Thorpe v Head, Transport for Victoria (Application by Mackenzie)
[2021] VSC 790
•29 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISON
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2020 04091
| MARJORIE THORPE | Plaintiff |
| v | |
| HEAD, TRANSPORT FOR VICTORIA & ORS (according to the attached Schedule) | Defendant |
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JUDGE: | Keith JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2021 |
DATE OF JUDGMENT: | 29 November 2021 |
CASE MAY BE CITED AS: | Thorpe v Head, Transport for Victoria (Application by Mackenzie) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 790 |
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PRACTICE AND PROCEDURE – Western Highway Duplication Project – Application by non-parties to inspect and copy court file documents – Whether use of documents in court discharges their protection – Whether Hearne v Street implied undertaking is equivalent to protection under s 27 of Civil Procedure Act 2010 – Whether discharge of implied undertaking simultaneously discharges protection under s 27 – Two principles not equivalent or interchangeable – Statutory language of Civil Procedure Act suggests no importation of common law principles – Section 27 protection applies in narrow circumstances outlined within s 26 – Implied undertaking applies broadly to all proceeding documents – Documents in proceeding remain protected by s 27 – Application by non-parties refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Interested Parties | Mr O Wolahan | Mr M Kennedy |
| For the First to Fourth Defendant | Mr C Young, QC, and Mr T Barry | Mr B Dodgshun and Mr D Wright-Neville |
JUDICIAL REGISTRAR:
On 30 July 2021 a Summons was filed by non-party applicants in this proceeding seeking orders to permit the non-parties to inspect and copy two particular documents from the Court file.
On 19 August 2021 I heard submissions from the non-party applicants and from some of the defendants, referred to as the ‘State Parties’. By an order of the Court made on 6 August 2021 the Summons was referred to me for hearing and determination.
The context in which the application is made concerns the construction of part of the Western Highway Duplication Project in western Victoria. The two documents sought by the applicants relate, in a general way, to the project. The documents are identified as
(a) a document described as an internal memo, apparently created on 28 November 2012 (‘the VicRoads memo’); and
(b) a document described as an internal email, apparently created on 22 February 2013 (‘the VicRoads email’).
The Thorpe proceedings
In this proceeding (herein referred to as ‘the Thorpe proceeding’) the plaintiff seeks relief restraining the four State defendants (being the first through fourth defendants) from constructing the part of the project between Buangor and Ararat. The plaintiff is a Djab Wurrung woman and the part of the project is within Djab Wurrung traditional land.[1] The background is further set out in decisions of the Court, in this proceeding.[2]
[1]This brief summary is taken from a judgment of the Court, and further background is set out by Forbes J in the decision dated 3 December 2020 –Thorpe v Head, Transport for Victoria [2020] VSC 804 as well as the decision dated 25 May 2021 - Thorpe v Head, Transport for Victoria [2021] VSC 303.
[2]Thorpe v Head, Transport for Victoria [2020] VSC 804; Thorpe v Head, Transport for Victoria [2021] VSC 303; and Thorpe v Head, Transport for Victoria [2021] VSC 533 – the third decision was published on 27 August 2021, after I had heard submissions and reserved this decision.
The Mackenzie proceedings
The non-party applicants before me are persons concerned about the Western Highway Duplication Project. MairiAnne Mackenzie and Iona Mackenzie both own land in the Mt Langhi Ghiran area adjacent to the Western Highway and South of Langhi Ghiran State Park. The Mackenzies and an incorporated association called ‘Keep the Original Route Supporters Inc’ commenced proceedings in this Court in October 2016. In the application before me, the proceedings were referred to as the ‘Mackenzie proceedings’.[3]
[3]The brief summary is taken from a judgment of the Court and further background is set out by Richards J in the decision dated 4 June 2020 – Mackenzie v Head, Transport for Victoria [2020] VSC 328. An earlier decision of Emerton J concerned an application for injunctive relief – Mackenzie v VicRoads [2016] VSC 698. Decisions of the Court of Appeal in the Mackenzie proceedings are Mackenzie v Head, Transport for Victoria [2021] VSCA 24 and Mackenzie v Head, Transport for Victoria [2021] VSCA 100.
The written submissions for the State parties filed in relation to the application before me provide further information as to the relationship between the Thorpe proceedings and the Mackenzie proceedings and the representation of the applicants before me.[4] I did not understand that background to be disputed and nothing directly turns on the issues for present purposes.
[4]First to Fourth Defendants, ‘Submissions of The First to Fourth Defendants in Opposition to The Summons for Inspection Filed 30 July 2021’ Marjorie Thorpe v Head, Transport for Victoria S ECI 2020 04091, 16 August 2021, [3] - [6] and references therein to affidavits.
