Citibank Ltd v Liu

[2000] NSWSC 181

CITATION:	Citibank Ltd v Liu & Ors [2000] NSWSC 181
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 4660/99
HEARING DATE(S):	25 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Citibank Limited (P) Chiu Wah Liu (aka Tina Liu) (D1) Casey Wong (aka Kai Chee Wong) (D2) Tatepro (Aust) Exports Pty Limited (D3) Premier Corporation Pty Limited (D4) Strategic Commodities Pty Limited (D5)
JUDGMENT OF:	Hamilton J

COUNSEL :	Miss L Johnson, Solicitor (P) S L Bell (D2) No other appearances
SOLICITORS:	Mallesons Stephen Jaques (P) Ian B Mitchell (D2) No other appearances
CATCHWORDS:	PROCEDURE [442.5] - Discovery and inspection of documents - Generally - Anton Piller orders - Whether plaintiff or defendant ought be permitted to inspect seized computer records to determine whether they contain relevant material - Defendant associated with individuals and companies against whom prima facie case of serious fraud and dishonesty made out - Controls which should be imposed on inspection
CASES CITED:	Redic Industries Pty Ltd v JAL Chemicals Pty Ltd (1987) 11 IPR 310
DECISION:	Inspection allowed by plaintiff subject to stringent controls.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 25 FEBRUARY 2000

4660/99 CITIBANK LIMITED (ACN 004 325 080) v CHIU WAH LIU (AKA TINA LIU) & ORS

JUDGMENT
HIS HONOUR:
1    The application before me this morning concerns material contained in computer records of the second defendant seized from him under an Anton Piller order issued in favour of the plaintiff. As with the computer records of so many business people, the electronically recorded material of the second defendant seems, on the evidence, to contain a mixture of business and personal material. This is demonstrated by material from his computer records that is already in evidence. It is said, and it is not doubted, that, as well as business matters being in the seized computer records, there is personal correspondence from him to his then estranged wife, now his ex wife. There is also personal correspondence with his children. All this has been seized pursuant to the Anton Piller order because, although there are many individual documents contained within it, what has been seized is the electronic recording that contains them all.

2    The argument, in essence, is as to whether the viewing of this material and the sorting of purely personal material from the business material should be done by the second defendant's representatives, with copies only of the material found to be relevant delivered to the plaintiff, or whether the plaintiff's representatives ought to be allowed to examine the record and determine which of the material is relevant to the proceedings.

3    Both sides have offered safeguards. The greatest safeguard offered by the second defendant is that the examination would be made by counsel, who is experienced in computer matters and who, also being a barrister in good standing, has well-known duties to the Court, which the Court does not doubt for a moment would be carried out. The safeguard offered on the plaintiff's side is that the material shall be seen in the first instance only by stipulated legal representatives, who would undertake that the material would not be revealed to anybody, even the client, without the leave of the Court. Those representatives, of course, are equally bound by duties to the Court, which the Court does not doubt would be carried out.

4    The Court is acutely aware in this case of the invasive nature, as far as the privacy of individuals is concerned, of its subpoena processes and particularly of the process by way of Anton Piller order. However, I have decided that there are features which indicate that the process of examination by the plaintiff's representatives, subject to stringent precautions, should be allowed in this case. Certainly some of the relevant children of the second defendant are adults, and there is evidence in these proceedings which already indicates that, in the course of correspondence with those children, there is communication about business or property matters that undoubtedly have some relevance to these proceedings. It should also be borne in mind that, while the case is in the early stages and the second defendant has not yet had an opportunity to mount his defence, much less to have it heard and determined by the Court, there is a substantial body of evidence of seriously fraudulent and dishonest conduct by persons which the Court has found sufficient to grant Mareva relief and Anton Piller orders in these proceedings on a number of occasions (cf Redic Industries Pty Ltd v JAL Chemicals Pty Ltd (1987) 11 IPR 310). The second defendant is undoubtedly associated with individuals and companies who, that body of evidence shows, were involved in seriously fraudulent and dishonest conduct. Bearing in mind all those factors, I have decided that the appropriate course in this case is, as I have said, to allow examination by the plaintiff's representatives subject to stringent controls.

5    The parties should go away and prepare and present me with a detailed regime. One feature of the regime will need to be provision for the excision from the computer record delivered of material, in respect of which privilege is claimed, since that material ought to be excluded from examination by the plaintiff's representatives. As far as computer personnel need to be involved, there can be discussions between the parties as to who they will be. However, anyone who sees any of the material must be required to give to the Court written undertakings of an appropriate sort. The legal representatives who are to see the material must be identified and, without any reflection on any of them, it may be more satisfactory that any lawyer seeing the restricted material ought to give, for the sake of identification and clarity, a written undertaking, rather than leaving the matter to reliance upon the lawyers' general duties to the Court. The parties may approach my Associate when they have had further discussion with a view of bringing forward suitable short minutes.

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Last Modified: 09/25/2000