Bergman and Porter

In the Family Court of Australia, Mr Bergman (the applicant, represented by his litigation guardian) sought leave to use documents produced to the Court under subpoena in other litigation. These documents, referred to as the "W documents," were owned by the respondent, Mr Porter, and pertained to the affairs of W Corporation. Mr Porter opposed the application, arguing that the subpoena was an abuse of process.

The Court was required to determine whether to discharge an earlier order that restricted the use of the W documents to the proceedings within the Family Court. Specifically, the Court had to consider whether the implied undertaking not to use documents produced under subpoena for collateral purposes should be released, and if so, under what circumstances and with what limitations. The Court also had to assess whether the subpoena itself constituted an abuse of process, either at its inception or by virtue of the current application.

Justice Watt reasoned that the subpoena was not an abuse of process because the W documents were potentially relevant to both the interim maintenance and property settlement proceedings between Mr Bergman and his wife. The Court applied the principles established in *Springfield Nominees Pty Ltd v Bridgelands Securities Ltd*, holding that the implied undertaking could be released in "special circumstances" where it would not occasion injustice. The Court found that the commonality of parties and subject matter between the Family Court proceedings and the other litigation, particularly concerning the valuation of Mr Bergman's interest in the W Corporation development, constituted special circumstances. The Court was satisfied that releasing the documents would not cause injustice to Mr Porter, and that W Corporation, whose activities the documents related to, did not object. The Court also noted that the wife in the property proceedings had not opposed the application.

The Court ordered that paragraph 8 of the orders made on 23 December 2005 be discharged. Caroline Counsel Family Lawyers were granted liberty to provide or use copies of the W documents for the purposes of pursuing litigation in any Australian or international court where Mr Bergman (or a company of which he is a director or shareholder) is a party, and W Corporation, Mr Porter, the wife's brother, or any associated entity is also a party.