[1] This is an appeal from the judgment of Ronald Young J, delivered on 11 April 2003, in which he held that the appellant, Dr Toni-Maree Wilson, had acted in contempt of court by providing discovered documents to the Royal Australasian College of Surgeons (“the College”).
[2] The sanctions Ronald Young J imposed (costs and a conditional stay on the underlying proceedings) are no longer material given a subsequent lifting of the stay and a settlement between the parties. But Dr Wilson is anxious to have set aside the finding that she was in contempt of court.

Background

[3] In the winter of 2002, Dr Wilson and Dr Askar Kukkady both applied for an advertised position of specialist paediatric surgeon for the Waikato District Health Board. Dr Kukkady was the successful applicant. His appointment was made on 1 August 2002 and he was initially to start work in mid-January 2003.
[4] On 8 October 2002, Dr Wilson brought judicial review proceedings against the Health Board and Ms Janis White, its chief executive, seeking a declaration that Dr Kukkady’s appointment was invalid. Dr Wilson also sought a mandatory injunction appointing either her or one of the other qualified candidates to the position.
[5] The proceedings were eventually to become bogged down in a series of procedural imbroglios and they have now been settled. Initially, however, they were pursued with expedition.
[6] On 14 October 2002, the High Court made timetabling orders which followed the terms of a joint memorandum of counsel dated 10 October 2002. The memorandum provided that the affidavits on behalf of Dr Wilson would be filed and served and “relevant documents” served within 14 days of receipt of the statement of defence. The memorandum also provided for the defendants to file and serve their affidavits and serve “relevant documents” within 14 days of receipt of Dr Wilson’s affidavits. The case was set down for hearing on 16 and 17 December 2002.
[7] On 16 October 2002, the respondents’ solicitors wrote to the appellant’s counsel. That letter stated:

As requested, for the purposes of your briefing an intended witness, please find enclosed Mr Kukkady’s curriculum vitae.

Obviously, as an advance on Waikato DHB’s discovery in the above matter, the usual limitations on discovered documents apply to the document.

We look forward to receiving your client’s repleaded claim.

[8] The defendants filed their statement of defence on 6 November 2002 and this meant that Dr Wilson’s affidavits were to be filed and served on 20 November. Dr Wilson did not comply with this requirement and this resulted in a hearing before Associate Judge Gendall on 3 December 2002. The Associate Judge varied the timetable giving the defendants until 10 December to “file and serve their affidavits and documents”, but declined to vacate the fixture for 16 and 17 December.
[9] On 10 December the defendants served a list of documents prepared in discovery format along with copies of the documents listed. Each page of every document was marked with the words “copy for the purpose of inspection only.” The documents provided included Dr Kukkady’s application for the position of specialist paediatric surgeon at the Waikato District Health Board, an application supplement (“the SMO supplement”) and, we assume, another copy of Dr Kukkady’s curriculum vitae.
[10] On 12 December 2002, Dr Wilson wrote to the College enclosing copies of Dr Kukkady’s job application, the SMO supplement, and his curriculum vitae. The first two of these documents were copies of the documents made available to her on 10 December and each was marked “copy for the purpose of inspection only”. We are not clear whether the curriculum vitae which she copied was that provided to her in October or alternatively on 10 December. In any event it too was marked, “copy for the purpose of inspection only”. In her letter to the College, Dr Wilson alleged that Dr Kukkady had misrepresented his qualifications to the Waikato District Health Board and went on to state, “I would be pleased if you would treat my letter as referral of a complaint to the Secretary as to Dr Kukkady.”
[11] At this time, Dr Kukkady was not a Fellow of the College but was about to seek that status.
[12] The fixture for 16 and 17 December 2002 was abandoned. In his minute of 16 December 2002 recording this, Hammond J observed:

This morning the existing respondents and the Court received a further amended statement of claim, which alleges in paragraph 13 (e)-(g) inclusive, that Dr Kukkady “falsely misrepresented” his qualifications. That is an allegation which has not been in the pleadings before. Mrs Harley [counsel for Dr Wilson] says this is because it is only very recently, as a result of discovery, that her interests have felt able to make that allegation.

The Judge considered that these new allegations required the proceedings to be adjourned and the joinder of Dr Kukkady and the Health Board’s chief operating officer, Mr Mollet as additional defendants.

