Plaintiff v Defendant

Supreme Court of Victoria|2005-04-15|Before: HARGRAVE, J.

Implied undertaking as to discovered documents - Discovered documents referred to in open court but not admitted into evidence - Use in subsequent proceedings - Continuance of implied undertaking - Release from implied undertaking.

1 In 1996 Nicholas Bagiotas ("Bagiotas") applied for and was granted by Citicorp Life Insurance Ltd. ("Citicorp") a "total and permanent disablement" policy of insurance ("the policy").

2 At the time Bagiotas applied for the policy, his treating general medical practitioner was, and had been since about 1988, Dr Garry Lubransky ("Dr Lubransky").

3 In February 1995, Dr Lubransky had received two reports about the medical condition of Bagiotas from an ophthalmologist, Dr Steiner. The first was a handwritten letter dated 13 February 1995 stating that Bagiotas suffered from posterior brain-stem and cerebellar symptoms and that if symptoms persisted a CT scan and/or MRI was recommended. The second was a typewritten letter dated 22 February 1995 to similar effect. This letter also stated that Bagiotas had complained of dizziness and intermittent horizontal diplopia for the last ten days. The two reports from Dr Steiner to Dr Lubransky are central to the issues which arise for determination in the applications before me. I will refer to them hereafter as "the Steiner reports".

4 After Bagiotas applied for the policy, Citicorp wrote to Dr Lubransky on 24 July 1996 and asked him for a report containing the essential details of significant consultations, including dates, nature and duration of illness, diagnosis, treatment and details of smoking habits in relation to Bagiotas. In response to Citicorp's request, Dr Lubransky provided a written report to Citicorp dated 7 August 1996 in which he stated:

"Nick has attended over the past 5 years on odd occasions with mild respiratory infections which cleared up quickly. (Blood pressure) 120/70. HIV - NAD.

Early in 1995 he sustained an injury to his left knee whilst skiing and required surgery."

I will refer to this report as "the Lubransky report".

5 It is the failure of the Lubransky report to refer to the Steiner reports, or to the symptoms of Bagiotas referred to in those reports, which is at the heart of the issues which I must decide in the applications before me.

6 In proceeding No. 7612 of 2001 in this Court ("the Bagiotas proceeding") Bagiotas alleged that, whilst the policy was in force, he became totally and permanently disabled within the meaning of the policy, that he had made a claim on Citicorp under the policy and that Citicorp had wrongly denied his claim. He sued Citicorp for the benefits payable under the policy.

7 In its defence in the Bagiotas proceeding, Citicorp alleged against Bagiotas that it was entitled to avoid the policy because of fraudulent non-disclosure by Bagiotas of relevant medical treatment which he had obtained during the five year period prior to inception of the policy.

8 The trial of the Bagiotas proceeding commenced on Friday, 13 June 2003. The only issue was the defence of fraudulent non-disclosure. On behalf of Bagiotas, it was submitted that, as the burden of proof on the only issue was on Citicorp, Citicorp should go first and present its case in support of the alleged fraudulent non-disclosure. The trial judge, relying upon Protean (Holdings) Ltd. (Receivers & Managers Appointed) & Ors v. American Home Assurance Co.[1] accepted this submission. Accordingly, Citicorp was required to present the evidence in support of its case first.

9 Before counsel for Citicorp commenced calling evidence, it became apparent that Citicorp intended to call a Dr Buchanan, who had consulted Bagiotas in 1996. This raised the issue of doctor/patient privilege under s.28(2) of the Evidence Act 1958. Section 28(2) provides:

"(2) No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding or an investigation by a Complaints Investigator under the Accident Compensation Act 1985 any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient."

10 In particular, the issue arose as to whether, by reason of the issues raised on the pleadings in the Bagiotas proceeding, there had been a waiver of patient privilege for the purposes of the Bagiotas proceeding. The matter was stood down for a short while and, upon resuming, Mr D. Beach, S.C. (who appeared at the trial with Mr Wheelahan for Bagiotas) informed the Court that:

"The Dr Buchanan issue, Your Honour, has been resolved, in that we would not claim the protection of s.28(2) in respect of the issues that our learned friend says he wishes to call Dr Buchanan in respect of."

11 Citicorp called three witnesses on 13 June 2003. First, a consultant physician, Dr Wilson. He gave evidence as to what he would have advised Citicorp to do if full disclosure had been made of the prior medical treatment received by Bagiotas at the time of his application for insurance.

12 Dr Buchanan was then called. He gave evidence of his consultation with Bagiotas on 20 September 1996. Bagiotas had been referred to him by Dr Lubransky. Without objection by counsel for Bagiotas, Dr Buchanan was examined by counsel for Citicorp as to the content of the consultation.

13 The content of the referral from Dr Lubransky to Dr Buchanan dated 8 August 1996 was read into evidence by Dr Buchanan. The referral stated:

"This fellow complains of on-going vertigo. For your assessment please."

I note that 8 August 1996 was the day after Dr Lubransky signed the Lubransky report.

14 Dr Buchanan gave evidence that he made notes when he consulted Bagiotas on 20 September 1996. He was asked to read his notes and he did so. The transcript records his notes about his consultation with Bagiotis:

"He was a 33 year old podiatrist presenting with a two-year history of vertigo .... Has vertigo constantly present, and present everyday; occurs on tipping his head back and moving the head, and he describes it as a spinning sensation. Despite this, he was able to work, these vertiginous episodes lasting no more than three seconds. He had a brain scan a year ago that showed no abnormality."