The application
On 30 July 2021 the non-party applicants filed a summons in this proceeding. The relief sought is the applicants have leave ‘to inspect and copy the documents which are described in paragraph 7 of an affidavit of Michael Ian Kennedy dated 20 April 2021 as “the 28 November 2012 and 22 February 2013 documents”’. The application is made pursuant to Rule 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the General Rules’), which at the relevant time provided:
1.When the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding.
2.Notwithstanding paragraph (1)—
a.no person may inspect or obtain a copy of a document which the Court has ordered remain confidential;
b.a person not a party may not, without leave of the Court, inspect or obtain a copy of a document which in the opinion of the Prothonotary ought to remain confidential to the parties.”[5]
[5]Supreme Court (General Civil Procedure) Rules 2015 r 28.05(1).
In support of the Summons, the non-party applicants rely on the following documents:
(a) an affidavit made on 30 July 2021 by their solicitor Michael Ian Kennedy (‘the 30 July 2021 affidavit’) – including exhibit MIK 82 to that affidavit, with this exhibit being the affidavit of Michael Ian Kennedy dated 20 April 2021;
(b) an affidavit made on 9 August 2021 by their solicitor Michael Ian Kennedy (‘the 9 August 2021 affidavit’);
(c) their written outline of submissions dated 9 August 2021; and
(d) the plaintiff’s submissions filed 19 March 2021 (in which there is reference to the two documents the subject of the application before me).
The State parties, as respondents to this application, relied on the following in opposition:
(a) an affidavit made on 16 August 2021 by their solicitor Ben Andrew Dodgshun (‘the sixth affidavit of B A Dodgshun’); and
(b) their written outline of submissions dated 16 August 2021.
On the hearing a bundle of documents was provided for the assistance of the Court. The bundle was provided by the consent of the parties and included relevant parts of the transcript of hearings in the Thorpe proceeding, namely:
(a) transcript of hearing before Forbes J on 23 March 2021 (50 pages, being pages 71-121 of the bundle); and
(b) extracts of the Transcript of hearing before Forbes J on 31 May 2021 at T7:7-T8:4 and T54:3-9 (3 pages).
In summary, the affidavits and transcript excerpts set out the history of the conduct of these proceedings concerning the use made of the documents. Written submissions filed in the Thorpe proceedings on behalf of the plaintiff on 28 April 2021[6] made reference to the documents. The written submissions, at paragraph 24, refer to the documents in the context of an agreement as to the discovery by the State parties of documents in three categories. One tranche of documents (as it was described) comprised some 55 documents referred to in the submissions as ‘the New Documents’. The New Documents, so identified, included the VicRoads memo and the VicRoads email now the subject of the application before me. The submissions developed the case for the plaintiff in support of an application to amend their pleading with reliance upon the New Documents. The reliance placed on the New Documents by the plaintiff in the Thorpe proceedings is evident from the written submissions and the transcript excerpts. It is that use, and reliance, which the applicants now say allows inspection by a non-party.
[6]Plaintiff, ‘Plaintiff’s submissions in support of Summons dated 31 March 2021’ Marjorie Thorpe v Head, Transport for Victoria S ECI 2020 04091, 28 April 2021.
On the hearing before me the substantive issues were presented on the premise that the documents had been produced by the State parties in the course of the proceedings, in circumstances to attract the Hearne v Street[7] protection (or to use a common descriptor, the implied undertaking). The production of the documents was accepted as disclosure within the operation of s 26 the Civil Procedure Act 2010 (‘CPA’) and therefore such as to attract the protection of s 27 of the CPA. The submissions for the State parties show the documents were produced in March 2021[8], and discovered by formal list or affidavits of documents some months later[9].
[7](2008) 235 CLR 125.
[8]First to fourth defendants, (n 4) [8] - with the submission the production was in accordance with the obligation to disclose documents required by section 26 of the CPA.
[9]Ibid [12].
The State parties, as respondents to the application, did make submissions to the effect that the use of the documents did not amount to a ‘tender’, or use in open court[10]. Although there may be some merit in the issue as to what ‘use’ was made of the documents and whether they were “entered into evidence”, it is my view the application can be decided without the need to resolve that issue. The State parties developed the submissions as to the consequences even if the documents had been used in open Court in the relevant sense[11]. The parties joined issue on the effect of the use that was made, or the consequences to follow from the use that was made. In particular the application may be decided on the question of whether the documents continued to be protected from inspection by non-parties.
