaintiff who could inspect the documents or be informed of their contents was that they were people whom their counsel thought should see the documents or the information from them.
In discussing the principles, Stephenson LJ began with the principle that in a normal case, an individual litigant can insist on seeing what his or her legal advisers see (105). However, this is subject to the inherent jurisdiction of the court to prevent an abuse of its processes. In relation to this, his Lordship stated (105 ‑ 106):
The court has always, in my judgment, inherent jurisdiction to prevent abuse of that process, and indeed must take steps to prevent it of its own motion, as where illegality is brought to its attention. Discovery, including production of documents for inspection, is part of its process to enable an action to be carried to a just conclusion. As Lord Denning MR said in Riddick's case ([1973] 3 All ER 677 at 688, [1977] QB 881 at 896): 'A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose.' To use a document produced for inspection for a collateral or ulterior purpose is a misuse against which the court will proceed for contempt or by injunction: see Alterskye v Scott. But that proceeding may be after the abuse has taken place. The court has power to prevent or reduce the chance of such an abuse taking place by an undertaking. As it seems to me, it can do it in two ways; it can do it either by refusing an order except on an undertaking or it can do it by giving an order conditional on an undertaking being given. Which way it does it does not seem to me to matter, and seems to me a question of form rather than substance, with all respect to counsel for the plaintiffs' argument.
Furthermore I do not think it matters in most cases whether the object of preventing an abuse of process is achieved or attempted to be achieved by restricting inspection to a person other than the party or only by refusing to order any inspection unless the party undertakes not to misuse the material. In most cases, an undertaking is unnecessary because it is implied, as was pointed out in Alterskye v Scott where an undertaking was refused. In the remainder, an undertaking by the party himself or by his counsel or solicitor may be enough; but it seems to me that there is a very small hard core of cases where the undertaking is not enough and where the court may come to the conclusion that the party cannot be trusted not to misuse the information and so abuse the process of discovery. That is really what counsel for the defendants is maintaining in this case in support of the order under appeal; and in the form in which it is made, particularly that which relates to the hospital notes and medical reports, it seems to me that the order must be justified on that basis, or it must be revoked or modified.
…
Treating this case as a case of threatened or likely or foreseeable abuse of process, I proceed to consider whether the order made can be justified on that ground, or whether some other order ought to be made of a restrictive character, or whether counsel for the plaintiffs is right in saying that even if this court has jurisdiction, on the material which it has it should none the less make an unrestricted order.
His Lordship reviewed the evidence in some detail and formed the view that the balance lay in some form of restriction, but not as extreme as that made in the decision under review.
Brandon LJ, who concurred with Stephenson LJ as to the final orders to be made, stated (112 ‑ 113):
1. A party to litigation has a prima facie right of unrestricted inspection of the documents of which discovery has been made by the other party so far as may be necessary to dispose fairly of the case or for saving costs. 2. A party is not entitled to use his right of inspection for any collateral purpose. 3. If it is shown that there is a real risk of a party using his right for a collateral purpose, the court has power to impose restrictions on such right in order to prevent or discourage him from doing so. I think that this power is derived from the inherent jurisdiction of the court to prevent abuse of its process rather than from anything in RSC Ord 24 itself.
But it seems to me that the use of the word 'may' rather than 'shall' in RSC Ord 24, r 11(1) and (2) has the effect of preserving the power, or else that the power survives despite the absence of any express words in RSC Ord 24 designed to preserve it. The power in question appears to have been exercised only, or almost only, in cases involving secret trade processes or analogous matters: see Warner-Lambert Co v Glaxo Laboratories Ltd [[1975] RPC 354] and the authorities there cited.
In my view, however, the principle on which the power has been exercised in such cases is of general application and applies in particular to a case like the present one where the collateral purpose potentially involved is the harassment of third parties.
With regard to the third question, the authorities on cases involving secret trade processes show that the restrictions which may be imposed include restrictions relating to (a) the person or persons who may inspect and take copies of the documents on behalf of the party concerned; (b) the distribution of copies of documents when taken; and (c) the dissemination of the contents of such documents and copies.
There was argument before us whether the court has power to impose such restrictions on inspection as would prevent a personal litigant from inspecting or taking copies of documents on his own behalf. Since the plaintiffs in the present case are a corporation, which can only inspect and take copies of documents through an agent acting on their behalf, it is not necessary to decide this question on this occasion. My provisional opinion however, based on the cases concerning secret trade processes, is that the court would have power in a proper case to do just that.
