Williams v TT-Line
[2021] VSC 150
•30 March 2021
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMERCIAL COURT ADMIRALTY LIST | Not Restricted |
S ECI 2018 0998
| ANDREW MICHAEL WILLIAMS & ORS | Plaintiffs |
| v | |
| TT-LINE COMPANY PTY LTD (ACN 061 996 174) & ANOR | Defendants |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 30 March 2021 |
CASE MAY BE CITED AS: | Williams v TT-Line |
MEDIUM NEUTRAL CITATION: | [2021] VSC 150 |
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PRACTICE AND PROCEDURE – Application pursuant to s 27(3)(b) of the Civil Procedure Act 2010 (Vic) – Release of obligation imposed in respect of documents provided under compulsion of discovery – Requirement for special circumstances - Application granted.
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The Papers:
First plaintiff’s material
Submissions dated 16 March 2021
Reply Submissions dated 19 March 2021
Affidavit of Shane Ryan sworn 25 February 2021 and exhibits
Affidavit of Stuart Wright sworn 19 March 2021
First Defendant’s material
Submissions dated 16 March 2021
Supplementary Submissions dated 18 March 2021
Affidavit of James Morrison sworn 16 March 2021 and exhibits
Second Defendant’s material
Submissions dated 18 March 2021
HIS HONOUR:
This Ruling concerns the application of the first plaintiff, Andrew Williams, (Williams) by Summons filed 10 March 2021 for leave of the Supreme Court of Victoria (the Court) under s 27(3)(b) of the Civil Procedure Act 2010 (Vic) (CPA) releasing him from the obligation imposed under s 27(1) in respect of the documents listed in Schedule 1 to the Summons[1] (the Schedule 1 documents).
[1]Summons filed 10 March 2021, sch 1.
Subsequent, to the issue of the first plaintiff’s application of 10 March 2021, Williams has:
(a) abandoned his application in relation to documents 1 and 2 of Schedule 1; and
(b) concedes in respect of documents 7 and 8 of Schedule 1 that, insofar as those documents contain third party details there should be redaction before disclosure.
(c) by his Reply Submissions dated 19 March 2021 (Williams Reply Submissions) Williams concedes that document 4 has been partly reproduced in the prosecution brief.[2]
[2]It appears that the relevant document in question here is probably not document 14, but document 4 (see Affidavit of James Morrison, 16 March 2021 (Morrison Affidavit), 16 March 2021, [15(iii)]). Refer also to Williams Reply Submissions, 19 March 2021 in which Williams submits ‘In respect of document 14 of Schedule 1, only a part of the document is contained in the prosecution brief: Morrison Affidavit, [15]. As such Williams continues to press for release of the whole document. If the Court is minded to grant Williams’ motion, the Court should make Order 1 of the NoM albeit excluding documents 1 and 2 of Schedule 1.’.
Section 27 of the CPA provides:
(1)A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.
(2)The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.
(3)A person—
(a)may agree in writing to the use of information or documents otherwise protected under subsection (1); or
(b)may be released from the obligation imposed under subsection (1) by leave of the court.
(4)Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.
(5)Nothing in this section limits any other undertaking to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding.
Section 26 of the CPA relevantly provides:
(1)Subject to subsection (3), a person to whom the overarching obligations apply must disclose to each party the existence of all documents that are, or have been, in that person's possession, custody or control—
(a)of which the person is aware; and
(b)which the person considers, or ought reasonably consider, are critical to the resolution of the dispute.
…
Williams seeks leave under s 27(3)(b) of the CPA in respect of the identified Schedule 1 documents (set out at [6] below) for the purpose of providing those documents to an expert in order for that expert to provide evidence as part of Williams’ defence to the related criminal proceeding brought against him in the Magistrates’ Court of Tasmania by the Director of Biosecurity Operations, Biosecurity Tasmania (the Criminal Proceeding). Williams seeks orders in the following terms:[3]
1.Pursuant to s27(3)(b) of the Civil Procedure Act 2010 (Vic) (CPA), the First Plaintiff is released from the obligation imposed under s 27(1) of the CPA in order to use the documents listed in Schedule 1 and produced by the First Defendant by way of discovery in these proceedings for the purposes of providing those documents to an expert to provide expert evidence as part of First Plaintiff’s evidence in his defence of the criminal case in the Magistrates’ Court of Tasmania brought against him by the Director of Biosecurity Operations, Biosecurity Tasmania (proceedings 90841/19).
