White v Woodward - [2018] VSC 335

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] VSC 335
Decision Date: 22 June 2018

CaseChat Overview and Summary

The dispute in White v Woodward was heard by the Supreme Court of Victoria. The plaintiff, White, sought the production of documents discovered in a prior proceeding between the defendant, Woodward, and a third party. Woodward argued that the documents were subject to an implied undertaking, restricting their use to the prior proceeding, and therefore should not be produced in the current case. The court had to determine whether it could order the production of these documents and if there were any restrictions on their use in the current proceeding.

The central legal issue was whether the court could compel the production of documents discovered in a separate proceeding, which were subject to an implied undertaking limiting their use to that proceeding. The court needed to consider whether the implied undertaking placed any restrictions on the use of the documents in the current proceeding. The relevant authorities, including Hearne v Street, Esso Australia Resources Ltd v Plowman, Cadbury Schweppes Pty Ltd v Amcor Limited, and Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union, were examined to understand the scope of the implied undertaking.

The Supreme Court of Victoria held that the court could order the production of the documents, despite the implied undertaking. The court found that the implied undertaking did not restrict the use of the documents in the current proceeding, as the documents were not confidential in the sense required by the undertaking. The court emphasised that the undertaking was specific to the prior proceeding and did not extend to other proceedings where the documents might be relevant. Consequently, the court ruled in favour of the plaintiff, ordering the production of the documents.

The final orders of the court were that the documents discovered in the prior proceeding between Woodward and the third party were to be produced to White. The court clarified that the implied undertaking did not impose any restrictions on the use of these documents in the current proceeding, thereby allowing their production as requested.

Orders