Templeman LJ also concurred in the orders made. His Lordship stated the principles in the following terms (115):
If a litigant makes use of information obtained on discovery for improper purposes, that is to say otherwise than bona fide in the course of the action, he is guilty of contempt of court: see Alterskye v Scott [[1948] 1 All ER 469]. If the begins an action based on such information his action is liable to be struck out as an abuse of the process of the court: see Riddick v Thames Board Mills Ltd [[1977] 3 All ER 677].
These sanctions are usually sufficient to procure that documents disclosed on discovery are only used for the purpose of the relevant action. But where, as in the present case, misuse whether by parties to the litigation or by other persons is apprehended, then it seems to me that there are three principles which enable the court to impose reasonable restrictions. The first principle is that the court shall not order discovery which is not necessary for the fair disposal of the action. It follows that the court has power to impose restrictions which ensure that the ambit of discovery is not wider than is necessary to dispose fairly of the action. The second principle is that the court may act to prevent any possibility of conduct which might constitute contempt of court. The third principle is that the court may act to prevent what may be an abuse of the process of the court. Of course a strong case must be made out for the court to impose restrictions, and the court will endeavour to ensure that the litigants are not prejudiced by the restrictions in the reasonable prosecution of their claim, but in the unusual circumstances of this case I am satisfied that the court ought to intervene and that there is jurisdiction for the court so to do.
True, a litigant is entitled to inspect documents disclosed on discovery and to take copies… . But if there is a danger that inspection and copying in the manner desired by the litigant may lead to misuse of information, the court in the exercise of its power to prevent a possible contempt of court or in the exercise of its power to prevent an abuse of process and in the exercise of its power to confine discovery to the ambit which alone is necessary for the disposal of the action may dictate the manner in which inspection is carried out, whether by an individual litigant or by a corporate litigant, and may regulate the taking and safeguarding of copies, and may impose limitations on the circulation of copies and information.
It seems to me that eight principles relevant to the present application can be discerned from the authorities:
(a)the plaintiff has a prima facie right to inspect the discovered documents, including to be provided with a copy of each discovered document;
(b)the plaintiff receives the discovered documents subject to the implied undertaking that the documents will only be used for the purposes of the litigation;
(c)in most cases, the existence of the implied undertaking, with the threat of the action being struck out or contempt proceedings for breach, is a sufficient deterrent on a party;
(d)it would be an abuse of the processes of the court for the plaintiff to use the discovered documents in breach of the implied undertaking;
(e)the court has the power to make an order to prevent an threatened or likely or foreseeable abuse of its processes including a breach of the implied undertaking;
(f)before the court will make an order along the lines of par (e) a 'strong case' or a 'real risk' of breach must be shown;
(g)in most cases where such a risk is shown the object of preventing an abuse of process is achieved by refusing to order any inspection unless the party undertakes not to misuse the material; and
(h)only in a 'very small hard core of cases' will an undertaking not be sufficient.
As with most interlocutory applications, the core discretionary exercise is to balance the risks of an injustice.
Discovery application
The specific orders sought in relation to limited inspection are as follows:
1.Each of the Defendants be excused from giving inspection and allowing copies to be made of discovered documents pursuant to Order 26 Rule 8 of the Supreme Court Rules, unless within 14 days the Plaintiff's Solicitor, gives an undertaking to the Court in a form acceptable to the Defendants and to be approved by the Court that:
(a)The Defendant's discovered documents or copies of the said documents will not be given into the possession of the Plaintiff and subject to paragraph (b) to anyone else other than to the Plaintiff's Counsel in these proceedings;
(b)That if any of the said documents or the contents thereof are to be made available to independent expert witnesses then they will only be made available on condition that before the supply of any such document or information:
(i)that a copy of this order is at the same time made available to any such witness with a warning that the document or information is not to be used for any purpose other than a purpose connected with this action, and
(ii)that the witness provides a written acknowledgement that he or she will only use the documents for the purposes aforesaid and will then return the said documents and any copies thereof to the Plaintiff's Solicitors;
(c)If the Plaintiff's Solicitors propose making copies of any of the said documents they are to provide details to the Defendants' Solicitors of the document which copies have been made and the number of copies which have been made and the purpose for which such copies have been made;
(d)In the event that the Plaintiff's Solicitors cease acting for the Plaintiff or at the conclusion of these proceedings, all copies of the Defendants' discovered documents which are in possession of the Plaintiff's Solicitors and/or Counsel will be returned to the Defendants' Solicitors within seven days of the Plaintiff's Solicitors ceasing to act or the conclusion of the proceedings.
