Hearne & Anor v Street & Ors
[2008] HCATrans 195
[2008] HCATrans 195
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S123 of 2008
B e t w e e n -
PETER HEARNE
First Appellant
DAVID TIERNEY
Second Appellant
and
JOAN STREET
First Respondent
ROSLYN ELIZABETH DWYER
Second Respondent
MICHAEL JOHN HESSE
Third Respondent
GLEN EIGHT PTY LIMITED
Fourth Respondent
SUSAN HESSE
Fifth Respondent
ROBERT SIMKIN
Sixth Respondent
GLEN FREDERICK BILLINGTON
Seventh Respondent
FIONA BILLINGTON
Eighth Respondent
GLEESON CJ
KIRBY J
HAYNE J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 22 MAY 2008, AT 10.03 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, SC, for the appellants. (instructed by Clayton Utz)
MR T.A. ALEXIS, SC: May it please the Court, I appear with my learned friend, MS P.M. SIBTAIN, for the respondents. (instructed by Wise Legal)
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Thank you, your Honours. Your Honours, as the Court will have seen from our written submissions in paragraph 1, the appeal involves ultimately the resolution of two issues. One, to put it shortly, concerns the ambit of the undertaking given in relation to the use of documents acquired by a party from other parties to the litigation. The second is an issue that arose only in the Court of Appeal and it concerns the ambit of the limitation on jurisdiction of that court brought about by section 101(6) of the Supreme Court Act 1970 (NSW).
Your Honours, may I just say something about the nature of the proceedings in the courts below before turning to those issues and I will deal with them if the Court is happy for me to do so in the order that I just mentioned. Your Honours, could I go to the ‑ ‑ ‑
KIRBY J: I expected you to be wearing your wig today in protest that this was a criminal matter.
MR JACKSON: Your Honour, I perhaps should have done that, actually; I should have done that, and I do not know that I can remedy the deficiency in the time available.
KIRBY J: We watch these things.
MR JACKSON: Well, your Honour, one should, I agree. One’s practice has slipped and I regret that I have done so on this occasion. Your Honours, I trust that it will not detract from the argument we present unduly. Your Honours, may I just say this, the basic facts in the case appear in our written submissions in paragraphs 5 to 14. They are not, I think, substantially in dispute.
The appellants were charged with two counts of contempt of court. I will go to their detail in a moment, but there are two features which may be noted. The first, your Honours, is that the appellants succeeded before Justice Gzell on both counts and in that regard could I refer your Honours to the orders of his Honour which appear at page 257. Your Honours will see that he recorded in paragraph 1 of his orders that the notice of motion and statement of charge in each case – in paragraph 1 and 2 be dismissed.
Your Honours, the appeal by the respondents to the Court of Appeal was in relation to what I might describe for the moment as the first count only. I will come back to that in just a moment, your Honours. Could I just say one other preliminary thing about that. The procedure to be followed in a case of this kind was referred by Justice Gzell at page 240 and your Honours will see paragraph 12 of His Honour’s reasons. The opening words:
The Supreme Court Rules 1970, Pt 55 continue to apply to apply -
are a reference to the fact that the Supreme Court Rules as a broad proposition have been replaced by the Uniform Civil Procedure Rules, but Part 55 is specifically preserved in relation to proceedings for contempt.
Your Honours, the notices of motion in each case can be seen respectively at pages 2 and 16. Your Honours will see that, if I go to page 2 in the case of Mr Hearne, there is a notice of motion and in paragraph 1 of that, at the top of page 3, it is sought as one of the orders that he:
is guilty of contempt of Court specified in the Statement of Charge marked “A” and affixed to this notice of motion.
The document at page 16 is in similar terms so far as it relates to Mr Tierney. To each of them there is affixed a statement of charge and if one goes to that, in relation to Mr Hearne, it is at page 8.
KIRBY J: This has always been private litigation. I realise that is not foreclosing the character of it, but it has been brought by private litigants.
MR JACKSON: Yes.
KIRBY J: And there has never been any intervention of the Crown or any manifestation.
MR JACKSON: No, your Honour. The underlying litigation is litigation between two companies, which are the defendants in relation to the conduct of Luna Park in Sydney, and the persons who are plaintiffs who, in that action, are persons who reside in the vicinity, to put it loosely. That is private litigation. The motions for contempt are motions brought in separate proceedings, but they are proceedings brought by the persons who are the plaintiffs in that action against Messrs Hearne and Tierney who, whilst they are concerned with the companies that are defendants in the other proceedings, are not parties to the original proceedings.
KIRBY J: Can I just say a thing – and I speak only for myself on this – I am surprised that no one early in the piece did not try to go to the heart of this issue and say that the revelation of the documents is not a contempt – civil or criminal, period.
MR JACKSON: Is your Honour referring to the fact that they were an attempt to obtain legislation?
KIRBY J: No, no that is another issue that Justice Handley raises, but why, in this day and age, is the publication of an affidavit prepared for use in a court proceedings a contempt of court?
MR JACKSON: Well, your Honour, the proposition was accepted, but if I could just say this. The court proceedings had not been heard and the materials were materials that had been given to, in effect, the defendant companies as materials that might be used in the litigation to come. They had not yet gone into the public domain in any sense, your Honour. I am reminded there was an argument about the extent to which they could go in and could be treated as in the public domain, but that was ruled against our side.
KIRBY J: I realised that there would be that issue down the track, but I would have thought – I mean first of all the law of contempt is in a process of development. We do not prosecute newspapers today for doing things which they do all the time which would have resulted in prosecutions for contempt of court, not all that long ago, 20 or 30 years ago.
MR JACKSON: Well, some television stations in some parts of Australia, your Honour, would not perhaps agree with your Honour.
HAYNE J: The proposition is one of some generality.
KIRBY J: I have sat in cases of prosecution for contempt, but it is a much rarer thing. The law has evolved. I just want to have it clear on the record that as far as I am concerned there is a real question as to whether or not in this day and age producing a document for use in court is a contempt at all.
MR JACKSON: Your Honour, that is not a point that has been taken in the proceedings previously in a relevant sense, or in the sense in which your Honour means it and I do not really see that I am in a position to take it at this point.
KIRBY J: Have you looked at the Law Reform Commission Report on the law of contempt relevant to the issue that is before the Court today? There is no reference that I can see to it.
MR JACKSON: No, your Honour, I do not think there is a reference by either side, your Honour. I do not think it advances the matter really.
KIRBY J: I will be looking at that report.
MR JACKSON: Yes, your Honour. We will check it again and see if there is anything that is relevant, but I think the answer is no.
KIRBY J: Because there is an awful lot of fiction in the writings that the judges have been required to do in the intermediate courts that we could perhaps cut through.
