Bailey v Australian Broadcasting Corporation [1994] QSC 83 [1995] 1 Qd R 476

IN THE SUPREME COURT OF QUEENSLAND No. 1303 of 1993 Brisbane Before the Honourable Mr Justice W C Lee [Bailey v. ABC Corp & Anor] BETWEEN: ANTHONY HAROLD HYDE BAILEY Plaintiff AND: AUSTRALIAN BROADCASTING CORPORATION First Defendant AND: CHRISTOPHER MASTERS Second Defendant JUDGMENT - W C LEE J. Judgment delivered 08/04/1994 CATCHWORDSPRACTICE - discovery - inspection - implied undertaking not to use documents for collateral purpose - whether discovered documents reveal commission of criminal offences - whether leave of Court necessary for party to disclose documents to criminal authorities - whether public interest in investigating crime outweighs public interest in ensuring integrity of discovery process - relevant factors - circumstances in which leave will be granted discussed Counsel: P H Morrison QC for the applicant R A Mulholland QC, with him D R Boughen, for the respondents Solicitors: Russell & Co for the applicant Biggs and Biggs Francis McGregor for the respondents Hearing date: 17/02/1994 -- 1 of 34 -- IN THE SUPREME COURT OF QUEENSLAND No. 1303 of 1993 BETWEEN: ANTHONY HAROLD HYDE BAILEY Plaintiff AND: AUSTRALIAN BROADCASTING CORPORATION First Defendant AND: CHRISTOPHER MASTERS Second Defendant JUDGMENT - W C LEE J. Judgment delivered 08/04/1994 This is an application by the applicant/plaintiff for leave of the Court to relax his implied undertaking not to use for any purpose outside the scope of the immediate action, certain documents disclosed to him by the respondents/defendants during the course of discovery made pursuant to orders of the Court. In essence, the plaintiff alleges that certain of the documents so disclosed reveal the probable commission of a criminal offence or offences by the second defendant and/or servants or agents of the second defendant and/or one or more officers of the bodies hereinafter referred to, contrary to s. 70 of the Crimes Act 1914 (C'th) or s. 60A of the Australian Federal Police Act 1979 (C'th) or both. The plaintiff seeks leave of the Court to disclose the subject documents to the Australia Federal Police ("AFP"), the Commonwealth Director of -- 2 of 34 -- 2 Public Prosecutions ("DPP") and the National Crime Authority ("NCA") (collectively "the relevant authorities") in order that those bodies may investigate whether offences have been committed and, if so, by whom. In short, the question for my determination is whether and, if so, in what circumstances, the Court will grant leave to a party to disclose discovered documents to the criminal authorities for the purpose of investigating whether or not they reveal the commission of a criminal offence or offences, whether or not the offending conduct was in any way connected with the litigation which gave rise to their discovery. Although other relief is sought in the summons, it was not argued and will therefore be disregarded. The plaintiff, a solicitor, sues the defendants for damages for defamation arising out of a report broadcast on the first defendant's "Four Corners" current affairs program on 29 March 1993 ("the report"). The second defendant, a journalist, was principally responsible for investigating, preparing and presenting the report. The report concerned the plaintiff's legal representation of two persons accused of importing large quantities of illegal drugs into Australia. Those accused, apparently with a number of other persons, were arrested on 22 September 1987 and charged with various offences under the provisions of the Customs Act 1901 (C'th). Numerous Court appearances ensued and some time after a long committal hearing in January or February 1988, they pleaded guilty to various offences under that Act -- 3 of 34 -- 3 and were sentenced to terms of imprisonment. In the main, the statements contained in the report which are said by the plaintiff to be defamatory of him relate to the plaintiff's carriage of those criminal proceedings and his association with his two former clients. Although the pleadings contain numerous allegations, in summary the alleged defamatory imputations can be said to fall within four broad categories: (1) that during the course of conducting those proceedings on behalf of the two accused, the plaintiff sacrificed their interests in order to ensure his own pecuniary gain by means of unnecessarily running up costs; in particular it was alleged that the plaintiff refused to allow his clients to plead guilty until such time as their substantial funds had been exhausted; (2) that the plaintiff incompetently and ineffectually handled the conduct of those proceedings; (3) that the plaintiff shut his eyes to, or was knowingly concerned in, breaches of the Proceeds of Crime Act 1987 (C'th), in particular ss. 81 and 82 thereof; and (4) that the plaintiff engaged in tax avoidance and in the laundering of money derived from crime. In relation to the third category of imputation, senior counsel for the defendants informed the Court that shortly after the arrest of the two accused, a large sum of money, said to be in the order of $1 million, was transferred offshore from a company owned and controlled by one of the accused to a -- 4 of 34 -- 4 company owned and controlled by the plaintiff's brother, not having been placed in the plaintiff's trust account. Apparently the suggestion is that this was the sum allegedly used by the plaintiff for his professional costs of conducting the criminal proceedings. For the purposes of this application, however, it is not necessary to consider this aspect of the case further. Nor is it necessary, other than by way of this general outline, to detail specifically the evidence on which the plaintiff relies as carrying the alleged defamatory imputations. Needless to say, the plaintiff also alleges that substantial harm has been occasioned to him, both personally and professionally, as a direct consequence of the broadcast of the report. In the course of his preparation of the report, the second defendant apparently interviewed both accused. Sections of those interviews were broadcast during and formed a substantial part of the report. Indeed it is for the most part statements extracted from those interviews which the plaintiff relies upon as carrying the defamatory imputations pleaded. The plaintiff was also interviewed by the second defendant for the purposes of the report and part