It can be seen that the restrictions sought are along the lines of the first instance and review decisions in Church of Scientology and are thus more restrictive than the orders ultimately imposed by the Court of Appeal.
The defendant relies on four main points to demonstrate a real risk of a breach of the implied undertaking if the restrictions are not made:
(a)the plaintiff has declared her support for the campaign for public awareness of the issue of cabin air contamination; and
(b)the plaintiff has used material disclosed in other proceedings;
(c)the plaintiff has published documents relevant to these proceedings; and
(d)the plaintiff's medical conditions make her more susceptible to a spontaneous disclosure of material.
The plaintiff relies on three main points to demonstrate that there is no real risk of breach, certainly not such as to warrant the imposition of restrictions in the terms sought:
(a)the plaintiff is aware of the implied undertaking and of the consequences of its breach;
(b)her use of documents with barcodes is not such as to demonstrate a propensity to breach court obligations; and
(c)the imposition of the restrictions sought would impose a particular burden on the plaintiff given the anticipated scale of the defendant's discovery and her medical limitations and work commitments.
Each of these points is dealt with below, though where convenient both sides of a particular point are considered together.
Plaintiff's support for public awareness of cabin air contamination
It is apparent from the material in the affidavits before me that the issue of cabin air contamination has generated a deal of public interest. This includes:
(a)an association by the name of the Aerotoxic Syndrome, 'run by a group of aircrew whose careers have ended prematurely due to Aerotoxic Syndrome and [who] now want to help similarly affected crew members and passengers';
(b)a website maintained by the Aerotoxic Syndrome Association, which includes text critical of British Aerospace in relation to its knowledge of, and handling of, issues relating to cabin air contamination;
(c)a website entitled 'Aviation Organophosphate Information Site', including references to doctors who are aware of this issue;
(d)a group known as Global Cabin Air Quality Executive (GCAQE), who state themselves to be 'the leading organization [sic] representing air crew (pilots, cabin crew and engineers) and off shore oil workers, that deals specifically with contaminated air issues and cabin air quality', representing over 20 organisations and almost half a million aviation workers worldwide;
(e)a book by the title of 'Toxic Airlines' by a former commercial airline pilot;
(f)a PhD thesis on 'Health and Flight Implications From Exposure to Contaminates Air in Aircraft' by Susan Michaelis, a former commercial airline pilot who is a PhD researcher into the issue of cabin air contamination;
(g)a reference work by Dr Michaelis entitled 'Aviation Contaminated Air Reference Manual';
(h)a 105 minute documentary entitled 'Angels Without Wings', which is said to be 'a remarkable investigative journey with former airline pilot Susan Michaelis in her quest to understand, document and educate others to the issues of cabin air contamination on commercial aircraft';
(i)a film entitled 'Welcome Aboard Toxic Airlines', with an advertising line: 'exposing the one thing the airline industry never mentions in the pre‑flight briefing';
(j)a file entitled 'Broken Wings', with an advertising line: 'an in depth look at the BAE 146 aircraft and how it became the subject of an Australian Senate investigation';
(k)an Australian Senate investigation into cabin air quality on the BAe 146 in 1999 and 2000; and
(l)interest by the House of Lords.
The plaintiff appears to have been involved in the public awareness campaign in a number of ways. She is on the website of Dr Michaelis giving a testimonial of the latter's reference manual, in which the plaintiff is quoted as stating:
Finally a summary of a 40 year problem in one reference manual. A problem which took away my dream job due to its serious health impacts. If you fly, this is a book you should read.
The same quote appears on the inside jacket of the work. The plaintiff appears as herself in the Angel Without Wings documentary. She posted a blog on a website to congratulate Dr Michaelis on the award of her PhD, which was:
It is great to hear the news of Susan's PhD. I am one that she has tirelessly helped and continues to help and without her amazing knowledge and sheer hard work and tenacity to continue to bring this issue to the forefront, I would not have known where to start to try and uncover the truth behind my own health issues and loss of career. Well Done Susan! You surely are an inspiration to many!
The plaintiff confirms in her affidavit that she fully supports the work being undertaken by Dr Michaelis, the GCAQE and the Aerotoxic Association to investigate and increase public awareness into the issue of cabin air contamination. However, she has not provided them with any information other than her medical records (pars 9 and 15, 4 April affidavit).
