New South Wales Supreme Court CITATION : Brooks v Law Society of New South Wales [2009] NSWSC 28 HEARING DATE(S) : 6 February 2009 JUDGMENT DATE : 6 February 2009 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 6 February 2009 1. Orders are made in terms of paragraph 1 of each of the Notices of Motions filed in Court today, 6 February 2009. DECISION : 2. The Plaintiff is to pay the costs of the Defendant of the application. 3. With respect to the Notice of Motion filed 2 September 2008 (as between Mr Nicholas Eddy and the Law Society of New South Wales), orders are made in terms of paragraph 1 of the Short Minutes of Order dated today. CATCHWORDS : PRACTICE AND PROCEDURE - application for leave to use documents obtained for proceedings - release from implied undertaking LEGISLATION CITED : Legal Profession Act 2004 Civil Procedure Act 2005 CATEGORY : Procedural and other rulings Hill v James [2004] NSWSC 55 CASES CITED : Brooks v Prothonotary of Supreme Court of New South Wales [2008] NSWCA 31 Hearne v Street (2008) 248 ALR 609 Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283 PARTIES : David George Brooks (Plaintiff) Law Society of New South Wales (Defendant) FILE NUMBER(S) : SC 13048/05 COUNSEL : No appearance of Plaintiff Mr N Beaumont, Mr T Maltz (Defendant) SOLICITORS : Raymond John Collins (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 6 February 2009 13048/05 David George Brooks v Law Society of New South Wales JUDGMENT 1 JOHNSON J: This is an application by the Defendant, the Law Society of New South Wales ("the Society"), for leave to use documents and information obtained in preparation of these proceedings for the Society to conduct its investigation of a complaint initiated against the Plaintiff, David George Brooks, and to institute and prosecute any resulting proceedings in the Administrative Decisions Tribunal. 2 The application has proceeded ex parte today. Counsel appeared for the Society. 3 I am satisfied that all persons affected by the application have been given notice of the application. I am satisfied that all persons served have either indicated their non-objection to the relief being sought or have not responded. Ultimately, there has been no indication that any objection is made to the relief sought. In any event, it is a matter for the Court to determine whether the relief sought ought be granted. 4 It is necessary to say something briefly concerning the background to this application. In 2004, Bergin J delivered judgment in a matter, Hill v James [2004] NSWSC 55. Her Honour, in the course of that judgment, made findings with respect to the conduct of the Plaintiff, Mr Brooks, and referred his conduct to the Legal Services Commissioner for consideration. In due course, the Legal Services Commissioner referred the matter to the Society for investigation. 5 After an investigation, the Council of the Society determined to cancel Mr Brooks' practising certificate and refused to renew it. He was informed of that decision on 16 June 2005. On 13 July 2005, Mr Brooks filed a Summons in this Court by way of an appeal against that decision. 6 The hearing of Mr Brooks' appeal was listed to commence on 28 August 2006 before me, with a two-week estimate. On 25 August 2006, Mr Brooks and the Society signed consent orders asking the Court to dismiss Mr Brooks' Summons filed on 13 July 2005 (that is, to dismiss the proceedings in their entirety), and to order Mr Brooks to pay the Society's costs on an indemnity basis. On 28 August 2006, I made orders to that effect by consent. 7 Thereafter, it appears that Mr Brooks made application to the Court of Appeal for an order that his name be removed from the local roll of lawyers kept pursuant to s.32 Legal Profession Act 2004. That application came before Bell JA (as her Honour was) on an application by the Society to stay the proceedings. The Society sought a stay of Mr Brooks' application in the Court of Appeal pending the outcome of its investigation into Mr Brooks' conduct, and any proceedings which may arise as a result of that investigation. 8 On 14 March 2008, Bell JA made orders staying the proceedings pending the outcome of the investigation by the Society into the conduct of Mr Brooks, and any proceedings arising as a consequence of that investigation: Brooks v Prothonotary of Supreme Court of New South Wales [2008] NSWCA 31. 9 The present application by the Society seeks leave to permit the Society to utilise the large volume of documents gathered for the purpose of the proceedings ultimately dismissed by me in the circumstances outlined above. It will be apparent that there was no hearing on the merits before me. Although a substantial volume of material had been gathered by way of subpoena and other process from a large number of persons and entities, none of that material was tendered in open Court or read in evidence because no hearing proceeded. 10 The material obtained for the purpose of proceedings, by means of Court process, is subject to an implied undertaking that the material will not be used except for the purpose of the proceedings. The relevant principles with respect to an implied undertaking of this type are summarised in the decision of the High Court of Australia in Hearne v Street (2008) 248 ALR 609 at 632 [96], in the judgment of Hayne, Heydon and Crennan JJ. The applicable test is whether or not special circumstances exist to justify the grant of leave. It is sufficient that there is a special feature of the case which affords a reason for modifying and releasing the undertaking of confidentiality: Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283 at 289-90 [31] and [35]. 11 I accept the submission of the Society that there is, and remains, a strong public interest in the investigation and, if it is considered appropriate, prosecution of disciplinary proceedings in the Administrative Decisions Tribunal with respect to Mr Brooks. There is a large volume of material which has been gathered, a significant part of which is subject to the implied undertaking to which I have referred. 12 There has been some delay in the bringing of this application which was initiated by Notice of Motion filed on 26 February 2008. I am satisfied that the delay in bringing the application to hearing has resulted from efforts required to serve affected parties, including a person who resides overseas. 13 The ultimate issue for determination in any proceedings before the Administrative Decisions Tribunal would concern the fitness of Mr Brooks to remain on the roll. That is a matter of public interest, which will be advanced by the making of orders to ensure that the Society (in the exercise of its functions) and, if proceedings are commenced, the Administrative Decisions Tribunal (in the exercise of its functions) have free and unfettered access to, and ability to use, material obtained under compulsory process for the purpose of proceedings in this Court. 14 In the circumstances, I am satisfied that orders should be made in accordance with paragraph 1 of the Amended Notices of Motion filed in Court today. Accordingly, I make orders in terms of paragraph 1 of each of the Amended Notices of Motion filed in Court today, 6 February 2009. [Submissions as to costs] 15 The Society seeks an order that the costs of this application be paid by the Plaintiff, Mr Brooks. I have set out in this judgment some background to the bringing of this application, and the role of Mr Brooks in that respect. It seems to me, that from Mr Brooks' perspective, this application ought to have been clear-cut and simple. A volume of material had been obtained in proceedings to which he was a party. The Society was making an entirely proper and appropriate application to this Court. 16 The evidence indicates that this relatively straightforward application has been rendered complicated by Mr Brooks' response to it, as recently as 27 January 2009 (Exhibit A). The obligation of litigants in civil proceedings under s.56 Civil Procedure Act 2005 involves facilitating the just, quick and cheap resolution of the real issues in dispute. It seems to me that, from Mr Brooks' perspective there could not be any legitimate dispute about this application. However, he has constructively opposed it, until there is a somewhat qualified statement of non-opposition in the letter of 27 January 2009. 17 In all the circumstances, I am satisfied that the justice of the case ought see an order that Mr Brooks pay the costs of the Society of the application. Accordingly I order that the Plaintiff, David George Brooks, pay the costs of the Defendant, the Law Society of New South Wales, of the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.