of that interview was also broadcast during the course of the report. As an adjunct to his principal claim, the plaintiff also complains about the way in which that interview was conducted, alleging that, by not being given a proper opportunity to comment on his former clients' assertions, a false impression was created of him. He further alleges that the second defendant acted spitefully and -- 5 of 34 -- 5 maliciously and was activated by a general distain for and spite of the legal profession and its members. The defence, after certain admissions, denies that each of the matters complained of were defamatory and, in the alternative, pleads that the material concerned was published in good faith so as to attract the qualified protection of ss. 375 and 377 of the Criminal Code. A reply was delivered which, after taking certain objections in point of law as well as denying the allegations in the defence, refutes the defendants' assertion that the alleged defamatory material was published in good faith and repeats the plaintiff's assertion that the defendants acted maliciously. Identical affidavits of documents were sworn by each defendant on 16 December 1993 and filed on 17 December 1993. No claim to privilege, either against self-incrimination or otherwise, was made in respect of any of the documents the subject of this application, either in those affidavits or on production of them to the plaintiff's solicitors, and none has sought to be made at any stage since. This is so notwithstanding that the question of possible criminal activity was clearly raised by the plaintiff's solicitors by a letter to the defendants' solicitors dated 13 January 1994. The documents listed in those affidavits which the plaintiff wishes to hand over to the relevant authorities are identified in that letter as well as in the applicant's outline of submissions, by reference to paragraphs in the affidavits of documents. These include: -- 6 of 34 -- 6 3&4 Copies of two video tapes made by the Australian Federal Police in the course of their investigation of the plaintiff's former clients, the first showing a secret compartment in a boat and the second showing seizure of money and marijuana seeds, counterfeit money, and a boat. The second video is dated 27 March 1987. 5.1 Copies of transcripts of conversations between"G", "D" and "J" dated 23 March 1987, said to be transcripts of conversations involving the two accused. 5.28 An envelope containing twenty-seven titled photographs taken by the Australian Federal Police, each bearing an Australian Federal Police identification sticker. 8.12 A copy of certain research notes entitled "Alan Rose Secretary to the Attorney-General's Department". 11.5 A copy of a statement of facts dated 3 April 1989. 11.8 A copy of a letter dated 13 July 1989 signed by the Principal Legal Officer of the DPP, Brisbane, addressed to the Officer-in-Charge, AFP with three attachments to it - i) a 13-page Minute Paper headed "A Proposal for Prosecution" in respect of the plaintiff and his brother, prepared by a detective-sergeant of the AFP, dated 22 April 1988 and addressed to the Officer-in-Charge, Fraud and General Crime Branch. ii) a 2-page typed schedule entitled "Transfer of Funds Operation Tableau". iii) five type-written sheets entitled "Operation -- 7 of 34 -- 7 Tableau Criminal Assets Litigation Chronology and Sentences". Although the letter of 13 January 1994 also identified various other documents not specifically mentioned by counsel during argument, it seems reasonable to limit my consideration to the listed documents only. Document 11.8 seems by far the most incriminating. It refers to discussions held by the writer with various officers of the DPP, some of whom were named both in the typed text as well as in a hand written note thereon. After considering the material before him, the Principal Legal Officer advised the addressee that there was not sufficient evidence to prosecute either the plaintiff or his brother for breaches of ss. 81 and 82 of the Proceeds of Crimes Act, and that further action in respect of them was not warranted. A signed hand written note dated 19 July 1989 directed to the "O/C OCS" which appears on that document indicated that the DPP would not be instituting a prosecution in the matter. Counsel for the plaintiff submitted that it was apparent from the second defendant's discovered notebook (item 14 in the affidavits of documents), that the second defendant had contact with named officers of the DPP and AFP in the course of preparing the report, including some of the persons named or referred to in document 11.8. Senior counsel for the plaintiff submitted that in March 1993, and prior to the report on 29 March 1993, the second defendant informed counsel who had been retained by the plaintiff to act for the two accused in the -- 8 of 34 -- 8 committal proceedings, that he (the second defendant) knew that the AFP had a brief on the plaintiff and were considering prosecuting the plaintiff under the Proceeds of Crimes Act. It was said that the foregoing indicated not only that the second defendant had close contact with various officers of the DPP and AFP, but also that when he made the statement to counsel before the report was broadcast, he then knew that no such prosecution was contemplated. The plaintiff's principal contention is that the subject documents, or at least some of them, comprised all or part of a confidential brief given to DPP by the AFP for the purpose of considering whether criminal charges should have been brought against the plaintiff or his brother under the Proceeds of Crimes Act. As I have mentioned, no such prosecution was ever proceeded with, nor was that fact contained in the report of 29 March 1993, the report itself suggesting, according to the plaintiff, that the plaintiff had been guilty of breaches of that Act. This, it was said, indicated malice on behalf of the defendants. This of course depends upon when the subject documents, particularly document 11.8, came into the possession of the second defendant or when the contents of them came to his knowledge. The plaintiff nevertheless contends that the subject documents were most likely obtained by the defendants through a breach of either or both of the provisions mentioned. Before turning to the submissions of the parties those provisions should be outlined. Section 70 of the Crimes Act provides as follows: "70.