15 Dr Buchanan's notes were tendered in evidence without objection, as was his report to Dr Lubransky. As the trial judge said in respect of Dr Buchanan's evidence when an objection was taken to leading:

"In any event the witness has said plainly what the history was, he has been taken to it. He has read it out."

16 Next, counsel for Citicorp called Dr Lubransky to give evidence. Dr Lubransky gave evidence that he had been the general practitioner for Bagiotas since about 1988. He said that, from the 1980's, Bagiotas rented rooms from him and that Bagiotas conducted his podiatry practice from those rooms.

17 Early in his evidence, counsel for Citicorp attempted to establish that Dr Lubransky was hostile to Citicorp's case. After attempting to establish a social relationship between Dr Lubransky and Bagiotas, counsel for Citicorp put to Dr Lubransky:

"And is it fair to say that, as you sit here now in the witness box, you want Mr Bagiotas to win this case?"

This question was objected to and the following exchange occurred between the trial judge and counsel for Citicorp:

"HIS HONOUR: Yes. That is a most improper question.

MR GLEESON: Well, with respect to Your Honour, not necessarily. It impacts on my - it was asked advisedly, and it was asked because it impacts on my future conduct with this witness.

HIS HONOUR: Well, you can ask the witness questions, and if there is some reason to suspect, from the questions, that the witness is not prepared to give frank answers, then you might make a certain application. But I certainly would not allow the question you just asked."

18 There then followed the leading of evidence from Dr Lubransky by counsel for Citicorp. In the course of that examination, Dr Lubransky gave evidence, based on his notes, that Bagiotas had complained of dizzy spells at about the time that Dr Lubransky wrote a letter of referral for Bagiotas to see Dr Buchanan on 8 August 1996.

19 Further, Dr Lubransky was examined about the Steiner reports. It is necessary to set out the relevant portion of the transcript:

"MR GLEESON: Dr Lubransky, could you be shown, please, court book page 280. Is that a document headed 'Oakleigh Eye Centre'?---That is indeed.

And is that a handwritten communication to you from Dr Mark Steiner dated 13th of February 1985?---Correct.

Does it say: 'This man has posterior brain stem and cerebellum symptoms, diplopia, and some', is it non-stagmus - - -?---'Nystagmus - - -

Mr WHEELAHAN: Your Honour, could I interrupt, at this stage, to say that the contents of that letter, from Dr Lubransky's mouth, is hearsay. It is a letter from Dr Steiner.

HIS HONOUR: Well, it might not be put on that basis. If it is sought to put as evidence of the fact of what is contained in it, that is one thing. But it might not be put that way. I will see.

MR GLEESON: Over the page, does it say, it is 'Fundi'?---'Fundi'.

'Fundi show normal discs with - - -?---'Spontaneous'.

'Spontaneous venous pulsation'?---'Venous pulsation'.

Thank you. 'If this persists, recommend CT scan, et cetera'.

Brackets - does that say, something 'MRI'?---'Et cetera, in brackets 'MRI', 'plus or minus MRI'.

And was this a document that you received?---I did.

Is it the case that in February 1995 Mr Bagiotas informed you that he had double vision, vertigo and some other problem with his eye?

MR WHEELAHAN: Your Honour, I object to that question. It is leading.

MR GLEESON: Well, it is. And I can't think of a better way to do it, Your Honour, but I will keep trying.

(To witness). Having read that document, can you recall Mr Bagiotas telling you anything, in or about February 1995, about his health?---I have no recollection at all.

And upon receiving this document, did you receive another document from Dr Steiner, being at court book 284?---A typewritten report that basically had the same information as the handwritten one.

I tender both CB 280 and 284, Your Honour, not on the basis of the truth of the contents but the fact of receipt by this witness.

MR WHEELAHAN: The fact of receipt, in my submission, is irrelevant.

HIS HONOUR: How does receipt become relevant, Mr Gleeson?

MR GLEESON: It might be, Your Honour - I am going to go to an issue in 1996, in around July and August 1996, and it goes to that issue.

HIS HONOUR: In the ordinary course, it seems to me that those documents couldn't be received, even simply as documents received by the witness. It may be that somehow you will show that this case is an exception. I will note that you have made the application. I won't admit the documents. I will wait and see what happens in the further course of examination, Mr Gleeson."

20 It is common ground that the whole of the contents of the handwritten Steiner report were read in open court and are recorded in the transcript quoted above.

21 Shortly following this exchange, counsel for Citicorp sought to have Dr Lubransky declared a hostile witness so that he could cross-examine him.

22 There then followed a voire dire. In the course of the voire dire, Dr Lubransky was examined about the Lubransky report. The content of the Lubransky report was read into evidence.

23 Dr Lubransky conceded that the documents in his file at the time that he made this report to Citicorp included the handwritten and typewritten communications from Dr Steiner.

24 Dr Lubransky said that he could not recall or explain why he omitted to include, in the Lubransky report, a reference to his referral of Bagiotas to Dr Steiner or to the Steiner reports.

