Discovery of affidavits of other litigants - Shannon proceeding
5 As well as Mr Shannon and Mr Belt having sworn/affirmed and filed affidavits in the proceedings against them, other litigants in a number of the investor proceedings have also sworn/affirmed and filed affidavits. On 1 May 2020, Mr Shannon requested the trustee to discover certain categories of documents, including all documents evidencing, and/or analysis of, the source of deposits to the bank account operated by the bankrupt and all documents identifying the recipients of any payments from that account. The trustee is of the view that the affidavits of the litigants in the other investor proceedings are discoverable pursuant to the request for discovery. However, because he is subject to the Harman undertaking that those affidavits not be used for purposes other than the proceeding in which they were filed, the trustee seeks, out of an abundance of caution, judicial advice by way of his interlocutory application of 18 December 2020 filed in the Shannon proceeding that he is justified in providing discovery of those affidavits pursuant to the discovery request. The affidavits in question and the proceedings in which they were filed were listed at Schedule B to the interlocutory application.
6 A party's Harman undertaking will ordinarily yield to the party's obligation to make discovery. In Esso Australia Resources Limited v Plowman [1995] HCA 19; 183 CLR 10 (Esso), Mason CJ (with whom Dawson and McHugh JJ agreed) stated at 33:
It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.
Nonetheless, the fact that a document is affected by the undertaking is relevant to the question of whether an order for its discovery should be made.
7 I am of the view that the trustee is justified in producing the affidavits in question pursuant to the request for discovery in the Shannon proceeding, if such affidavits properly come within the terms of the discovery request (about which I express no view). First, there is a commonality of issues in all these proceedings and secondly, the categories of documents sought by Mr Shannon are plainly directly relevant to the issues in his proceeding. Each of the deponents to those affidavits was given notice of the trustee's application. The trustee's solicitor, Mr Kenneth Chai, deposed to his communications with those deponents:
(a) Mr Boris Janezic, the applicant in FCC proceeding MLG 315 of 2020, objects to the disclosure of his affidavit filed in that proceeding on the basis that the trustee needed to be released from his Harman undertaking in respect of that affidavit by the FCC;
(b) Mr Sam Davidson, the applicant in FCC proceeding MLG 319 of 2020, adopted the objections set out by Mr Janezic;
(c) Mr Alex Ragogna, the applicant in proceeding VID 63 of 2020 before this Court, did not oppose the trustee disclosing his affidavit in the Shannon proceeding by way of discovery;
(d) Ms Trudi Baker (proceeding VID 365 of 2020), Mr Shane Jenkins (proceedings VID 275 of 2019 and VID 164 of 2020), Mr Stephen McWilliam and Ms Vicki McWilliam (proceedings VID 277 of 2019 and VID 69 of 2020), and Ms Marita Martin (proceeding VID 70 of 2020) (Logie-Smith Lanyon deponents), who shared common legal representation, were concerned to ensure that the discovery of their affidavits was limited to matters relating to the deposit and withdrawal of moneys from the gambling scheme operated by the bankrupt, and that any other private information (including expenditure and bank details) would be redacted; and
(e) the balance of the deponents either informed the trustee's solicitors that they neither consented to nor opposed the discovery of their affidavits, or they did not respond substantively to the trustee's solicitors' notification of the application.
8 The response to the objections raised by Mr Janezic and Mr Davidson is that the Harman undertaking will yield to the curial process in other litigation: Esso at 33 per Mason CJ (with whom Dawson and McHugh JJ agreed). As to the concerns raised by the Logie-Smith Lanyon deponents, if their affidavits are relevant to the categories of disclosure in the Shannon proceedings - which, as stated above, are plainly directly relevant to the issues in that proceeding - then, absent a court order permitting redaction, there is no legal basis upon which the trustee is required or permitted to redact irrelevant private information of the deponents. The Logie-Smith Lanyon deponents did not seek to be heard on this matter at the hearing. Moreover, as submitted by counsel for Mr Shannon, Mr Shannon will be bound by the Harman undertaking in respect of affidavits disclosed to him by the trustee by way of discovery.