K & S Corporation Ltd v Number 1 Betting Shop Ltd - [2005] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
K & S CORPORATION LTD & ANOR v NUMBER 1 BETTING SHOP LTD & ORS
Judgment of The Honourable Justice Debelle
24 June 2005
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - SERVICE AND AUTHORITY OF SOLICITORS
Service outside Australia – service permitted only with leave – whether leave to serve summons should be granted – test to apply on grant of leave – whether forum non conveniens test applies on grant of leave – leave granted.

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - COMMENCEMENT OF ACTION
Stale summons – application to renew – whether leave should be granted – relevant factors – where application to renew brought out of time – whether time to bring application should be extended – whether action had become inactive pursuant to rule of court – held action not inactive and appropriate in circumstances to extend time and grant leave to renew summons.

PROCEDURE - DISCOVERY AND INTERROGATORIES
Discovery – use of discovered documents – implied undertaking as to confidentiality – relevant principles – whether undertaking terminates on admission of documents into evidence – whether plaintiffs breached undertaking by use of tendered documents when drawing pleadings.
Supreme Court Act 1935 (SA) s 131; Supreme Court Rules 1987 (SA) r 3.04, r 10.03, r 10.06, r 18.02, r 18.07, r 68.03; Rules of the High Court of Justice (NZ) r 220; Supreme Court Rules (BC, Canada) r 13, referred to.
Fowler v Barstow (1881) 20 Ch D 240; Société Général de Paris v Dreyfus Brothers (1885) 29 Ch D 239; (1887) 37 Ch D 215; Hewitson v Fabre (1888) 21 QBD 6; Black v S Freedman & Co (1910) 12 CLR 105; Entores Ltd v Miles Far East Corporation [1955] 2 QB 327; Krawszyk v Graham [1966] SASR 73; Mavra v Logan (1980) 24 SASR 567; Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; United States Surgical Corporation v Hospital Products International Pty Ltd (Unreported, Supreme Court of NSW, McLelland J, 7 May 1982; BC 8200010); Amin Rasheed Shipping Corp v Kuwait Insurance Co (The Al Wahab) [1984] AC 50; Mahon v Frankipile (Australia) Pty Ltd (1990) 157 LSJS 52; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; Fenbury Ltd v Hong Kong & Shanghai Banking Corporation Ltd (1996) 189 LSJS 348; Agar v Hyde (2000) 201 CLR 552; Gillies v Dibbetts [2001] Qd R 596; Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491, applied.
Harman v Home Department State Secretary [1983] 1 AC 280; Hammersley Iron Ltd v Lovell (1998) 19 WAR 316; British American Tobacco Australia Services Ltd v Cowell (No 2) (2003) 8 VR 571, distinguished.
Registrar of the Supreme Court v McPherson [1980] 1 NSWLR 688; Cockburn v Kinzie Industries Inc (1988) 1 PRNZ 243; Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322; Ainsworth v Hanrahan (1991) 25 NSWLR 155; El Ajou v Dollar Land Holdings Ltd [1993] 3 All ER 717; Cook v Parcel, Mauro, Hultin & Spaanstra (1997) 143 DLR (4th) 213; Procon Mining & Tunnelling Ltd v Waddy Lake Resources Ltd (2002) BCSC 129, discussed.
Henderson v Henderson (1843) 3 Hare 100; Barnes v Addy (1874) LR 9 Ch App 244; Cropper v Knight (1901) 17 TLR 299; Scott v Scott [1913] AC 417; Alterskye v Scott [1948] 1 All ER 469; Gibbs v Williams (1971) 24 SASR 243; Victa Ltd v Johnson (1975) 10 SASR 496; Russell v Russell (1976) 134 CLR 495; Riddick v Thames Board Mills Ltd [1977] QB 881; Siskina (Cargo Owners) v Distos Compania Naviera SA (The Siskina) [1979] AC 210; Kimberley Mineral Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Sybron Corporation v Barclays Bank plc [1985] Ch 299; Crest Homes plc & Marks [1987] AC 829; Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460; Re Jogia [1988] 1 WLR 484; Bibby Bulk Carriers v Cansulex Ltd [1989] QB 155; Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; Green v F P Special Assets Ltd [1992] 1 Qd R 1; Grocon Ltd v Alucraft Pty Ltd (in liq) (1992) 10 ACLC 1172; Saltram Wine Estates Pty Ltd v Independent Stave Co (1992) 57 SASR 156; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Swiss Bank Corporation v State Bank of New South Wales (Unreported, 9 December 1992, Supreme Court of New South Wales (Comm Div), Rogers CJ; BC 9203217); Walton v Gardiner (1993) 177 CLR 378; Tolofson v Jensen [1994] 3 SCR 1022; Henry v Henry (1996) 185 CLR 571; Comdel Commodities Ltd v Siporex Trade SA [1997] 1 Lloyd's Rep 424; Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220; James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20; A/S D/S Svendborg v Awada [1999] 2 Lloyd's Rep 244; Brearley v Board of Management Royal Perth Hospital (1999) 21 WAR 79; Minister for Education v Bailey (2000) 23 WAR 149; Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317; K & S Corporation Ltd v Sportingbet Australia Pty Ltd (2003) 86 SASR 312; K & S Corporation Ltd & Anor v No 1 Betting Shop Ltd & Sportingbet Plc [2004] SASC 155, considered.

K & S CORPORATION LTD & ANOR v NUMBER 1 BETTING SHOP LTD & ORS
[2005] SASC 228
Civil:

DEBELLE J. By application dated 10 September 2004 the plaintiffs applied, among other things, for an order granting leave to serve the summons instituting this action out of the jurisdiction and for an extension of time within which to make the application. The action was commenced on 25 October 2002. In a moment I will relate the history of the action which will explain why the application was made so long after the action had been commenced. The application involves a number of issues. I will list them in a moment.
It is necessary first to note the nature of the plaintiffs’ claims. One issue which was extensively argued concerned the use which can be made of the statement of claim (either in its original form or as amended on 6 June 2003) to support the grant of leave. I will refer to the amended statement of claim for the purpose only of providing a brief outline of the facts and the causes of action. I do so without prejudice to the arguments advanced by the defendants as to the use which might or might not be made of the statement of claim.
The plaintiffs are related companies. The second plaintiff is a wholly owned subsidiary of the first. The plaintiffs conduct a large transport business based in Mount Gambier.
The first defendant Number 1 Betting Shop Ltd (“NOBS”) is a company incorporated and registered in Vanuatu. It carries on business as a bookmaker in Vanuatu. The second defendant Sportingbet Plc is a publicly listed company incorporated in the United Kingdom. NOBS is a wholly owned subsidiary of Sportingbet Plc.
At all relevant times the plaintiffs employed a man named Telford as their secretary and chief financial officer. In the statement of claim the plaintiffs allege that Telford had engaged in gambling with NOBS by placing very substantial bets on horse racing and that he had misappropriated monies of the plaintiffs in order to provide funds for his betting activities. The plaintiffs allege
·that NOBS operated a bank account with Westpac Banking Corporation at its Petrie Plaza Branch in Canberra, Australian Capital Territory;
·that between 23 August 2001 and 17 January 2002 Telford transferred $8.5 million to the NOBS Westpac account by a series of substantial payments from the account of the plaintiffs at the ANZ Bank at Mount Gambier;
·that NOBS credited those funds to a betting account in the name of Telford;
·that Telford operated his betting account under the alias “Craig Teller”;
·that NOBS knew or ought to have known that the monies transferred to it by Telford were misappropriated by Telford and that NOBS had no entitlement to those monies; and
·that NOBS had sufficient knowledge to be put on enquiry as to the payments which Telford caused to be made into the NOBS Westpac account and that it failed to make such enquiries.
The plaintiffs thereby claim that the monies transferred into the account of NOBS with the Westpac Bank were held by NOBS on a constructive trust on behalf of the plaintiffs. Alternatively, the plaintiffs claim restitution of the monies as monies had and received by NOBS from the plaintiffs. The plaintiffs alternatively claim $8.5 million as damages from NOBS.
As against Sportingbet Plc the plaintiffs claim three separate amounts. They are:
1.A claim for $3.5 million being monies transferred from NOBS to Sportingbet Plc. The plaintiffs allege that Sportingbet Plc knew or ought to have known that NOBS had no entitlement to those monies. Alternatively, the plaintiffs claim that Sportingbet Plc holds these monies on a constructive trust for the plaintiffs.
2.A claim for $1,157,930 paid by NOBS to creditors of Sportingbet Plc to which monies, the plaintiffs allege, NOBS and, therefore, the plaintiffs are beneficially entitled. Alternatively, the plaintiffs say that Sportingbet Plc knew it had no entitlement to the monies with the consequence it holds the monies on a constructive trust for the plaintiffs.
3.A claim for $8,192,781, being a loan by NOBS to Sportingbet Plc. The plaintiffs say NOBS has a beneficial entitlement to those monies which represent the only substantial asset out of which NOBS can discharge its liability to the plaintiffs.
The plaintiffs also seek declarations as to their entitlement for relief on the above grounds.
In order to understand the issues on this application, it is necessary to examine the long and somewhat tortuous history of earlier interlocutory proceedings in this action and to be aware of other related actions between the parties. I deal first with the related actions.
The Sportingbet Australia Action
Two actions had been heard in this Court before this action was commenced. In the first action, the first plaintiff claimed recovery of the misappropriated money from Telford and his wife. They consented to judgment in the sum of $20,053,523.06.
The plaintiffs commenced a second action on 3 May 2002 against Sportingbet Australia Pty Ltd (“Sportingbet Australia”). It is the action number 614 of 2002. For convenience, I will call it “the Sportingbet Australia action”. In that action the plaintiffs claimed payment of $2,680,000 which, they contended, was held by Sportingbet Australia on a constructive trust in favour of the plaintiffs. Sportingbet Australia is a wholly owned subsidiary of Sportingbet Plc. The action was heard by Besanko J in 2002. On 28 March 2003 Besanko J delivered judgment upholding the plaintiffs’ claim. Sportingbet Australia has appealed against that judgment. The appeal has not yet been heard.
The Order of 17 October 2002
On 10 October 2002, after the conclusion of the hearing of the Sportingbet Australia action, the plaintiffs made an application in that action seeking leave to use certain documents tendered in the action including confidential exhibits. On 17 October 2002 Besanko J made the following order:
1.Pursuant to sections 131 (1) and 131 (2) of the Supreme Court Act, the plaintiffs have leave to refer to and use in any urgent applications as contemplated in paragraph 5 of the affidavit of Victor John Daminato sworn on 9 October 2002 that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Limited, the exhibits tendered and marked P24, P25, P31, P32, P33 and D11 at the trial of the within action.
2.Pursuant to section 131 (1) of the Supreme Court Act, the plaintiffs have leave to refer to and to reproduce either electronically or by photocopying for use in any urgent applications as contemplated in paragraph 5 of the affidavit of Victor John Daminato sworn on 9 October 2002 that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Ltd, the transcript of the evidence taken during the trial of the within action on 10 to 13 September 2002 inclusive, and 17 to September inclusive.
Although the sealed order states that it was made on 16 October 2002, it was in fact made on 17 October. There is a dispute as to the intent of that order. I will refer to that issue a little later. It is, however, common ground that the order permitted the plaintiffs to use the exhibits referred to in it for the purpose of making an application for orders in the nature of Mareva orders against NOBS and Sportingbet Plc.
The Summons is Issued
On 25 October 2002 the plaintiffs commenced this action by inter partes summons. No statement of claim was annexed to the summons. The relief claimed was expressed in these terms:
Judgment against the defendants and each of them in the sum of $8,500,000.
In addition, there were claims for interest and costs. Seven defendants were named in the summons. In October 2003 the plaintiffs discontinued the action against five defendants so that the only remaining defendants are NOBS and Sportingbet Plc. For the purpose of this application nothing turns on the discontinuance of the action against the other five defendants and I will not refer to the interlocutory steps in relation to the discontinuance of the action against them.
Although leave to serve out of the jurisdiction had been neither sought nor obtained, the summons was served on all defendants. It was served on NOBS in Vanuatu on 29 October 2002 and on Sportingbet Plc in London on 7 November 2002.
The Application for Mareva Orders
On 25 October 2002 the plaintiffs applied for orders in the nature of Mareva orders against all seven defendants. An affidavit of Victor John Daminato sworn on 25 October 2002 was filed in support of that application. Mr Daminato was a solicitor employed by the solicitors for the plaintiffs. Mr Daminato’s affidavit exhibited some of the confidential exhibits listed in the order of Besanko J made on 17 October. There are issues as to the use which might be made of that affidavit for the purpose of this application.
The defendants were heard on that application. On 12 November 2002 Bleby J made orders in the nature of Mareva orders by consent against all defendants except for Sportingbet Plc.
On 16 January 2003 the plaintiffs applied for leave pursuant to Rule 18.07 to serve the summons on the defendants. A short affidavit of Dougall Andrew Ross was sworn in support of the application. It simply referred to the affidavit of Mr Daminato sworn on 25 October 2002.
On 20 January 2003 Camatta Lempens, solicitors, filed an address for service on behalf of NOBS and Sportingbet Plc as well as on behalf of other defendants against whom the action has been discontinued.
On 29 January 2003 Master Kelly granted leave to the plaintiffs to serve the summons out of the jurisdiction. The leave was granted nunc pro tunc and operated from 25 October 2002. When Master Kelly made that order, the plaintiffs had not filed a statement of claim. The materials before Master Kelly were the inter partes summons and the affidavit of Mr Daminato and the exhibits to his affidavit. The application for leave to serve out of the jurisdiction had been served on Camatta Lempens. Through an oversight Camatta Lempens failed to attend on the hearing before Master Kelly. As will be seen, the defendants later applied to set aside the grant of leave.
On 30 January 2003 the plaintiffs filed a statement of claim which was served.
On 2 April 2003 NOBS and Sportingbet Plc each filed a defence. Each defence contained a plea objecting to the jurisdiction of this Court.
On 6 June 2003, pursuant to a grant of leave, the plaintiffs filed an amended statement of claim. It has been served.
On 27 June 2003 NOBS and Sportingbet Plc (as well as the other defendants) applied for orders seeking, among other things, an order setting aside the order of Master Kelly granting leave to serve. The application was made more than six months after the order granting leave. To the extent necessary, the defendants applied for an extension of the time within which to bring the application. For a number of reasons that application was not heard until 29 March 2004. There were a number of interlocutory hearings concerning the application between June 2003 and the hearing on 29 March 2004. On 23 June 2004 Duggan J made an order setting aside both the order made by Master Kelly and the purported service on the defendant. Duggan J published reasons for the decision on 1 June 2004.
Duggan J found that, although Mr Daminato’s affidavit sworn on 25 October 2002 was before Master Kelly when he heard the plaintiffs’ application seeking leave to serve pursuant to r 18.07, Master Kelly had not opened nor examined the confidential exhibits. Master Kelly could not refer to the statement of claim as it had not then been filed. Duggan J also held that the information in that portion of the affidavit which was not sealed fell a long way short of supplying the necessary factual basis required to determine whether to grant leave to serve out of the jurisdiction. He, therefore, held that the information before Master Kelly was quite inadequate for the purpose of determining whether to grant leave to serve out of the jurisdiction. The plaintiffs contended that their causes of action fell within r 18.02 but that argument did not prevail. Duggan J was not prepared to hear re-argument of the application under r 18.07, stating that a fresh application should be made.
On 31 March 2004 both defendants had filed and delivered amended defences. Both defences contained pleas objecting to the jurisdiction of this Court. Plainly, those defences became otiose once Duggan J had made the orders on 23 June 2004.
On 10 September 2004 the plaintiffs issued this application. They sought the following orders:
1. an extension of time to bring the application;
2. an order to renew the summons;
3.that they be granted leave to use the affidavit of Mr Daminato filed on 25 October 2002 and the confidential exhibits to that affidavit;
4.that they be granted leave to serve the inter partes summons outside the jurisdiction; and
5.that they be granted leave to amend the statement of claim.
For a number of reasons it was not possible for the application to be heard until 11 April 2005. No fault in this respect lies at the door of either party.
The Issues
The plaintiffs’ application involves a number of issues.
1.Should the plaintiffs be granted an extension of time within which to make this application?
2.Are the plaintiffs able to renew the summons and, if so, should the summons be renewed?
3.What materials are the plaintiffs at liberty to reply upon for the purpose of supporting their application for leave to serve? This question involves a number of subsidiary issues, namely,
3.1    Is an affidavit required in support of the application under Rule 18.07?
3.2    Were the plaintiffs’ legal advisers at liberty to use documents admitted into evidence in the Sportingbet Australia action? This issue requires consideration of the operation of the implied undertaking not to use discovered documents for a collateral or ulterior purpose.
3.3    Did the plaintiffs’ legal advisers use confidential exhibits when drawing the statement of claim?
3.4    What is the meaning and intent of the order made by Besanko J on 17 October 2002?
4.If the summons is renewed, should leave be granted to serve out of the jurisdiction?
Both the question whether an order should be made extending the time within which the plaintiffs may make the application to renew the summons and the question whether the summons should be renewed involve overlapping factors. They are best examined together.
The Renewal of the Summons

