Goodarzi v Commonwealth of Australia - [2021] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
GOODARZI v COMMONWEALTH OF AUSTRALIA
[2021] SADC 107
Judgment of his Honour Judge Burnett
16 September 2021
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - UNDERTAKINGS AND USE OF DOCUMENTS - RELEASE FROM IMPLIED UNDERTAKING
This is an application by Australasian Correctional Services Pty Ltd (ACS) and The GEO Group Australia Pty Ltd (GEO) for release from the implied undertaking to use in other proceedings certain specified documents that were disclosed to them in the course of these proceedings. The documents in question relate to the detention of the applicant at the Woomera and Baxter Immigration Detention Centres.
In these proceedings, the applicant brought claims against the Commonwealth of Australia (the Commonwealth). The Commonwealth defended the proceedings and joined as third parties ACS, GEO, G4S Australia Pty Ltd (G4S) and G4S Regional Management (UK & I) Limited. The detention centres and the system of detention for refugees was established by the Commonwealth, but were operated by G4S and ACS pursuant to a contract with the Commonwealth. The proceedings brought the applicant settled at mediation.
Other detainees have brought similar claims. One of those claims is brought by a Mr Payam Saadat against the Commonwealth, in which ACS, G4S, GEO and G4S Regional Management (UK & I) Limited have been joined as third parties. The Saadat proceeding is currently being heard in the Supreme Court. To date, the proceedings have occupied about eight sitting weeks and are expected to continue for some further time.
In the Saadat proceedings, Mr Saadat has provided a list of witnesses that he intends to call. These witnesses include the applicant in these proceedings, Mr Goodarzi. Mr Goodarzi will give evidence about his detention at Woomera and Baxter Immigration Detention Centres. ACS and GEO seek release from the implied undertaking to use the documents in their cross-examination of Mr Goodarzi when he gives evidence.
Mr Goodarzi opposes the making of an order releasing ACS and GEO from the implied undertaking. The Commonwealth opposes the orders, but G4S does not. Mr Goodarzi did not adduce any evidence or make any submissions in support of his opposition.
Held:
1. ACS and GEO are to be released from the implied undertaking to use the specified documents in the Saadat proceedings.
2.The use of the documents obtained as a result of an order for discovery in these proceedings for the purpose of the cross-examination of Mr Goodarzi in the Saadat proceedings is a use that is for a collateral or ulterior purpose and is prohibited unless ACS and GEO establish special circumstances: Mann v Medical Defence Union Ltd [1997] FCA 45 applied.
3. Special circumstances exist to permit ACS and GEO to be released from the implied undertaking and to use the documents in the Saadat proceedings: Australian Securities and Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833 and Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 applied. Special circumstances do not require extraordinary factors to exist before the discretion is exercised. It is sufficient if good reason is shown for the use of the documents, contrary to the usual position that documents or information in one set of proceedings should not be used in another set of proceedings: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 applied.
4. Use of the documents are reasonably required for the purpose of achieving justice in the Saadat proceedings and will enable Mr Goodarzi’s evidence in the Saadat proceedings to be properly tested. The Court in the Saadat proceedings will make findings as to the conditions of detention at Woomera and Baxter and in doing so may be informed by the evidence of Mr Goodarzi. Most of the documents were authored by Australasian Correctional Management Pty Ltd (ACM) or form part of its business records.
Mann v Medical Defence Union Ltd [1997] FCA 45; Australian Securities and Investments Commission v Marshall Bell Hawkins Limited [2003] FCA 833; Springfield Nominees Pty Ltd & Ors v Bridgelands Securities Ltd & Ors (1992) 38 FCR 217; Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283, applied.
Saeed Shams v Commonwealth of Australia [2021] SADC 106, discussed.
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 ; Riddick v Thames Board Mills Ltd [1977] QB 881; British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; Alterskye v Scott [1948] 1 All ER 469; Polyaire Pty Ltd v K-Aire Pty Ltd [2011] SASC 176 [2011] SASC 176; Deputy Commission of Taxation v Karas [2012] VSC 143; Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 57 FCR 360; Crest Homes PLC v Marks [1987] AC 829; Clone Pty Ltd v Players Pty Ltd (in liq) (receivers appointed) [2012] SASC 12; Lyons v Legalese Pty Ltd & Ors [2016] SASC 160; Ah Choo Teo v Pacific Media Group [2016] VSC 626; Australian Competition and Consumer Commission v Info4pc.com. Pty Ltd [2001] FCA 258; Holpitt Pty Ltd v Varimu [1991] FCA 69; (1991) 29 FCR 576; Australian Trade Commission v McMahon (1997) 73 FCR 211, considered.

