Sunday, 21 September 2008

Contempt of court: High Court rules on "implied undertaking"

In the recent High Court case of Hearne v Street, the court had to deal with the issue of the implied undertaking not to disclose documents generated or used in court proceedings for purposes outside those proceedings.

The facts

There was litigation over noise from Luna Park in Sydney. Officers of the company used some of the documents in the proceedings to put to a State Government Minister, which resulting in legislation curing the noise complaints of residents.

Not be outdone, the residents groups proceeded against the company officers for contempt of court. The groups were successful, and the officers appealed, finally ending up in the High Court.

The result

The officers were unsuccessful. Their conduct was held to be contemptuous.

Legal principles

There were three judgments: Chief Justice Gleeson (who agreed with the joint judgment but added a few comments of his own), Justice Kirby ( who spoke at length about how he sought for the officers' counsel to address on whether a submission to an MP may be privileged, but counsel refused) and the joint judgment of Justices Hayne, Heydon and Crennan.

The joint judgment

The key points were:

  • 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, 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, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (citations removed)

  • It is common to speak of the relevant obligation as flowing from an "implied undertaking".

  • The point of insisting on an express undertaking, commonly employed in relation to documents which it is particularly desired to keep secret, is to bring explicitly home to the minds of those giving it how important it is that the documents only be used for the purpose of proceedings. It does not follow that the obligation in question does not exist in more routine cases without the need for an express undertaking.

  • The primary person bound by the relevant obligation is the litigant who receives documents or information from the other side pursuant to litigious processes. The implied undertaking also binds others to whom documents and information are given. For example, expert witnesses, who are not parties, commonly receive such documents and information and are bound by the obligation. It is likely that, in the future, documents and information will be provided to persons funding litigation, who will likewise be bound by the obligation. In Harman v Secretary of State for the Home Department the person in contempt was the party's solicitor[101]. In Hamersley Iron Pty Ltd v Lovell[102] it was the party's industrial advocate. In Watkins v A J Wright (Electrical) Ltd[103] it was a person who was not qualified as a solicitor in the forum, but engaged in day-to-day conduct of the litigation. Laddie J thought "it would be just as much a contempt of court for, say, a shorthand writer or court usher to disclose discovery documents outside the action as it would be for one of the parties to do so."[104] In both England and Australia, these instances have been broadened into a wider and coherent principle. Thus Hobhouse J said: "[A]ny person who knowingly ... does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions"[105].

Chief Justice Gleeson

  • Compulsory pre-trial exchange or disclosure of materials, such as witness statements and experts' reports, is now extensive. The rationale sometimes given for the obligation concerning discovered documents (it is the condition upon which a court compels disclosure of private documents) may not always be applicable to witness statements or experts' reports. There may be little or nothing about them that is private. This, in turn, is connected with the scope of the potential liability of strangers to the litigation into whose hands such materials may come.

Justice Kirby


  • Of course, I recognise that there are arguments supporting the retention of the "implied undertaking" concept, or at least of a substantive prohibition on the release of documents such as those in question in this appeal. For example:
    . Materials prepared for use in court may sometimes be provided under legal compulsion and are deserving of protection on that basis;
    . Such materials may occasionally disclose private, confidential or secret information in respect of which the disclosing party might wish to seek protection at the trial from the court concerned;
    . The material is not, as such, evidence in court until formally received, and some such material might be excluded by the court as irrelevant, objectionable, unfairly prejudicial or otherwise inadmissible; and
    . Judicial supervision of the admission of evidence in a trial affords protection not only to those providing the evidence and to the parties to the proceedings, but also to third parties and the public, whose interests might be affected adversely by the privileged publication, and consequent republication, of the evidence.

    Support for re-expression: As against these considerations, there are many that favour the re-expression of the governing common law in a fundamental way:
    . The growing willingness of courts, in Australia and elsewhere, to drop the fiction of "implied undertakings" suggests that the process of re-expression has already begun;
    . The rule to which that fiction gives rise is burdensome on free expression in contemporary Australian society, and is arguably too absolute;
    . The arguable need to limit the disclosure of documents prepared for use in court may not justify the strict prohibitions hitherto enforced, which may reflect outdated attitudes to the disclosure of information in official hands;
    . In the circumstances of the present case, a relevantly total embargo on the use of the subject documents was arguably inappropriate or disproportionate given that the documents were prepared by the residents themselves; were apparently drafted by their lawyers, who had inferentially provided full and competent legal advice; and were repeatedly stated to encapsulate the evidence to be given by the residents in the trial; and
    . The rapid expansion in recent decades of obligations to prepare and file evidence and argument in written form has significantly altered the environment in which the issue of contempt of court, and other issues, arise for decision in litigation. Arguably, a more nuanced rule to govern the use of such written materials needs to be fashioned by this Court if the law is to be adapted to this shift.

    Conclusion: confinement of appeal: I do not endeavour to resolve these considerations and arguments. I mention some of them to indicate why I regard it as seriously unsatisfactory to be obliged to consider, and decide, this appeal on the basis of decisional law which, virtually without exception, has been developed in the context of a fiction of "implied undertakings".

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