White v Woodward
[2018] VSC 335
•22 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2017 00001
| NOLA WHITE | Plaintiff |
| v | |
| WILLIAM ROY WOODWARD & ANOR (according to the attached schedule) | Defendants |
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JUDICIAL REGISTRAR: | MATTHEWS JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 April 2018, 18 May 2018 |
DATE OF RULING: | 22 June 2018 |
CASE MAY BE CITED AS: | White v Woodward & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 335 |
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PRACTICE AND PROCEDURE – Discovery – Documents possessed by party subject to implied undertaking to use only for purposes of proceeding in another court – Whether court in separate proceeding can and should order production of discovered documents which are subject to the implied undertaking – Whether there is any restriction on the use of such documents in the separate proceeding – Hearne v Street (2008) 235 CLR 125 – Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10 – Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 398 – Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery) [2015] VSC 352.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Connors | Rothwell Lawyers Pty Ltd |
| For the First Defendant | Mr G Steart, solicitor | Steart Law |
JUDICIAL REGISTRAR:
Introduction
By summons filed 6 April 2018 (‘Summons’),[1] the first defendant (‘Woodward’) seeks production of certain documents discovered by the plaintiff (‘White’). In her affidavit of documents sworn 28 July 2017 (‘Discovery Affidavit’), White objected to the production of four categories of documents. I will explain this later.
[1]By order made on the Court’s own motion pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), the Summons was referred to me for hearing and determination.
In support of the Summons, Woodward relies on an affidavit sworn 6 April 2018 by his solicitor, Graeme Douglas Steart of Steart Lawyers (‘Steart Affidavit’).
White opposes the Summons and relies on two affidavits from her solicitor, Tracey Pauline Rothwell of Rothwell Lawyers Pty Ltd:
(a) affidavit sworn 20 April 2018 (‘First Rothwell Affidavit’); and
(b) supplementary affidavit sworn 3 May 2018 (‘Second Rothwell Affidavit’).
When the Summons came on for hearing on 23 April 2018, Woodward indicated that he no longer pressed for production of the document in category three of the Discovery Affidavit, as he accepted White’s claim to legal professional privilege in respect of this document. Due to an incorrect email address being used for Mr Steart by White’s legal representatives, Mr Steart had not seen the written outline of submissions on her behalf. He indicated that he was therefore not in a position to address White’s arguments regarding the other three categories, where production was resisted based on the implied undertaking as to the use of documents. By consent, I made orders for the further provision of written submissions and adjourned the hearing to a later date.
The parties also relied on the following written outlines of submissions:
(a) Outline on behalf of White dated 20 April 2018 (‘First White Outline’);
(b) Second outline on behalf of White dated 4 May 2018 (‘Second White Outline’); and
(c) Outline on behalf of Woodward dated 18 May 2018 (‘Woodward Outline’).
For the reasons set out below, production of the documents in categories one, two and four of the Discovery Affidavit will be ordered.
Background
Given the submissions made about the relevance of the subject documents, it is necessary to provide some information about the subject matter of this dispute. This proceeding concerns a parcel of land on French Island, of which Woodward is the registered proprietor (‘Property’).[2] White alleges that in about June 2007 she became interested in purchasing, on behalf of a family trust, the Property which was being offered for sale by real estate agents RT Edgar. She says that the negotiations were conducted by her husband, Gregory Charlesworth (‘Charlesworth’), initially with RT Edgar but then subsequently with Woodward. White says that a contract was concluded whereby Woodward would sell the land to White for the sum of $75,000 to be set out in a contract of sale for the land, together with a further $78,464.55 to be paid to Woodward and, on his instructions, to third parties in respect of certain of his debts. White alleges that a written contract of sale was executed by the parties on 20 February 2012, and settlement was to be on 28 April 2012. The date of settlement passed without settlement occurring and White alleges that the parties did not press this to occur at that time. White alleges that in or around July 2012 all purchase monies had been paid and she had received a signed vendor’s statement pursuant to s 32 of the Sale of Land Act 1962, and that with Woodward’s knowledge she commenced dealing with the Property as if the registered proprietor and has occupied the Property since around October 2012. White says that in about September 2016 Woodward began to make allegations inconsistent with her rights to the Property and he has refused to provide a signed registrable transfer of land for the Property.