25 Following the evidence on the voire dire, the trial judge ruled that the application to have Dr Lubransky declared hostile was unsuccessful. Following this ruling, the following exchange occurred between counsel for Citicorp and the trial judge:

"MR GLEESON: Your Honour, can I enquire of Your Honour as to whether, notwithstanding that the preceding matters were put to the witness in the context of the voire dire ---

26 The examination-in-chief of Dr Lubransky then re-commenced. Dr Lubransky was asked about a consultation with Bagiotas on 8 August 1996, the day after Dr Lubransky had written his report to Citicorp. Dr Lubransky said he could recall no such consultation. He was referred to a handwritten referral dated 8 August 1996 from him to Dr Buchanan. This was the same referral concerning "on-going vertigo" which had been the subject of evidence by Dr Buchanan, without objection.

27 After the completion of Dr Lubransky's evidence, the case was adjourned until the following Monday. Over the weekend, the Bagiotas proceeding settled. Citicorp agreed to pay Bagiotas $750,000 in respect of his claim.

28 In proceeding No. 9148 of 2003 ("the Lubransky proceeding"), Citicorp sued Dr Lubransky for breach of a duty of care, alternatively for misleading or deceptive conduct, in providing the Lubransky report.

29 The critical allegations in the statement of claim appear in paragraphs 7 and 8, in the following terms:

"7. At the time that the defendant received Citicorp's request dated 24 July 1996 he was aware of the following matters with respect to Bagiotas:

(a) Bagiotas had consulted the defendant in relation to vertigo attacks that he had suffered since at least 1992.

(b) In or about February 1995 the defendant referred Bagiotas to an ophthalmologist, Dr Mark Steiner as a result of the fact that Bagiotas had complained to the defendant about having suffered from dizziness and diplopia;

(i) By handwritten letter dated 13 February 1995 stating that Bagiotas suffered from posterior brainstem and cerebella symptoms (diplopia, some end point nystagmus and vertigo) and that if symptoms persisted a CT scan and or MRI was recommended;

(ii) By type-written letter dated 22 February 1995 stating that:

- Bagiotas had complained of dizziness and intermittent horizontal diplopia for the last ten days;

- When Bagiotas moves his head up and down sometimes he gets this terrible feeling like the walls are out of place;

- His symptoms add up to posterior brain symptoms which puts pathology in the cerebellum/brain stem;

- If things did not settle within a few days it would be worthwhile doing CT scan or even better than that an M.R.I.

(d) The defendant ordered a CT scan for Bagiotas following the written communications from Dr Steiner in February 1995;

(e) On 27 February 1995 Bagiotas underwent a brain CT scan;

(f) In or about late February or early March 1995 the defendant received a report from Victorian Imaging Group dated 27 February 1995 in relation to the CT scan of Bagiotas on 27 February 1995, which report stated that the CT scan revealed a normal study;

(g) Between March 1995 and 24 July 1996 Bagiotas continued to complain to the defendant of vertigo and impaired vision.

The defendant's reply to Citicorp's enquiry dated 24 July 1996 failed to mention any of the matters referred to in paragraph 7 above."

"7. (a) He is unable to plead to paragraph 7 as it seeks the Defendant's response based on information acquired by him in attending a patient, which patient has not consented to the disclosure of such information, and which, by operation of Section 28(2) of the Evidence Act 1958 (Vic), the Defendant is precluded from divulging.

(b) Further to subparagraph (a) hereof, to the extent that paragraph 7 seeks to impugn the privilege established by Section 28(2) of the Evidence Act 1958 (Vic), that paragraph, and this proceeding, is unfair to the Defendant and ought be stayed permanently.

(c) Further or alternatively, the allegations made in paragraph 7 thereof are based on documents obtained by the Plaintiff in answer to compulsory process of the Court issued in proceeding No 7612 of 2001, and thereby constitutes a collateral misuse of those documents, by reason of which paragraph 7 in this proceeding is a contempt of the Court and ought be stayed permanently.

The documents referred to in paragraph 7 of the Statement of Claim were obtained -

(i) in answer to subpoena for production to the Defendant dated 15 August 2002 in proceeding No 7612 of 2001;

(ii) alternatively, by compulsory process of discovery given by the Plaintiff in proceeding No 7612 of 2001.

(d) Otherwise, as well as by reason of subparagraphs (a), (b) and (c) hereof, the Defendant denies the allegations therein.

The Defendant refers to and repeats paragraph 6 and 7 hereof, and by reason of the matters referred to therein, denies paragraph 8 thereof."

31 By summons dated 26 November 2004 in the Lubransky proceeding, Citicorp sought the following relief:

"1. The Plaintiff have leave to amend the Statement of Claim in substantially the form of exhibit 7 to the affidavit of Jonathan Edward O'Riordan sworn 17 November 2004.

A declaration that the Plaintiff is no longer bound by any implied undertaking which otherwise applied to the following documents which were obtained by the Plaintiff, inter alia, by the compulsory process of the Court in Victorian Supreme Court proceedings No. 7612 of 2001:

(a) Handwritten letter from Dr Mark Steiner to Dr Garry Lubransky dated 13 February 1995; and

(b) Type-written letter from Dr Mark Steiner to Dr Garry Lubransky dated 22 February 1995.

Alternatively to 2, if the plaintiff is bound by the undertaking referred to, an order that the Plaintiff be released therefrom."

32 The proposed amendments to the Statement of Claim are in the following form:

"7. At the time that the defendant received Citicorp's request dated 24 July 1996 he was aware of the following matters with respect to Bagiotas:

(a) Bagiotas had consulted the defendant in relation to vertigo attacks that he had suffered since at least 1992.