There is nothing untoward or improper about the plaintiff's support for raising public awareness of the issue of cabin air contamination, nor in her support for Dr Michaelis.
Use of material discovered in other proceedings
The plaintiff has provided the defendant with an informal list of documents dated 13 December 2010. The defendant has inspected the documents in this list it was entitled to inspect. Ms Routley deposes that 28 of these documents appear on their face to have been discovered in other proceedings. She annexes one document (part of discovered document 89) which is marked: 'This page has been inserted for the purposes of discovery'. The document has a logo on it of an organisation by the name of 'Diskcovery information management solutions'. It also has a barcode on it (pars 13 ‑ 15, 18 March affidavit).
The plaintiff's response is that she had no knowledge that some of the documents in her discovery may have been documents discovered in legal proceedings. She deposes that over the last 12 years she has received documents from a number of sources, including (pars 8.1 to 8.4, 4 April 2011):
(a)documents appearing in her pigeon hole at work (whilst employed by Ansett);
(b)documents appearing anonymously at her residence which were placed in her post box and at the front door;
(c)from the Senate inquiry, including submissions made at that inquiry; and
(d)various websites.
She further deposes that she has not documented the source of the documents in her possession. She says that she has not asked anyone for copies of documents discovered in prior litigation proceedings. Nor is she familiar with barcoding systems used in discovery.
There are two issues here. The first issue is whether the plaintiff has in her possession documents provided to her by someone else in breach of the implied undertaking. On the information currently available to me it is not possible for me to find that the plaintiff has in her possession documents provided in breach of the implied undertaking of confidentiality. At best, there is a risk that this has occurred. They may have been given to her by people entitled to have and disseminate them without breaching any undertaking. The documents with barcodes on them may well have come from secondary or tertiary sources, such as the submissions made to the Senate inquiry. Indeed, the barcodes could have been placed on the documents as part of the Senate inquiry process. As I have noted, I have made some programming orders to seek to obtain more information about this issue. It may also be that the issue of early return subpoenas (or letters of request) to the Senate, the liquidator of Ansett Airlines and others clarifies the issue of the provenance of these documents. The subpoenas may also provide the same documents from other sources which could mean that documents with an unknown provenance would not need to be relied on for the purposes of the action.
The second issue is whether the manner in which she has received documents in the action discloses any propensity to herself release documents or otherwise 'no regard for court process' (par 48, Routley affidavit, 18 March). It is entirely understandable that the plaintiff had sought to collect any relevant documents over the last 12 or so years. The strongest the defendant can put its case on this point is that the plaintiff may have received documents in breach of the implied undertaking of confidence. Taken by itself, the receipt of documents in the manner in which this has occurred is not a sufficient basis to give rise to a finding that the plaintiff will herself improperly release document or that she has no regard for the court process, as the defendant invited me to find.
Publication of other documents
The defendant has identified three other instances in which it says that the plaintiff has disclosed documents relating to the issue of cabin air contamination.
The first instance is based on the defendant's observation that the statement of claim dated 9 December 2009 and the amended statement of claim dated 18 June 2010 are substantially identical to statements of claim filed by Dr Michaelis in proceedings commenced in the ACT. Those proceedings included the decision reported as Rawson v National Jet Systems Pty Ltd [2005] ACTSC 129. (I am told that Dr Michaelis is Susan Rawson, the plaintiff in this action). Ms Routley deposes her belief that in light of the commonality of pleadings the plaintiff has obtained documents from Dr Michaelis.
The plaintiff's evidence is that she was given the first statement of claim by her former solicitor (par 10, 4 April affidavit). She seems to say that she was given the second statement of claim by Dr Michaelis, but that she has not received any other documents from Dr Michaelis (pars 11, 12, 4 April affidavit). There is nothing improper in this. The implied undertaking (if it applies), only extends to documents a party receives from another party. It does not prevent the disclosure by a party of documents generated by that party (unless, which is not the case here, it is asserted that the document contains information obtained from discovered documents).
The second instance is a letter dated October 1999 from the plaintiff to 'Moria', who appears to be Dr Moria Somers. Dr Somers is the plaintiff's general practitioner. The letter encloses a medical report identified as being from a 'crew member in Qld' with the identification details redacted. The letter also encloses a copy of a decision in Carter v Ansett Australia Limited [2000] QDC 49. These documents were obtained from Dr Somers under subpoena.