(1) A person who, being a Commonwealth officer, -- 9 of 34 -- 9 publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence. (2) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of having been a Commonwealth officer, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence. Penalty: Imprisonment for 2 years." The expression "Commonwealth officer" is defined in s. 3(1) of the Act as including, inter alia, a Commonwealth public servant, or a member of the AFP. The other provision to which attention was drawn is s. 60A of the Australian Federal Police Act 1979 (C'th). That provision applies to any present or former members of the AFP: see ss. 60, 60A(1) and the definition of "member" in s. 4(1). Section 60A has a similar, albeit a more specific scope of operation to s. 70 of the Crimes Act. Relevantly, it provides in sub-s. 2: "A person to whom this section applies must not, directly or indirectly: (a) make a record of any prescribed information; or (b) divulge or communicate any prescribed information to any other person; except for the purposes of this Act or the regulations, or for the carrying out, performance or exercise of any of the person's duties, functions or powers under this Act or the regulations. Penalty: Imprisonment for 2 years." "Prescribed information" is defined in sub-s. 3 as meaning -- 10 of 34 -- 10 information obtained in the course of carrying out any of the person's duties, functions or powers either under the terms of his employment or under the Act or regulations. It was agreed that a person who contravened either or both of those provisions committed an indictable offence. Section 7A of the Crimes Act also has significance in this case. It is, in effect, the parties provision to the Crimes Act and provides that: "7A. If any person: (a) incites to, urges, aides or encourages; or (b) prints or publishes any writing which incites to, urge, aides or encourages; the commission of offences against any law of the Commonwealth or the carrying on of any operations for or by the commission of such offences, he shall be guilty of an offence. Penalty: Imprisonment for 12 months." By the letter of 13 January 1994, the plaintiff's solicitors informed the defendants of their assertion that the subject documents had emanated from either the AFP, the DPP, the NCA or the Commonwealth Attorney-General's Department. That assertion has not been denied in any material, nor in any submissions on behalf of the defendants before me. Indeed, the defendants adduced no material in opposition to the application. In the same letter, the plaintiff voiced in some detail his concern that, prima facie at least, indictable offences against the laws of the Commonwealth had been committed. The plaintiff having made an offer to settle pursuant to O. 26 of -- 11 of 34 -- 11 the Rules of the Supreme Court, the letter also expressed concern that he should be placed in a position where it might be suggested that his knowledge of the existence of the subject documents in the hands of the defendants could be used by him as an unfair bargaining tool with which to negotiate a more favourable settlement of the action. The plaintiff was also conscious of the possibility that he be exposed to the risk of suggestion that he engaged in blackmail or extortion contrary to ss. 415 and 416 of the Criminal Code (Qld), or that he might be seen to be in the position of having compounded or concealed crimes or the possible commission of crimes contrary to s. 133 of the Code. It was said that the plaintiff should not be placed in the position where criticism could be levelled at him for any steps taken in the possible compromise of the action, particularly in view of his position as a solicitor of the Court: cf. Matthews, P. and Malek, H.M. Discovery: London; Sweet and Maxwell, 1992 at p. 257. For these reasons, the plaintiff sought the defendants' consent to submit the subject documents to the relevant authorities for the purpose of allowing those authorities to investigate whether his suspicions were founded. The letter of 13 January 1994 also requested that the defendants inform the plaintiff, by his solicitors, of any innocent explanation as to the circumstances in which the defendants came into possession of the subject documents so that the matter could be put to rest without any unnecessary unpleasantness. Obviously the plaintiff saw this as a means of -- 12 of 34 -- 12 removing his concerns. By letter dated 24 January 1994 addressed to the plaintiff's solicitors, the solicitors for the defendants stated that they were unable to assist with regard to any of the questions raised by the plaintiff. The allegations of criminal involvement on the part of the defendants were rejected as false and absurd. The letter also declined permission to the plaintiff to use the discovered documents for any purpose outside the scope of the defamation proceedings. Importantly, no explanation as to whether or not the subject documents had come into the hands of the defendants innocently or lawfully was offered. By return facsimile dated 25 January 1994, the plaintiff's solicitors recognised their duty to act strictly in accordance with the obligation of confidentiality attendant upon their possession of discovered documents adding, however, that if innocent of any wrong-doing, the defendants should have nothing to fear by any investigation into the matters raised. To allay any possible fear on the part of the defendants that it should become known that they had consented to providing the subject documents to the relevant authorities, undertakings were offered on the basis that if the defendants were prepared to consent to the use of the material in the way foreshadowed, neither the plaintiff nor the plaintiff's solicitors would publish to any person whatsoever, save to employees of their firm and counsel retained by the plaintiff, the fact that the defendants had given that consent nor the fact that the -- 13 of 34 -- 13 complaints which the plaintiff would then make to the relevant authorities had been instituted. That letter was never replied to. As a consequence, the present application was filed on 7 February 1994. In essence the plaintiff relies on what he says to be the highly confidential nature of the subject documents to support an inference that they could only have come into the second defendant's hands, and consequently the hands of the first