(b) In or about February 1995 the defendant referred Bagiotas to an opthalmologistophthalmologist, Dr Mark Steiner.

(c) The referral of Bagiotas to Dr Steiner referred to in the previous sub-paragraph was as a result of the fact that Bagiotas had complained to the defendant about having suffered from dizziness and diplopia;

(d) Bagiotas was examined by Dr Steiner in February 1995;

(c)(e) Dr Steiner reported twice to the defendant in February 1995 following his examination of Bagiotas;

(f) The reports by Dr Steiner to the defendant were as follows:

(i) By handwritten letter dated 13 February 1995 stating that Bagiotas suffered from posterior brainstem and cerebellarcerebella symptoms (diplopia, some end point nystagmus and vertigo) and that if symptoms persisted a CT scan and or MRI was recommended;

(ii) By type-written letter dated 22 February 1995 stating that:

- Bagiotas had complained of dizziness and intermittent horizontal diplopia for the last ten days;

- When Bagiotas moves his head up and down sometimes he gets this terrible feeling like the walls are out of place.

- His symptoms add up to posterior brain symptoms which puts pathology in the cerebellum/brain stem;

- If things did not settle within a few days it would be worthwhile doing CT scan or even better than that an M.R.I.

(d)(g) The defendant ordered a CT scan for Bagiotas following the written communications from Dr Steiner in February 1995;

(e)(h) On 27 February 1995 Bagiotas underwent a brain CT scan;

(f)(i) In or about late February or early March 1995 the defendant received a report from Victorian Imaging Group dated 27 February 1995 in relation to the CT scan of Bagiotas on 27 February 1995, which report stated that the CT scan revealed a normal study;

(g)(j) Between March 1995 and 24 July 1996 Bagiotas continued to complain to the defendant of vertigo and impaired vision.

The Plaintiff is now aware of the above matters because:

(i) the documents referred to and/or evidencing the matters alleged in sub-paragraphs (a) to (j) above were tendered into evidence and/or the subject matter of the said documents was read into evidence, which evidence was transcribed, in Victorian Supreme Court Proceedings No. 7612 of 2001 (the "Bagiotas Proceeding") on Friday 13 June 2003. A copy of the transcript is in the possession of the solicitors for the Plaintiff and may be obtained by prior arrangement;

(ii) it came into possession of the documents referred to and/or evidencing the matters alleged in sub-paragraphs (a) to (e) and (g) to (j) above, prior to the Bagiotas Proceeding being issued, in the course of assessing the application for insurance by Bagiotas referred to in paragraph 3 above.

The defendant's reply to Citicorp's enquiry dated 24 July 1996 failed to mention any of the matters referred to in paragraph 7 above."

33 The summons in the Lubransky proceeding was heard by Master Wheeler on 9 December 2004. Master Wheeler dismissed paragraphs 1, 2 and 3 of the summons.

34 By notice of appeal dated 16 December 2004, Citicorp appealed against the Master's dismissal of paragraphs 1 and 2 of its summons. It expressly did not appeal against the dismissal of paragraph 3, as the Master had apparently taken the view, which is now accepted by Citicorp, that such an application (for release from the implied undertaking attaching to the Steiner reports) ought to have been made in the Bagiotas proceeding on notice to Bagiotas. In order to remedy this deficiency, by summons dated 21 December 2004 in the Bagiotas proceeding, Citicorp sought the following relief:

"1. The proceedings be reinstated for the purpose of this application.

2. An order that the defendant be released from the implied undertaking (that it would not use information obtained via the compulsory process of the court in these proceedings for any other purpose) in relation to the following documents obtained by the defendant pursuant to the discovery process in these proceedings:

(a) Handwritten letter from Dr Mark Steiner to Dr Garry Lubransky dated 13 February 1995; and

(b) Type-written letter from Dr Mark Steiner to Dr Garry Lubransky dated 22 February 1995.

3. Such further or other orders as the Court deems appropriate."

35 An order in accordance with paragraph 1 of the summons has already been made. By consent of all parties, the appeal in the Lubransky proceeding against the dismissal of paragraphs 1 and 2 of the Citicorp summons, and the Citicorp summons in the Bagiotas proceeding, were heard together before me on 23 March 2005.

36 There is no dispute between the parties that, by reason of their discovery by Bagiotas in the Bagiotas proceeding, the Steiner documents were the subject of an implied undertaking by Citicorp that it would not use those documents and information derived therefrom for any purpose other than the Bagiotas proceeding. The principal issue raised by the notice of appeal in the Lubransky proceeding is whether, and if so to what extent, Citicorp has been relieved from the consequences of that implied undertaking because the Steiner reports were the subject of evidence in the Bagiotas proceeding, as described above. In this regard, Mr O'Callaghan, Q.C. and Mr Gleeson, who appeared for Citicorp, submitted that either:

(1) the implied undertaking ceased to have effect when the Steiner reports entered the "public domain" upon being referred to in evidence given in open court in the Bagiotas proceeding; or

(2) by reason of the Steiner reports being referred to in evidence in the Bagiotas proceeding, Citicorp was entitled to use, outside the Bagiotas proceeding, the information about the contents of the Steiner reports which was contained in the transcript of the trial of the Bagiotas proceeding. It was submitted that this was a permissible use of such information, as it could be obtained from a permissible "derivative source" other than the Steiner reports themselves.

