Category 5 - complaint to the Medical Council of New South Wales
164 Kott Gunning seeks discovery of documents in relation to a complaint that Mr Hastwell made to the Medical Council of New South Wales concerning Dr Julian Parmegiani.
165 Dr Parmegiani is a psychiatrist from whom Mr Hastwell's previous lawyers commissioned a report for the purposes of his claim against Kott Gunning. I infer that was to support his allegation that he was subject to a disability because of a psychiatric condition, namely anxiety. There is evidence that the report was unfavourable to Mr Hastwell's case. It is not necessary to go into detail as to why; suffice to say that Dr Parmegiani appears to have reached conclusions about Mr Hastwell's psychiatric condition which, if correct, would potentially undermine the credibility of the claims that Mr Hastwell makes in these proceedings.
166 Mr Hastwell made a complaint to the Medical Council of New South Wales about Dr Parmegiani which, under s 11 of the Health Care Complaints Act 1993 (NSW), was taken to have been made to the Health Care Complaints Commission of New South Wales (HCCC). The HCCC dismissed the complaint.
167 Dr Parmegiani's report has not been discovered, let alone produced. The reason there is evidence as to its contents is that when the HCCC dismissed Mr Hastwell's complaint, he applied for judicial review to the Supreme Court of New South Wales. Kott Gunning has adduced evidence of Mr Hastwell's amended particulars of claim in the judicial review application, in which he says that the report 'completely contradicts my claim and went further, to directly challenge my credibility'. The particulars of claim set out extracts from the report which bear that description out.
168 Mr Hastwell resisted discovery of documents relating to the HCCC complaint on several bases. One was a submission that it 'would be in contempt of the Supreme Court of New South Wales to include such references'. This appeared to encompass a claim that Kott Gunning had given an express undertaking to the Supreme Court restricting the use that could be made of the documents. Mr Hastwell also referred to the 'implied undertaking' which is the subject of Harman v Secretary of State for the Home Department [1983] 1 AC 280, and to the fact that while the Supreme Court of New South Wales has heard the judicial review application, it is yet to deliver judgment. Mr Hastwell also submitted that in obtaining the documents, Kott Gunning had impermissibly relied on without prejudice communications.
169 In order to assess these submissions it is necessary to describe how Kott Gunning acquired a copy of the particulars of claim, which is the document on which it relies for the purposes of this aspect of its discovery application.
170 Mr Hastwell has produced a heavily redacted copy of what appears to be an email dated 27 November 2018 from him to Kott Gunning's solicitors making a without prejudice settlement proposal. The only part of the body of that email which is not redacted gives the title and matter number of the Supreme Court application for judicial review of the HCCC's decisions, and similar details of an application for judicial review of a decision of the Legal Services Commissioner (which is not relevant since Kott Gunning no longer presses its category 6).
171 It appears that the reference to the judicial review proceedings in that email alerted Kott Gunning to the existence of the proceedings, and prompted the firm to seek access to documents filed in the proceedings. On 20 May 2019 Mr Williams emailed the Supreme Court referring to both judicial review proceedings in that court and saying that the firm wished 'to apply as a non-party for access to these two files so as to obtain copies of the pleadings'. The email said that the court's on-line access form appeared to contemplate personal inspection, which was inconvenient given that Kott Gunning was located in Perth. It asked whether it would be possible to obtain copies of the documents by email.
172 The email attached two application forms for access to the court file. In relation to the one concerning the HCCC proceedings, in the box provided for the reasons for access to the file, Kott Gunning said as follows:
We are the respondents in Federal Court action Hastwell -v- Kott Gunning NSD714/2017.
On 27 November 2018 the applicant in those proceedings, also the plaintiff in the NSW Supreme Court proceedings noted above, wrote to our lawyers disclosing his involvement in the NSW proceedings, which he said were related to the current Federal Court proceedings against us, and to Supreme Court NSW action Hastwell -v- Legal Services Commissioner Mr John McKenzie 18/197067. This was the first time we became aware of the two sets of NSW proceedings.
Hastwell -v- Legal Services Commissioner Mr John McKenzie 18/197067 is the subject of a separate application for access to documents.
Hastwell has suggested any potential settlement of the three matters be approached as a 'package deal' but when asked for details of the NSW Supreme Court proceedings noted above said he was 'not in a position to meaningfully respond' and 'I cannot obtain authority from any third party', thus we seek access to the above-mentioned documents to explore opportunities to bring three sets of proceedings in two jurisdictions to a close.