2.Such further or other orders as the Court deems fit.
[3]Summons filed 10 March 2021.
The relevant Schedule 1 documents now sought by Williams are:
Discovered document
Relevant Affidavit of Documents
Document number in relevant Affidavit of Documents
1
Colour map of Deck 3 of the vessel
The first plaintiff abandoned his application in relation to document 1.
26.03.19 Affidavit
26
2
TT-Line e-ticket for Mr Andrew Williams for departure on 28 January 2018.
The first plaintiff abandoned his application in relation to document 2.
26.03.19 Affidavit
21 (page 21 of email chain)
3
Spirit of Tasmania Bridge Movement Book at departure from Devonport on 28 January 2018 and arrival in Melbourne on 29 January 2018.
26.03.19 Affidavit
32
4
TT-Line’s ‘Policy – Horse Trailer/Trucks (including Horse Floats) Conditions of Carriage for Horses in Horse Trucks, Horse Trailers and Horse Floats’.
The first plaintiff concedes that part of this document is contained in the Prosecution Brief
26.03.19 Affidavit
29
5
TT-Line Garage Deck Ventilation Policy dated 9 May 2017.
29.10.19 Affidavit
4 (page 47 of the Vessel Operations Manual)
6
TT-Line Garage deck Inspection Requirement at Sea Policy dated 14 November 2016.
26.03.19 Affidavit
9
7
Email from Paul Davis/TT-Line to Captain Stuart Michael/TT-Line and Bernard Dwyer/TT-Line dated 7 January 2019.
The first plaintiff concedes that insofar as the documents contain third party details they should be redacted before disclosure.
29.10.19 Affidavit
39
8
Email from Captain Stuart Michael/TT-Line to Master and Chief Officer of SPOT1 regarding 2019 polo floats dated 10 January 2019.
The first plaintiff concedes that insofar as the documents contain third party details they should be redacted before disclosure.
29.10.19 Affidavit
40
9
Email chain with last message from Captain Stuart Michael/TT-Line to Paul Davis/TT-Line dated 11 January 2019.
29.10.19 Affidavit
41
10
Memo from Captain Stuart Michael/TT-Line to all seagoing personnel regarding access to vehicle decks dated 8 January 2019.
29.10.19 Affidavit
42
11
Spirit of Tasmania 1 Stowage Plan for voyage 3334STH dated 14 January 2019.
29.10.19 Affidavit
43
12
SPOT1 Stowage Plan for voyage 3339N dated 20 January 2019.
29.10.19 Affidavit
44
13
Final Stowage Plan for voyage 3340N dated 21 January 2019.
29.10.19 Affidavit
45
14
Animal Welfare Manual.
22.08.19 Affidavit
41
Williams’ application for leave is opposed by the first defendant, TT-Line Company Pty Ltd, (TT-Line). TT-Line seeks to have the application dismissed, with costs against Williams.
The second defendant, QUBE Ports Pty Ltd, (QUBE) (who provides stevedoring services for TT-Line in Victoria and Tasmania) neither consents to nor opposes the application.[4]
[4]QUBE Submissions, 18 March 2021 (QUBE Submissions), [1].
Background
On 28 January 2018, thirty horses belonging to the plaintiffs were transported on board the vessel Spirit of Tasmania 1 (vessel) owned by TT-Line from Devonport in the State of Tasmania to Melbourne in the State of Victoria. It is alleged by the plaintiffs that sixteen of those horses perished in transit between Tasmania and Victoria.
Eighteen horses were in a prime mover with registration number ‘CE96CK’ towing a trailer with registration number ‘TA27PF’ (CE96CK vehicle) and twelve horses were in a motor vehicle registration number ‘AM38VY’ (AM38VY vehicle). All the horses which perished were travelling in the CE96CK vehicle.
In the Fourth Amended Statement of Claim dated 30 January 2020, filed in this proceeding in the Admiralty List of this Court, the plaintiffs allege that the deceased horses died during their voyage across Bass Strait between the time of those horses boarding the vessel in Devonport on 28 January 2018 and about 2:00am the following day, 29 January 2018.
The plaintiffs allege that the death of the horses was caused or contributed to by the negligence of TT-Line and QUBE in the provision of transportation services by TT-Line across the Bass Strait, between Tasmania and Victoria.
