Beynon v Blackledge[2020] QDC 286

DISTRICT COURT OF QUEENSLAND

Background

1. [1]
   By claim and statement of claim filed on 3 July 2020 the plaintiff sues the defendant for damages for defamation arising out of two separate publications.  The publications relate to two emails that were sent on 16 November 2017 and 27 November 2018 respectively to various residents in a body corporate scheme including the residences of the plaintiff and defendant. 
2. [2]
   The publications were discovered by the plaintiff through a non-party disclosure request made in a separate District Court proceeding to the present matter.  Thus the use of such documents prima facie breaches the implied undertaking given to the court in such matters.^[1]
3. [3]
   There is also an application for extension of the limitation period, given that the plaintiff was unaware of the existence of the allegedly defamatory matter until recently, and thus issued proceedings outside the permitted limit of one year.^[2] 
4. [4]
   The defendant resists the release of the plaintiff from his implied undertaking, but accepts that if the plaintiff is successful in obtaining leave to use the documents, the circumstances of the case are such that leave to extend the limitation period could not be sensibly resisted. 

Submissions

Plaintiff

5. [5]
   The plaintiff submits that an important aspect of this case, when the policy considerations underlying the imposition of the implied undertaking are analysed, is that whilst the relevant documents were obtained pursuant to a disclosure process which was compulsory, thus activating the implied undertaking, they are not proposed to be used in any proceedings against the party who compulsorily disclosed them.  This is an important feature which, although possibly not unique, does not seem to be regularly discussed in the authorities.  The plaintiff referred to P v Manny.^[3] There the relevant document was obtained from a third party, not the defendant, and leave was granted to use it.
6. [6]
   In that case, at paragraphs 35 to 39, Gray J referred to the document being the very foundation of the plaintiff’s case and the rationale underlying the rule as expressed by Mason CJ in Esso Resources Ltd v Plowman^[4] at 33.  His Honour reasoned, referring to observations by Mason CJ, that the emphasis is on the prejudice to the party producing the document, not to other parties who may be affected by the production. This is obviously an important aspect of the present matter.
7. [7]
   The plaintiff also refers to Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No.4)^[5] including at [13] referring to the difficult onus of having a court relax or waive the obligation.
8. [8]
   Having referred to the public policy considerations behind the implied undertaking, to ensure that privacy and confidentiality are not invaded more than absolutely necessary for the purpose of securing that justice is done,^[6] the majority, McMurdo P and Muir JA, continued:

“[16] The important public policy consideration behind implied undertakings of this kind are about securing justice between the parties and maintaining public confidence in the justice system… that courts will usually relieve a party from its implied undertaking where, after giving proper consideration to the public policy reasons behind it, the circumstances of the case demonstrate this is plainly in the interests of justice.”

9. [9]
   In the present case, the plaintiff submitted a number of matters favoured the exercise of the discretion in the interests of justice:

   1. (a)
      the documents produced pursuant to the notices of non-party disclosure are the very foundation of the plaintiff’s case and critical to achieving justice in the present case
   2. (b)
      the documents were obtained from non-parties rather than the defendant.  Thus, there was no real invasion of privacy or confidentiality of the non-parties and relieving the plaintiff from the undertaking does not detract from, or otherwise undermine, the encouragement of full and frank compliance with court practices and procedure
   3. (c)
      the present action is not being taken against those non-parties
   4. (d)
      the persons producing the documents have been informed of the present application and provided with the materials.  One has indicated his consent to the document being used. The other did not meaningfully respond, but did not in terms resist its use.  The email obtained from the latter party has been exhibited to a document filed in court in the other proceedings (and in that sense may be regarded as being somewhat in a public forum, in that court files are liable to be searched by the public^[7])
   5. (e)
      there is no prejudice to either of those non-parties if the undertaking is relieved
   6. (f)
      both documents were copied to a number of other recipients and neither contains commercially sensitive information or personal or confidential data relating to any person.

