Australian Trade Commission v McMahon (1997) 73 FCR 211

Home Office v Harman [1982] 1 All ER 532

Riddick v Thames Board Mills Limited [1977] 3 All ER 677

Springfield Nominees Pty Ltd v Bridgelands Securities Limited (1992) 110 ALR 685

1 MASTER SANDERSON: This is the plaintiff's application for leave to use a document discovered in these proceedings in other proceedings currently on foot. It is a longstanding rule of practice that when discovery is given, a party or his solicitor must not make use of the documents discovered for any purpose than the conduct of the action in which discovery is given. The undertaking is owed both to the other party or parties to the proceedings who gave discovery and to the court: see Esso Australia Resources Ltd v Plowman (1995) 193 CLR 10 per Mason CJ at 32 - 33; Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 per Pidgeon J at 321. A party seeking modification of the implied undertaking must demonstrate cogent and persuasive reasons why that should occur: see Crest Homes v Marks [1987] 2 All ER 1074 per Lord Oliver at 1082. Neither party disagreed with these basic principles. The question in this application was whether the circumstances were such as to warrant releasing the plaintiff from his implied undertaking.

2 This action is brought against the defendant as the arm of government responsible for education within the State and, in the context of this action, the plaintiff's employer. The facts of this present case are not relevant to this application. It is enough to say that the plaintiff's action against the defendant alleges breach of the contract of his employment. The plaintiff has also issued a separate action against Colin James Barnett ("Barnett") who is presently the Minister for Education. Because of the provisions of s 47A of the Limitation Act the plaintiff needs leave of the court to proceed against Barnett. The action he has launched seeks that leave. The application itself was called on for hearing on 9 December 1999 and stands part heard. (This action is CIV 2059 of 1999. I will refer to it as "the leave application".)

3 The action the plaintiff seeks leave to institute against Barnett alleges misfeasance in public office as a result of the manner of the exercise by Barnett of a statutory power of appeal. The strength of the plaintiff's case against Barnett is a factor to be considered in the exercise of the discretion conferred upon the court under s 47A. It is alleged by the plaintiff that Barnett was influenced in his decision on the appeal by another party. Of crucial importance is a letter which was written to the plaintiff by Barnett on 31 December 1998. The precise contents of the letter are not important. In the context of the leave application, it was submitted by the plaintiff that this letter, although signed by Barnett, was in all probability drafted by the Education Department. When this submission was put by counsel during the leave application it drew an objection from Barnett's counsel. During the course of his submissions on the leave application, counsel for Barnett referred to the letter and said:

"That is said to suggest that the letter in fact was written from someone from the Education Department and that is said in turn to indicate that the Minister has involved himself in a serious intentional abuse of his office ... .

Now, I don't know from reading that letter where the plaintiff's solicitors could possibly come to the conclusion that in fact someone from the Education Department had drafted the letter signed by the Minister. It's, in my submission, mere speculation and that's the kind of thing which marks this letter; that there is very little actual evidence in it or anything tending towards evidence. What there is is rash and rank speculation."

4 It is inappropriate that I detail precisely what it is about the letter discovered in these proceedings which is relevant to the leave proceedings. But two points can be made without disclosing the contents of the discovered document. First, there is no doubt that it is highly relevant to the matters in issue between the parties in the leave application. Secondly, use of the document in the leave application might well assist the plaintiff's case. Counsel for the defendant did not take issue with either of these two points.

5 Counsel for the plaintiff pointed to a number of factors which he submitted in the circumstances made it appropriate to release the plaintiff's solicitors to a limited extent from their undertaking. First, it was said the plaintiff only intends to use the discovered document in the leave application. It was not intended for use in any wider purpose. Following on from that point, if leave were to be granted to the plaintiff to commence action against Barnett, then, in the ordinary course, discovery would be given by the parties and the letter in question would presumably be discovered. It could then be used in those proceedings. It would not then be a matter of the letter discovered in these proceedings being used in the proceedings against Barnett. Any use made of the letter would be in the context of its being discovered in other proceedings.

6 Secondly, it was said that there is commonality of fact between this action and the leave application. It is said that this is all part of a wider dispute to do with the plaintiff's employment. If leave is granted to take action against Barnett, this action and the action against Barnett will probably be tried together. It is nonetheless the case that there are two separate actions. It must be recognised that the plaintiff is seeking to use a document discovered in these proceedings in relation to a separate action against a separate party.

7 Thirdly, it is said that the plaintiff in this action and in the leave application is represented by the same solicitors. Moreover, the defendant in this action and the defendant in the leave application are also represented by the same solicitors. There is then an element of the "Chinese Wall" about the inability to use the document in the leave application.

8 Fourthly, it is said that the defendant in these proceedings will not suffer any prejudice if the document is used in the leave application. Rather, it is said, the true position will be put before the court and the interests of justice would be served by leave being granted.

9 The defendant, for its part, relied stubbornly on the implied undertaking. Counsel for the defendant did not take issue with any of the matters raised by the plaintiff. In particular, counsel did not suggest that any prejudice would arise to the defendant in these proceedings. Rather, it was said that the grant of leave required special circumstances and this case did not fall into that category. Counsel accepted, with some reluctance, what he described as the "extremely relaxed test" of Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 103 ALR 684, but submitted that the facts did not make this case one which was "out of the ordinary".

10 I am satisfied that in this case I ought grant the application. I have reached that conclusion for a number of reasons. First, I am satisfied that the facts giving rise to the application in this case take it out of the ordinary. The document in question is highly relevant to the matters at issue between the parties on the leave application. Counsel for the plaintiff submitted that it was not the only document which supported the plaintiff's position on the leave application but it was nonetheless important. Counsel for the defendant submitted that there were no other documents which supported the plaintiff's position and without the discovered document the application was likely to fail. Accepting that latter submission seems to me to reinforce the importance of the discovered document and take the application out of the ordinary.

11 But even if that is not the case it seems to me that the defendant has come dangerously close to misleading the court. I should say immediately that counsel for the defendant in his submissions has not misled the court - he has not said that the document supporting the plaintiff's position does not exist. What he did say is that the documents before the court did not support the plaintiff's position. He was entitled to make that submission. Nonetheless, the result might well be the court would conclude that the document does not support the plaintiff's position, when in fact that conclusion is or might be wrong. To my mind that smacks of legal sophistry and is to be avoided if at all possible.

12 The second reason why I would release the plaintiff from his undertaking in this case has to do with practicalities of litigation. Under O 26A pre-action discovery is possible. The plaintiff could have used that order in this case. Perhaps he should have done so. Be that as it may, it is the clear intent of the Rules that documents be available as soon as possible so that the parties and the court know the true position. To refuse this application would fly in the face of that policy. An application would undoubtedly be made under O 26A and the result would be a waste of time and money.

13 In all the circumstances, I am satisfied that I ought grant this application. I will hear the parties as to the precise form of the orders and as to costs.