defendant, by breach of either or both of the provisions referred to. As I have previously stated, the defendants did not claim privilege in respect of any of those documents, nor did they seek to explain the circumstances in which they came into their possession. The plaintiff also seeks to rely on this lack of explanation as supporting an inference adverse to the defendants relating to the circumstances in which they came into their possession. The defendants, in resisting the plaintiff's application relied principally on what they say is a complete lack of evidence as to origin of the subject documents and dismiss the plaintiff's claims as fanciful. Not surprisingly, the plaintiff responds to this submission by pointing out that the origin of the subject documents is a matter peculiarly within the knowledge of the defendants and is a circumstance which, if capable of innocent explanation, might be expected to have been explained by them. Presumably if a satisfactory explanation had been forthcoming, the matter would then have been put to rest. -- 14 of 34 -- 14 The plaintiff also placed heavy emphasis on the fact that the documents originated from either the AFP or the DPP to demonstrate that he is seeking to do no more than return the documents to their rightful owners to enable them to conduct such investigations as they see fit, those investigations, if any, being completely outside the influence of the plaintiff. This is no doubt correct for the documents do not by their contents alone reveal the commission of a criminal offence. Rather it is the mere fact of their possession in the hands of the defendants which exposes the possibility of such a fact. In the end, I am prepared to accept for the purposes of this application, the plaintiff's submission that the nature of the subject documents coupled with the complete lack of explanation by the defendants as to their origin gives rise to a prima facie inference that the defendants' possession of them resulted from the contravention of either s. 70 of the Crimes Act or s. 60A of the Australian Federal Police Act or both by some person or persons. There is no suggestion that the defendants came by the documents innocently or that they were handed over by someone duly authorised to do so. I also accept the submission that the highly prejudicial nature of the documents suggests that any authorised disclosure of them would have been attended by the most confidential of circumstances - in short, that it is improbable that authorisation would have or could have been obtained to permit the disclosure of documents of this kind to a television journalist, especially when it had been decided that no action -- 15 of 34 -- 15 should be taken against such person or persons, and more particularly if such disclosure was for the purpose of preparing and presenting a televised report on the person or persons named in them. Any offence if committed is, in my opinion, a serious one, and one which, under normal circumstances should be investigated more fully by the relevant authorities. This of course is not the end of the matter. The plaintiff is under an obligation brought about by the discovery process to maintain the defendants' confidence as to the defendants' possession of them. It is for this reason that he has come to the Court to seek its leave for the purpose of using the subject documents in the manner foreshadowed. I should add at this stage that senior counsel for the plaintiff sought to persuade me that if it be necessary that some connection exist between the litigation which gave rise to the documents and the purpose for which they are sought to be disclosed in accordance with the dicta of Browne-Wilkinson V-C in E.M.I. Records Ltd v. Spillane [1986] 1 W.L.R. 967 at 977B, then such a connection exists in this case. That submission was advanced on the basis that the dicta of the Vice-Chancellor might on one view indicate that the Court is more likely to give leave in cases where there was some such connection than in cases where there existed no connection whatsoever. The primary submission however was that no such connection was necessary, at least where the applicant could point to some overriding public interest favouring the granting of leave. -- 16 of 34 -- 16 This alternative submission proceeded on the basis that any prosecution which might flow from the disclosure of the subject documents to the relevant authorities would be in relation to offences constituted by the very act of obtaining confidential documents which dealt with one of the very matters the subject of the allegedly defamatory broadcast, i.e. whether the plaintiff knew or ought he to have known, that the money used to pay his professional costs was the proceeds of crime. This connection, it was said, was even closer when one considers that the recommendation of the letter of advice which forms part of document 11.8, was not included in the report. It was argued that there existed an extremely close link between the circumstances in which the documents were obtained by the defendants and the subject of the proceedings in which the documents were discovered and produced on inspection, because it was in the course of the investigation which led to the making of the allegedly defamatory statements that the documents were obtained. In short, it was said that the documents have a substantial contribution to make towards achieving justice in the current litigation. In the end, however, I do not find it necessary to consider this alternative argument or the factual basis on which it depends because of the clear view which I have arrived at on the plaintiff's primary submission that the public interest, rather than some individual private interest, will be promoted if leave is to be granted. In any event, the facts and offences involved in the present case are vastly different -- 17 of 34 -- 17 to those with which the Vice-Chancellor was concerned in E.M.I. Records (supra). Without wishing to express a concluded view on the subject I am far from convinced that where the documents sought to be disclosed reveal the commission of a criminal offence there must be shown to be some connection between the action and the conduct which constituted that offence. I need not say more on this subject. I turn now to consider the plaintiff's primary argument in support of his application. Necessity for leave It is trite law that