37 Mr Ruskin, Q.C. and Mr Moloney, who appeared for Dr Lubransky, submit that Citicorp remains bound by the implied undertaking in respect of the Steiner reports. Accordingly, the proposed amendments to the statement of claim ought be refused. In summary, it was submitted on behalf of Dr Lubransky that the Steiner reports have not entered the "public domain" to a sufficient extent to have any impact upon the continuation of the implied undertaking with respect to them. These arguments were supported by Mr Murdoch, who appeared on behalf of Bagiotas.

38 I note that no application has been made on behalf of Dr Lubransky to have the portions of the statement of claim which refer to the Steiner documents struck out as an abuse of process because they are based upon a breach of the implied undertaking and thus a contempt of court. Nor has any application been made to stay any aspect of the Lubransky proceeding on this ground. However, I do not think that anything turns on this. The matter has been fully argued and, if the pleadings based on the Steiner reports are a contempt of court, then this Court can of its own volition step in and order the appropriate stay unless, of course, a release from the implied undertaking is ordered in the Bagiotas proceeding.

39 The summons in the Bagiotas proceeding seeks such a release. I note that the release which is sought is an unlimited release. However, in argument, the only release which has been sought is for the purposes of the Lubransky proceeding and I will treat the summons as seeking a release limited to that extent.

40 It was argued on behalf of Dr Lubransky, and also on behalf of Bagiotas, that the doctor/patient privilege arising under s.28(2) of the Evidence Act militated against me exercising my discretion to either allow the proposed amended statement of claim or to release Citicorp from the implied undertaking in relation to the Steiner reports.

41 In respect of the application for leave to amend the statement of claim, it was submitted that s.28(2) had the effect of rendering the proposed amendments futile. This futility, so it was argued, arose because the relevant aspect of the proposed amendments which is in issue is based upon the Steiner reports. It was submitted that Bagiotas did not, and would not at any time in the future, consent to Dr Steiner giving evidence as to the subject matter of the Steiner reports. Thus, the amendment proposed was, in this regard, hopeless.

42 As to the effect of s.28(2) upon the exercise of my discretion to release Citicorp from the implied undertaking, it was submitted that I ought not exercise my discretion in favour of Citicorp because such an exercise of discretion would be inconsistent with the statutory intent of s.28(2).

43 A number of cases have considered the issue of the extent to which the implied undertaking is released, if at all, by virtue of particular documents being either adduced into evidence or referred to in open court. The cases are analysed in the recent decision of the Court of Appeal in British American Tobacco Australia Services Ltd. v. Cowell (representing the Estate of McCabe (deceased) (No. 2))[2] ("Cowell").

44 In Cowell, the issue concerned the use that might be made by the plaintiff of certain documents produced to the Court by the defendant in an earlier proceeding between the same parties and put in evidence, but in large part only after the trial judge had overruled a claim by the defendant (the appellant, British American Tobacco) to legal professional privilege. The background facts are complicated and I do not propose to refer to them in any detail in this judgment. Suffice it to say that, in the earlier proceeding, a number of documents were put in evidence on an application to strike out the defence of British American Tobacco. Some 38 documents were in question. In a separate decision of the Court of Appeal, it was held that 32 of these documents were still protected by legal professional privilege and that, on this account, ought not have been admitted into evidence. That left six documents still in issue. However, as a special leave application had been filed in the High Court, the Court of Appeal proceeded to deal with the implied undertaking issue as though all 38 documents were still in question.

45 The issue in Cowell was identified in the following way:

"The issue at first instance, and on this appeal, was whether the marking of the 38 documents as exhibits during the hearing of the respondent's application to strike out the defence of the appellant brought the implied undertaking to an end, leaving the respondent free to make whatever use she wished of the documents in question, without the need for leave of the Court. That was the contention of the respondent below and it was the view espoused by the judge. The appellant contends that that was error."[3]

46 The Court of Appeal commenced its examination of this issue by referring to the well known English cases of Harman v. Secretary of State for the Home Department[4] ("Harman") and Sybron Corporation v. Barclays Bank Plc[5] ("Sybron").

47 In Harman, the argument that the implied undertaking came to an end when documents the subject of it were read out in open court, when the public were notionally present, was rejected by the majority.[6] In both Harman and Sybron, an argument that it would be inconsistent to require a party bound by the implied undertaking to continue to honour it in circumstances where a member of the public, who was present in court and heard the contents of the document being read aloud or who read the transcript, was free to use the information about the contents of the document which was thereby disclosed, was rejected.[7]

48 In my opinion, with one exception, the Court of Appeal in Cowell accepted the continued authority of Harman and Sybron. I note that doubt was expressed as to the statement in Sybron that the implied undertaking continues to apply to information derived from discovered documents, even where those documents have been dealt with in detail in the transcript or the judgment of the court.

