| 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 |
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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 | |
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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
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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…
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- AGLC
- Griffiths & Beerens v Duggan (No 2) [2008] VSC 230
- Case
- [2008] VSC 230
- Decision Date
CaseChat Overview and Summary
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.
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