Haswell v Commonwealth of Australia

LEE J: BACKGROUND AND RELEVANT ISSUE 1 This recently commenced class action (Haswell class action) is brought by the applicants on behalf of group members who own land in or around seven locations throughout the Commonwealth and allege that their land is contaminated as a result of the Commonwealth's use of Aqueous Film Forming Foam at a Royal Australian Air Force (RAAF) base located near their land. 2 Three earlier related class actions (Earlier Class Actions) have been the subject of relevantly identically allegations made in relation to land owned adjacent to three other RAAF bases. The Earlier Class Actions were the subject of a settlement approved under section 33V of the Federal Court of Australia Act 1976 (Cth) (Act) on 5 June 2020: Smith v Commonwealth of Australia (No 2) [2020] FCA 837. 3 An issue has arisen at a case management hearing in the Haswell class action relating to the Earlier Class Actions, which requires determination. 4 On 6 May 2020, Dentons, who acted for the applicants in one of the Earlier Class Actions, (being proceeding NSD 1908 of 2016 (Smith class action)), wrote to Shine Lawyers who are the solicitors for the applicants in the Haswell class action (and were the solicitors acting for the applicants in the other two of the Earlier Class Actions). Dentons' communication asserted that the applicants in the Smith class action "do not presently agree to any waiver of the Harman undertaking, or use of any non-public materials produced or created for the purpose of the Smith [class action] in the Haswell [class action]". Dentons requested that this position be communicated to the Court today. 5 Orders need to be made today concerning the interlocutory progress of the Haswell class action. The applicants have foreshadowed an intention to use in the Haswell class action information contained in documents filed in the Earlier Class Actions, being a joint chemistry report of Professors Field and Cousins dated 30 August 2019 (joint chemistry report), and the referee report of Associate Professor Osborne dated 23 December 2019 (toxicology referee report). In this regard, it is important to note that the Earlier Class Actions were case managed and were proposed to be heard together and that any expert evidence, to the extent that it was relevant to issues in each of the Earlier Class Actions, was to be evidence in each proceeding. 6 The position of the two reports is quite different. This requires some explication. 7 The toxicology referee report was received into evidence as an exhibit in a "proceeding on report" (see Federal Court Rules 2011 (Cth) (FCR) r 28.67) and was, following a contested hearing, adopted by the Court. In CPB Contractors Pty Limited v Celsus Pty Limited (formerly known as SA Health Partnership Nominees Pty Ltd) (No 2) [2018] FCA 2112; (2018) 268 FCR 590 (at 600-6 [39]-[62]), I rejected arguments that a referee, in exercising power pursuant to a referral, would impermissibly exercise the judicial power of the Commonwealth and that a court exercising federal jurisdiction, in adopting or otherwise acting upon the report following an inquiry by the referee, would be acting inconsistently with its status as a repository of federal jurisdiction, would not be exercising judicial power, "and/or would otherwise be acting in a manner inconsistent with the requirements of Ch III [of the Constitution]": at 593 [6]. Central to why these contentions were misconceived is that there is no constitutionally entrenched mode of fact-finding in the exercise of federal judicial power, and when the role of a referee as a special juror is properly understood, it is for the court to consider whether to adopt, vary or reject the report in whole or part; a report is of no legal consequence unless and/or until it is adopted; and it is the court which makes finding of fact in law, either explicitly or implicitly, by adopting the report. Hence the joint toxicology report, upon adoption, recorded implicit findings of the Court in the factual issues the subject of the report in the Earlier Class Actions. 8 The joint chemistry report, however, was not a document that was produced by way of an order for reference, but rather was produced as a joint expert report pursuant to the orders of the Court following a court ordered and facilitated conferral between experts. By the time the Earlier Class Actions had settled, the joint chemistry report had not, as yet, been received into evidence (although had the initial joint trial proceeded, it was inevitable that this would have occurred). Information which constituted a summary of the reasoning in the joint chemistry report was, however, in evidence on the approval hearing and was disclosed in submissions made at that hearing (in the circumstances of that approval hearing, I declined to receive any confidential material and all evidence and submissions were received and made in open Court). 9 To clarify the position concerning the use of the information contained in these documents, the applicants in the Haswell class action request (and the Commonwealth does not oppose) an order releasing the parties and their legal representatives in the Haswell class action from any substantive legal obligation they have that applies in relation to the information contained in the joint chemistry report or the toxicology referee report, for use in the Haswell class action. Dentons were aware the matter was before the Court today and have evidently chosen not to seek to appear (although their clients' lack of consent to the course proposed is clear from the materials that have been provided to the Court). THE REFEREE REPORT AND THE RELEVANT PRINCIPLES 10 In relation to the toxicology referee report itself, the order sought is wholly unnecessary. To explain why, it is necessary to explain the relevant principles. 