It is convenient to deal first with the question whether the summons should be renewed. If it is not renewed, there is no need to consider any other issue.
The summons was issued on 25 October 2002. A summons is in force for a period of three months from the date on which it was issued but it may be renewed for a further period: Rule 10.03. The summons was served within the period of three months. On 29 October 2002 it was served on NOBS. On 7 November 2002 it was served on Sportingbet Plc. NOBS and Sportingbet Plc have, therefore, had knowledge of the summons for more than two years. Master Kelly granted leave retrospectively to serve the summons outside the jurisdiction. It was not until Duggan J set aside the order granting leave to serve that any question arose as to the continued effectiveness of service of the summons.
The effect of setting aside the grant of leave was that service was a nullity: Hewitson v Fabre (1888) 21 QBD 6. The defendants have not, therefore, been served. There is a nice question whether one consequence of the order of Duggan J setting aside service is that the period of three months referred to in r 10.03 expired on 26 January 2003, so that the summons has been stale since then, or whether the period of three months runs from the date of the order of Duggan J. As the service was a nullity, I think that the period of three months expired on 26 January 2003. I proceed on that footing except when dealing with the defendants’ contentions grounded on r 10.06.
A stale summons is not a nullity: Krawszyk v Graham [1966] SASR 73 approved in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337. A stale summons is invalid only for the purposes of service: Van Leer Australia Pty Ltd v Palace Shipping KK (supra); Brearley v Board of Management Royal Perth Hospital (1999) 21 WAR 79; Gillies v Dibbetts [2001] Qd R 596. The court may, therefore, extend the time within which to apply to renew the summons if proper grounds exist.
Paragraphs (1) to (4) of r 10.03 prescribe the time within which an application to renew a summons should be made. The time within which the plaintiffs should have applied expired well before June 2003. However, the Court has power to extend any period of time within which any step in the proceedings may be taken: r 3.04 (d). The plaintiffs have applied for an extension of time within which to apply for renewal relying, among other things, on r 3.04 (d). I will consider the question whether the time should be extended after considering the question whether leave to renew should otherwise be granted since the issues are plainly interwoven.
The issues for consideration on an application to renew a summons have been considered on a number of occasions. It is sufficient to refer to Victa Ltd v Johnson (1975) 10 SASR 496 and Gibbs v Williams (1971) 24 SASR 243. I have regard to the factors identified in those decisions.
The following factors are relevant in this application.
1.The claims of the plaintiffs are not statute barred.
2.The defendants have had notice of these actions since they were first served late in 2002. The solicitors for the defendants are the same solicitors who had acted for the defendants in the Sportingbet Australia action heard by Besanko J. The defendants in this action are related companies of Sportingbet Australia. The defendants are plainly alive to the issues. They will not be unfairly prejudiced if the summons is renewed. One of the purposes of a summons is to inform the defendants of an intended action so that they may prepare their defence. At least since late 2002 these defendants have been in a position to prepare their respective defences. In this case the defendants have also had copies of both the original and amended statement of claim. Although not served in accordance with any grant of leave, they are documents giving detailed notice of the claims against them. The defendants have been in a good position, therefore, to prepare their respective defences for quite some time. In fact, defences had been filed.
3.This is a rather unusual case. It is not a case where service was not effected but one where service was effected within three months and later set aside. Different considerations, therefore, apply in this case distinguishing it from cases where service has not been effected.
4.The defendants did not apply to set aside the order granting leave to serve until at least six months after that order had been made. The application was not heard until 29 March 2004 and the orders setting aside service were not made until 23 June 2004. In other words, although there has been a long delay, the plaintiffs were not responsible for it.
5.The application to renew the summons was made on 10 September 2004, within three months from the date when service was set aside. Although it would have been prudent for the plaintiffs’ solicitors to have acted earlier, I do not think that a delay of three months is unduly long, especially when regard is had to the delays in litigating the interlocutory proceedings in this action. Part of that delay might be explained by the fact that the solicitors for both the plaintiffs and defendants have been involved in the prosecution of the Sportingbet Australia action. The defendants rely on the delay between 23 June and 10 September 2004 but, in my view, such a submission does not lie well in the mouth of parties who prosecuted their application to set aside the summons at what was on any view a leisurely pace. In any event, even if the plaintiffs’ solicitors have been guilty of any undue delay in bringing this application, it is not appropriate to penalise the plaintiffs for that delay: Mavra v Logan (1980) 24 SASR 567; Mahon v Frankipile (Australia) Pty Ltd (1990) 157 LSJS 52 at 55.
Shortly stated, this is an unusual case where a summons has been promptly served but some two and one half years later service has been set aside. There is no unfairness to the defendants in the sense that they are not taken by surprise long after the occurrence of the events giving rise to the claim. Although the failure to obtain leave to serve has the consequence in law that service has not been effected, the fact of service has had the consequence that the plaintiffs have given written notice of the action to the defendants. It is as if the plaintiffs had written a detailed letter of claim before instituting the action. The fact that service was a nullity had no other consequence than that the defendants are not required to answer any process of this Court. All of the factors noted in paragraphs 1 to 5 above are compelling reasons for renewing the summons. They are also compelling reasons to make an order extending the time within which the application to renew the summons should be made.
The defendants contended that it was not possible for an order to be made extending the time to renew the summons by reason of r 10.06. Rule 10.06 deals with what are called “inactive actions”. Where a summons has not been served within four months of the date of the summons or of any renewal thereof, it is placed on the list of inactive cases. If it remains on the list of inactive cases for a period of two months, the summons stands dismissed for want of prosecution: r 10.06 (5). The difficulty for the defendants is that r 10.06 requires that two steps be taken which could not in the particular circumstances of this action have occurred. That is a consequence of the fact that the order of Duggan J setting aside service was not made until 23 June 2004. The period of four months prescribed in r 10.06 (1) did not begin to run until 23 June 2004. The application to extend the time to serve the summons was issued on 10 September 2004 within the period of four months. There is a real question, therefore, whether in the particular circumstances of this case the rule is capable of being applied. More importantly, r 10.06 (6) provides:
Where an action has been dismissed by the operation of clause (5) hereof the Court may reinstate the action in special or exceptional circumstances.
It is manifestly clear that, even if the action had been deemed to be dismissed for want of prosecution, the circumstances of this application are special and exceptional and warrant reinstatement of the action.
For these reasons, I will in due course make orders
1.extending the time within which the plaintiff may apply to renew the summons to 10 September 2004; and
2.granting leave to renew the summons.
The Available Materials
There was an issue as to the materials upon which the plaintiffs were entitled to rely for the purpose of seeking leave to serve out of the jurisdiction. The plaintiffs originally put their contentions in the alternative.
1.They were entitled to rely on the amended statement of claim filed on 6 June 2003 (“the amended statement of claim”) assisted by reference to the transcript and the reasons for judgment of Besanko J in the Sportingbet Australia action. Those reasons for judgment are reported in K & S Corporation Ltd v Sportingbet Australia Pty Ltd (2003) 86 SASR 312.
2.Alternatively, they were entitled to rely on the materials identified in paragraph 1 as well as upon the affidavit of Mr Daminato sworn on 25 October 2002 other than paragraphs 20 – 32 of that affidavit, the affidavit of Dougall Andrew Ross sworn on 16 January 2003 and the affidavit of Ms Roxanne Smith sworn on 10 November 2004. In addition, the plaintiffs say they are entitled to rely on the affidavit of Mr Daminato sworn on 9 October 2002 in support of the application for the order made on 17 October 2002 in the Sportingbet Australia action.
3.Alternatively, they were entitled to rely on the materials identified in paragraph 1 together with the whole of the affidavit of Mr Daminato sworn on 25 October 2002 on the footing that the leave granted by Besanko J on 17 October 2002 to use exhibits in the Sportingbet Australia action for the purpose of applying for a Mareva injunction entitles the plaintiff to use those exhibits to establish that they have a good arguable case as required by r 68.03 (1) (a).
The plaintiffs submitted that the amended statement of claim is the appropriate means by which they might seek to establish that they have a good arguable case.
The defendants contended that it is not sufficient for the plaintiffs to seek to rely on the amended statement of claim assisted by reference to the transcript and judgment of Besanko J in the Sportingbet Australia action. They said that the plaintiffs must prove that they have a good arguable case by affidavit of a person with direct knowledge of the facts. Mr Daminato had sworn on the basis of information and belief which, they contend, in the circumstances of this case, is not sufficient proof. Alternatively, the defendants contended that the plaintiffs cannot rely on the affidavit of Mr Daminato because it uses confidential information contained in discovered documents in breach of the principles established in Harman v Home Department State Secretary [1983] 1 AC 280 and in breach of the orders of Besanko J.
On 12 April 2005, Dr Griffiths QC, who appeared for the plaintiffs, elected not to rely on the confidential documents exhibited to Mr Daminato’s affidavit in support of the application for leave to serve: see pages 62 – 64 of the transcript. The plaintiffs are bound by Dr Griffiths’ election which was a considered decision made after a short adjournment to enable Dr Griffiths to consider his clients’ position. Later, Dr Griffiths contended that there was no confidential material in Mr Daminato’s affidavit. He also contended that the statement of claim had been drawn without reliance on confidential material. Mr Daminato’s affidavit does in fact exhibit confidential exhibits. They are exhibits P18, P20, P32, P33 and D11. That does not necessarily lead to the conclusion that, when drawing the amended statement of claim, reliance was placed on confidential exhibits. Given the election made by Dr Griffiths, it is necessary only to consider the first two of the plaintiffs’ alternative contentions.
At one stage of his submissions on 11 April, Dr Griffiths indicated an intention to debate the meaning and effect of the order made by Besanko J on 17 October 2002. As Sportingbet Australia was the other party to the order, I adjourned argument to 12 April to enable Sportingbet Australia to be represented by counsel. When the argument resumed on 12 April Mr Tokley appeared for Sportingbet Australia. After that further argument, Dr Griffiths elected not to rely on paragraphs 20 to 35 of Mr Daminato’s affidavit and the confidential exhibits referred to in that affidavit. Mr Tokley, however, remained in Court for the rest of the argument.
On 13 April Mr Tokley sought to argue that the plaintiffs had relied on confidential exhibits when drawing paragraphs 18, 19.2, 19.4, 29, 35 and 39 of the statement of claim. He applied to tender an affidavit of Mr Kenny to prove that and other facts. I refused to admit the affidavit which was essentially argumentative. It sought to prove on oath what was essentially a submission. I informed Mr Tokley that he could use the tables exhibited to the affidavit as part of his argument.
Dr Griffiths submitted that Mr Tokley had no standing. I reserved my decision on that question. I heard Mr Tokley’s submissions. His submissions were adopted by Mr North SC, who appeared for the defendants. Dr Griffiths applied to make further submissions in writing. I granted him leave to do so and granted Mr North leave to file written submissions in reply. I have had regard to the tables in those submissions when determining whether the plaintiffs have used confidential exhibits when drawing the statement of claim.
I believe Mr Tokley has standing. The exhibits in question are confidential exhibits tendered in the Sportingbet Australia action. Sportingbet Australia has a legitimate interest in ensuring that exhibits which deal with matters affecting its confidential affairs are not wrongly used. In addition, those same exhibits are mentioned in the orders of Besanko J made on 17 October 2002, the terms of which had been made with the consent of Sportingbet Australia. Sportingbet Australia, therefore, had a legitimate interest in making submissions as to the proper use of the confidential documents the subject of that order. Each of those two issues is, in my view, sufficient to give Sportingbet Australia a sufficient interest to be heard on the question whether the plaintiffs have made an improper, if not unlawful, use of the confidential exhibits. The question of the standing of Sportingbet Australia is in any event of academic interest in the outcome as Mr Tokley’s submissions were adopted by Mr North.
I deal later with the question whether the plaintiffs’ legal advisers used confidential documents when drawing the statement of claim.
Is an Affidavit Required?
The defendants contended that the plaintiffs could not rely on the amended statement of claim but had to file an affidavit proving they had a prima facie case. Such an affidavit had to be sworn, they said, by a person with direct knowledge of the facts. The defendants also relied on the observations of Finkelstein J in Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 at [219] that the jurisdiction should be exercised with caution. It was implicit in the submissions that an affidavit was required if the Court was to be able to proceed with the required degree of caution. That last argument must plainly fail. If the Court must proceed with caution, it is equally capable of doing so either when the plaintiff relies on a statement of claim or on an affidavit.
Rule 18 does not require that an affidavit be sworn in support of an application under r 18.07 nor does it provide for the kind of evidence to be adduced in support of an application under r 18.07. In that respect r 18.07 is to be contrasted with the former Order 11 which expressly required an affidavit to be filed in support of the application.
When seeking leave to serve out of the jurisdiction, a plaintiff must demonstrate that he has a good arguable case and that there is a real and substantial connection between this Court and the defendant or the subject matter of the litigation. The reasons for that conclusion will be given later in this judgment. Where a statement of claim has been properly drawn, it will, as a general rule, be possible to decide after an examination of the terms of the statement of claim whether those two tests have been satisfied. As the majority of the High Court said in Agar v Hyde (2000) 201 CLR 552 at [52], in a context only slightly different,
Often enough, the statement of claim will reveal all that is necessary to know whether the plaintiff’s claim is of the requisite kind.
If a statement of claim has been filed, in all likelihood an affidavit will do little more than exhibit the statement of claim and the deponent will swear that he believes the plaintiff has a good arguable case. That adds little to assist consideration of the issue whether leave to serve should be granted. There may be cases where it is necessary to prove additional facts by affidavit. In other cases, the plaintiff may decide to supplement or reinforce what is in the statement of claim by affidavit evidence. In other cases again, the plaintiff may choose not to draw a statement of claim but seek leave to serve relying on an affidavit to establish a good arguable case and the real and substantial connection. It is, in short, a matter for the plaintiff to decide in each particular case. The Court will determine on what is adduced, be it a statement of claim, an affidavit or both, whether the plaintiff has established grounds which justify an order granting leave to serve out of the jurisdiction.
I do not understand the reasons of Duggan J in K & S Corporation Ltd & Anor v No 1 Betting Shop Ltd & Sportingbet Plc [2004] SASC 155 to require a contrary conclusion. When leave was initially sought in this action, a statement of claim had not been filed. The plaintiffs relied on the affidavit of Mr Daminato to establish the facts necessary to support the grant of leave. Nowhere in his reasons for judgment does Duggan J require an affidavit to be sworn. On 23 June 2004 when he came to make the orders, Duggan J said that the plaintiffs would have to make a fresh application but said nothing about supporting that application with an affidavit. With respect, the note to r 18.07 in Lunn, Civil Procedure South Australia, which states that leave cannot be granted unless proper affidavit material is disclosed, is correct in those cases where there is no statement of claim. However, it should not be understood as precluding a plaintiff from relying only on a statement of claim for the purpose of establishing that leave to serve should be granted.
The Use of Exhibits in the Sportingbet Australia Action
The next question is whether the plaintiffs have improperly used exhibits in the Sportingbet Australia action and so cannot rely on the amended statement of claim filed on 6 June 2003. As the statement of claim includes pleas which were drawn in reliance on some exhibits, it is necessary to consider the defendants’ contentions as to the operation of the implied undertaking not to use discovered documents for a collateral or ulterior purpose. I will then consider the respective contentions as to whether the confidential exhibits were relied on when the amended statement of claim was drawn. For the purposes of this question, both the original and the amended statement of claim are in the same terms. I will, therefore, refer simply to the statement of claim. It is unnecessary to distinguish between the original and amended pleading.
The Implied Undertaking

