PJ Beaconsfield Gold Nl and Australian Securities Commission Otter Gold Nl (Formerly Otter Exploration Nl) (First Party Joined) and Burdekin Resources Nl and Tennscourt Oil Pty Ltd (Second Party Joined) [1997] AATA 106 (27 March 1997)

ADMINISTRATIVE APPEALS TRIBUNAL

P.J. BEACONSFIELD GOLD NL v. AUSTRALIAN SECURITIES COMMISSION
OTTER GOLD NL (formerly OTTER EXPLORATION NL) (First Party Joined) and
BURDEKIN RESOURCES NL and TENNSCOURT OIL PTY LTD (Second Party Joined)
No. V97/61
AAT No. 11676A
Number of pages - 8
Administrative Appeals Tribunal

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
G.L. McDONALD (Deputy President)

CATCHWORDS

Administrative Appeals Tribunal - Practice - witnesses statements - documents produced on summons - application for direction from Tribunal to use statements and documents in planned Federal Court proceeding - implied undertaking not to use documents in other proceedings - whether such an undertaking attaches to documents produced for Tribunal proceedings - effect of commencement of appeal to the Federal Court in respect of initial decision

Administrative Appeals Tribunal Act 1975 ss.3, 33, 35(2), 37 40, 42A, 42B, 42C, 46, 63

Ainsworth v Hanrahan (1991) 25 NSWLR 155 Capital Television Group Ltd v Northern Rivers Television Pty Ltd (unreported, Supreme Court of New South Wales, Bainton J, 1 September 1995) Central Queensland Cement Pty Ltd v Hardy (1989) 2 Qd R 509 Crest Homes PLC v Marks (1987) AC 829 Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 23 AAR 439 Harman v Home Office (1983) 1 AC 280 Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 103 ALR 684 Springfield Nominees Pty Ltd v Bridgelands Securities Pty Ltd (1992) 110 ALR 685 United States Surgical Corporation v Hospital Products International Pty Ltd (1982) (unreported: New South Wales Supreme Court, McLelland J, 7 May 1982)

HEARING

MELBOURNE, 13 March 1997 27:3:1997

Counsel for the Applicant: Mr M. Shand

Solicitors for the Applicant: Freehill Hollingdale & Page

Counsel for the first Mr A. Archibald QC, Mr C. Maxwell party joined:

Solicitor for the first Mallesons Stephen Jacques party joined:

Counsel for the second Mr C. Pannam QC, Mr M. Anderson party joined:

Solicitor for the second Clayton Utz party joined:

ORDER

The Tribunal declines to grant the direction sought.

DECISION

G.L. McDONALD 1. These proceedings arise consequently out of a decision given by the Tribunal on 7 March 1997 in relation to the above matter. More directly, this proceeding arises as the result of Otter Gold NL (formerly Otter Exploration NL) ("Otter") applying to the Tribunal through its solicitors, Messrs Malleson Stephen Jaques, by letter dated 3 March 1997, seeking the following: "By this facsimile, Otter applies to the Tribunal for a direction that certain documents, statements and evidence produced or relied on during the course of these proceedings be available to Otter for use in connection with proceedings to be commenced by Otter in the Federal Court of Australia. It is intended that the proceedings will be commenced against the Applicant, Beaconsfield Gold NL ('Beaconsfield'), and the Second Party Joined, Burdekin Resources NL ('Burdekin'), seeking (amongst other things) a declaration of association between be and Beaconsfield, an order for divestiture of shares and options in Allstate Explorations NL ('Allstate') acquired by Burdekin and such other orders as the Federal Court thinks fit. The documents, statements and evidence for which the direction is sought are as follows: 1 Documents produced by Burdekin on 25 February 1997 pursuant to a Summons dated 17 February 1997 issued at the request of Otter. 2 Statements made on 20 January 1997 and 21 February 1997 by Robert Niven Johanson on behalf of Beaconsfield. 3 Statements made on 27 January 1997 and 23 February 1997 by Jerome Vitale on behalf of Burdekin. 4 Oral evidence given by Jerome Vitale and Robert Niven Johanson during the course of the hearing on 26 February 1997. Otter considers that these documents, statements and evidence support claims by Otter against each of Beaconsfield and Burdekin in connection with acquisitions of shares and options in Allstate by Burdekin which have been made since November 1996. It will be Otter's contention in the proposed Federal Court of Australia proceedings that Burdekin and Beaconsfield have been acting in concert with respect to the shares and options in Allstate which have been acquired by Burdekin or are otherwise associates within the meaning of the Corporations Law."