[2]The description of White’s claims in this paragraph is taken from the Amended Statement of Claim dated 26 July 2017.
Woodward admits that he had discussions with Charlesworth about the purchase of the Property but says that all discussions were with Charlesworth in his own right, that at no time did Charlesworth indicate that he was negotiating on anyone else’s behalf, and he denies discussing the purchase with White.[3] Woodward denies that any agreement with White was concluded and says that any document which purports to be an agreement between them for the purchase of the Property is a forgery. He denies being paid the sum of $153,464.55 or any part of it by White and he also denies that any part of it was paid to third parties at his direction. Woodward says that in about June 2009 he offered to sell the Property to Charlesworth for $250,000 and proffered a contract for sale, but Charlesworth did not accept the offer and refused to sign the proposed contract. Woodward alleges that he had numerous conversations with Charlesworth between 2007 and 2010 about the proposed contract, but this was only about when Charlesworth would sign it. He further alleges that he reached an agreement with Charlesworth in mid-2009 for Charlesworth and his family to occupy the Property in consideration of payment of rent, but no rent was ever paid to Woodward. Woodward denies that he signed a contract of sale in February 2012 or a vendor’s statement in or around July 2012. Woodward further alleges that Charlesworth and White, and White’s children, occupied the Property and resided in a caravan on it from mid-2009 to October 2012, and from October 2012 they resided in a shed that they had built on the Property without his knowledge or consent. Since Charlesworth’s incarceration in 2016, White has continued to occupy the Property with her children. No rent has ever been paid.
[3]The description of Woodward’s defences in this paragraph is taken from the Amended Defence dated 31 July 2017.
The Discovery Affidavit follows the usual form, where the discovered documents are divided into two parts: Part 1, where no objection is taken to the production and inspection of the documents listed in that part; and Part 2, where objection is taken to the production and inspection of the documents listed in that part. In part 2, White has listed (and therefore discovered) four categories of documents, described as follows:
Category Date Description 1 23/01/2010 – 20/09/2013 NAB Bank Statements for William Roy Woodward 2 23/02/2011 – 22/05/2012 Bank of Queensland Statements for account called Hortus Australia Pty Ltd 3 09/10/2016 Statement made by Gregory Charlesworth 4 06/09/2016 Additional Prosecution Written Submissions for Sentencing for District Court of Western Australia, proceeding No 19 of 2015
Paragraph 3 of the Discovery Affidavit states that the documents listed in Part 2 are ‘privileged’ and White objects to producing them. White then states:
‘The documents are privileged on the grounds that they are:
i.Confidential communications between me and my advisors in their professional capacity and are solely for the preparation of my case in this proceeding; or [‘Ground One’]
ii.Documents obtained by the Plaintiff’s husband as part of a brief for criminal proceedings against him which documents were obtained under compulsion or part of legal proceedings. [‘Ground Two’]
The Discovery Affidavit does not deal with this claim any further. It is therefore impossible to discern, from the Discovery Affidavit, the precise basis for the objection to production of each category of documents or each document: it is either legal professional privilege or due to the implied undertaking as to the use of documents.
Ms Rothwell deposes that the document in category 3 was created in the course of this litigation and is subject to legal professional privilege.[4] In the First White Outline, White’s counsel said that the statement from Charlesworth was obtained so that his actions on White’s behalf could be understood and advised upon when assessing the strength of White’s case by her solicitors.
[4]First Rothwell Affidavit, [4].
