McCabe v British American Tobacco Australia Services Limited
[2007] VSC 216
•22 June 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8121 of 2001
| JAMIE RYAN McCABE (as executor of the will of Rolah Ann McCabe deceased) | Plaintiff |
| v | |
| BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED (ACN 004 069 649) | Defendant |
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No. 5617 of 2007
| BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED | Plaintiff |
| v | |
| PETER GORDON & ORS | Defendants |
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No. 5618 of 2007
| BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED (ACN 004 069 649) | Plaintiff |
| V | |
| SLATER & GORDON LTD (ACN 097 297 400) & ORS | Defendants |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 June 2007; 22, 28 June 2007 | |
DATE OF JUDGMENT: | 22 June 2007; 6 July 2007 | |
CASE MAY BE CITED AS: | McCabe v British American Tobacco Australia Services Limited | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 216 | First Revision 6 July 2007 |
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Practice and Procedure – two proceedings to protect confidential information – interim injunctions – whether injunction in each proceeding should be modified to permit use of information in the other proceeding.
Practice and Procedure – Harman undertaking – whether undertaking prevents use of documents upon application to re-open appeal in the same proceeding – modification of undertaking to permit use of documents in associated proceedings.
Practice and Procedure – application to permit use of information bound by Harman undertaking – disputed claim to privilege – questions as to privilege deferred until issue of privilege arises.
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APPEARANCES: | Counsel | Solicitors |
| 8121 of 2001 | ||
| For Jamie Ryan McCabe | Mr R Merkel QC with Mr JT Rush QC Mr CJ Horan and Mr AJ Palmer | Arnold Bloch Leibler |
| For British American Tobacco Australia Services Limited (BATAS) | Mr DG Collins SC with Mr S Hollo and Mr M O’Meara | Corrs Chambers Westgarth |
| 5617 of 2007 | ||
| For British American Tobacco Australia Limited (BATAL) | Mr PB Murdoch QC with Mr MN Connock SC | Baker & McKenzie |
| For Peter Gordon, Slater & Gordon and Roxanne Joy Cowell | Mr R Merkel QC with Mr JT Rush QC Mr CJ Horan and Mr AJ Palmer | Arnold Bloch Leibler |
| 5618 of 2007 | ||
| For British American Tobacco Australia Services Limited (BATAS) | Mr DG Collins SC with Mr S Hollo and Mr M O’Meara | Corrs Chambers Westgarth |
| For Slater & Gordon and Roxanne Joy Cowell | Mr R Merkel QC with Mr JT Rush RFD QC Mr CJ Horan and Mr AJ Palmer | Arnold Bloch Leibler |
HIS HONOUR:
22 June 2007
Background
The McCabe Proceeding
In October 2001 Rolah Ann McCabe sued British American Tobacco Australia Services Limited (“BATAS”) in this Court[1] seeking damages for personal injury as a consequence of her having been a smoker since 1962 of cigarettes manufactured and distributed by that company and its predecessors. BATAS came into existence in 1999 upon the merger of two cigarette manufacturers, WD & HO Wills (Australia) Limited and Rothmans of Pall Mall (Australia) Limited.
[1]Proceeding No 8121 of 2001.
Before the trial commenced, counsel for Mrs McCabe sought and on 22 March 2002 obtained an order that the defence of BATAS be struck out save insofar as it related to damages. The basis for this strike-out order was that BATAS and its solicitors had, by the implementation of what was called a “document retention policy”, subverted the discovery process with the deliberate intention of denying a fair trial to the plaintiff.[2] In the course of this application a notice to produce was served on BATAS on 31 January 2002 and two subpoenas to produce were served on two firms of solicitors, Clayton Utz, who was acting for BATAS in the proceeding and Mallesons Stephen Jacques, who were assisting BATAS with discovery. In response to these processes certain documents were produced to the Court for which legal profession privilege was claimed. The trial judge ruled that privilege with respect to the produced documents had been waived for those documents which were brought into existence from early 1990[3] and his Honour ordered on 6 February 2002 that access to those documents be given to the plaintiff.
[2]British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524 at 531, [10].
[3](2002) 7 VR 524 at 560, [114].