2. In the substantive proceedings the Tribunal made a confidentiality order pursuant to the provisions of s.35(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") in relation to certain documents produced under summons by Beaconsfield. The direction Otter is now seeking does not extend to those documents. The Australian Securities Commission ("the ASC") has indicated that it does not wish to participate in this subsequent application. The Tribunal assumes, therefore, that the ASC gives consent to the release of the documents prepared and filed by it to comply with the provisions of s.37 of the AAT Act. Beaconsfield, by a letter dated 13 March 1997 from its solicitors, Messrs Freehill Hollingdale and Page, submits that no direction of the Tribunal is required with respect to the use by the parties of witness statements adduced in evidence and the transcript of public hearings in any subsequent proceedings. However, Beaconsfield submits that, if the Tribunal formed the view that a direction was required, it was seeking similar directions with respect to witness statements produced and relied upon by Otter, for the purposes of Federal Court proceedings which it intended to initiate. In particular, it would seek directions with respect to the following documents: "1. Statement of John Charles Wood made on 28 January 1997 together with the annexures thereto; 2. Statement of John Charles Wood dated 12 February 1997 together with the annexures thereto; 3. Statement of John Charles Wood dated 25 February 1997 together with the annexures thereto; 4. Statement of Gregory Ray Golding dated 21 February 1997 together with the annexure thereto; 5. Transcript of evidence from Tribunal hearings held on 28 January 1997 and 26 February 1997."

3. The reference in items 1 and 5 above are to an affidavit filed by Mr Wood and the transcript of proceedings occurring on 28 January 1997 which related to an application by Beaconsfield for a stay of the declaration made by the ASC on 10 January 1997, until the Tribunal had reached a decision on the substantive application. The stay was granted on 28 January 1997.

4. Burdekin opposes the direction sought in its submission of 7 March 1997, claiming that an implied undertaking arises with respect to documents subpoenaed and witness statements, and that the Tribunal should not release Otter from any implied undertaking not to use the documents concerned.

5. The first issue to determine is whether the Tribunal has power to make any direction with respect to Otter's application. Once the Tribunal has given its decision in relation to the substantive application before it, it would ordinarily become functus officio. Section 33 of the AAT Act governs the Tribunal's right to determine the procedures to be applied in proceedings before it. The term "proceeding" is given a broad definition in s.3 to include: "3. . . . (a) an application to the Tribunal for a review of a decision; and . . . (h) an incidental application or proposed application, made in the course of, or in connection with a application or proposed application, or a matter referred to in a preceding paragraph."

6. The Tribunal is a statutory body to provide review of administrative decisions made by Commonwealth Ministers, officials and/or statutory bodies on their merits. It must rely entirely on the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and any other enabling legislation for its authority to act. For the Otter application to succeed, it must be able to be categorised within the definition of a "proceeding", as that term is defined within s.3 of the AAT Act. However, in the opinion of the Tribunal, given the breadth of definition of "proceeding" contained in s.3, Otter's application arises as an "incidental application . . . in connection with an application" and consequently it is a matter which the Tribunal can consider.

