FEDERAL COURT OF AUSTRALIA
Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226
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- AGLC
- Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd [2020] FCAFC 226
- Case
- [2020] FCAFC 226
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the obligation under the common law to not use documents produced under compulsion for purposes other than the proceeding applied to pleadings and whether the primary judge had denied the appellant procedural fairness. The court considered the ratio of Hearne v Street and the distinction between the consequences of access to a document in its character of a discovered (or subpoenaed) document on the one hand, and of access to the same document in its character of a document admitted into evidence on the other hand. The court found that the obligation did not apply to pleadings and that the primary judge had not denied the appellant procedural fairness.
The court found that the obligation under the common law to not use documents produced under compulsion for purposes other than the proceeding did not apply to pleadings. The court noted that the primary judge had referred to several first instance decisions which supported this finding. The court also noted that the obligation ceased on the admission of the document into evidence, citing several cases which supported this finding. The court found that the primary judge had not denied the appellant procedural fairness and that the appeal was therefore dismissed.
The court made several orders, including granting leave to the appellant to rely on the further evidence being the redacted version of the defence to counter-claim at annexure AM-26 to the affidavit of Alan Mitchell affirmed 9 October 2020. The court also granted leave to the first and second respondents to file and serve a notice of contention, such notice to be filed and served within 7 days of the making of these orders. The appeal was dismissed and the appellant was ordered to pay the respondents' costs of the appeal, as agreed or taxed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Leave be granted to the appellant to rely on the further evidence being the redacted version of the defence to counter-claim at annexure AM-26 to the affidavit of Alan Mitchell affirmed 9 October 2020.
2. Leave be granted to the first and second respondents to file and serve a notice of contention, such notice to be filed and served within 7 days of the making of these orders.
3. The appeal be dismissed.
4. The appellant pay the respondents’ costs of the appeal, as agreed or taxed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
TWE submitted that other first instance decisions relied upon by the primary judge should not be followed. In this regard, it may be noted that Connective Services and Citicorp are also both first instance decisions. Apart from these decisions, in defining the scope of the obligation at common law (leaving aside the issue of the status of pleadings for the moment), the primary judge referred to K & S Corporation Ltd v Number 1 Betting Shop Ltd [2005] SASC 228 in which Debelle J at [53] identified two distinct lines of authority in Australia. In the first (Hamersley Iron and Cowell) Harman was applied so that the admission into evidence of a document did not result in the cessation of the obligation. In the second the obligation ceases on the admission of the document into evidence, citing Esso, Registrar of the Supreme Court v McPherson [1980] 1 NSWLR 688, United States Surgical Corporation v Hospital Products International Pty Ltd (unreported, Supreme Court of NSW, McLelland J, 7 May 1982), Ainsworth, Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322, and Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218. We note that in Hospital Products McLelland J referred to Harman and said:It seems to me that the Court must attempt to distinguish between the consequences of access to a document in its character of a discovered (or subpoenaed) document on the one hand, and of access to the same document in its character of a document admitted into evidence on the other hand. Prima facie the Court should prevent utilisation for collateral purposes of access of the first kind and permit utilisation for legitimate collateral purposes of access of the second kind…As between the parties such documents have lost their confidentiality by being admitted in evidence in open court in the (at least notional) presence of the public and of the plaintiff, and there is every reason why in such circumstances they should be available for the purposes of the related litigation in the United States. In Eltran Pincus J held that subpoenaed documents which had been tendered in evidence were no longer the subject of the obligation, following Hospital Products. Pincus J described Harman as authority for a narrow proposition that where documents obtained by compulsory process are read out in open court but excluded from evidence it is a breach of the obligation to supply those documents to the press for the purpose of writing about them other than merely by way of reporting the litigation: 324. Pincus J found it difficult to accept that the obligation would have applied to the documents in Harman had they been admitted into evidence: 324. In Ampolex the issue of a document being admitted into evidence did not arise but Giles CJ Comm D identified the relevant principle as one which had been accepted in NSW “with the qualification that the undertaking does not apply once the document has been produced and read out in open court”: 221. In K & S Corporation Debelle J said at [65]:An important aspect of the reasoning in Harman and in British American Tobacco to justify the conclusion that persons subject to the obligations of the implied undertaking remain subject to these obligations notwithstanding that third parties may make what use they can of what they hear in court or read in transcript is that the party gaining access to another’s documents is in a privileged position by reason of the process of the court and it is that privilege which should not be abused: see the last sentence in para 38 of British American Tobacco, Lord Roskill in Harman at 322 – 323 and see also Scott J in Sybron Corporation at 322. There can be no doubt as to the solemn nature of the undertaking and the gravity of the obligation it imposes. However, once the document has been admitted into evidence, the rationale for the undertaking evaporates. If third parties are at liberty to make what use they can of the documents, the person to whom they are disclosed should also be able to use them. The fact that the documents were initially disclosed to a person does not justify discriminating between that person and members of the public. The solemnity of the undertaking is not enhanced by such a rule. Instead, the unequal operation of the rule is likely to erode confidence in it. Sanctions exist to punish those who flout the undertaking. Courts may make orders to protect the confidentiality of documents admitted into evidence. In short, no public purpose is served by discriminating between the person to whom the document is disclosed and the third parties who may make what use of what they can of what they have heard in court or what they see in a transcript.