Land and Environment Court New South Wales Medium Neutral Citation: Jali Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 67 Hearing dates: 8 April 2011 Decision date: 08 April 2011 Jurisdiction: Class 3 Before: Biscoe J Decision: Leave granted to file and serve documents so as to rely upon them as evidence. Catchwords: PRACTICE AND PROCEDURE:- principle that documents compulsorily disclosed in proceedings, and not received into evidence, cannot without leave of the Court be used for any other purpose. Legislation Cited: Uniform Civil Procedure Rules 2005 r 21.7 Cases Cited: Hearne v Street [2008] HCA 36, 235 CLR 125 Home Office v Harman [1983] 1 AC 280 Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217 Category: Procedural and other rulings Parties: Jali Local Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent) Representation: Mr M Wright (Applicant) File Number(s): 30290/10 EX TEMPORE Judgment 1This is an Aboriginal land claim. The applicant seeks leave by consent to file and serve the following documents in these proceedings so as to rely upon them as evidence: (a)a settlement agreement between Jali Local Aboriginal Land Council and the Council of the Shire of Ballina dated 23 January 1992; and (b)a National Parks and Wildlife Service memorandum from Ann Ross, "Allegations of breach to s 90 of the Act: implications for law enforcement in Districts and Regions", dated 1 December 1988. 2The applicant's concern is that these documents are, or may be subject to, the general principle that documents and information compulsorily disclosed for the purpose of proceedings and not received into evidence, cannot without leave of the court be used for any other purpose. That restriction is commonly described as an implied undertaking although it is a substantive legal requirement: Hearne v Street [2008] HCA 36, 235 CLR 125 at [96], [3]. 3In Home Office v Harman [1983] AC 280 the House of Lords held that it is a principle of law that an order for discovery is subject to an implied undertaking by the solicitor obtaining that order not to use or allow the documents, or copies of them, to be used for collateral or ulterior purposes; that is, otherwise than for the purposes of the litigation in which discovery is given. 4This principle applies not only to documents obtained on discovery but to documents obtained by way of any other compulsory court process. In Hearne v Street at [96] - [98] Hayne, Heydon and Crennan JJ held (omitting citations): 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, 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... 97 It is common to speak of the relevant obligation as flowing from an "implied undertaking". 98 It may be noted that the general law protection is often buttressed by protection from rules of court. Thus until 15 August 2005, the New South Wales Supreme Court Rules 1970, Pt 65, r 7, prevented strangers to litigation from having access to documents or things on the court file without the leave of the Court: see also Practice Note No 97. From 1 March 2006, Practice Note SC Gen 2 prescribed procedures in relation to access to Supreme Court files. The most important paragraphs are: "6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: + pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; + documents that record what was said or done in open court; + material that was admitted into evidence; and + information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist." 5In relation to discovery, the general law protection is now buttressed by r 21.7 of the Uniform Civil Procedure Rules 2005 which provides: 21.7 Discovered documents not to be disclosed (1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court. (2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order. 6Leave to use documents covered by the principle should only be granted in special circumstances. In Springfield Nominees Pty Ltd v Bridgeland Securities Ltd (1992) 38 FCR 217at 225 Wilcox J said: 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. 7The National Parks and Wildlife Service memorandum was produced on subpoena to the applicant in proceedings brought in this Court in 1991: Jali Local Aboriginal Land Council v The Council of the Shire Ballina (40069/1991). 8In the current proceedings, on 1 February 2011 the applicant issued a subpoena to the National Parks and Wildlife Service, the Department of Environment Climate Change and Water to produce that memorandum. 9By letter dated 5 April 2011 the Solicitor for the Department of Premier and Cabinet advised the Court that the Department of Environment Climate Change and Water was now known as the Office of Environment and Heritage and that the Office was unable to locate and produce the memorandum. 10In a separate letter of that date, the solicitor confirmed that the Office had not been able to locate the memorandum; none of the people who appear to have signed the document presently worked at the Office and in the absence of an original the Office was not able to verify the authenticity of the document; and the Office did not object to the use of documents that were produced by the National Parks and Wildlife Service in response to the 1991 subpoena in the present proceedings. 11The memorandum was produced under the coercive subpoena power of the Court and was not received into evidence. Therefore, in my opinion, it is covered by the principle. However, in my view, the circumstances that I have recounted constitute special circumstances which justify granting leave to the applicant to file and serve the memorandum in these proceedings so as to rely on it as evidence. 12I turn to the settlement agreement. It settled the 1991 proceedings between the applicant in these proceedings and the Council of the Shire of Ballina. It was annexed to short minutes resolving those proceedings, which noted the agreement and undertakings by the parties and that the proceedings were discontinued. It was not produced in those proceedings under any coercive power of the court. Therefore, in my view, it does not fall within the principle. Consequently, special circumstances are not required to give leave to rely upon it. However, I propose to grant leave to the applicant, independently of the principle, to file and serve the settlement agreement in these proceedings so as to rely upon it as evidence. 13Accordingly the orders of the Court are that the applicant has leave to file and serve the following documents in these proceedings so as to rely upon them as evidence: (a) settlement agreement between Jali Local Aboriginal Land Council and Council of the Shire of Ballina dated 23 January 1992; and (b) National Parks and Wildlife Service Memorandum from Ann Ross, "Allegations of breach to s 90 of the Act: Implications for law enforcement in Districts and Regions", dated 1 December 1988. 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. Decision last updated: 20 April 2011