The plaintiffs allege that TT-Line engaged in conduct in contravention of the Australian Consumer Law[5] including by engaging in misleading and deceptive conduct and various breaches of consumer guarantees.
[5]Competition and Consumer Act 2010 (Cth) sch 2 (Australian Consumer Law), particularly ss 18, 29(1)(a), 60 and 61.
The plaintiffs further allege that TT-Line did not deliver the horses in good order and condition as required by its duty as bailee of the horses.
The plaintiffs seek damages of $639,000 for the loss of the sixteen horses and $100,000 for loss of profit and wages.
The Admiralty List proceeding in this Court commenced by way of Writ filed on 24 August 2018.
It is uncontroversial that the subject Schedule 1 documents were produced by TT-Line in the course of compulsory discovery in the proceedings in this Court.
The subject documents have not yet been entered into evidence, and the Admiralty List proceeding is presently pending hearing and has not yet been set down for trial.
The separate Criminal Proceeding
On or about 7 June 2019, Williams was charged by the Director of Biosecurity Operations, Biosecurity Tasmania (Biosecurity Tasmania) with seventeen criminal offences. These charges include, one Charge brought pursuant to s 7 of the Animal Welfare Act (Tas) (Animal Welfare Act) (Charge 1) and sixteen Charges brought pursuant to reg 34(6) of the Animal Welfare (Land Transport of Livestock) Regulations 2013 (Tas). Each Charge arises in relation to the transportation of the horses departing Devonport, Tasmania on 28 January 2018 in the CE96CK vehicle, the subject of this proceeding.
TT-Line has also been charged with offences arising out of the death of the horses. Additionally, Charges in relation to the unharmed horses have also been laid against the horse float driver of the AM38VY vehicle.
Animal Welfare Act - Particulars of Charge 1 against the first plaintiff
In the said Criminal Proceeding, Biosecurity Tasmania alleges that the method of management of the horses by Williams contravened s 7 of the Animal Welfare Act in that, on or about 28 January 2018, having care or charge of a group of animals, namely eighteen horses, Williams transported those horses in the CE96CK vehicle from Barnbougle (near Bridport in Tasmania) to Devonport in Tasmania and then onward to Yarra Glen in Victoria using a method of management reasonably likely to result in unreasonable and unjustifiable pain and suffering to the animal or animals in the group, namely that the horses were exposed to the risk of acute heat stress and asphyxiation due to suffocation in the confined space of the CE96CK unit.
The further particulars of Charge 1 under the Animal Welfare Act are:
(a)loading the horses in the transport and trailer unit 2 per stall;
(b)using a transport and trailer unit where the ventilation vents were of inadequate size, allocation and placement to enable and encourage the escape of hot air from the trailer;
(c)using a transport and transport unit that prevented adequate monitoring of the horses; and
(d)checking the horses an hour following disembarkation.
The Criminal Proceeding is listed for hearing in the Magistrates’ Court of Tasmania on 15 June 2021.
The first plaintiff’s submissions
By way of submissions dated 16 March 2021 (Williams Submissions) Williams submits that ‘special circumstances’ exist in the present case to warrant the Court exercising its discretion under s 27(3) of the CPA to grant him release from the obligation under s 27(1) in respect of the identified Schedule 1 documents for the purposes identified in the Summons dated 10 March 2021 (being to provide those documents to Dr Des Leadon, Head of Clinical Pathology Unit, Irish Equine Centre in Ireland for the purposes of briefing Dr Leadon to prepare an expert report on the cause of death of the horses) in circumstances where:
(a) the subject documents are business records of TT-Line, and either pre-existed the commencement of these proceedings or are in any event relevant and not privileged;
(b) the documents are relevant and likely to be of considerable assistance to Williams’ defence in the Criminal Proceeding;
(c) there is an overlap between this proceeding and the Criminal Proceeding as to the cause of death of the horses. In the Criminal Proceeding, Williams seeks to defend Charge 1 by relying on the evidence of Dr Leadon to opine on TT-Line’s responsibility for the cause of death so as to demonstrate that Williams did not have care and charge of the horses during the voyage such that Williams did not engage in the conduct described in Charge 1;
(d) the documents are likely to be significant in contributing to the achievement of justice in the Criminal Proceeding insofar as they may allow Williams to advance a defence to a Charge carrying serious consequences, including a possible custodial term if found guilty, and may assist Williams to procure expert evidence that may exonerate him;
(e) Williams submits that it is an important feature of a criminal trial that the accused may assemble a defence which may include calling all possible evidence in answer to a criminal charge;[6]
(f) any expert evidence that Williams wishes to rely upon in the Criminal Proceeding, should be filed and served by the end of April 2021.[7]
[6]HML v the Queen; the Queen; OAE v the Queen (2008) 235 CLR 334, [57].