Following an assessment of damages, judgment was on 11 April 2002 given in favour of the plaintiff in the sum of $687,560 plus costs.
BATAS appealed this judgment. In the meantime, on 26 October 2002, after the conclusion of argument in the Court of Appeal, Mrs McCabe died and the interests of her estate in the appeal were represented by Roxanne Joy Cowell, who I was told was one of the two executors of her will. The other executor is Jamie Ryan McCabe.
The BATAS appeal was successful and the Court of Appeal published its reasons on 6 December 2002[4]. In its formal orders made on 9 December 2002, the Court of Appeal set aside the judgment of 11 April 2002 in favour of Mrs McCabe. In its reasons, the Court of Appeal concluded that the findings of the trial judge as to waiver of privilege were in error and that his Honour’s orders for production of documents of 6 February 2002 and 13 February 2002 should be set aside. The following consequential orders were then made:
[4](2002) 7 VR 524.
5.Subject to paragraph 6, order that the respondent do forthwith deliver up to the solicitors for the appellant all copies held by the respondent, her servants and agents (including solicitors and counsel retained on behalf of the plaintiff below) of the several documents identified in the schedule to this order.
6.Upon the undertakings given by counsel for the respondent as described under the heading “Other Matters”, order that the order for delivery up made in paragraph 5 be stayed pending the hearing and determination of the application to the High Court for special leave to appeal or further order of the Court of Appeal made on application to it.
7.Declare that, if and in so far as the appellant was entitled otherwise to claim legal professional privilege in relation to the documents identified in the schedule, such privilege was not waived (either actually or by imputation) as held by the judge on 6 February and 13 February 2002.
for which the undertaking in question was in these terms:
6.Counsel for the respondent undertakes for and on behalf of the respondent, counsel and solicitors for the respondent, in so far as the undertaking is not already implied, not to use any of the documents identified in the schedule to this order otherwise than for the purpose of an application to the High Court for special leave to appeal from the orders made this day by the Court of Appeal.
The documents referred to in the Court of Appeal order were the following:
(a)Exhibits P9, P10, P11, P12, P13, P14, P15, P16, P17, P18, P19, P20, P21, P22, P23, P24, P25, P28, P29, P30, P31, P32, P33, P34, P35, P36, P44, P46, P47, P48, P49 and P50 tendered on the hearing of the summons filed on behalf of the plaintiff on 25 January 2002.
(b)Documents numbered 1 to 34, 125 to 142, and 153 to 158 of the defendant’s List of Documents referred to on page 10 of the ruling herein delivered in the Trial Division on 6 February 2002 in relation to privilege (“the ruling”).
(c)Documents 53 to 60 and document 66 of the List of Documents from Clayton Utz referred to on page 10 of the ruling.
(d)Documents 1 to 23, 30 to 33 and 46 to 81 of the List of Documents produced by Mallesons referred to on page 10 of the ruling.
The plaintiff was unsuccessful in its application to the High Court for special leave to appeal and the documents were delivered up in accordance with the Court of Appeal order.
Upon the allowing of the appeal, the Court of Appeal on 9 December 2002 directed that a new trial take place but that this occur only after substitution of a person or persons as plaintiff to represent the estate. The Court further ordered that if no such substitution order be made by 13 March 2003 the McCabe proceedings stand dismissed. On 11 March 2003, by order of Master Wheeler, Mr J R McCabe was substituted as plaintiff in his capacity as executor of the will of the late Mrs McCabe and he remains the plaintiff in the McCabe proceedings. The new trial has not taken place.
The New South Wales Proceedings
It seems that, some time prior to November 2006, there was held within Clayton Utz a review of its conduct of the McCabe proceeding. It is alleged that certain documents produced in the course of this review came to be in the possession of Christopher Dale, then, but no longer, a partner in that firm of solicitors, and that he provided them to Slater & Gordon Pty Ltd, now Slater & Gordon Ltd, the solicitors acting for the estate of Mrs McCabe and to Peter Gordon of that firm. It is said, too, that Slater & Gordon and Mr Gordon have disclosed these documents or their content to a reporter employed by The Age newspaper and to Mrs Cowell and to other persons.