[13] When they learnt of Dr Wilson’s letter of 12 December 2002, the Health Board and Ms White along with Mr Mollet and Dr Kukkady, took the stance that she had breached an implied undertaking that the documents would not be used except for the purpose of the proceeding. They sought a stay of proceedings pending the formal withdrawal of her complaint to the College and an acknowledgement from the College that the documents which they had received from Dr Wilson were obtained by way of discovery and could not be used except for the purposes of the proceeding.
[14] In his judgment of 11 April 2003 which is now under appeal, Ronald Young J held that Dr Wilson had acted in contempt of court when she provided the relevant documents to the College in support of her complaints against Dr Kukkady. The Judge ordered a stay of proceedings in the terms sought and awarded costs against Dr Wilson.

Other events

[15] On 8 April 2003, the College conferred a Fellowship on Dr Kukkady. This was three days prior to the delivery of the judgment of Ronald Young J on 11 April.
[16] On 2 May 2003, the College advised Dr Wilson and Dr Kukkady that the complaint by Dr Wilson had been dismissed. On 30 May 2003, Dr Wilson emailed the Royal College to “formally withdraw” her complaint. The College has been prepared neither to return the documents sent to it by Dr Wilson nor to accept any limitation of use conditions as to its retention of the documents.
[17] On 29 August 2003, Wild J lifted the stay imposed by Ronald Young J.
[18] The parties have subsequently reached an accommodation under which the substantive proceedings by Dr White will be (or perhaps may already have been) abandoned and the present respondents (including not only the Health Board and Ms White but also Mr Mollett and Dr Kukkady) have agreed to take no further steps in opposition to the appeal.

Our approach to the appeal

[19] That the appeal is not opposed does not mean that we should allow the appeal unless we are satisfied that the decision appealed against was wrong.
[20] It is elementary that that there is an implied undertaking by a party obtaining discovery not to use discovered documents for collateral or ulterior purposes: Telstra New Zealand Ltd v Telecom New Zealand Ltd (1999) 14 PRNZ 108 at 113; Alterskye v Scott [1948] 1 All ER 469 at 470. The reasons are twofold:

(a) The first is a concern that unless there are restrictions on the uses to which discovered documents can be put, parties to litigation may not comply with their discovery obligations; and

(b) Secondly, a sense of fairness associated with the privacy expectations of a party who is required to produce documents for one purpose and is entitled to expect that they will not be used for another.

[21] It is also elementary that the implied undertaking is given to the Court. The corollary of this was explained by Lord Oliver in Crest Homes plc v Marks [1987] 2 All ER 1074 at 1078:

... But the implied undertaking is one which is given to the court ordering discovery and it is clear and is not disputed by the appellants that it can, in appropriate circumstances, be released or modified by the court.

As will become apparent, there is room for debate and doubt about the circumstances in which an implied undertaking might lapse. In this context it is important to recognise that those who wish to use discovered documents for collateral purposes can always obtain certainty by seeking the prior sanction of the Court. This is a point to which we will, from time to time, revert.

[22] In the succeeding sections of our judgment we propose to discuss the following questions:

(a) Were the documents provided to Dr Wilson subject to an undertaking as to limitation on use?

(b) Was Dr Wilson released from the limited use undertaking?
(c) Does it matter that Dr Wilson could have obtained the documents in other ways?
(d) Is the limited nature of the use to which the documents were put significant?
(e) Is Dr Wilson entitled to a public interest defence?

Were the documents provided to Dr Wilson subject to an undertaking as to limitation on use?

[23] In December 2002, rr 307 and 309 of the High Court Rules provided:

307 Order for production for inspection –

(1) Where it appears to the Court -

(a) From a pleading, list, or affidavit filed by a party or any other person, that any relevant document is in the possession, custody or power of that party or person; or

(b) From the evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that any relevant document is in the possession, custody, or power of a party or any other person -

the Court may, unless the document is privileged from production, order that party or other person to produce the document for inspection by any party or intending plaintiff at a time and place specified in the order, or to serve on any party or intending plaintiff a copy of the whole or any part of the document, with or without an affidavit verifying the copy by a person who has examined the document and the copy.