MR JACKSON: Your Honour, much of the reasoning of the majority in the Court of Appeal is material that, in our submission, does add to and add unnecessarily to what is, if I can use the expression, the appropriate law, but that is a matter of argument, your Honour. Your Honours, what I was going to say was this, that if one looks at the notices of motion and the statements of charge, the statement ‑ ‑ ‑
GLEESON CJ: I am terribly sorry to delay you further, but on the point that has just been raised, what is the current position in New South Wales in the Supreme Court about the right of people, other than the parties, to have access to files in relation to pending proceedings and, in particular, to affidavits that are on those files?
MR JACKSON: Well, your Honour, may I endeavour to give your Honour a specific answer perhaps a little later in the case, but it would not, I think, allow someone just to look at the affidavits at this stage of the litigation.
KIRBY J: Perhaps a supplementary ‑ ‑ ‑
MR JACKSON: Leave is required, I think, your Honour, but whether leave would be given in the case though, that is a different question.
KIRBY J: Supplementary to that, it would be within judicial knowledge, would it not, that the practice in relation to preparing written documentation and written statements has greatly expanded from 20 or 30 years ago.
MR JACKSON: Yes, your Honour, yes, and it may be that the current views would think that should be restricted somewhat and they have gone too far. What I mean by that is that in many cases a practice seemed to have developed, in many civil cases, where the evidence of witnesses in‑chief was given by statements. Views have been taken in a number of cases that to do that gives rise to a number of difficulties. One difficulty is, of course, that it gives a cross-examiner too much of a free go by there being a prior statement to work from, and a second is that the personality of the witness does not sufficiently come over because there is not evidence in‑chief given by a witness, but also and importantly, in relation to questions such as reliance and the content of conversations and matters of that kind, that the statements tend to give a view which is perhaps sanitised and a little unreal.
KIRBY J: All of that is a very succinct defence of the oral trial, but the oral trial has been substantially changed by the practice, and sometimes the Rules of Court requiring written documentation, and that is a reason that lay behind my initial question to you, but you are sticking with old law which was developed long before current practices were developed and as far as I am concerned I feel very uncomfortable about that in this Court, sitting here in this Court, dealing with this issue as though nothing has changed since the 1870s. I just do not think that is our proper function. I do not care who does not agree, that is my view.
MR JACKSON: Your Honour, I am not suggesting that nothing has changed, and, for example, Harman v The Home Office was dealing with statements and things of that kind that had been prepared, and that is – there has been some adaptation no doubt in the light of changed practice. Your Honours, could I just say, I was not seeking before to defend an old style of trial. What I was saying was that those views have been taken, the result being that in some cases the evidence, or parts of the evidence, is given orally.
HAYNE J: Whether it is being done 14, 15 years ago in the commercial list in Victoria, I can tell you that of my own personal knowledge, Mr Jackson.
MR JACKSON: Your Honour, yes.
HAYNE J: Put away the statement, tell me what you say was said in the critical conversation.
KIRBY J: I am sorry that I intruded an issue that is not in issue between the parties, and I will decide this case on the basis of the issues between the parties, but it does in a sense because you come to the final Court and do not raise a matter which at least arguably is an important question for the content of what is criminal contempt in this day and age, it makes it awkward to then accept the fictions and accept the reasoning of the 19th century in the 21st century. I feel very uncomfortable about doing that.
MR JACKSON: Your Honour, I do not know that I can advance it further, with respect. It was an issue that was not an issue in the Court of Appeal and it is difficult, with respect, to see that the case is one that might have got here to determine an issue in those circumstances. Your Honours, could I come back to page 9 where I was referring to the statement of charge, and your Honours will see that the way in which one sees the statement of charge is that at the bottom of page 8 there is a heading “FIRST CHARGE” and on page 10 there is “SECOND CHARGE”. The second charge is the one with which the Court is not concerned because the appellants succeeded on that before Justice Gzell and there was no appeal by the respondents to the Court of Appeal on the second charge in either case. So that one is concerned with the first charge, and central to the first charge at page 8 is that it is stated in paragraph 1:
that by his conduct, as particularised below he -
meaning Hearne -
breached the implied undertaking to the Court not to use affidavits or expert reports served on behalf of the Plaintiffs, in whole or in part, or the information contained in them, for any purpose -
Your Honours will see the remainder of that paragraph. So your Honours will see that it is stated in terms that by his conduct he breached the undertaking. Could we invite the Court to note three matters about it at this point. One is that he, as I mentioned before, was not a party to the principal proceedings, the defendants being two companies. The second feature, your Honours, is that if one looks at particular (b) on page 9, it makes it clear that by the first defendant – and the first defendant is described on the preceding page as being “LUNA PARK SYDNEY PTY LIMITED”:
By the First Defendant’s participation in the proceedings, Mr Hearne gave an implied undertaking the Court not to use affidavits -
et cetera. Now, your Honours will see from paragraph (a) he was said to be the managing director of Luna Park and paragraph (b) says that by Luna Park’s participation, Mr Hearne also gave an implied undertaking. The third feature, your Honours, is something that is not alleged, and what is not alleged is that Mr Hearne’s impugned conduct was in causing Luna Park to breach the implied undertaking. Rather, it is alleged that he breached an undertaking which he is said to have given. Your Honours will see that distinction referred to particularly by Justice Handley at page 355. I am referring your Honours particularly to paragraph 199 and to paragraph 201.
GLEESON CJ: The charge was not laid as one of accessorial liability.
MR JACKSON: No, your Honour, whether one calls it accessorial or as in the species of accessorial being to cause Luna Park to breach the undertaking, what is said is that he gave the undertaking and he breached it. He is to be treated as having given the undertaking and he breached it. Now, your Honours, that gives rise to the issue which concerns the implied undertaking. May I say, in relation to Mr Tierney, the statement of charge is to the same effect, although in one respect differently expressed.
You will see that, your Honours, at page 22 and you will see at paragraph 1 it is again alleged he breached the implied undertaking. You will see in the particulars in paragraph (a) on page 23 his association with Multiplex companies and Luna Park, and then the second defendant – your Honours will see in paragraph (d) of the particulars that:
By the First Defendant’s participation in the proceedings, Mr Tierney gave an implied undertaking to the Court -
and then, your Honours, paragraph (e) also puts it perhaps differently in words, but it is difficult to see a difference in substance:
Alternatively, Mr Tierney was obliged by the implied undertaking given –
by Luna Park not to do the various things set out there. Your Honours, Justice Gzell, as I said before, found against the present respondents on both charges and that gave rise to the jurisdictional issue and the jurisdictional issue arises because of the provisions of the Supreme Court Act which is set out by Justice Ipp at page 304 paragraph 16 of his reasons. Your Honours will see that section 101(5) of the Supreme Court Act says that:
An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt -
but then your Honours will see subsection (6) says:
Subsection (5) does not confer on any person a right to appeal . . . in any proceedings that relate to criminal contempt –
when, to put it shortly, there has been a finding that there was no contempt.