The defendants contended that the plaintiffs had improperly used documents discovered in the Sportingbet Australia action when drawing the statement of claim and, in doing so, had acted in breach of the implied undertaking not to use documents for a collateral or ulterior purpose. They relied on the principles expressed in Harman v Home Department State Secretary [1983] 1 AC 280 and contended that the plaintiffs could not use any of the documents tendered at the trial.
It is well established that a party to whom information or documents are disclosed under compulsion of court process is bound by an implied undertaking not to use them for any collateral or ulterior purpose. The rule applies to documents obtained in the process of discovery: Harman and Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; to answers to interrogatories: Ainsworth v Hanrahan (1991) 25 NSWLR 155 and Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509; to documents obtained by subpoena: Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322 and Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220; and to documents obtained by means of an Anton Piller order: Crest Homes plc & Marks [1987] AC 829.
Courts enforce this obligation strictly by either an injunction or by proceedings for contempt of court or by requiring an express undertaking: Alterskye v Scott [1948] 1 All ER 469, Harman and Esso. Where an action has been instituted based on information used in breach of an implied undertaking, the court will strike out the action as an abuse of process of the court: Riddick v Thames Board Mills Ltd [1977] QB 881; Grocon Ltd v Alucraft Pty Ltd (in liq) (1992) 10 ACLC 1172 – 1179.
As Lord Keith noted in Harman (at 308), the implied undertaking is given to the court. It is possible, therefore, to apply to the court to be released from the undertaking or for the terms of the undertaking to be modified. There are many decisions which deal with the circumstances in which a person will be released from the undertaking. They are noted in the text books. Decisions in this country include: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 18 ACSR 218; Green v F P Special Assets Ltd [1992] 1 Qd R 1; and Minister for Education v Bailey (2000) 23 WAR 149. The question in this case does not concern a release from the undertaking but whether the undertaking continues to operate after the documents have been admitted into evidence. Expressed in other words, the question is whether the person subject to the undertaking is released from it if the document the subject of the undertaking is admitted as an exhibit in the action in which it was discovered and orders are not made preserving the confidence of the document. The plaintiffs contend that they were released from the implied undertaking in respect of all documents other than confidential documents discovered in the Sportingbet Australia action which were admitted as exhibits at the hearing of that action. The defendants contend to the contrary relying on Harman.
The issue does not arise in the Federal Court of Australia. In 1989, that Court introduced Order 15 Rule 18 which reads:
Any order or undertaking, whether express or implied, not to use a document for any purpose other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court or referred to, in open Court, in such terms as to disclose its contents unless the Court otherwise orders on the application of a party or of a person to whom the document belongs.
In the courts of the States and Territories the common law applies. There is division of judicial opinion as to the effect upon the implied undertaking of the admission of a discovered document into evidence.
Until a new rule of court came into operation in England on 1 October 1987 the common law in England was that the admission of a document into evidence did not terminate the implied undertaking in respect of that document: Harman. That principle has been followed and applied by Anderson J in the Court of Appeal in Western Australia in Hammersley Iron Ltd v Lovell (1998) 19 WAR 316 (where the other two members of the court did not find it necessary to deal with the matter) and by the Victorian Court of Appeal in British American Tobacco Australian Services Ltd v Cowell (No 2) (2003) 8 VR 571. The other line of authority in Australian courts is to the effect that upon a discovered document being admitted into evidence, it is in the public domain and the implied undertaking comes to an end: Esso Australia Resources Ltd v Plowman; United States Surgical Corporation v Hospital Products International Pty Ltd (unreported, Supreme Court of NSW, McLelland J, 7 May 1982; noted Ritchie’s Supreme Court Practice (NSW) para 23.3.36); Ainsworth v Hanrahan; Registrar of the Supreme Court v McPherson [1980] 1 NSWLR 688; Eltran Pty Ltd v Westpac Banking Corporation; and Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd.
In Harman, a solicitor, Ms Harman had handed to a journalist documents which had been produced to her in the course of discovery in an action. The documents were read out in open court in the course of the opening address by counsel for her client in that action. An application was made to tender the documents but they were not admitted into evidence. Ms Harman had made copies of the documents produced to her. She had handed the copies to the journalist after they had been read out in open court. By a majority, the House of Lords held Ms Harman to be guilty of contempt. The majority held that the implied undertaking to which Ms Harman was subject did not terminate once the discovered documents had been read in open court. The majority reached that conclusion notwithstanding that any person in court could have made notes of the documents and notwithstanding that a person could have purchased a copy of the transcript of the proceedings and obtained access to the content of the documents in that way. Ms Harman’s vice was held to lie in the fact that she had allowed the journalist access to copies of the very documents which had been discovered. If, instead, she had handed the journalist the transcript of the opening address in which the documents had been read, she would not have been in contempt: see Lord Diplock at 305. Lord Scarman and Lord Simon dissented. In Lord Scarman’s view (at 319) (with which Lord Simon agreed) the undertaking not to use discovered documents terminated once they had been produced or read out, in whole or in part, in open court. That rule did not apply to documents treated by the court as confidential documents notwithstanding that they might have been tendered in open court.
The minority view in Harman ultimately prevailed. After Ms Harman had lost in the House of Lords, she took the matter to the European Commission of Human Rights. A settlement was reached before the Commission whereby the Government of the United Kingdom undertook to change the law so as to make the undertaking inoperative after the document had been read out in open court unless the court made an order restricting its disclosure to the parties to the action. The change was effected by a new rule of court which came into operation on 1 October 1987: Bibby Bulk Carriers v Cansulex Ltd [1989] QB 155 at 158 – 159. Before the new rule of court was introduced in England, the decision in Harman had been followed in Sybron Corporation v Barclays Bank plc [1985] Ch 299. The decision in Sybron Corporation is an extreme example of the application of the principle in that Scott J held the view that a party could not without leave even make use of the transcript. That aspect of the decision is open to serious question: British American Tobacco at [28].
In United States Surgical Corporation v Hospital Products International Pty Ltd, McLelland J noted the competing opinions in Harman and expressed the view that once the documents had been admitted into evidence the undertaking terminated. He said:
It seems to me that the Court must attempt to distinguish between the consequences of access to a document in its character of a discovered (or subpoenaed) document on the one hand, and of access to the same document in its character of a document admitted into evidence on the other. Prime facie, the Court should prevent utilisation for collateral purposes of access of the first kind and permit utilisation for legitimate collateral purposes of access of the second kind.
In that case His Honour was dealing with the question whether the undertaking should be modified to permit use to be made of certain documents. Strictly speaking, the remarks are obiter dicta because it was not necessary to deal directly with the question of whether the undertaking terminated when the documents were admitted into evidence.
The remarks of McLelland J were cited with approval by Pincus J in Eltran Pty Ltd v Westpac Banking Corporation where the question was whether paragraphs in a statement of claim should be struck out as an abuse of process on the ground that they had been prepared using documents obtained by subpoena in earlier criminal proceedings. The matter proceeded on the footing that the documents had been admitted as exhibits in the criminal proceedings. In the particular circumstances of that case O 15 of the Federal Court Rules did not apply. Pincus J held that there had been no improper use of the documents because they had been admitted into evidence.
In the course of his reasons (at 324), Pincus J suggested that Harman is authority for the narrow proposition that, where documents are obtained by compulsory process and are read out in open court but excluded from evidence, it is a contempt to supply copies of the documents to third parties. That view is directly at odds with Lord Diplock in Harman at 304 – 305 who did not distinguish between documents which had been admitted and those which had not. See also Lord Roskill in Harman at 324 –325. It is not necessary in this case to examine whether the analysis of Pincus J is correct.
Ainsworth v Hanrahan concerned the use of answers to interrogatories which had not been admitted into evidence. The Court of Appeal held that there had been a technical contempt. Kirby P delivered the main judgment and (at 164 – 165) he criticised the decision in Harman. His Honour expressed a preference for the reasoning of Lord Scarman. At 168, Kirby P concluded that the implied undertaking applied to the use of answers to interrogatories. He added:
It is always open to a party wishing to secure the use of such answers for other purposes to seek the permission of the court in whose process the answers have been given under compulsion. Once the answers are tendered or read in open court, pace Harman, the liability and contempt for their later use will evaporate. (Citations omitted)
The other members of the Court of Appeal were Samuels JA who simply stated that he agreed with Kirby P and Handley JA who agreed with the reasons of Kirby P save for two qualifications. One of those qualifications was that the correctness of the decision in Harman did not arise for decision nor had it been argued. As the interrogatories had not been admitted into evidence, the remarks of Kirby P were strictly speaking obiter.
Esso Australia Resources Ltd v Plowman was decided some 10 years later in 1995. The issue in Esso was whether documents discovered in an arbitration were subject to any obligation of confidence. The Victorian Minister for Manufacturing and Industry Development had sought a declaration in the Supreme Court of Victoria that certain documents disclosed in a gas price arbitration between Esso Australia Resources Ltd and BHP Petroleum (North‑West Shelf) Pty Ltd on the one hand and the Gas and Fuel Corporation of Victoria on the other were not subject to any obligation of confidence. The court had held that the Gas and Fuel Corporation was not prevented from disclosing the documents. Esso and BHP appealed to the High Court which by a majority (Mason CJ, Brennan, Dawson and McHugh JJ, Toohey J dissenting) upheld the decision below. Mason CJ, with whom Dawson and McHugh JJ agreed, held that while an arbitration was a private proceeding, it was not confidential. Documents produced in the course of discovery were subject to the implied undertaking that they should not be used for any purpose other than that for which they had been discovered, but that undertaking was qualified. Mason CJ said:
The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains the publication of it.
Mason CJ then held the same principles applied to documents produced in an arbitration. Brennan J agreed with the conclusion that an arbitration is a private but not a confidential proceeding. However, Brennan J held that the undertaking as to confidence was subject to four qualifications, one of which was where a duty, albeit a non-legal duty, existed to disclose to the public. His Honour held that such a duty existed.
Ampolex is another decision where the question whether the undertaking terminates upon the documents being admitted did not directly arise for decision. However, in the course of his reasons Giles CJ Comm D said,
It has been accepted in this State with the qualification that the undertaking does not apply once the document has been produced and read out in open court, see Kimberley Minerals Holdings Ltd v McEwan; Registrar of the Supreme Court v McPherson; United States Surgical Corporation v Hospital Products International Pty Ltd; Ainsworth v Hanrahan. (Citations omitted)
Curiously, the remarks of Giles CJ in Ampolex do not refer to Esso which had been decided some five months earlier. The only one of the decisions to which Giles CJ referred and which is authority for the proposition stated by His Honour is the second of those four decisions. I have already referred to the Hospital Products case and to Ainsworth v Hanrahan. Although the Court of Appeal in Kimberley Minerals Holdings Ltd (in liq) v McEwan [1980] 1 NSWLR 210 stated that the implied undertaking exists, it did not deal with the effect of the production or the reading of a document in open court and its admission into evidence. In McPherson, the Court of Appeal was considering whether persons who had destroyed documents which had or were likely to be required to be produced on subpoena were guilty of contempt. In the course of their reasons (at para [13] on page 695) Moffitt P and Hope JA said:
If, however, a document, being relevant, is admitted into evidence, it, along with other evidence in the case, is evidence given in a court held in public. The overriding public interest is that the proceedings be open to the public. In consequence, that which may have been confidential may become public knowledge. This is the accepted overriding public interest. Even then, there are exceptional cases where a special order preserving confidentiality may be made, because particular considerations in favour of secrecy override the public interest referred to.
Their Honours were then examining the general principles to be applied when considering whether there had been a contempt. The court found the defendants guilty of contempt. In British American Tobacco at [41] the Victorian Court of Appeal observed that the above remarks left open the question as to how far a document admitted into evidence had “become public knowledge”. I deal with that observation in a moment.
In British American Tobacco the issue was whether a plaintiff to whom documents had been discovered was still subject to the implied undertaking after the documents had been admitted into evidence. The judge at first instance held that the plaintiff was released from the undertaking but his decision was reversed on appeal. After an extensive review of the authorities, the Court of Appeal expressed the following conclusion:
For these reasons, it may be concluded as follows. Where documents are provided to a party to litigation under some coercive process of the court with the result that an implied undertaking attaches to the effect that, without the leave of the court, they not be used otherwise than for the purposes of the litigation, the party bound by that undertaking is not freed of it simply because the document in question is marked as an exhibit in the proceeding in the course of which it was provided. To the extent that knowledge of the document has become public by dint of its tender in open court, members of the public will be free to make use of that knowledge as they will (subject always of course to any order specially made protecting confidentiality and the like), but the party affected by the undertaking remains bound as to use of the document itself. The distinction seems to us a valid one between, on the one hand, use of the document the contents and probably the provenance of which are known in detail to the party by virtue of a privilege extended to it by the processes of the court, and on the other hand use of the information about it which comes to the knowledge of the public by reason of the proceedings in open court (and during which, it may be supposed, the document is marked as an exhibit). The knowledge of the one cannot be equated with the knowledge of the other.
Given the particular considerations requiring that a party’s privacy be respected so far as compatible with the administration of justice in open court, there seems no logical, or indeed practical, reason why the mere passing of the document into evidence (as witness its being marked as an exhibit) should be taken to relieve the party bound by the implied undertaking from its obligations in that respect. Arguably at least, it would be different if that party was seeking not to make use of the document itself, but to use only the information about it of which the public had become aware (or which, to use another phrase, had passed into “the public domain”) by reason of its use in open court. We include in this last the use of a transcript of the proceedings in court or judgment delivered in which reference is made by counsel, the witness or the judge to the document in question. As to information which is thereby made known generally to the public at large – but only as to such information – there may well be no reason to distinguish between the position of the party bound by an undertaking as to the document itself and the position of any stranger to the litigation. But that is not this case.
The Court also noted that, once the implied undertaking attaches to a document produced on discovery, it is better that the party seeking to use the document otherwise than for the purpose of the current litigation should be required to apply for leave to that effect, justifying the application, than that the party making discovery be left to seek protection in case the document is misused. Such a course at least avoids debate about precisely when the document enters “the public domain”, a concept which the court said was of doubtful precision: [36] - [41].
The Court of Appeal noted the decision in Esso but did not apply it for two reasons. The first was that the remarks of Mason CJ quoted above were “but a passing remark of no direct relevance to the issue then before the court”: [31]. The second was that there was some ambiguity in the expression “the public domain”: [30].
The Court of Appeal reached this conclusion notwithstanding that members of the public present in court would be at liberty to make what use they will of their knowledge of the document which had been admitted into evidence. Earlier in its decision at [25] – [26], the Court had justified that conclusion on the ground that a member of the public might not have the same detailed knowledge of the document as the person to whom it had been discovered. Implicit in that view is the premise that a material part of the document had not been read out. It must be acknowledged that all documents might not be read out so that a member of the public will have little knowledge of those which are not. As Lord Roskill pointed out in Harman at 324 - 325, the capacity to use documents should not turn on the adventitious circumstance that the document had been read out. However, it is a relatively frequent occurrence for counsel to read out and emphasise, often repeatedly, the material part of a document perceived to be advantageous to the client’s interest. There seems to be little justification, therefore, for drawing a distinction between members of the public present in court and the party bound by the implied undertaking.