11 It is basal that information that is not in the public domain and is obtained by compulsory process cannot be used for a collateral or ulterior purpose unrelated to the proceeding in which the information was obtained. Commonly, this restriction on the use of information obtained in this way, used to be described as an "implied" or "Harman" undertaking, after the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280. In Hearne v Street [2008] HCA 36; (2008) 235 CLR 125, the Court (Hayne, Heydon and Crennan JJ, Gleeson CJ agreeing) observed as follows (at 158-160 [107]-[108]): The expression "implied undertaking" is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering "a very serious invasion of the privacy and confidentiality of [their] affairs", any burden which is "harsher or more oppressive ... than is strictly required for the purpose of securing that justice is done." [Harman v Secretary of State for Home Department [1983] 1 AC 280 at 308]. To that statement by Lord Keith of Kinkel of the purpose of the "implied undertaking" may be added others. In Riddick v Thames Board Mills Ltd [1977] QB 881 at 896], Lord Denning MR said: "Compulsion [to disclose on discovery] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice." In Harman v Secretary of State for the Home Department [[1983] 1 AC 280 at 300], Lord Diplock said: "The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides ... through its rules about abuse of process and contempt of court." In Watkins v A J Wright (Electrical) Ltd [[1996] 3 All ER 31 at 42], Blackburne J said: "In my judgment, a serious inroad into [the safeguards referred to by Lord Diplock] and, therefore, into the utility of the discovery process in the just disposal of civil litigation would occur if it were open to a litigant (or his solicitor) to enjoy the fruits of discovery provided by the other side, but avoid the risk of committal for contempt for acting in breach of the countervailing implied obligation on the ground that he was unaware of the existence of the undertaking. I take the view that it does not lie in the mouth of a person to plead ignorance of the legal consequences of the discovery process." To speak in terms of "undertaking" serves: "a useful purpose in that it confirms that the obligation is one which is owed to the court for the benefit of the parties, not one which is owed simply to the parties; likewise, it is an obligation which the court has the right to control and can modify or release a party from. It is an obligation which arises from legal process and therefore is within the control of the court, gives rise to direct sanctions which the court may impose (viz contempt of court) and can be relieved or modified by an order of the court [Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764-765; [1991] 3 All ER 878 at 885 per Hobhouse J]." Staughton LJ said, "[A]lthough described as an implied undertaking it is a rule which neither party can unilaterally disclaim" [Mahon v Rahn [No 1] [1998] QB 424 at 453]. The importance with which the courts have viewed the obligation under discussion is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear [Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37]. "Circumstances under which that relaxation would be allowed without the consent of the serving party are hard to visualise, particularly where there was any risk that the statement might be used directly or indirectly to the prejudice of the serving party" [Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 775; [1991] 3 All ER 878 at 895 per Hobhouse J]. Hence Hobhouse J was correct to conclude: "The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information." [Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764; [1991] 3 All ER 878 at 885, approved in Mahon v Rahn [No 1] [1998] QB 424 at 454 per Staughton LJ] 12 Consistently with its origin and nature, the obligation is best described as the substantive obligation which arises by virtue of the circumstances under which the party or others obtained the relevant information. 13 In understanding why the obligation has no continuing relevance to the use of the toxicology referee report itself, it is important to focus on the rationale for the obligation. Most importantly, the obligation facilitates and protects the discovery process thereby encouraging the necessary disclosure of documents, and connected to this primary purpose, protects the balance of privacy and the compulsory nature of the Court's processes, and prevents the abuse of the Court's processes for an ulterior purpose. 14 When this rationale is understood, the scope of the obligation as stated by Hayne, Heydon and Crennan JJ in Hearne v Street (at 154-5 [96]) makes sense. That is, that 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 [Bourns Inc v Raychem Corp [1999] 1 All ER 908 at 916 [19]; affd [1999] 3 All ER 154 at 169-170], 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. 15 Moreover, the rationale explains why the obligation extends not only to the documents themselves but also to the information derived from these documents: Crest Homes plc v Marks [1987] 1 AC 829 (at 854 per Lord Oliver). It further explains why the obligation extends beyond the parties to privies (Hearne v Street at 145 [57] (Gleeson J) and 161 [110] (Hayne, Heydon and Crennan JJ)); and indeed extends to anyone into whose hands the documents come, if they know that the documents were obtained by way of coercive court processes, for example, funders (Hearne v Street at 160 [109], 161-2 [111] (Hayne, Heydon and Crennan JJ)). 16 The position in this Court as to when reference has been made in open court to the substance of the information contained in a document is clear. FCR 20.03 provides: 20.03 Undertakings or orders applying to documents (1) If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies. (2) However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document. 