a party who, on discovery, has obtained access to another party's documents is entitled to use them and the information contained in them only in furtherance of, or for the purposes of, the action during which they were discovered: Distillers Co (Biochemicals) Ltd v. Times Newspapers Ltd [1975] 1 Q.B. 613 at 618 per Talbot J.; Riddick v. Thames Board Mills Ltd [1977] 1 Q.B. 881 at 895-6 per Lord Denning M.R.; Sybron Corporation v. Barclays Bank Plc [1985] 1 Ch. 299 at 315 per Scott J.; Central Queensland Cement Pty Ltd v. Hardy [1989] 2 Qd.R. 509 at 510 per McPherson J.; Manning v. Mount Isa Mines Ltd (WRT 14/91; Williams J., 22 June 1993, unreported). Although the basis for the parties' obligation to so limit their 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. As Lord Denning M.R. noted in Riddick (supra): "Discovery of documents is a most valuable aid in the doing of justice. ... The reason for compelling discovery of documents in this way lies in the public interest in discovering the truth so that justice may -- 18 of 34 -- 18 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, i.e., in making for disclosure." (at 895). See also Distillers (supra) at 620-1 per Talbot J. and Bibby Bulk Carriers Ltd v. Cansulex Ltd [1989] 1 Q.B. 155 at 160-1 per Hirst J. In addition, the Courts have placed subsidiary reliance on the more general principle that documents or information coming to a party's possession or knowledge in circumstances of confidence may not be used for any purpose outside the scope of that confidence: Alterskye v. Scott [1948] 1 All E.R. 297; Distillers (supra) at 735-6 per Talbot J.; Central Queensland Cement (supra) at 510 per McPherson J.; Sybron Corporation (supra) at 322 per Scott J. Couched in negative terms, the parties' undertaking is often described as one not to use discovered documents for any "collateral or ulterior" purpose i.e. a purpose not reasonably incidental to the conduct of the immediate action (as opposed to the cause of action) between them: Sybron Corporation (supra) at 315 per Scott J.; Home Office v. Harman [1983] 1 A.C. 280 at 302, 307, 312, 319. Although the formulation of the undertaking has been variously expressed, subject to some observations which I shall make, I prefer the statement of the rule given by Lord Diplock in Harman (supra): "I take the expression 'collateral or ulterior purpose' from the judgment of Jenkins J. in Alterskye v. Scott [1948] 1 All E.R. 469. I do not use it in a pejorative sense, but merely to indicate some purpose different from that which was the only reason why, under a procedure designed to achieve justice in civil actions, she was accorded the advantage, which she would not otherwise have had, of having in her -- 19 of 34 -- 19 possession copies of other people's documents." (at 302) On its face, therefore, the undertaking would seem to extend to forbid the use sought to be made by the plaintiff of the discovered documents in this case. Against this, the plaintiff places heavy emphasis on the speech of Lord Wilberforce (Lords Diplock, Russell of Killowen and Roskill agreeing) in Rank Film Ltd v. Video Information Centre [1982] A.C. 380 where, after citing the judgment of Lord Denning M.R. in Riddick (supra) for the proposition that documents disclosed on discovery in civil proceedings must not be used for any "collateral or ulterior" purpose, his Lordship observed that: "But it has never been held that these expressions, however wide, extend to criminal proceedings: if they did there would be no need for the privilege." (at 442) His Lordship's observation certainly has much force: if a party to an action is unable to disclose documents revealing the commission of a criminal offence to the appropriate authorities then the privilege against self-incrimination would serve no purpose in civil discovery. But in stating this general proposition one must not overlook the fact that the undertaking has always been subject to the Court's discretion to grant leave to use discovered documents for a particular purposes in an appropriate case: Crest Homes Pty Ltd v. Marks [1987] 1 A.C. 829. This includes, when necessary, the power to grant leave for the documents to be used by a third party: Bibby Bulk Carriers (supra) at 163 per Hirst J. In addition, once the documents have been read in open Court they then enter -- 20 of 34 -- 20 the public domain and may be used by any third party to whose attention they come: see Harman (supra) and Sybron Corporation (supra) at 322 per Scott J. The privilege, therefore, still has potential application. Nevertheless, taken to its fullest extent, as the plaintiff would have it done, his Lordship's statement could be construed as suggesting that the principles applicable to the use of documents obtained through civil discovery are of no relevance where the disclosure apprehended is for the purpose of initiating or furthering a criminal prosecution. However, I do not take his Lordship as so deciding. I am of the clear opinion that his Lordship's comments were directed solely towards the appropriateness of the "collateral or ulterior" purpose test in the setting of the facts before him, that being a test which focuses upon the improper nature of the use to which the party seeking leave intends to put the discovered documents. Clearly that is a test which has evolved in the context of and is more aptly applied to cases where the leave sought is to enable the use of the documents to promote some private interest of the applicant not within the parameters of the action which brought about their disclosure. In cases of that nature the policy of the law is clear: exceptional circumstances apart, the public interest in the administration of justice requires the undertaking to be strictly adhered to: Crest Homes (supra); Halcon International Inc v. Shell Transport and Trading Co [1979] R.P.C. 97. However, such a test is hardly appropriate in a case, such as -- 21 of 34 -- 21 Rank Film, where the use to which the documents are to be put is in connection with a criminal prosecution in the public interest. In cases of that nature, the authorities suggest that the duty of the Court is to weigh up the competing considerations of public interest and determine how the interests of justice are best met: cf. Holpitt v. Varimu Pty Ltd (1991) 29 F.C.R. 576 at 579 per Burchett J. To describe a criminal prosecution in the public interest