(1) Grant leave to the plaintiffs to use those documents obtained pursuant to the search orders dated 16 September 2016 copies of which are annexures B1, B2, E1, E2, E3, E4, E5, E6, E7, E8, E9, E10, E12, E13, E14, E15, E16, E17, F1, G1, G2, J1, J2, J3, J4, J5, J6, J7, J8, J9, J10, J11, J12, J13, J14, J15, L1, and M1 to the proposed amended statement of claim exhibited behind Tab 4 of Exhibit ASZ-17 to the affidavit affirmed 7 June 2019 of Amy Siyi Zhang (the Annexed Documents as defined in these reasons) for the purposes of proceedings 2019/00067900 (being the proceedings have been cross-vested to the Supreme Court of the Australian Capital Territory by order made by Robb J on 20 June 2019) (the Cross-Vested Proceedings), and for the purposes of the proceedings that have now been commenced in this Court by leave granted on 15 July 2019 (the Defamation Proceedings). (2) Grant leave to the plaintiffs to use the document comprising the email chain annexed as Annexure A to the affidavit affirmed 17 June 2019 of Amy Siyi Zhang for the purposes of the Defamation Proceedings. (3) Otherwise dismiss each of the amended notice of motion filed 4 July 2018 and the notice of motion filed 17 June 2019 by the plaintiffs in these proceedings. (4) Confirm Order 3(ii) made on 19 October 2018 as to the classes of documents required to be returned and/or destroyed (including, for the avoidance of doubt, the document annexed as Annexure C to the affidavit affirmed 17 June 2019 of Amy Siyi Zhang); extend that order to cover all documents seized pursuant to the search orders made in September 2016 other than documents for which leave to use the documents is here given; and otherwise dismiss the notice of motion filed on 31 October 2018 (and amended on 19 February 2019) by the fourth defendant. (5) Order that the return and/or destruction of the documents referred to in Order 4 above (the Subject Documents) be implemented in accordance with the following regime: 1. Within 14 days, the plaintiffs are to cause the return to the fourth defendant’s solicitors of the actual physical documents seized on the night of the search order that are in the possession of the independent solicitor or the independent computer expert. 2. Within 14 days, the plaintiffs are to cause the return to the fourth defendant’s solicitors or the destruction by shredding of all hard copies of the Subject Documents (that is, any hard copy of any physical document seized, including any hard copy of any such document generated by computer) which are in the possession of the independent solicitor; the independent computer expert, Mr Michael Doucas of the plaintiffs, or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Case
[2019] NSWSC 1198
Decision Date
CaseChat Overview and Summary
Findex Group Ltd sought leave to use certain documents obtained in the execution of search orders against iiNet Ltd in other proceedings. The dispute arose from iiNet's alleged misuse of confidential information obtained through hacking. The parties had previously agreed that the documents could not be used outside of the existing proceedings. The Federal Court was required to determine whether the implied undertaking under the law applied and if there were special circumstances warranting a departure from that undertaking.
The court considered whether the implied undertaking under the law applied, which restricts the use of documents obtained under a search order to the proceedings for which the order was made. The court also examined if there were any special circumstances that might warrant a departure from this undertaking. The court found that the implied undertaking did apply, but also considered whether special circumstances existed to justify a release from the undertaking. The court concluded that the special circumstances, including the public interest in the investigation of serious criminal conduct, warranted a departure from the usual application of the implied undertaking.
The court granted leave for the documents to be used in the other proceedings, recognising the public interest in the investigation and prosecution of serious criminal offences. The decision balanced the need to protect the confidentiality of the documents obtained under the search order with the broader public interest in ensuring that serious criminal conduct is investigated and prosecuted. This decision highlights the importance of considering the broader public interest when determining whether to release documents obtained under a search order for use in other proceedings.