173 The form was signed on behalf of Kott Gunning on 17 May 2019. Above the signature the form said:
I the applicant agree that I will not remove or tamper with any document on this file during inspection, nor will I remove the file from the registry inspection area.
I further undertake to return the file to the viewing room counter immediately upon completion of inspection.
174 As a result of a telephone call from the Supreme Court registry, on 23 May 2019 Mr Williams sent another email, this time to the Chambers of Justice Rothman, who had been assigned to hear the application for judicial review of the HCCC decision. Mr Williams' email said that it had been suggested in the call that it may be more expedient to contact his Honour's Chambers direct in order to seek access to the file and asked whether that was 'the best way forward'.
175 Justice Rothman's Chambers responded on the same day annexing the amended particulars of claim and the defendant's response. The covering email said nothing about the basis on which the documents were provided or any restrictions on the use to which they could be put.
176 I will first consider the question of what is often called the implied undertaking, that is, the obligation for which Harman is sometimes cited as authority. Senior counsel for Kott Gunning submitted that this obligation did not apply to the firm here because it was not a party to the HCCC proceedings nor the servant, agent or privy of any party. He relied on Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 to submit that, while the courts sometimes apply the principles 'by analogy' when deciding whether to grant access to the court file to a stranger to the litigation, the implied undertaking does not apply to such non-parties 'directly'. He submitted that while Hearne v Street was authority for the proposition that the obligation can extend to the servants and privies of parties, there was no authority for the proposition that it extends to a stranger to the litigation.
177 Hearne v Street involved proceedings for contempt against directors of companies involved in litigation or of related companies. The directors had sent part of an expert report filed on behalf of the opposing parties in the litigation to a minister of the State in order to gain support for an Act of Parliament that would affect the ability of the other parties to prosecute the litigation. The High Court unanimously held that the directors were in contempt.
178 At [96]-[97] Hayne, Heydon and Crennan JJ (Kirby J agreeing) described the obligation the directors had breached as follows (footnotes omitted):
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits ...
It is common to speak of the relevant obligation as flowing from an 'implied undertaking'.
179 The plurality went on (at [106]-[107]) to confirm that what is often called the 'implied undertaking' is in fact a substantive obligation imposed by law as a condition of discovery (although the types of material listed in the quote above shows that their Honours were not limiting the obligation to the discovery process). Their Honours set out a number of quotes from other cases explaining the purpose of the rule as being to limit the invasion of privacy and confidentiality consequent on litigation, so that it goes no further 'than is strictly required for the purpose of securing that justice is done': Hearne v Street at [107] quoting from Lord Keith of Kinkel in Harman at 308.
180 The plurality went on to consider when non-parties such as the directors were subject to the obligation. (While Gleeson CJ agreed in the result, he found that the directors were agents of a party to the litigation and so did not consider it necessary to decide how far beyond servants and agents the obligation extends: see Hearne v Street at [3]-[4]). At [109] the plurality said that in both England and Australia, the various instances in which it has been held that non-parties are subject to the undertaking 'have been broadened into a wider and coherent principle'. A statement of that principle in England was that '[A]ny person who knowingly … does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions': Hearne v Street at [109] quoting Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 765. For Australia, the plurality quoted with approval (at [110]) the dictum of Anderson J in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334-335: 'The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery'. And at [111] they quoted with approval statements of Lord Denning MR and Stephenson LJ in Riddick v Thames Board Mills Ltd [1977] QB 881 to the effect that anyone who uses the documents for an 'ulterior or alien' purpose or who makes 'improper use' of them breaches the undertaking. The plurality concluded 'Use with knowledge of the circumstances would be improper use'.
181 As a bald proposition, therefore, it would be incorrect to say that the obligation (or implied undertaking) cannot apply to a stranger to the litigation. Nevertheless, I accept that it does not apply to Kott Gunning in the present circumstances. As Hearne v Street confirms, the content of the obligation is that the material cannot be used for any purpose other than the purpose for which the party disclosing the material provided it. That is in the context where the party to litigation has been compelled as part of the court process to make disclosure. It follows that the purpose for which use is authorised is the purpose for which the documents were compelled to be disclosed, typically for use in the litigation.