[10]Ibid [10] and [37] - The circumstances of the “use” of the documents remained an issue of some contention between the parties, see [11].
[11]Ibid [38].
Submissions
The applicants submitted the use of the documents in Court by counsel for the plaintiff in the Thorpe Proceedings has the consequence the documents no longer have the protection of the Hearne v Street[12] implied undertaking. Furthermore, the applicants made submissions concerning the importance of the principle of open justice and the integrity and transparency of Court proceedings. Those principles were not in dispute and may be accepted. The principles provide part of the context for the application, but are not determinative of it. The implied undertaking, its limits, and the effect of s 27 of the CPA are part of the structure of open justice.
[12](2008) 235 CLR 125.
The applicants rely on the tender of those documents with: the written submissions for the plaintiffs; the passages of transcript in which the documents were mentioned; and portions of the documents read in open Court.
In support of the submissions as to the loss of the protection, the applicants rely on a number of decisions as to when the protection might be lost. The applicants further submit earlier decisions of the Supreme Court of Victoria that might be considered to support the State parties in opposition to the application should no longer be applied, as the decisions have been doubted by more recent cases.
The second main submission for the applicants is that s 27 of the CPA is to be equated with the common law, at least for the purposes of consideration of the circumstances in which the protection is lost. The submission is that s 27 affords no greater protection than the common law. The applicants submit s 27 has been spent in relation to the documents in that the protection is at an end once the documents have been tendered in open court.
The third main submission for the applicants is that any opposition to an order under r 28.05 of the General Rules on grounds of confidentiality must be supported by evidence. The applicants submit the respondents have not provided the required evidence to establish the confidential nature of the information, or any prejudice said to arise from loss of that confidentiality.
The respondents submit s 27 of the CPA is not to be regarded as a mere restatement of the common law, but rather, as an independent protection to documents discovered in accordance with s 26. The respondents submit s 27, as a statutory provision, sets out the manner in which the protection may cease. They submit there is no need, or basis, to imply or infer any other basis for the protection to cease beyond that provided by the section itself.
The respondents submit, in the alternative, the Hearne v Street[13] protection has not been lost in the circumstances of this case. In support, the respondents rely on several decisions of the Victorian Supreme Court and distinguish the cases relied on by the applicants. These submissions are made in addition to the submission the documents had not been admitted into evidence.
[13](2008) 235 CLR 125.
The respondents submit the confidentiality issue does not need to be considered if they are correct on either of the first two submissions. In the written submissions the respondents address grounds for confidentiality said to arise from the content of the documents themselves.
Section 27
The protection afforded by s 27 is limited in effect to documents disclosed in accordance with the obligations under s 26. The Hearne v Street[14] implied undertaking, in relation to the use of documents and information, is of more general application to all documents in a proceeding, including pleadings and affidavits. The ss 26 and 27 provisions apply to documents and information produced where the documents are critical to the resolution of the dispute. The obligation to disclose critical documents does not limit or affect the obligations on a party in relation to discovery of documents.
[14]Ibid.
An issue between the parties concerns the degree to which the implied undertaking and the protection afforded by s 27 provide the same protection. The applicants submit the two should be considered equivalent, and each protection lost in the same circumstances. The applicants further submit the obligation under s 27 was not intended to replace the implied undertaking. The respondents submit the statutory provisions should determine the extent of the protection without inference from common law principles.
Decisions of this Court have provided descriptions of s 27 in terms that might suggest it: ‘codifies’ the common law[15]; ‘replicates’ the implied undertaking[16]; or is ‘a statutory manifestation of a similar longstanding common law obligation’.[17] Such descriptions do not resolve the issues between the parties on this application or determine the question as to the proper construction of s 27. The decisions do not require that the provision of s 27 must be equated with the common law implied undertaking.
[15]Perez v Reynolds [2020] VSC 298, [3] (Forbes J).
[16]Davey v Silverstein [2019] VSC 724.
[17]Ubertas Funds Management Pty Ltd v PwC(release from implied undertaking) [2017] VSC 735, [2].
In Holloway v Commonwealth[18] and in the context of consideration of limits on inspection of discovered documents, John Dixon J said:
Inspection of these materials in the context of this proceeding does not permit the use of information revealed for a purpose other than in connection with the proceeding, except by consent or with the leave of the court. Breach of that obligation constitutes contempt of court. The High Court’s restatement of the Harman principle in Hearne v Street releases the restriction on use of information obtained through discovery once documents or information is received into evidence. No such limitation is evident in the language of sections 26 and 27 of the Civil Procedure Act.[19]
[18][2016] VSC 317.