The Clayton Utz documents are said to contain certain confidential information which was held by Clayton Utz as solicitors for BATAS and for an associated company, British American Tobacco Australia Limited (“BATAL”). BATAL was formerly known as Rothmans of Pall Mall (Australia) Limited, the company which was subject to the merger with WD & HO Wills (Australia) Limited to which I have referred. Each of BATAL and BATAS, therefore, is concerned to preserve the confidentiality of this information.
Accordingly, four proceedings were commenced in the Supreme Court of New South Wales in 2006.
(1) No 5611 of 2006 by BATAS against John Fairfax Publications, the publisher of The Age newspaper and another person.
(2) No 5612 of 2006 by BATAL against Fairfax and another person.
(3) No 5898 of 2006 by BATAL against Mr Gordon and Slater & Gordon.
(4) No 5940 of 2006 by BATAS against Slater & Gordon.
I am concerned only with the third and fourth of these New South Wales proceedings which two proceedings were cross-vested to this Court by order of the Supreme Court of New South Wales made on 22 March 2007. These two proceedings have been allotted Victorian file numbers, No 5617 of 2007 and 5618 of 2007, respectively.
The BATAL Proceeding No 5617 of 2007 (formerly NSW No 5898 of 2006)
The defendants to this proceeding were originally Mr Gordon and Slater & Gordon.
In its summons filed on 21 November 2006, BATAL sought interlocutory and final orders restraining these defendants from publishing and disseminating the information contained in certain parts of a number of listed documents. On 29 November 2006 Brereton J made an interim restraining order with respect to the information in question. The order is in these terms:
2.Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and subject to order 3 below order that the defendant be restrained from by themselves their servants or agents until further order publishing, disseminating or using the info contained in those parts of the documents identified in Schedule A to summons filed on 21 November 2006 (“the information”).
3.Order 2 is not intended to and does not preclude the defendants from publishing or disseminating the information for the purpose of defending these proceedings to:
a.such of the lawyers who they have retained or who they may retain to act for it in these proceedings who have executed an undertaking to keep the information confidential;
b.such other persons as the plaintiffs may in writing agree upon such terms as the plaintiff may stipulate;
c.with the leave of the court.
On 22 March 2007 Mrs Cowell was joined as the third defendant to this proceeding. On the same day she gave an undertaking in terms similar to the restraint order. Her undertaking is in these terms:
(1)Pending the hearing and determination of the application for interlocutory relief or further order, Roxanne Joy Cowell undertakes to the Court that she will not disclose, publish, disseminate or use the information claimed to be confidential or privileged and contained in the documents described in Schedule A to the amended summons filed 27 February 2007.
(2)The undertaking in paragraph (1) is not intended to and does not preclude Roxanne Joy Cowell from using the information for the purposes of these proceedings or from publishing or disseminating the information for the purposes of defending these proceedings;
(i)to such of the lawyers she has retained or who she may retain to act for her in these proceedings who have executed an undertaking to keep the information confidential; or
(ii)to such other persons as the plaintiff may in writing agree upon such terms as the plaintiff may stipulate; or
(iii) in accordance with such leave of the court as may be granted.
(3)The undertaking in paragraph (1) is not intended to and does not preclude Roxanne Joy Cowell from commencing a proceeding in which the primary relief sought is an order to set aside the judgment and orders, or the effect of the judgment and orders, of the Court of Appeal of the Supreme Court of Victoria delivered on 6 December 2002 provided that in doing so she does not disclose, publish or disseminate the information to any person.
There is on the file an amended statement of claim filed by BATAL in this Court on 17 April 2007. The relief claimed against the three defendants is a permanent and unqualified injunction, generally in terms of the interim order and undertaking. In addition, orders are sought for the delivery up or destruction of the confidential information.
The BATAS Proceeding (No 5618 of 2007, formerly NSW No 5940 of 2006)
This proceeding was originally brought against Slater & Gordon alone. On 29 November 2006 an order was made against that defendant in the following terms:
2.Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and subject to order 3 below the defendant be restrained until further order from by itself its servants and agents publishing, disseminating or using the info described in Annex A & B to the summons filed 23 Nov (“the information”).
