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Holpitt Pty Ltd v Varimu Pty Ltd

Holpitt Pty Ltd v Varimu Pty Ltd

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Case Copied 21 June 1991 10 min read

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Re: HOLPITT PTY LIMITED
And: VARIMU PTY LIMITED; STEPHEN MICHAEL LARKIN; BRENT RODERICK POTTS and
THEODORE WILLIAM RIGALL WEST
No. N G624 of 1990
FED No. 354
Practice and Procedure
29 FCR 576
103 ALR 684

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)

CATCHWORDS

Practice and Procedure - implied undertaking to the court that documents produced on discovery will not be used for any purpose other than the proper conduct of the action in which the discovery takes place - principles relating to the grant of the court's leave to use such documents for the purposes of a separate proceeding - conflicting obligations where documents the subject of the implied undertaking also fall within the terms of an order for discovery of documents made in a separate proceeding.

Federal Court Rules, Order 15 r. 6(2)

HEARING

SYDNEY

#DATE 21:6:1991

Counsel for the Third and Fourth
Respondents: Mr R.M. Smith

Solicitors for the Third and
Fourth Respondents: Messrs Clayton Utz

Counsel for the Bank of New Zealand: Mr A.S. Martin

Solicitors for the Bank of
New Zealand: Messrs Kemp Strang and Chippindall

ORDER

Brent Roderick Potts and Theodore William Rigall West have the leave of the court to use the documents the subject of the motion being more fully described in the submission dated 13 June 1991 filed in matter number G624 of 1990 in and in relation to the conduct of that matter.

There be no order, as between the said Brent Roderick Potts and Theodore William Rigall West of the one part and the Bank of New Zealand of the other part, as to the costs of and incidental to this motion.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By notice of motion filed in these proceedings, the third and fourth respondents sought the court's leave to use in the proceedings documents in their possession which had been produced to them on discovery in certain other proceedings in the court. The notice of motion was served on the Bank of New Zealand, which had produced the documents in the other proceedings. The Bank was represented before me, and opposed the relief sought in the motion. It relied on the implied undertaking, given by Messrs Potts and West (to whom I shall refer as the applicants) in the action in which they obtained access to the documents, not to use them nor allow them to be used for any purpose other than the proper conduct of that action: Harman v Secretary of State for the Home Department (1983) 1 AC 280; Crest Homes Plc v Marks (1987) AC 829 at 853.

It seems to me that the notice of motion should properly have been taken out in the proceedings in which the implied undertaking to the court was given. This is the course which was pursued in Crest Homes, as appears at 854. However, the parties were in agreement…

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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Details

Case: [1991] FCA 354
Decision Date: 21 JUNE 1991

CaseChat Overview and Summary

Holpitt Pty Ltd and Varimu Pty Ltd were involved in a legal dispute before the Federal Court of Australia. The primary issue was whether the respondents, Brent Roderick Potts and Theodore William Rigall West, were allowed to use certain documents, which were subject to an implied undertaking that they would only be used for the purposes of the initial proceeding, in a separate legal proceeding. The respondents argued that the documents were relevant and necessary for the second proceeding, and sought the court's leave to use them.

The court needed to decide the principles that govern the grant of leave to use documents that were subject to an implied undertaking in a separate proceeding. This involved balancing the conflicting obligations of the parties - the implied undertaking given to the court that the documents would not be used outside the original proceeding, and the potential relevance of the documents to the second proceeding. The court also had to consider whether the respondents had a legitimate need to use the documents in the second proceeding, and if there were any circumstances that justified departing from the implied undertaking.

The court granted the respondents leave to use the documents in the second proceeding, finding that the circumstances justified departing from the implied undertaking. The court emphasised the importance of ensuring that documents subject to an implied undertaking are not used for any purpose other than the proper conduct of the action in which the discovery takes place, but also recognised that there may be exceptional circumstances where such use is warranted. The court noted that the respondents had made a compelling case for the relevance and necessity of the documents in the second proceeding, and that there were no other means available to obtain the information contained in the documents.

The court made orders granting leave to the respondents to use the documents in the second proceeding, and made no order as to the costs of and incidental to the motion. The court's decision provides guidance on the principles that apply when a party seeks to use documents subject to an implied undertaking in a separate proceeding, and highlights the importance of balancing the conflicting obligations of the parties in such cases.

Orders

Orders of the court

Brent Roderick Potts and Theodore William Rigall West have the leave of the court to use the documents the subject of the motion being more fully described in the submission dated 13 June 1991 filed in matter number G624 of 1990 in and in relation to the conduct of that matter.

There be no order, as between the said Brent Roderick Potts and Theodore William Rigall West of the one part and the Bank of New Zealand of the other part, as to the costs of and incidental to this motion.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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