Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd - [2020] NSWLEC 140 - NSWLEC 2020 case summary — Zoe

[5]

Are the 2013 Affidavits Relevant to the Issues in Dispute in the 2019 Proceedings?

If the 2013 affidavits do not comprise "relevant evidence" pursuant to and as defined in s 55(1) of the Evidence Act, that is, if they cannot "rationally affect (directly or indirectly) the assessment of the probability of the evidence of a fact in issue in the proceedings", their tender must be rejected.
Having regard to the proposed purposes of the tender of the 2013 affidavits, it cannot be the case that the affidavits, all of which comprised evidence from persons having specialised expertise in various disciplines, could rationally affect the assessment of the probability of the evidence of the fact of an asserted similarity between the issues raised by the Council in the 2012 proceedings and the issues raised in the 2019 proceedings, as those issues were identified by the Verde Terra parties.
Rather, the similarity, if any, that exists between the issues raised in the 2012 and 2019 proceedings is to be ascertained by a comparison between the pleadings filed in both sets of proceedings (including the Agreed Issues in the 2019 proceedings), the proper construction of the 2014 consent orders, an analysis of the 2014 agreement, and by having regard to the evidence of the circumstances surrounding the entering into of that agreement and the making of those orders (for example, by reliance on the written and oral submission put before the Court in the 2014 consent orders hearing). It cannot be deduced by recourse to the opinions of experts engaged by the parties in the 2012 proceedings, whose evidence was never admitted into evidence (and in two instances not even filed in the proceedings), was prepared over a year before the making of the 2014 orders, and was never tested.
Affidavits are not prepared, sworn or filed for the purpose of identifying issues in proceedings. Rather, they are drafted to establish facts that may be relevant to an issue otherwise identified. The relevance of the contents of affidavits is determined by reference to the issues raised by the proceedings in which they are filed, not the other way around.
Much of the reasoning set out above also disposes of the second stated proposed purpose for the tender of the 2013 affidavits, namely, to demonstrate that prior to the Council procuring the making of the 2014 consent orders it had obtained input from persons with specialised knowledge and expertise in a range of disciplines.
But beyond this fact, namely, that the Council had engaged various experts, the Verde Terra parties were unable, despite being pressed by the Court to do so, to identify any aspect of any of the 2013 affidavits that was relevant to an identified issue.
This was no doubt because: 1. first, as stated by them, the Verde Terra parties were not relying on the contents of the affidavits for a non-hearsay purpose. However, in the absence of a hearsay purpose it is difficult to understand what aspects of the actual contents of the affidavits had probative value, that is, what was relevant; 2. second, the fact that the Council engaged a variety of specialists to give expert evidence has no bearing on the construction of the 2014 consent orders or the actual intentions or beliefs of the parties or their legal representatives in entering into those orders; and 3. third, the engagement by the Council of the experts and the preparation of their affidavits cannot, contrary to the submission of the Verde Terra parties, have any bearing on the exercise of any discretion by the Court in these proceedings as to whether or not the 2014 consent orders should be set aside if the Court finds that they were made illegally, irregularly, or in contravention of public policy. The 2013 affidavits do not reflect any advice the Council obtained in respect of the making of the 2014 agreement or consent orders or what transpired in the preceding mediation and, to reiterate, cannot be used to construe those orders. The 2013 affidavits do no more than record the opinions of the deponents as to the matters they were asked to opine upon at that point in time. There was no asserted or demonstrated nexus by the Verde Terra parties between the 2013 affidavits and the making of the 2014 agreement and consent orders.
The Verde Terra parties relied, in particular, upon the remarks in C G Maloney Pty Ltd v Noon [2011] NSWCA 397 where Campbell JA observed that (at [68]): 68 I agree that the evidence relevant to an Anshun estoppel is wider than the evidence relevant to res judicata or issue estoppel, and that "a broad merit-based judgment" that "takes account of all the facts of the case" would permit the court to receive the submissions of counsel in the First Proceedings. When the essential question in an Anshun estoppel case concerns the reasonableness of the manner in which litigation has been conducted, any facts that bear upon that reasonableness are relevant. …
They therefore submitted that the 2013 affidavits bear upon the reasonableness of the manner in which the 2019 proceedings have been conducted and are therefore relevant.
However, other than to state at a very high level of generality that the 2013 affidavits provided an indication as to the beliefs and intention of the Council during the 2012 proceedings, the Verde Terra parties were again not able to articulate how the affidavits bore upon the reasonableness of the present litigation. The 2013 affidavits, unread and unchallenged, provide no basis for this Court to draw any inferences as to the state of mind of the Council when the 2014 agreement was entered into and the 2014 consent orders were made.
The logical corollary of the expansive scope that the Verde Terra parties attributed to the remarks in C G Maloney would permit almost all evidence prepared for earlier proceedings to be adduced in later proceedings where Anshun estoppel is pleaded. I do not understand that his Honour intended his comments to be applied in this manner. In this context, it is significant that what was at issue in that case was the admissibility of submissions of counsel in earlier litigation (at [63]). Plainly these were relevant and admissible, as was held by the Court of Appeal. It is not a matter of controversy that the submissions furnished to the Court by the parties during the making of the 2014 consent orders in the 2012 proceedings are admissible in the 2019 proceedings.
Finally, it should be noted that the failure of the Verde Terra parties to provide any of the annexures and exhibits to the 2013 affidavits (reliance upon which was nevertheless pressed in the Verde Terra parties' notice of motion) served to exacerbate the lack of relevance of that material.
For these reasons I find that the 2013 affidavits are not relevant to the identified issues in the 2019 proceedings. Accordingly, their tender must be rejected.

