Australia

This case is one of several cases following from McCabe v British American Tobacco Australia Services Limited [2002] VSC 73. In that case, Eames J struck out BATAS's defence because his Honour concluded that BATAS had deliberately destroyed prejudicial documents pursuant to its "Document Retention Policy" with the intention of preventing the plaintiff from having a fair trial (although Eames J's judgment was subsequently overturned by the Court of Appeal: British American Tobacco Services Ltd v Cowell [2002] VSCA 197).

Following that case, the plaintiff's solicitor had received requests from the US Department of Justice and the Australian Competition and Consumer Commission for copies of the documents BATAS had produced during the litigation. The plaintiff applied to the Court for a declaration to the effect that it could release those documents as requested - that is, it applied for a declaration that the documents were not subject to the "implied undertaking" (the "implied undertaking" prevents parties to litigation from using documents obtained through a coercive Court process for purposes other than the litigation itself).

The procedural history of this case is somewhat complex. There were 38 relevant documents in the original McCabe proceeding, over which Eames J ruled that legal professional privilege had been waived. The Court of Appeal overturned that ruling, finding that privilege had not been waived over 32 of the 38 documents, upon which documents Eames J had based much of his decision. On that basis the Court of Appeal found that his Honour's reasoning for striking out the defence could not stand.

In the meantime, however, the original hearing of this application in relation to release of the documents had already been heard. The Court below ruled that the documents could be released (i.e. the implied undertaking did not apply) on the basis of Eames J's finding that privilege had been waived.

This was the hearing of the appeal against that judgment. The Court of Appeal was therefore dealing with the application on a different basis to the Court below (i.e. that privilege had not been waived over the 32 documents). That, in itself, would have been sufficient for the Court of Appeal to conclude that the 32 documents could not be released (and the other 6 documents seemed to it, in any event, to be innocuous). However, given that the plaintiff in the original proceeding had applied for special leave to appeal to the High Court, the Court of Appeal went on to set out its comprehensive reasons for decision.

The Court of Appeal found that, regardless of whether the documents were privileged or not, the 38 documents were subject to the implied undertaking and could not be used for purposes other than the original proceedings. Further, in relation to the 6 documents over which it agreed that privilege had been waived (and notwithstanding its view that they were "pretty innocuous"), the Court observed that it was being asked to hand over documents "without rhyme or reason" and saw no reason to do so. The requests in the letters were too vague and therefore did not assist.