3.Order 2 is not intended to and does not preclude the defendants from publishing or disseminating the info for the purpose of defending these proceedings to:
a.such of the lawyers who they have retained or who they may retain to act for it in these proceedings who have executed an undertaking to keep the information confidential;
b.such other persons as the plaintiffs may in writing agree upon such terms as the plaintiff may stipulate;
c.with the leave of the court.
On 27 February 2007 Mr Dale and Mrs Cowell were joined as defendants. On 22 March 2007 Brereton J made a restraining order against Mr Dale in terms which are no longer relevant. On the same day his Honour made a restraining order against Mrs Cowell in these terms:
(1)Pending the hearing and determination of the application for interlocutory relief or further order, Roxanne Joy Cowell undertakes to the Court that she will not disclose, publish, disseminate or use the information claimed to be confidential or privileged and contained in the documents described in Schedule A to the amended summons filed 27 February 2007.
(2)The undertaking in paragraph (1) is not intended to and does not preclude Roxanne Joy Cowell from using the information for the purposes of these proceedings or from publishing or disseminating the information for the purposes of defending these proceedings:
(i)to such of the lawyers she has retained or who she may retain to act for her in these proceedings who have executed an undertaking to keep the information confidential; or
(ii)to such other persons as the plaintiff may in writing agree upon such terms as the plaintiff may stipulate; or
(iii)in accordance with such leave of the court as may be granted.
(3)The undertaking in paragraph (1) is not intended to and does not preclude Roxanne Joy Cowell from commencing a proceeding in which the primary relief sought is an order to set aside the judgment and orders, or the effect of the judgment and orders, of the Court of Appeal of the Supreme Court of Victoria delivered on 6 December 2002 provided that in doing so she does not disclose, publish or disseminate the information to any person.
On the same day his Honour cross-vested the proceeding to this Court.
When the present applications came on for hearing before me, counsel for Mr Dale indicated that his client consented to a permanent restraining order and a consent judgment was given against him in the agreed terms. The proceeding therefore continues against Slater & Gordon and Mrs Cowell alone.
The Applications
The following applications were before me.
1. In the BATAL proceeding the defendants by summons filed on 30 May 2007 sought to extend the qualification to the restraining order made on 29 November 2006 against Mr Gordon and Slater & Gordon and that contained in Mrs Cowell’s undertaking to the effect that they be permitted to use the information for the purpose of defending the BATAS proceeding and the BATAL proceeding in this Court.
2. In the BATAS proceeding the defendants by summons filed on 30 May 2007 sought to extend the qualification to the restraining orders made on 29 November 2006 and 22 March 2007 to permit the use of the information for the purpose of defending the BATAS proceeding and the BATAL proceeding in this Court.
3. In the McCabe proceeding Mrs Cowell sought to modify her Harman undertaking with respect to a number of documents or classes of documents so that she might use them in and for the purposes of the BATAL proceeding and the BATAS proceeding and “in relation to an application to the Court of Appeal or to the High Court of Australia to set aside the judgment and orders of the Court of Appeal … delivered on 6 December 2002 and made on 9 December 2002”. Further consequential orders are also sought.
4. In the BATAS proceeding application was made during the hearing to amend the defendants’ summons of 30 May 2007 so that, pursuant to s 17B of the Supreme Court Act 1986, I should reserve for consideration of the Court of Appeal whether and to what extent the restraining order of Brereton J made on 22 March 2007 against Mrs Cowell should be varied to permit her to use the information for the purpose of her application for a stay of the costs order made against her by the Court of Appeal on 9 December 2002. I allowed the amendment but refused the order sought on the basis that this matter is part of the application before the Court of Appeal.
The Applications in the former New South Wales Proceedings
It is convenient to deal with these applications together.
I was told that there was a degree of overlap in the information which was sought to be protected in these proceedings. And so, the information may be described as follows:
· The information which is common to both proceedings (“the overlap information”).
· The information which is peculiar to the BATAS proceeding (“the BATAS information”).
· The information which is peculiar to the BATAL proceeding (“the BATAL information”).