[19]Ibid, [100].
The absence of any express limitation on the protection afforded by s 27 is the primary submission for the respondents. The respondents submit the language of s 27 is sufficiently clear that there is no proper reason to import the principles established by the common law, in relation to the implied undertaking. In the context of a power to stay proceedings, the High Court of Australia considered the absence of an indication in the Act to exclude the application of well-established principles supports an inference that the principles are to be applied.[20] In the context of summary judgment applications, it has been held the statutory test for summary judgment is to be applied by reference to the language used in the Civil Procedure Act without paraphrase or comparison with the test essayed in General Steel.[21]
[20]Rozenblit v Vainer [2018] HCA 23, [24] (Kiefel CJ and Bell J).
[21]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158.
The language of s 27 supports the respondents’ submission. In my view there is an expression in the statutory language against the importation of the common law principles developed as to when the protection afforded by the implied undertaking might be lost. In particular s 27(3) provides for two circumstances in which the use of the information or documents might be allowed. Section 27(5) is also relevant to the consideration of the statutory protection as separate from or not constrained by any other undertaking in relation to use of information or documents.
Section 27(3) sets out a person may agree in writing to the use of the information or documents, or a person may be released by leave of the Court from the obligation imposed by s 27. The person who may agree to the use of the information or document is presumably the person otherwise entitled to rely on the obligation. The person who may be released from the obligation is presumably the person who has received the information or document and would otherwise be bound by the obligation. The protection afforded by s 27 is, from the statutory context, a protection to the party obliged to disclose the documents in accordance with s 26.
Section 27 does not refer to any other source of a basis for the protection to cease. Section 27 properly understood continues to protect the documents or information discovered in accordance with s 26, except in the circumstances provided for in s 27(3).
Subsection (5) of section 27 provides the obligation does not limit any other undertaking to the Court. To that extent, Parliament has shown s 27 does not replace the Hearne v Street[22] undertaking. There is, in my opinion, no reason to conclude s 27 is to be equated with the implied undertaking, or that the s 27 obligation does not have an operation independent of the implied undertaking. I prefer the construction of s 27 advanced by the respondents.
[22](2008) 235 CLR 125.
The obligation imposed by s 27 is limited to the disclosure of documents in accordance with s 26. The obligation to make disclosure is of documents critical to the resolution of the dispute. Section 26 does not limit other obligations as to discovery, and arguably there could be discovered documents not critical and not subject to the s 27 obligation. Such discovery would be subject to the implied undertaking. The narrower application of s 27 is consistent with an interpretation that does not import concepts not required by the statutory language.
The parties before me each proceeded on the basis the relevant documents had been disclosed in accordance with the s 26 obligation. As I have said, there was no dispute as to the effect of the statute that the protection of s 27 was initially attracted. The dispute is whether the protection has ceased. The circumstances of this application are such that the documents were disclosed by the State respondents. The use made of the documents by the plaintiff, has been for the purposes of the Thorpe proceedings. Section 27(1) requires the information or documents not be used for a purpose other than in connection with the proceeding.
I consider the s 27 protection does not cease in circumstances equivalent to the cessation of the Hearne v Street[23] implied undertaking. I do not accept the applicants’ submissions that the circumstances in which the Hearne v Street[24] protection might cease to apply, or might be lost, are to be applied or inferred to be applicable to the s 27 protection.
[23]Ibid.
[24]Ibid.
The applicants referred to the Explanatory Memorandum for the enactment of the Civil Procedure Act. The decision of Richards J in Davey v Silverstein (‘Davey’)[25] refers to the memorandum, at paragraph 65, to say the purpose of s 27 is ‘to replicate the implied undertaking in relation to discovery that a party will not use any documents or information received for an ulterior purpose’. The reference to the purpose of s 27 by Richards J was to show an alternative submission advanced before the Court could not be accepted. That was because the s 27 protection applied to disclosure of documents in accordance with s 26, and the Court there held s 27 did not apply to the affidavits in question. The affidavits had not been disclosed in accordance with s 26.
[25][2019] VSC 724 (‘Davey’).
The submissions for the applicants emphasised the passage from the explanatory memorandum that the effect of s 27 is to replicate the protection. The passage states positively the s 27 protection applies to disclosure in accordance with s 26. The replication is necessary to avoid any doubt lest it be thought the s 26 disclosure might not be regarded as attracting the implied undertaking in addition to the s 27 application. The passage does not support the broader conclusion that the s 27 protection is lost in the same circumstances the common law protection is lost.
