In the Matter of Effem Foods Pty Ltd t/as Uncle Ben's of Australia Lake Cumbeline Pty Ltd & Ors v Effem Foods Pty Ltd t/as Uncle Ben's of Australia
[1996] FCA 751
•28 AUGUST 1996
CATCHWORDS
PRACTICE AND PROCEDURE - application for access to documents produced on subpoena to the Court - access required with respect to proceedings in the Victorian Supreme Court - existence of implied undertaking by parties not to use any documents produced for the purpose of particular litigation for any other purpose - the fact that documents were produced on subpoena does not effect the implied undertaking - implied undertaking is given to the Court - disputed questions of discovery to be determined by Victorian Supreme Court - denial of access by this Court will not frustrate conduct of Victorian proceedings or impede applicants in proper defence of those proceedings.
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, applied
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576, cited
Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493, cited
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, cited
Ainsworth v Hanrahan (1991) 25 NSWLR 155, cited
Central Queensland Cement Pty Ltd v Hardy (1989) 2 QdR 509, cited
Home Office v Harman [1983] AC 280, cited
Riddick v Thames Board Mills Ltd [1977] 1 QB 881, cited
IN THE MATTER OF EFFEM FOODS PTY LTD
t/as UNCLE BEN'S OF AUSTRALIA
LAKE CUMBELINE PTY LTD, IDOBOOK PTY LTD, PETER HORROBIN, RICHARD SANDS and RAYMOND PRIDMORE - v -
EFFEM FOODS PTY LTD t/as UNCLE BEN'S OF AUSTRALIA
No NG129 of 1990
Tamberlin J
Sydney
28 August 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG129 of 1990
GENERAL DIVISION )
In the Matter of
EFFEM FOODS PTY LTD
T/as UNCLE BEN'S OF AUSTRALIA
BETWEEN: LAKE CUMBELINE PTY LTD
First Applicant
IDOBOOK PTY LTD
Second ApplicantPETER HORROBIN
Third ApplicantRICHARD SANDS
Fourth ApplicantRAYMOND PRIDMORE
Fifth Applicant
AND: EFFEM FOODS PTY LTD
t/as UNCLE BEN'S OF
AUSTRALIA
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 28 AUGUST 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The Notice of Motion be dismissed
The applicants pay the costs of the Notice of Motion.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG129 of 1990
GENERAL DIVISION )
In the Matter of
EFFEM FOODS PTY LTD
T/as UNCLE BEN'S OF AUSTRALIA
BETWEEN: LAKE CUMBELINE PTY LTD
First Applicant
IDOBOOK PTY LTD
Second ApplicantPETER HORROBIN
Third ApplicantRICHARD SANDS
Fourth ApplicantRAYMOND PRIDMORE
Fifth Applicant
AND: EFFEM FOODS PTY LTD
t/as UNCLE BEN'S OF
AUSTRALIA
Respondent
CORAM: TAMBERLIN J
PLACE: SYDNEY
DATED: 28 AUGUST 1996
REASONS FOR JUDGMENT
TAMBERLIN J:
This is a Notice of Motion filed on 15 August 1996 in which the applicants in these proceedings (No. NG129 of 1990) seek access to documents produced on subpoena to this Court by the Australia & New Zealand Banking Group Limited ("ANZ Bank"), National Mutual Royal Bank Limited ("National Mutual") and
James Romanis ("Romanis") or Romanis Cant PPB, Chartered Accountants. The documents were produced in relation to the issues raised in these proceedings in 1994. The applicants seek access to the documents for the purpose of preparing their case in proceedings No. 6446 of 1992 and 4374 of 1994 brought in the Supreme Court of Victoria by the ANZ Bank as plaintiff and the applicants in these proceedings as defendants.
The parties whose documents are in issue are National Mutual which merged with the ANZ Bank (collectively referred to as "the Banks") and Romanis who was appointed receiver by the ANZ Bank. The documents to which the Notice of Motion refers were held by Romanis in that capacity.
I gave judgment in matter No NG129 of 1990 last year. A Notice of Appeal was filed and the Full Court has heard the appeal but no judgment has been delivered. The documents to which access is sought are in the custody of the Federal Court Registry.
During the course of proceedings NG129 of 1990 in this Court the applicants had access to the documents in question for the purposes of the proceedings brought by them against Effem Foods Pty Limited ("Effem") trading as Uncle Ben's of Australia.
Furthermore, the applicants have copies of a number of the documents which were produced by the Banks and Romanis. However, they do not have a copy or a record of many other documents produced in those proceedings, NG129 of 1990.
The present application for access is opposed by the Banks and Romanis. In substance, the basis of the objection is that the documents were produced to the Federal Court for the purposes of the NG129 of 1990 proceedings against Effem and for no other purpose. Accordingly, it is said that to seek access to these documents for use in the Victorian Supreme Court proceedings is contrary to the implied undertaking which arises when documents are produced to a court for the purpose of particular proceedings.
The legal principle in question is not in dispute. It is has recently been formulated by Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32 in the following terms:
"An implied undertaking not to disclose documents made available in an arbitration as on discovery.
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. ... Over a century ago, Bray on Discovery ... stated:
'A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order.'
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, unless the court restrains publication of it.
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation."
