Case: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Outcome: cited
Fourth, the principles of Harman v Secretary of State for the Home Department [1983] 1 AC 280 ( Harman ) signify that Mr Dale and the other applicants, and counsel and solicitors representing them in the proceedings, impliedly undertake to the Court not to use the exhibits or the information contained in them for any other purpose than that of the present proceedings. The implied undertaking is reflected in para (2) of the undertaking proposed by Veda, set out at [4] above. No doubt solicitors and counsel will draw the implied undertaking to the attention of Mr Dale and the other eight applicants if they have not already done so. The implied undertaking also applies, of course, to all the affidavits and exhibits that have already been served. It would be a punishable contempt of court if any of the applicants or any of their legal advisers were to make use of, or to disclose the content of, any of the affidavits or exhibits (including, but not limited to, the four in dispute) to anyone for any other purpose. 40 Fifth, O 46 r 6(3) of the Federal Court Rules provides that except with the leave of the Court or a Judge, a non party must not inspect, relevantly, an affidavit in a proceeding. I treat the reference to "affidavit" in the rule as embracing exhibits to the affidavit (in any event subr (4) of O 46 r 6 provides that except with the leave of the Court or a Judge, or with the permission of the Registrar, a non party must not inspect any document in any proceedings that is not referred to in subr (2) or (3)). Although those rules are concerned with inspection of documents on the Court's files, it is noteworthy that Dun &amp; Bradstreet, DR Capital and CRA and their employees would not be entitled to inspect the exhibits in the Registry without leave. 41 Sixth, I accept that exhibits RAB1, RAB2, RAB3 and RAB8 are confidential to Veda, but, as noted above, I do not find it necessary to determine whether they are confidential in any way or to any extent different from the internal procedural records and instructions maintained by any business. 44 The conclusion I have reached is that the position of Mr Dale's legal representatives and Mr Dale (and the other eight applicants) should be left to be governed by the implied undertaking in accordance with Harman [1983] 1 AC 280. I accept a submission of senior counsel for Mr Dale that his legal advisers should be at liberty to explain to their client, if and as and when they think appropriate, what the exhibits reveal, and to show the exhibits to him for that purpose, subject, of course, to their also explaining to him the implied undertaking he gives to the Court and the potential consequences for him of a breach by, for example, disclosing what he has learned from the exhibits to DR Capital or to CRA. As Toohey J observed in Commonwealth v Northern Land Council [1993] HCA 24 ; (1992) 176 CLR 604 at 638, an undertaking by a litigant's legal representatives not to disclose to the litigant can give rise to considerable difficulties. 56 I propose to publish these reasons and stand over the motion to a date for the making of any orders, including orders as to costs. My present thinking is that there should be no order as to costs because both parties had a measure of success on the motion. In favour of Veda, I have held that at present exhibits RAB1, RAB2, RAB3 and RAB8 should be withheld from DR Capital and CRA, and I have rejected a submission made on behalf of Mr Dale that the exhibits should be treated as if they had become part of the evidence on the final hearing. In favour of Mr Dale, I have not required that he or the solicitors or barristers representing him in this proceeding sign written undertakings to the Court, and have been content to allow their positions to be governed by the undertaking to the Court that is implied in accordance with the principles of Harman [1983] 1 AC 280. The Privacy Act part of the motion took virtually no time at all and was not seriously contested by Mr Dale. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 22 October 2007 Counsel for the Applicant (Respondent to the Motion): Mr T S Hale SC, Mr P W Bates and Mr P Nagle Solicitor for the Applicant (Respondent to the Motion): Gerard Malouf &amp; Partners Counsel for the Respondent (Applicant on the Motion): Mr P M Wood and Mr M S White Solicitor for the Respondent (Applicant on the Motion): The Second Respondent did not appear Ebsworth &amp; Ebsworth Date of Hearing: 8 October 2007 Date of Judgment: 22 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1603.html