1 BUSS JA: The background facts relating to these proceedings for prerogative, declaratory and other relief are recounted in my reasons in Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources

1 BUSS JA: The background facts relating to these proceedings for prerogative, declaratory and other relief are recounted in my reasons in Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources - [2007] WASCA 60 - WASCA 2007 case summary — Zoe

Parties

Applicant/Plaintiff:

1 BUSS JA: The background facts relating to these proceedings for prerogative, declaratory and other relief are recounted in my reasons in Cazaly Iron Pty Ltd

Respondent/Defendant:

The Hon John Bowler MLA, Minister for Resources

Cases Cited (6)

1 BUSS JA: The background facts relating to these proceedings for prerogative, declaratory and other relief are recounted in my reasons in Cazaly Iron Pty Ltd v The Hon John Bowler MLA, Minister for Resources [2006] WASCA 282, which were published on 22 December 2006. It is unnecessary to repeat them.

8 A party who obtains discovery and inspection of documents, and the legal representatives of that party, impliedly undertake to the Court and the party giving discovery and inspection, that the documents in question will be used solely for the purpose of the litigation in which they are produced, and not for any collateral or improper purpose. The implied undertaking is required because "the public interest in privacy and confidence demands that this compulsion [to disclose documents on discovery] should not be pressed further than the course of justice requires" (Riddick v Thames Board Mills Ltd [1977] QB 881 at 896) and to encourage full and frank disclosure of those documents which are relevant to the litigation. See Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 per Hayne JA (with whom Winneke P and Phillips JA agreed) at 37 - 38; British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43; (2003) 8 VR 571 at 580 [20].

(a) The concern of the Court to promote and ensure open justice. See Russell v Russell (1976) 134 CLR 495 at 520; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 406.

(b) A party has a prima facie right, as a matter of procedural fairness, to inspect discovered documents for the purpose of ensuring that he or she is able properly to present his or her case at the trial or other hearing. See Hadid at 406.

(c) The effect, in the particular litigation, of the proposed restrictions upon a party's capacity properly to present his or her case. As Kiefel J noted in Index Group of Companies Pty Ltd v Nolan [2002] FCA 608 at [8], "much may turn upon what it is necessary for that party to prove or disprove". Similarly, it may be significant whether the litigation involves a dispute as to the facts or is confined to issues of law on facts which are agreed or not disputed.

(d) Whether an undertaking as to confidentiality is offered by the party seeking unrestricted or less restrictive access to the discovered documents.

(1976) 134 CLR 495

(2003) 8 VR 571

(1996) 70 FCR 403

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Cases Cited (6)