In relation to the documents in categories 1, 2 and 4 of the Discovery Affidavit (‘Contested Categories’), Ms Rothwell states as follows:
(a) Charlesworth was the subject of criminal proceedings in Western Australia and was convicted in September 2016;[5]
[5]First Rothwell Affidavit, [4]. I understand from White’s submissions that this conviction and sentencing was made by the District Court of Western Australia (‘WA Court’) in proceeding no. 19 of 2015 (‘WA Proceeding’).
(b) the documents in the Contested Categories came into White’s possession, custody or control after Charlesworth’s incarceration when he handed over the documents which had formed part of the brief of evidence against him;[6]
(c) the documents in the Contested Categories had been obtained under compulsion, via a subpoena issued by the authorities in Western Australia as part of the WA Proceeding;[7] and
(d) her firm advised White that as the documents in the Contested Categories had come into her possession, custody or power as a result of the WA Proceeding, she and her lawyers were subject to the implied undertaking not to use or disclose the documents for any purpose other than the WA Proceeding in which the documents were obtained. White was advised that she was required to discover the documents in this proceeding, but could not produce them for inspection or provide copies of them without the leave of the WA Court.[8]
[6]First Rothwell Affidavit, [5], [8].
[7]First Rothwell Affidavit, [9].
[8]First Rothwell Affidavit, [12], [13].
Summary of issues
Based on the submissions made by the parties, the issues in relation to the Summons are as follows:
(a) Are the documents in the Contested Categories subject to the implied undertaking to the WA Court?
(b) Is White prevented from discovering the documents in the Contested Categories in this proceeding due to the implied undertaking?
(c) The documents in the Contested Categories being discoverable or having been discovered, should White’s objection to their production upheld?
(d) If the documents in the Contested Categories are produced, is there any restriction upon their use, as a consequence of the implied undertaking to the WA Court?
I will begin, however, by briefly setting out the general principles regarding the implied undertaking.
What is the implied undertaking?
Parties in Australian litigation are subject to an implied undertaking to the court not to use any document produced to them in the course of the litigation except in the context of that litigation.[9]
[9]As summarised by Gordon J (as her Honour then was) in Cadbury Schweppes Pty Ltd v Amcor Ltd & Ors [2008] FCA 88, [21], referring to Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) (1995) 183 CLR 10 (‘Esso v Plowman’), 32, 36-7, 46; and to Harman v Secretary of State for the Home Department [1983] 1 AC 280.
The High Court confirmed that the implied undertaking was a substantive obligation imposed by law,[10] and stated as follows:[11]
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.
[10]Hearne v Street (2008) 235 CLR 125 [107].
[11]Hearne v Street (2008) 235 CLR 125 [96] (citations omitted).
The implied undertaking extends to third parties who receive documents and are aware that they have been obtained in the course of legal proceedings.[12]
[12]Hearne v Street (2008) 235 CLR 125 [109]–[112].
Since the implied undertaking is given to the court, only the court to whom the obligation is owed is able to release a party from its obligations pursuant to the undertaking.[13]
[13]Crest Homes Plc v Marks [1987] AC 829, 854; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576.
There are certain instances, such as when a document is tendered in evidence or formally read in open court, when the implied undertaking comes to an end,[14] however these are not relevant to the consideration of the Summons.
[14]Esso v Plowman (1995) 183 CLR 10, 32–3.
Are the documents in the Contested Categories subject to the implied undertaking to the WA Court?
At the hearing on 18 May 2018, Woodward indicated that for the purposes of the hearing regarding the Summons, he did not contest that the documents in the Contested Categories were subject to the implied undertaking.
In my view, and in light of the evidence adduced by White, this was a sensible and proper course to adopt.
Therefore, I approach the determination of the Summons by accepting that the documents in the Contested Categories are subject to the implied undertaking to the WA Court.
Is White prevented from discovering the documents in the Contested Categories in this proceeding due to the implied undertaking?
