Carrington v Sea World Australia Ltd [1992] QSC 134 [1992] 2 Qd R 470

( ~·--. ( i 8<<!.\ "'\' TR.AJ~SCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BR1SBAN£. 0. 40QQ Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold ~·ithout the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS WHITE, Master No 1773 of 1990 GEOFFREY DONALD CARRINGTON (a mentally ill person) ·by DONALD CARRINGTON, his next friend and SEA WORLD AUSTRALIA LIMITED r __ " ___ " .. ~- F ,~v,-:.·;=•· cnc•t:..:- ·~· ,. •:··;-) ,L- ·.;)-i.J u, 1'- ... .J i.....;.:.:. .. ~~· ;...., ... State Reporting 6ur·~au Date f I Lf I d...; Plaintiff Defendant i \ BRISBANE .. DATE 1/4/92 ~JUDGMENT 1 -- 1 of 9 -- ---,----- ----------- /" .. 1 010492 JUDGMENT MASTER: The plaintiff is a young man who sustained a severe . . . ·~ closed head injury and other serious injury on 20 June 1990 during a water-skiing stunt that he was engaged to perform at the aquatic theme park Sea World, a defendant in this 10 action. The Workers' Compensation Board of Queensland is the defendant by election. The plaintiff was a world champion water-skier at the date of the accident. The plaintiff sues through his next friend. He and his solicitors, by this application, seek to be relieved of 20 their implied undertaking not to use any document obtained on discovery in these proceedings for the purpose of providing copies of those documents to the plaintiff's Californian lawyers so as to assist them in the prosecution of the plaintiff's action against other defendants in 30 California arising out of the same accident. The writ issued in these proceedings on 2 November 1990 and the Californian proceedings began on 24 March 1992. The defendant denies negligence and the defendant by 40 election additionally denies that the plaintiff was, "a worker" within the meaning of the Workers' Compensation Act. In the Californian proceedings the defendants are variously individuals and corporations resident in or carrying on 50 business in that State. In the Californian proceedings it is alleged.that the defendants approached the plaintiff whilst he was working in California to perform the stunt at Sea World in Queensland. The defendants allegedly were planning· to record and broadcast the stunt internationally 60 2 --------- I' J :, ,_ ! I '1. 10 20 30 40 50 60 oi 0 0 G -- 2 of 9 -- \ ' • I 10 20 30 40 50 60 010492 JUDGMENT in a programme entitled "The World's Greatest Stunts". It is further alleged that the defendants were experienced in the business of stunt creation, planning and execution, that the plaintiff was not, and that the defendants failed in their duty to the plaintiff to warn him of the risks involved in the stunt, knowing that he was not an experienced stunt man. Causes of action are pleaded based on negligence, fraud, negligent misrepresentation and breach of contract. A number of objections to passages in the affidavits relied upon by the plaintiff have been upheld. They are set out in a separate document placed with the papers. The principles to be applied are to be found in a number of authorities which have been the subject of careful scru·tiny by counsel. Mr Doyle for the plaintiff relies particularly upon Sybron Corpo;r-ation v_Barclays Bank [1985] 1Ch 299, a decision of Scott J and Holpitt v Varimu Pty Liffi:ited [1991] 29 FCR 576, a decision of Burchett J. The facts of Sypron are conveniently and sufficiently set out in the headnote. "In an action commenced in 1974 ("the main action") the plaintiffs obtained judgment from Walton J. against R. Ltd. and two associated companies and 10 individual defendants, in respect of a fraudulent conspiracy organised by senioremployees of the plaintiffs whereby, while still in the plaintiffs' employment, they set up a rivaltrading organisation in the form of the"threedefendant companies, made use of the plaintiffs'trade secrets and confidential information, and diverted customers and business from the plaintiffs to the defendant companies. . . r, ....... ~ ..... '-.~"':'". Olrl 3 10 38 40 50 i L -- 3 of 9 -- / i 010492 JUDGMENT · ' .. ----,· I I I 10 20 30 40 50 60 In the main action,- the plaintiffs had obtained an order under the Bankers' Books Evidence Act 1879, pursuant to which a bank employee attended court under ·subpoena duces te~um and produced certain bank documents re~ated to the bank accounts operated by the bank on behalf of the defendant companies. Some of the documents.thus produced were referred to and read from by Walton J. in giving judgment in the main action. In reliance upon those documents the plaintiffs commenced-an action against tpe bank ("the 19 81 action") , in which they alleged that the bank, in agreeing to provide banking services for the