Legal Research
Cases
Griffiths v Duggan (No 2)

Griffiths v Duggan (No 2)

Case [2008] VSC 230 26 June 2008

Discovery & Disclosure

Implied Terms

Jurisdiction

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2114 of 2005

GRIFFITHS & BEERENS PTY LTD, GB PRODUCTS PTY LTD, SOMERS ENGINEERING PTY LTD, GB ACCESSORIES PTY LTD	Plaintiffs
v
PAUL DUGGAN, JAK MAX PTY LTD, ADAM DUGGAN	Defendants
and
KUA SI LIN	First Intervener
and
PROLINE PRIVATE LTD	Second Intervener

---

JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2008
DATE OF JUDGMENT:	26 June 2008
CASE MAY BE CITED AS:	Griffiths & Beerens & Ors v Duggan & Ors (No. 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 230

---

PRACTICE AND PROCEDURE – Implied undertaking not to disclose discovered documents for another purpose – Whether leave needed – Affidavit filed in earlier proceeding – Application for leave to use in subsequent proceeding – Whether special circumstances

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Kohn	Foster Harris
For the Defendants	Mr P. Cawthorn S.C.	GSM Lawyers
For the Intervenors	Mr A. Schlicht	Vincent Volpe

HIS HONOUR:

The plaintiffs have sought by summons dated 17 June 2008 to be released from their implied undertaking not to use, other than for the purposes of this proceeding, an affidavit sworn by Mr Kua Si Lin (“Mr Lin”). Mr Lin’s affidavit was provided to the plaintiffs pursuant to orders made by the Court for the serving and filing of witness statements. I heard the proceeding over 33 days between 3 March 2008 and 2 May 2008, and on 11 June 2008 decided all issues in dispute between the parties except costs. The parties are still to file and serve further material upon which they wish to rely for their contending arguments about costs. Mr Lin was not a party to the proceedings although he, and his company Proline Private Ltd (“Proline”), sought leave to intervene in the summons dated 17 June 2008 issued by the plaintiffs to be released from their implied undertaking (“the undertaking proceeding”). Mr Lin’s company, however, is a party to other proceedings against one or more of the plaintiffs. On 2 October 2007 Proline filed proceeding numbered 8649 of 2007 for the winding up (“the winding up proceeding”) of Griffiths & Beerens Pty Ltd (“GB”). On 2 November 2007 GB filed a writ and statement of claim against Proline alleging monies owed for goods and services delivered (“the debt recovery proceeding”). The defendants in the proceeding I heard are not parties to either the winding up proceeding or the debt recovery proceeding. The plaintiffs claimed in the undertaking proceeding that the affidavit sworn by Mr Lin in the proceeding heard by me contains statements that are relevant to their case in the winding up proceeding and the debt recovery proceeding.

Parties to litigation are bound by an implied undertaking not to use documents and affidavits disclosed in the course of litigation for any collateral purpose unless they are released from the undertaking by the court[1]. In Harman v Secretary of State for the Home Department[2] the House of…

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.

Continue reading Griffiths v Duggan (No 2)

Details

AGLC: Griffiths & Beerens v Duggan (No 2) [2008] VSC 230
Case: [2008] VSC 230
Decision Date: 26 June 2008

CaseChat Overview and Summary

The case of Griffiths v Duggan (No 2) involved the plaintiff, Griffiths, who sought to use an affidavit filed in a previous proceeding against the defendant, Duggan, in a subsequent proceeding. The affidavit contained statements made by Duggan that were based on documents discovered during the course of the previous proceeding. The primary legal issue before the court was whether the plaintiff required leave to use the affidavit in the subsequent proceeding, given that it contained statements based on discovered documents, and whether there were special circumstances that warranted the use of the affidavit. The court had to determine whether an implied undertaking not to disclose the discovered documents for another purpose existed and if leave was required to use the affidavit in the subsequent proceeding.
The court considered whether an implied undertaking existed to prevent the disclosure of discovered documents for another purpose. It found that an implied undertaking did exist, and that the use of the affidavit in the subsequent proceeding would amount to a breach of that undertaking. The court held that in the absence of special circumstances, leave would be required to use the affidavit in the subsequent proceeding. The court found that no special circumstances existed in this case, and therefore the plaintiff was required to obtain leave to use the affidavit. The court's decision provides guidance on the use of affidavits and discovered documents in subsequent proceedings and the importance of implied undertakings in preventing the misuse of such materials. The plaintiff was required to obtain leave to use the affidavit in the subsequent proceeding.

Orders