Elements applicable to a release from the Harman undertaking

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By Stuart Eustice, Partner and Jacob Howes, Lawyer

In I Cook Foods Pty Ltd v State of Victoria (Department of Health & Human Services) and City of Greater Dandenong (S ECI 2020 02728) also known colloquially as ‘slug gate’, the plaintiff applied for leave to, among other things, be released from its Harman obligations (codified under s 27 of the Civil Procedure Act 2010 (Vic)). The purpose was for it to use discovered documents from the subject proceeding in a related proceeding that it is pursuing concerning similar subject matter.


The Court held the asserted factual overlap between the two proceedings did not arise or was significantly reduced, as a result of Court’s earlier decision to deny leave to include pleadings of misfeasance in public office (on the account of insufficient particularisation). Consequently, the Court held this rendered the purpose to which a release order might be granted to fall away and with it the special circumstances justifying the Court to do so.

The Court went further to find that even with a greater overlap between proceedings, it would not have been satisfied that the release sought by the plaintiff would have been appropriate, given the scope of release proposed would have effectively merged discovery exercises between proceedings.

The Court found the plaintiff’s description of documents subject of the release, being “those documents that pertain to the audit carried out by the plaintiffs in the Audit Proceedings”, failed to adequately identify the documents affected with the requisite specificity, too board, untargeted and without regard to the relevance of the documents.

Regarding inappropriateness, the Court cited the nature, scope and pleadings of each proceeding were different and the discoverability of documents therefore unclear, given one proceeding had a more narrow or focused cause of action than the other. Further, as the defendants were also different, a release order would have effectively caused the compulsion of disclosure of confidential materials to non-parties. The Court reiterated that as the defendants completed discovery on the basis that s 27 of the Civil Procedure Act governs the use of their documents, they were rightly entitled to an expectation that the produced documents would be treated confidentially unless and until they lose that character.  The Court formed the view that the public interest in the protection of the use of documents produced by way of discovery was significant and not something overcome by supposedly difficulties preventing a joint mediation of the two proceedings – as was argued by the plaintiff.

The Court held the orders sought were potentially unnecessary, as the relevant documents sought from non-parties could be obtained using subpoenas. This approach was preferable given the scrutiny of relevance against the pleadings and the opportunity afforded to addressees to make objections to production making it a more targeted approach.

The Court helpfully suggested an alternative approach was possible, namely where the application tabled a specific list of identified documents to be used across proceedings to be agreed between the parties, addressing the specificity requirement and following that agreement, with it the requirement that the relief is no greater than is necessary in the circumstances.


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