In a way, it may appear odd to list this as an issue in respect of the Summons when White has actually discovered the documents in the Contested Categories in this proceeding. Implicitly, the submissions on White’s behalf were made, at least initially, on an assumption that the documents were required to be discovered but were not able to be produced. However, there was no mention of the line of cases which considered whether the implied undertaking must yield to other compulsory or curial processes, and White’s counsel indicated after I raised this at the first hearing that he would review these. The Second White Outline then dealt with this issue.
Even so, some exploration of whether White is prevented from discovering the documents in the Contested Categories in this proceeding due to the implied undertaking is required as a foundation for the issues which need to be subsequently considered.
In Cadbury Schweppes Pty Ltd v Amcor Limited,[15] Gordon J (as her Honour then was) dealt in the Federal Court with an argument as to whether certain documents discovered by Visy (by being included in a list of documents) in that proceeding were required to be discovered and produced, as they had been obtained by Visy in a separate proceeding in the Federal Court and were therefore subject to the implied undertaking. The argument before her Honour proceeded on the footing that the critical question was whether Visy was to be released from its implied undertaking.
[15][2008] FCA 398 [12]–[13] (‘Cadbury v Amcor’).
Her Honour stated:
At first sight, the question requires the resolution of what appear to be inconsistent obligations – the obligation to use the documents only for the purposes of the [proceeding] in which they were compulsorily produced with the obligation to produce for the inspection of opposite parties in another proceeding all discoverable documents that are not subject to a valid claim of privilege.
However, the resolution of any tension between what would otherwise be competing and inconsistent obligations, is readily apparent; resolution lies in properly identifying the contents of the implied undertaking. In particular, it is necessary to recognise that the undertaking impliedly given in one proceeding not to use documents compulsorily produced in that proceeding except for the purposes of that proceeding is necessarily subject to other requirements of the law. So to take what may be a clearer example of the limits of the undertaking, the implied undertaking given in one proceeding would provide no answer to a subpoena for production of these documents in another proceeding. When a party is subpoenaed to produce documents in another proceeding, it is no answer to say that “I am subject to an undertaking about how I may use these documents”. The party’s undertaking in the first proceeding restricts the uses to which that party may choose to put the documents. But the undertaking is no answer to otherwise valid compulsive processes of law: [Esso v Plowman (1995) 183 CLR 10, 32, 36-37, 46]. As the Court in [Esso v Plowman] stated (at 33):
No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
(emphasis added)
Gordon J then held that Visy’s implied undertaking in the separate proceeding was no answer to its discovery obligations in the proceeding before her Honour.[16]
[16]Cadbury v Amcor [2008] FCA 398 [13].
Cadbury v Amcor has been followed in a number of cases, including by Bell J in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (Ruling on Discovery).[17]
[17][2015] VSC 352 (‘Boral v CFMEU’). At [17]–[19], his Honour refers to some other cases which followed or referred to Cadbury v Amcor.
Therefore, it is abundantly clear that the implied undertaking to the WA Court in respect of the WA Proceeding does not mean that the documents in the Contested Categories are not required to be discovered in this proceeding.
The documents in the Contested Categories being discoverable or having been discovered, should White’s objection to their production upheld?
Resistance to production based on the implied undertaking
The submissions made in the First White Outline were consistent with Ground Two as set out in the Discovery Affidavit, in that she objected to production of the documents in the Contested Categories due to the implied undertaking. It was submitted that White ‘is not at liberty to supply these documents for inspection by [Woodward]’.[18] This is also consistent with the advice which Ms Rothwell says her firm gave to White when preparing the Discovery Affidavit.[19]
[18]White’s written outline of submissions dated 20 April 2018, [3].
[19]See paragraph [13(d)] above.
In the Second White Outline, White’s counsel referred to Cadbury v Amcor, identifying that the implied undertaking in one proceeding is necessarily subject to other requirements of the law, and that it is no answer to a subpoena.