182 It makes no sense to apply that obligation to a stranger to the litigation who has obtained the material from the court as a result of an application to the court for access to documents on the court file. That is because persons who obtain material that way will almost invariably wish to do so for reasons other than use in the litigation. They are, after all, strangers to the litigation who cannot obtain the documents other than by application to the court. The use to which they want to put the material will be foreign to the purpose of the Harman obligation. That is most obviously so in the frequent cases where the applicant for access is a media organisation which wishes to publish a report based on the material. But it must go for any applicant who is not seeking access merely out of idle interest.
183 The obligation is an obligation to the court: Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at [16] (Laddie J), quoted with approval in Hearne v Street at [106]. It is an obligation the court has the right to control and the court can modify or release a person from it: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547 at [47] (Mansfield, Kenny and Middleton JJ). It must follow that if a person seeks access to material for use other than in the litigation, and the court grants access to that person, the person is not subject to an obligation to use the material only for the purposes of the litigation.
184 That is inherent in the approach that the courts take to applications for access by third parties. The usual approach of the Supreme Court of New South Wales is set out in its Practice Note SC Gen 2 Supreme Court - Access to Court Files (1 March 2006). The guidance in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is limited; r 36.12(2) of those rules merely provides:
Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar:
(a) must furnish to any party to any proceedings, and
(b) may furnish to any other person appearing to have a sufficient interest in the proceedings,
a copy of any pleading or other document that has been filed in the proceedings.
185 The practice note supplements this, relevantly as follows:
Introduction
4. The purpose of this Practice Note is to prescribe the procedures surrounding the provision of access to court files.
Search
5. A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court.
Access
6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.
7. Access will normally be granted to non-parties in respect of:
• pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;
• documents that record what was said or done in open court;
• material that was admitted into evidence; and
• information that would have been heard or seen by any person present in open court,
unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.
…
13. A person to whom any document or thing is produced by the Court for inspection may make copies of or take extracts from the document or thing.
14. It should not be assumed that material held by the Court comes within paragraph 7. Affidavits and witness statements that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. UCPR 4.15 allows the Court to order this type of matter to be struck out of a document.
15. If access to material were to be given prior to the conclusion of the proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings.
16. Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access …
17. Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a Judge nominated by the Chief Justice. The registrar or Judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Enquiries may be made to the Court's registry on (02) 9230 8111.
18. The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying.
186 This demonstrates caution, for the reasons given in the note, about providing access to material that has not yet been disclosed in open court. Relevantly, pleadings will generally not be provided until after the proceedings have concluded.
187 There have been cases where courts have considered these principles in conjunction with the principles that inform the implied undertaking (as I will continue to call it, for convenience). In Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 549 Mason P observed (Priestley JA and Rolfe A-JA agreeing):
The procedure for seeking access is now regulated by Practice Note No 97 (1998) 43 NSWLR 1 - Access to Court files by non-parties. A stranger to proceedings would not be in a position superior to that of a party, and a party must show 'exceptional circumstances' before leave will be given permitting the collateral use of documents subject to a Home Office v Harman undertaking: Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 132-133; Esso [Australia Resources Ltd v Plowman (1995) 183 CLR 10] at 37.
The two cases cited by his Honour support the proposition that exceptional circumstances are required before leave will be given, not the proposition that a stranger to proceedings would not be in a position superior to that of a party.
188 In Eisa Ltd v Brady [2000] NSWSC 929 at [21]-[22] Santow J referred to Mason P's dictum and applied it to an application by a newspaper for access to pleadings. His Honour held that, just as when a party applied for release from the implied undertaking, exceptional circumstances would need to be shown before access to pleadings would be permitted. His Honour also applied the predecessor to Practice Note SC Gen 2, which was in similar terms. Santow J denied access at that stage in the proceedings. For present purposes, the significance of this is that, as reflected in the practice notes, the court dealt with the problem by denying access. It was not suggested that the applicant would be subject to any obligation if the pleading had been disclosed (and given that the applicant was a media organisation, nor could it be).
