| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : DOG ACT 1976 (WA) CITATION : SKEWES and CITY OF ROCKINGHAM [2014] WASAT 14 MEMBER : MS L WARD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 JANUARY 2014 PUBLISHED : 31 JANUARY 2014 FILE NO/S : CC 673 of 2013 BETWEEN : BRUCE SKEWES Applicant
AND
CITY OF ROCKINGHAM
Respondent
Catchwords: Application for release from implied undertaking not to disclose information obtained in Tribunal for use in other proceedings - Three documents produced by a third party under summons in Tribunal - Application to use information in three documents in proposed civil court proceedings - No special circumstances exist Legislation: Dog Act 1976 (WA), s 14(1)(c), s 14(2), s 14(3), s 29
Dog Regulations 1976 (WA), Sch 1
State Administrative Tribunal Act 2004 (WA), s 35, s 35(2)
Victorian Civil and Administrative Tribunal Act 1998 (VIC), s 80(3) Result: Application for release from the implied undertaking is refused
Summary of Tribunal's decision: The applicant applied to use information contained in three documents produced by a third party in answer to a summons in these proceedings. The applicant wishes to use the information in a possible civil action in a court between the applicant and a third party. The applicant wishes to use the relevant information in the documents to confirm the name and address of the person in possession of Mia the dog.
Mia was impounded by the City of Rockingham on 3 April 2013 and rehomed with a dog rescue group on 4 April 2013. Mia was ultimately rehomed with a third party on about 7 April 2013.
The various decisions alleged to have been made by the City of Rockingham relating to the process of re-housing Mia are the subject of review by the Tribunal.
The Tribunal was not satisfied that 'special circumstances' existed. Accordingly, it refused to release the applicant from the implied undertaking not to use the information obtained under compulsion in other proceedings.
On 20 January 2014, the decision was given. The reasons for decision follow.
Category: B
Representation: Counsel:
Applicant : Mr A Papamatheos (Barrister)
Respondent : Mr P Doherty (Barrister)
Solicitors:
Applicant : Northern Suburbs Community Legal Centre
Respondent : N/A
Case(s) referred to in decision(s):
British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571
Hearne v Street [2008] HCA 36
Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
PJ Beaconsfield Gold NL; Otter Gold NL (formerly Otter Exploration NL); Burdekin Resources NL; Tennscourt Oil Pty Ltd and Australian Securities Commission B [1998] AATA 785
Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd (No 3) [2013] WASC 402
Sybron Corporation v Barclays Bank [1985] Ch. 299
Telnet Pty Ltd v Tukapana Investments Pty Ltd (1994) 51 FCR 520
Turner v Department of Education and Training (Anti Discrimination) [2006] VCAT 2661
ZGW v Legal Services Board [2007] VCAT 1406
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 Mr Bruce Skewes (applicant) has applied to use information contained in three documents produced in answer to a summons in these Tribunal proceedings. The applicant wishes to use the information in a possible civil action in a court between the applicant and a third party. The applicant wishes to use the relevant information in the documents to confirm the name and address of the person currently in possession of Mia the dog. 2 The City of Rockingham (respondent or City) neither consents nor opposes the application for release. 3 Both parties have been legally represented since 20 June 2013, being the date of the first directions hearing. 4 These reasons deal only with the matters relevant to the application for release from any implied undertaking. The final hearing is yet to take place in the Tribunal.
Background 5 The applicant had a dog called Mia. On 3 April 2013, Mia was found by a member of the public wandering in the street without her collar on. 6 Mia was subsequently impounded by officers from the City on 3 April 2013. The impounding of Mia incurred a fee of $50. The applicant told the City that as he is a disability pensioner he could not afford to pay the fee straight away. 7 After some discussions between officers from the City and the applicant, on 4 April 2013, Mia was sent to a dog refuge and soon thereafter she was re-homed with a new family (recipient person). The City understood that the applicant had surrendered Mia because the fee was not paid and the applicant gave Mia's collar to the City officers. The applicant did not sign a surrender form.
Application for review - as amended 8 By way of background, the applicant seeks a review of the following four decisions made by the City on or about 4 April 2013: Three documents produced on the return of the summons 9 At the applicant's request, on 1 November 2013, the Executive Officer of the Tribunal signed a summons to produce to be served on the proper officer of Desperate for Love Dog Pound Rescue Inc (DFL) requiring it to produce certain documents to the Tribunal by 14 November 2013. 10 On 12 November 2013, DFL produced to the Tribunal three documents on the return of summons. The three documents were: • A completed and signed 'Adoption Application Form' dated 7 April 2014, with the recipient person information redacted. • A typewritten letter signed by the President of DFL dated 12 November 2013 stating that DFL collected Mia on 4 April 2013 and that she was adopted by a family on 7 April 2013. The recipient person asked the President of DFL not to provide their name or address details. • An unsigned typewritten letter purporting to be from the recipient person dated 8 November 2013. The letter outlines how well Mia has settled into their family and how much Mia enjoys their holiday home in Lancelin. The recipient person asked that their privacy be protected, and stated that they have done nothing wrong and deserve to keep Mia.