[7]Williams Submissions, [10]; Affidavit of Shane Ryan, 25 February 2021 (Ryan Affidavit), [20].
The first defendant’s submissions
By way of submissions dated 16 March 2021 (TT-Line Submissions) and supplementary submissions dated 18 March 2021 (TT-Line Supplementary Submissions) TT-Line submits that the Court ought not be satisfied on the material before it that any relevant ‘special circumstances’ exist to justify Williams’ release from the obligation set out in s 27(1) of the CPA in respect of the Schedule 1 documents because:[8]
[8]See generally: TT-Line Submissions, 16 March 2021, [4]-[6] and Morrison Affidavit. See also, TT-Line Supplementary Submissions, 18 March 2021, [1]-[7].
(a) while there may be factual overlap between these proceedings and the relevant Criminal Proceeding, that alone is not sufficient to relieve Williams of the need to satisfy that ‘special circumstances’ exist to justify the grant of leave. Williams must demonstrate that the Schedule 1 documents are likely to contribute to the achievement of justice in the Criminal Proceeding and has not done so;[9]
[9]TT-Line Supplementary Submissions, [1].
(b) there is no evidence of Dr Leadon’s area of expertise with which the Court may interrogate how the subject documents might assist the application of such expertise;[10]
[10]Ibid [2].
(c) save for broad assertions that the documents are important to advancing Williams’ defence to Charge 1, Williams has not demonstrated with any precision how each Schedule 1 document is relevant to matters about which Dr Leadon is qualified to express an opinion. This can be contrasted to the position in Fotopoulos v Commonwealth Bank of Australia[11] (Fotopoulos) where leave was sought and granted on the specific basis of enabling witnesses in a criminal proceeding to be cross-examined on their affidavits sworn in the related civil proceeding and statements made in pleadings;[12]
[11][2017] VSC 461, [8].
[12]TT-Line Supplementary Submissions, [3].
(d) Williams asserts Dr Leadon will provide an opinion on the cause of death of the horses – it is unclear how the Schedule 1 documents would be of assistance in this respect, or if and how such expert evidence would be compromised without access to the documents;[13]
[13]Ibid [4].
(e) Williams asserts Dr Leadon will opine on TT-Line’s responsibility for the cause of death of the horses so as to demonstrate that Williams did not have care and charge of the horses for the purposes of s 7 of the Animal Welfare Act. Questions concerning care and charge of the horses will be determined by reference to s 3A of the Animal Welfare Act. It is not explained how this is a matter for an expert to opine on.[14] Section 3A of the Animal Welfare Act provides:
[14]Ibid [5].
3A. Care or charge of animals
(1) For the purposes of this Act, a person is taken to have the care or charge of an animal if the person –
(a)is the owner of the animal; or
(b)has control, possession or custody of the animal; or
(c)is the operator or manager of the premises where the animal is held for commercial purposes; or
(d)is the owner, operator or manager of the land where the animal is being agisted, unless there is a written agreement to the contrary between the owner of the land and the owner of the animal; or
(e)has a share, as a share farmer, in the business in which the animal is owned or farmed; or
(f)is the chief executive officer or manager (by whatever title known), or a director, of a body corporate that owns the animal.
(2) One or more persons may have the care or charge of an animal.
(3) For the purposes of proceedings for an offence against this Act:
(a)the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of his or her actual, usual or ostensible authority will be imputed to the body corporate; and
(b)the conduct and state of mind of an employee or agent of a natural person acting within the scope of his or her actual, usual or ostensible authority will be imputed to that person.
(4)For the purposes of subsection (3) , a reference to ‘conduct’ or ‘acting’ includes a reference to failure to act.