An important aspect of the reasoning in Harman and in British American Tobacco to justify the conclusion that persons subject to the obligations of the implied undertaking remain subject to these obligations notwithstanding that third parties may make what use they can of what they hear in court or read in transcript is that the party gaining access to another’s documents is in a privileged position by reason of the process of the court and it is that privilege which should not be abused: see the last sentence in para 38 of British American Tobacco, Lord Roskill in Harman at 322 – 323 and see also Scott J in Sybron Corporation at 322. There can be no doubt as to the solemn nature of the undertaking and the gravity of the obligation it imposes. However, once the document has been admitted into evidence, the rationale for the undertaking evaporates. If third parties are at liberty to make what use they can of the documents, the person to whom they are disclosed should also be able to use them. The fact that the documents were initially disclosed to a person does not justify discriminating between that person and members of the public. The solemnity of the undertaking is not enhanced by such a rule. Instead, the unequal operation of the rule is likely to erode confidence in it. Sanctions exist to punish those who flout the undertaking. Courts may make orders to protect the confidentiality of documents admitted into evidence. In short, no public purpose is served by discriminating between the person to whom the document is disclosed and the third parties who may make what use of what they can of what they have heard in court or what they see in a transcript.
While it was correct for the Court of Appeal in Victoria to note that the statement of principle expressed in Ampolex and Esso is strictly speaking obiter dicta, the weight of those two decisions is very persuasive. The reasons of Lord Scarman in Harman are, I think, also persuasive and are more consistent with the principle that justice should be administered in public as expressed in Scott v Scott [1913] AC 417 and in Russell v Russell (1976) 134 CLR 495 per Gibbs J at 520 and with the general principles relating to confidentiality of documents.
I do not share the concern of the Court of Appeal that there is any difficulty in understanding what is meant by such expressions as “become public knowledge” or “become part of the public domain”. Those expressions are not terms of art. They are but two of a number of ordinary expressions used to describe that which was once confidential but which has become public knowledge. Other like expressions are “commonly known”, “publicly known”, “well known”, “public property” and “common knowledge”: see Dean, The Law of Trade Secrets, (1990) at page 123 and the cases cited at footnote 7. These expressions are a well understood part of the equitable principles relating to confidential information. Generally speaking, the difficulty lies not with the meaning of those expressions but with determining the question of fact as to when confidential information or trade secrets have become public knowledge: Dean (ibid) and Finn, Fiduciary Obligations, (1977) at paras 332 and following. In the case of a discovered document which has been admitted into evidence, it becomes public knowledge or enters the public domain once it has been admitted into evidence as an exhibit unless the court restrains the publication or in some other way preserves the confidentiality of the document. The primary purpose of the undertaking may be to protect the privacy of the party disclosing the documents and thereby encourage full and frank disclosure for the purpose of the litigation: British American Tobacco at [20]. However, like any confidential document, once there has been a public disclosure, the confidentiality ceases. Any concern to preserve either privacy or the confidentiality of the document can be dealt with by an application to the court to maintain the confidentiality of the document notwithstanding that it has been admitted into evidence. Parties can and do make such applications and courts will make orders protecting confidentiality when it is appropriate.
Although the remarks in Esso, McPherson and Ampolex might be obiter dicta, they nevertheless represent a very persuasive body of opinion particularly when regard is had to the remarks of McLelland J in the United States Surgical Corporation case and of Kirby J in Ainsworth v Hanrahan. For the reasons already expressed, I prefer this line of reasoning to that of the majority in Harman and in British American Tobacco. For these reasons, I think that the principle expressed in Esso, McPherson and Ampolex represents the law in this State. If it is necessary to protect the confidence of any document which is admitted into evidence, an application can be made to protect that confidence when the document is admitted.
Another reason for that conclusion is to be found in s 131 of the Supreme Court Act 1935. Section 131 lists the documents in court proceedings which members of the public may inspect or copy. Section 131 (1) provides
(1)Subject to this section, the court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of –
(aa)   any process relating to proceedings and forming part of the court’s records;
(a)     a transcript of evidence taken by the court in any proceedings;
(b)     any documentary material admitted into evidence in any proceedings;
(c)     a transcript of submissions by counsel;
(d)     a transcript of the judge’s summing up or directions to the jury, in a trial by jury;
(e)     a transcript of reasons for judgment (including remarks made by the court on passing sentence);
(f)     a judgment or order given or made by the court. (Emphasis added)
Sub-section (2) lists material which may only be inspected with the leave of the court. It includes
(a)     material that was not taken or received in open court; and
(b)    material that the court has suppressed from publication.
For present purposes it is important to note that the court has no discretion in respect of documents listed in sub-section (1). The court must allow the applicant to inspect or copy them. A fee may be charged for inspection or copying: s 131 (5) of the Act and the Supreme Court (Fees) Regulations 1999. Thus, a member of the public is entitled to inspect or copy an exhibit which has been tendered but not a document which was not admitted in open court or which has been suppressed from publication. In this way, s 131 makes it quite clear that documents admitted into evidence have entered the public domain unless there are orders preserving confidentiality.
In British American Tobacco, the Court of Appeal said at [28]
It seems to us that if the party has available an alternative source of information about the contents of the documents, even a source deriving from the discovery of the documents, then, if that source be public, the party to whom the documents were first discovered should arguably be as free to make use of that alternative source of information as any member of the public undoubtedly is.
Section 131 provides a source of information, a public source of information, about the contents of documents admitted into evidence. The reasoning in British American Tobacco would justify the use of the documents by the plaintiffs.
In the Sportingbet Australia action some documents were admitted in open court but confidential documents were admitted when the court was closed in order to preserve the confidentiality of those documents. The confidential documents are not available to the public. The undertaking as to confidentiality continues to exist. Members of the public are, therefore, able, on application pursuant to s 131 (1), to inspect and make copies of documents admitted in open court but not of confidential exhibits. Given the fact that non‑confidential documents which have been admitted into evidence are available to the public on application, there is no sound reason for continuing to require the plaintiffs’ legal advisers to be subject to the implied undertaking not to use the discovered documents which have been admitted into evidence. The absurdity of maintaining that obligation is demonstrated by the fact that the plaintiffs have already purchased a copy of the transcript of the proceedings in the course of the conduct of the Sportingbet action. The effect of a number of the documents has been examined by witnesses and debated by counsel and the plaintiffs can read that in the transcript. Besanko J has made findings based on some of those documents. It is quite unreal to seek to differentiate between documents (other than confidential documents) which have been admitted into evidence in open court which are directly or indirectly mentioned in the transcript or in the judgment and those which are not. It is equally absurd to require the plaintiffs to make an application pursuant to s 131 to inspect or copy what they already have.
For all of these reasons, when drawing the statement of claim in this action, the plaintiffs were at liberty to use discovered documents, other than confidential documents, which were admitted into evidence in open court in the Sportingbet Australia action. If they have used discovered documents which are not confidential, they have not acted in breach of the implied undertaking not to use discovered documents otherwise than for the purpose of the proceedings in which they were discovered.
Were Confidential Exhibits Used?
The next question is whether the legal representatives of the plaintiffs have used confidential documents when drawing the statement of claim. The defendants and Sportingbet Australia contend that confidential exhibits have been used in this way. As the parties asserting that fact, they have the burden of proving it. A table produced by Mr Tokley and adopted by Mr North SC asserted a wrongful use of exhibits P4, P24, P31, P32, P33 and D11. As P4, P24 and P31 are not confidential exhibits, no issue can arise in respect of them.
I list the paragraphs in the statement of claim and the respective contentions of the parties. When I say “the defendants contend”, I am referring to the submissions of both the defendants and Sportingbet Australia.
The defendants’ first complaint concerns para 19.2 of the statement of claim. The defendants contend that this paragraph has been drawn using exhibit P4. As exhibit P4 is not a confidential exhibit, it is unnecessary to consider the allegation any further. The defendants have failed to demonstrate that a confidential exhibit was used.
The next complaint concerns paras 18 and 19.4 of the statement of claim. The defendants contend that those paragraphs have been drawn using exhibit D11, a confidential exhibit. Paragraphs 18 and 19.4 are in these terms
18.On each occasion when Westpac credited part of the stolen moneys to NOBS’ Westpac Account, it provided NOBS with information which included information identifying the K&S Group as the source of the funds so credited.
PARTICULARS
In each case, the first defendant’s statement in respect of NOBS’ Westpac Account, contained a notation describing the transfer as:
“DEPOSIT K&S GROUP Creditor Payment”.
19.4Each of the payments of the stolen moneys was paid to NOBS by the K&S Group and designated on the statements for NOBS’ Westpac Account as a “Creditor payment”.
Exhibit P4 includes copies of each of the relevant bank statements of the account of NOBS at the Westpac Bank. They show the transfer of funds from the K & S Group with the notation pleaded in para 18. Even if this information is contained in a confidential document, it also appears in documents which are not confidential. The issue is not whether the information appears in a confidential document but whether the information itself is in fact confidential. The information disclosed in the pleading was not, therefore, a use of confidential information. In addition, the payments are mentioned in para 52 of the reasons for judgment of Besanko J which appears in a section of the judgment headed “Facts Not Contested”. I mention this fact only to demonstrate that the information is plainly not confidential. The defendants have, therefore, failed to demonstrate an improper use of confidential information. Although it is unnecessary for my decision, I add that even if the plaintiffs’ legal advisers had used a confidential exhibit when drawing the statement of claim, they would not be acting in breach of the orders as to confidentiality because they did not disclose confidential information.
The third complaint relates to paras 29 and 35. These paragraphs read
29.Between 17 September 2001 and 12 February 2002, NOBS paid moneys totalling $3.5m (“the transferred moneys”) into NOBS’ Treasury Account, as moneys surplus to NOBS’ requirements for working capital.
PARTICULARS
Money was transferred from NOBS’ Westpac Account maintained by Sportingbet on the dates as follows.