Counsel for the defendants told me that their clients did not resist a restraining order in respect of any of the confidential information except insofar as it prevented them from using the information in each of the former NSW proceedings and for the purposes of bringing an application to set aside the Court of Appeal orders of 9 December 2002.
Counsel for the defendants also told me that they did not now seek a modification of the restraint orders insofar as they related to the BATAL information. They said that they were hopeful that an agreement might be reached with BATAL as to that information.
It was common ground that the existing restraints upon the use of the overlap information did not prevent it from being used in the BATAS proceeding and the BATAL proceeding.
The further matter which has emerged is that Mrs Cowell is no longer a party to the McCabe proceeding. It may be, in these circumstances, that the restraints affecting Mrs Cowell, or more correctly, the qualifications which are now sought upon them, will serve no useful purpose if she is not to be the applicant in the Court of Appeal. I shall return to this.
The only question which then remains is as to the application for the modification of the orders of 29 November 2006 and 22 March 2007 so as to permit Slater & Gordon, Mr Gordon and Mrs Cowell to use the BATAS information in the BATAL proceeding.
I have not, myself, inspected any of the documents containing the information. Nor do I undertake any assessment of the prospects of success of the BATAL proceeding. I understand from the pleadings that a major basis for resisting each of the BATAS claims to protect the confidential information is that the information is part of or is evidence of what was called before me the iniquity of the two cigarette companies. I understand that the defendants’ iniquity allegation is that BATAS and BATAL undertook by improper means to defeat the claim of Mrs McCabe by destroying documents which were inconvenient to the BATAS case. I also proceed on the basis that the information in question is relevant to the BATAL proceeding.
I am mindful of the fact that these two proceedings, as they now stand, are brought in the nature of a pre-emptive action to prevent the estate of Mrs McCabe from using the confidential information in her proposed application in the Court of Appeal. I do not criticise them for this nor for the fact that they have commenced separate proceedings rather than one conjointly; the court procedures permit this. But, by so doing, they cannot create a conflict which does not appear and which has not been shown to exist between them. As things stand, the BATAS information will not be disclosed by the defendants to any stranger to the BATAS proceeding, at least until trial. At trial, which is likely to be a joint trial of the two former New South Wales proceedings, the information may well be disclosed for the purposes of the trial to all parties, notably BATAL. This is not likely to be a cause of embarrassment to BATAS, having regard to its corporate relationship with BATAL. It will be recalled that it was originally held by their common solicitors, Clayton Utz. No embarrassment or other adverse consequence to BATAS was identified or suggested in argument to arise from the disclosure of the BATAS information to BATAL. I assume, as I have mentioned, that the BATAS information is relevant to the issues in the BATAL proceeding. In these circumstances, to preclude the defendants from its use in that proceeding prior to trial simply because the plaintiffs have chosen to bring separate proceedings does not serve the interests of justice.
I will therefore modify the orders in the BATAS proceeding only to the extent necessary to permit the BATAS information to be used by Slater & Gordon or Mrs Cowell, if she still be minded to use them, for the purpose of defending the BATAL proceeding. I was told that it was not necessary that I modify the existing restraints with respect to the overlap information. I will therefore not make any order affecting that information. I note, in leaving these applications, that the existing qualifications to the restraints in these proceedings and the modifications which I now make do not bear upon the issue of the admissibility of any of this information or of any documents at trial. It remains a matter for the trial judge to rule on any objection based on relevance, privilege or on any other evidentiary issue with respect to them.
The McCabe Proceeding
Mrs Cowell wishes to use certain documents produced in the course of the McCabe proceeding for the purpose of defending the two former New South Wales proceedings and for the purposes of the application on behalf of the estate to reopen the Court of Appeal judgment. These documents are listed in the Schedule to these reasons.