TT-Line further submits that in circumstances where Williams seeks to use documents provided by TT-Line under compulsory disclosure obligations in the civil proceeding to run a ‘cut-throat’ defence in the Criminal Proceeding by adducing evidence to demonstrate that Williams was not the person who had care and charge of the horses at the relevant time, and it was instead the conduct of TT-Line that caused the death of the horses,[15] the obvious prejudice to TT-Line, who itself is subject to serious criminal charges, requires that the Court be satisfied that the documents sought to be released will be put to a legitimate forensic purpose before acceding to Williams’ application.[16]
[15]See Ryan Affidavit, [23].
[16]TT-Line Supplementary Submissions, [6(a)].
In relation to the particular Schedule 1 documents to which the application relates, TT-Line further submits:
(a) documents 1, 2 and 4 (in whole or in part) are already available to Williams, being included as part of the prosecution brief in the Criminal Proceeding.[17] A release in respect of these documents is unnecessary;
(b) not all of the subject documents existed prior to the commencement of the proceedings (contrary to the submission of Williams set out above at [24(a)]), documents 7 to 14 all post-date the proceedings and concern transport of livestock from 2019;[18]
(c) documents 7 and 8 include communications between TT-Line and a third party, including that third party’s contact information.[19]
[17]Ibid [5]; Morrison Affidavit, [14]-[15].
[18]Ibid [6(b)]; see also Morrison Affidavit, [16].
[19]Ibid [6(c)].
The second defendant’s submissions
In its submissions dated 18 March 2021 QUBE neither consents to nor opposes Williams’ application. QUBE notes that the subject application relates only to certain documents discovered in this proceeding by TT-Line, and says further that it maintains confidentiality in respect of documents discovered by QUBE in the proceeding and in any event there are presently no ‘special circumstances’ in relation to such QUBE documents.
QUBE reserves its rights should further application be made.[20]
[20]QUBE Submissions, [1]–[5].
The first plaintiff’s reply submissions
In his Reply Submissions Williams responds to the submissions of TT-Line as follows:
(a) Williams accepts that documents 1 and 2 are contained in the prosecution brief against Williams in the Criminal Proceeding (see [27(a)]) and no longer presses his application in respect of those documents, however continues to press his application in respect of the whole of document 4 which is only partially included in the prosecution brief;[21]
[21]Williams Reply Submissions, [2]; Note: Williams seemingly mistakenly submits that ‘document 14’ is only partially included in the prosecution brief. On the evidence of TT-Line it is document 4 that is partly reproduced in the prosecution brief: see Morrison Affidavit, [15(iii)].
(b) insofar as documents were created after the commencement of these proceedings (see [27(b)]) those documents were nonetheless not created for the purposes of the litigation and are relevant to the proceeding as evidenced by their discovery in the proceeding;[22]
[22]Ibid [3].
(c) third party details included in documents may be redacted before disclosure is made (see [27(c)]);[23]
[23]Ibid.
(d) the question for the Court in assessing whether special circumstance exist to justify the grant of leave under s 27(3)(b) of the CPA is similar to the legitimate forensic purpose test for the production of subpoenaed documents,[24] which purpose Williams has identified as being to provide those documents to Dr Leadon. The test is not whether the documents will form part of admissible evidence and accordingly it is not necessary for Williams to show Dr Leadon has necessary expertise, that is for determination in the Criminal Proceeding.
[24]Fotopoulos v Commonwealth Bank of Australia [2017] VSC 461, [39].
(e) Dr Leadon has particular expertise in the transportation of horses;[25]
[25]Affidavit of Stuart Wright, 19 March 2021 (Wright Affidavit), [3].
(f) Williams has identified the matters about which Dr Leadon will seek to give evidence, relevantly that the cause of harm to the horses was not Williams’ conduct but the conduct of TT-Line by reason of its policies and procedures relating to the transport of animals on the vessel and passenger access to the deck on which the horses were travelling – such identified purposes being more detailed than that identified by the applicant in Fotopoulos[26] (see [25(c)]). The subject documents will be used as part of Williams’ defence by way of Dr Leadon’s evidence on the matters described, and the documents are relevant to the same enquiry in these proceedings where the role of TT-Line in the death of the horses is also at issue;
[26][2017] VSC 461, [8].