DATE SUM TRANSFERRED ($)

17/09/01   500,000

19/10/01   1,000,000

20/11/01   1,000,000

12/02/02   1,000,000
35.Further, between 10 September 2001 and 1 February 2002, NOBS paid to creditors of Sportingbet for Sportingbet’s benefit $1,157,930 (“the Sportingbet creditor payments”) from NOBS’ Westpac Account as payments to discharge (partially or wholly) obligations of Sportingbet to those creditors.
PARTICULARS

DATE SUM PAID ($) CREDITOR

10/09/01         215,578 VITCO

05/10/01           94,456 VITCO

31/10/01         312,600 VITCO

01/11/01           11,173 BDO Sydney

20/11/01           91,273 BDO Vanuatu

The allegations in these paragraphs are based on exhibits P24 and P31. Neither is a confidential exhibit. Exhibit P24 was tendered as a summary of monies transferred to and from NOBS and Sportingbet Australia and to and from NOBS and Sportingbet Plc. Evidence concerning those exhibits was given in open court by Mr Waller, an employee of Sportingbet Australia. A comparison of the pleas in paragraphs 29 and 35 with the evidence of Mr Waller and the exhibits P24 and P31 shows quite clearly that the allegations are based on that material. With two exceptions, the allegations in paras 29 and 35 simply recapitulate what is contained in exhibits P24 and P31. The two exceptions concern para 35 only and relate to the pleading concerning the payments on 1 and 20 November 2001. The defendants contend that there is nothing in the transcript of the trial or in exhibits P24 and P31 which identifies the creditors BDO Sydney and BDO Vanuatu. The defendants say that that information could only have come from the confidential exhibit P33.

Exhibits P24 and P31 show that the two payments were made by NOBS to a creditor of Sportingbet Plc on both 1 and 20 November 2001. They show the date of the payment and the amount of the payment. Exhibit P31 is a later version of exhibit P24 and includes more information. Part of that additional information is a description of the payments made on each date. The entries for 1 and 20 November 2001 in exhibit P31 describe each payment as “Payment of accounting and advisory fees on behalf of Plc”. As Mr Waller’s evidence in open court discloses, the annotation “Plc” refers to Sportingbet Plc and accounting fees were paid to the accounting firm BDO. None of this information was confidential. In other words, the fact that on 1 and 20 November 2001 the amounts of $11,173 and $91,273 respectively were paid as fees on behalf of Sportingbet Plc to the accounting firm BDO was not confidential information. Thus, nothing that is alleged in paras 29 and 35 is confidential except for the allegations as to the respective office of BDO to which each payment on 1 and 20 November was made. On the face of the matter, there does not appear to be any reason why the identity of each office should be confidential, particularly as the same firm is payee and the nature and amount of the payment is not confidential.
It is apparent from the transcript of the evidence of Mr Waller (at TX 697) that the information as to the particular office of BDO was subsequently provided by counsel for the defendants to counsel for the plaintiffs. There is nothing to demonstrate whether that information was confidential or not. The fact that it is included in the confidential exhibit P33 does not, standing alone, establish that it was confidential. I will, however, assume that it was confidential information. In the result, two quite insignificant items of information were confidential, namely, which office of BDO was paid. The fact that payments were made to BDO, the date and the amount of the payments was not confidential information.
This represents such a trivial failure to comply with the obligation as to confidentiality that, in all the circumstances, it is appropriate for this Court to excuse the breach. There is no justifiable basis for making an order striking out the statement of claim as an abuse of process.
In reaching this conclusion I do not for one moment intend to diminish the gravity of the obligation imposed by the implied undertaking. Instead, I have regard to the fact that this is but a trivial breach in circumstances which did not in any sensible respect affect the capacity of the plaintiffs’ legal advisers to draw the statement of claim. Exhibits P24 and P31 provided all the necessary information to draw the particulars save the names BDO Sydney and BDO Vanuatu. It is quite apparent from those exhibits that payments of the amounts specified on 1 and 20 November 2001 were made from the NOBS account to discharge obligations of Sportingbet Plc to particular creditors. The breach of confidentiality relates to para 35 only. The names of the two creditors to whom payment was made on 1 and 20 November 2001 could have been omitted and replaced with words to the effect “the creditors will be identified after discovery”. Discovery would have plainly have disclosed that fact. It is very doubtful that it would then be a confidential fact. This is information which has been exchanged between parties which are closely related and between the same legal advisers in each action. It is a very trivial breach relating to but one paragraph in the statement of claim and is of no consequence.
Finally, the defendants contend that the plaintiffs used confidential information in para 39. This paragraph alleges
Further, Sportingbet is indebted to NOBS for the amount of $8,192,781 or such other balance as is standing to the credit of NOBS’ Treasury Account (“the loaned moneys”) being an amount of moneys paid by NOBS to Sportingbet as moneys to which NOBS remains beneficially entitled as moneys paid on a non-interest bearing deposit with Sportingbet.
This plea is based on two exhibits neither of which is confidential. They are exhibits P25 and P31. Exhibit P31 is another form of exhibit P24. Exhibit P31 is a summary of monies transferred between NOBS and Sportingbet Plc. This plea represents a mathematical calculation based on evidence which is not confidential. The defendants acknowledge that the plea is a calculation but they say that it has been calculated by what they call “reverse engineering”. That, however, does not establish that a confidential exhibit has been used. The simple fact is that it is a mathematical calculation which is capable of being made from exhibits which are not confidential. Although the defendants presented a detailed hypothesis as to how the plaintiffs’ legal advisers might have used the confidential exhibits, it does not satisfy me of that fact. At the risk of undue repetition, the question is whether the information was itself confidential, not whether it was included in a confidential document.
In these proceedings, save for the trivial breach when drawing para 35, the plaintiffs have not been shown to have confidential information. The defendants’ contentions must therefore fail.
Requirements for Leave