as "collateral or ulterior" is, in my opinion, to misunderstand the context in which that test has evolved. Lord Fraser of Tulleybelton recognised this very fact in Rank Film (supra) at 447 when his Lordship observed that: "The principle is, I think, that information is not to be used by the party who gets discovery for purposes other than that for which production was ordered. But the case of Riddick had nothing to do with the use of information for prosecution in the public interest. On the contrary, both Lord Denning M.R. at p.896 and Stevenson L.J. at p.901, referred with approval to the observations of Talbot J. in Distillers Co. (Biochemicals) Ltd v. Times Newspapers [1975] Q.B. 613, 621, recognising that there might be a public interest in favour of disclosure which would override the public interest in the administration of justice which goes to preserve the confidentiality of documents disclosed on discovery. That is clearly correct. If a defendant's answers to interrogatories tend to show that he has been guilty of a serious offence I cannot think that there would be anything improper in his opponent reporting the matter to the criminal authorities with a view to prosecution, certainly if he has first obtained leave from the court which ordered the interrogatories, and probably without such leave." Does it then follow that a party who, through discovery, has come into possession of documents which disclose the commission of a criminal offence may, as of right, disclose them to the criminal authorities? In my opinion, it does not. -- 22 of 34 -- 22 To so conclude one would have to be able to say that in every case where the criminal law is infringed, the public interest in pursuing a prosecution in respect of that infringement outweighs the public interest in ensuring the integrity of the discovery process. However, the law is not so black and white. Indeed the plaintiff conceded that it will not be in every case where the criminal law is infringed that the Court will grant the leave sought: cf. General Nutrition Ltd v. Pattini [1984] F.S.R. 403. The infringement may be of a trivial or inconsequential nature or the application for leave might be brought, not for the purpose of promoting the public interest, but rather out of malice of spite on the part of the applicant: cf. Distillers (supra) at 622 per Talbot J. citing Initial Services Ltd v. Putterill [1968] 1 Q.B. 396 at 406 per Lord Denning M.R. Moreover, the disclosure may have been brought about by circumstances in which the respondent was unable to claim a privilege otherwise open to him, e.g. through the compulsion of an Anton Pillar order. In such a case, the respondent may have a legitimate right to have the order set aside: Rank Film (supra) and Crest Homes (supra) at 855 per Lord Oliver, and that is a factor which may render it unfair or unjust for the Court to grant the leave sought. All of the circumstances must be looked to in order to determine the nature and extent of the countervailing public interest raised. Apart from the final observation of Lord Fraser in the passage quoted from Rank Film (which was clearly obiter), in my opinion, the general weight of authority supports the -- 23 of 34 -- 23 proposition that leave of the Court is required before discovered documents can be used for any extraneous purpose, even when that purpose is to further a criminal prosecution: cf. Bank of Crete SA v. Koskotas (No. 2) [1992] 1 W.L.R. 919 and Sybron (supra) at 315, 319-20 per Scott J. There are very cogent reasons for this conclusion. In the first place, if one accepts, as I do, the formulation of the undertaking expressed by Lord Diplock in Harman, then it must follow that the Court is the only competent forum in which to seek the discharge, relaxation or modification of that undertaking: cf. Crest Homes (supra) at 854 per Lord Oliver. In the second place, as the cases clearly recognise, the granting of leave requires the exercise of a judicial discretion which, by its very nature, cannot be pre-empted by the parties by reference to some precise or rigid set of criteria. In short, the discretion is at large and it is for the Court to determine, on the facts of the case before it, what factors are and what factors are not relevant to the exercise of that discretion. Those factors will be as wide and varied as the circumstances of each case and for that reason cannot be exhaustively listed in advance. Finally, bearing in mind that the undertaking is one central to the administration of civil justice and one which the Courts do their utmost to preserve, one can readily see why the Court should retain the ultimate supervisory role in relation to all aspects of it. Accordingly, the use of documents obtained by way of discovery for any purpose outside the scope of the action in pursuance of -- 24 of 34 -- 24 which they were disclosed requires the party seeking to so use the documents to first obtain the leave of the Court. Exercise of discretion In the ordinary case, the two policy considerations referred to by Lord Denning M.R. in Riddick, namely, the right to privacy and confidence and the public interest in ensuring that full justice is done between the parties, will require the Court to enforce strict adherence to the parties' implied undertaking. Just how strictly the undertaking is viewed is demonstrated by the facts and decision in Harman (supra). As I have alluded to, however, there are cases in which the public interest may require that some limited use of the discovered documents, unconnected with the original action, be permitted. As I have noted, cases of that nature essentially involve a process of identifying and balancing competing factors in order to determine if the public interest is best served by discharging, relaxing or modifying the undertaking. In effect, the Court is called upon to exercise a value judgment in order to determine where the public interest lay. Millett J., in a passage which I would respectfully adopt, stated this proposition in Bank of Crete (supra) at 925 as follows: "[A]lthough the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing interest which favours disclosure." See also Distillers (supra) at 622-5 per Talbot J. and Rank Film (supra) at 442, 447. In other words, the general rule should not be so rigidly applied as to defeat or prejudice the interests which it was -- 25 of 34 -- 25 designed to protect. In