(g) it is not the point whether Williams intends to run a ‘cut-throat’ defence (see [25]), Williams is entitled to run whatever defence is arguable in answer to the Charge;
(h) TT-Line is not a co-accused but defendant in a separate criminal proceeding, and, being a corporate defendant, does not face the prospect of a term of imprisonment if found guilty;[27]
(i) the prosecution must prove its case against TT-Line and cannot use evidence called by Williams in the Criminal Proceeding in its case against TT-Line. While the prosecution may derive a forensic advantage from the evidence Williams calls, that speculative and hypothetical prejudice is no reason to deny Williams the opportunity to run his defence as described;[28]
(j) the alleged risk to TT-Line is illusory in circumstance where, were Williams to issue a subpoena to TT-Line to produce all documents relating to its policies and procedures regarding the welfare of animals on board the vessel and passenger access to the relevant deck, TT-Line could not resist production and would be in the same position as if leave had been granted under s 27(3)(b) of the CPA. Any documents produced in answer to such subpoena, which can reasonably be assumed would include the Schedule 1 documents, could then be provided to Dr Leadon for the purpose of the expert report.[29]
[27]Williams Reply Submissions, [7].
[28]Ibid [8].
[29]Ibid [9].
Legal principles
Section 27(1) of the CPA imposes an obligation upon any person to whom the overarching obligations apply and who receives information or documents provided by another person in a civil proceeding as a result of disclosure made in accordance with s 26 of the CPA, not to use the information or documents other than in connection with the civil proceeding in which the information or documents were produced.
This obligation is the statutory equivalent of the common law obligation in the nature of an implied undertaking to the Court pursuant to which documents are produced, commonly referred to as the ‘Harman undertaking’, see Harman v Secretary of State for Home Affairs,[30] and recognised in Australia in Hearne v Street.[31]
[30][1983] 1 AC 280.
[31](2008) 235 CLR 125.
In considering whether to make an order under s 27(3)(b) of the CPA releasing a party from its obligation under s 27(1), the Court will generally be guided by principles developed in relation to granting release from a common law undertaking.[32]
[32]Barrow v McLearnon [2012] VSC 134, [23]. See also Perez v Reynolds & Anor (Ruling No 2) [2020] VSC 298, [6]; Moodie v Perna (Ruling No 1) [2018] VSC 158, [8]; Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking) [2017] VSC 735, [15].
Both Williams and TT-Line rely on the Federal Court of Australia decision in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[33] (Springfield Nominees) as authority for the proposition that there must be ‘special circumstances’ which afford good reason for releasing a party from its obligation under s 27(1) of the CPA.
[33](1992) 38 FCR 217. See Williams Submissions, [7]; TT-Line Submissions, [2]; TT-Line Supplementary Submissions, [7].
Accordingly, the Court will exercise its discretion to release a party from the obligation not to disclose or use documents for purposes other than the proceedings in which they are produced or disclosed where ‘special circumstances’ are sufficiently identified.[34]
[34]Hearne v Street (2008) 235 CLR 125, [107].
In describing such ‘special circumstances’ in Springfield Nominees, Wilcox J observed that it was neither possible nor desirable to state an exhaustive list of matters that might justify the grant of release from the obligation under s 27(1), stating that:[35]
For ‘special circumstances’ to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[35](1992) 38 FCR 217, 225.
Considerations
It is uncontroversial that both Williams and TT-Line are parties to the substantive civil proceedings to whom the overarching obligations set out in the CPA apply, and are required to comply with the overarching obligations including the compulsory disclosure requirement in s 26 of the CPA.[36]
[36]Civil Procedure Act 2010 (Vic), s 10(1)(a).
It is uncontested that the documents listed in Schedule 1 above have come into Williams’ possession as a result of being produced under compulsion of discovery by TT-Line and that Williams now seeks to use those documents in relation to the conduct of its defence in the abovementioned Tasmanian Criminal Proceeding.
There also appears to be no contest that:
(a) the subject documents are business records of TT-Line;
(b) the documents are relevant to these proceedings;
(c) there is an overlap between these proceedings and the Criminal Proceeding as to the cause of death of the horses. In the Criminal Proceeding, Williams seeks to defend Charge 1 by relying on the evidence of Dr Leadon to opine on TT-Line’s responsibility for the cause of death so as to demonstrate that Williams did not have care and charge of the horses during the voyage such that Williams did not engage in the conduct described in Charge 1;
(d) it is trite that in a criminal trial the accused may assemble a defence which may include calling all possible evidence in answer to a criminal charge.[37]
[37]HML v the Queen; the Queen; OAE v the Queen (2008) 235 CLR 334, [57].