(2) An affidavit made pursuant to an order under subclause (1) shall, unless the Court otherwise orders, state whether there are in the document copied any, and, if so, what erasures, interlineations, or alterations.

Right to make copies -

(1) A party to whom a document is produced for inspection under rule 306 or rule 307 may make copies of the document.

(2) On the application of a party to whom a document is produced for inspection under rule 306 or rule 307, the Court may order that the party having the document in his possession, custody, or power shall furnish the applicant with a legible copy.
(3) An order under subclause (2) may be made on such terms as the Court thinks fit, and in particular the Court may order the applicant to pay the reasonable expenses of the other party, and may order that the document be marked to the effect that is it [sic] a copy furnished for purposes of inspection only.
(4) A party who obtains a copy under this rule –

(a) Shall make use of that copy only for the purposes of the proceeding; and

(b) Except for the purposes of the proceeding, shall not make it available to any other person.

[24] Mr Carruthers QC for Dr Wilson argued that the parties had “by-passed discovery”.
[25] We see this argument as unconvincing.
[26] In the first place, it seems to us that the original orders made on 14 October 2002 were within r 307 of the High Court Rules with the result that r 309 applied. Mr Carruthers relied on the variation of the timetable order made by the Associate Judge on 3 December 2002 which, in literal terms, appeared to require the “relevant documents” not only to be served but also “filed”. He suggested that this was inconsistent with the process being by way of discovery. We have no doubt that there was, in this respect, a slip in the language used by the Associate Judge who obviously intended only to make adjustments to the original consent order as to when the required steps were to be taken as opposed to the substance of what was required. There is, of course, no reason why a party should file in Court “relevant documents” and we cannot accept that the Associate Judge intended to make such a direction.
[27] More importantly, the process involved in substance discovery. Where discovery is provided informally, the whole process necessarily occurs in a context which is influenced by the coercive powers of the Court. Given the terms of the orders which were made, we are well satisfied that there was sufficient compulsion in the process which occurred in this case for the implied undertaking to apply.
[28] The defendants certainly acted on the basis that what was involved amounted to discovery and there is no indication that Dr Wilson thought differently. But there are policy considerations involved as well. Discovery is fundamental to the civil litigation process. It is to the credit of the legal profession that the obligations associated with discovery are well-understood and generally complied with and that, so often, discovery is completed informally. The Courts should encourage informal discovery (because it is likely to be cheaper) but we would not be doing so if we allowed parties who have engaged in informal discovery to rely on that informality to wriggle out of associated obligations.
[29] We accept that there is scope for debate as to the circumstances in which an undertaking as to limited use is to be implied; see Groves, “The implied undertaking restricting the use of material obtained during legal proceedings” (2003) 23 Aust Bar Rev 313. But as Groves shows, the drift of authority is towards the position that the undertaking applies to any material obtained compulsorily in legal proceedings. Further, the requirement for compulsion is one of substance rather than form. Both propositions are illustrated by the decision of the English Court of Appeal in Bourns Inc v Raychem Corporation [1999] 3 All ER 154, where documents supplied by one party at the request of the other in proceedings involving the taxation of costs were held to be subject to an undertaking. The Court accepted that the undertaking would undoubtedly have applied had the Taxing Master directed production of the documents. It is implicit in the decision of the Court that such an order would have been made had voluntary production not occurred.
[30] Against that background the conclusion that Dr Wilson received the documents in question subject to an implied undertaking as to limited use seems to us to be irresistible.
[31] We think it irrelevant whether the curriculum vitae which Dr Wilson sent to the College was copied from the document supplied on 16 October 2002. There was an in-substance order for discovery against the defendants which, out of courtesy, they complied with, in part, in advance. It would be quite wrong to permit Dr Wilson to argue that their courtesy in this respect released her from her limited use undertaking.
[32] We see nothing unfair to Dr Wilson in this approach. She could have been under no misapprehension as to the limitations on the use of the documents which were made available to her. As indicated, the letter of 16 October 2002 from the respondents’ solicitors, which enclosed Dr Kukkady’s curriculum vitae, stated:

Obviously, as an advance on Waikato DHB’s discovery in the above matter, the usual limitations on discovered documents apply to the document.