49 For example, the Court of Appeal stated in Cowell:

(1) "In Sybron, Scott, J. held that even disclosure of the documents within the reasons for judgment did not entitle the party to whom they had been discovered (as distinct from any member of the public) to make free with the contents of the documents. Indeed his Lordship was apparently of the view that that party was not free (without leave) to make use even of the transcript of proceedings or (as we follow it) the contents of the judgment itself, in so far as that transcript or that judgment dealt in any detail with discovered documents. With respect, however, we take leave to doubt that that is correct. It seems to us that if the party has available an alternative source of information about the contents of the documents, even a source deriving from the discovery of the documents, then, if that source be public, the party to whom the documents were first discovered should arguably be as free to make use of that alternative source of information as any member of the public undoubtedly is. That would mean that in Harman the solicitor should be regarded as having transgressed because she made free with the documents themselves as distinct from the transcript of what had been said in open court; but that is not the point of the case under appeal. What the respondent seeks in this instance is to make use of the documents themselves. Suffice it to say here that both Harman and Sybron were concerned, to a greater or lesser extent, with documents that actually went into evidence, so that both cases do lend weight to the appellant's argument that the respondent remained bound by her implied

undertaking despite the marking of these 38 documents as exhibits in the course of the application to strike out the defence."[8]

(2) "For a time we were troubled about the difficulties that might be caused in practice if a distinction were to be drawn between documents made available under coercion and tendered otherwise than by the party seeking protection (if they are to remain subject to the implied undertaking) and all other evidence in the cause or matter, which is available for use by anyone at least to the extent that it is in 'the public domain'. But on reflection we think the problem more apparent than real. The parties are the very persons who will be aware of the status of documents produced under coercion and it is only the parties who are made subject to the implied undertaking. Strangers to litigation are entitled to make what use they can of what they hear in open court (whether or not of documents) or read in the transcript of the proceedings (if they have a transcript) or see in the reasons for judgment once published (which happens not uncommonly on the internet these days). As already mentioned, we do not as yet subscribe to the opinion expressed by Scott, J. that the parties may not make use of what appears in the judgment; we should have thought that once a document is copied or quoted in the reasons for judgment, its contents to that extent are public knowledge and use can accordingly be made, by party and non-party alike, of what appears in the judgment. That is merely to emphasise the possible difference between the documents themselves and some alternative, albeit derivative, sources of information. But, as with all the other evidence at trial, it will be the parties who are well aware of the special status of the documents provided between them under compulsion and it is only the parties who are affected by the distinction. The party gaining access to another's documents is properly regarded as in a privileged position by reason of the court's processes, and it is that privilege which ought not to be abused."[9]

(3) "As earlier indicated, we see it as at least strongly arguable that, if it has become public knowledge in all respects, unlimited use can then be made of it outside the court room on the ground that the party, who must be taken to have given the undertaking, should not then be in any better or worse position than a stranger to the litigation. But that is not the primary concern at this stage."[10] [Emphasis added.]

(4) "Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into "the public domain") by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large - but only as to such information - there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case."[11]

50 In my view, Cowell stands as authority for the narrow proposition that the mere passing of a document into evidence does not relieve the party bound by the implied undertaking from its obligations in respect of that document.[12] Beyond this, the joint judgment of the Court contains many obiter dicta statements, some of which are set out above, concerning the use which a party may arguably make of information about documents which, by reason of their use in open court, enters "the public domain".

51 In my opinion, pending resolution of the questions left open by the Court of Appeal in Cowell, I ought to apply Harman and Sybron. As I have said, Cowell itself stands for a narrow proposition which, although relevant, is not decisive of the issues which I must decide.

52 Harman was a case involving the use which could be made of a document, the subject of an implied undertaking, once it had been read in open court. The majority clearly held that the implied undertaking continued, at least in respect of the document itself, notwithstanding the reading of the document in open court.[13]

53 Further, in his speech, Lord Roskill dealt with an issue such as that which confronts me in this case. At 324-5, his Lordship said:

"My Lords, Mr Price understandably shrank from pressing his argument to what I would regard as its logical conclusion, namely that once a bundle of documents was placed before the judge, the entire contents of that bundle entered 'the public domain' irrespective of whether any particular document in that bundle was thereafter read aloud or not. But it seems to me that any such rule would be fraught with the further difficulty that such a bundle may well contain documents which though relevant and therefore previously properly disclosed are for the various reasons subsequently held to be inadmissible evidence in the particular case. Nonetheless their contents will often have been read in open court as part of the argument on the issue of admissibility.

My Lords, it is perhaps worth recalling that when Scott v. Scott [1913] A.C. 417 was decided most civil cases were tried by juries. If a question arose as to the admissibility of a particular document, the judge would have heard argument and given his ruling in the absence of the jury. Were he to rule a document to be inadmissible, it is quite unthinkable that its contents could thereafter have been said to have passed into the public domain merely because it had been read in open court and thus become freely available to the world at large."

54 In Sybron, Scott J. (as he then was) said at p. 322:

"If proceedings are held in open court information derived from any record of those proceedings can be used by third parties without regard to undertakings which may bind the parties thereto or their solicitors. But the position of the parties themselves depends not on what third parties may be able to do but on the scope of the undertaking that binds them. The purpose of the undertaking is to protect, so far as is consistent with the proper prosecution of the action, the confidentiality of the party's private documents. And thereby to encourage the full and proper disclosure of documents that the administration of justice requires. It seems to me unacceptably inconsistent with that purpose that the protection of the undertaking should be lost on account of the fortuitous reading in open court of the document.

