Plaintiff v Second Defendant

1 In a separate proceeding of Mulquiney v Reynolds & State of Victoria[1] ('Mulquiney'), documents were produced under subpoena from the Department of Health and Human Services ('DHHH'). Those documents were medical records of the first defendant, held from his admission at a clinic known as Mayday Hills where he received psychiatric treatment. Mr Mulquiney's proceeding resolved prior to any of those records entering the public domain by being tendered into evidence.

2 Section 27 of the Civil Procedure Act 2010 ('the Act') imposes an obligation on parties to that proceeding, not to use information or documents other than in connection with the proceeding in which they are produced.

3 Section 27 of the Act reads as follows:

1. Protection and use of information and documents disclosed under overarching obligation in section 26

(1) A person who receives any information or documents provided by another person involved in the civil proceeding as a result of disclosure in compliance with the overarching obligation in section 26 is subject to an obligation not to use the information or documents, or permit the information or documents to be used, for a purpose other than in connection with the civil proceeding.

(2) The obligation under subsection (1) is taken to be an obligation to the court, contravention of which constitutes contempt of court.

(3) A person -

(a) may agree in writing to the use of information or documents otherwise protected under subsection (1); or

(b) may be released from the obligation imposed under subsection (1) by leave of the court.

(4) Without limiting this section or discovery in any civil proceeding any information or documents exchanged in compliance with the overarching obligation in section 26 is required to be discovered in the civil proceeding to be admissible in that proceeding.

(5) Nothing in this section limits any other understanding to a court (implied or specific) whether at common law or otherwise, in relation to information or documents disclosed or discovered in a civil proceeding.

This section codifies the implied undertaking given to the Court as described in Hearne v Street[2] which is often referred to as a Harman[3] undertaking.

4 The plaintiff in this proceeding wishes to rely on the records so produced. Like Mr Mulquiney, the plaintiff in this proceeding claims damages for injury occasioned by sexual assault by Mr Reynolds and the records are relevant.

5 Both the plaintiff's solicitor and the second defendant are subject to the implied undertaking given to court in Mulquiney's proceeding, not to use the documents received in subpoena for any collateral purpose. Although the second defendant in both proceedings and the solicitors for Mr Perez (who also represented Mr Mulquiney) are agreeable to the use of the documents, it is necessary for a court to give leave to release them from that undertaking. Relevantly, the consent of DHHS has been sought and obtained,[4] Mr Reynolds as defendant has taken no part in either proceeding having written to the plaintiff's solicitors acknowledging receipt of the Writ and Statement of Claim in both the Mulquiney and Perez proceedings and advising he has no funds to pay damages or legal representation, and that he is presently incarcerated. He has taken no active role in either proceeding, not having filed any application or defence. Relevantly, due to his lack of participation he made no objection to the release of documents in Mulquiney, to other parties.

6 The applicable principle to be applied when dispensation from the undertaking is sought is that the court's power is exercised where special circumstances appear. This common law test has been held to apply in circumstances of s 27 of the Act in both Barrow v McLearnon[5] and Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking).[6]

7 In this case the plaintiff specified that medical records held by DHHS relating to Mayday Hills treatment of Reynolds are documents for which release is sought and the purpose is limited to use in this proceeding.

8 In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[7] Wilcox J outlined the features that might amount to 'special circumstances' as contemplated by Hearne. He said in an often quoted passage:

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 which is not usually present. The matter then becomes one fir 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 documents (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.[8]

9 In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[9] the Full Court of the Federal Court of Australia said this of "special circumstances":

The notion of 'special circumstances' does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.

10 In this case the parties haven't identified particular aspects of the medical records that they seek to use. The matters that are relevant to whether special circumstances apply in this case that I have had regard to are:

(a) The overlay of subject matter between proceedings and in particular the acts of Reynolds and any treatment sought by him following allegations made against him of sexual abuse of students which are relevant in both proceedings.

(b) The records are relevant to abuse in relation to Mr Perez which occurred after the period of treatment covered by the records.

(c) The fact that Mr Reynolds, whose records they are, did not object on the ground of medical privilege to the release of the records to the parties in Mulquiney.

(d) The fact that Mr Reynolds is a party to both proceedings and has not taken any active role in either. The situation would clearly be different if the records related to a person not a party.

(e) The documents were produced and were examined by parties pursuant to subpoena but not entered into evidence by reason of settlement between Mr Mulquiney and the State of Victoria.

(f) It would be inefficient, costly and burdensome for parties in this case to have to obtain again the same body of relevant material from DHHS in this proceeding.

(g) It would be inefficient and burdensome for DHHS to again produce identical documents for management in this proceeding. DHHS has consented to the use of the records it produced in Mulquiney being used in this proceeding.

11 Therefore in the circumstances where the documentation is likely to be of relevance and of assistance to parties in narrowing the issues in dispute and to the court in determining the matters in dispute, and could otherwise be produced by answer of a further subpoena in this proceeding in identical terms, I am satisfied that it is appropriate to release the parties from their obligations under s 27(1) of the Act and their implied undertaking at common law in respect to the documents to enable the use of them in this proceeding. I'm mindful of the court's duty to give effect to the overarching purpose of the Act as set out in ss 7 and 8 and to further the overarching purpose in ways set out in s 9.

12 I am especially mindful of the efficient conduct of business and the use of judicial and administrative resources. I have also given consideration to the timing of the application and the prospect of delay of trial if the subpoena process were to be required. It would be preferable, perhaps even necessary that such applications were heard and determined at the earliest opportunity rather than the commencement of a trial.

[1] Mulquiney v Reynolds & State of Victoria , S ECI 2019 02580 (Macaulay J).

[2] [2008] HCA 36; (2008) 235 CLR 125 ('Hearne').

[3] Harman v Secretary of State for Home Department [1983] 1 AC 280.

[4] Affidavit of Grace Wilson (22 May 2020, Perez v Reynolds &State of Victoria, S ECI 2019 02972).

[5] [2012] VSC 134 (Beach J), [23].

[6] [2017] VSC 735 (Macaulay J) ('Ubertas').

[7] [1992] FCA 472; (1992) 38 FCR 217 ('Springfield').

[8] Ubertas (n 6) quoting Springfield, 225.

[9] [2005] FCAFC 3; (2005) 218 ALR 283, 286 [31].