This presents an immediate technical problem. Mrs Cowell was on 6 December 2002 appointed by the Court of Appeal to represent the estate for the purposes of the appeal. The appeal is now completed and she is no longer plaintiff. The foreshadowed application to the Court of Appeal will therefore be made by Mr McCabe as plaintiff unless the application is seen as part of the appeal process for which Mrs Cowell remains the representative of the estate. If Mrs Cowell is not to represent the estate on this application, it is difficult to see how her undertaking will cause any difficulty to Mr McCabe’s application. Furthermore, since Mr McCabe became plaintiff he, through his lawyers, has presumably taken custody of the documents produced by BATAS at the trial. He now has different solicitors acting for the estate. It may be, in these circumstances, that he and his new solicitors are likewise bound by the Harman undertaking when they inherited the file and obtained access to the documents. In these circumstances, should they, too, be seeking a modification of their Harman undertaking for the purposes of the foreshadowed application? These matters were not debated before me and, in any event, the problem does not arise given my conclusion[5] as to the availability of the documents obtained in the McCabe proceeding for the purposes of the application to set aside the appeal orders.
[5]See para [35] below.
The application here is with respect to documents which have been returned to BATAS in accordance with the order of the Court of Appeal. These are the documents referred to in paragraph 4 of the Schedule to the summons of 30 May 2007.[6] The documents referred to in paragraphs 1 and 3 are presumably also in the hands of BATAS.[7] In each case, however, copies may have been retained. The documents in paragraph 2, the interrogatories and answers, are presumably on the court file.
[6]The documents are identified in para 4 of the Schedule to these reasons.
[7]It is not altogether clear what use the estate might make of them in these circumstances.
Insofar as documents the subject of the Harman undertaking are sought to be used in the proposed application to reopen the Court of Appeal judgment, this, in my view, is not a purpose which is collateral or ulterior to the McCabe proceeding; the proposed application is in fact part of the McCabe proceeding for it seeks to reinstate the judgment obtained and set aside in that proceeding. Nor, in my view, would it lack that character if it were necessary for procedural purposes to bring a fresh proceeding in the Court of Appeal as a basis for such an application. Again, I emphasise, there may be evidentiary or other reasons which render the documents inadmissible. I say nothing of this.
The use of the documents for the purposes of the former New South Wales proceedings raises a more difficult question. The authorities to which I have been referred show that the court will have a keen and jealous regard for the interests of persons who are obliged to yield up confidential material in the interests of justice.
The present application, however, has a number of significant and unusual characteristics. The documents are documents of BATAS which is a party to one of the New South Wales proceedings. The New South Wales proceedings are brought to prevent the use by the estate of the confidential information for the purposes of the McCabe proceeding. In this sense, the BATAS proceeding is brought by BATAS for the purpose of resisting the McCabe claim against it. Moreover, for the reasons which I have mentioned, the use of the documents in the BATAS proceeding, and probably the BATAL proceeding, will not breach any confidentiality which reposes in BATAS.
It was put, with some force, by counsel for BATAS that these documents, or at least those in paragraph 4 of the Schedule, had been found by the Court of Appeal to be privileged. Accordingly, they ought not to have been required by the Court to be produced. How, then, can this Court, consistent with the Court of Appeal ruling, permit their use? This argument produces a circle. Counsel for the estate say that they wish to use the documents which have been found to be privileged in order to mount a case in the former New South Wales proceedings which, if successful, will release information for use in the application to set aside the Court of Appeal decision which itself established the privilege in question. This circle can only be broken, they say, by granting the present application.
I agree. The circumstances of this application are such that I am satisfied that special circumstances exist which are sufficient to warrant the modification of the undertaking so as to permit the documents to be used, if they might otherwise be used, for the purposes of resisting the claims of BATAS and its related company BATAL.
Conclusion
I propose therefore to make the orders sought permitting the BATAS information to be used in the BATAL proceeding. And to modify the Harman undertaking insofar as it prevents Mrs Cowell from using the documents obtained in the McCabe proceeding for the purposes of resisting the claims against her in the BATAL proceeding and the BATAS proceeding. Before orders are made, however, it will be necessary to consider the implications of the change of the representation of the estate. Mr McCabe is not a party to proceeding No. 5617 of 2007 or No. 5618 of 2007. I assume that, as a substitute representative of the estate, he is bound by the Harman undertaking impliedly given by Mrs McCabe and her earlier representative.
I will hear counsel further as to the precise orders to be made to give effect to these conclusions.
