This is a workmanlike little post, designed simply to trap into the world of this blog for when I need them next in court the legal principles discussed in Acting President Bowman’s decision in ZGW v Legal Services Board  VCAT 1406, casenoted in the previous post. The parties’ arguments are also reproduced below in part.
The implied undertaking applies in VCAT: .
It applies despite s. 80(3) of the VCAT Act: . Section 80(3) says:
‘The Tribunal may give directions under this section requiring a party to produce a document or provide information in a proceeding for review of a decision despite anything ot the contrary in section 106(1) or any rule of law relating to privilege or the public interest in relation to the production of documents.’
It is not restricted to discovered documents, but also applies to:
-  a witness statement filed in accordance with an applicable practice direction: Central Queensland Cement Pty Ltd v Hardy 1989 2 Qd. R. 509;
-  answers to interrogatories, ibid;
-  documents produced on subpoena: Sybron Corporation v Barclays Bank  Ch. 299.
What are special circumstances so as to recommend the exercise of the discretion to release a party from the undertaking on application include:
‘For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.’ (Springfield Nominees Pty v Bridgelands Securities Ltd (1992) 38 FCR 217 (Wilcox J))
Where documents are produced in litigation, an application to use them for a purpose other than the litigation may be premature before the court or tribunal has determined whether to adduce them into evidence. In this case, Judge Bowman was concerned that many of the documents might be hearsay, or otherwise of dubious reliability because, for example, they were the statements of notorious criminals.
That seems an appropriate concern to me. Whatever the merits of this solicitor’s position, those who regulate solicitors must be acutely anxious not to assume ‘the disembarkation of fleas’, and citizens — even alleged criminals — ought to feel safe that their confidences will only be divulged to exceptionally in the investigations of criminal lawyers. It would be unfortunate if the effect of litigation over the fitness of character of a criminal lawyer were to spook her clients confidence in the secrecy of their instructions, with the result that the solicitor’s practice was (i) effectively shut down and (ii) her means of funding the challenge proceedings was cut off.
The parties’ arguments
The Legal Services Board’s arguments, as recorded by his Honour were, in part:
- ‘The root of the principle in Home Office v Harman is the public interest in protecting the privacy of the person compelled to produce the documents. According to the authorities in relation to this, there must be special circumstances in existence before there can be departure from this principle.
- In the present case, there are two such special circumstances. Firstly, the person who has produced the documents, namely Mr L’Estrange, has no objection to the LSB using the documents for the purpose which it intends. The issue of privacy does not subsist.
- Secondly, the LSB has statutory functions to exercise, and it wishes to use these documents in the exercise of those functions. They are to be used in the exercise of statutory obligations.
- In support of the submissions made, LSB relies upon decisions such as Riddick v Thames Board Mills Ltd  QB 881. The public interest in privacy does not apply in the present case. The person who compiled the documents has no objection to the use to which they might be made.
- Further, [the solicitor] does not have a justifiable interest in opposing the proposed use of the documents by the LSB. It is the public interest, rather than any personal interest of [the solicitor], that should be taken into account. The person who has created the document has no objection to it being used in the fashion sought.
- Reference is made to the decision of Kakoullis v Transport Accident Commission  VCAT 1051. In the present case, and pursuant to the Act, the LSB is responsible for the issuing of practising certificates on an annual basis. Garde-Wilson applied for a certificate for the year 2006-07. The LSB refused the application on the basis that she was not a fit and proper person. Hence this appeal. The Board has a continuing obligation in relation to the issuing of practising certificates. That applies to all legal practitioners in Victoria. The documents in question, on their face, relate to such jurisdiction.
- Secondly, the LSB possesses jurisdiction pursuant to s.2.4.20 of the Act. That section relates to grounds for amending, suspending or cancelling a practising certificate. The grounds include that the holder is not a fit and proper person to continue to hold such certificate. Statutory procedures are set out in relation to this.
- Thus, as stated, whilst the LSB acknowledges the existence of the implied undertaking in relation to documents produced under compulsion, the Tribunal has before it an application to be released from such implied undertaking because of two circumstances. Firstly, the person who produced and created the documents has no objection to the use of the documents which is sought. Secondly, the documents are plainly relevant to the statutory functions which the LSB must exercise. Therefore, the LSB should be relieved from the implied undertaking.’
The solicitor’s submissions, as recorded by Acting President Bowman were, in part
- ‘Section 127A of the Police Regulation Act 1958 prohibits the unauthorised revealing of information obtained by a police officer in the course of employment. That means authorisation in writing by the Chief Commissioner. Such authorisation does not appear to have been given in the present case. This approach is also consistent with what is contained in the Victoria Police Manual. The same applies to LEAP material. The present proceedings do not involve Victoria Police.
