Haile-Michael v Konstantinidis

The confidentiality undertaking issue 3 By an interlocutory application filed on 17 November 2011, the applicants seek an order that the eighth respondent, the Chief Commissioner of Victoria Police ("the Chief Commissioner") produce for immediate inspection two documents discovered by him, without requiring the provision of a signed confidentiality undertaking by the applicants, their legal advisors and those assisting them. 4 The first document is a copy of a report by Inspector Mark Doney entitled "Review of the Relationship Between the Police and the Horn of Africa Community in Flemington - Interim Report" ("the Doney report"). The second document is a copy of a report by Superintendent Karl Feltham entitled "Review of the Doney Report" ("the Feltham Report"). 5 By an earlier interlocutory application filed on 14 November 2011, the Chief Commissioner sought an order that any applicant in the proceeding, and any solicitor acting for any applicant, prior to inspecting the Doney and Feltham reports, sign a confidentiality undertaking and provide it to the Chief Commissioner's solicitors.

The evidence 6 The Chief Commissioner relies on an affidavit of Superintendent Peter Lardner. In that affidavit the Doney report is described from its terms. The following points are made: it is an interim report resulting from a review of the relations between the police and the Horn of Africa community in Flemington; Inspector Doney was appointed as an independent investigator to ensure confidentiality and to encourage open and honest reports from participants to the review; the names of police members who participated in one-on-one interviews as part of the review are to remain in the possession of the author and are not included in the report; the report was to be kept confidential; disclosure of its contents would impede full and frank contributions by the police members in future inquiries; and in the absence of express undertakings there is significant risk that the Doney report and the Feltham report would be disclosed to third persons or the media. In support of that view the affidavit refers to contact with the media about this proceeding by legal representatives of the applicant, their express desire to publicise information of the Doney report and the potential for dissemination as a result of the large number of volunteers working for the Flemington and Kingston Community Legal Centre ("the Legal Centre"). 7 In respect of the last point, the affidavit refers to press articles containing quotes from Ms Tamar Hopkins of the Legal Centre and from one applicant, Mr Haile-Michael. The first is an article which appeared in the Moonee Valley Leader on 7 July 2011. There is nothing in the article that suggests Ms Hopkins or Mr Haile-Michael would breach any implied undertaking not to use the Doney report for any purpose unconnected to this proceeding. The second is an article which appeared in The Age on 24 July 2011. Again, there is nothing in that article to suggest it likely that any implied undertaking would be insufficient to stop improper use of the Doney report or the Feltham report. 8 The affidavit also asserts a strong desire in the Legal Centre to disclose information of the nature of that contained in the relevant documents. Reference is made to Ms Hopkins' view that it is in the public interest for the community to know what was happening at Flemington Police Station. An expression of such a desire is not inconsistent with accepting an obligation to be bound by an implied undertaking with respect to the documents now that they have been discovered. 9 Further, the affidavit refers to a large number of volunteers who work at the Legal Centre and the fact that at least one volunteer has disclosed her role in the proceeding. The description by one volunteer of her role in the proceeding is not inconsistent with that volunteer or others accepting that she or they are bound by an implied undertaking. 10 None of the matters referred to in the affidavit raise any valid concern that the current circumstances are so special or exceptional that the usual implied undertaking with respect to the documents would not be appropriate. 11 The applicants rely on an affidavit affirmed by Ms Hopkins. In that affidavit Ms Hopkins states that all volunteers and staff employed at the Legal Centre are made aware of the strict nature of the Legal Centre's confidentiality obligations. Ms Hopkins refers to a confidentiality undertaking which is included in an agreement signed by Legal Centre volunteers.

The principles 12 The relevant principles for current consideration are as follows: there is an implied undertaking by parties to any proceeding that they will not use documents produced during discovery other than for the purpose of conducting that particular proceeding (Hearne v Street (2008) 235 CLR 125 at [105]); it is open to the court to take particular steps to ensure that access to certain discovered materials be restricted to use in connection with the particular proceeding by the requiring of an express undertaking in special cases (Kimberley Mineral Holdings v McEwan [1980] 1 NSWLR 210 at [212]-[213] or exceptional cases (Hearne at [116]); express undertakings as to the use of discovered documents have frequently come to be extracted in commercial litigation, especially where the documents are particularly sensitive, to reinforce to those who are required to sign them the seriousness of their obligation not to use the documents for a collateral purpose (Hearne at [116] and Kirby v Centro Properties Ltd [2009] FCA 695, per Ryan J).

Consideration 13 I agree with counsel for the applicants that the Chief Commissioner has not articulated any exceptional (or special) circumstances which warrant the requirement that an express undertaking as to the discovered documents is required from the applicants and their advisors. The implied undertaking applies to the applicants, their legal advisors (including volunteers at the Legal Centre) and expert witnesses. The implied undertaking gives sufficient protection against the use of those documents other than for the purpose of this proceeding. This is not a case where trade secrets may be divulged or some commercial advantage may be lost. It is a case involving what amounts to an allegation of abuse of police power and infringing of human rights. If the applicants and their advisors and those assisting them were in any doubt about their obligations in respect of the discovered documents the subject of this judgment they can no longer be in any doubt about their obligations with respect to their proper use. 14 It is beside the point that the Victorian Civil and Administration Tribunal ("VCAT") declined to allow public release of the documents. The issues relevant to VCAT's consideration are not those the subject of current consideration. The documents have been discovered. No objection is made to their inspection per se. It is only that an express undertaking is said to be appropriate. For the reasons set out above I disagree!

Disposition of this issue 15 The Chief Commissioner's interlocutory application of 14 November 2011 will be dismissed. Order 1 of the orders sought in the applicant's interlocutory application of 17 November 2011 will be made insofar as it refers to documents "7.00001" and "7.00002".

Other interlocutory issues 16 Other interlocutory issues dealt with today will be the subject of separate reasons at a later time. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.