6 July 2007
After I published my reasons in these applications I raised with the parties what I saw as two practical matters which had not attracted argument at the hearing. First, as I mentioned in paragraph [34] above, the documents described in paragraph 4 of the Schedule for which a modification of the Harman undertaking was sought were, presumably, no longer in the possession of Mrs Cowell or Slater & Gordon; they had been returned to BATAS as directed by the Court of Appeal. Attention, then, shifted to what was referred to in paragraph 5 of the Schedule as the “Slater & Gordon work - product” and to the information which Slater & Gordon and Mrs Cowell had obtained from the paragraph 4 documents.
The second matter is that Mrs Cowell no longer represents the estate in the McCabe proceeding and that Slater & Gordon, too, no longer acts for the estate in that proceeding. This raises the utility of the stated sole objective for the defendants resisting the injunctive relief sought in the two New South Wales proceedings, namely, to use the information, the subject of the claims by BATAS and BATAL in those proceedings, in the proposed application by the estate to set aside the Court of Appeal orders in the McCabe proceeding. What is in fact intended, it would seem, would be that the defendants, Mrs Cowell, Slater & Gordon and Mr Gordon, should be permitted to communicate this information to Mr McCabe and his current solicitors for that purpose. The response made by counsel for the estate was that Mr McCabe intended to renounce probate of Mrs McCabe’s will and that Mrs Cowell as surviving executor would be substituted as plaintiff in the McCabe proceeding. I am not aware that any step to implement this has yet been taken and I do not know whether the suggested course would be permitted.
And so, when the parties returned to seek orders in the application to modify the Harman undertaking in the McCabe proceeding, there was a different between them as to the orders which might be made. Counsel for the applicants cast his proposed order to include the release for the purposes of defending the BATAS and the BATAL proceeding not only of the documents referred to in the Schedule, as modified, but also of the information contained in those documents. Counsel for BATAS accepted this enlargement but disagreed with the terms of the Schedule. The Schedule as it was originally proposed is attached to this judgment. The documents described in paragraphs 1, 2 and 3 cause no difficulty. In lieu of paragraphs 4 and 5 what is now proposed on behalf of the applicants is the following:
4. All documents responsive to:
(a)the Plaintiff’s notice to produce to the Defendant dated 31 January 2002;
(b)the Plaintiff’s subpoena to Mallesons Stephen Jaques dated 4 February 2002 and to the Plaintiff’s subpoena to Clayton Utz dated 4 February 2002 tendered in 8121 of 2001 before Eames J being Ex 9 - Ex 32;
5.Slater & Gordon work-product from this Proceeding which discloses the contents of any of the documents described in this Schedule.
What is proposed on behalf of BATAS is the following:
4.All documents produced for inspection by the plaintiff in response to the plaintiff’s Notice to Produce to the defendant dated 31 January 2002, save for the documents described in paragraph (b) of the Schedule to the Court of Appeal’s Order made herein on 9 December 2002.
The point of difficulty is that relating to the documents which are referred to in the Court of Appeal order of 9 December 2002.[8] These are the documents which the Court of Appeal treated as being subject to legal profession privilege, which privilege the Court of Appeal held not to have been waived.
[8]Set out at para [6] above.
Counsel for the estate protested that BATAS was here seeking to reopen my conclusions in paragraphs [38] and [39] above. I am not confident that this is correct having regard to the qualifications expressed in the judgment as to the use which might be made of those documents.
The debate, however, about the paragraph 4 and 5 documents, however, does not concern the documents themselves, for these have been returned.[9] What is now sought is that the information obtained from the privileged documents may be used to resist the claims of BATAS and BATAL in the New South Wales proceedings.
[9]In his outline, counsel for the estate wrote “Many of these documents were subsequently delivered up by the plaintiff pursuant to orders made by the Court of Appeal”. In argument he made it clear that all documents and copies had in fact been delivered up as directed.
There are in fact two issues here. The first concerns the use which might be made in the New South Wales proceedings of the documents produced under coercion in the McCabe proceeding. These documents include documents for which no claim for privilege is made, as well as those for which it is claimed. This involves a consideration of the ambit and its proposed modification of the Harman undertaking. I have determined for reasons set out in my judgment that the undertaking should be modified to permit these documents and their contents to be used in these associated proceedings.