Equally, the documents served on 10 December 2002 were provided on the understanding that they formed part of the discovery process. Each of the documents was marked, “copy for the purposes of inspection only”. Dr Wilson was extremely unwise to make collateral use of the documents in the teeth of that warning.

Was Dr Wilson released from the limited use undertaking?

General

[33] Mr Carruthers told us that the documents in question were referred to in affidavits from the defendants which were sworn on 10 December 2002 and apparently filed and served on the same day and in any event prior to 12 December. Mr Carruthers also said that the documents themselves formed part of a common bundle that was eventually lodged with the Court on 13 December. Dr Wilson, in her affidavit in response to the contempt of court allegation said that she believed that the agreed bundle of documents had been filed with the Court prior to her writing to the College on 12 December.
[34] There seem to us to be two associated and overlapping issues which arise out of these facts:

(a) Were the documents in question in evidence when Dr Wilson used them and if so does this make any difference?

(b) Had the respondents relied on the documents so as to discharge Dr Wilson from her limited use obligations?

[35] We will discuss those two issues shortly but before we do so, it is necessary to refer briefly to the leading English case, Harman v The Home Office [1983] AC 280.

Harman v The Home Office

[36] Miss Harman, had been acting as solicitor for the plaintiff in proceedings against the Home Office. When the case was heard, counsel for the plaintiff had apparently read out in open Court a large number of documents which had been discovered by the Home Office. Most of these documents were later held by the trial Judge to be inadmissible and they were thus not produced as exhibits (see 296 and 301). Miss Harman, however, later lent copies of the documents to a journalist.
[37] The judgment of the House of Lords (Lords Diplock, Keith and Roskill: Lords Simon and Scarman dissenting) that Miss Harman’s actions involved a contempt of court was controversial. Following a challenge before the European Commission of Human Rights, the Government of the United Kingdom gave an undertaking to change the law and, pursuant to that undertaking changes to the rules of court were made so that, in the absence of a judicial direction to the contrary, a limited use undertaking ceases to apply to a document once it is read to or by the Court, or referred to, in open Court. The history is discussed in the judgment of Lord Bingham CJ in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 at 506 and following. The current rule is CPR r 31.22 which provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where—(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made—(a) by a party; or (b) by any person to whom the document belongs.

[38] Similar changes have been made to the Rules of Court which govern procedure in the Federal Court of Australia, a point which is discussed by Groves in the article to which we have referred. No such changes, however, have been made in either New Zealand or in Australian state jurisdictions. As Groves points out, the Australian State Courts have not been consistent as to whether the majority decision in Harman should continue to be applied. We will mention some of the relevant decisions later in this judgment.
[39] There are a number of overlapping reasons why the reading of the documents in open Court was thought to have been of significance in Harman:

(a) The transcript of the proceedings presumably recorded the precise terms of the documents (or at least “all material parts” of them) and the reporter or anyone else wanted who to know what the documents said could have done so by simply buying the transcript of the proceedings.

(b) Anyone who was in Court would have been able to hear and perhaps record in note form (perhaps subject to the approval of the Judge being first obtained), the contents of the documents as they were read out.
(c) In those circumstances, the documents had arguably passed into the public domain and had accordingly lost their confidential character.
(d) Open justice and human rights (based on the European Convention on Human Rights) considerations supported the right of the media and thereby the public to know what had happened in open Court. The human rights dimension is discussed in the dissenting speech of Lord Scarman (in which Lord Simon joined) at 316-317 and it is worth noting that the provisions of the European Convention upon which he relied, correspond broadly to ss 14, 25(a) and 27 of the New Zealand Bill of Rights Act 1990.
[40] It has never been common (at least within living memory) for documents to be read verbatim in open Court in New Zealand and the precise issue at stake in Harman v The Home Office and subsequent rule changes might therefore be thought not to be particularly relevant to New Zealand practice. However, extensive reading out of the documents was plainly uncommon by the 1980s in England (see for instance the remarks of Lord Diplock at 304 and Lord Roskill at 320) and in any event, practice there is now very similar to the way litigation is conducted in New Zealand (see the remarks of Lord Bingham CJ in SmithKline Beecham at 508-509). So there is no reason why we should not look to current English practice for guidance.

Were the documents in question in evidence when Dr Wilson used them and if so does this make any difference?

