Case: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Outcome: applied
for ThoughtWeb Systems referred me to what Lord Diplock said in Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 300: 'The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.' Later, in a passage which has subsequently been cited, e.g., see EMI Resources Ltd v Spillane (1986) 1 WLR 967 at 972, his Lordship said (at 304 305): '... An order for production of documents to a solicitor on behalf of a party to civil ligation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party's documents obtained upon discovery is, in my view, a contempt of court.' In Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 162, Mansfield J, after referring to what Lord Diplock had said in Harman in the first extract in [12] above, said (at 166): 'The duty which is therefore placed upon the recipient of documents procured in the course of discovery arises because, absent the proceedings, there is no entitlement to those documents. They are private. They need not necessarily contain confidential or commercially sensitive material to have that quality. It exists because of the nature of the documents, and the circumstances in which they came to be released to the other party, and not necessarily because of their contents.' More recently, in Moage Limited (in liq) v Jagelman (2002) 43 ACSR 173, Gzell J stated at [10]: 'It is the duty of a party to civil litigation who, in the course of discovery has obtained possession of copies of documents belonging to the other party, to refrain from using the advantage enjoyed by virtue of such possession for some collateral or ulterior purpose not reasonably necessary for the proper conduct of the action: Home Office v Harman [1983] 1 AC 280 at 302; [1982] 1 All ER 532 at 536. As Lee J points out in Bailey v Australian Broadcasting Corp [1995] 1 Qd R 476 at 484 while the basis of a party's obligation to limit the use of discovered documents is expressed in terms of an implied undertaking to the court, its underlying rationale can be traced to broader notions of public policy. In Riddick v Thames Board Mills Ltd [1977] QB 881 at 895; [1977] 3 All ER 677 at 687 Lord Denning MR noted that the reason for compelling discovery lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest of discovering the truth that is in making full disclosure. The implied undertaking extends beyond documents produced on discovery to other court documents: see eg Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 166-8, 169-70. The undertaking has been held to apply to witness statements and affidavits: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509] .'