GOODARZI v COMMONWEALTH OF AUSTRALIA
[2021] SADC 107

Introduction

By an amended interlocutory application filed on 28 May 2021, Australasian Correctional Services Pty Ltd (ACN 050 054 389) (ACS) and The GEO Group Australia Pty Ltd (ACN 051 130 600) (GEO) seek to be released from the implied undertaking so as to use, in other proceedings, certain specified documents that were disclosed to them in the course of these proceedings relating to the detention of the applicant at the Baxter and Woomera Immigration Detention Centres.
The documents are sought for use in proceedings brought by Mr Payam Saadat against the Commonwealth of Australia (the Commonwealth), being proceedings No SCCIV 470 of 2018 in the Supreme Court of South Australia, in which ACS, G4S (Australia) Pty Ltd, GEO and G4S Regional Management (UK & I) Limited have been joined as third parties (the Saadat proceedings).
The reasons in this matter should be read in conjunction with the reasons given in the matter of Saeed Shams v Commonwealth of Australia[1] where a similar application was made by ACS and GEO for the release from the implied undertaking. Much of the reasoning that I expressed in that case, is relevant to this application. However, there are certain differences in the positions of Mr Goodarzi and Mr Shams which mean that this application must be considered separately and separate reasons must be given, even though they will traverse much of the same ground.
[1] [2021] SADC 106.
Background
The applicant in these proceedings, Mr Goodarzi, brought proceedings against the Commonwealth in relation to his detention at the Woomera and Baxter Detention Centres. The Commonwealth defended the proceedings and joined as third parties, ACS and GEO as the first and second third parties and G4S Australia Pty Ltd (G4S) and G4S Regional Management (UK & I) Limited as the third and fourth third parties. The detention facilities and the system of detention for refugees were established by the Commonwealth, but were operated by G4S, ACS and GEO pursuant to a contract with the Commonwealth.
The claims made by the applicant in these proceedings in broad terms relate to what he alleges were the failure to properly diagnose and treat his psychiatric, psychological and other health problems, failing to house him in an adequate detention environment, contracting out the detention to service providers and failing to provide adequate support and, supervision and oversight, creating a dangerous environment in which the applicant was detained and committing intentional acts which caused harm to the applicant. The applicant seeks damages for the above failures and the consequent mental and physical injures that he has suffered and loss of the amenities of life.
The claims made by Mr Goodarzi in these proceedings have settled at mediation.
There are similar claims made by other detainees against the Commonwealth and the operators of the immigration detention facilities. In total, there are about 70 claims in this Court brought by detainees raising similar, although not identical, issues to the issues raised in these proceedings. None of the cases in this Court have gone to trial.
The first case to go to trial is the Saadat proceeding which is currently being heard in the Supreme Court by Stanley J. Mr Saadat’s claim is based on his detention at Curtin and Baxter Detention Centres. The Saadat proceedings have continued for about eight weeks. As at 22 June 2021, only Mr Saadat had completed his evidence and the evidence of the next witness was then being heard. The Saadat proceedings adjourned at the end of June 2021 and are due to recommence in late October 2021.
In January 2021, the applicant in the Saadat proceedings, Mr Saadat, gave notice of the witnesses that he proposes to call in these proceedings. One of those witnesses was the applicant in these proceedings, Mr Goodarzi. It is anticipated that Mr Goodarzi will give evidence about his experiences at the Baxter and Woomera Detention Centres. Mr Goodarzi has provided two outlines of evidence and two affidavits of the evidence in chief that he proposes to give in the Saadat proceedings. It is not clear from the evidence adduced on this application whether Mr Goodarzi intends to give his evidence viva voce or by way of the affidavits. The affidavit evidence includes evidence about his arrival at Woomera and the conditions and environment at Woomera, the deterioration of his mental health and the treatment for that, incidents of self-harm and attempted suicide. Mr Goodarzi will also give evidence about the conditions and environment at Baxter, his suffering of mental and physical injuries and his treatment for those injuries, his meeting with Mr Saadat at Baxter, some observations that he made during this period and his friendship with Mr Saadat after they were both released from detention, including in relation to Mr Saadat’s mental health issues.