[41] Strictly construed, the speeches of the judges in the majority in Harman go no further than to hold that what had happened in that case had not caused the limited use undertaking to lapse but their drift rather suggests that whatever use is made of documents in litigation, the limited use undertaking continues to apply unless discharged or modified by the Court. In Harman most of documents were ruled to have been inadmissible and thus were not produced as exhibits. It is far from clear, however, that this factor was critical to the decision (see for instance the remarks of Lord Diplock at 304 and 305). Indeed, the House of Lords would appear not to have distinguished between the documents which were held to have been inadmissible and those which were produced as exhibits. To the extent, if any, that the majority in Harman contemplated the automatic discharge of the limited use undertaking in respect of documents in “the public domain”, there is no indication as to the circumstances in which that might occur.
[42] In Sybron Corporation v Barclays Bank Plc [1985] 1 Ch 299 (a case decided before the post-Harman rule changes), Scott J held that documents actually referred to in the judgment in the proceedings in which they were compulsorily produced were still subject to the undertaking. In that case, Scott J drew a distinction between the position of those who obtained the documents under compulsion of law, who remained subject to the undertaking, and third parties (for instance journalists) who were entitled to make use of what entered the public domain.
[43] The most recent of the Australian cases is the decision of the Court of Appeal of Victoria in British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43). In that case, the Court in effect applied the majority decision in Harman and held that documents, which were produced as exhibits at a strike out hearing, remained subject to the implied undertaking. The Court’s conclusion was expressed in these terms (at [48]-[49]):

... Where documents are provided to a party to litigation under some coercive process of the court with the result that an implied undertaking attaches to the effect that, without the leave of the court, they not be used otherwise than for the purposes of the litigation, the party bound by that undertaking is not freed of it simply because the document in question is marked as an exhibit in the proceeding in the course of which it was provided. To the extent that knowledge of the document has become public by dint of its tender in open court, members of the public will be free to make use of that knowledge as they will (subject always of course to any order specially made protecting confidentiality and the like), but the party affected by the undertaking remains bound as to use of the document itself. The distinction seems to us a valid one between, on the one hand, use of the document the contents and probably the provenance of which are known in detail to the party by virtue of a privilege extended to it by the processes of the court and, on the other hand, use of the information about it which comes to the knowledge of the public by reason of the proceedings in open court (and during which, it may be supposed, the document is marked as an exhibit). The knowledge of the one cannot be equated with the knowledge of the other.

Given the particular considerations requiring that a party’s privacy be respected so far as compatible with the administration of justice in open court, there seems no logical, or indeed practical, reason why the mere passing of the document into evidence (as witness its being marked as an exhibit) should be taken to relieve the party bound by the implied undertaking from its obligations in that respect. Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into “the public domain”) by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large - but only as to such information - there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case.

[44] Despite some differences (which are obvious from the passage we have cited from the latter case), the approaches taken in Sybron and British American Tobacco are broadly similar and both are logical extrapolations of the Harman judgment. Despite this, we have major reservations whether these decisions should be applied in New Zealand.
[45] We rather think that the prevailing view (and indeed practice) in the legal profession in New Zealand is that the limited use undertaking lapses once documents are in evidence. A “public domain” test is necessarily vague and in practice, its application might well depend on accidents as to the way in which documents are referred to in open Court and as to how the rules of court as to searching of court files are implemented. A reporter who was able to obtain access to exhibits under those rules would be free to publicise them. At that point, in accordance with the indications in British American Tobacco (but not Sybron), so too would the party who originally obtained them on discovery (at least to the extent that they were already in the public domain). To the extent to which Harman, Sybron and British American Tobacco provide certainty, it is in the form of a very broad prohibition on collateral use (albeit that there will be uncertainty at the margin) along with the possibility of a court ordered release of the undertaking where that is sought.
[46] On the Harman, Sybron and British American Tobacco approaches, the evidential status of the documents was obviously not such as to release Dr Wilson from her limited use obligation.

(a) As at 12 December 2002, the documents had been referred to in affidavits (but not apparently exhibited to them). The affidavits could hardly be seen as being in the public domain until the hearing started. The documents themselves were not filed in the Court until the following day, ie 13 December 2002.