GLEESON CJ: Were those provisions in the original Act of 1970?
MR JACKSON: No, your Honour, they were inserted – and, your Honour, we referred to this in our written submission - in I think 1997 – I will give your Honour a reference to where that is.
HEYDON J: On 2 May. Paragraph 16 says it was inserted.
MR JACKSON: I am sorry, it is 2 May. I missed that. Your Honour will see paragraph 16 of Justice Ipp’s reasons on page 304, 2 May 1997. Now, your Honours, could I just say in response to what your Honour Justice Kirby said to me at the commencement of the proceedings, your Honours will see that the appeal is to the Court of Appeal, which is a non‑bewigged area, and that would justify, albeit after the event, my present appearance.
KIRBY J: I see that has been worrying your subconscious.
MR JACKSON: Well, your Honour, it has actually.
KIRBY J: That did occur to me, but people are known to protest.
MR JACKSON: Your Honour, I would, if necessary, give your Honour a written submission later if you want me to.
KIRBY J: I do not think that will be necessary. Was the design of (6) to divert such appeal to the Court of Criminal Appeal, and do they fall within the language of the Criminal Appeal Act?
MR JACKSON: Your Honour, what had been held was to the effect that although there might be an appeal to the Court of Appeal, the appeal did not lie in a case where there had been, to put it shortly, a finding of no contempt and the reason that ‑ ‑ ‑
GLEESON CJ: It is a double jeopardy provision is it not?
MR JACKSON: Yes, it is and an underlying view has been taken, for example, in relation to the provision of the Federal Court that allows appeals to the Full Court of the Federal Court and in other jurisdictions also, that unless an appeal from, to put it shortly, what might be described as an acquittal is specifically provided for, then general provisions dealing with appeals will not be treated as having that effect. The decision in New South Wales was the Director of Public Prosecutions v Chidiac – and I think we may have given a reference to that in our submissions in reply – a decision before the provision. If not I will give your Honours a reference shortly.
Your Honours, could I come then to the question of what is described as the implied undertaking and in doing so, may I first say something concerning rights and remedies a little more generally. The first thing I would say in that regard, your Honours, is that there seems little doubt that there is established a notion of there being an implied undertaking by a party to litigation and an undertaking treated as having been given by its lawyers to that material obtained for another party in the litigation, at least material obtained in a form of compulsion, will not be used for purposes other than the litigation. To do so, your Honours, is a contempt by the party or by its lawyer, the contempt being constituted by a breach of that implied undertaking.
That is the first point, your Honours. The second point is that persons not parties to the litigation may also be liable for contempt because of breach of that undertaking if they have knowingly caused the breach of that undertaking by the party who is subject to the undertaking. Of course, and this is the third point, documents obtained in litigation may have to be shown to other persons such as potential witnesses or may get into the hands of other persons. In such cases any use of purposes other than for the litigation can be restrained and, of course, if an order restraining were itself breached, that would be contempt. But the restraining order is not one which is itself based on contempt.
KIRBY J: Is the theory behind all this, which may have a contemporary justification, that court proceedings of their nature are, in a sense, oppressive and require people to reveal private, confidential, secret, personal, embarrassing things and that for that reason, except as incidental to those purposes, to allow parties or people who have access to it to use this material is, in a sense, going outside the privilege and permitting the revelation of private, personal, confidential and secret things other than as strictly necessary and in that sense it is a protection for people’s dignity and secrets.
MR JACKSON: Yes, your Honour, yes. Notions of that kind do underlie it. What I was going to say was, in the decision in this Court in Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 the question arose whether considerations of that kind applied also to documents in arbitrations as well as proceedings as such. Your Honours will see at page 32 in the reasons of Chief Justice Mason, agreed in specifically by Justices Dawson and McHugh, about halfway down the page, his Honour refers to the implied undertaking in litigation and says:
In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed.
Now, your Honours will seen then a quotation from Bray on Discovery which is treated as remaining apposite. Then your Honours will see that his Honour goes on to say that:
Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. 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 –
Then your Honours will see then something that goes a little more closely to what your Honour Justice Kirby just put to me in the first new paragraph on page 33, paragraph commencing “It would be inequitable”.
KIRBY J: But in England, as I understand your submissions, Justice Hobhouse has said we should drop this implied undertaking notion and simply accept that that came in for historical reasons because of the role of equity, of chancery and the different role of the common law and we should now just accept that this is subsumed in a rule of law. That seems a much more honest and, instead of pretending that people give an undertaking when, obviously in this case, they did not know it, or they say they did not know of the undertaking, or the obligation.
MR JACKSON: The position really, your Honour – it is tempting in a sense to say this is a matter of law and the actual description of it as an implied undertaking may be one that is dated and no longer useful. But of course undertakings in relation to matters of this kind are sometimes given expressly as well.
KIRBY J: So be it. If it is an express undertaking that is one thing. I know why you want to keep it as an undertaking, because then you want to distinguish between the company and the employees, at least there is then an arguable distinction.
MR JACKSON: Your Honour, whether one calls it undertaking or a rule of law, the position is one of determining what its ambit is, to whom it applies.
HAYNE J: Who is obliged is the central issue.
MR JACKSON: Exactly, yes, and that is the core of the matter.
GLEESON CJ: Or, to use the language of that passage from Bray on Discovery on page 32, who is the party and who is the stranger?
MR JACKSON: Yes, your Honour.
GLEESON CJ: But whether it be an implied undertaking or a substantive rule of law, what exactly is its ambit in relation to people who are not parties to the litigation? Let me give an example. Suppose that in documents produced on discovery or in pre-trial affidavits filed pursuant to a court order, information about the financial affairs of a person appears and that information before trial – and perhaps the case is settled, it never goes to trial; in fact most of these cases never go to trial – gets into the hands of the Commissioner of Taxation. Does this rule prevent the Commissioner of Taxation using that information to issue an assessment?
MR JACKSON: This rule would not, but what might happen would be that there would be a contention by the party which had disclosed the information saying that the Commissioner could be restrained. Your Honour, I say nothing for the moment about the possibility of success of this – and I will come to that in a moment – but the course that a party which had disclosed information and which said this had got to the Commissioner of Taxation would be to seek to restrain the Commissioner of Taxation from using information that had been provided to somebody else in the course of litigation.
Your Honours, that would be a use that could in theory – and I will come to that in a moment – be restrained. I say “in theory” because in reality it would probably be that the interpretation of the Commissioner’s powers would be something that would be taken that would permit him to use the information wherever derived from. Now, that is why I say there may be some question about the ambit.
GLEESON CJ: One of the problems about treating all affidavits on court files, for example, as being in the public domain is that in practice most affidavits on most files in most courts – certainly the Supreme Court of New South Wales – are never read in open court because most cases are settled.
MR JACKSON: Yes. I think that happened in Harman’s Case, your Honour, but the privilege remains.