... In my judgment the undertaking that binds the party on whom it is imposed prevents use by him of the information contained in a discovered document unless he has obtained the information from a source which is independent of and not derived from the discovery. If counsel reads a discovered document, if a witness refers to it or if the judge refers to it or reads it, in each case the use being made of the document would be a use made possible by the discovery and a transcript thereof could not in my judgment be regarded as an independent source. It follows that the fact that the contents of a discovered document may have reached the public domain does not, in my judgment, per se relieve a party from the implied undertaking."

55 In Hamersley Iron Pty. Ltd. v. Lovell and anor[14] ("Hamersley Iron"), the Full Court of the Supreme Court of Western Australia considered the effect of references to a discovered document in open court upon the continued existence of the implied undertaking. Ipp J. (with whom Pidgeon J. agreed) and Anderson J. both applied Harman and Sybron. They found that the implied undertaking had not been terminated because the documents in question had been referred to in open court. Accordingly, the collateral use of them was a contempt of court.

56 Ipp J. went on to consider the dissenting speech in Harman by Lord Scarman (with whom Lord Simon agreed) and an obiter dicta statement by Mason C.J. in Esso Australia Resources Ltd. v. Plowman[15] that:

"The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it."

57 Ipp J. proceeded to consider the case before him on the ground that the dictum of Mason C.J., or the dissent of Lord Scarman in Harman, constituted the law. On this basis also, Ipp J. was of the view that, on the facts of the case before him, the implied undertaking continued and the collateral use of the documents represented a contempt of court. This was because, at the stage the documents were read aloud in open court, they had not been admitted in evidence. They were read aloud for the purposes of an application to have them admitted into evidence. That application was refused. Thus, the documents in question were not "adduced in evidence" and did not satisfy either the qualification to the implied undertaking stated in the dictum of Mason, C.J. or the sense in which Lord Scarman in Harman referred to documents being "produced and read out in whole or in part in the course of a public trial".[16]

58 Anderson J. was content to follow and apply Harman as decisive of the issue before him. As to the dictum of Mason C.J. in Esso, Anderson, J. stated that it was probably intended to refer to the situation of third parties and not a party who was bound by the implied undertaking.[17] In this regard, his Honour noted that Mason C.J. cited Harman with unqualified approval in Esso[18].

59 In my view, the reference to the Steiner reports in evidence at the trial of the Bagiotas proceeding has not operated to relieve Citicorp of its implied undertaking to only use those documents for the purposes of the Bagiotas proceeding. In this regard, I follow Harman, Sybron and Hamersley Iron. In my opinion, the fact that the Steiner reports were not admitted into evidence is conclusive. However, even if they were admitted into evidence, this would not, by itself, be enough to extinguish the implied undertaking in respect of them. This was the narrow point decided in Cowell.

60 I recognise that there are indications in a number of the dicta in Cowell that the Court of Appeal may, when the issue is before it for decision, impose a qualification on the implied undertaking in respect of information about the contents of documents which enters the public domain "in all respects". However, as the law stands at the present time, I take the view that I ought to apply Harman, Sybron and Hammersley Iron.

61 It follows that Citicorp's appeal in the Lubransky proceeding against the refusal by the Master to make a declaration in accordance with paragraph 2 of the Citicorp summons, must be dismissed. However, the appeal against the refusal by the Master to permit the statement of claim to be amended, as sought by paragraph 1 of the Citicorp summons, will only fail if I refuse to release Citicorp from the implied undertaking in respect of the Steiner reports, as sought by Citicorp in its summons in the Bagiotas proceeding. I turn now to consider that question.

Citicorp's Application for Release from the Implied Undertaking

62 As stated above, I will treat the application by Citicorp in the Bagiotas proceeding as one for a partial release from the implied undertaking, limited to use of the Steiner reports for the purposes of the Lubransky proceedings and not otherwise.

63 The principles upon which the Court should act in exercising its discretion to relieve a party from an implied undertaking have been canvassed in a number of cases. There was no real dispute before me as to the applicable principles to be applied. The fundamental principle is that the Court, in the exercise of its discretion, ought not release or modify the implied undertaking unless there are "special circumstances" and where the release or modification will not occasion injustice to the person who gave discovery of the documents in issue: Crest Homes Plc v. Marks[19]; Holpitt Pty. Ltd. v. Varimu Pty. Ltd.[20]; Springfield Nominees Pty. Ltd. v. Bridgelands[21].

64 In Springfield Nominees Pty. Ltd. v. Bridgelands, Wilcox J. referred to the authorities and stated, at p.225:

"For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."

65 To the list of factors mentioned by Wilcox J. as being relevant to the identification of "special circumstances" in a given case, I would add another. The extent to which the information contained in the documents under consideration has entered the

65 "public domain" is a relevant factor. This was recognised in Cowell[22] and in Sybron[23].

66 Of course, each case must depend upon its own facts. In this case, I am prepared to exercise my discretion in favour of Citicorp and to give it a limited release from the implied undertaking in respect of the Steiner reports so as to enable it to use those reports for the purposes of the Lubransky proceeding. I am prepared to exercise my discretion in this way because of the following special circumstances of this case:

(1) The information contained in the Steiner reports has already been the subject of disclosure in open court in the Bagiotas proceeding, albeit in circumstances where the actual tender of the two reports was refused.

(2) There was other evidence in the Bagiotas proceeding, given in open court and without objection, as to the medical condition of Bagiotas. It is evidence as to this very medical condition which will be in issue in the Lubransky proceeding.