ACS and GEO made their initial application for release from the implied undertaking on 20 May 2021 in which they sought all documents discovered in the action, including pleadings, expert reports and discovery lists and 23 categories of documents relating to the detention of the applicant at Baxter and Woomera. The amended application filed on 28 May 2021 deleted reference to the seeking the release from the implied undertaking of all discovered documents and to the pleadings and discovery lists and expert reports and also narrowed the remaining categories of documents that were being sought to select categories of documents prepared by Australasian Correctional Management Pty Ltd (ACM).
ACS and GEO has further refined the documents that they seek to be released from the implied undertaking. Mr Goodarzi had previously provided discovery in the proceedings of documents relating to the Department of Immigration and Multicultural Affairs file. The solicitors for ACS and GEO have inspected those documents and identified the documents that they seek to use or potentially use in the cross-examination of Mr Goodarzi in the Saadat proceedings. The documents that are now sought are set out as exhibit 3 to the affidavit of Philip Henry Chesterton Wines Cowdery sworn on 22 June 2001 (the Documents).
ACS and GEO have given notice to the other parties to the proceedings that they seek to be released from the implied undertaking for the purpose of the cross-examination of Mr Goodarzi in the Saadat proceedings. Mr Goodarzi has advised that he objects to ACS and GEO being released from the implied undertaking. He did not attend the hearing of this application and did not adduce any evidence or make any submissions in support of that opposition. The Commonwealth has also objected to the release. It adduced evidence and made submissions in support of its position. The other parties to these proceedings have not objected to the release.
Implied undertaking
Any documents that are produced pursuant to an order for discovery are subject to the implied undertaking, commonly referred to as the Harman undertaking or more recently, the rule of preclusion. That rule or undertaking has been recognised by the High Court in Hearne v Street.[2] In Hearne v Street, the High Court expressed the implied undertaking as applying to all cases:
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 is given unless it is received into evidence.
[2] [2008] HCA 36; (2008) 235 CLR 125 at [96].
The implied undertaking is a substantial legal obligation[3] and applies not only to documents produced on discovery, but wherever one party to litigation is compelled, either by rules of court, or by specific order of the court, or otherwise, to disclose documents or information.[4]
[3] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [106].
[4] Ibid at [106].
The rationale for the obligation, as held in Hearne v Street,[5] is that the undertaking provides a limited right of privacy. The compulsion to disclose documents or information during the court process is an invasion of the party’s right to keep documents or information private. The public interest and privacy demands that this intrusion should not be pressed any further than justice requires. The implied undertaking is also said to encourage full and frank disclosure in legal proceedings because it restricts the use of material disclosed during legal proceedings.[6]
Collateral and Ulterior Purpose
[5] Ibid at [107]; Riddick v Thames Board Mills Ltd [1977] QB 881 at 896.
[6] British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43 at [20].
The implied undertaking, if applicable, prohibits documents or information that have been produced under compulsion from being used for collateral or ulterior purposes.[7] The focus is on the purpose for which the documents and information are to be used.
[7] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at [36] citing Alterskye v Scott [1948] 1 All ER 469 at 470.
I am satisfied that the documents that form the subject of this application, being the Documents, were produced under compulsion by Mr Goodarzi and are therefore prima facie subject to the implied undertaking. The parties obtaining the documents or information, in this case ACS and GEO, cannot, without leave of the court, use the documents or information for any other purpose, other than the purpose for which they were given, unless the documents are received into evidence. The Documents cannot therefore be used in a way that it is not reasonably necessary for the conduct of these proceedings and cannot be used in other proceedings, such as the Saadat proceedings, unless special circumstances are shown to exist.[8]
[8] Polyaire Pty Ltd v K-Aire Pty Ltd [2011] SASC 176 at [37]-[38].
