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[2006] VSC 501
Supreme Court of Victoria
2006-12-08
OSBORN J
Original judgment source is linked above.
1 By summons dated 22 November 2006, the respondent, Mr Love, seeks particular discovery from the acquiring Authority of the affidavits and exhibits of named witnesses who gave evidence in another proceeding in this list in which Murdesk Investments Pty Ltd ("Murdesk") is claimant[1], and also of the transcript of the initial trial in that proceeding.
2 As Mr Delany has submitted, there are three issues which arise with respect to that application. The first is the position of Murdesk, the second is the relevance of the material, and the third is the question of an implied undertaking.
3 Insofar as Murdesk is concerned, I am satisfied on the affidavit material that it has been fully notified of the application now made to me, and has had the opportunity to properly consider whether it will appear today. Its position is that it neither consents nor opposes the application.
4 In relation to the question of relevance, I think it is sufficient to say that a fundamental dispute between the parties in the present proceeding relates to the highest and best use of the acquired land. There is, as I understand it, a fundamental division of views between the Authority which contends that the highest and best use of the land would have been industrial or like usage in accordance with a relevant planning strategy, and on the other hand the claimant who contends that the highest and best use of the land was for the purpose of extracting industry, with the view in the long term to further utilising the land for the purpose of a landfill.
5 It must be said, however, that although the parties are divided along these initial lines, it is also apparent that there is a dispute as to the consequences of each of the primary contentions. Thus it is logically possible that if the Authority's case as to highest and best use is accepted, there will nonetheless be significant dispute as to what the potential for industrial and like use of the land meant in planning and valuation terms as at the relevant date.
6 It seems to me that the material in issue now does go to this underlying issue in the sense that it may contain matters bearing on both the relevant matrix of fact and the proper analysis of it as a matter of expert opinion.
7 There is also a subsidiary dispute relating to the circumstances of the rezoning of what has been referred to as the "Scanlon" land adjoining the acquired land in the present case to the east and lying to the north of the Murdesk land. It also seems to me that it may be that the documents sought in the Murdesk proceeding bear on this issue including the relevant planning strategies and their implementation. Accordingly I am satisfied that a sufficient basis of relevance has been made out.
8 I turn then to the question of the implied undertaking. In essence, Mr Love seeks access to the transcript of evidence given in open court and reports of witnesses prepared for the purpose of such evidence and adopted in the course of such evidence. Mr Love seeks such access as a third party and it is common ground that in fact a representative of Mr Love was present in court during significant parts of such evidence.
9 Having said this, it seems to me that it has been entirely proper for the Authority to be concerned as to its position with respect to the undertaking. The following observations of Scott J (as he then was) in the case of Sybron Corporation v. Barclays Bank Pty are apposite:[2]
"If proceedings are held in open court, information derived from any record of these proceedings can be used by third parties without regard to undertakings which may bind the parties thereto or their solicitors. But the position of the parties themselves depends not on what third parties may be able to do but on the scope of the undertaking that binds them. The purpose of the undertaking is to protect so far as it is consistent with the proper prosecution of the action the confidentiality of the parties' private documents".
10 There is in my view a strong argument in the present case that although the reports in issue may be regarded as having been subject to an undertaking at the time of their preparation and provision inter partes, the purpose of that undertaking is now spent. See the decision of the Court of Appeal in the British American Tobacco v Cowell (No 2)[3] case in the passages cited in argument by Mr Southall. If, however, the undertaking is to be regarded as still alive, special circumstances have arisen in the sense identified by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands[4] :
"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".
11 Most significantly in the present case, first Murdesk has had full notice of the application and it has made no objection to it. Secondly, the documents in issue are not primary documents evidencing facts in issue, but are documents produced for the purposes of evidence which has been given in public in the Murdesk proceeding. Thirdly, it is difficult to see that either Murdesk or its witnesses would be prejudiced by the further provision of the witness statements of its professional witnesses to third parties. Fourthly, the underlying nature of this proceeding is a claim for compensation resulting from compulsory acquisition, and in this sense, the position of Mr Love is not of his own making, and in my view, the court should lean towards giving him the fullest and fairest access to relevant information, that it can facilitate without unfair prejudice to others. So I propose to make the orders sought.
[1] Murdesk Investments Pty Ltd v Roads Corporation [2006] VSC 363.
[2] [1985] Ch 299 at 322.
[3] [2003] VSCA 43; (2003) 8 VR 571 at [43].
[4] (1992) 38 FCR 217 at 225, cited and applied by Hargrave J at paragraph 64 of his decision in Citicorp Life Insurance Ltd v Lubransky Bagiotas [2005] VSC 101.
Love
Roads Corporation [2006] VSC 501
(2003) 8 VR 571
(1992) 38 FCR 217