[6]

Should the 2013 Affidavits be Excluded Pursuant to s 135 of the Evidence Act?

If the Court is wrong in its conclusion as to the relevance of the 2013 affidavits and they are admissible, should the Court nonetheless refuse to admit the evidence pursuant to s 135 of the Evidence Act? That provision states as follows: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might - (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time.
In oral argument the Council eschewed any reliance on s 135(c) of that Act. This was wise given its delay in bringing its notice of motion.
Rather, the Council submitted that if the 2013 affidavits had any probative value this would be marginal at best and would be substantially outweighed by the danger that the evidence might be unfairly prejudicial to it or be misleading or confusing.
I agree with the Council, especially in the absence of the Verde Terra parties being able to identify or articulate which aspects of the contents of the 2013 affidavits they relied upon. My reasons for doing so are: 1. first, as the Ball affidavit indicates, albeit in somewhat inchoate terms, there will be a need for further work to ascertain whether additional material from the 2012 proceedings ought to be tendered. This is particularly so because the Verde Terra parties assert that there is significance to be attached in the 2019 proceedings to the circumstances in which the Council obtained affidavits from experts prior to the entry of the parties into the 2014 consent orders, however, there is no evident connection between the obtaining of input from those experts and the making of those orders; 2. second, in the absence of the deponents being available for cross-examination, the parsing and perusal of the 2013 affidavits would be unfair; 3. third, a careful comparison between the expert evidence contained in the 2013 affidavits and that relied upon in the 2019 proceedings would be required in order to ascertain whether there was an issue or matter that was considered and available in the earlier proceedings that was not reasonably pursued and which is now sought to be agitated by the Council in the 2019 proceedings; 4. fourth, the 2013 affidavits were not read and in two instances, were not filed. They were prepared well in advance of the entry into the 2014 consent orders; and 5. fifth, although the Verde Terra parties sought leave to rely upon the contents of the 2013 affidavits and their annexures (see the terms of their notice of motion), the affidavits put before the Court and served upon the Council were in an incomplete form, that is, without either the annexures or the material exhibited to those affidavits.
The Verde Terra parties submitted that any danger of unfair prejudice or that the admission of the 2013 affidavits might mislead or confuse could be mitigated by a limitation as to their use under s 136 of the Evidence Act: 136 General discretion to limit use of evidence The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might - (a) be unfairly prejudicial to a party; or (b) be misleading or confusing.
Again, the Verde Terra parties were unable to state what this limitation would be. If it was to the effect that the use of the 2013 affidavits would be limited to a non-hearsay purpose, not only had this concession already been made by them, it would, as discussed above, render the probative value of the affidavits even more marginal. Indeed it is difficult to conceive what value would remain (other than the bare fact that certain experts were retained by the Council and prepared reports in their respective fields of expertise) were the affidavits subject to a limitation under s 136, or even what the content of the limitation would be sufficient to cure the danger of the misleading and confusing use of the affidavits.
Therefore, even if the 2013 affidavits were relevant, the Court would exercise its discretion to exclude them under s 135 of the Evidence Act.