189 Barrett J adopted that analysis in Australian Securities and Investments Commission v Rich [2002] NSWSC 198. That case too involved media organisations seeking access to a pleading. Once again, the court denied access. At [16], after referring to Eisa Ltd, Barrett J observed:
At para 21 of his judgment, Santow J referred to the principle in Home Office v Harman [1983] AC 280 to the effect that a party to proceedings who gains access to documents pursuant to a pre-trial process comes under an implied undertaking not to use them for a collateral purpose. The relevance of that consideration in a context such as the present was the subject of analysis by the Industrial Commission in Court Session (Wright, Walton and Hungerford JJ) in Stonham [v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325]. That parties were subject to such an inhibition was taken as an indication that access by a non-party should not be allowed where the motivating purpose was one from which the relevant principles precluded parties themselves. Among these are 'a purpose of furthering public debate' or so that the documents concerned may be 'made a ground for comments in newspapers'. Publication to the world at large, even though motivated by a very proper desire to place in the public domain matters considered to be of genuine and general public interest, is thus a collateral purpose in which a party to litigation with access in the pre-trial phase to documents to which the Home Office v Harman principles apply may not engage; and so, by analogy, it should be regarded as a purpose which the court should not seek to facilitate or promote in addressing questions of access by non-parties to court files.
190 The point to be drawn from this for present purposes is that while the court may in the exercise of its discretion apply the implied undertaking 'by analogy' - that is, seek to protect parties to litigation to the same extent as the implied undertaking does by denying a non-party access to a document - that is not the same thing as saying that the implied undertaking applies when a third party does obtain access from the court. This supports the submissions that senior counsel for Kott Gunning made.
191 In Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; (2008) 222 FCR 580, Jacobson J dealt with an application by a non-party to defunct copyright infringement proceedings for access to a wide range of documents. The purpose for which access was sought was for the non-party, a licensing agency, to determine whether the copyright of its members had been infringed. His Honour considered the implied undertaking in the course of his decision and (at [60]) observed:
It seems to me to follow from Home Office v Harman that although non-parties are not subject to the implied undertaking, they are subject to the same type of restriction in relation to documents that have not been read in open court, or at least considered by the judge as evidence or submission. After all, why should a non-party, by the side-wind of access to a court file, be free from the constraint which applies to the persons who supplied the contents of the file?
192 His Honour granted access to affidavits to the extent that they had been read into evidence (the body of the affidavit only, not exhibits or annexures) and did not grant access to other documents sought. I do not read his statement that non-parties 'are subject to the same type of restriction' as the implied undertaking to mean that some obligation to the court necessarily arises if the court gives non-parties access. In context, I consider his Honour was just approaching the exercise of his discretion by reference to the same consideration that Santow J and Barrett J found relevant, namely that it is generally undesirable if non-parties are free to use documents in ways that parties are not. Once again, the solution was not to refer to or impose some obligation on the non-parties - it was to deny access altogether to anything that had not gone into evidence, or which remained the property of the parties.
193 The final case I need to mention in this regard is Alafaci v Mangano [2009] NSWSC 1131. There, Smart AJ found four defendants to be guilty of civil contempt because they used material they had obtained from the court file in one proceeding to support an application that one of them brought in a different (guardianship tribunal) proceeding. The material was comprised of documents that had been produced pursuant to subpoena in the court proceedings. There is therefore some similarity to the present situation, in that a non-party to the proceedings obtained the documents from the court file. His Honour held that in using the documents in the new (guardianship tribunal) proceedings, the defendants had breached the implied undertaking: at [71], [86], [96], [109] and [120].
194 However I do not read Alafaci v Mangano to stand for any general proposition that if a person who is not a party to litigation obtains documents from the court file, the person takes those documents subject to the implied undertaking. It does not appear that any argument was directed to Smart AJ as to whether the implied undertaking did apply in those circumstances. It appears to have been assumed that it did. In any event, the circumstances in the case were exceptional. The four defendants were three siblings and their mother who comprised one faction in a family that was 'divided into two bitter warring factions': at [3]. The other faction was comprised of the siblings' uncle (the mother's brother), Paul Alafaci, and the siblings' grandmother (the mother's mother), Mary Alafaci. Mary's husband (the grandfather/father) had died and two of the defendants had made a testator's family maintenance claim against his estate. Those were the court proceedings: see [10]. One of the siblings, who was not a plaintiff in that action, procured a work colleague to take copies of the documents that had been provided to the court under subpoena: see [18]. The court provided copies of the documents because the application form incorrectly said that the firm seeking access was acting for the plaintiff in the court proceedings: see [21]. The documents were then used to support the application to the Guardianship Tribunal in respect of Mary, alleging that Paul Alafaci was misusing her credit card.