7. In its submission Otter refers to courts of record having an inherent jurisdiction which recognises an implied undertaking attaching to a party to a proceeding not to disclose the contents of any document disclosed for the purposes of that proceeding in any other forum without the consent of the party who filed the document, or without leave of the Court. The rationale for the rule is to be found in the need to maintain the integrity of the process in the forum in which the proceedings commenced, to ensure a just disposition of those proceedings. If parties have to worry about documents filed in one proceeding, which may contain confidential, personal or commercially sensitive information being used in another forum, then they may be less forthcoming with the provision of information to the Court in the first proceeding, which in turn may result in it not having all of the information needed before it to give a just decision. There is the further point that documents filed may or may not form part of the public record before the Court, depending on whether the matter proceeds to a hearing and, if so, which, if any, of the documents filed may be called upon. In those circumstances the courts have held that an implied undertaking arises that one party will not use the documents filed by another party in one proceeding in any other forum, either without leave of the Court or consent of the party concerned.

8. The starting point for examining the principle is Harman v The Home Office (1983) 1 AC 280. In that case a solicitor made available to a journalist a document which had been produced on discovery by an opposing party in the proceedings. The contents of the document had been read in open court by counsel prior to the solicitor releasing it. The House of Lords determined, by a majority, that the solicitor was guilty of contempt. It held that an implied obligation arose to a party who had obtained copies of documents discovered by another party, and determined that the information contained in those documents could not be used for any purpose other than the proceedings before the Court, even when the contents were read in open court. The House of Lords subsequently affirmed that, as a matter of general principle, the undertaking extended to discovered documents, or information derived from discovered documents, in Crest Homes PLC v Marks (1987) AC 829.

9. In Ainsworth v Hanrahan (1991) 25 NSWLR 155, the New South Wales Court of Appeal applied the same principle, as was applied in Harman's case to discovery, to interrogatories. A similar approach has been taken to witness statements filed in advance of proceedings Central Queensland Cement Pty Ltd v Hardy (1989) 2 QdR 509, Springfield Nominees Pty Ltd v Bridgelands Securities Pty Ltd (1992) 110 ALR 685.

10. The Court will grant consent for documents to be used for other purposes where special circumstances can be established which result in the requirements of justice being better served if the material is be released. Such a finding was made by the Federal Court of Australia in the Springfield Nominees' case. In that case Wilcox J found that there were special circumstances which justified the release of the documents. His Honour was influenced by two factors. First, there was a degree of commonality between the proceedings, one of which had concluded before that Court, and other which was underway in the Supreme Court of New South Wales. Second, the material sought did not contain personal data, or commercially sensitive material. In Capital Television Group Ltd v Northern Rivers Television Pty Ltd (unreported decision of Bainton J in the Supreme Court of New South Wales, dated 1 September 1995) the Court refused to make an order even where the person producing the documents consented. The Court did so on the basis that co-operation between the parties in the disposition of the matter before it may be adversely affected if documents filed in the proceedings were released to be used in an action against the plaintiffs challenging the propriety of the bringing of the action before the Court.

11. In the Ainsworth case Kirby P, with whom Samuels and Handley JJA agreed, said (at p.168): "Once the answers (i.e. to the interrogatories) are tendered or read in open court . . . the liability in contempt for their later use will evaporate: . . . ."

12. In United States Surgical Corporation v Hospital Products International Pty Ltd (unreported: New South Wales Supreme Court, McLelland J, 7 May 1982) (cited in Volume 2 of Ritchie's Supreme Court proceeding in New South Wales, p.8571) McLelland J in the Supreme Court of New South Wales, after examining judgments of the members of the House of Lords in Harman's case drew the following distinction: "It seems to me that the Court must attempt to distinguish between the consequences of access to a document in its character of a discovered (or subpoenaed) document on the one hand, and of access to the same document in its character of a document admitted into evidence on the other hand. Prima facie the Court should prevent utilisation for collateral purposes of access of the first kind and permit utilisation for legitimate collateral purposes of access for the second kind."

13. However, in each case the Court reserved the right to exercise a discretion to withhold consent from the release of the document. The Harman and Ainsworth decisions have been followed in the Federal Court of Australia: Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 103 ALR 684.