[8]

Relevant Legal Principles

The Harman undertaking (sometimes referred to as the "implied undertaking", derived from the decision in Harman v Secretary of State for Home Department [1983] 1 AC 280) was described in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 in the following terms (at [95]-[96], emphasis added): 95 Before turning to the appellants' submissions in relation to the extent and enforceability of the "implied undertaking", it is desirable to set out some background legal principles which were not in controversy. 96 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 (93), 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 (94), answers to interrogatories (95), documents produced on subpoena (96), documents produced for the purposes of taxation of costs (97), documents produced pursuant to an a direction from an arbitrator (98), documents seized pursuant an Anton Piller order (99), witness statements served pursuant to a judicial direction (100) and affidavits (101). The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
The Harman undertaking is in truth an obligation of substantive law that creates a duty owed to the Court (Hearne at [107]-[108], Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 at [24] and Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 at [16]). The reason for the rule is that compulsion by curial process to produce documents involves an invasion of a private right to keep 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 (Hearne at [107]).
The authorities state that in order to be released from the Harman undertaking, an applicant must show the existence of "special circumstances" (Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223-225). However, the establishment of "special circumstances" does not require that extraordinary factors exist before the discretion can be exercised, only that good reason must be shown in all of the circumstances why, contrary to the usual principle, documents produced or information obtained in one litigation should be able to be used for the advantage of a party in other litigation or for non-litigious purposes (Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [31]).
In relation to the application of the test of "special circumstances", in Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 Brereton J (as his Honour then was) observed as follows (at [43]-[44]): 43 The cases refer, on an application for leave to use documents subject to the implied undertaking for extraneous purposes, to a test of "special circumstances" [see Crest Homes plc v Marks [1987] 1 AC 829 at 860 (Lord Oliver); Esso Australia Resources Limited v The Honourable Sidney James Plowman [1995] HCA 19; (1995) 183 CLR 10 at [37] (Brennan J)]. However, not too much should be read into the word "special" [see Ainsworth v Hanrahan (1991) 25 NSWLR 155 at [168] (Kirby P); Holpitt Pty Limited v Varima Pty Limited (1991) 29 FCR 576 at [579]-[579] (Burchett J); Springfield Nominees v Bridgelands at [222]-[224] (Wilcox J)]. 44 Generally, all that is required by special circumstances is some good reason - or, as I would be inclined to put it, some circumstance - that warrants relief from the undertaking. In State of New South Wales v McCarthy [2015] NSWSC 1780, Fagan J adopted with approval the dicta of the full Federal Court in Liberty Funding Pty Limited v Phoenix Capital Limited [2005] FCAFC 3; (2005) 218 ALR 283 at [31]. In particular, his Honour stated:: …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…[see also Global Medical Solutions Australia Pty Ltd v Axion Molecular Pty Limited [2013] NSWSC 665 at [21] (Stevenson J)].
And in Papantoniou the Court of Appeal observed that (at [30]): 30 Assessment against those criteria must be made having regard to the nature of this discretion concerned. That matter was considered by the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283. It was there said (at [31]) that a party in the position here occupied by Aristotelis and Efthemia must show "special circumstances" in order to be released from the obligation. This does not mean that "some extraordinary factors must bear on the question before the discretion will be exercised". In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd, (1992) 38 FCR 217, Wilcox J said (at 225) that 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. In other words, good reason must be shown why, contrary to the usual position, the constraint should not apply; and that reason must be found in all the circumstances of the case. If the court does find "special circumstances", it then has "a broad discretion as to whether or not to grant leave": James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673 at [27] (Edmonds J).
More recently in Leagou, White J, citing Springfield (at 225) and Liberty (at [31]), usefully collated the matters identified as bearing upon the existence of "special circumstances" and the exercise of the discretion (at [18]): 18 A number of matters have been identified as bearing upon the existence of special circumstances and the exercise of the discretion. These include: the nature of the document; the circumstances under which the document 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; and most importantly of all, the likely contribution of the document to achieving justice in the other proceedings. See Springfield Nominees at 225; Liberty Funding at [31].

