Release from implied undertaking for information relevant to criminal investigation

In Andrew Koh Nominees Pty Ltd v Pacific Corporation Ltd [No 2] [2009] WASC 207, Justice Beech released a party to litigation from the Harman v Home Office implied undertaking not to use documents obtained under the compulsions which are an incident of litigation for a purpose other than the litigation.  His Honour did so to the extent necessary to allow the provision to the Police of answers to interrogatories administered by the party.  His Honour formed the view that the answers would be useful in a forgery investigation being carried on by the fraud squad into a person other than the party interrogated, and in balancing the scales between limiting the invasion of privacy occasioned by litigation and punishing crime, the balance was in favour of the latter.  His Honour summarised the principles in deciding whether to grant an application for release from the undertaking in order to provide information obtained in litigation to the police or other investigative authorities as follows:

’17  In North East Equity Pty Ltd [[2008] WASC 190] [42] – [44] Newnes J said the following in the context of an application to permit disclosure of information for the purpose of investigation and prosecution of a criminal offence:

(a) there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, and that public interest can override the public interest in the administration of justice in the preservation of the confidentiality of discovered documents;

(b) the court must weigh up the competing public interests as disclosure for the purpose of investigation and prosecution of an offence will not always outweigh the public interest in the preservation of the confidentiality of discovered documents;

(c) among the factors relevant to the exercise of the court’s discretion are:

(i) the nature of the offence alleged;

(ii) the cogency of the evidence sought to be adduced in support of it;

(iii) the authority to which the documents are sought to be disclosed;

(iv) the manner of the authority’s intended use and the possibility of misuse by that authority;

(v) any prejudice, actual or potential, which may be occasioned to the respondent by the disclosure; and

(vi) whether the application has been brought for some personal advantage or improper purpose rather than to advance the public interest.

The prospect that the provision of documents to the police might lead to the prosecution of a defendant is not prejudice of a kind to be taken into account in weighing the competing public interests:  North East Equity Pty Ltd [48].

18  In weighing up the competing public interests, the importance of the public interest in the preservation of the confidentiality of discovered documents must be kept squarely in mind:  North East Equity Pty Ltd [45]; Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476, 488.’

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