- In the police file there is a lot of material relating to persons other than [the solicitor]. Many of the statements contain information alleging criminal activity by persons other than her. Bearing in mind what is contained in the Charter of Human Rights and Responsibilities Act 2006, a question to be asked is whether the handing over of this document would breach the right of privacy of individuals other than [the solicitor] and who are mentioned in, or have made statements in, the material in question. It is not appropriate for leave to be given for the use of the document outside the present proceeding.
- In relation to the collateral purposes, the original purpose for which the documentation was produced was to determine whether [the solicitor’s] practising certificate should be renewed. The supplementary purposes are to determine whether there should be a renewal for a year other than that the subject of the decision, and whether her practising certificate should be cancelled. It would be unfortunate if a step was taken which was designed to short-circuit the proceeding before this Tribunal, such a step being, for example, the cancellation of the certificate. It would be an improper use of power to use any material in order to now cancel the certificate.
- No objection is taken in relation to my inspecting the documentary material for the purposes of determining this interlocutory application. This, of course, is a different question from that of the material that may be taken into account for the purposes of determining the entire appeal or review.
- It cannot be said that Mr L’Estrange, when producing the documents without any objection to the LSB using it in the way which it intends, was speaking on behalf of or with the authority of all those who created the documents or provided the material contained in them. For example, some contain statements by persons accused of criminal activity and who were “doing deals”. It is also pointed out that, when producing material to the Tribunal, Mr L’Estrange did not say that he was consenting, whether on his own behalf or on behalf of other persons, to the use of the material for collateral purposes.’
The Board’s response, as recorded by Acting President Bowman, was, in part:
- ‘Mr L’Estrange produced the documentation to the Tribunal pursuant to an order that he be compelled so to do. Subsequently he consented to the LSB being released from any implied undertaking in relation to the file which he had produced. In other words, he produced the documents under compulsion, which generates the application of the Home Office v Harman principle. When the application in relation to that principle was made subsequently, he stated that he had no objection to the documentation being used by the LSB for reasons or purposes outside this particular proceeding. An analogy with the principles employed in discovery is useful. Discovery applies not just to documents which have been created by the relevant person, but also to documents within that person’s possession, custody or control. If subpoenaed, the person produces not just the documents which he or she has created, but those which are specified in the schedule of the subpoena, whether or not such documents were created by the person.
- The jurisdiction to deal with the documents produced pursuant to a subpoena duces tecum is the jurisdiction of the Tribunal. It does not depend upon whether or not the creator of the document consents to it being released. It is a jurisdiction designed to protect privacy of persons required to produce documents under compulsion. Any distinction between documents created by the person producing them and those created by others is irrelevant. Mr L’Estrange was not the author of many of the documents contained in the police file. Many of the documents come from the Purana Taskforce, and these include witness statements, which have been produced to that Force. They are statements which were made at the behest of the Purana Taskforce. Some are statements made by persons who were involved in the commission of notorious crimes. Some of the statements involve the activities of persons other than Garde-Wilson, but each document makes some reference to her and her conduct. Such conduct is germane to the jurisdiction which the LSB possesses in relation to its obligations. Some of the documents relate solely to Garde-Wilson. The documents are statements not created by the Victoria Police but commissioned by them.
- If the LSB is released from its implied undertaking, it can only use the documents for a proper purpose. The LSB would not have carte blanche in relation to the use of the documents. The purpose for which the documentation could be used relates to fitness and propriety of someone holding themselves out to the public as a fit and proper person to be a legal practitioner. An order of the type made in Kakoullis underlines the use that can be made of documentation which is made available following the release from the implied undertaking. Such an order would release the LSB from its implied undertaking to the extent that was necessary for it to perform all of its objective functions and powers. Thus, the release sought in the present case would be only to the extent that was necessary for the LSB to perform its functions and powers pursuant to the Act.
- The provisions of the Police Regulation Act do not prevent police officers from producing documents to a Court or Tribunal under compulsion. Those provisions have nothing to do with the present application. The bottom line is that the police, who have produced this file, have no objection to the LSB using the documentation in the exercise of its statutory jurisdiction which it exercises in circumstances beyond the present application. People who are required to produce documents should be encouraged so to do on the basis of knowledge that the documents cannot then be used for a collateral purpose without the direction of the Court. This is the public policy which is contained in Home Office v Harman, but in that decision the special circumstances, or exceptions, which may lead to the use of the documents for a collateral purpose are also set out. There is no obligation upon the Tribunal to obtain the consent of every person who created a document produced by the person under compulsion before ordering a release from the implied undertaking.’
- The obligation not to use documents obtained under compulsion except for the purpose compelled
- Evidence paper, part 3 (hearsay introduction)
- Mr Howell releases Client from implied undertaking as to documents
- The ‘implied undertaking’ which is really a substantive legal obligation
- The implied undertaking yields to compulsion; relevance to a second proceeding a powerful ‘special circumstance’