[2017] ACTSC 329

EVIDENCE - AFFIDAVITS - Application to use an affidavit sworn in other proceedings but not read in those proceedings - consideration of a disciplinary complaint against a legal practitioner - Harman undertaking - leave given to the plaintiff to use the affidavits to further investigate the complaint

British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571

Brooks v Law Society of New South Wales [2009] NSWSC 28

Harman v Secretary of State for the Home Department [1983]

Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104

Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074

1. This is an application brought by Originating Application, dated 21 September 2017, so as to permit the Law Society of the Australian Capital Territory ('Law Society') to use two affidavits sworn in other ACT Supreme Court proceedings, and which were not read in those proceedings, to be used for the purposes of the Legal Profession Act 2006 (ACT) by the plaintiff, the ACT Law Society, for consideration of a complaint made against a Legal Practitioner and, if appropriate, the making of an application under s 419(1) of the Legal Profession Act to the ACT Civil and Administrative Tribunal ('ACAT') in relation to occupational discipline.

2. The reason that the application is necessary is because the affidavits were not read in the proceedings in relation to which they were filed and there is an implied undertaking not to communicate their contents to anyone or use them for a collateral purpose. That undertaking also binds anyone else into whose hands the documents come in the knowledge that they were obtained as a result of the compulsory processes of a court.

3. The undertaking, commonly referred to as the Harman undertaking (see Harman v Secretary of State for the Home Department [1983] 1 AC 280), may be dispensed with if the court approves the use of the documents. For those purposes the applicant will need to show a good reason for that collateral use.

4. The use of documents for the purposes of proceedings against legal practitioners was dealt with in a case decided by Johnson J in the New South Wales Supreme Court in Brooks v Law Society of New South Wales [2009] NSWSC 28. His Honour, at [10], articulated the test, and recognised (at [11]) that there is "a strong public interest in the investigation and, if it is considered appropriate, prosecution of disciplinary proceedings."

5. His Honour also said at [13] that the determination of an administrative body, such as the New South Wales Civil and Administrative Tribunal, concerning the fitness of a legal practitioner to remain on the roll:

is a matter of public interest, which will be advanced by the making of orders to ensure that the [Law] Society (in the exercise of its functions) and, if proceedings are commenced, the Administrative Decisions Tribunal (in the exercise of its functions) have free and unfettered access to, and ability to use, material obtained under compulsory process for the purpose of proceedings of this Court.

6. Those sentiments are equally applicable in the circumstances of the present case. Each of the six people who may be affected by the making of such an order, that is, those people who were involved in the previous proceedings, has either positively consented to the application, or is deregistered, or has indicated a lack of interest in opposing the orders. The Legal Practitioner, who is represented today by Mr Vlot, has positively consented to the application.

7. In those circumstances, it is not necessary to consider various issues which arise in relation to the scope of the implied undertaking, in particular, whether it applies to affidavits filed in proceedings: see Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104, whether it applies to interlocutory proceedings: see British American Tobacco Australia Services Ltd v Cowell (No 2) [2003] VSCA 43; (2003) 8 VR 571, or whether it continues after the tender or admission of the documents in proceedings: see Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 at [34]- [35].

a) the affidavit of [the Legal Practitioner], sworn 2 March 2016 in SC88/16;

b) the affidavit of Magdalena Monika Ziemski, sworn 15 March 2016 in SC88/16;

the plaintiff has leave to make use of the same in:

(i) any further investigation of the complaint against the Legal Practitioner;

(ii) its consideration of the complaint for the purposes of s 410 of the Legal Profession Act 2006 (ACT); and

(iii) as appropriate, in drafting, bringing and prosecuting any application made under s 419(1) of the Legal Profession Act by the plaintiff against the Legal Practitioner in the Occupational Discipline Division of the ACAT in respect of conduct the subject of the complaint.

2. If no application of the kind referred to in Order 1(iii) is made by the plaintiff, there is no order as to costs of these proceedings. In the event that the plaintiff does make such an application, then if:

a) the costs of these proceedings are unable to be the subject of an order of the

b) if the costs are not in fact the subject of such an order;

the plaintiff and [the Legal Practitioner] have liberty to apply in relation to costs on 14 days' notice.

3. [The Legal Practitioner] is to file a Notice of Intention to Respond within seven days.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.