any given case, the importance which the Courts, as a matter of general policy, attach to the undertaking must be the starting point for a consideration of the discretion to grant leave. It is then for the applicant to persuade the Court that some countervailing public interest requires leave to be granted: Crest Homes (supra) at 859 per Lord Oliver. In the present case that countervailing public interest is said to be the location and prosecution of criminal offenders. In my opinion, in determining the weight to be given to a public interest of that kind, some of the factors on which the Court will focus include: the nature of the offence alleged; the cogency of the evidence sought to be adduced in support of it; the authority to which the documents are sought to be disclosed; the manner of the authority's intended user; the possibility of misuse by that authority and any prejudice, actual or potential, which may be occasioned to the respondents by the disclosure: cf. Holpitt at 579 per Burchett J. Of course this is not an exhaustive list. In addition, it is, in my opinion, legitimate to determine whether, having due regard to the general importance of promoting full and frank discovery between the parties, the interests which the undertaking is designed to protect and promote would in any way be jeopardised by the granting of leave in the instance at hand: cf. Crest Homes (supra) at 860 per Lord Oliver. In other words, one must not consider the undertaking in ignorance of the policy behind it. Where the -- 26 of 34 -- 26 administration of justice would not be frustrated or unduly impeded by other than strict adherence to the undertaking, that is a circumstance, not in favour of granting leave, but which would comfort a Court otherwise disposed to do so in an appropriate case. I have already concluded that the material placed before me, prima facie at least, gives rise to an apprehension that an indictable offence or offences against the laws of the Commonwealth has or have been committed. Before turning to consider the facts relevant to the exercise of my discretion in this particular case however, I should deal with one preliminary point raised in opposition to the application. Senior counsel for the defendants sought to draw a distinction between documents, the contents of which may reveal or be evidence of the commission of a criminal offence and documents, the mere existence of which in the possession of a certain party may reveal or be evidence of the commission of such an offence. The present case is, of course, an illustration of the later category. In my opinion, however, there is nothing in this submission. Instances spring to mind where for example the mere possession of a document might be a circumstance which identifies a person with a crime, or the scene of a crime. There is no logical reason why the principles relating to the disclosure of documents the subject of the implied undertaking should differ depending on such a distinction. The undertaking clearly applies to both the documents discovered and the contents of or information -- 27 of 34 -- 27 contained in them: Crest Homes (supra) at 854 per Lord Oliver citing with approval Sybron (supra) per Scott J. A fortiori, the discretion to grant leave must extend to permit the use both of the information contained in the documents and the documents themselves, where appropriate. This disposes of this point. I turn now to consider the factors relevant to the exercise of my discretion in this case. Nature of the offence It is clearly in the public interest generally to bring offenders to justice. If authority were needed for this point one need only refer to the discussion by the High Court in Bunning v. Cross (1977-78) 141 C.L.R. 54. This is not to say that in every case, however, documents will be permitted to be disclosed simply because an offence has been committed. To illustrate this point, counsel for the defendants raised by way of example a civil defamation which, by its very nature, is also capable of constituting an offence under the Criminal Code. In such a case, it was rightly conceded, it would be ludicrous for a Court to give leave to a plaintiff to release discovered documents to the criminal authorities simply for the purpose of initiating a prosecution for criminal defamation. There is a clear distinction to be made between offences which essentially involve the infringement of private or individual rights and offences which it may be in the greater public interest to uncover. That is not to say that the public has no interest in protecting an individual from injury to his -- 28 of 34 -- 28 reputation, person or property but it is to recognise the reality that in many cases where private or individual rights are infringed adequate civil remedies will be available to the wronged party. In those types of cases the public interest will be suitably served by permitting the individual to continue with or initiate any action which he may have for a civil remedy. Conversely, if a party does not feel sufficiently aggrieved to protect his rights by means of any civil action open to him, it is difficult to see why the public conscience should feel any greater insult or burden. Much, of course, will depend on the circumstances of each case, including the nature of the individual's right and the extent to which it has been infringed. In the example postulated by senior counsel for the defendants, although technically a defamation may give rise to both civil and criminal proceedings, a plaintiff who wishes to vindicate himself by correcting any slur against his reputation may adequately and fully do so by way of an action for damages for defamation. The public interest having been served by the bringing of the wrong-doer to justice in a Court of law, no further or greater public interest could usually be served by the bringing of criminal proceedings. It is a very different circumstance, however, where no adequate civil remedy can be pursued in relation to the alleged wrong-doing. Where the bringing of criminal proceedings is the exclusive or perhaps the superior means of defending the public interest that will no doubt be a greater factor in favour of -- 29 of 34 -- 29 disclosure: cf. Sony Corporation v. Anand [1981] F.S.R. 398 per Browne-Wilkinson J. cited with approval by Millett J. in Bank of Crete (supra) at 924. In the present case assuming that a