iSam Securities (UK) Ltd v Press (No 3) - [2025] NSWSC 768

Supreme Court

New South Wales

Medium Neutral Citation: iSam Securities (UK) Ltd v Press (No 3) [2025] NSWSC 768
Hearing dates: 16 July 2025
Date of orders: 16 July 2025
Decision date: 16 July 2025
Jurisdiction: Equity - Commercial List
Before: Peden J
Decision:
See [21]

Catchwords:
CIVIL PROCEDURE – Implied obligations – Hearne v Street obligation – Release from obligation – Where plaintiffs seek release to use documents discovered by defendants to plead action in England and Wales – Whether release appropriate in circumstances – Release appropriate – Application granted

Cases Cited:
Hearne v Street (2008) 235 CLR 125
iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3
Papantoniou v Stonewall Hotel Pty Ltd (2018) 19 BPR 38,547
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Category: Procedural rulings
Parties: iSam Securities (UK) Ltd (First Plaintiff)
iSam Securities (HK) Ltd (Second Plaintiff)
iSam Securities (Global) Ltd (Third Plaintiff)
iSam Securities (USA) Inc (Fourth Plaintiff)
Matthew Press (First Defendant) (submitting appearance)
Forexco Australia Pty Ltd (Second Defendant) (submitting appearance)
Representation:
Counsel:
Z Graus (Plaintiffs)
Solicitors:
Corrs Chambers Westgarth (Plaintiffs)

File Number(s): 2024/00263578
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

The plaintiffs, as applicants, seek a release from the Hearne v Street (2008) 235 CLR 125 obligation in respect of 40 documents previously discovered by Mr Matthew Press and Forexco Australia Pty Ltd.
The applicants wish to use those documents for the purposes of bringing an action in the courts of England and Wales against Mr Press and Forexco and others, in relation to a 2019 consultancy agreement, to which the applicants and Mr Press were parties.
The documents were produced after the applicants brought a preliminary discovery application seeking to ascertain the identity of prospective defendants and for the purposes of deciding whether to commence proceedings for misleading or deceptive conduct against Mr Press in this Court.
The outcome of that preliminary discovery application was that Richmond J ordered Mr Press to file an affidavit setting out his knowledge of certain matters and 42 documents were discovered as ordered: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036. These reasons assume knowledge of that judgment.
Each of the discovered documents has been reviewed by the applicants’ lawyers and advisers, and they consider that each of the documents is directly relevant to the claim to be brought in England and Wales.

Principles

The Court may release an applicant from the Hearne v Street obligation where the applicant can demonstrate “special circumstances”: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees), 225 (Wilcox J).
If the Court does find special circumstances, then it has a broad discretion as to whether or not to grant leave: Papantoniou v Stonewall Hotel Pty Ltd (2018) 19 BPR 38,547 at 38,553 (Barrett AJA, Beazley P and Ward JA agreeing).
“Special circumstances” does not require extraordinary factors. Instead, “good reason must be…

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: [2025] NSWSC 768
Decision Date: 16 July 2025

CaseChat Overview and Summary

In the Federal Court of Australia, the case of iSam Securities (UK) Ltd v Press (No 3) involved a dispute between the plaintiff, iSam Securities (UK) Ltd, and the defendant, Press. The plaintiff sought a release from obligations implied under Hearne v Street, which pertain to the use of documents discovered by the defendant for pleading an action in another jurisdiction, in this case, England and Wales. The primary legal issue before the court was whether the plaintiff should be granted a release from these implied obligations in the given circumstances.

The court examined the principle established in Hearne v Street, which requires a party to seek leave from the court if they wish to use documents discovered by the opposing party in another jurisdiction. The primary consideration for the court was whether the release from these obligations was appropriate, taking into account the balance of convenience and the potential prejudice to the parties. The court needed to determine if the plaintiff's proposed use of the documents in England and Wales would result in a significant disadvantage to the defendant or if the plaintiff had a legitimate need to use the documents in that jurisdiction.

The Federal Court of Australia found that the release from the implied obligations was appropriate in the circumstances of the case. The court considered the balance of convenience and the potential prejudice to both parties, concluding that the plaintiff's need to use the documents in England and Wales outweighed any potential disadvantage to the defendant. Consequently, the court granted the application for release from the implied obligations, allowing the plaintiff to use the documents discovered by the defendant for their proposed action in England and Wales. The court's decision was based on the specific facts and circumstances of the case, highlighting the importance of a contextual approach when considering the application of the Hearne v Street principle.

Orders