In Davey, Richards J, at [65] went on to say ‘Section 27 does not replace the implied undertaking, and does not displace authorities such as Hearne v Street[26] and Rowe[27]’.
[26](2008) 235 CLR 125.
[27]Rowe v Silverstein & Ors [2009] VSC 157.
The observation that s 27 does not replace the implied undertaking leaves open the conclusion they are not to be equated. Moreover, the circumstances in which the implied undertaking might be lost, or cease to apply, ought not to be considered to circumscribe the protection created by s 27. The question of when a person may be released from an obligation does not inform the question of when or how the s 27 protection might be lost.
The applicants also relied on the decision in Barrow v McLernon (‘Barrow’)[28] and observations made at [23] in relation to the power to grant leave to use documents pursuant to s (3)(b). In that passage it is clear the parties proceeded on the basis the power to grant leave in s 27 should be governed by the same principles as the power at common law.[29] In view of the position of the parties, the Court was ‘prepared to proceed to the basis that the authorities that govern a release of a Home Office v Harman undertaking also govern the application of s 27(3)(b) of the Civil Procedure Act.’[30] To similar effect is the decision in Perez v Reynolds.[31]
[28][2012] VSC 134.
[29]Ibid, [23].
[30]Ibid.
[31][2020] VSC 298
It is clear the issue was not argued before the Court in Barrow. The issue before me as to whether the s 27 protection might cease in circumstances where the implied undertaking might cease is not shown to follow from the observations made in Barrow. The application in Barrow for the plaintiff to be released from the obligation was refused. The approach taken in cases where there is an application to be released from the obligation under s 27(3)(b) has been adopted in many cases.[32] In my view, the approach to when a person may be released from the obligation does not require a conclusion that the obligation ceases in other circumstances. The adoption of principles as to the exercise of the statutory power created by section 27(3)(b) does not support the applicants’ case.
[32]Macaulay J in Ubertas Funds Management Pty Ltd v PwC(release from implied undertaking) [2017] VSC 735 referred to the decision of Ah Choo Teo v Pacific Media Group [2016] VSC 626, where numerous examples are cited by John Dixon J. Many more cases have adopted that approach since.
In my view, the respondents’ submissions as to the effect and construction of s 27 provide an answer to the application. The documents the subject of the application remain protected by s 27. The application to obtain copies of the documents should be refused on this basis.
I observe, in passing, s 27 applies to both information and documents. The submissions for the respondents maintain the information read onto the transcript continues to be protected notwithstanding the use of the information in Court, however that use is characterised. That conclusion follows from the limited circumstances in which the protection is lost in respect of information obtained from documents disclosed in accordance with s 26. The summons seeks an order that the applicants be permitted to inspect and copy the documents. It is not directed to the information, so this observation is not directly in issue on the application.
The distinction drawn by s 27 between information and documents does not require further consideration, as the application before me is in respect of the documents. The respondents made the observation that not all of the information contained in the documents was read onto the transcript. The question of use by the applicants of ‘information’ available from the transcript is not before me on this application.
Implied undertaking
The competing submissions for the parties in relation to the implied undertaking proceed from different lines of authority. In view of my decision that s 27 provides a basis on which the application must be refused, it is not necessary for me to resolve the issues underlying the competing submissions.
I am prepared to state my reasons briefly for concluding I would refuse the application on the ground the documents remain protected by the Hearne v Street[33] principles, as applied in Victoria. I accept the submissions for the respondents that the implied undertaking is not lost in the circumstances that have happened in this case. In doing so, I consider I am bound by decisions of this Court such as:
(a) British American Tobacco Australia Services Ltd v Cowell (No 2)[34]; and
(b) Connective Services Proprietary Ltd v Slea Pty Ltd (‘Slea’).[35]
[33](2008) 235 CLR 125.
[34][2003] VSCA 43.
[35][2017] VSC 182.
In support of my conclusion I observe the documents in question on this application were produced by the respondents by way of disclosure. The production in such circumstances is compulsory, or in response to coercive powers. The documents in question were created in 2012 and 2013. The use of the documents in the Thorpe proceedings in 2021 was by the plaintiff and not the respondents themselves. The factual basis for consideration of the continued protection of documents should, it seems to me, take into account the manner in which the documents came to be used in Court and the context in which that use occurred. Such considerations appear to be consistent with the decisions relied on by the State parties and in particular the observations of Almond J in the Slea decision[36].
[36] First to Fourth Defendants (n 4) [16] and [17].
The applicants submit the decisions should not be followed and the observations have been doubted in decisions elsewhere. In my view, I should apply the decisions of this Court in preference to decisions elsewhere.