However, counsel for White also submitted that while ‘a document may be obtained under compulsion such as by subpoena or discovery, … the implied undertaking inures until this is impeached by the Court to whom the undertaking is owed’.[20] He further submitted that the undertaking may be required to yield to compulsion ‘if appropriate’, and it is not appropriate to ‘impeach’ the undertaking in this proceeding.[21] These submissions appeared to be confined to inspection/production of the documents, rather than to whether they had to be discovered, but this was not entirely clear.
[20]Second White Outline, [11].
[21]Second White Outline, [12].
Counsel’s written submissions in this regard referred to paragraphs 14 to 16 of Cadbury v Amcor and appear to be based on the discussion in those paragraphs that the court in that case would relieve Visy of its obligations pursuant to the implied undertaking, as a result of the related nature of the proceedings. However, such a submission seems to be based on a misunderstanding of those passages from Cadbury v Amcor. In that case, her Honour began that section by saying that, if contrary to her earlier expressed views (see paragraph 27 above) the question was properly framed as whether Visy should be released from its implied undertaking, then she concluded that it should be. Her Honour then went on to explain this alternate view, which is the passage relied on by White.
Therefore, Cadbury v Amcor is not authority for the proposition advanced by White, which appeared to be that even though the implied undertaking yields to the curial processes of the second proceeding, there still needs to be a release from the undertaking before the documents are able to be produced. It was not entirely clear, but White’s submission appeared to be that the documents should only have to be produced if the Court concluded as such, after taking into account the same issues as may arise when considering whether to order a release from the implied undertaking. I reject this submission in the circumstances of this case.
Documents which are subject to the implied undertaking and have been discovered in this proceeding are required to be produced in this proceeding. To do otherwise is inconsistent with the principles set out in Cadbury v Amcor as summarised in paragraph 27 above. In my view, there is no distinction between the concepts of discovery and production/inspection in those principles.
In Boral v CFMEU, Bell J of this Court was considering an application by Boral that the CFMEU discover certain documents which the CFMEU had obtained on compulsion pursuant to orders made in a separate Federal Court proceeding. Referring to instances where another court had previously ordered discovery of certain documents, his Honour stated as follows:[22]
I think it is clear from both authority and principle that the implied undertaking yields to the curial processes of courts other than the court to whom the undertaking is owed and that it is not necessary for the court directing discovery to first release the party from its undertaking before another court can exercise its curial powers to order discovery in respect of the relevant documents in a separate proceeding.
[22][2015] VSC 352 [14].
Therefore, production/inspection of the documents in the Contested Categories is not refused due to the documents being subject to the implied undertaking to the WA Court, and there is no need for White to obtain a release from that undertaking before producing the documents to Woodward for inspection.
During the second day of hearing, White’s counsel stated that it was not necessary to obtain a release from the implied undertaking in order to produce the documents to Woodward, but once he has them, Woodward has to seek a release from the undertaking in order to use them in this proceeding.[23] This was the first time White’s position had been articulated in this way.
[23]I will consider this second proposition as the final issue later in these reasons.
Up until then, production to Woodward had been resisted on the basis of the implied undertaking.
While it may seem that this apparent concession means that there is no difference between the parties on that point, in my view it has still been necessary to consider whether production can be resisted on this basis. This is due, first, to the (at times) confusing position adopted by White; and second, to the inter-related aspects of the issues such that the analysis is not complete and clear without it.
Resistance to production based on other grounds, primarily relevance and admissibility
White sought to resist production of the documents in Contested Categories 1 and 4 on other grounds, primarily relevance and admissibility.[24] Given the conclusion I have reached as to whether these grounds are available to White (see paragraph 56 below), I will be brief in summarising the parties’ submissions in this regard.
