Case: Springfield Nominees Pty Limited v Bridgelands Securities Ltd (1992) 38 FCR 217
Outcome: applied
Helpful guidance is found in the reasoning in Springfield Nominees Pty Limited v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225, where Wilcox J, after noting that release from such an implied undertaking may be only given in special circumstances (having regard to the onerous nature of a compulsory order of a court to disclose documents), sets out a number of relevant considerations, including: &#8226; the nature of the document; &#8226; the circumstances under which the document came into existence; &#8226; the attitude of the author of the document and any prejudice the author may sustain; &#8226; whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; &#8226; the nature of the information in the document (and in particular whether it contains personal data or commercially sensitive information); &#8226; the circumstances in which the documents came into the hands of the applicant; and &#8226; most importantly of all, the likely contribution of the document to achieving justice in other proceedings. 13 The reasoning in Springfield 38 FCR 217 was also applied by Jacobson J in Lombe v Pollak [2004] FCA 593 at [19] , where his Honour referred in particular to the question of whether any prejudice may be suffered by the owner of the document. 16 The Visy parties submit that there should be no blanket release from the implied undertaking in this case, and that an opportunity should be provided to non-parties to the litigation whose documents may be disclosed to make submissions as to why any such documents should not be released on discovery in this proceeding. This, it is said, will provide the Court with a chance to consider both the relevant documents and any submissions of non-parties, and then determine whether any prejudice or detriment may accrue to the person providing the information: see the remarks of Wilcox J in Springfield 38 FCR at 225. 17 The Visy parties also refer to s 155AAA(1) of the Trade Practices Act 1974 (Cth) ("the Act ") which prohibits an official of the ACCC from disclosing "protected information". This expression covers information given to the ACCC in confidence or which was obtained under the search and seizure provisions in Part XID of the Act (which includes information obtained under s 155). These provisions, it is said, justify the expectation of a person producing documents in either the ACCC proceeding or the Cadbury proceeding that the information will not be disclosed in this proceeding, a matter which is said to be a relevant consideration for the Court in its exercise of discretion whether to grant the release. 18 On this point relating to the provisions of the Act , the ACCC also refers to the public interest in enforcement of the Act , the need for transparency in the Act 's application and the interests of judicial decisions being fully informed in the light of all relevant material. 20 Having regard to the formulation of the relevant considerations by Wilcox J in Springfield 38 FCR at 225, in this case it appears that it is necessary to consider granting the release in respect of particular documents, rather than simply granting release in respect of a broad class of documents. Accordingly, in this case, I do not think that an order should be made in the unqualified terms sought by Jarra Creek at this stage. Although I accept that cogent reasons have been advanced by Jarra Creek for the grant of a release in the present case, I am not satisfied that I should grant that release on the global basis sought without first investigating the question of prejudice to non-parties. 21 The position taken by the Visy parties on this application is to oppose the grant of a general release until an opportunity has been given to investigate the position of non-parties. The Visy parties suggest that a practical way forward is for them to prepare a list of those documents in their possession which they consider could reasonably be seen to adversely impact non-parties if disclosed, so that the position of such parties could be investigated if necessary. While I agree that a release from the implied undertaking should not be granted until the issue of prejudice has been canvassed, in my view, all other documents which will not either appear on the list prepared by the Visy parties or be the subject of claims for privilege or confidentiality, should be disclosed immediately so that the matter may progress. 22 An opportunity might be given, if appropriate and necessary, to non-parties who may be affected to submit to the Court what prejudice, if any, might arise if a release from the implied undertaking is granted. Clearly such an exercise may be both expensive and time consuming. In the event that there proves to be a great number of such documents which will require investigation, a suitable modus operandi should be agreed upon to deal in a timely and efficient manner with such investigations. However, it may well be that there are only a few (or even no) documents which would give rise to any arguable prejudice. In this way, the discovery process can move forward.