Application for release from any implied undertaking 11 On 13 December 2013, the applicant wrote and requested that the Tribunal either: 12 In compliance with the Tribunal's orders of 17 December 2013, the applicant provided the Tribunal with: • his written submissions in support of the application; and • a copy of a letter to DFL advising it of the application and that if it, or the recipient person, wished to be heard on the issue of confidentiality, then they should contact the Tribunal. Neither DFL nor the recipient person has contacted the Tribunal in response to the applicant's letter of 23 December 2013. 13 The Tribunal will now consider the legal principles relevant to the release from any implied undertaking not to use the information obtained under compulsion in these proceedings in other proceedings.
Extent of the implied undertaking not to use documents obtained under compulsion 14 As set out by Justice Le Miere in Platinum Systems Resourcing Pty Ltd v NRW Holdings Ltd (No 3)[2013] WASC 402 (Platinum) at [12], inHearne v Street [2008] HCA 36 (Hearne) at [96], the majority of the High Court expressed the extent of the implied undertaking as follows: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. … 15 It is important to bear in mind the purpose of the undertaking when considering an application for release. The purpose of the undertaking is said to be to protect the privacy of the person disclosing the document and thereby encourage full and frank disclosure during litigation: see British and American Tobacco Services Ltd v Cowell(No 2) (2003) 8 VR 571 at [20].
Does the implied undertaking apply to the Tribunal? 16 This Tribunal has not dealt previously with an application for release from an implied undertaking. However, it is clear that it was been widely accepted in other tribunals that the undertaking applies equally to documents produced under compulsion in tribunal proceedings. 17 In Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467, Sundberg J held that the undertaking applied to documents produced under compulsion in tribunal proceedings. In that case, documents were produced to the Administrative Appeals Tribunal (AAT) under summons. The Tribunal also notes that the AAT has recently formalised its procedures and produced a 'Practice Direction relating to Release from the Implied Undertaking' dated 16 September 2013. 18 The Victorian Civil and Administrative Tribunal (VCAT) adopted a similar stance in ZGW v Legal Services Board [2007] VCAT 1406 (ZGW) (per His Honour Judge Bowman), at [52]: It is also apparent that the implied undertaking operates in relation to matters before this Tribunal. In this regard I agree with the observations of Senior Member Megay in Kakoullis … [where] she supported her ruling by reference to the observations contained in the decision of the Court of Appeal in Secretary, Department of Treasury v Kelly [2001] VSCA 246, [2001] 4 VR 595. I am quite satisfied that, despite what is contained in s.80(3) of the Victorian Civil and Administrative Tribunal Act 1998, the implied undertaking of the type identified in Home Office v Harman operates in relation to matters before this Tribunal. 19 Similar to the AAT and VCAT, the Tribunal has powers to compel third parties to produce documents in relation to the dispute before it under s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The operation of s 35 of the SAT Act is relevantly discussed in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [101] to [110]. 20 Section 35(2) of the SAT Act is similarly worded to s 80(3) of the Victorian Civil and Administrative Tribunal Act 1998 (VIC). Accordingly, this Tribunal is similarly satisfied that the undertaking operates notwithstanding s 35(2) of the SAT Act: see ZGW above. 21 The Tribunal accepts the applicant's submission that the implied undertaking applies equally to this Tribunal. 22 The Tribunal notes that consideration has been given to the difference between the operation of summons procedures in tribunals and courts. These differences are relevantly discussed in PJ Beaconsfield Gold NL; Otter Gold NL (formerly Otter Exploration NL); Burdekin Resources NL; Tennscourt Oil Pty Ltd and Australian Securities CommissionB [1998] AATA 785 (PJ Beaconsfield Gold). 23 In PJ Beaconsfield Gold, once the AAT proceedings were complete, one of the parties applied to the AAT for release of certain documents obtained by summons in the AAT proceedings for the purpose of proposed Federal Court proceedings involving the identical parties. Special circumstances were found to exist and the release was granted in that case. Relevant to these proceedings, at [57] in PJ Beaconsfield Gold, DP McDonald highlighted that: … Summons procedures are often of less controversy in proceedings in this Tribunal, due [to] the process of administrative review undertaken by the Tribunal. The Tribunal is not an adversarial forum, even though particular proceedings may appear to take that form (particularly to observers). Rather, the Tribunal reviews the administrative decisions of nominated public officials. To assist this procedure, upon receipt of an application for review, a respondent decision-maker is required to lodge with this Tribunal all material that was before the decision-maker. This procedure, which emphasises the merits review function of the Tribunal, serves as a main source of information to assist the Tribunal's decision. It also serves to distinguish this Tribunal from a court of law, by emphasising the fact that the material and issues before the Tribunal are not determined by the parties in the same manner as adversarial proceedings in a court. Unfortunately, the submissions of the parties in the instant application have not paid detailed attention to this aspect of the Tribunal's proceedings. The non-adversarial function of the Tribunal may be obscured in applications such as the present one when additional parties are joined to an application and effectively engage in conduct that may appear not unlike an adversarial proceeding[.] (Citations omitted)(Tribunal's emphasis)