[9]

Does the Harman Undertaking Apply to the 2013 Affidavits?

The Council argued that the use of the 2013 affidavits for the purpose of the 2019 proceedings would be in contravention of the implied undertaking.
By contrast, the Verde Terra parties submitted that the undertaking did not apply to the 2013 affidavits because: 1. first, the affidavits were not filed or served under compulsion as required; 2. second, even if the Harman undertaking did apply, it was not infringed by the tender of the 2013 affidavits because of the proposed defensive use by them of those affidavits in answer to the Council's claim that the 2014 consent orders should be set aside on the grounds of illegality, irregularity, or by reason of the orders being contrary to public purpose; and 3. third, leave should in any event be granted for the release or variation of that undertaking to allow the 2013 affidavits to be tendered.
In Hearne the plurality of the High Court appeared to unequivocally state that the principle applied to "affidavits" (at [96] per Hayne, Heydon and Crennan JJ). However, as subsequent authorities reveal, the question of whether affidavits filed in compliance with orders of the Court fixing a timetable for the provision of evidence for trial are disclosed under the relevant degree of coercion, is vexed.
That question is raised here because the Daniel affidavit discloses that almost all of the 2013 affidavits sought to be tendered by the Verde Terra parties were filed and served pursuant to ordinary timetabling directions made by Craig J. Those directions were not compulsive.
The Verde Terra parties argued that properly analysed the succinct statement in Hearne had no application to the present case because in Hearne the High Court did not turn its mind to the threshold issue of whether the Harman undertaking properly applied, rather it merely proceeded upon the agreed position of the parties that it did (relying on what was said at [1], [79], [83] and [96]). Accordingly, Hearne holds no binding precedential value in the present applications (citing CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] per Gleeson CJ, Gummow and Heydon JJ).
Furthermore, when regard is had to the two cases referred to at footnote 101 in Hearne (at [96]), namely, Medway v Doublock Ltd [1978] 1 WLR 710; [1978] 1 All ER 1261 and Re Addstone Pty Ltd (In liq); Ex parte Macks (1998) 30 ACSR 156, these decisions are distinguishable from the facts of the present case because in each case there was the necessary element of compulsory disclosure.
In Medway, the respondent was restrained by a court from using in separate proceedings two affidavits of means sworn by Mr Medway in unrelated proceedings brought against him by his wife in family court litigation. The two affidavits had been filed in the latter proceedings pursuant to court orders requiring him to give full financial disclosure of his financial circumstances.
Similarly, in Re Addstone, confidentiality orders had been made in earlier proceedings in respect of certain affidavits filed by a liquidator. Creditors of the company in liquidation filed a motion seeking access to the affidavits. The liquidator agreed to provide the confidential affidavits to them, however, an issue arose as to whether the creditors should only be entitled to use the information contained in the affidavits in their capacity as creditors and not as defendants in any proceedings against them. Mansfield J, who heard the application, considered that it was not necessary to impose such a condition as part of any order made by him that the affidavits be provided because the order to produce the affidavits was "the equivalent of an order for discovery", and therefore, the "normal implied undertaking" not to disclose those documents from a collateral purpose applied (at 160).
In the result, the Verde Terra parties submitted that neither case stands as authority for the proposition that the Harman undertaking applies to affidavits filed or served voluntarily in the ordinary course of litigation.
The Verde Terra parties are not alone in this contention. After considering both Medway and Re Addstone, Brereton J in Helicopter 'doubted' that the undertaking attaches to affidavits, "other than affidavits which disclose information in answer to an order or rule that requires information to be disclosed" (at [30]). His Honour concluded that (at [33] and [39]): 33 Accordingly, in my view, the two cases referred to in Hearne v Street provide scant, if any, support for a general proposition that the principle extends to affidavits served in the ordinary course of litigation. … 39 Accordingly, I seriously doubt whether in principle the implied obligation attaches to affidavits sworn and served in the ordinary way in the course of proceedings. By reference to "the ordinary way", I exclude affidavits sworn in response to orders for disclosure, such as of the type referred to in Medway v Doublelock. But, in referring above to "the ordinary course", I do not regard a mere timetable requiring affidavits to be used in proceedings to be served by a particular date as amounting to compulsory process. Such a timetable does not compel a party to disclose information that it does not wish to disclose, and it does not compel a witness to disclose any information; it simply fixes a time by which any evidence to be relied on must be served. It is quite distinct from an order which requires a party to make an affidavit deposing to certain matters, which would amount to compulsory process in the relevant sense.
In respect of the analogy with witness statements (relied upon by the Council in these applications) Brereton J opined as follows (at [34]-[37]): 34 It is true that the authority in respect of witness statements served pursuant to a judicial direction is rather stronger and it might, at first sight, be thought that by analogy the same principle applied to affidavits. The principal authority in respect of witness statements is the well-known judgment of Wilcox J in Springfield Nominees v Bridgelands. In that case, his Honour pointed out, with reference to Central Queensland Cement (to which I have already referred), that the service of a witness statement was analogous to answers to interrogatories, and that this was fortified by the rule of the Federal Court that affidavits filed were not open for inspection without leave unless and until ultimately read. What his Honour emphasised, as McPherson J in Central Queensland Cement had also done, was that the practice directions pursuant to which witness statements were served were a means of making information available only for the purpose of the proper preparation and conduct of the litigation. 