CRENNAN J: What about if the discovered documents not in the public domain disclose the commission of a criminal offence? Is that an exception in relation to the implied undertaking?
MR JACKSON: I think the answer is yes, your Honour. I cannot give your Honour immediate authority for that, but I think there is an exception to that. May I give your Honour a reference ‑ ‑ ‑
HAYNE J: But you would follow out the same chain of reasoning, though not the authority of Cox and Railton, would you not?
MR JACKSON: Yes.
HAYNE J: You would be heading down a path of that kind?
MR JACKSON: Yes.
KIRBY J: Of course, inherent in my original questions would be the notion that as the practice has changed and as the courts are now being used with this written material, and therein the court files, that so the law of contempt has developed to recognise this reality, and if people go to court and file documents, well, why should it not be on the public domain?
MR JACKSON: Well, your Honour, generally speaking, a distinction has been drawn between filing documents and the documents becoming in the public domain. If one takes, for example, an affidavit or a statement, in the ordinary course of events the document is filed. Filing the document does not turn it into evidence. The relevance of that is that generally speaking documents and materials do not come into the public domain until they have been used as evidence in court.
Now, there may be a debate between perhaps some English cases, or there was a debate between England and perhaps some Australian things about whether they had come into the public domain simply by being read in court, or whether they had to be admitted as evidence in court, but generally speaking, our submission would be that the documents are not public documents if they have not been admitted into evidence so far as they are evidence, and they are not public documents if they have simply been the subject of discovery.
Some courts, your Honours, would not have provision for there to be documents that are discovered documents actually in the court at all, or filed in court, there might be affidavits of them and so on. Your Honour, I am not ‑ ‑ ‑
KIRBY J: Well, I suppose I am going to have to put this out of my mind, but it seems all a relic of an era of governmental secrecy, and courts are part of the machinery of government. I could see that in certain confidential, embarrassing, private matters there would be arguments, but in the overwhelming bulk of material that is filed in courts today I just do not see that everybody should be subject to secrecy and people subject to prosecution for contempt.
MR JACKSON: Well, your Honour, I appreciate what your Honour is putting to me, and ‑ ‑ ‑
KIRBY J: You have not raised this sort of argument, and you are in the final Court, and there is just nothing we can do about it, the Court can do about it.
GLEESON CJ: Justice Hayne points out to me that in the Rules of the High Court people are not entitled to go to the Registry and inspect affidavits and exhibits to affidavits that have not been received in evidence in court.
MR JACKSON: Yes.
GLEESON CJ: A common form of document in plenty of files in the Common Law Division of the Supreme Court of New South Wales is a psychiatric report.
MR JACKSON: Yes, your Honour, and reports that say what someone is or is not able to do and sometimes not necessarily in relation to their working activities.
HAYNE J: Can I take you back a stage, Mr Jackson, which perhaps bears more on the second issue than on the first. Can I take you to the nature of the process. The process is commenced by the notice of motion in the form at either page 2 or at page 16. The order sought is an order pursuant to the specified rule that someone is guilty of contempt. Is that a motion for punishment for contempt?
MR JACKSON: Well, your Honour, the way in which it is expressed – if I can just answer that first – is capable of meaning, in effect, that there be a declaration that the conduct is in contempt.
HAYNE J: Would it not be a requirement, at least of natural justice, that the moving party give notice in the notice of motion of the consequence it seeks to have attached to that which is alleged. I have in mind particularly the position of a corporation. Had the proceedings been brought against Luna Park one could imagine that the consequence sought would have been sequestration, a rather dramatic consequence for a corporation.
MR JACKSON: Indeed, your Honour.
HAYNE J: I would have thought that ordinarily one would expect that notice would be given of what is sought with more precision than the bare statement “X is guilty of contempt”.
MR JACKSON: And paragraph 2, your Honour.
HAYNE J: Further or other order, yes, but further or other order is the last resort of the forensically destitute, I suspect, is it not, Mr Jackson?
MR JACKSON: Well, careful sometimes, your Honour, careful, forensically careful. Could I also say, your Honour, that under Part 55 rule 13, it deals with punishment and you will see that it says:
Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.
The sequestration or fine is deal with in sub‑rule (2). So it is right to say that if one looks at the rules one can see the types of punishment that might be imposed.
HAYNE J: The procedure is relevantly governed by rule 6, is it not?
MR JACKSON: Yes.
HAYNE J:
Where contempt is committed in connection to proceedings in the Court, an application for punishment for the contempt must be -
commenced, et cetera. It leads on, of course obviously, to the notion that criminal contempt might be understood as proceedings in which punishment is sought. Proceedings in which bare declaration of the fact of contempt is sought might be the remaining and relatively small category of cases that is not a criminal contempt, rather than wrestle with these distinctions attempting to attribute a single characterisation to what is necessarily a mixed motive in bringing proceedings for contempt.
MR JACKSON: Your Honour, that does not really seem to be what is sought in this case because the position is that if the judgment of the Court of Appeal stands then your Honours will see that the order made by the Court of Appeal was that the matter be remitted back to – I take your Honours to the Court of Appeal’s order ‑ ‑ ‑
HAYNE J: Pages 360, 361.
MR JACKSON: Yes, page 360.
HAYNE J: Hearing as to penalty.
MR JACKSON: Yes, hearing as to penalty. So, your Honours, this is not a case where it is just going to be, if anything, a declaration plus an order for costs. This is a case where – and I will come a little later to it a little more fully – what is sought, it is apparent, we would submit, is something that is to impose some kind of punishment upon these men for the conduct in which they engaged.
What I was going to say was this – if I go back to the undertaking for a moment – your Honours will see that in the passage from Esso Australia Resources v Plowman, to which I referred earlier, Chief Justice Mason was there referring to the position of a party and it seems clear enough that the party to the proceedings is liable whether the party has actual knowledge of the fact that the undertaking is implied or not. Could I in that regard refer to what Justice Ipp said at page 332, paragraph 111:
I do not accept that knowledge of the terms of the implied undertaking are relevant to a charge of contempt based on a breach of the undertaking.
Your Honours, I do not think we would disagree with that proposition, but of course it does involve the anterior assumption that one is talking about a person who is treated as bound by the undertaking.
KIRBY J: But given that it is a fiction, why would one not say if there is a deemed undertaking, implied undertaking, implied by law, that it is not only the party to the litigation but any officers of the party who are parties to the breach of the undertaking who are of sufficient seniority to be responsible?
MR JACKSON: One could, your Honour, but what one would say about that is that why they are liable is not because they are parties to the undertaking but because they have knowingly participated in a breach by the party. One might call it traditional, but that is the ordinary way in which they would be held to be liable and their contempt would not be by themselves being party to the undertaking but ‑ ‑ ‑
KIRBY J: Does that work if you take the view, as Justice Hobhouse did, that it has now evolved into a rule of law?
