Lease Collateral v Johnson
[2018] NSWSC 452
•23 March 2018
Supreme Court
New South Wales
Medium Neutral Citation: Lease Collateral v Johnson [2018] NSWSC 452 Hearing dates: 23/03/2018 Date of orders: 23 March 2018 Decision date: 23 March 2018 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Applicant released from “Harman” implied undertaking of confidentiality in respect of one category of documents. Applicant to pay costs of opponent.
Catchwords: CIVIL PROCEDURE – application for release from Harman undertaking – where release sought in relation to documents produced on subpoena – where it would be open to applicant to also subpoena those documents – application granted.
COSTS – where costs tail wags substantive dog – where applicant originally sought unjustifiably broad order – where orders significantly narrowed day before hearing – where real dispute was as to costs – applicant ordered to pay costs of respondent.Category: Procedural and other rulings Parties: Lease Collateral Pty Ltd (Plaintiff)
Ian David Johnson (First Defendant)
ACN 093 752 893 Pty Limited (Second Defendant)
Christopher James Munday (Third Defendant)
David Andrew Marshall (Fourth Defendant)
Helmsman Funds Management Limited CAN 100 489 763 (Fifth Defendant)Representation: Counsel:
Solicitors:
JAC Potts SC (Plaintiff)
JA Watson (First, Third and Fourth Defendants)
A Doumani (Second and Fifth Defendants)
Corrs Chambers Westgarth (Plaintiff)
Mills Oakley (First, Third and Fourth Defendants)
Ashurst (Second and Fifth Defendants)
File Number(s): 2016/293219
Judgment (ex tempore – revised 12 APRIL 2018)
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HIS HONOUR: This judgment deals with a notice of motion filed by a defendant seeking to be released from the usual undertaking as to confidentiality - the "Harman" undertaking - in respect of some four categories of documents. The first category comprises documents produced on subpoena. The second category comprises all the plaintiff's lay and expert evidence. The third and fourth categories between them comprise all the evidence of the defendants, both lay and expert.
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The suggested purpose for which the documents were required is for use in proceedings that are said to be related in various ways to, and to involve common issues of fact, with these proceedings.
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Release from the undertaking is of course a matter for the Court, and is not something that can be dealt with simply by the parties by consent between them. Nonetheless, where a party either consents to or does not oppose the order, the Court will be more inclined to give its consent, provided it is satisfied that there is some reasonable basis for the request and that making the order will not unduly infringe on the rights of third parties.
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In the present case, there could have been little basis to object to the order in respect of the first category - documents produced on subpoena. As I see the matter at present, it would have been open to the applicant on the motion to issue similar subpoenas in the related proceedings and obtain the documents that way.
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Different considerations apply to the evidence. The affidavits and reports are produced in effect under compulsion, pursuant to directions from time to time given by the Court. They have not been read in open court and their exhibits (if any) have not been tendered.
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Perhaps not unreasonably, the plaintiff, the respondent to the motion, enquired why it was that the order was sought in respect of the remaining categories of documents. There was no satisfactory reply given to that request. Instead, the notice of motion was filed and served. Subsequent correspondence produced nothing more by way of enlightenment.
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At some time yesterday, the applicant's solicitors indicated that their client would press only for a release in respect of the first category of documents. Even that was conditional. It was said to be proposed on the bases, first, that the plaintiff consented and, second, that the plaintiff agreed that there be no order as to costs.
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I am satisfied that it is appropriate to release the applicant from the implied undertaking in respect of the only category of documents now in issue - the first. I do not see that there can be any possible prejudice to third parties in making that order, and I do not think that it is appropriate to put the applicant to the expense of issuing a subpoena in the other proceedings, and to put the recipient of the subpoena to the expense of being required to comply again.
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That leaves, as is usual, the question of costs. As is all too often the case, the costs tail wags the substantive dog. It is the question of costs that has occupied most of the time and evidence this morning.
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In my view, the plaintiff is entitled to its costs. It does not appear that the applicant was ever able to formulate a satisfactory basis for seeking the release in respect of the second, third and fourth categories of documents. It did not respond in any satisfactory way to the plaintiff's requests for information, and as I have pointed out, those requests have now been dropped.
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The plaintiff has been forced to prepare to come to court on the basis that all the categories in the notice of motion were in issue, and that position continued until some time yesterday when, as I have said, there came the first indication that the applicant might resile from the extreme position advanced by the notice of motion.
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It is of course idle to speculate what might have happened, had the request been limited to the first category of documents. It is very difficult to see how the plaintiff could have opposed that request. Had it done so, then the costs question might have been decided in another way altogether. But as I have said, it is idle to speculate, in circumstances where the narrowing of the issues became apparent only in the course of yesterday.
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For those reasons, I make orders in accordance with paragraphs 1 to 3, as amended, of the form of short minutes of order initialled by me and dated today's date.
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I direct that exhibit MAW 1 be returned.
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I note that the second and fifth defendants, who are also affected by the notice of motion, did not seek costs.
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Decision last updated: 12 April 2018
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