criminal offence, either against the Crimes Act and the Australian Federal Police Act, has been committed by the disclosure of these documents to the defendants, there is no question that any civil proceedings can be brought against the alleged wrong-doers. The only possible remedy lies with the criminal authorities and, as mentioned, that is a factor which weighs in the applicant's favour. Moreover, the offence or offences, if committed, are ones which, in my opinion, are serious enough to warrant the close scrutiny of the authorities. The provisions which I have outlined have as their evident intention the maintenance of confidence in the executive arm of government, in particular in relation to the impartial investigation and prosecution of criminal conduct. Unauthorised disclosure of documents prepared in the course of and relating a criminal prosecution has, in my opinion, the certain and serious ability to undermine public confidence in the criminal process and, as this case demonstrates, the potential that serious damage may be caused to persons the subject of those investigations, particularly where no prosecution results. Moreover, the offences are of a nature which one may readily expect may not be easily detectable by the relevant authorities. These factors point forcibly to the conclusion that there is a strong -- 30 of 34 -- 30 public interest to be served by the investigation of activity of this kind. Authority to whom disclosure is made As I have mentioned, in most cases in which the disclosure apprehended is to a third party, it will be relevant to inquire as to the manner of the third party's intended user as well as the possibility of misuse by that person. In most cases where it is alleged that the documents reveal the commission of a criminal offence, that disclosure of course will be to the relevant criminal authority and not, for example, to the media. In those cases, the Court may well be comforted by the fact that one would not readily expect documents so disclosed to venture into the public arena, at least unless it had been decided that there was sufficient evidence to launch a criminal prosecution. In the present case, as I have mentioned, the plaintiff is seeking to do no more than notify the authorities concerned of the defendants' possession of the subject documents. Those authorities are already in possession of them and consequently any possibility of misuse by those authorities of the contents of the documents could hardly be expected to be increased in any relevant sense by the granting of leave. Prejudice The line of the defendants throughout this application has been to dismiss the plaintiff's allegations as fanciful. In those circumstances, one may well think that it would not lie well in the defendants' mouths for them to rely on any possible -- 31 of 34 -- 31 prejudice to resist the plaintiff's application. Indeed, the defendants did not seek to raise specifically any assertions to that effect. In any event, I have come to the conclusion that the only prejudice which one might reasonably expect to flow from the granting of leave would be prejudice which may be associated with any criminal prosecution of the defendants; the very matter which the plaintiff seeks to have investigated. The contents of the documents do not in any way relate to the defendants, they relate solely to the plaintiff. It cannot be said that the defendants would be prejudiced by the disclosure of the documents to the relevant authorities, other than if those authorities decided to prosecute the defendants for any involvement which they may have had in the illegal disclosure of the subject documents, if that fact is established. In the end result I consider that the public interest in investigating the possibility of any criminal activity surrounding the defendants' possession of the subject documents outweighs the public interest in requiring strict adherence to the plaintiff's implied undertaking. Additionally, I do not see that the granting of leave in the present case will in any way undermine the confidence of litigants generally in the discovery process. The defendants have maintained throughout that the plaintiff's allegations of criminal activity were fanciful and indeed had they thought otherwise they had ample opportunity to claim privilege against self-incrimination in respect of the subject documents at the stage when they filed their affidavits of documents and again at the time of -- 32 of 34 -- 32 inspection. If, as they contend, the plaintiff's allegations indeed turn out to be fanciful then no harm will be served by the granting of leave. If on the other hand, the plaintiff's allegations turn out to be substantiated that is a matter which, as I have concluded, the public has a great interest in having fully investigated. The plaintiff, in my opinion, has established sound reasons why the leave sought should be granted to him. He has discharged the onus of pointing to a public interest which overrides the public interest in ensuring the confidentiality of documents obtained by way of discovery. It has not been shown that the plaintiff is acting out of malice or mischief or merely to harass the defendants, or that he is merely embarking on a fishing expedition, particularly having regard to the fact that the only relief argued before me is that contained in paras. 1(a), (b), and (c), of the summons. Accordingly, I grant leave to the plaintiff to: a) Complain or report to the National Crime Authority, the Commonwealth Director of Public Prosecutions and/or the Australian Federal Police, as may be appropriate about the possible commission by the second defendant and/or other servants of the first defendant and/or other persons of criminal offences in and about the obtaining of the confidential documents from those bodies; b) Providing copies of documents 3, 4, 5.1, 5.28, 8.12, 11.5 and 11.8 identified in the defendants' affidavits of documents sworn 16 December 1993 and filed on 17 December -- 33 of 34 -- 33 1993 to the bodies referred to sub-para. (a) hereof; and c) Providing information to such bodies as to the contents of such documents. As I have ruled, this was an application which the applicant was required to bring. The defendants by their legal representatives appeared and strenuously resisted the application. They had an interest in doing so. I will now hear argument as to costs. -- 34 of 34 --