British American Tobacco Australia Services Ltd v Cowell (as representing the estate of Rolah Ann McCabe, deceased)

(2003) 8 VR 571; [2003] VSCA 43

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Implied undertaking
3. › Documents produced under coercion
4. › Discovery
5. › Subpoena duces tecum
6. › Whether implied undertaking ceases when document admitted into evidence
7. › Distinction between use of document and use of information made public
8. › Distinction between tender at trial and tender during interlocutory proceeding
1. Practice and Procedure
2. › Implied undertaking
3. › Witness statements and answers to interrogatories
4. › Documents brought into existence for use at trial
5. › Whether implied undertaking spent once document tendered at trial
6. › Whether tender on interlocutory application equivalent to tender at trial
1. Practice and Procedure
2. › Implied undertaking
3. › Release from undertaking
4. › Considerations relevant to granting leave
5. › Whether leave should be granted to provide documents to third party investigators
1. Evidence
2. › Legal professional privilege
3. › Waiver
4. › Imputed waiver
5. › Whether imputed waiver limited to purpose of interlocutory application
6. › Whether waiver endures beyond interlocutory proceeding

Quick Take

The implied undertaking limiting use of documents produced under coercion in litigation is not discharged merely because the documents are marked as exhibits. A party bound by the undertaking may not use the documents themselves outside the litigation without leave, even after they go into evidence, though the party may use information about the documents that has become genuinely public through the court proceedings. Documents created specifically for the litigation (witness statements, interrogatory answers) may be freed from the undertaking once tendered at trial for their intended purpose, but not when tendered only on an interlocutory application for a collateral purpose. An imputed waiver of legal professional privilege can be limited to the purpose of the interlocutory application in which it arose.