defendantcompanies, had become a party to the fraudulent and dishonest conspiracy which Walton J. found to exist. The documents produced under the subpoena and further documents were disclosed by the bank on-discovery in the 1981 action. After inspectionof those documents, the plaintiffs decided that it was necessary or desirable to add another.nine of their associated companies as plaintiffs and to add three of the bank employees as defendants, and took out a summons in the 1981 action for leave to do so. In view-of possible difficulties which might arise in connection with the Limitation Act 1980 if other parties were joined to the 1981 action, the plain~iffs decided that it was preferable to commence_another action ("the 1983 action") . The plaintiffs sought leave of the Court to use the 1981 action documents in the 1983 action. Scott J, considering a submission that the 1981 and 1983 actions were the same action, observed at pp 327-8: "That being so, common sense seems to me to argue in favour of granting leave. Use of the documents in the 1983 action is, as I have held, outside thescope of the implied undertaking given as a term of the discovery in the 1981 action. But it is not inconsi;o~ ·.ent with the broad purpose for which that discove:cy was given. Whitford J. in the Hal~on case [1979] R.P.C. 97, 109-110 suggested that the furtherance of. a private interest could not justify the grant-of leave to use discovereddocuments for the purpose of other proceedings and that. some overriding public interest would normally be.required. The 1983 action is certainly nothing mor~ than the furtherance of a private interest. I can find no public interest which requires the plaintiffs to b,e permitted to use the documents for the purposes of the 1983. action~ However, while I would respectfully accept Whi tford J. 's proposition as a valua.}:)le · Govt. Printer. Old. 4 10 20 01 0 30 40 50 60 -- 4 of 9 -- 10 20 ,r \ ( '·'\ 40 50 60 010492 JUDGMENT general guide, it ·does not, in my view, assist in the unusual circumstances of the present case. Joinder of additional parties as a consequence of discovery is a common procedural occurrence. Neither I nor counsel have ever in practice heard of an object to such joinder on the ground that discovered documents ought not to be used for such a purpose. If, instead of jobnder, a new action is started, the substance of the situation does not seem to me relevantly different. I cannot see· any sensible reason why the court should regard this new action as inappropriate for the use of the discovered documents. For thesereasons in my judgment the plaintiffs ought to have leave to use the documents for· the purposes of the 1983 action." In Holpitt, two of the defendants sought leave to use in the proceedings documents in their possession which had been produced to them on discovery in other proceedings in the Federal Court. The documents were squarely relevant to the subject litigation. ·Burchett J discussed the meaning to be given to the expression "special circumstances" appearing in a passage in the judgment of Lord Oliver of Aylmerton in Cr~st Homes Plc :y~ ___ M_9_!_'ks [1987] 1 AC 829 at p 860, where His Lordship said of a line of English authorities: "They are no more than examples and they illustrate no general principle beyond this, 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 ..... each case must turn on its own individual facts." Burchett J held in Holpitt at p 579: "In my opin:;,,~ .. n, the court's duty, in an application of this kind, is to consider whether the applicanthas shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice. Although the present case is clearly distinguishable from the English cases because of the conflicting obligation pursuant to the order for discovery. I do not think I should decide it · Govt. Print~r Old. 5 10 20 30 40 50 60 -- 5 of 9 -- 10 20 30 40 50 60 010492 JUDGMENT - ... upon so narrow a footing a,s that distinct.;ion~. I think the interests of justice in the current li tig:ation. require tha·t. an order should be made in the applicants' favour, and that the order I shall make will not occasion injustice to the bank." With the greatest ~f respect to His Honour, the above passage seems to found _the discretion to release from the implied undertaking on t.oo -wide a · ba$e ., . · It seems to me, on_ the authorities to which I was referred, to be more stringent than His Honour would have it. ··The facts .in both c~est Homes and Holpitt themselves are clear illustrations of the proposition that the facts of each case will determine if the case is sufficiently special to set aside the implied undertaking. This was emphasised in ~~,~by __ !?Ulk car:r.i§.rs v._ ·ca.ns_y.l~x. Ltd [1989] 1 QB 155 per Hirst J at p 163. ' ! . - - ·Govt. PrintAr. ()lrl 6 : 1 ' • 10 20 0 30 40 50 60 -- 6 of 9 -- 010492 JUDGMENT .. '] In that case the parties giving the undertaking wished to be I ' \ released from it to give a document to a third party for its forensic purposes in a manner of no benefit to the party giving the undertaking. Those facts are not. of relevance - here because the plaintiff wishes himself to use the 10 documents. However, His Honour did advert to the difficulties in the Court controlling such user by a third party, which is of concern here. Further, in that case His Honour was persuaded on the authority of Crest Homes that "cogent and persuasive reasons" must be advanced why a party 20 should be released from its undertaking and in Tate Access Floors Inc. v. Boswell [1991] A.C. 304 Sir Nicholas Browne-Wilk.inson V.C. emphasised that the use of information for the purpose of separate proceedings is an improper purpose, at p 313. The scope and nature of the implied 30 undertaking were considered extensively in Home Office v, Harman [1983] 1 A.C. 280 and it is unnecessary to set out the relevant passages here. I should say that it appears possible that the plaintiff has used the documents obtained on discovery from the defendant in the Queensland 40 proceedings to ascertain the names of the defendants for the purposes of commencing the Californian litigation. Mr Fraser for the defendant has made no submission about it and it may not, in fact, be so. 50 Mr Doyle submits that the special circumstances are that all of the Californian defendants may not be able to be joined I in the Queensland action for jurisdictional reasons. The I defendant has brought an application simultaneously with I this application for leave to issue third party notices in I 10 20 30 40 50 60 ________j 60 ·--="-----+---- 7 -- 7 of 9 -- 10 20 010492 JUDGMENT, ..... the Queemsland proceedings to those defendants in.the Californi.an action. No deta;i_led submissions were advanced as to why they may not be amenable to the jurisdiction of this Cour.t. Mr Doyle also submits that even if those _ · - defendants were made defendants here it may not be possible to execute again~t them in California. -The evidence is really extremely thin 0.n this and has not been explored by Mr Rand, the plaintiff', s. Californian lawyer. "May not" is probably higher than the evidence would permit and Mr Kindred, the defendant's Californian lawyer with both New South Wales and United States legal qualifications, simply cannot say on the available material that execution might be had if there wer.e judgment against the defendants in Queensland .. 30 It is clear that discovery may be had in the Californian proceedings. . The sample documents exhibited to Mr Cooney' s. affidavit would suggest that Sea World probably obtained those documents from some of the Californian defendants. The Californian defendants or-some of:them may not object·to 40 joinder as third ~arties in Queensland, or_may by Court 50 60 order be joined. The plaintiff may then seek to join them as defendants. The plaintiff may obtain the relevant documents on discovery against the defendants in the Californian proceedings. No explanation has been advanced by the plaintiff's Californian lawyer as to why the documents are necessary at this stage of the Californian proceedings. For example, nowhere does he say that there is, for example, a request for further and 8 10 20 Qi 30 40 50 60 -- 8 of 9 -- 010492 JUDGi1EN'I -' .j ' 'better particulars ofthecalifornian claim which cannot be given without the documents, and that the claim is at•risk. The action has very recently been commenced in California and there is no want of proper defendants. Considering the - very serious nature of the implied undertaking, its role in 10 the proper conduct of litigation and the lack of demonstrable prejudice to the plaintiff in not releasing hint and his Queensland lawyers from the implied undertaking, I am not persuaded that cogent and persuasive reasons have been advanced in the special circumstances of the case 20 releasing them from those undertakings. Another factor which has been raised is the difficulty in controlling the use of the documents in California, although it should be noted that the plaintiff himself is amenqble to 30 this Court's jurisdiction and I would -not regard that difficulty as determinative of the matter here. Accordingly, the order is to dismiss the summons. I order that the applicant plaintiff pay the respondent 40 defendant and defendant by election's costs of and incidental to the summons to be taxed, but excluding the costs reserved on 27 March 1992. 50 ---------· ------------ 60 9 10 20 30 40 50 60 -- 9 of 9 --