There are other factors which point to a connection with the courts of Vanuatu. The first defendant NOBS is incorporated in Vanuatu and carries on business there. It is a subsidiary of Sportingbet Plc, a company incorporated in the United Kingdom. It is alleged that the misappropriated funds ultimately ended up in accounts of the defendants in Vanuatu. It does not appear that the defendants’ witnesses reside in Vanuatu. Instead, it seems that a good part of the operations of NOBS in Vanuatu are conducted from Australia.
Although those are obvious connections with Vanuatu, there is plainly a real connection with this State. The issues in this action are relatively straightforward. The money trail has been traced. The only real issue is whether the defendants and their employees had a level of knowledge of the transactions by which Telford misappropriated the funds and by which the defendants acquired those funds to cause the defendants to become a constructive trustee. It is not likely, therefore, that the trial will be long. If any of the defendants’ witnesses must come from Vanuatu or another jurisdiction, they will not be inconvenienced for long.
All of these factors point to the conclusion that leave should be granted. I turn to the questions involving the issue of forum non conveniens.
Forum Non Conveniens
The question is whether this Court is a clearly inappropriate forum: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. As Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 28, the test was adopted in preference to the “clearly more appropriate forum” test identified by the House of Lords in Spiliada. Thus, a court is not an inappropriate forum merely because another is more appropriate: Regie National des Usines Renault SA v Zhang (2002) 210 CLR 491 at 503.
Notwithstanding that the test in Voth differs from that in Spiliada, regard may be had to the discussion of relevant connecting factors and the legitimate personal or juridical advantage identified by Lord Goff in Spiliada at 477 – 478 and at 482 – 484: see Voth at 564 – 565; Henry v Henry (1996) 185 CLR 571 at 586 – 87; and Renault at 503 – 504. In Voth, at 566, the majority joint judgment also identified as a material consideration whether it is fairly arguable that the substantive law of the forum is the lex causae: see also Renault at 504.
The factors which Lord Goff referred as “connecting factors” are factors to determine with which court the action has the most real and substantial connection. They include “not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business”: Spiliada per Lord Goff at 478. The fact that a plaintiff has an advantage in bringing proceedings in the chosen forum is not a decisive factor. An advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant. The court must consider where the case may be tried suitably for the interests of all of the parties and for the ends of justice: Spiliada at 482. See also the discussion which follows at 482 – 485.
The forum non conveniens test involves a similar exercise to the enquiry to determine with which court the action has the most real and substantial connection. However, it requires consideration of additional factors. The essential question is, “is this Court the clearly inappropriate forum?” The connecting factors with each jurisdiction and the places where the parties are incorporated and carry on business have been identified. They do not indicate that this Court is clearly inappropriate.
I turn to examine the lex causae, that is to say, the law which governs the issues in this action. The plaintiffs claim that the defendant NOBS holds the monies on a constructive trust. The monies which Telford arranged to be placed in NOBS’ bank account at the Petrie Plaza, Canberra branch of the Westpac Bank had been stolen by Telford. Those monies were, therefore, trust monies in the hands of Telford: Black v S Freedman & Co (1910) 12 CLR 105 at 110 per O’Connor J.
The plaintiffs rely on the principles set out by Lord Selborne LC in Barnesv Addy (1874) LR 9 Ch App 244 at 251
Now in this case we have to deal with certain persons who are trustees, and with certain other persons who are not trustees. That is a distinction to be borne in mind throughout the case. Those who create a trust clothe the trustee with a legal power and control over the trust property, imposing on him a corresponding responsibility. That responsibility may no doubt be extended in equity to others who are not property trustees, if they are found either making themselves trustees de son tort, or actually participating in any fraudulent conduct of the trustee to the injury of the cestui que trust. But, on the other hand, strangers are not to be made constructive merely because they act as the agents of trustees in transactions within their legal powers, transactions, perhaps of which a Court of Equity may disapprove, unless those agents receive and become chargeable with some part of the trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees.
The plaintiffs seek to make NOBS liable as a constructive trustee either because it knowingly received and dealt with trust property or because it knowingly assisted Telford in a breach of trust. The question whether the monies paid into the account are subject to a constructive trust depends on what NOBS and its employees knew concerning the source of the monies paid into the Westpac account of NOBS. There may be questions whether Sportingbet Plc was infected with the same degree of knowledge as NOBS.
The parties made different submissions as to the proper basis of the plaintiffs’ claims. I will not rehearse their respective arguments. The basis of the claim will determine the lex causae. In my view, the claim falls within that class described as a class of “knowing receipt” and, as such, it is what Millet J in El Ajou v Dollar Land Holdings Ltd [1993] 3 All ER 717 at 736 described as a “receipt‑based restitutionary claim”. The consequence is that the law governing the claim is the law of the country where the defendants received the money. In El Ajou: Millet J said:
For technical reasons, the plaintiff’s claim is brought in equity, where it is of a kind generally described as a case of “knowing receipt”. This is the counterpart in equity of the common law action for money had and received. Both can be classified as receipt‑based restitutionary claims. The law governing such claims is the law of the country where the defendant received the money: see Dicey and Morris, The Conflict of Laws (11^th edn, 1987) r 203 (2) (c) and Chase Manhattan Bank NA v Israel-British Bank (London) Ltd [1979] 3 All ER 1025, [1981] Ch 105. Whatever money or property DLH received was received by it in England and, accordingly, the plaintiff’s claim falls to be governed by English law, including the principles of equity. It is not necessary to consider whether the concept by which equity gives effect to the claim by permitting the plaintiff to trace his money and identify it as his in the hands of the recipient is procedural or substantive, since on either footing it too is governed by English law, either as the lex fori or as the law of the restitutionary obligation.
(Rule 203 (2) (c) in the 11^th edition of Dicey and Morris, The Conflict of Laws is r 200 (2) (c) in the 13^th edition of that work.) See also in Re Jogia [1988] 1 WLR 484 at 495 – 496.
The money was received into a bank account of NOBS in the Australian Capital Territory. The relevant law is, therefore, the law of the Australian Capital Territory which, in respect of restitutionary claims, is the same law as the law of South Australia. I do not think this conclusion is affected by the decision of Rogers CJ Comm D in Swiss Bank Corporation v State Bank of New South Wales (unreported, 9 December 1992, Supreme Court of New South Wales Commercial Division). In reaching this conclusion I have been assisted by the discussion in Dicey and Morris, The Conflict of Laws (11^th edn) para 34‑036 to 34-040. The receipt by Sportingbet Plc appears to have occurred in England where the law relating to restitutionary claims would be the same as that of South Australia. Thus, in the case of both defendants, the relevant law is the same as the law of South Australia.
There are strong grounds for holding that leave should be granted. It has not been demonstrated that this Court is the clearly inappropriate forum. For these reasons, I will grant leave to serve the summons on both defendants.
No Abuse of Process
The defendants contended that a further reason for refusing leave to serve the summons was that this action constituted an abuse of process. The submission was put on two bases. First, it was said that the action offended the principles identified in Henderson v Henderson (1843) 3 Hare 100 at 114 ‑ 115, 67 ER 313, and in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. This submission is misconceived. Although this action is grounded on a number of facts which are the same as founded the plaintiffs’ action against Sportingbet Australia, the action is a different action against different defendants and involving further facts upon which the question whether defendants are liable will be determined.
The second ground upon which it was submitted that the action constituted an abuse of process was that the plaintiffs in this action were relitigating issues which had been litigated in the Sportingbet Australia action and so constituted an abuse of process within the principle expressed in Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392 – 393:
Proceedings before a court should be stayed as an abuse of process if, notwithstanding that circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of in earlier litigation.
Again, the submission is misconceived. It is sufficient to repeat that this is a different action against different defendants seeking different remedies. Some of the facts are the same as in the Sportingbet action but, again, there are different facts which it will be necessary to determine for the purpose of deciding whether the defendants are liable.
There is no respect in which this action constitutes an abuse of process.
The Order of Besanko J
Although Dr Griffiths QC elected not to rely on the confidential documents exhibited to Mr Daminato’s affidavit, it is appropriate to deal with the question whether the plaintiffs or their legal advisers were entitled to rely on those confidential documents when drawing the statement of claim. The issue was argued at some length before the election was made. The issue might resurface in another forum and it is, therefore, appropriate to deal with it.
It is necessary to consider the circumstances leading to the order and what the order permits.
On 10 October 2002, the plaintiffs applied for an order that they have leave to refer to and use a number of exhibits tendered in the Sportingbet Australia action as well as the transcript of that action. The relevant parts of the application were in these terms:
2.That pursuant to sections 131 (1) and 131 (2) of the Supreme Court Act, the plaintiffs have leave to refer to and use in any proceedings that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Limited, the exhibits tendered and marked P24, P25, P31, P32, P33 and D11 at the trial of the within action.
3.That pursuant to section 131 (1) of the Supreme Court Act, the plaintiffs have leave to refer to and to reproduce either electronically or by photocopying for use in, any proceedings brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Ltd, the transcript of the evidence taken during the trial of the within action on 10 to 13 September 2002 (inclusive) and 17 and 20 September 2002 (inclusive).
On 9 October 2002 Mr Daminato had sworn an affidavit in support of the application. In that affidavit he said
2.I make this affidavit in support of the application by the plaintiff in the within action seeking leave under Section 131 of the Supreme CourtAct to refer to, and use in other proceedings that the plaintiffs intend to institute, certain exhibits tendered during the course of the trial heard by His Honour Justice Besanko over the period of 10 to 13 September (inclusive) and 17 to 20 September 2002 (inclusive), together with the transcript of evidence taken during those sitting days.
3.The exhibits that form the basis for the plaintiff’s application are relevant to the issue of tracing funds that have been misappropriated from the plaintiffs and paid to Sportingbet Australia Pty Ltd and its related entities. The exhibits in issue highlight that funds misappropriated from the plaintiffs have been received by Number One Betting Shop Ltd (“NOBS”) and paid by NOBS (by way of inter‑company financing) to Sportingbet Plc. Sportingbet Plc is the ultimate holding company of Sportingbet Australia and NOBS and carries on business in the United Kingdom, having its registered office in London. The exhibits disclose the nature and extent of amounts received and paid out within the corporate structure controlled by Sportingbet Plc and will therefore be material in terms of any proceedings that may be brought by the plaintiffs seeking tracing and other equitable remedies against NOBS and Sportingbet Plc.
4.The plaintiffs are concerned that if Sportingbet Plc and NOBS take steps to alter the current state of inter-company loans and financing arrangements, the plaintiffs’ tracing remedies may be defeated or alternatively, the value of any chose in action representing the inter‑company loan accounts may be affected, thereby rendering causes of action that the plaintiffs may have against both or either NOBS and Sportingbet Plc nugatory.
5.Given the above concerns, the plaintiffs intend bringing urgent interlocutory proceedings in this Honourable Court if both NOBS and Sportingbet Plc refuse to provide undertakings as to the preservation of assets concerning the inter‑company loan accounts and financing. It is likely that any urgent interlocutory proceedings will need to be brought within the week if undertakings are not given by NOBS and Sportingbet Plc. The exhibits described at paragraph 7 below will need to be referred to in any affidavit material that may be required to support applications for urgent orders including interlocutory injunctions. For this reason I respectfully seek to have the plaintiff’s applications made specially returnable.
6.There are also a number of passages in the transcript of evidence taken at trial that the plaintiffs will need to refer to in pursuing interlocutory and final relief against NOBS and Sportingbet Plc. It is my respectful contention that certain admissions and explanations about the inter‑company accounting practices and procedures given during cross‑examination of Sportingbet Australia directors, Messrs Waller and Sullivan, are relevant in terms of understanding the flow of inter‑company funds disclosed in the exhibits identified at paragraph 7 below. The plaintiffs consider it will be necessary to exhibit parts or indeed the entire transcript, to affidavit material in support of any urgent/interlocutory relief claimed by the plaintiffs. The plaintiffs wish to avoid breaching any copyright that may exist in the printed or electronic versions of the transcript the plaintiffs have obtained from the Court Registry and are therefore seeking appropriate orders.
The application was heard by Besanko J on 16 and 17 October 2002. On 17 October 2002 he made the order which is set out in para 10 above. It is convenient to repeat the order
1.Pursuant to sections 131 (1) and 131 (2) of the Supreme Court Act, the plaintiffs have leave to refer to and use in any urgent applications as contemplated in paragraph 5 of the affidavit of Victor John Daminato sworn on 9 October 2002 that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Limited, the exhibits tendered and marked P24, P25, P31, P32, P33 and D11 at the trial of the within action.
2.Pursuant to section 131 (1) of the Supreme Court Act, the plaintiffs have leave to refer to and to reproduce either electronically or by photocopying for use in any urgent applications as contemplated in paragraph 5 of the affidavit of Victor John Daminato sworn on 9 October 2002 that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Ltd, the transcript of the evidence taken during the trial of the within action on 10 to 13 September 2002 inclusive.
The defendants contended that the plaintiffs’ legal advisers have acted in breach of that order, submitting that the order did not authorise the use of the confidential documents for the purpose of drawing a statement of claim. They said that the order permitted the documents to be used only for the purpose of obtaining the orders in the nature of Mareva orders. The defendants rely on the transcript of the proceedings before Besanko J on 16 and 17 October.
The application was initially made ex parte. Besanko J expressed concern that, if he granted leave, some unauthorised future use of the documents might be made. Dr Baxter, who appeared for the plaintiffs, gave an undertaking that his clients would seek appropriate orders as to confidentiality in any step in the further proceedings. He added:
The only further use that will be made of the documents is that envisaged in Mr Daminato’s affidavit and we certainly wouldn’t seek to be using them any further without coming back to Your Honour.
On a number of occasions Dr Baxter stated that his clients accepted the commercial confidentiality of the documents. Besanko J made orders directing the application be served on the defendants and listed the matter for hearing on 17 October.
On 17 October Dr Baxter again appeared for the plaintiffs and Mr Kenny appeared for Sportingbet Australia. Mr Kenny immediately informed Besanko J that his client was prepared to consent to an order that the plaintiffs be entitled to use the documents, the subject of the application “in relation to contemplated urgent interlocutory applications as raised in para 5 of the affidavit of Mr Daminato”. He continued:
The situation is that we would also seek undertakings that confidentiality orders be sought in relation to the use of those documents in those proceedings as well, and at this stage we do not consent to any other use of those documents.
The situation is we want the opportunity to have a look at it, this is the urgent part that is clearly concerning my friend, and we’ll consent to that. We’ll then have a look at the matter and if an agreement can be reached between us then there will be no further need to concern the court with the matter, although that may require a consent application to the court, but there won’t be an argument about the matter. If not, and they wish to proceed and we won’t consent, then, of course, we’d be happy for the matter to come back on before your Honour to consider the matter further.
Dr Baxter informed Besanko J that the plaintiffs were content with that arrangement. He handed up minutes of order which had been agreed, adding:
The amendment is in paras 1 and 2 of the orders sought in the second line in para 1 and the third line in para 2, replace the word “proceedings” by the words “urgent application as contemplated in para 5 of the affidavit of Victor John Daminato sworn on 9 October 2002”, and there be a new para 3: “That the parties have liberty to apply on short notice”. That covers the matter raised by my friend Mr Kenny because, of course, in issuing an application for action Mareva injunction we would have to give an undertaking to issue proceedings, and it may be that we need the information in order to constitute proceedings ourselves. My friend acknowledges that point but says “That may be so and maybe we’ll consent. If we don’t then we’ll have to have an argument”.
Dr Baxter then gave a further undertaking as to the confidentiality of the documents.