The second issue concerns the privileged documents only – those referred to in paragraphs 4 and 5 of the Schedule. It was put by counsel on behalf of BATAS that, with the rejection of the waiver argument, the content of these privileged documents might not be used for any purpose. This would include, of course, the purpose of prosecuting the McCabe proceeding, although no submission was made in these terms. Accordingly, they said, the question of modifying the Harman undertaking does not arise with respect to those privileged documents. They referred me to a passage in the judgment of the Court of Appeal in BATAS v Cowell (No. 2)[10] which concerned an application to modify the Harman undertaking (if necessary) to permit Mrs Cowell to send copies of the privileged documents to an overseas regulatory authority. There, the Court of Appeal expressed the view that, since the documents in question were privileged, they were not available to Mrs Cowell on any view; BATAS need establish nothing more to defeat the application.
[10](2003) 8 VR 571 at 577, [12]-[13].
To this submission counsel for the estate responded first, that there had been no finding that the documents in question were in fact privileged. This is a surprising submission: it was accepted by all, including counsel then acting for Mrs McCabe both at trial and on appeal, that the area of debate was as to waiver and not as to the existence of privilege. I would be reluctant to permit this to be reopened at this stage. If privilege is raised, this would be the time to consider this question. For present purposes, I assume that, subject to what follows, the circumstances required for the existence of the privilege exist. Second, counsel said that the argument which is now to be put is that there is no privilege where the documents were brought into existence in the furtherance of a crime or fraud or in analogous circumstances. Counsel said that the matters asserted against BATAS in the BATAS proceeding, if established, will bring this doctrine into play.
This issue, if raised, will have to be determined. I do not determine it now. Indeed, I was told that its determination would involve a consideration of the matters which the defendants would raise in the two New South Wales proceedings. I was referred to what was pleaded by Slater & Gordon in its defence to the BATAS proceeding. Counsel for BATAS said privilege has not yet been brought into question so that I should not make an order which the Court of Appeal said in the passage referred to was inappropriate.
But this case raises particular difficulties which render it by no means certain that the question will or even can be determined. This is because the subject matter of the modification to the Harman undertaking which I am asked to make concerns, not a document, but information obtained from a document. I do not know what this information is other than in the most general terms. Neither of the contending parties have identified it. Any order with respect to it will present difficulties of formulation and, perhaps, of enforcement. It seems to me that the appropriate course is for me to reserve to BATAS the right to raise questions of privilege if and when use is sought to be made of information which has as its source the privileged documents. The question as to the existence of privilege may then be debated against the circumstances as they then stand and in the light of the particular piece of information which is in question.
I should record that counsel for BATAL also sought the right to claim privilege with respect to information obtained by the estate in the McCabe proceeding. With the concurrence of all parties I have reserved to that party the right to raise any questions of privilege in the BATAL proceeding.
Accordingly, I will make an order permitting Mrs Cowell and Slater & Gordon to use the documents referred to in the Schedule to the order as well as information from those documents for the purposes of defending the New South Wales proceedings and reserving all rights with respect to privilege asserted to the documents or the information.
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SCHEDULE
1.Documents discovered by the Defendant in this proceeding, namely those documents listed in the Defendant’s List of Documents as at 17 December 2001 and the documents referred to in Part 1 of Schedule 1 to the Affidavit of Documents of the Defendant sworn on 14 January 2002;
2.Exhibit P45 on the application to strike out the Defence, namely the Plaintiff’s interrogatories for the examination of the defendant and the Defendant’s answers to those interrogatories;
3.Exhibit P51 on the application to strike out the Defence, namely the expert witness statement of Dr Seiden and its annexures;
4. All documents responsive to:
(a)the Plaintiff’s notice to produce to the Defendant dated 31 January 2002;
(b)the Plaintiff’s subpoena to Mallesons Stephen Jaques dated 4 February 2002; and
(c)the Plaintiff’s subpoena to Clayton Utz dated 4 February 2002.
5.Slater & Gordon work-product from this Proceeding which discloses the contents of any of the documents described in this Schedule.
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