(3) Citicorp's case in the Lubransky proceeding is not based solely on the Steiner reports. It is based upon the other evidence given in the Bagiotas proceeding and upon a number of other documents which Citicorp obtained from sources other than discovered documents in

the Bagiotas proceeding.[24] Indeed, it was conceded on behalf of Dr Lubransky in argument that the case against Dr Lubransky was not based solely on the Steiner reports and could, and was likely, to proceed without them.

(4) It follows that there is, absent a settlement, going to be a case involving an examination of the relevant medical condition of Bagiotas. This will occur whether or not I release Citicorp from its undertaking in respect of the Steiner reports. If I do not release Citicorp, the court in the Lubransky proceeding will be presented with an incomplete jigsaw of evidence regarding what Dr Lubransky did or did not know about the medical condition of Bagiotas at the time he prepared the Lubransky report. Such a situation would not accord with the aim of achieving justice in the Lubransky proceeding.

67 I am not persuaded that there will be any injustice occasioned to Bagiotas arising from the use of the Steiner reports in evidence in the Lubransky proceeding. Once it is accepted that the Lubransky proceeding will involve an examination of what Dr Lubransky knew about the medical condition of Bagiotas in 1996, any claim by Bagiotas that he will suffer prejudice by having his personal medical history discussed in open court ceases to have any real weight. This will happen irrespective of the Steiner reports being referred to in evidence at the trial of the Lubransky proceeding.

68 In my view, s.28(2) of the Evidence Act is not a bar to the exercise of my discretion in favour of Citicorp. That section will fall to be considered at the time when Citicorp seeks to adduce admissible evidence of the Steiner reports at trial. At that time, Bagiotas may or may not consent to the Steiner reports being given in evidence by Dr Steiner. Mr Murdoch submitted that his present instructions were to maintain the privilege and that he could not see that the position would ever change. That may or may not be so. As Mr Ruskin submitted on behalf of Dr Lubransky, Citicorp could have made it a condition of its settlement with Bagiotas that he waive any privilege in the event that Citicorp sought to proceed against Dr Lubransky, or anyone else, seeking contribution in respect of the amount which it agreed to pay Bagiotas to settle his claim. It follows that there is nothing preventing Bagiotas and Citicorp reaching an agreement in the future.

69 There are also issues of possible waiver by Bagiotas in relation to the s.28(2) privilege. Although I am inclined to agree with the submissions put on behalf of Dr Lubransky and Bagiotas, that any waiver for the limited purposes of the Bagiotas proceeding was not a general waiver enabling Citicorp to rely upon it for the purposes of the Lubransky proceeding, this issue does not fall for determination at this stage. It will fall for determination if and when Citicorp seeks to lead evidence of the Steiner reports at the trial of the Lubransky proceeding.

70 Based on the above reasons, I propose to order as follows.

The appeal against the refusal of the Master to make declarations in accordance with paragraph 2 of the plaintiff's summons dated 26 November 2004 is dismissed.
The appeal against the Master's refusal to allow the plaintiff to amend its statement of claim, as sought by paragraph 1 of its summons dated 26 November 2004, is allowed.
The plaintiff have leave to amend the statement of claim in substantially the form of Exhibit 7 to the affidavit of Jonathan Edward O'Riordan sworn 17 November 2004.

72 In Bagiotas v. Citicorp, I will order as follows:

The defendant be released from its implied undertaking (that it would not use information obtained by reason of the compulsory process of this Court in this proceeding for any purpose other than this proceeding) in relation to the following documents obtained by the defendant on discovery from the plaintiff:

(a) handwritten letter from Dr Mark Steiner to Dr Garry Lubransky dated 13 February 1995; and

(b) typewritten letter from Dr Mark Steiner to Dr Garry Lubransky dated 22 February 1995.

The release from the implied undertaking which is the subject of the previous order is limited to the defendant using the documents which are the subject of the release for the sole purpose of prosecuting proceeding No. 9148 of 2003 in this Court, and not otherwise.

[1] [1985] VicRp 18; [1985] V.R. 187.
[2] [2003] VSCA 43; (2003) 8 V.R. 571.
[3] At [21].
[4] [1983] 1 A.C. 280.
[5] [1985] Ch. 299.
[6] Per Lord Diplock at 305-6; Lord Keith of Kinkel at 308-9; Lord Roskill at 324; Cowell at [23].
[7] Harman at 324-5 per Lord Roskill; Sybron at 321-2; Cowell at [24]-[26].
[8] At paragraph [28].
[9] At [38].
[10] At [41].
[11] At [49].
[12] At [48] and [49].
[13] At 306 per Lord Diplock; 308 per Lord Keith of Kinkel; 326 per Lord Roskill.
[14] (1998) 19 WAR 316.
[15] (1995) 183 C.L.R. 10 at 32-33.
[16] At 322-3.
[17] At 341.
[18] At 32.
[19] [1987] A.C. 829 at 860.
[20] [1991] FCA 269; (1991) 29 F.C.R. 576 at 578.
[21] (1992) 38 F.C.R. 217 at 225.
[22] At paragraphs [26], [34] and [35].
[23] At 322-3.
[24] These are referred to in paragraphs 10-15 and 16-22 of the affidavit of Jonathan Edward O'Riordan sworn 17 November 2004 on behalf of Citicorp.

At a glance

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Judgment (189 paragraphs)

Cases Cited (1)