It is sometimes said that the implied undertaking prohibits the use of documents in another proceeding, but that formulation of the undertaking is not accurate and ignores that the underlying focus of the undertaking is on the purpose for which the documents and information are to be used.[9] In Mann v Medical Defence Union Ltd,[10] Ryan J held:
Usually, if not invariably, the use of documents disclosed in one action for the purposes of another action will be a collateral or ulterior purpose, even where the parties to both actions are identical, and where the causes of action are identical.
[9] Ibid; Deputy Commission of Taxation v Karas [2012] VSC 143 at [42]-[44]; Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd(No 4) [2011] 1 Qd R 145 at [26].
[10] [1997] FCA 45.
There are two instances where the use of the documents for the purposes of another claim might not constitute a collateral or ulterior purpose.[11] Neither exception is relevant to the present application. First, documents could be used in a separate claim within the same proceeding, for example in a cross claim. Hill J in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd[12] held that the use of documents to commence a cross claim against either an existing party or a new party was not an ulterior or collateral purpose. Ryan J in Mann v Medical Defence Union Ltd[13] was a little more qualified and held that there was no absolute rule that the use of documents in a cross claim could never constitute a collateral or ulterior purpose. Although the use of documents to commence a cross claim would not normally infringe the undertaking, Ryan J held that the proposed use of the material must bear a reasonable relation to the primary claim. The second exception is that documents or information may be used for contempt proceedings.[14]
[11] M Groves, “The Implied Undertaking restricting the use of material obtained during legal proceedings” (2003) 23 Australian Bar Review 314 at 326-327.
[12] (1995) 57 FCR 360 at 378-380.
[13] [1997] FCA 45.
[14] Crest Homes PLC v Marks [1987] AC 829.
The relevant test as to whether documents are being used for a collateral or ulterior purpose is whether the documents or information that have been produced are being used for a purpose unrelated to or unconnected with the proceeding or litigation in question or not for a purpose reasonably necessary for the conduct of the litigation.[15] I consider that this approach conforms with the nature of the implied undertaking, as expressed in Hearne v Street, which focuses on the purpose for which the documents were obtained and the purpose for which they are now sought to be used.
[15] Ibid at [44]-[47]. Approved in Deputy Commissioner of Taxation v Karas [2012] VSC 143 at [42]-[43].
I am satisfied that the proposed use of the Documents in the Saadat proceedings is a collateral or ulterior purpose as it is contrary to the purpose for which the Documents were produced in these proceedings.
Special Circumstances
In these circumstances, ACS and GEO are prohibited from using the Documents in the Saadat proceedings unless they can establish special circumstances which entitle them to be released from the implied undertaking. In Hearne v Street, the Court held that there was a discretion to release a party from the implied undertaking if special circumstances are shown to exist. The onus of persuading a Court to exempt a party from the implied undertaking (or rule of preclusion) rests on the party seeking the exemption.[16]
[16] Clone Pty Ltd v Players Pty Ltd (in liq)(receivers appointed) [2012] SASC 12 at [186]. Applied in Lyons v Legalese Pty Ltd & Ors [2016] SASC 160 at [72].
In Crest Homes PLC v Marks,[17] the House of Lords held that a party seeking release from an implied undertaking must satisfy the court there are special circumstances to support an order for release. The party seeking release from an implied undertaking must prove that the release would not occasion injustice or prejudice to the party who provided the material.
[17] [1987] AC 829.
In Australian Securities and Investments Commission v Marshall Bell Hawkins Limited,[18] Merkel J set out the procedure that should be adopted by a party seeking release from the undertaking based on the existence of special circumstances:
[12] Generally, a party applying for the modification or release of the undertaking should:
·specify the documents in respect of which the modification or release is sought;
·specify the purpose for which the modification or release is sought; and
·satisfy the Court that the special circumstances relied upon by the party warrant or justify the modification or release sought.
[13] The requirements of specificity in respect of the documents to be used and the purpose for which they are to be used is appropriate because the implied undertaking should only be modified or released to the extent that it is in the interests of the administration of justice or in the public interest to do so: see Springfield Nominees at 225 and Moage Limited (in liq) v Jagelman [2002] NSWSC 953; (2002) 43 ACSR 173 ("Moage") at 176. Thus, the modification or release should be no greater than is necessary or appropriate to meet the interests of the administration of justice or the public interest. Further, in determining whether to exercise its discretion to grant the modification or release sought, it will usually be necessary for the Court to identify with precision the documents to be released and the purpose of that release.