There is some urgency associated with this application because, as earlier noted, on Williams’ case (which is not rebutted by TT-Line) any expert evidence that Williams wishes to rely upon in the relevant Tasmanian Criminal Proceeding, should be filed and served by the end of April 2021.
In Williams’ Reply Submissions, Williams accepts that documents 1 and 2 of Schedule 1 are contained in the prosecution criminal brief against Williams, and for that reason Williams does not press the release of documents 1 and 2.
In relation to document 4 in Schedule 1[38] Williams acknowledges that part of the document sought is contained in the prosecution brief however continues to press for release of the whole of the document.
[38]Note: Williams makes this submission in relation to document 14, however on the evidence of TT-Line it is document 4 that is partly reproduced in the prosecution brief: see Morrison Affidavit, [15(iii)].
Williams also concedes in respect of documents 7 and 8 of Schedule 1 that, insofar as those documents contain third party details, that part of the documents sought should be redacted before disclosure.
Although it is conceded by Williams that not all of the documents sought existed before the proceedings were commenced, I accept that it appears none of the documents are said to be privileged, and further because they have been discovered in these proceedings I also accept that such documents are relevant to these proceedings.
I accept that it is sufficient in relation to this application that the documents sought to be released will fulfil a legitimate forensic purpose in assisting in the process of Williams obtaining an expert report in relation to the cause of death of the horses to rebut Charge 1.
It follows in my view that special circumstances exist here because there is good reason to release the documents sought by this application because such documents will probably contribute to achieving justice in the Criminal Proceeding[39] because these documents are likely to assist Williams in retaining Dr Leadon and also assist that expert witness to produce his expert report.
[39]Fotopoulos v Commonwealth Bank of Australia [2017] VSC 461, [39].
I also accept as clearly established, that Dr Leadon has relevant expertise and in particular is an expert in relation to the transportation of horses.[40]
[40]Wright Affidavit, [3] and Ryan Affidavit, [22]-[24].
In this regard, I consider it to be sufficient for the purposes of this application that Williams has prima facie established that Dr Leadon considers that the documents listed in Schedule 1 may assist in advancing Williams’ defence[41] namely the cause of death of the horses, including by demonstrating that Williams did not have care and charge of the horses for the purposes of s 7 of the Animal Welfare Act, or otherwise, that Williams did not engage in the conduct described in Charge 1 and /or that TT-Line was in some way responsible for the cause of death of the horses. I do not consider it necessary for the purposes of this application that there be any more detailed explanation of how the Schedule 1 documents would assist the expert, or how Dr Leadon would be impaired in his work by not having access to them.
[41]Ryan Affidavit, [25]; Wright Affidavit, [2] and [3].
I am for these reason also satisfied that Williams has sufficiently identified the topics and matters in relation to which Dr Leadon will seek to give expert evidence. Principally, that the cause of harm to the horses was not as a result of Williams’ conduct but as a result of TT-Line’s conduct in turn caused by its policies and procedures relating to the transport of animals in its vessel and in regard to passenger access to the decks on which the horses were located for transport during transit.
It is sufficient in this application that Williams has established that the material in Schedule 1 may be of assistance to Williams in the defence of the subject criminal charges. Put another way, it is enough that the documents sought by Williams are cogently of possible assistance to Williams in relation to his defence of the pending criminal charges.
I am also satisfied that if not able to utilise the documents which Williams seeks to have released, Williams is likely to be prejudiced by the potential impairment that the absence of the documents sought is likely to have in relation to Dr Leadon’s proposed expert evidence and Williams defence in the Criminal Proceedings.
The potential prejudice to Williams of impairment to his defence of the Criminal Proceeding brought against him is in my view necessarily of great weight, especially given that custodial consequences may result.
It is significant that TT-Line is not a co-accused in Williams’ Criminal Proceeding but a separate defendant in a separate criminal proceeding. If evidence akin to Dr Leadon’s evidence was adduced by the prosecution in the Criminal Proceeding against TT-Line, the prosecution would nevertheless be required to prove its case against TT-Line and is unlikely to be able to use evidence in Williams’ case in the prosecution’s case against TT-Line. Further, TT-Line will have an opportunity to file evidence in rebuttal in its proceedings.