17 This rule is consistent with the position that would otherwise apply if the rule did not exist. Whatever might have been the position in the United Kingdom (see Harman at 306 (Lord Diplock), 309 (Lord Keith); 326 (Lord Roskill)), the position at common law in Australia is that the obligation comes to an end once a document is tendered in evidence or formally read in open court: Esso Australia Resources Limited v Plowman (1995) 183 CLR 10 (at 32-3 per Mason CJ); Ainsworth v Hanrahan (1991) 25 NSWLR 155 (at 164-5 per Kirby P). Although prior to Hearne v Street, there had been some contrary views expressed by intermediate courts of appeal about the width of the proposition I have just articulated (see Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 (at 342 per Anderson J) and British American Tobacco Australia Services Limited v Cowell [2003] VSCA 43; (2003) 8 VR 571 (at 586-7 [35] per Phillips, Batt and Buchanan JJA)), those doubts (based upon English authority) can be put to one side for at least two reasons. 18 First, even if it were thought (for some reason) that Mason CJ, unusually, did not mean what he said in observing that the obligation is subject to the qualification that once material is adduced in evidence it becomes part of the public domain (Plowman at 32-3), the majority of the High Court made the position as to documents going into evidence plain in Hearne v Street (at 154 - 5 [96] per Hayne, Heydon and Crennan JJ) (see the extract reproduced at [14] above). 19 Secondly, and more fundamentally, the continuing maintenance of the obligation is inconsistent with the relevant information being in the public domain. An aspect of open justice is that information (be it contained in evidence or submissions) is communicated publicly to those present in the court, which in turn allows public and professional scrutiny (including fair and accurate reports of judicial proceedings), and courts will not act contrary to the principle save in exceptional circumstances: see Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 316 ALR 378 (at 387 [44] per French CJ, Hayne, Kiefel, Bell and Keane JJ). This principle is fundamental to the principled exercise of Ch III judicial power. That open justice principles are jealously guarded finds reflection not only in the limited number of exceptions to the principle (e.g., s 121 of the Family Law Act 1975 (Cth)), but also in the fact that when it comes to the express statutory power to make suppression and non-publication orders in this Court, such orders will only be appropriate under s 37AG of the Act when "necessary" (a "strong word": see Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at 664 [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ) and, in deciding to make them, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: see s 37AE of the Act. For the obligation to continue in circumstances where the relevant information is in the public domain, would make no sense given all persons have a common law right to make a fair report of information revealed in any proceeding in open court: see Dickason v Dickason (1913) 17 CLR 50 (at 51 per Barton ACJ, Isaacs, Gavan Duffy, Powers and Rich JJ agreeing); Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836; (2006) 154 FCR 293 (at 296 [16], 298 [25] per Rares J). 20 The practical and more specific statement of the operation of these principles, in this Court, is that the Hearne v Street obligation no longer subsists in relation to information obtained from public domain documents such as: (a) publicly available Court documents, being pleadings or particulars of a pleading or a judgment or a transcript etc (see FCR 2.32); (b) documents that have been tendered; (c) affidavits which have been read; (d) expert reports which have been adduced into evidence; (e) answers to interrogatories tendered; and (f) a document read or referred to in open court in a way that discloses its contents (see FCR 20.03). As to the nature of a hearing in which such evidence is adduced (be it interlocutory, a voir dire, or a final hearing) this does not matter - as long as the hearing was in open court and there was no order made or relevant statutory exception applicable to the use or publication of the information. 21 If follows that any contention that a Hearne v Street obligation subsists in relation to the toxicology referee report itself is fundamentally misconceived: it was not only received into evidence but, as explained above, upon adoption, recorded findings of the Court. 22 The question as to the adjectival information before the referee in conducting the inquiry (which was not required to be conducted in accordance with the laws of evidence) is not as straightforward. Of course, to the extent the substance of that information has been reproduced or otherwise revealed in the report, or in the proceeding on the report, or in later, publicly available submissions, there is no difficulty. But information simply provided to the special jury without thereafter being revealed or becoming publicly available (if such information actually exists), would likely fall into a different category. JOINT CHEMISTRY REPORT 23 The joint chemistry report was not adduced into evidence. Despite this, at least parts of the substance of the joint chemistry report were canvassed and made publicly available in the submissions made on the s 33V application. In the circumstances, there may be some ambiguity as to how much information in the joint chemistry report has emerged into the public domain. ORDERS 24 To the extent that there remains any information referred to in the joint chemistry report which is not in the public domain or any adjectival material before the toxicology referee which has not been revealed, there is no reason why that information should not be able to be used in the Haswell class action. Put more specifically, good reason exists as to why, contrary to the usual position, any such information should be able to be used in this proceeding: see Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 (at 289-90 [31] per Branson, Sundberg and Allsop JJ). Although it is not entirely clear to me that such information does exist, to make assurance doubly sure, I will make an order allowing its use. It is procedurally regular to make mirroring orders in the Earlier Class Actions. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

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