The decisions relied on by the applicants should be distinguished. I prefer the submissions of the State parties to the submissions of the applicants as to the appropriate authorities to be applied.[37]
[37]Ibid, [40] - [43] set out the relevant grounds to distinguish the cases.
The matter of Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (‘Treasury Wine’)[38] was a decision under the Federal Court Rules, which differ in material respects to the Victorian rules[39]. The application in Treasury Wine concerned the use of pleadings in earlier proceedings and not discovered documents. Although the information was obtained from discovered documents, the application itself concerned the pleadings prepared from that information. The pleadings had been published to the world.[40] The points of distinction include the manner of use and the extent of dissemination of the information obtained from the discovered documents.
[38][2020] FCAFC 226.
[39]Foster J at first instance commented on the Rules in the decision Jones v Treasury Wine Estates Limited [2020] FCA 1131 at [59] onwards, and discussed a number of cases dealing with the use of discovered documents to draw pleadings.
[40]Treasury Wine (n 29) [2] and see also the first instance decision Jones v Treasury Wine Estates Limited [2020] FCA 1131, [4] and [10].
The applicants also relied on Crawford v Timms (‘Crawford’)[41], particularly at paragraphs [49] – [50] in which the decision of British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased) (‘BATS v Cowell’)[42] is disapproved. The NSW Court in Crawford introduced the discussion of authorities with the observation the ‘submissions raised an issue about what type of disclosure or reference to such material in open court brings the implied undertaking to an end.’[43] The decisions relied on by the applicants show the importance of the procedural history and importantly whether the document was ‘received into evidence’.[44] The parties before me remain in dispute as to whether the two documents the subject of this application were ‘received into evidence’. I have made that assumption against the State parties but were it necessary to determine the matter in order to apply the non-Victorian authorities as to when the implied undertaking is lost, there would be a need to hear further submissions from the parties and possibly additional evidence as to the procedural history.
[41][2020] NSWSC 380 (‘Crawford’).
[42][2003] VSCA 43.
[43]Ibid, [48].
[44]Treasury Wines (n 29), [85].
The submissions for the applicants invited me to adopt the approach taken in cases such as Treasury Wines, decided by the Federal Court, and Crawford, decided by the Supreme Court of NSW. It is clear observations by members of the Courts in Treasury Wines and Crawford show there are different views held and that Judges elsewhere appear to have disagreed with decisions in Victoria. I am not satisfied I should proceed to adopt the decisions relied on by the applicants. The submissions for the respondents invited me to distinguish those cases and to apply the decisions of the Supreme Court of Victoria. In my view that is the appropriate course.
The decisions relied on by the respondents (namely Slea and BATS v Cowell) are to be preferred and support a decision that the documents in question before me remain subject to the implied undertaking. In my view, the implied undertaking, in addition to my view of s 27, provides a proper basis to refuse the application. As I have explained, I reach that conclusion on the assumption the documents were ‘received into evidence’ in the relevant sense, but do not make a finding to that effect. In my view the use of the documents is not such as to lose the benefit of the implied undertaking, as the principles have been stated and applied by the Supreme Court of Victoria.
Privacy
As a part of the submissions for the applicants it was asserted the State parties in this proceeding did not have an interest, such as privacy, that supports the protection afforded by some of the cases and the statement of principles. It is not necessary for me to determine this issue, however I doubt the correctness of the submission.
The State parties specifically joined issue with that submission. Were the determination of that question a necessary step in resolution of the application, it would be necessary to receive further submissions and possibly to allow for evidence to be presented.
In view of my conclusions on other aspects of the application, it is not necessary I take that course. For completeness, I make reference to observations in a different context in which the Court has proceeded on the basis that such an interest as privacy or confidentiality is properly asserted by a state polity, in that case the Commonwealth of Australia.[45]
[45]Holloway v Commonwealth [2016] VSC 317, [57] onwards - The comments appear in the context of a claim to public interest to preserve the secrecy or confidentiality in relation to information.
The admissibility question
The submissions for the parties took different views as to the issue of how the documents were used in the sense of ‘tender’ or as ‘evidence’. As mentioned, the State parties did not accept the documents had been tendered or that they had been entered into evidence. For reasons I have explained, it is my view that even assuming the documents had been tendered, the application should be refused. There is however, one aspect of the submissions on which I should make comment. The submissions for the State parties[46] set out the chronology of the disclosure of documents and the discovery of those same documents and drew attention to s 27(4) of the CPA. The effect of the submission was to say that when the hearing proceeded before Forbes J on 23 March 2021 and 31 May 2021 the documents were not ‘admissible’. This was by reason of s 27(4), because although the documents had been disclosed pursuant to s 26 they had not yet been discovered.