Defendant

10. [10]
    In response, the defendant relies on observations by Lord Denning in Riddick v Thames Board Mills Ltd (1977) QB 881, as referred to in Mann v Medical Defence Union Limited ^[8] to the effect that the nature of the implied undertaking, turning as it does on compulsory disclosure imposed by the rules of court, constrains the court’s permitting the other party or anyone else using the documents for any “ulterior or alien purpose.”  Lord Denning went on to posit the public interest in litigants making a full and frank response to discovery processes and that parties, instead of responding to the processes, might destroy such documents or say they were never to have existed.
11. [11]
    The defendant also refers to observations by Chesterman JA in Northbuild (supra). At [50] his Honour referred to the scope of the undertaking; the documents are only to be used for a purpose connected with or related to the dispute “in which the parties are engaged…”. In the present case, the disclosing parties are not engaged in any dispute with the applicant, so these observations have less force. His Honour was not considering a case of third party disclosure.
12. [12]
    His Honour continued at paragraph [52], referring to the principle of minimising invasions into privacy and confidentiality; that the rationale for the rule is that the disclosing parties’ rights give way to the need to do justice in the pending litigation between the parties; and that the implied undertaking should not be seen merely as an inducement to a litigant to disclose documents which he might otherwise have been inclined to conceal, but that it was more a matter of justice and fairness to ensure that privacy and confidentiality were not invaded more than was absolutely necessary for the purposes of justice. This was further explained to be the purposes of doing justice in the proceedings in which discovery is given.  His Honour was there quoting from Minister for Education v Bailey (supra). The respondent emphasises the final words “in which discovery is given” as supporting his argument; i.e. that the disclosed documents could only be used for the litigation in which they were disclosed. This is, of course, the starting point; that is why leave is required.
13. [13]
    However in Northbuild, not only did the court conclude the appellant should have leave to use the documents for cross examination, but Chesterman JA would have gone further, in that he did not actually conclude that leave was necessary, because the use, in that case, was not for a collateral or ulterior purpose. His Honour discussed at some length the scope of the undertaking, at [25] to [45], and set out his conclusion at [50], outlined above. As his Honour discussed, Bailey and Riddick were both cases of a document disclosed in a proceeding being later used in separate proceedings between the same parties.

14. [14]
    The defendant emphasises the commentary of doing justice in the proceedings in which discovery (disclosure) is given, as opposed to the separate proceedings in question here. He submits that this is an example of a “collateral or ulterior purpose”, and that the case is analogous to Mann, where the applicant was involved in an action for breach of contract and obtained some documents on disclosure which led him to seek leave to amend the proceedings to add a claim for defamation. The amendment there both sought to add the cause of action, and also to add one of the defendant’s employees (the author of the relevant document, an internal memorandum of the defendant Medical Defence Union) as a party. Thus the plaintiff was seeking to use the defendant’s own internally generated document against it in a separate cause of action, added to the same proceeding.
15. [15]
    Ryan J considered this to be “alien” in the sense used by Lord Denning.^[9] He considered that to allow the use of the document to frame a cause of action in defamation (against the existing defendant) would expose the Medical Defence Union (i.e. the disclosing party) to a potential liability quite unrelated to that in contemplation when it was discovered. Thus leave was denied to use it against either the defendant or its employee.^[10] The defendant seeks a similar result in this case.

Discussion and Conclusion

16. [16]
    As the above discussion illustrates, the discretion under examination has been the subject of much judicial analysis and ultimately is one to be exercised in the circumstances of each individual case.
17. [17]
    In Northbuild the applicant succeeded, the court holding that the relief was in the interests of justice; the proceedings were closely related; copies could be accessed by the public by inspecting the file under UCPR 981; and thus the interests of justice were best served by release.
18. [18]
    The result in Bailey does not favour the respondent’s argument. Bailey sought and obtained leave to use a document obtained in an action for breach of contract of employment in a later action for malfeasance in public office by the same Minister who dismissed him. Steytler J referred to the features that the document was vital to the conduct of the subsequent proceedings; the same parties were involved, albeit raising different issues; and if the circumstances were not found to be “special” such as to grant leave, the documents may well have been discoverable in the new action, or indeed in the application itself^[11]. All of this in combination resulted in the circumstances being “special” so as to warrant the grant of leave.
19. [19]
    In this case, of course, the parties are not the same; the disclosing parties are not the defendant. As the plaintiff submits, the documents are essential to the plaintiff’s action and there is no prejudice to the disclosing non-parties, one of whom expressly consents to the use of the document, and the other has taken a neutral stance. It has not been expressly canvassed in submissions, but it may be that the documents, as in Bailey, would be disclosable (i.e. obtainable on third party disclosure) in the new action, by the same process as previously, although perhaps more focused. Indeed, it is entirely possible that one or both could be obtained from the non-parties merely by asking for them informally. All these features favour the grant of leave.
20. [20]
    One of the authorities referred to in Bailey was Crest Homes Plc v Marks.^[12] There Lord Oliver referred to the general principle that “the court will not release or modify the implied undertaking given on discovery save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery” (emphasis added) and that each case must turn on its own individual facts. Here there is no injustice to the person giving disclosure.
21. [21]
    In all the circumstances, I accept that the undertaking, however precisely formulated, is engaged, but the applicant should be released therefrom, essentially for the reasons advanced by the applicant and summarised at [9] and [19] above; the grant of leave is in the interests of justice. It follows that the application is successful, including as to the extension of the limitation period, and that there should be orders in terms of the application.