35 Against that, it has never been the case that pleadings have been regarded as subject to the implied undertaking, nor other evidence served in support of the pleadings, such as the claim book in Attorney-General (N.T.) v Maurice [1986] HCA 80; (1986) 161 CLR 475. The basis upon which witness statements are treated as subject to the implied undertaking was helpfully explained by King CJ of South Australia in State Bank of South Australia v Smoothdale (No 2) Limited (1995) 64 SASR 224. That case was concerned with witness statements which had been served under the then New South Wales Practice Note, but ultimately not read or tendered in the proceedings. His Honour reasoned that, prima facie, witness statements were privileged in the hands of the party who obtained the statement from the witness. That, with respect, is undoubtedly correct. Conventionally and traditionally, a witness statement remained the privileged document of the party who obtained it, and provided the proof which would go into counsel's brief and presumably be used by counsel to elicit the witness' oral evidence in Court. In the absence of some waiver - for example, by resort to the statement for refreshing recollection or the like - the witness statement remained confidential and privileged. As King CJ said: Statements of witnesses are by their nature confidential documents. Their communication to another party for a limited purpose pursuant to a court order does not appear to me to deprive them necessarily of every element of their confidential character. They retain the character, except as the use by the other party for the limited purpose, until either the witness makes the statement public by verifying it on oath in the witness box, or the party who served the statement waives the privilege, or a party puts the statement in evidence pursuant to leave granted under the practice note. 36 The Chief Justice distinguished the circumstances of the claim books in Attorney-General (N.T.) v Maurice by observing that the claim books' very purpose was to communicate the particulars of the claim to the other parties, and that once communicated, there could be no evidence of confidentiality. The purpose of requiring the advance service of witness statements was to facilitate the just, quick and cheap disposal of the proceedings and provide advance notice to the other parties of the evidence which the witnesses are expected to give, and thereby to facilitate the hearing, perhaps even to the point of the use of the statements as evidence-in-chief. But from that analysis, it is tolerably clear that the view that the implied undertaking applies to witness statements until they are deployed in open court derives from their original and initial confidential and privileged character. 37 The same cannot be said of an affidavit. An affidavit is a written statement made by a person who swears or affirms before a duly authorised functionary that the statement is true. Historically, in the Court of Chancery, where evidence was generally given on affidavit, the affidavit was the testimony of the witness. Indeed, if the affidavit was lost, the evidence was lost. Although nowadays, for reasons of convenience, affidavits may be sworn before solicitors - even before the solicitor acting for the party making the affidavit, though that is often regarded as undesirable as a matter of practice - historically that was not permitted; thus, the swearing of the affidavit took place not privately but before a functionary, such as a Commissioner for Affidavits or Justice of the Peace. And the affidavit is not mere advance notice of the evidence that it is expected a witness will give, but is the evidence of the witness. It is made, unlike a witness statement, not in the context that it might be regarded as confidential until and unless required to be deployed, but on the basis that it will serve as a person's sworn evidence in proceedings. As is observed in Wigmore on Evidence (1972, 4th ed, Chadbourn Revision) at paragraph 1331, in theory, the testimony or deposition was the writing and nothing else. In Daniell's The Practice of the High Court of Chancery (vol 1, 4th ed) at pages 824-825, it was observed that an affidavit must be made in some cause or matter actually pending at the time it is sworn, and otherwise cannot be received. While that has been departed from in some respects in the modern law, that reveals another distinction between an affidavit and a witness statement, and reinforces the view that an affidavit sworn in proceedings is not a confidential, let alone privileged, document. These matters place an affidavit in a markedly different position from a witness statement.
I respectfully endorse and apply his Honour's reasoning in this regard.
Sitting at first instance, his Honour ultimately declined to depart from Hearne and proceeded upon the basis that the affidavits did attract the implied undertaking (at [41]), but he nevertheless granted leave to use the affidavits for an extraneous purpose having regard to the voluntary nature of the affidavit, the intent that it be used and read in open court, and because it was not a confidential or privileged document.
An analysis similar to that in Helicopter was recently engaged in by the Victorian Court of Appeal in Davey v Silverstein [2020] VSCA 233, resulting in the same conclusion, namely, that not every affidavit filed in compliance with a rule of court is relevantly produced under compulsion attracting the Harman principle (at [78] per Kyrou, Kaye and McLeish JJA).
Somewhat surprisingly, the "important question of principle" raised by Brereton J's careful and considered analysis in Helicopter has not been the subject of any express consideration by the Court of Appeal in this State (see the remarks by White JA in Gwynvill Properties Pty Ltd v UTSG Pty Ltd [2017] NSWCA 208 at [25]-[27]). This may be because the issue is invariably resolved by focussing on the question of whether the undertaking ought to be released.
In the Federal Court of Australia the authorities concerning whether or not affidavits filed in compliance with orders of the Court fixing a timetable for the preparation of evidence for a hearing do not definitively resolve the controversy, but the weight of authority in that jurisdiction favours the conclusion that the Harman undertaking does not attach to the 2013 affidavits (see the authorities reviewed by White J in Leagou at [22]-[27]). This is because they were filed and served voluntarily.
Having said this, I adopt the approach of Brereton J in Helicopter and White J in Leagou, namely, that given the uncertainty in the existing case law and given that these applications are being determined at first instance, I should err on the side of caution and assume that the Harman principle is applicable and determine whether or not the Verde Terra parties ought be granted release from the undertaking.