It is worth noting that the above formulation of the principle by Bray bases the principle on the obtaining of access to documents produced under compulsion. It is the access to and inspection of the documents which automatically gives rise to the implied undertaking.
In Esso (supra), the High Court applied those principles to documents produced compulsorily pursuant to a direction by an arbitrator.
See also as to the legal foundation for the implied undertaking: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR
576 at 577-578, per Burchett J; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493 at 500-502, per Hill J; Springfield Nominess Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 220-222, per Wilcox J; Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 167-168 per Kirby P, with whom Samuels and Handley JJA agreed, and Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd.R 509 at 510.
The documents in the present case were produced on subpoena, as opposed to discovery, but I do not think that this makes any difference as to the existence or nature of the implied undertaking. The basic principle depends on the inspection of documents which have been produced to the Court under compulsion. Production on a subpoena issued in this Court is based on legal compulsion and access is granted only for the purpose of the proceeding before this Court.
Since the implied undertaking is given to the Federal Court it can, in appropriate circumstances, be released or varied by this Court. There is a general principle that the Court should not release or modify the implied undertaking, save in special circumstances and where the release or modification will not occasion an injustice to the party producing the documents. See Home Office v Harman [1983] AC 280 applied by Wilcox J, in the Springfield Nominees case (supra) at 220.
It is important to bear in mind that compulsion is an invasion of a private right to keep one's documents to oneself. The
public interest in privacy and confidence requires that this compulsion should not be extended further than the demands of justice require: Riddick v Thames Board Mills Ltd [1977] 1 QB 881 at 896 per Lord Denning MR.
In the present case, the Banks and Romanis oppose a release from the undertaking on the ground that the documents were produced to the Court on the basis that they would only be accessed or used for the purpose of the proceedings NG129 of 1990 against Effem. Although access was granted in these proceedings, and notwithstanding that the applicants have copies of a large number of those documents, the Banks and Romanis contend that leave should not be granted. They submit that in relation to the Victorian Supreme Court proceeding, disputed questions of discovery of documents relevant to those proceedings, should be determined by the Supreme Court of Victoria. There has already been discovery in those proceedings and the Banks are currently preparing a supplementary discovery list which will include such of the documents as are in the custody of this Court and which are said to be relevant to the Victorian proceedings. The Banks and Romanis claim that not all the documents produced to this Court are relevant to the issues in the Victorian proceeding. They are obliged to make discovery in those proceedings and to allow access to all documents produced to this Court would make available documents which would not be relevant to the Victorian proceedings. This latter question is of course one for the Victorian Court.
In my view, there is considerable force in this argument.
The applicants however, submit that all the documents produced in the proceedings in this Court have already been discovered in the Victorian proceedings and that therefore access should be granted.
The basis for this argument is that in Schedule 2 of the plaintiff's List of Documents, in the Victorian proceedings, there is reference to documents which the plaintiff had, but no longer has in its possession, custody or power. The documents in the custody of this Court are referred to in that Schedule, albeit in general terms. Accordingly, it is said for the applicants that this amounts to discovery in the Victorian proceedings of all documents in the custody of this Court in the Effem proceeding and therefore access should be granted.
On a reasonable reading of the plaintiff's List of Documents in the Victorian proceeding, I do not think it can be said that all documents produced to this Court have been discovered as relevant documents for the purposes of those proceedings. For example, paragraph 3 of Schedule 2 to the plaintiff's list of documents, reads:
"3.Documents delivered to the Federal Court of Australia on 8 July 1992 in compliance with a subpoena issued in proceeding no. G129 of 1990 by the solicitors for the respondent, Effem Foods Pty Ltd, t/a Uncle Ben's of Australia."
Other paragraphs in that Schedule refer to documents produced by the Banks pursuant to other subpoenas.
In contrast to Schedule 1 to the List of Documents, Schedule 2 is in broad terms. Schedule 1, on the other hand, specifically enumerates each of the documents. I do not think that Schedule 2 was intended as a concession that all documents produced to the Federal Court were relevant for the purposes of the Victorian Supreme Court proceedings but rather that some relevant documents are in the custody of this Court. I therefore do not accept this argument.
I was referred to correspondence between the parties. A suggestion was made that by this correspondence the Banks and Romanis waived the undertaking. However, reading the correspondence as a whole I do not consider that there has been any waiver of the undertaking. In any event, the implied undertaking was given to this Court and release from it must be pursuant to leave by this Court.
I am not persuaded that the applicants should be released from the implied undertaking. This is not a case where denial of access will frustrate the conduct of the Victorian proceedings or unduly impede the applicants in the proper defence of those proceedings. Full and proper discovery must be given in those proceedings and this is a matter for determination, in the event of a dispute, by the Victorian Supreme Court. If such documents are relevant and are ultimately found to be discoverable, then further application can be made to this Court in the event that the parties cannot agree as to the production of copies of the documents.
I dismiss the Notice of Motion with costs.
I certify that this and
the preceding eight (8)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 28 August 1996
Counsel for Applicant: Mr H M Southwick
Solicitor for Applicant: Blake Dawson Waldron
Counsel for the Recipients
of the subpoenas: Mr J E Thomson
Solicitor for the Recipients
of the subpoenas: Dunhill Madden Butler
Date of Hearing: 21 August 1996
Date Judgment Delivered: 28 August 1996
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