(b) Even if the circumstances were as Dr Wilson supposed them to be, this could not have discharged her from the limited use undertaking. The documents in question would, on this hypothesis, have been less in the public domain than the corresponding documents in either the Harman or British American Tobacco case. Open justice considerations have no obvious application to documents which have been referred to in (and in effect exhibited by) affidavits in proceedings which have yet to be heard. We note that r 66 of the High Court Rules gives members of the public no presumptive right to search court files and copy documents.

[47] As is apparent from what we have said, we have reservations as to whether the Harman Sybron and British American Tobacco decisions should be applied in New Zealand. We have pointed out the problems that they pose. Our preference is to:

(a) Adopt as part of our law the post-Harman English position that the limited use undertaking ceases to apply (but subject to judicial direction to the contrary) once a document is read to or by the Court, or is referred to and this occurs in open Court.

(b) Treat all other circumstances which might be thought to warrant a discharge of the undertaking as not leading to an automatic discharge but rather as grounds for an application to the Court for an order releasing the affected a party from the undertaking.

[48] Although this looks like judicial legislation, it primarily involves adopting the position taken by the minority judges in Harman – a preference which is in accord with views expressed in a number of Australian cases, see for instance Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 164 and Uniflex Australia Pty Ltd v Hanneybel [2001] WASC 138 at [145]. Our view is also broadly consistent with the assertion of Mason CJ in Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33, that the undertaking does not apply to documents which are produced in evidence. Given that the majority approach in Harman has been abandoned in the United Kingdom, it is now less compelling than would otherwise be the case. This is all the more so given that the minority judges in Harman relied on provisions in the European Convention on Human Rights which are broadly comparable to ss 14, 25(a) and 27 of the New Zealand Bill of Rights Act 1990.
[49] We recognise our preferred approach involves giving priority to open justice (and freedom of expression) considerations over the reasons why the limited use undertaking is imposed (see [20] above). Our preference for open justice considerations is associated with what we see as a need for certainty. Privacy considerations are allowed for because it is open to a party who has discovered documents to seek confidentiality orders in relation to them once they are referred to in open Court, cf Lilly Icos Ltd v Pfizer Ltd [2002] 1 All ER 842.
[50] On this approach, a party who has discovered documents can be confident that the limited use undertaking will apply until they feature in proceedings in open Court. At this point, that party has the option of seeking confidentiality orders if he or she seeks further protection. Otherwise the undertaking lapses.
[51] On our preferred approach, Dr Wilson acted prematurely in making use of the documents for her own purposes prior to the commencement of the open Court hearing on 16 December 2002.

Did the conduct of the respondents discharge Dr Wilson from her limited use obligations?

[52] Where a party makes use of his or her own documents to advance his or her own position in a case, the documents are not subject to the limited use undertaking. This is so even if there is an element of compulsion, of a case management nature, on the party who produces the documents, for instance an order to the effect that all evidence and supporting exhibits are to be filed and served by a particular date. This is apparent from the much cited but not reported judgment of Sir Nicholas Browne-Wilkinson in Derby & Co Ltd v Waldon (The Times, October 20, 1988 Ch D). It is also discussed at length by Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] WLR 756.
[53] Those cases do not decide that a limited use undertaking which applies to a document which has been discovered is to be treated as discharged as soon as the party who produced the document on discovery makes use of it. On the other hand, a party who has discovered a document may later make such use of the document as to make it unreasonable or unfair to hold the other party to the limited use undertaking.
[54] From what we were told, by 12 December 2002, the documents in question had been referred to in the respondents’ affidavits. We were not given copies of those affidavits. It is not clear to us whether the respondents could fairly be said to have been relying on the documents in terms of advancing their case or simply referring to them as a necessary part of the background narrative. The more important point, however, is that we cannot see how the respondents can fairly be treated as having relied on the documents until the hearing started.
[55] Consistently with our general approach, we do not regard the limited use undertaking in relation to discovered documents as lapsing automatically on the occurrence of particular events prior to the documents being referred to in open Court. Rather, we see such events merely as providing a basis on which a party subject to the undertaking might seek the permission of the Court to use the documents for another purpose. Most unwisely, Dr Wilson did not do so before she wrote to the College on 12 December 2002.

Does it matter that Dr Wilson could have obtained the documents in other ways?