[18] [2003] FCA 833 at [12]-[13]; applied in Ah Choo Teo v Pacific Media Group [2016] VSC 626 at [25].

The decision of Wilcox J in Springfield Nominees Pty Ltd & Ors v Bridgelands Securities Ltd & Ors[19] also addressed what constitutes special circumstances. That decision has been widely accepted.[20] In Springfield Nominees, Wilcox J held:
For special circumstances to exist, it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking, and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly, they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document, and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose, and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data, or commercial sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[19] (1992) 38 FCR 217 at 225.
[20] Australian Securities and Investments Commission v Marshall Bell Hawkins Ltd [2003] FCA 833 at [11]; Australian Competition and Consumer Commission v Info4pc.com. Pty Ltd [2001] FCA 258 at [6]-[7]; Clone Pty Ltd v Players Pty Ltd (in liq)(receivers appointed) [2012] SASC 12 at [187].
In reaching this determination, Wilcox J referred to the decision of Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd,[21] where the Court adopted an approach that considered special circumstances in the context of all the cases in the court and not in the context of the very small number of cases in which a reason appears why the undertaking may be relaxed.[22]
[21] [1991] FCA 69; (1991) 29 FCR 576 at 578-579.
[22] (1992) 38 FCR 217 at [22].
Lehane J followed this approach in Australian Trade Commission v McMahon[23] and held that where an application for release is decided in contested proceedings, it seems that special circumstances will fairly readily be found where it is established that the use of the documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in the other proceedings. As held by the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd,[24] the notion of special circumstances does not require that some extraordinary factors must exist before the discretion is exercised. Rather, it is sufficient that good reason is shown for the use of the documents, contrary to the usual position that documents or information obtained in one set of proceedings should not be used in another set of proceedings.
[23] (1997) 73 FCR 211 at 217.
[24] (2005) 218 ALR 283 at [31].
Determination
I consider that the Documents are reasonably required for the purpose of achieving of justice in the Saadat proceedings. In my opinion, the Documents will allow Mr Goodarzi’s evidence in the Saadat proceedings to be evaluated by reference to contemporaneous records. Mr Goodarzi proposes to give evidence as to various incidents that he was involved in at detention centres. The Documents include ACM incident reports and medical incident reports. These reports provide contemporaneous records of these incidents and allow ACS and GEO to cross-examine Mr Goodarzi by reference to such reports. Mr Goodarzi further proposes to give evidence about his background and the circumstances of his refugee status. The Documents include the Protection Visa file, documents relating to the review by the Refugee Review Tribunal and appeals to the Federal Court and the Full Federal Court. These documents are relevant to this background. Thirdly, Mr Goodarzi will give evidence about this mental health and its diagnosis and treatment. The Documents include progress notes of his file at the WIRPC medical centre, the ACM Medical Progress Notes, the ACM psychological/psychiatric referrals, ACM reports from mental health nurses and medical practitioners, requests or referrals for medical appointments and his annual health assessment. These documents are all relevant to topics upon which Mr Goodarzi proposes to give evidence and contain information which ACS and GEO may wish to put to Mr Goodarzi in cross-examination. I note that the Documents also comprise a Behaviour Agreement and a Security Assessment. These documents may be used in the cross-examination of Mr Goodarzi in the Saadat proceedings in relation to his conduct whilst in detention.
I also take into account that although the Documents are described as being part of the files of the Department of Immigration, in fact most of the documents were either authored by ACM or are part of the business records that were kept by that organisation. The author therfore does not oppose the release from the undertaking. There are some documents, which even though they form part of the Department’s or ACM’s file, contain confidential information that was authored, in the first instance, by someone other than ACM. I refer in particular to the Department’s file, the AAT and Federal Court files, which contain confidential information concerning the applicant. I take into account the applicant’s opposition to the release.
I note that the Documents were in existence prior to this litigation and were not prepared for the purpose of this litigation. I do not place a lot of weight in this circumstance, given that the Documents are largely historical in nature.
I do not consider that any party, other than Mr Goodarzi, will suffer prejudice if ACS and GEO are released from the implied undertaking in respect of the Documents. No party has identified in particular prejudice that will ensue if ACS and GEO are released from the implied undertaking in respect of the Documents. There is private and confidential information contained about Mr Goodarzi and I take into account the prejudice that he will suffer if the order is made.