[10]

The Verde Terra Parties Must be Released from the Harman Undertaking

The proposed purposes of the tender of the 2013 affidavits, and therefore, the purposes for which the release is sought, warrant, in my view, the release of the undertaking. This is because: 1. first, the proposed purposes are pursued in directly related proceedings to the present proceedings. That is, the setting aside of the 2014 consent orders resolving the 2012 proceedings is central to the determination of the 2019 proceedings; 2. second, the release is not sought for a collateral or ulterior purpose, rather it is sought to adduce evidence directly in support of their defences to the Council's summons and cross-summons in the 2019 proceedings; 3. third, the proposed purposes for the tender of the 2013 affidavits are in support of the Verde Terra parties' arguments based on doctrines of abuse of process and estoppel and to resist contentions of illegality, irregularity and public policy, which are not usually present in litigation; 4. fourth, there is nothing about the 2013 affidavits that suggests that they were prepared with any expectation that they would bear a confidential or privileged character. The affidavits do not contain any commercially sensitive or personal information. On the contrary, they were prepared in the ordinary course of litigation with the expectation that they would be used in open court; 5. fifth, the 2012 proceedings and the 2019 proceedings involve substantially the same parties; 6. sixth, the 2013 affidavits were voluntarily prepared, filed and served; and 7. seventh, the Council has been on notice of the Verde Terra parties' intention to tender the affidavits since late November 2019, however, and in default of Court orders, no objection was raised by the Council to their proposed tender until mid August 2020. While it can be accepted that additional work by the Council will be required to deal with the 2013 affidavits if tender is permitted (see the Ball affidavit), the scope of this additional work remains imprecise. It is not certain that their tender would result in the part-heard proceedings not concluding within the further 15 days allocated to hear it.
In short, were I required to do so, I would be inclined to release the Verde Terra parties from the Harman undertaking, assuming that it attaches to the 2013 affidavits in the first place.

At a glance

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Judgment (12 paragraphs)

Cases Cited (27)

Cited By (3)