MR JACKSON: It is exactly the same, your Honour. The question is still ‑ ‑ ‑
KIRBY J: Is then the ambit of the rule of law as distinct from the ambit of this fictitious undertaking.
MR JACKSON: Your Honour, whichever one calls it, the issue is to whom it applies. Your Honours, what I was going to say about it is that if one looks at – it seems clear enough, we would submit, that the parties actually bound by the undertaking are those – I am sorry, in the case of the parties who are bound by the undertaking that they themselves, their knowledge, is something that does not have to be proved. Could we give your Honours two other references in that regard? One of them was Justice Blackburne in Watkins v AJ Wright (Electrical) Ltd and Others [1996] 3 All ER 31, and at page 42 letters e to h. You will see, your Honours, perhaps if I can go to letter c, he refers to Lord Scarman in Harman v The Home Office as saying:
“The law imposes the obligation . . . for the protection of the party compelled to make discovery . . . It does so by implying an undertaking by the party to whom discovery is made and his solicitor not to use them -
Your Honours will see the remainder of that quotation. Your Honours will see in the passage going from e to h that his Lordship rejected the notion. In the case of those persons there had to be proof of the knowledge of the undertaking themselves. Now, your Honours, so too to the same effect were the reasons of the Master of the Rolls, Sir John Donaldson, in Hussain v Hussain [1986] 1 All ER 961 at 963, commencing at the bottom of the page, I think about letter j, and going over, your Honours, to about six lines down on page 964.
KIRBY J: One possible argument for sticking with the notion of undertaking is that principle that was stated about 30 years in England that the common law is past child bearing in creating new criminal offences, and therefore that we should just leave it to Parliament to sort these things out if it wants to and – which it has not been all that enthusiastic to do in response to the Law Reform Commission - and stick with the old law, I suppose. What was that case, do you remember?
HAYNE J: Ladies’ Directory Case – Shaw, is it not?
KIRBY J: Yes, that is right, Shaw.
MR JACKSON: Yes, that is correct, your Honour, yes. Your Honours, the question of knowledge to which I was referring a moment ago, one may accept in relation to those who are parties to the proceedings and their solicitors in it, and the law recognises, as I say, the solicitors, because the law recognises the litigants will act in litigation by their lawyers and imposes a similar obligation on those lawyers.
Your Honours, one sees that in Harman v The Home Office [1983] AC 280, Lord Diplock at page 302, about letters C to D, at page 304G and Lord Keith at page 307F. Then, your Honours, the passage which I think may have been quoted earlier from Lord Scarman at page 313 commencing between C and D and it goes through to letter E. Could I say, your Honours, it seems clear enough from Lord Scarman’s reasons at page 312G that he did not treat the implied undertaking as applying to anyone other than the litigant or the litigant’s solicitor and one can see that also at page 319 ‑ ‑ ‑
KIRBY J: Why in principle would one confine it to the litigant?
MR JACKSON: Your Honour, the situation that one has really is that the documents or information are provided by a litigant to another litigant. That litigant may have started the proceedings or may be someone who is a respondent in the proceedings, it being provided to that person that person is the party before the court and that person is the person who is treated as subject to the obligation.
Now, dealing with the position of the solicitor is really an extension of that. It is recognising the fact that a party in litigation will, in the ordinary course of events, be legally represented and the lawyer for that party should be aware of this and should be treated as personally bound, partly because that person is himself or herself an officer of the court.
GLEESON CJ: Has it been analysed in terms of the price that the litigant is required to pay when the litigant – by the litigant’s lawyer – invokes the compulsory process of the court to gain discovery of documents?
MR JACKSON: That is so, your Honour, yes it has, your Honour. I think that is discussed in some of the reasons in Harman’s Case.
CRENNAN J: Lord Scarman says it is a “condition upon which discovery is ordered” at 313C.
MR JACKSON: Yes, your Honour.
KIRBY J: The problem with that theory though is that the litigant may not be the actual moving party in the acts that are said to be a contempt. The litigant may be completely innocent of the action and an officer of the company for his or her own advantage or perception of what is good for the company or for anything, personal advancement, releases the documents. It does not then have the sanctioning effect that one thinks lies behind providing for this remedy in the event of disclosure.
MR JACKSON: But, your Honour, when I say “it”, and I will explain what I mean by “it”, it does really, because what you have is a situation where the litigant, the party, is guilty of contempt in the breach of the undertaking. Now, even though it did not really want to do so, it is guilty. The penalty, if any, may be a different thing. But so far as the officer who did it is concerned, that officer’s liability is as a person causing the breach.
KIRBY J: Sting of the punishment then is not as potent as if it falls on those who actually do the so-called anti-social acts of disclosing the confidential documents.
MR JACKSON: But in that case it would be, your Honour, it would be, because what you have is the liability of the officer is a liability where the liability to be punished – the contempt being causing the breach of the undertaking by the principal.
KIRBY J: That would not be much use if the company is insolvent.
MR JACKSON: The penalty is a penalty on the officer.
KIRBY J: Why? If your theory is that the litigant, in this case a company, is rendered liable by the operation at law and the implied undertaking that it has given, then it is the company only that is liable, is it not? It is not the officer. The officer might be accountable to the company within its internal processes but it is the actual company, and I thought that is what you would be wanting to say.
MR JACKSON: No, your Honour. What I would say is this. If you have a case where there has been a breach of the undertaking by the company but the breach by the company has been brought about or assisted by officers of the company, as would ordinarily be the case – yes, done by them knowingly of course – then you have a situation where, so far as the company is concerned, there is a breach. It might well be described as a technical breach so far as it is concerned. But so far as the officers of the company are concerned, who brought it about, they suffer the ordinary liability that one sees referred to, and recently reaffirmed in the House of Lords, in Marengo v Daily Sketch and Sunday Graphic.
The relevant passage is referred to at page 354 in the reasons in the present case, that is, if there is knowing assistance by those persons in the breach of an undertaking or of an injunction, then they are committed for contempt of court and the punishment that they might well – not because they breached it themselves, but because they brought about the breach – and they might well be liable to a much more condign penalty than the company itself.
GLEESON CJ: The question is not whether the officer of the company is potentially liable. The question is as to the legal basis of the liability and if the legal basis of the liability is accessorial, that has certain consequences in terms of the mental element.
MR JACKSON: Yes, quite, your Honour, yes, and, of course, there is no accessorial charge here, which is the point of the case really. It might be that if an accessorial contention had been made, then our clients would be in more significant difficulty.
GLEESON CJ: It would be like being knowingly concerned in a breach by a company with injunction against it.
MR JACKSON: Exactly, your Honour. Your Honours, it is very difficult to see what difference between those two positions. Could I just say, I think I was referring to what was said in Harman v The Home Office and I had been going ‑ ‑ ‑
HAYNE J: Just apropos of Harman and the metaphor of price that the Chief Justice was referring to, that is picked up, but from the other side, by Lord Keith at page 308 at about letters C to D.