14. Does an implied undertaking apply in Tribunal proceedings? The Tribunal is not a court of record and, of course, does not exercise judicial power of the Commonwealth. However, it has many powers similar to those of a court, i.e. it takes evidence on oath, it may proceed in the absence of a party who has had reasonable notice of the proceedings, it may adjourn proceedings (s.40(1)), issue summonses requiring people to appear and give evidence or produce books, documents or things in their possession, custody and control which may be relevant to proceedings before the Tribunal (s.40(1A)). While the Tribunal is not bound by the rules of evidence, it can set its own procedures subject to them being conducted with as little formality and technicality, and with as much expedition as is consonant with achieving the objects of the Act and a proper consideration of the matters before it (s.33(1)). Subject to addressing the considerations set out in s.35(3), the Tribunal may issue directions concerning the confidentiality of evidence given to it as well as prohibit or restrict the publication of names of witnesses before it (s.35(2)). The Tribunal may, subject to the conditions set out in s.42A, dismiss an application or strike out a party. It may also dismiss a vexatious or frivolous before it without proceeding to review the decision and declare, again subject to conditions, a party vexatious for purposes of bringing proceedings before the Tribunal (s.42B). Where the parties reach agreement it may exercise its discretion to give a decision in accordance with the terms of the agreement (s.42C). Section 63, dealing with contempt of the Tribunal provides as follows: "63 A person shall not: . . . (d) do any act or thing which would, if the Tribunal was a court of record, constitute a contempt of that court."

15. A criminal penalty applies for committing contempt or failing to answer a summons. As the Tribunal does not exercise the judicial power of the Commonwealth, it cannot impose the penalties provided. This point does not, however, inhibit the power of the Tribunal from requiring compliance with the statutory powers granted to it.

16. At the end of day the Tribunal is required to reach the correct or preferred decision with respect to the matter under review. In carrying out that function the parties should be able to approach the Tribunal without fear that, should they do so, the material they present to the Tribunal may be used in other proceedings. If that was the case, then it may be the processes of the Tribunal would be misused by parties as an information gathering exercise to achieve a purpose which could not have otherwise been achieved. Accordingly, there being both legislative authority and sound policy reasons for doing so, the principle applied by the courts should be taken also to apply to proceedings before the Tribunal.

17. In Re Environmental Images Pty Ltd and Australian Trade Commission (1996) 23 AAR 439 Deputy President McMahon found the undertaking applied in proceedings before the Tribunal but, having regard to the facts of that case, directed that the respondent should be released from the undertaking in circumstances where the documents were required for a criminal prosecution. He also held that the principles arising out of the decided cases should be used by the Tribunal when approaching this type of application. Whilst Deputy President McMahon decided to grant leave to allow the documents filed in proceedings in the AAT to be used in a criminal proceeding, he was mindful that, in another instances, the commercial sensitivity of documents would be a relevant issue. This view is consistent with the principle that, for the purposes of this type of case, the question of what amounts to "special circumstances" depends on the circumstances of each case: Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 103 ALR 684.

18. In the instant case, time has overtaken the application now before the Tribunal. An appeal has been lodged in the Federal Court against the Tribunal's decision of 26 February 1997. Pursuant to s.46(1)(a) of the AAT Act the Tribunal is required to forward all of the documents "in connection with the proceeding to which the appeal . . . relates" to the Court. The Tribunal is informed by the Registrar that that transmission is now in process of occurring. In those circumstances it would not be appropriate for the Tribunal to reach a ruling on documents which are now before the Federal Court. In Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269; (1991) 103 ALR 684 Burchett J commented (at 685) that, in the case of courts, proceedings should ordinarily be commenced in the court in which the implied undertaking was given. However, his Honour determined in that case that, as all of the relevant proceedings in both cases were commenced in the Federal Court, and the parties had consented to the Federal Court resolving the problem at hand, that the Court was empowered to proceed. The case before the Tribunal contains some important differences. The Tribunal no longer holds the documents, and the parties have commenced an appeal against the Tribunal's decision in the Federal Court. The Federal Court now has the documents and certainly has the inherent power to reach a determination on the present issue. Otter and Beaconsfield have also declared that they wish to commence the second proceedings in that Court. Accordingly, it would seem more appropriate for the applicant to apply to that Court for the leave sought.

19. For the reasons stated, it is not appropriate for the Tribunal to reach a decision on the application before it.