Further, I accept Williams’ submission that because it is likely that he could issue a subpoena to TT-Line in the Criminal Proceeding to produce all documents relating to policies and procedures regarding the welfare of the animals transited, TT-Line would be in the same position as if leave to use the documents sought to be released from the undertaking were granted to Williams.
I am satisfied that the prejudice which TT-Line seeks to identify in this application is of significantly lesser weight because I accept Williams’ submission that it is largely based on speculative and hypothetical scenarios. In my view, given the nature of the potential prejudice to Williams, his prejudice decisively outweighs that of TT-Line in particular because it is based on the very serious prejudice Williams alluded to above if he is deprived of the a full opportunity to conduct his defence to the Criminal Proceedings, as best he can, assisted by access to necessary materials, namely a custodial sentence.
I do not accept TT-Line’s submission that Williams, by adducing evidence to demonstrate that he was not the person who had care and charge of the horses at the relevant time and that it was the conduct of TT-Line that caused the death of the horses, would result in ‘obvious prejudice’ to TT-Line which is itself the subject of serious criminal charges. However, in my view, even accepting possible prejudice of this nature to TT-Line, Williams’ prejudice is potentially greater because of the custodial nature of that prejudice.
For the above reasons I shall grant leave to Williams pursuant to s 27(3)(b) of the CPA to be relieved from the obligation referred to and imposed under s 27(1) in relation to the documents listed in Schedule 1 (amended to accord with Williams’ application as amended by Williams’ submissions) obtained by Williams pursuant to discovery in this proceeding.
Orders
Accordingly, in order that Williams may use the documents listed in Schedule 1 and produced by the first defendant by way of discovery in these proceedings for the purposes of providing those documents to an expert to provide expert evidence as part of the first plaintiff’s evidence in his defence of the criminal case in the Magistrates’ Court of Tasmania brought against him by the Director of Biosecurity Operations, Biosecurity Tasmania (proceedings 90841/19), I shall order that pursuant to s 27(3)(b) of the Civil Procedure Act 2010 (Vic), the first plaintiff is released from the obligation imposed under s 27(1) of the Civil Procedure Act 2010 (Vic) in respect of the below documents in Schedule 1:
Discovered document
Relevant Affidavit of Documents
Document number in relevant Affidavit of Documents
3
Spirit of Tasmania Bridge Movement Book at departure from Devonport on 28 January 2018 and arrival in Melbourne on 29 January 2018.
26.03.19 Affidavit
32
4
TT-Line’s ‘Policy – Horse Trailer/Trucks (including Horse Floats) Conditions of Carriage for Horses in Horse Trucks, Horse Trailers and Horse Floats’.
26.03.19 Affidavit
29
5
TT-Line Garage Deck Ventilation Policy dated 9 May 2017.
29.10.19 Affidavit
4 (page 47 of the Vessel Operations Manual)
6
TT-Line Garage deck Inspection Requirement at Sea Policy dated 14 November 2016.
26.03.19 Affidavit
9
7
Email from Paul Davis/TT-Line to Captain Stuart Michael/TT-Line and Bernard Dwyer/TT-Line dated 7 January 2019, subject to the redaction of third party details (as attached to Ryan Legal’s email, 12 April 2021 [12:01pm]).
29.10.19 Affidavit
39
8
Email from Captain Stuart Michael/TT-Line to Master and Chief Officer of SPOT1 regarding 2019 polo floats dated 10 January 2019, subject to the redaction of third party details (as attached to Ryan Legal’s email, 12 April 2021 [12:01pm]).
29.10.19 Affidavit
40
9
Email chain with last message from Captain Stuart Michael/TT-Line to Paul Davis/TT-Line dated 11 January 2019.
29.10.19 Affidavit
41
10
Memo from Captain Stuart Michael/TT-Line to all seagoing personnel regarding access to vehicle decks dated 8 January 2019.
29.10.19 Affidavit
42
11
Spirit of Tasmania 1 Stowage Plan for voyage 3334STH dated 14 January 2019.
29.10.19 Affidavit
43
12
SPOT1 Stowage Plan for voyage 3339N dated 20 January 2019.
29.10.19 Affidavit
44
13
Final Stowage Plan for voyage 3340N dated 21 January 2019.
29.10.19 Affidavit
45
14
Animal Welfare Manual.
22.08.19 Affidavit
41
7
0