When will a Tribunal release a party from an implied undertaking? 24 In Hearne, the majority of the High Court said, at [107]: … … The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear [Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37].(Tribunal's emphasis) … 25 In Laen Pty Ltd v At the Heads Pty Ltd & Ors [2011] VSC 315 (Laen) at [4] to [6], Davies J summarised a number of relevant cases in relation to where special circumstances may exist, namely: … The 'special circumstances' requirement has its origins in Crest Homes Plc v Marks where Lord Oliver stated that a Court will not release or modify this obligation except in special circumstances. In Liberty Funding Pty Ltd v Phoenix Capital Ltd the Full Federal Court stated that the notion of 'special circumstances' did not require 'extraordinary factors [to] bear on the question before the discretion will be exercised'. Rather[,] 'good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes'. To similar effect, in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[,] Wilcox J said: For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding. The factors listed do not prescribe any hard or fast test, but rather emphasise that all of the circumstances of the case must be examined to determine whether there are cogent and persuasive reasons for modifying or releasing a party from the implied undertaking. Nonetheless some guidance can be found in other cases where the Court has been asked to exercise its discretion. The authorities indicate that an important consideration in weighing the various factors which may enliven the discretion is the purpose for the release from the obligation. Where, as here, that purpose is for use in another proceeding, commonality between the proceedings may be a sufficient factor to warrant the exercise of the dispensing power. (Citations omitted)
Does the implied undertaking apply to the three documents in this case? 26 It is common ground that the applicant is bound by the implied undertaking not to use the information contained in the three summonsed documents for any purpose other than this application for review of several of the City's decisions. In particular, the applicant is bound not to use the information in any court proceedings unless released from the undertaking by this Tribunal. 27 DFL was made subject to the Tribunal's summons process, as the applicant sought to confirm the identity of the recipient person so that it may ultimately be joined to the review proceedings and be the subject of an application for a declaration. 28 The Tribunal summons to produce was not objected to by DFL. DFL provided three documents in compliance with the summons to produce. The existence of the implied undertaking in relation to documents produced pursuant to a subpoena has been accepted: see Sybron Corporation v Barclays Bank [1985] Ch. 299 and ZGW per His Honour Judge Bowman at [51]. 29 DFL is not a party to the application for review. DFL is a third party; however, the undertaking applies to documents produced by a third party under compulsion: see Telnet Pty Ltd v Tukapana Investments Pty Ltd (1994) 51 FCR 520. 30 The implied undertaking exists even though two of the three documents - namely, the letters - were created in response to the summons to produce. The letters contain information known to the writers of the letters. The fact that the letters were not pre-existing documents does not alter the existence of the implied undertaking. As set out in Turner v Department of Education and Training (Anti Discrimination)[2006] VCAT 2661 at [27], Deputy President McKenzie stated in relation to documents brought into existence in response to a summons that: In my view, the document attracts an implied undertaking similar to that which applies to the answers to interrogatories. It applies until the purpose of the answer to the interrogatory is fulfilled. If that purpose relates to the full hearing, it applies until the answer is admitted into evidence at that full hearing. 31 The production of the three documents in answer to a Tribunal summons is sufficient to meet the requirement of compulsion. The Tribunal is satisfied that the implied undertaking attaches to each of the three documents.
Why the applicant submits he should be released from the implied undertaking 32 The applicant submits that he should be released from the implied undertaking because the following amount to special circumstances: • The release is only required because the summonsed documents confirm that the person who took possession of Mia from DFL remains the recipient person. That information is said to be essential in obtaining justice in other possible court proceedings. • The recipient person has not registered Mia in the City of Melville, as required by the Dog Act. Had the recipient person registered Mia, then a search of the register would have identified the recipient person without the need for a summons. • The recipient person must have expected that her letter in response to the summons would be placed before the Tribunal and would be in the public domain.