MR JACKSON: Yes, thank you, your Honour. Your Honour, there is another passage in one of the cases that I will ‑ ‑ ‑
HAYNE J: I would go back to Altersyke v Scott, I think, or Riddick. I suspect it is back in the Court of Appeal judgments in the 1940s that we find the other side of the price metaphor first deployed.
MR JACKSON: Yes, your Honour, I think that is so, but what one does see in one of the cases – I am sorry which one has escaped me for the moment – a reference to the fact that a party does not always have to rely on particular things if it chooses to, then subject to any undertaking, then the ordinary degrees of publicity and so on apply. Your Honours, I just want to say one or two more things about Harman’s Case. Your Honours, if one goes to page 319 in Lord Scarman’s reasons, he is there speaking on his own behalf and on behalf of Lord Simon and under the heading “Conclusion” your Honours will see what he sets out – the conclusions about it.
The point I was going to make about the case, your Honours, is that the only suggestion in that case that the obligation extends beyond the legal practitioner is found in an observation of Lord Roskill at page 320 and your Honours will see in his reasons between letters D and F, where he said:
The sole question for your Lordships’ House is whether that belief –
that is the belief of Ms Harman, who was a solicitor for a party, that she was entitled to do what she did -
was well founded in point of law. If it were well founded in point of law it must be because the implied undertaking which arises on the part of those in whose favour discovery is made in civil litigation‑I, of course, include in that expression the solicitors and other agents of those parties–towards those -
Now, that expression, your Honours is not further elaborated upon.
GLEESON CJ: The moment you use the word “agent” the question arises, agent to do what?
MR JACKSON: Indeed, your Honour. One might say that perhaps it applies automatically to counsel for a party, someone in that sense being an agent, but your Honours, the ‑ ‑ ‑
GLEESON CJ: Or an industrial advocate, perhaps.
MR JACKSON: Perhaps, your Honour. The cupboard is perhaps rather bare in relation to support for a proposition beyond the party itself and the party’s legal advisers as being persons directly subject to the undertaking. Your Honours, Justice Ipp, to support the notion, relied on dicta in a number of cases. Without going to them in detail, may I seek to deal with them first of all.
His Honour’s discussion on this point commences at page 325 where his Honour referred to a decision of the Full Court in Western Australia and it was Hamersley Iron v Lovell (1998) 19 WAR 316. In that case the court held that an industrial advocate was subject to the undertaking and the relevant passage in that decision is by Justice Anderson at page 334 at the bottom of the page. You will see that Justice Anderson said, in the last few lines on that page:
“The implied undertaking was certainly binding on the CEPU as a party in the main action and it was also binding on Mr Lovell -
who was an industrial advocate -
The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery -
I pause at that point. What your Honours will see is that the basis of that is said to be the decision of Justice Talbot in Distillers v Times Newspapers Ltd. Your Honours, if I could just say the passage from Justice Anderson to which I just referred is that which is referred to by Justice Ipp in the appeal book at page 325 in paragraph 88. The difficulty, however, is that what is quoted there is actually not what had been said by Justice Talbot in the Distillers Case [1975] QB 613. May I take your Honours to that? I will take your Honours to the passage, which is at page 621, in just a moment. But may I say one thing before doing it, your Honours. In that regard we would invite the Court to note the nature of the proceedings in that Distillers Case. They were not for contempt of court for breach of the undertaking at all but rather to restrain the use of material by a person who had no entitlement to use it.
That is the context, your Honours, in which Justice Talbot’s observations were made and if one goes to page 621 you will see, commencing at D, his Lordship said:
Those who disclose documents on discovery are entitled to the protection of the court against any use of the documents otherwise than in the action in which they are disclosed. I also consider that this protection can be extended to prevent the use of the documents by any person into whose hands they come unless it be directly connected with the action in which they are produced . . . it is a matter of importance to the public, and therefore of public interest, that documents disclosed on discovery should not be permitted to be put to improper use and the court should give its protection -
Now, your Honours, the protection that was being sought was an injunction to restrain use of the documents by someone who was a potential expert witness. It is not a case dealing with the question whether that person was bound by the implied undertaking at all. The persons bound by the implied undertaking were parties to the proceedings, but there was an improper use of the documents by a person to whom they had been given, and the Court held that could be restrained. No doubt if that order for restraint had been itself breached it would be contempt by that person. But, your Honours, that was not the nature of the proceedings at all.
HAYNE J: But there may be some ambiguity revealed in the passage from Hamersley which we see at 325 of the appeal book in the notion of being bound by the undertaking, because the binding that is spoken of is dependent upon knowledge and thus the binding being spoken of is at least consistent with binding by way of liability as an accessory, rather than as principle where knowledge of the giving of the undertaking at least is – or implied giving – is not a necessary step, is it?
MR JACKSON: Your Honour, could I in that regard refer to page 352, paragraph 186, where Justice Handley referred to the Distillers Case and then he went on to the nature of the Distillers Case and at paragraph 192 on page 354 said, I think, something along the lines that your Honour had put to me, and indeed at first instance Justice Gzell had taken a similar view and your Honours will see that referred to at page 248 in paragraph 44 of his Honour’s reasons.
Your Honours, Justice Ipp recognised that the passage from Distillers was one that applied to a different, in effect, form of proceeding, but he said that it also should be treated as applying to proceedings for contempt. Your Honours will see that in paragraph 93 of his reasons, which are at page 326. He refers to that passage at paragraph 92 and then at paragraph 93 said in the third line:
for the reasons I give below, the principle expressed is as valid for charges of contempt as it is for cases where injunctions are sought to restrain the use or disclosure of protected documents.
So, your Honours, he referred in that regard to – and your Honours will see in paragraph 95 - Pacific Basin Exploration. But that was a case, in our submission, a very ordinary case where the managing director was in court when the undertaking was given and knowing of the undertaking caused its breach. Your Honours, we would refer to what Justice Handley said about that at page 352 paragraph 187. Justice Ipp relied also on what Justice Blackburne had said in the Watkins v Wright Case.
HEYDON J: Page 327.
MR JACKSON: I am sorry, your Honour, thank you. Paragraph 95, page 327. What your Honours will see in that case, which is [1996] 3 All ER 31, it was a case where the litigation was in England, where the principal solicitor was in Scotland and at page 33 your Honours will see in the first paragraph of the reasons Mr Wilson was the solicitor in Scotland. There is a somewhat Delphic observation which appears at letter c on page 33 and in fact the events, that is, the disclosure, in fact, that should not have taken place, took place in Scotland by the Scottish lawyer.