The question on which the parties have joined issue was the meaning of the expression “leave to refer to and use in any urgent applications as contemplated in paragraph 5 of the affidavit of Victor John Daminato … that may be brought by the plaintiffs against Sportingbet Plc and Number One Betting Shop Limited” in para 1 and the like expression in para 2 of the order. The plaintiffs contended that they were at liberty to use the documents for the purpose of drawing a statement of claim in any action against Sportingbet Plc and NOBS. The defendants contended that on 17 October Dr Baxter expressly agreed that the confidential documents would be used for the purpose only of applying for orders in the nature of Mareva orders and, if the plaintiffs or their legal advisers sought to use the documents for the purpose of drafting a statement of claim in any proceedings to which the Mareva orders would provide ancillary relief, they would make a fresh application. In this respect the defendants rely on para 3 of the order which gave the parties leave to apply on short notice.
I think that any question as to the meaning of the order must be resolved by an examination of the terms of the order itself. The parties had agreed the terms of the order and the order was made by consent. Although Dr Baxter had stated that further proceedings might be issued, there is a degree of ambiguity in his remarks. I do not in any sense suggest any lack of integrity on the part of Dr Baxter. The ambiguity lies in what is meant by the expression “urgent interlocutory proceedings” in para 5 of Mr Daminato’s affidavit.
The order gave the plaintiffs leave to use the documents named in para 1 and the transcript of the proceedings of the trial “for use in any urgent applications as contemplated in paragraph 5 of the affidavit of” Mr Daminato. In para 5 of his affidavit, Mr Daminato had stated that the plaintiffs intended to bring “urgent interlocutory proceedings”. It is apparent from his affidavit that those proceedings would seek orders in the nature of Mareva orders. Mr Kenny expressed an unequivocal assent to the use of the documents for that purpose. On an application for an injunction or a Mareva order, it is not uncommon to find that the plaintiff has issued a summons seeking the primary relief against the defendant so as to provide a basis for the injunction or for the Mareva order. In some instances a statement of claim might also have been drawn. Had the plaintiffs issued a summons and statement of claim when seeking the Mareva orders, I do not think that the defendants would have had any entitlement to allege that the plaintiffs had acted in breach of the order of Besanko J. In the event, the plaintiff did not proceed in that way. Although a summons was issued and served before the Mareva orders had been made, the statement of claim was not filed and served until after that date.
Here again, it is important to remember that the question is whether the information itself is confidential. Information which is not confidential but which happens to be contained in a confidential document does not become confidential by reason only of the fact that it was contained in a confidential document. I have already held that the plaintiffs’ legal advisers used confidential information to draw the statement of claim. However, that was, as already demonstrated, a small and inconsequential item of confidential information. If there is any breach of the order of Besanko J, it is a technical breach of the most trivial kind. That conclusion receives emphasis when it is remembered that if the plaintiffs’ legal advisers had filed a statement of claim when they served the summons seeking the Mareva order, no legitimate complaint could have been made.
There are other factors which support the conclusion that any breach of the order was of a technical and trivial kind. The documents, including confidential documents, to which Mr Daminato referred in his affidavit were used for the purpose of demonstrating that the plaintiffs had a good arguable case as required by r 68.03 of the Supreme Court Rules and so were entitled to the orders they sought. Once used for that purpose, it would be quite unrealistic for the Court to prevent the plaintiffs from using them for the purpose of drawing a statement of claim. If the plaintiffs wished to maintain the benefit of the Mareva orders made on 12 November 2002 by Bleby J, they had to proceed to prosecute the action with all reasonable expedition. If they did not, the orders would be liable to be discharged: Comdel Commodities Ltd v Siporex Trade SA [1997] 1 Lloyd’s Rep 424; A/S D/S Svendborg v Awada [1999] 2 Lloyd’s Rep 244. Although there might be conditions to ensure that what was confidential was not disclosed in the statement of claim, the Court could not prevent reference to the documents for the purpose of drawing the statement of claim because that would not only effectively hamstring the plaintiffs from prosecuting their case but would also be entirely contrary to the grant of leave to use the documents to demonstrate a good arguable case. In short, the Court could not give leave one day and refuse it another. Although the plaintiffs and defendants might have believed the issues could be revisited another day, the true position was that they could not.
The argument on this question only serves to emphasise the force of the complaint made by Dr Griffiths that there is an air of unreality about the defendants’ submissions concerning the use of documents tendered in the Sportingbet action for the preparation of the statement of claim. The plaintiffs are the same plaintiffs as in the Sportingbet action. The defendants are related to Sportingbet Australia and employees of the defendant NOBS were called as witnesses in the Sportingbet Australia action. They were called to prove the state of knowledge of NOBS and of Sportingbet Australia. Some of the employees of NOBS are also employees of Sportingbet Australia. I do not rely on these matters but they do serve to point out the technical nature of the defendants’ submissions in relation to the plaintiffs’ use of documents tendered in the trial of the Sportingbet action.
For these reasons, although the plaintiffs’ legal advisers have used confidential documents in breach of the orders made by Besanko J, the breach was of such a technical and trivial nature that it does not require that the statement of claim should be struck out.
Conclusion
For these reasons, there will be orders to the following effect:
1.Extending the time within which the plaintiffs may apply to renew the summons to 10 September 2004.
2. Renewing the summons.
3. Granting leave to serve the summons outside the jurisdiction.
The plaintiffs had applied for use to leave the affidavit of Mr Daminato and the confidential exhibits to that affidavit. As is apparent from the above reasons, it is unnecessary to deal with that issue. The plaintiffs had also applied to amend the statement of claim in the form exhibited to the affidavit of Roxanne Kylie Smith sworn on 10 September 2004. This application was not argued and I will not, therefore, make any order. I will hear the parties as to the terms of the order and any consequential orders.

DATE	SUM TRANSFERRED ($)
17/09/01	500,000
19/10/01	1,000,000
20/11/01	1,000,000
12/02/02	1,000,000

DATE	SUM PAID ($)	CREDITOR
10/09/01	215,578	VITCO
05/10/01	94,456	VITCO
31/10/01	312,600	VITCO
01/11/01	11,173	BDO Sydney
20/11/01	91,273	BDO Vanuatu