[56] Mr Carruthers claimed that Dr Wilson could have obtained the relevant documents under the Privacy Act 1993 or the Official Information Act 1982. We have to say that it is far from clear to us that she could have done so, particularly in the sort of time frame within which she wished to act. But in any event, we do not see this as relevant. In the Harman case, it would have been open to the journalist to have obtained lawful access to the contents of the discovered documents. For instance, he could have purchased the official transcript of the proceedings. Yet this was of no avail to Miss Harman.
[57] Mr Carruthers also noted that from 13 December 2002, Dr Wilson could have obtained copies of the documents under r 66(2) of the High Court Rules. This we accept but we reject the associated argument that this consideration is relevant. Dr Wilson did not obtain the relevant documents under r 66(2) and when she sent the letter enclosing the documents on 12 December, copies of them were not on the Court file. More significantly, we do not see r 66(2) as detracting from the fundamental obligations of a party who receives documents under discovery. On Mr Carruthers’ argument, those fundamental obligations could be circumvented by the simple stratagem of ensuring that such a document gets on to the Court file and then obtaining a copy of it under r 66(2). If this were so, the limitation of use restrictions associated with discovery would largely become a dead letter. It must be remembered that in terms of r 66, only parties to the proceedings have a presumptive right to search the court file and take copies of documents.

Is the limited nature of the use to which the documents were put significant?

[58] Mr Carruthers submitted that the College held the documents subject to the same implied undertakings as Dr Wilson.
[59] If this is true (and we note that the College would appear not to agree) it is irrelevant to whether Dr Wilson was in contempt of court. She tendered the documents to the College for the purposes of a complaint against Dr Kukkady. That was a purpose collateral to the proceedings, which itself establishes a breach by Dr Wilson of the undertakings in relation to the documents.

Is Dr Wilson entitled to a public interest defence?

[60] Mr Carruthers submitted that the limitation of use principle is subject to a public interest exception, and that the public interest in the disclosure of the relevant documents to the Royal College outweighed the limitation of use in this case.
[61] In the present case, the putative public interest was framed by counsel for Dr Wilson in the form of a rhetorical question: Where a person who, it is claimed, has misrepresented his qualifications:

... is seeking admission to the body that has to certify him, does not that body have an intense interest in knowing that claim so that it can consider its correctness and, if correct, its effect? ...

[62] Ronald Young J pointed out in his judgment that the only direct public interest was that the Waikato District Health Board ought not to be misled by Dr Kukkady’s application. The position of the Waikato District Health Board was that it was not misled by the application. Providing documentation to the College did not correlate to any public interest in preventing the District Health Board from being misled. That Judge saw Dr Wilson’s behaviour as primarily motivated by personal considerations.
[63] We agree with the Judge that the most appropriate interpretation of Dr Wilson’s actions is simply that she was seeking to open up another front against Dr Kukkady. In any event, if she considered that the public interest warranted the actions she was taking, she should not have acted unilaterally but rather should have sought the leave of the Court. We are aware of no authority which supports the view that a party who is subject to an implied undertaking as to limited use is entitled to decide unilaterally that the public interest warrants disclosure. On the other hand there is much authority which indicates that the proper course is to put the issue to the Court in the context of an application for release from the undertaking; see for instance Watkins v JA Wright (Electrical) Ltd [1996] 3 All ER 31. That Dr Wilson acted without seeking leave of the Court and without even the courtesy of advising the then defendants of her intentions (thus providing them with the opportunity to seek an injunction) renders this line of defence untenable.
[64] Had she sought the leave of the Court to put the documents before the College, it is perfectly clear that she would have been unsuccessful. Care must be taken to ensure that any exception does not swamp the rule. It is common place for parties to litigation to allege misconduct against others and to seek discovery in support of such allegations. To allow discovered documents which reveal (or are thought to reveal) such misconduct to be disclosed for other purposes on the basis of a public interest exception would be very destructive of the underlying principle. Accordingly, permission to permit collateral use could only be properly granted in situations far more compelling than the one which confronted Dr Wilson on 12 December 2002.

Result

[65] The appeal is dismissed.

Solicitors:
Russell McVeagh, Wellington for Appellant
Chapman Tripp, Wellington for Respondents

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