[24]For completeness, White also objected to production of the documents in Contested Category 2, however this objection was based solely on the implied undertaking. That category contained bank statements from the Bank of Queensland in respect of one of Charlesworth’s companies. White contended that if Woodward wanted to obtain the documents in that category, he should issue his own subpoena to the Bank of Queensland. As is apparent from these reasons, that submission is rejected.
White submits that the Steart Affidavit contends that the documents are relevant because they go to Charlesworth’s credit, and that no other basis is set out. This submission seemed to me to be directed mainly at Contested Category 4, however it was not expressly confined in that way. It may be accepted, given the subject matter of this proceeding,[25] that Charlesworth will be an important witness at the trial.
[25]See paragraphs 7 and 8 above.
White submits that the admissibility of these documents on the basis of credit is contrary to s 102 of the Evidence Act 2008 and the recognised exceptions do not apply. I was not taken to any authority for the proposition that admissibility is a pertinent question when considering whether discovery or production of discovered documents is to be ordered. It seems to me that the converse applies: the question is whether a document is relevant to an issue in the proceeding, not whether it will ultimately be admissible as evidence at trial.
White also submits that discovery is not generally ordered of documents which are not relevant to issues in the proceedings but go only to credit.[26] So much may be accepted, but I do not consider that to be the end of the matter in the circumstances of this case, as will become apparent. White’s counsel stated, in the course of oral submissions, that he did not view the document in Contested Category 4 as relevant, but was not able to point to any evidence upon which that submission was based and confirmed that he was not making an application to withdraw it from White’s discovery.
[26]Referring to Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, 277-8.
In addition, White submits that the documents in Contested Category 1 are already in Woodward’s possession as they are copies of his own bank statements, and that discovery and inspection of them is contrary to r 29.01.1(4)(a) of the Rules. That rule states that discovery of a document is not required if a party reasonably believes it is already in the possession of the other party. White also says that the documents in that category appear to have already been discovered by Woodward.[27]
[27]Referring to item 3 of Part 1 of Schedule 1 of Woodward’s affidavit of documents sworn 11 December 2017.
Woodward submits that although the documents in Contested Category 1 appear to be his own bank statements, it is not known whether the copies in White’s possession have notes or annotations which are relevant to the proceedings. He says that some of his bank statements are missing, so he may or may not have these ones, and he also queries how they came to be in Charlesworth’s possession.
One of the issues in dispute in this proceeding is the question of whether White (or Charlesworth) paid part or all of the alleged purchase price for the Property to Woodward. On that basis alone, I would think that Woodward’s bank statements are relevant.
In relation to Contested Category 2, Woodward says that the Bank of Queensland statements are relevant as White claims that they confirm payments of money alleged to have been made into Woodward’s bank account. It is therefore difficult to see how these documents are not relevant.
Of Contested Category 4, Woodward says that the document is likely to be relevant to Charlesworth’s credit and that he cannot say whether it may go to matters which are in dispute in the proceeding, since he has not seen it. He submits that where White has already discovered the document, its relevance should be assumed. For the reasons set out below, I am not prepared to go behind the assessment of relevance made by White and her solicitors at the time of preparing the Discovery Affidavit. Therefore, I accept Woodward’s submissions in this regard.
It was not entirely clear whether White’s contention that production should be refused on the grounds of relevance and/or admissibility was based on the submission summarised in paragraph 33 above, or whether it was a submission made without reference to the implied undertaking.
If it was the former, then it seems to be a submission that the Court ought not exercise its discretion to order the production of documents without considering the factors which a Court would take into account when considering whether to release a party from the implied undertaking.
It is important to bear in mind that in Boral v CFMEU (and the authorities canvassed therein), discussion about the implied undertaking arose in the context of the court considering whether to exercise its discretion to order discovery. That is different to the situation here, where discovery of the documents has already occurred, and it is production/inspection of them which is resisted. Therefore, for the purposes of the Summons, those cases are of limited utility to White in this regard and I reject the submission.