At page 41 Justice Blackburne held that ignorance of the implied undertaking was irrelevant where the alleged contemnor was bound by it. You will see that, your Honours, in passages I think I have referred to at pages 41 and 42. If one goes then to page 43, the paragraph commencing between f and g, what your Honours will see is that he rejected the submission that the Scottish solicitor “was not bound by the implied undertaking to the same extent” as the client. He quoted the observation of Lord Roskill and then said:
In the light of that passage, and the underlying rationale for the existence of the implied undertaking, I see no basis for confining the scope of the undertaking to those who are parties to the action, to whom discovery has been given, and to the solicitor or solicitors on the record. The undertaking will be of little utility if it did not extend to those like Mr Wilson who . . . take upon themselves the day‑to‑day conduct of the litigation.
Now, your Honours, one can understand that reasoning on the basis that Mr Wilson was in relevant respects the lawyer for the party, but the passage at 43, in our submission, goes a little too far if it is to be read as going to other persons. Your Honours, why is the undertaking of little use if confined to the parties and their lawyers? Surely on the one hand, knowing involvement in breach of it is a perfectly acceptable criterion and has been for years. Surely too the ability to restrain improper use exists. Your Honours, we would submit, hypothetically, why create a separate category of those who take on themselves the day‑to‑day conduct of litigation?
KIRBY J: I suppose an answer might be because these are the people who are truly responsible, within what Justice Blackburne said, these are the people who enliven the underlying rationale of the rule of providing contempt and these are people who are under the power of the court. It is not just the parties. I mean, courts, at least in the past in what might be called the good old days, courts would bring forward editors of newspapers who were not parties to proceedings and deal with them for contempt. So the underlying rationale is what we have to search for, not what a few
English judges, or other judges not confronting our problem, said about this problem.
MR JACKSON: Your Honour, the underlying rationale, in our submission, is that a party who obtains information by court proceedings from another party is not able to use that information for purposes other than those proceedings. That is so whether that party knows or does not know of the existence of such an obligation.
CRENNAN J: One practical consequence of you being right on this aspect might be that those giving discovery will not give it until they have express undertakings from anybody who is connected with the day‑to‑day operation of the litigation, that is to say in major commercial litigation a lot of people can be involved with the processes of discovery.
MR JACKSON: Indeed, your Honour ‑ ‑ ‑
CRENNAN J: And with assessing what has been discovered.
MR JACKSON: Your Honour, it is not infrequent to have to sign these things. Express undertakings are very commonly given, or required to be given by various people in relation to litigation.
CRENNAN J: I am just suggesting in major commercial litigation that might run into 100 people.
MR JACKSON: It can, your Honour. In some cases the regimes for these matters are pretty well known and recognised – informally, I will accept – but it is not uncommon to have to give such undertakings as express undertakings. That being so, your Honour, there is nothing very new about that either, with respect. It has been around for quite some time that such undertakings are required to be given. It does not just apply to commercial litigation. Sometimes similar requirements can be imposed in relation to matters of security and other such things, the provision of information relating to security and national security and matters of that kind.
KIRBY J: Your theory has already haemorrhaged to a lawyer who is acting for a party and it has haemorrhaged to an industrial advocate. So why is Justice Blackburne wrong to say “Look at the underlying rationale”? The underlying rationale is to stop the leakage of this material and that is best done by letting everybody know and the law is that if they take part they are personally responsible for a contempt.
MR JACKSON: Well, your Honour, the difference is this, that the personal responsibility exists in respect of contempt. There is no question about the existence of personal responsibility. The question that arises, however, is whether the personal responsibility exists in the case of a person other than a party or the lawyer acting for a party in the absence of knowing participation in the breach – in the absence of knowing involvement. It is the knowledge in the end that becomes the important matter because it is perfectly possible that if, as director of a company, I were to cause the company to breach the implied undertaking – assuming I know of the undertaking - I am liable. I may well be punished more than the company.
HAYNE J: Does the point come to this, that litigant and lawyer for the litigant are taken to know of the obligation. Others must be proved to know of the obligation.
MR JACKSON: Yes. Essentially, your Honour, the case comes to that in the end and that of course is the thing that does involve the question of who is bound by the undertaking.
HEYDON J: Mr Jackson, you took us to something that Justice Gzell said at the top of page 249, in the course of which he corrected Justice Anderson’s construction of Justice Talbot’s remarks, but just after that it says:
There was no evidence that Mr Hearne knew that the documents had been discovered -
It is really, I suppose, not a question of discovery. It should say, there is no evidence that Mr Hearne knew that the documents had been produced in litigation. The documents in question included an affidavit, did they not, or part of one?
MR JACKSON: Yes, they did.
HEYDON J: Page 48 over the name of Mr Hearne on an email it says:
Please find attached the following . . .
3. copy of section of affidavit of one of the plaintiffs ‑ ‑ ‑
MR JACKSON: Yes.
HEYDON J: Now, is that not knowledge that the affidavit was produced in the legal proceedings in which Mr Hearne’s company, of which he was the managing director, was the first defendant?
MR JACKSON: Yes, your Honour, the second part of what his Honour said in that paragraph is perhaps a little difficult to support, and I think that our learned friends make that point in their written submissions. But the case in the end was not one where they were dealt with on the basis of knowing participation. The question was whether they were or were not bound by the undertaking.
HEYDON J: Why were they not bound by it because they knew, or at least Mr Hearne, I do not know about the other appellant at this stage?
GLEESON CJ: Yes, a copy of that email went to Mr Tierney.
MR JACKSON: Yes, your Honour. Well, your Honour, if that were so then the way in which they might have been dealt with was pursuant to the approach taken in the Seaward v Paterson line of cases.
GLEESON CJ: That would involve not only knowledge that these were affidavits but knowledge of the undertaking.
MR JACKSON: Yes.
HEYDON J: Undertaking is implied by law. It is simply part of the law, is it not?
MR JACKSON: It is part of the law, your Honour.
HEYDON J: Ignorance of the law is not usually a defence.
MR JACKSON: No, no, your Honour, I would accept that, and that is why one sees there being – there is no requirement to demonstrate that in the case of someone who was bound by the undertaking. When one comes to other persons, then, your Honour, it becomes a question whether the case against them was – I do not want to come down to make it too precise, but it was after all a case of contempt, the contempt was that they themselves had breached the undertaking, and they were not charged as being themselves having an accessorial liability.
Your Honours, we have referred in our written submissions to the proposition that your Honours would treat a discussion of the cases by Justice Handley as being superior, if I may say so, with respect, to that by Justice Ipp’s discussion of them. Your Honours, I do not think I need to add anything more to our written submissions on that point. What we would say is simply that this was a case where the contention that the appellants were to be treated as having personally given the undertaking should not have been accepted. That was the case that was made against them and it was one which should not have been accepted. Your Honours, may I turn ‑ ‑ ‑
Now, we point to that and this case in contrast to the situation here where there is plainly enough a coercive purpose to ensure compliance until the case was heard. I should say that that was not the holding of the court. The appellant in the case was a litigant in person, as what Justice Campbell says in paragraphs 58 and following make plain. The case was ultimately decided on a more substantive basis and it was in respect of that that Justice Handley and Justice Bell agreed.