Consideration by the Tribunal - do special circumstances exist in this case? 33 In the Tribunal's view, there are no special circumstances in this case. Accordingly, the applicant should not be released from the implied undertaking not to use the information contained in the three summonsed documents for any other purpose. 34 The reasons for the finding that no special circumstances exist in this case at this time are set out below: see Platinum at [17] to [19]. 35 Firstly, the information which assists in confirming the name and address of the recipient person is sought to be used in a proposed separate civil action in a court. The applicant is currently the only party common to these tribunal proceedings and the proposed civil proceedings. The parties involved in both proceedings are not identical. 36 Secondly, the only commonality between the subject matters of the Tribunal review and the proposed civil proceedings is, very broadly, Mia. The proceedings are vastly different in nature. The Tribunal proceedings are a merits review of several decisions purportedly made by officers of the City, whereas the proposed civil proceedings are tortious claims for trespass to goods, conversion or detinue. The civil proceedings are adversarial in nature. The tribunal proceedings are inquisitorial: see PJ Beaconsfield Goldabove. Different considerations apply in these fora in terms of the procedures available and the evidence which is admissible. In the Tribunal's view, the relevant processes are not sufficiently related. 37 Thirdly, the recipient person clearly objects to the release of their personal details - namely, their name and address - to the applicant in circumstances where they say that they have done no wrong. The information contained in the document is personal to the recipient person and they seek to maintain their right to privacy. 38 Fourthly, the adoption papers were not prepared with the review in mind and accordingly it is not reasonable for DFL or the recipient person to expect that the information would become more widely available. The other two documents – namely, the letters - were prepared by DFL and the recipient person respectively in response to the summons. It is clear that the letters were prepared in order to comply with the summons. DFL and the recipient person are not legally represented before the Tribunal and have taken no part in these proceedings to date. They did not 'apply to the [T]ribunal to waive compliance with the summons'. The summons document states that the documents are produced to the Tribunal and may be produced to the Executive Officer of the Tribunal at least 48 hours before the date specified. All of the information on the summons may convey to the recipient that the purpose of the summons is to produce documents to the Tribunal, not a particular party. The letters attempt to clarify DFL's and the recipient person's involvement in the matter. The letters are not sworn documents. In the Tribunal's view, it is not necessarily reasonable for DFL and the recipient person to assume that the information would become more widely available beyond the Tribunal itself. Accordingly, DFL and the recipient person may not have anticipated that the letters may ultimately become part of the evidence and become public. Although, of course, in this application no final hearing has taken place and therefore no evidence has been admitted. As set out in Hearneat [96], the applicant would be free to use the information in the documents for purposes other than the Tribunal proceedings once it is received into evidence. 39 Fifthly, the public interest in the information in the three documents which the applicant claims confirms the identity and address of the recipient person does not outweigh the recipient person's privacy interest. This is because the recipient person has at all times indicated that they want their privacy protected and did not offer their name or address. However, the recipient person has divulged sufficient information in a number of different public places prior to the summons being issued to enable other family members to be identified and their location. No sufficient public interest has been disclosed to the Tribunal beyond contemplating commencing proceedings in a civil jurisdiction. It is critically important to bear in mind that the purpose of the undertaking is said to be to protect the privacy of the person disclosing the document and thereby encourage full and frank disclosure during litigation: see British and American Tobacco Services Ltd v Cowell (No 2) (2003) 8 VR 571at [20]. In the circumstances of this case, the recipient person's privacy interest outweighs the public interest, particularly given the manner in which the two letters were created and the alternatives available to the applicant when seeking to confirm the identity and location of the recipient person. 40 Sixthly, the alleged lack of registration of Mia under the Dog Act by the recipient person is a matter to be dealt with under the Dog Act and is not a sufficient reason to release the applicant from the implied undertaking arising in this application for review. Checking the registration under the Dog Act is but one means of identifying the location and name of the recipient person and Mia the dog. 41 A summons from the Tribunal was not the only method available to confirm the identity and location of the recipient person; however, issuing a summons was the method chosen by the applicant. Given that the applicant was legally represented it was a course of action which was chosen in the full knowledge that the implied undertaking would arise. The availability of other means of confirming the applicant's information does not make it a special circumstance. In all of the circumstances of this case, there are no cogent and persuasive reasons to release the applicant from the implied undertaking.
Conclusion 42 In all the circumstances of this case, the Tribunal is not satisfied that 'special circumstances' currently exist such that 'contrary to the usual position … information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation': see Laenabove. 43 Should there be a relevant change in circumstances then it may well be open to the applicant to make another application for release from the implied undertaking.
Orders |