If White’s submission was made without reference to the implied undertaking, then I do not accept that factors such as relevance or admissibility are ones which should be taken into account when considering whether to order production/inspection of the documents in the Contested Categories. The documents have been discovered and they are not subject to any privilege claims or other recognised bases upon which to resist production/inspection.
As stated in Civil Procedure Victoria:[28]
The general rule is that the party giving discovery of documents must produce for inspection by the other side every document stated in the party’s affidavit of documents as being in his or her possession to which the party does not object to produce on the ground of privilege.
[28]Williams, Civil Procedure Victoria, [I29.01.355], referring to Anderson v Bank of British Columbia (1876) 2 Ch D 644, 656; Jones v Great Central Railway Co [1910] AC 4; Brown v R [1911] VLR 159, 160.
Having held that White cannot claim ‘privilege’ (being the implied undertaking) in respect of the Contested Categories, this general rule applies.
Questions such as relevance arise when determining whether the documents are discoverable (and later, admissible). There is no authority to which I was taken which stands for the proposition that even though the documents have been discovered, asserted irrelevance by the party making discovery is a basis upon which to resist production/inspection. I see no reason at all to go behind the fact that the documents in the Contested Categories have been discovered: presumably, the person(s) who reviewed them when preparing the Discovery Affidavit made a decision that they were relevant to matters in issue in the proceeding, or else they would not have discovered them. There was no evidence before the Court disputing that position or stating that there had been an error in making discovery of those documents.
In the circumstances of this case, I do not accept White’s submissions and there is no reason why production/inspection should not occur.
For completeness, I will note that had I determined that relevance was available to White as a ground for resisting production, I would still have ordered production of the documents in the Contested Categories, for the reasons set out above.
If the documents in the Contested Categories are produced, is there any restriction upon their use, as a consequence of the implied undertaking to the WA Court?
As noted above, at the hearing on 18 May 2018, White’s counsel appeared to concede that the documents had to be produced, but submitted that they could not be used, by White or by Woodward, without first obtaining a release from the WA Court from the implied undertaking.
Woodward rejected this submission.
In Boral v CFMEU, Bell J rejected the CFMEU’s submission that if it was ordered to discover the documents which were the subject of the implied undertaking to the Federal Court, then Boral would be bound by the undertaking which the CFMEU owes to the Federal Court. Rather, his Honour said, ‘Boral would be bound by an undertaking to this court to use [the documents] only for the purpose of the proceeding in this court.’[29]
[29][2015] VSC 352 [21].
Therefore, White’s submission in this regard should be rejected. It is inconsistent with the widely held principle that the implied undertaking given to one court yields to the compulsory/curial processes of another court or to that court in another proceeding. Those authorities make no relevant distinction between discovery, production/inspection, and use.
I recognise that Bell J’s statement in Boral v CFMEU, as set out in paragraph 62 above, applies to Boral’s use of the documents and does not say anything about the CFMEU’s use of the documents in the Supreme Court proceeding. However, it seems to me that if the documents are discovered by a party in the second proceeding pursuant to an order, then there is no restriction on their use by any party in that proceeding (other than the restrictions that the implied undertaking then owed to the second court would require, in the ordinary course). To view it otherwise would be absurd and would result in an unfairness between the parties. I mention this to make it clear that neither White nor Woodward are restricted in their use of the documents for the purposes of this proceeding upon them being discovered in this proceeding. Obviously, the implied undertaking to this Court would apply.
Conclusion
Accordingly, I will make orders that White produce for Woodward’s inspection the documents in the Contested Categories.
I will hear from the parties as to the form of orders and as to costs.
SCHEDULE OF PARTIES
S CI 2017 00001
BETWEEN:
| NOLA WHITE | Plaintiff |
| - and - | |
| WILLIAM ROY WOODWARD | First Defendant |
| THE REGISTRAR OF TITLES | Second Defendant |
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