It is obvious that Mr Goodarzi has co-operated in the preparation of his witness statement in the Saadat proceedings. He refers to meeting Mr Saadat in Baxter Detention Centre and his observations of Mr Saadat at that time. He also refers to his friendship with Mr Saadat after they left detention and his observations as to the mental health of Mr Saadat over the years. Whilst the Commonwealth has rightly made the point that there is no evidence as to whether Mr Goodarzi is appearing voluntarily as a witness in the Saadat proceedings or has or will be subpoenaed, in my view it is clear that Mr Goodarzi has voluntarily co-operated in the preparation of his affidavits and outlines of evidence and in the knowledge that he will be called as a witness. Therefore, he has elected to give evidence on the matters contained in the affidavit, which contain matters of a private and confidential nature. I therefore do not consider that Mr Goodarzi can say that it is unjust that the Documents or information contained in the Documents will be deployed in cross-examining him.
Taking into account all of the above matters, I am of the opinion that ACS and GEO should be released from the implied undertaking in respect of the Documents. I consider that ACS and GEO have established special circumstances for the release from the implied undertaking. The use of the Documents, which were discovered in these proceedings, is reasonably required for the purpose of doing justice between the parties in the Saadat proceedings.
In the conduct of their defence in the Saadat proceedings, ACS and GEO are entitled to obtain the Documents so as to be able to challenge Mr Goodarzi’s evidence. It is likely that the Court in the Saadat proceedings will make findings as to the conditions of detention at Baxter and Woomera. In doing so, the Court may be informed, in part, by the evidence of Mr Goodarzi. In these circumstances, ACS and GEO are entitled to use the Documents as they see fit in the Saadat proceedings. I do not accept the submission of the Commonwealth that the application of ACS and GEO is based on the premise of conducting a cross-examination on an alternative position of admissibility and relevance. I also reject any contention that because the primary use of the documents by ACS and GEO may be in the cross-examination of Mr Goodarzi in the Saadat proceedings and therefore goes to issues of credit, there is not a legitimate basis for the release from the implied undertaking.
Some of the Documents may, depending on what rulings are made in the Saadat proceedings, not be relevant or admissible in those proceedings. Others of the Documents will remain relevant and admissible. It is not for this Court to specify what purposes the Documents might be used in the Supreme Court. As White J held in Polyaire Pty Ltd v K-Aire Pty Ltd:[25]
In my opinion, this Court should respect the authority of the Federal Court to determine for itself the evidence which may properly be placed before it in proceedings. Generally speaking, it would not be appropriate for this Court to attempt to bind the Federal Court by stipulating that some proposed uses in the Federal Court are permissible, and some not. If it is otherwise appropriate for Polyaire to be given a release from the implied undertaking so as to permit it to make use of documents in relation to the Federal Court proceedings, the particular forensic use in those proceedings to which Polyaire may put the documents should be controlled by the Federal Court.
[25] [2011] SASC 176 at [64].
There can be no prejudice to any party if the Documents are not admissible in the Saadat proceedings. It would cause prejudice to ACS and GEO if they were not released from the undertaking at this time and in advance of Mr Goodarzi giving evidence in the Saadat proceedings, so that they could be in a position to be able to properly prepare for that cross-examination.
The Commonwealth’s opposition to the application made for release from the implied undertaking in the proceedings brought by Mr Shams was based on a number of matters that are not relevant to these proceedings. First, at the time of the first hearing of the application in the Shams mater, no order for discovery had been made. In the present case, discovery had been made on 4 September 2018. Secondly, from the time of the amended application in these proceedings and certainly by the time of Mr Cowdery’s affidavit, the documents sought to be released had, in my opinion, been described with sufficient precision. Thirdly, the Commonwealth also submitted in the Shams proceedings that there may be a possibility of inconsistent findings with the Saadat proceedings if Mr Shams gives evidence in the latter proceedings. That risk does not arise in the current proceedings, as they have been settled. Fourthly, the difficulty caused by GEO not being a party in the Shams proceedings is not present in the current proceedings.
Conclusion
For the reasons that I have expressed, I order that ACS and GEO be released from the implied undertaking in relation to the Documents for the purpose of their use in the Saadat proceedings.