195 So the non-parties to the court proceedings could hardly be described as strangers to the litigation. More to the point, access to the subpoenaed documents was gained pursuant to the practice note governing that subject (at [85]), and not under Practice Note SC Gen 2 concerning applications for access by third parties. And the access was gained because the person who filled out the form for access falsely indicated that the applicant was a firm acting for a party to the court proceedings. The copying of the documents was relevantly unauthorised by the court: see [85]. It is understandable why Smart AJ was prepared to find contempt in those circumstances. Alafaci v Mangano is distinguishable from this case.
196 I accept that the implied undertaking does not prevent Kott Gunning from using the particulars of claim in the HCCC proceedings to support its application for discovery in these proceedings. It does not apply in circumstances where Kott Gunning obtained the document as a non-party on request to the court.
197 However that is not the end of the question of whether the circumstances gave rise to restrictions on the use to which the document can be put. Mr Hastwell submitted that Kott Gunning was in breach of an express undertaking. In oral submissions it became clear that he was referring to the undertaking reproduced at [173] above. But that is solely an undertaking designed to prevent tampering with the original court file and to ensure that the file is returned intact after inspection. It says nothing about the use to which copies of the materials inspected can be put. As it turns out, Kott Gunning did not inspect the court file at all - it just received copies of the pleadings by email from Justice Rothman's Chambers.
198 The other possible source of obligation is the fact that Kott Gunning indicated that it sought access to the documents for a particular purpose. That is set out at [172] above. On the basis of the survey of the authorities I have made above, I do not consider that there is any general principle that a party to whom the court gives access is obliged to use the documents only for the reason given in the application for access. No such rule appears in Practice Note SC Gen 2, nor can it be derived from the application form. It is true that the form requires a reason for access to be given, but that is explicable on the basis that without a good reason, access will be denied. It does not follow that once the documents are provided they must only be used for the purpose indicated in the form.
199 It is conceivable that such an obligation may arise in the particular circumstances in which access is given. The party might give an undertaking or the court may impose the obligation as a condition of leave. But circumstances giving rise to an obligation punishable by contempt of court will not be found lightly: see Srotyr v Clissold [2015] NSWSC 1770 at [21]. In the absence of an express, or perhaps clearly implied, undertaking given by the applicant, or a condition imposed by the court, I do not consider that the obligation will arise.
200 It does not arise in the circumstances here. There is a statement in correspondence from the chambers of the judge overseeing the proceedings which Mr Hastwell brought against the Legal Services Commissioner of New South Wales, that 'Nothing will be released. Inspection only will be provided'. But that did not relate to the HCCC proceedings, and there is nothing to suggest that it was the result of any undertaking made by Kott Gunning.
201 It is true that Kott Gunning told the court that it was seeking access to the particulars of claim in the HCCC proceedings for a particular purpose, and it has now used them for a different purpose. But unless it obtained the document on the express or clearly implied basis that it could only use them for the purpose it disclosed to the court, it cannot be said to be in contempt for subsequently using the document for a different purpose. And there is no suggestion that Kott Gunning did not in fact have the purpose it expressed at the time of the application.
202 There is also an argument available that the implied undertaking did not apply in any event to a pleading. As Brereton J said in Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at [10], 'the touchstone of the obligation appears to be that of compulsion'. It could be said that the filing of Mr Hastwell's claim and the contents of the claim were each his choice. But there are conflicting authorities on this question. In Helicopter Aerial Surveys at [35] Brereton J observed that 'it has never been the case that pleadings have been regarded as subject to the implied undertaking'. But in Eisa Ltd at [21] Santow J said that the 'so-called Harman principle … may be taken to include pleadings'. Le Miere J took that approach in Buswell v Carles (No 2) [2013] WASC 54. Given my view that the implied undertaking does not prohibit Kott Gunning from the use it seeks to make of the particulars of claim in any event, it is not necessary to reconcile or choose between these lines of authority.
203 Turning to the argument based on without prejudice privilege, it is clear that the existence of the proceedings in the Supreme Court of New South Wales was disclosed to Kott Gunning in the course of a without prejudice communication. But that does not preclude Kott Gunning from obtaining material about those proceedings through means independent of the without prejudice communication. The without prejudice privilege prevents Kott Gunning from adducing evidence of the contents of the without prejudice communication. It does not prevent it from using the knowledge gained as a result of the communication in other ways. In Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291-292 Dixon CJ, Webb, Kitto and Taylor JJ observed:
The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation … This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission.