The plaintiff's evidence is that the medical report was given to her anonymously (par 13, 4 April affidavit). It does not follow that it was given to her in breach of an implied undertaking of confidentiality; it may well have been given to her by the plaintiff to the proceedings. I am not satisfied that the report of the unidentified crew member was released in circumstances of impropriety.
The decision in Carter is a matter of public record. There can be no impropriety in providing a copy of it to Dr Somers.
The third instance is that in the film Broken Wings a medical note of an attendance by the plaintiff at Joondalup Hospital on 22 August 1999 is shown in the film. A workers compensation progress medical certificate is also shown (par 10, Routley affidavit, 6 May 2011).
The plaintiff deposes that she was interviewed on two occasions for the Broken Wings documentary. Her initial recollection was that she only provided the interviewer with copies of her medical records from Joondalup Hospital (par 9, 4 April affidavit). Shortly before the hearing, the plaintiff contacted the interviewer for this program to verify what documents she provided to him. He confirmed that four documents had been provided (23 May affidavit):
(a)workers compensation progress medical certificate;
(b)an initial medical report dated 30.10.01;
(c)Joondalup Hospital Emergency Department notes; and
(d)email from Ray Cain to Andrew Whitely dated 08.08.00.
There is nothing improper in the plaintiff giving the first three documents to the interviewer. I have no information about the fourth document.
Ms Routley then refers to the fact that the plaintiff has been reviewed by Dr Somers, Dr Andrew Harper, Dr Jonathon Burdon and Ms Leonie Coxon, each of whom profess some expertise in the area of aviation organophosphate contamination (pars 41 to 47, 18 March affidavit). It is hardly surprising that the plaintiff has been seen by medical practitioners professing expertise in the issue which she alleged to suffer. I can see nothing adverse to the plaintiff from this material.
Plaintiff's medical condition
The plaintiff goes into some detail about her medical condition in her affidavit of 18 May 2011 (and in parts of her 4 April affidavit). She annexes medical reports from Dr Andrew Harper (11 March 2010) and Dr Moira Somers (19 May 2010). From these reports and her own descriptions, the current symptoms continuing to adversely effect the plaintiff include fatigue, severe headaches, cognitive dysfunction, nausea and sensitivity to chemicals.
She works providing casual administrative type duties three days a week for 5.5 hours. She needs to work for financial reasons. This arrangement allows her time to rest and recuperate from her fatigue symptoms. Significantly, her employer is aware of the sensitivity to chemicals and has taken steps to accommodate her disabilities in that regard.
These medical conditions will provide a significant impact if the plaintiff were restricted in her ability to inspect documents to having to attend her solicitor's office. As a start, from the bar table, counsel for the defendant indicated that there is likely to be in excess 10,000 discovered documents. The inspection process under the restrictions proposed by the defendant would need to take place in office hours. Allowing for the three days a week she needs to work, she would only have two business days a week to inspect the documents. When one adds to this time taken to travel into the city, the inspection process would take an inordinate length of time. In addition, the plaintiff would not be able to inspect and review documents at times when she did not feel fatigued. In attending her solicitor's office, she would also be exposed to exhaust fumes and other chemical smells such as perfumes which tend to aggravate her symptoms.
The defendant submissions are to the effect that the plaintiff's medical condition, in particular her mental state, tends to suggest an increased risk of disclosure of discovered document. Ms Routley states the following in her affidavit (par 50, 18 March affidavit):
I believe, given the alleged difficulty which the Plaintiff appears to have in remembering from where she obtained documents, or the information contained in such documents, and given that the Plaintiff has interests other than the conduct of these proceedings in obtaining documents, or the information contained in such documents, that she may advertently or inadvertently use the documents discovered by the Defendants in the proceedings for purposes other than the conduct of these proceedings.
The evidence before me does not establish that the plaintiff's medical condition in any way increases the risk of advertent or inadvertent disclosure of documents. If anything, it is a strong reason against the imposition of the restrictions sought.
Plaintiff's awareness of the implied undertaking
The plaintiff deposes that she is aware of the implied undertaking and the consequences of its breach. Her position is worth stating in unedited terms (pars 17 to 21, 4 April affidavit):
17.In relation to paragraphs 51 to 54 of Julia's Affidavit, I am advised by my Solicitors and verily believe that the concerns expressed by the Defendants feature in almost all maters being litigated before the Courts due to the ease of information being disseminated via the internet. It is for this very reason that there is in existence an implied undertaking to the Court only to use such discovered documents for its intended purposes, and attendant sanctions in the event of a breach of such undertaking.