[46] First to Fourth Defendants (n 4) [37].
On this issue the applicants submitted if the respondents wished to be heard against the tender of the documents, the time to be heard was on the occasion when the plaintiff ‘tendered’ the documents. The submission was directed to the proper interpretation of s (4), to the effect that the statutory language holds documents must be ‘discovered’ to be ‘admissible’ in the proceedings.
The applicants relied on a decision[47] concerning the interpretation of statutory rules of evidence to say the phrase ‘not admissible’ has been interpreted to identify the issue as whether the documents were ‘not admissible over objection’.[48] The applicants’ submissions do not require a determination of the issue on this application. The decision relied on arose from a criminal trial and required consideration of forensic decisions made by counsel on behalf of an accused person during the trial. While a similar investigation might be undertaken, it is in my view not necessary for the determination of this application.
[47]Perish v R (2015) 92 NSWLR 161 concerned the New South Wales Evidence Act 1995 and provisions such as s 59, that hearsay evidence is “not admissible” to prove certain facts.
[48]Ibid, [261] - [271] – at [265] the Court noted there to be some controversy about the conclusion and reference was made to Velkoski v The Queen [2014] VSCA 121 where the criticism was said to have some force, but the Court did not rule on the issue.
My preliminary view of the issue is the State parties, as those responsible for making discovery of the document, could not be heard to object to the use of the document in the proceeding, once it had been disclosed. Once it had been disclosed, the documents became available to be used for the purposes of the proceeding. Section 27(1) provides a disclosed document may be used in connection with the proceeding. The making of discovery may often occur some time later than the making of disclosure. It should be expected it will be rare for there to be an occasion when a document is sought to be admitted into evidence in that period of time.
The party having made disclosure should make discovery promptly thereafter. If there is a delay and the admissibility of the document becomes an issue, one solution would be to require immediate discovery of the document, or to have the document admitted on the undertaking or assurance discovery will be made. In practical terms, the protection afforded by s 27(4) is a protection for the party or parties other than the party making disclosure. In other words, a party who has made disclosure but not yet made discovery is not the intended beneficiary of the protection afforded by s 27(4). That protection is to guard against a trial by surprise, where documents not previously discovered are produced at trial. In a sense, this conclusion is consistent with the interpretation of ‘not admissible over objection’ advanced by the applicants. Nothing turns on this question in view of my conclusions in relation to the continued protection afforded by s 27 and the implied undertaking.
Confidentiality
The third main aspect of the submissions for the applicants was directed to the question of confidentiality and the absence of evidence on behalf of the respondents to sustain any finding the documents should remain confidential.
In support of the submission, the applicants relied on several decisions concerning the question of whether inspection might be limited on grounds of confidentiality. The cases apply principles stated by the High Court of Australia in Hogan v Australian Crime Commission.[49]
[49][2010] HCA 21.
In the decision of Re Japara Holdings Pty Ltd (‘Japara’)[50], the Court (at [10] and [11]) set out principles applicable where the Court is asked to make an order that documents on the Court file be marked confidential and remain confidential for the purposes of r 28.05. The application before me is not for an order that documents be marked confidential. The documents at issue in Japara were affidavits and exhibits to affidavits that had been filed in the proceeding.
[50][2010] VSC 361
There is no reason to doubt the correctness of the decision in Japara. However the submissions for the applicants would have the Court determine the question of confidentiality in the absence of evidence that might be available. The submission calls for a conclusion that the documents are not confidential and should be made available for inspection by non-parties. For reasons given, the application should be refused on the grounds that s 27 restricts the use of the documents. To that extent, the documents are “confidential” to the parties to the Thorpe proceeding. In my view, it is not necessary to determine any separate issue of the confidential nature of the information contained in the documents. Were it necessary to do so, the Court would be concerned whether the respondents would be entitled to seek to file additional affidavits. If the Court was required to determine the issue of confidentiality as a separate ground for r 28.05 purposes, I would have required submissions on whether further evidence should have been allowed to be filed.
The case of Wilson v Mitchell (‘Wilson’)[51] also contains a statement of principles that are not controversial. At [9], the Court stated, with reference to r 28, that Victorian courts proceed on the basis the rule expresses the public’s right to inspect documents filed with the Court. That case concerned documents filed and relied upon to establish reasonable grounds for a finding of fraud (see [3]). The affidavits on the court file are identified at [5].
[51][2014] VSC 280.