204 The types of communications that are protected by the privilege have been broadened since then to extend beyond pure admissions, to all bona fide statements, made for the purpose of attempting to compromise a dispute, which touch upon the strengths or weaknesses of the parties' cases or place a valuation on a party's rights: Samnakay v Schofield [2013] WASCA 138 at [44] (Newnes and Murphy JJA). But the principle that is relevant for present purposes remains the same; adducing evidence of the communications is what the privilege prevents, not the use of facts that are discovered by reason of the communications: see 789TEN Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594 at [15]-[29] (McDougall J).
205 Mr Hastwell relied on s 131(1) of the Evidence Act 1995 (Cth). That subsection provides that evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
206 A court document in different proceedings that was obtained independently as a result of knowledge of the existence of the proceedings (a fact in the public domain anyway) that was gained in the course of settlement negotiations does not meet either of these descriptions.
207 Mr Hastwell also claimed that Dr Parmegiani's report was 'privileged in any event'. I take him to be referring to legal professional privilege. But if a relevant document is protected by that privilege, that does not make the document immune from discovery, being disclosure of its existence and confirmation that it is in the control of the party giving discovery (or, if it is not, what has become of it). The document must still be discovered. If privilege is claimed, then it should be discovered in Part 2 of the list. If the other party wishes to challenge that privilege, that issue will be dealt with at that point. The document will not be inspected by that party unless and until that issue is resolved in its favour.
208 It is also worth noting that if the document does end up being inspected, the inspecting party will be subject to the implied undertaking, restricting the use to which the document may be put. Further, discovery and any subsequent inspection and production of the document does not mean that the document will necessarily be admitted into evidence at any trial. Mr Hastwell claims that it is inadmissible, but it is well established that the criteria for discovery and the criteria for admitting a document into evidence are not the same: see e.g. Tracenia Nominees Pty Ltd v Centro Properties Ltd [1993] FCA 996 at 6-7 (Heerey J).
209 Mr Hastwell submitted that it would be prejudicial to rely on the material since it is the subject of pending proceedings before the Supreme Court of New South Wales. But there is no general principle that material that is filed in one proceeding is precluded from being produced or relied on in another proceeding. In any event, as I have said all that is being sought at the moment is discovery of the document. Inspection and any subsequent attempt to rely on the documents in court are matters that will be considered on their merits as and when they arise. They have not arisen yet.
210 Mr Hastwell also submitted that the references to Dr Parmegiani's report in Kott Gunning's evidence and submissions in support of its discovery application did not disclose the full meaning of the document and were therefore misleading. But there is no suggestion that the material advanced by Kott Gunning in support of its discovery application was a misleading representation of the effect of the material that was available to it, namely the particulars that Mr Hastwell filed in the Supreme Court. Kott Gunning put a full copy of the particulars into evidence. If that is not the complete picture in relation to the content of Dr Parmegiani's report, that cannot be blamed on Kott Gunning. It does not yet have access to the full report, which is one of the things it is seeking in the application.
211 On the basis of the description of Dr Parmegiani's report which Mr Hastwell gave in his proceedings for judicial review of the HCCC's decisions, the report is directly relevant to his claim against Kott Gunning. It would appear to adversely affect Mr Hastwell's case; his concern about that is one of the things that led him to commence the judicial review proceedings. I do not accept any of the submissions as to why the report should nevertheless not be discovered.
212 I will order discovery of Dr Parmegiani's report. There is evidence that Mr Hastwell's complaint about the report and accompanying documents ran to some 200 pages. I will also order discovery of those documents, as it is reasonably likely that what Mr Hastwell said about the report in the complaint, and what evidence he provided in support of what he said, would also be directly relevant to his mental state in the same way as the report itself seems to be. It is also possible that the documents filed with the complaint contained material on which Dr Parmegiani relied, or material which Mr Hastwell said contradicted Dr Parmegiani's opinion, either of which would be relevant.
213 But I am not persuaded that the wider category of documents which Kott Gunning seeks, namely all documents sent or received to or from the Medical Council of New South Wales and the HCCC are relevant. It is not clear what those subsequent documents concern. I am not satisfied that they are likely to be relevant to the issues in these proceedings. I will not order discovery of that wider category.