18.I am advised by my Solicitors and verily believe that if I use the Defendants' discovered documents for any purpose other than the present proceedings, I would be in breach of the implied undertaking and liable to contempt proceedings being instituted against me. In such event, if I am convicted, I may be sentenced to a term of imprisonment, a hefty fine or both.
19.I am a law abiding citizen and have a clean record apart from a traffic offence when I was 18 years of age. I am happily married with 6 year old twins (turning 7 on 25.07.11) and am struggling to make ends meet.
20.It has been a long and painful struggle over the last 12 years coping with my injury related symptoms which include fatigue, cognitive dysfunction, sensitivity to chemicals and migraines. I am now able to work part‑time hours as an administration officer with the City of Wanneroo and hopeful of keeping my job as my family needs the money. The last thing on my mind is to risk imprisonment by running foul of the law.
21.I have filed the present proceedings simply to seek damages for my significant injuries and losses. I am not an 'activist' and certainly my limited association or involvement with the various public interest groups over the last 12 years bears testimony to this.
22.In the premises, I humbly request that this Honourable Court dismiss the Defendants' application herein.
Determination
For the reasons I have set out above, I do not consider that the plaintiff's support for public awareness of the issue of cabin air contamination, her use and publication of documents to date nor her medical issues of themselves give rise to any risk, let alone a real risk, that she will breach the implied undertaking of confidentiality. Neither do I consider that the material before me, taken together, creates a real risk that the plaintiff will breach the implied undertaking of confidentiality.
Moreover, the plaintiff deposes that she is aware of her obligations, an awareness that will inevitably be strengthened by this application and decision. The defendant makes much of the apparent conflict between the plaintiff's participation in this action and her desire to raise public awareness of the issue of cabin air contamination. It seems to me that there is no conflict, but rather a close alignment. The most powerful thing that the plaintiff could do to raise awareness of the issue of cabin air contamination is to progress this action through to trial. On the material before me, there is nothing to indicate that the plaintiff has any desire or motive to put the progress of this action at risk by collateral use of discovered documents.
In my view the defendant has failed to establish that the there is a real risk or a strong case that the plaintiff will breach the implied undertaking of confidence. It has thus failed to establish a basis for the court to place limits on the plaintiff's right to inspect discovered documents.
I am further satisfied that there ought not even to be the form of orders made that was ultimately made by the Court of Appeal in the Church of Scientology case. Even in that case, the court was not prepared to limit the people able to view the discovered documents. All that was required was an undertaking that only one copy be made and that the plaintiff's solicitor only disclose the documents in accordance with the written instructions of their counsel. In the present case, the plaintiff has deposed as to her knowledge of the implied undertaking of confidence. I do not see any need to require the plaintiff to give a written undertaking to the court in terms of the implied undertaking.
That there should be no limit on the plaintiff's right to inspect discovered documents, at least along the lines sought, is confirmed when one looks at the balance of the risk of injustice.
The injustice asserted by the defendant if a breach occurs is damage to its reputation. It asserts that given the widespread interest in the issue of cabin air contamination, if documents discovered in this action were released publicly, they would be quickly and widely published, in particular on the internet. It would then be impossible to restore the confidentiality of these documents. The defendant's privacy, confidence and commercial reputation would thereby be irreparably damaged. No after-the-fact sanction of the court could restore the defendant's position (pars 51 to 54, 18 March affidavit).
This is not a case in which the mere disclosure of the information to the plaintiff will create the injustice, as in the trade rival cases (see for example, Mobil Oil (38)). The asserted injustice only arises upon disclosure in breach of the undertaking of confidence.
The plaintiff suggested that the defendant barcode or otherwise mark documents which are discovered in the present proceedings so as to make them readily identifiable. The defendant responded that this would be impracticable given the 10,000 or so documents it intended to discover. I agree with the defendant's position. If there is a risk demonstrated, it is for the plaintiff to respond to.
Against this, given the plaintiff's medical conditions and the limitations it places on her lifestyle, requiring the plaintiff to attend her solicitor's office would be extremely prejudicial to both her health and the efficient conduct of the litigation. To have to inspect the 10,000 or so discovered documents for a couple of hours a day, two days a week, would add years to the time required to prepare this action for trial. The events in issue are already over 10 years old. With the best will in the world, I cannot envisage a trial in the action until mid next year even allowing the plaintiff to view the discovered documents at her convenience.
For these reasons, this part of the application should be dismissed. I will hear for counsel as to costs and other orders.
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