So, in our respectful submission, the characterisation point really comes down to a determination of the charge and the circumstances as they existed at the time, and as the correspondence in our submission makes plain, there was clearly a coercive purpose in bringing the contempt proceedings at the time that they were brought, importantly, because the substantive case was well and truly still on foot, and the hearing of that case ultimately did not occur until a year later. Those are our submissions, if the Court pleases.
GLEESON CJ: Thank you, Mr Alexis. Yes, Mr Jackson.
MR JACKSON: Your Honours, our learned friends referred to the order of the Court of Criminal Appeal which – I am sorry, to the Court of Appeal which sent the matter ‑ ‑ ‑
HAYNE J: Freud is alive and well, Mr Jackson.
MR JACKSON: I am sorry, your Honour, which sent the matter back to be dealt with on the question of penalty, but that after all is what was sought by the present respondents in the Court of Appeal.
Your Honours will see that from their notice of appeal, which appears at page 264, the relief being sought, paragraph 2, “That the matter be remitted to the trial judge for a hearing on penalty.” That was what they succeeded and got. Your Honours, that does seem to be the extent to which one might look at things after the event as a fair characterisation of the nature of the proceedings.
The second thing, your Honours is this, that it right to say that the motion was one required to be in the proceedings, so it was a matter, it was in the proceedings, but the question is one of substance, rather than one of form. True it may well be that it is possible to tease out of the case some reasons why there might want to be an order made which has some relationship to the future conduct of the proceedings, but at the same time it was a case, plainly enough we would submit, where two purposes were involved. One purpose being to provide for some punishment in respect of the breaches that have occurred, the other being, perhaps, to deal with the future conduct of proceedings.
Your Honours, one sees the passage I referred to before at page 319 in paragraph 67 of Justice Ipp. He said:
Simply put, in my view, the appellants are entitled to protect their privacy by seeking orders that would deter Mr Hearne and Mr Tierney from acting in the same way again.
And the element of deterrence in those circumstances would be likely to be achieved by some punishment upon them for what they were found to have done in the past. Your Honours, might I also say that Justice McHugh in Witham v Holloway perhaps does not go quite as far as the majority reasoning, or the reasoning of that plurality, in the characterisation issue. Your Honours, could I go back then to the question of the implied undertaking.
Our learned friend said that the obligation flows from possession and knowledge and that that was exemplified by a decision in Harman in dealing with the position of the solicitor, but the remarks of Lord Diplock in that case do not really support that. If one goes to page 304 in [1983] 1 AC, your Honours will see that between letters G and H what is said in relation to the position of the solicitor is:
This is why an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client –
and so it goes on. Your Honours, it does seem the position of the solicitor does seem to have a basis in the nature of the solicitor’s relationship to the court and also the solicitor is acting for the party.
Your Honours, could I also say, if one goes to page 300 of the same decision, your Honours will see between letters C and D that Miss Harman was the solicitor on behalf of the party and she made the application for discovery of documents, so that was the factual matter. It is said also that our contentions would place a significant limitation on the utility of the undertaking, but there is in fact, in our submission, no limitation. First of all, there is the provision for knowing involvement and the circumstances in which that can itself amount to contempt. Secondly, there is also the ability for the Distillers type of relief for there to be a restraint.
HAYNE J: What proofs are necessary for knowing involvement, do you say? What proofs are necessary to establish knowing involvement?
MR JACKSON: Your Honour, so far as knowing involvement would be concerned, there would have to be knowledge, first the documents were obtained from the other side in the course of litigation and knowledge that they were not permitted to be used for a purpose other than the litigation.
HAYNE J: Knowledge of the law?
MR JACKSON: It is a mixed question of fact and law, your Honour. It is mixed in this sense, that there is an element of the law in it because that is the source of the original obligation. There is a question of fact in knowing that a doctrine of that kind is applicable to the documents.
HAYNE J: But you would have to prove, do you say, conscious adversion by the defendant to the fact that that which the alleged contemnor was doing was unlawful?
MR JACKSON: Yes, your Honour, as one would have to do for a breach of the injunction or breach of an express undertaking. Your Honour, one can classify the obligation as one imposed by law, but so too are many obligations of a party in litigation provided for by rules of courts, sometimes provided for by statutory provisions, but in the case of involvement by a person other than the party to whom they apply directly, there would have to be, in our submission, knowing involvement.
Your Honours, could I just say finally in relation to this, the cases that deal with the implied undertaking and treat it as being something implied by law also recognise the possibility of its modification by order of the court and also recognise the possibility that there may be additional or different undertakings required or orders made.
Your Honours, could I deal with a number of matters that were referred to by the Court this morning and if I could deal with them very briefly. The question of an appeal to this Court directly from an acquittal was discussed in the reasons for judgment of Chief Justice Gibbs in Davern v Messel (1984) 155 CLR 21, and the relevant passage, your Honours, pages 35 to 39. Could I just say, that passage refers also to circumstances where, in relation to appeals from courts of summary jurisdiction from acquittals, his Honour refers to the fact that in many jurisdictions appeals of that kind were allowed and refers to the types of provision.
So far as the question your Honour the Chief Justice asked, making provision for ability to look at documents which have been filed, I am not able to give your Honour the current rule, I will endeavour to do so if I may do so in a day or two, but the previous rule was Part 65 rule 7, where there was a need for leave except where the person was a party or where the applicant was the registrar of births, deaths and marriages. Your Honour Justice Kirby asked me about the Law Reform Commission provisions and there seemed to be in ‑ ‑ ‑
KIRBY J: I notice that there is a whole section on the overlap of criminal and civil contempt.
MR JACKSON: Yes, your Honour, I am sorry. I was going to deal with the – and, your Honour, I think Mudginberri was the case that was the most recent case at the time, and the issue is discussed historically. I do not think it takes it beyond that, really. I was going to say, though, in relation to the implied undertaking provision, which I think was the provision your Honour was asking me about more particularly. It seems to be dealt with only in two passages and then very briefly. One is at page 314 at paragraph 536 and the other is at page 299 at paragraph 505. In the earlier reference there is a reference to cases such as Seaward v Paterson and in paragraph 536 it is suggested that there was no need to change from the existing provisions.
May I give your Honours copies of those pages and can I give your Honours copies of the second reading speech in relation to the amendment of section 101? Would your Honours be content if I were able to do that in the next seven days?
GLEESON CJ: Yes, Mr Jackson.
MR JACKSON: Your Honours, those are our submissions.
GLEESON CJ: Thank you. We will reserve our decision in this matter and the Court will adjourn until 9.30 tomorrow in Melbourne.
AT 2.58 PM THE MATTER WAS ADJOURNED
3
0