In Madaferi v Police[52], the Court considered (at [78] - [92]) issues of access to affidavits filed in the proceeding in the context of adverse publicity said to support an application for an extension of time. The principles stated in Japara and Wilson were applied by the Court. Again, there is no controversy over the applicable principles.
[52][2017] VSC 652.
Each of the authorities relied on by the applicants concerned access to affidavits filed in the course of the proceedings. The underlying policy of r 28.05 for access to documents filed in Court proceedings is supported by the decision in each of those cases. In my view, they do not assist in the determination of the application before me.
The particular documents before me are discovered documents from an opposing party that have been (it is assumed) tendered by the plaintiff in the context of a discovery application. There may be questions as to whether the submissions are ‘filed’ documents and whether the two discovered documents were ‘tendered’ in any relevant sense. They did not become exhibits and were not marked for identification as far as can be discerned from the transcript. However, those observations are not advanced as a basis for the decision. The argument proceeded before me without the need to determine the disputed description of the events and the ‘use’ of the documents. On the description relied on by the applicants, I am satisfied the application should be refused.
Nevertheless, there is a distinction, or at least a difference of degree, between the current application and an application to inspect a filed affidavit which has been advanced by a party, placed on the Court file and is then sought to be made confidential. In the case before me, the respondents have made discovery of documents in accordance with the obligation to do so and have produced documents for inspection between the parties in accordance with the obligation to do so.
The submissions for the respondents as to confidentiality were briefly stated in their written outline of submissions. The respondents submitted the application should be refused on the earlier grounds, namely s 27 and the implied undertaking, and it was not necessary for the Court to rule on the issue of confidentiality.
The conclusion I have reached as to the application of s 27 does have the consequence that it is not necessary to rule on the issue of confidentiality in the sense that issue was advanced by the applicants. However, were it necessary, a preliminary question would arise as to whether the respondents would seek to file additional evidence and whether such request would be granted. In the circumstances, it was not necessary to incur further expense or delay in considering such issues.
The term ‘confidential’ is used in r 28. However, I have reservations as to whether the test of confidentiality for an order pursuant to r 28.05, that a document be marked as confidential, should be applied for all purposes.
Rule 28 is directed to any document ‘filed in a proceeding’. The documents filed include pleadings, affidavits, various notices, and submissions. In this case, the submissions included by way of ‘tender’ the two documents in question, obtained on discovery by the other party.
The expression in r 28 is used firstly in the context that the documents may be ordered to remain confidential, but there is no such order at present concerning the documents. The second use of confidential is that the Prothonotary may consider the documents ought to remain confidential to the parties. The phrase ‘confidential to the parties’ attracts considerations that differ from the principles applied to making an order for confidentiality, where the onus is on one party to establish the basis for that confidentiality. In the second context, it is not the interest of one party to assert confidentiality, but rather the concern that documents used and produced in the litigation ought to remain confidential to the parties. The expression ‘the documents remain confidential’ imports an element that the documents already have that status, rather than assuming there is an onus on one party to establish that status.
I do not need to reach a concluded view on the concept of confidentiality for an application such as the present. However, for the reasons briefly stated, I am not satisfied the cases relied on by the applicants should be applied to the inspection of documents provided for by r 28.05.
Rules amendment
The Court has amended r 28.05 with effect from 1 October 2021. The application before me was in the context of r 28.05 as it was in force at the time and the amendments are not relevant to my decision. The amendments may have consequences as to the future application of r 28.05 to requests to inspect documents.
Orders
The application to copy and inspect the documents is dismissed.
The applicants and the State parties are requested to provide consent orders as to costs within 7 days of the publication of this decision. In the absence of agreement each party should file an outline of submissions as to costs within 14 days and indicate whether oral submissions are required.
SCHEDULE OF PARTIES
| S ECI 2020 04091 | |
| BETWEEN: | |
| MARJORIE THORPE | Plaintiff |
| - v - | |
| HEAD, TRANSPORT FOR VICTORIA | First Defendant |
| MINISTER FOR TRANSPORT INFRASTRUCTURE | Second Defendant |
| SECRETARY, DEPARTMENT OF TRANSPORT | Third Defendant |
| STATE OF VICTORIA | Fourth Defendant |
| MARTANG PTY LTD | Fifth Defendant |
| VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION | Other Party |
| MAIRIANNE MACKENZIE | Other Party |
| IONA MACKENZIE | Other Party |
| KEEP THE ORIGINAL ROUTE SUPPORTERS INC | Other Party |
| VICTORIAN ABORIGINAL HERITAGE COUNCIL | Applicant - Civil |
| EASTERN MAAR ABORIGINAL CORPORATION | Respondent – Civil |
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