IDAMENEO (No 123) Pty Ltd v Candetti Constructions Pty Ltd & Anor

[2011] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

IDAMENEO (NO 123) PTY LTD v CANDETTI CONSTRUCTIONS PTY LTD & ANOR

[2011] SASC 119

Reasons of Judge Lunn a Master of the Supreme Court

22 July 2011

PROCEDURE

Inspection of documents – plaintiff seeking express undertaking of confidentiality before inspection of its disclosed documents by any expert retained by the first defendant.

Held – no order to be made without the identification of the experts to whom it would relate.

IDAMENEO (NO 123) PTY LTD v CANDETTI CONSTRUCTIONS PTY LTD & ANOR
[2011] SASC 119

JUDGE LUNN:

Reasons on restrictions on disclosure of plaintiff’s documents to the expert witnesses for the first defendant

1. In my reasons of 30 June 2011 (FDN32) I dealt with whether the lawyers for the first defendant should be required to give express undertakings of confidentiality before being permitted to inspect some of the documents disclosed by the plaintiff.  The plaintiff now seeks a further order that those documents not be produced “to any proposed expert or other witness (other than employees of the First Defendant) without first obtaining a confidentiality undertaking … from such person”.

2. The point has been dealt with on written submissions.  The first defendant took a preliminary objection that no such order was sought in the plaintiff’s application of 27 May 2011 (FDN29).  It was referred to in the supporting affidavit and correspondence between the parties.  The parties have now had an opportunity to put their submissions on it.  The first defendant complains that it is prejudiced because it has not had an opportunity to put evidence on the point before the Court.  If that was its position, it should have applied for an adjournment of the argument to enable it to have done so.  In any event, it cannot be prejudiced by the order which I propose to make.

3. The plaintiff relies on three cases[1] where proposed expert witnesses were required to give an express written undertaking of confidentiality before being permitted to inspect confidential documents discovered by another party or the like.  In these cases it was held that the usual implied undertaking of confidentiality was not sufficient in the circumstances and the interests of justice required that there should be an express undertaking.  In each of those cases the proposed expert witness was identified.  The Courts there considered the potential risk of misuse of the confidential information by the expert witness in the context of that person’s actual or potential involvement in the circumstances which gave rise to the confidentiality of the documents.  However, here the identity of any proposed expert or other witness of the first defendant in respect of whom the express undertakings are sought has not been disclosed.  The discretion about whether an express undertaking should be required cannot be properly exercised by the Court without knowing the identity of the proposed witness and how the plaintiff might be potentially compromised by the disclosure of its confidential information to that witness.  It is not a situation where the relevant factors would apply equally to all potential witnesses for the first defendant.  The issue can only be properly resolved by evidence and argument concerning identified experts and witnesses. 

   [1]    Hotrox Charcoal Company v Gebauer Nominees Pty Ltd, Full Court of Western Australia, 25 October 2002, [2002] WASCA; Bioscience NV v Delta Pine Australia Pty Ltd, Heerey J of the Federal Court, 13 February 2006, [2006] FCA 68; Chaina v The Presbyterian Church NSW Property Trust No 2, Hoeben J of the Supreme Court of New South Wales, 13 October 2008, [2008] NSWSC 1056.

4. The appropriate order is along the following lines:

   1Before the first defendant discloses any of the documents in question to any expert or other witness, other than an employee of the first defendant, it is to either:

   a.Obtain a written undertaking from that witness concerning the preservation of confidentiality; or

   b.Give 14 days notice to the plaintiff’s solicitors identifying the witness and his or her area of expertise.

   2If notice is given under paragraph 1 b., the plaintiff is at liberty to apply to the Court within that 14 days for an order that the witness give an express undertaking as to confidentiality.

   3If the plaintiff makes an application under paragraph 2, the documents are not to be disclosed to that witness until the application is determined.

   4If the plaintiff does not make an application under paragraph 2, the second defendant may disclose the documents in question to that witness, although subject to the usual implied undertaking as to confidentiality.

5. The minutes of order on FDN29 should be amended to incorporate what is decided in these reasons.  If the parties agree on those minutes of order, the Registrar may seal the order without any further fiat from myself.  If the terms of the minutes are not agreed, the making of the order will have to await my return from leave.

6. I have today made the following orders:

   1Reasons published.

   2Further directions hearing set for Thursday 8 September 2011 at 9.45am.