Loureiro v Mac Aus Unit Pty Ltd (No 4) - [2022] NSWSC 370

Supreme Court

New South Wales

Medium Neutral Citation: Loureiro v Mac Aus Unit Pty Ltd (No 4) [2022] NSWSC 370
Hearing dates: 23 March 2022
Date of orders: 31 March 2022
Decision date: 31 March 2022
Jurisdiction: Common Law
Before: Gleeson J
Decision:
Grant leave to the plaintiffs to use the documents produced on subpoena (being the subpoena packets specified in [32] below), and the information contained therein, for the purpose of commencing and prosecuting proposed proceedings in the Equity Division against the second, third and fourth defendants and Sandra Conceicao.

Catchwords:
PROCEDURE – implied undertaking – use of documents produced on subpoena for purposes of fresh proceedings – whether special circumstances warrant release from undertaking – where no objection by or prejudice to documents’ author – where some documents contain potentially sensitive information – where documents likely to achieve justice in fresh proceedings – where material could be obtained on subpoena in fresh proceedings

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Conveyancing Act 1919 (Cth), s 37A
Uniform Civil Procedure Rules 2005 (NSW), r 18.2(2)(b)

Cases Cited:
Harman v Secretary of State for Home Department (1983) 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Stokes v Toyne [2021] NSWSC 1049

Category: Procedural rulings
Parties: Carlos Jose Luis Loureiro (First plaintiff)
Claudio Jose Leal Meireles (Second plaintiff)
Jose Carlos Reis Meireles (Third plaintiff)
Mac Aus Unit Pty Ltd (First defendant/respondent)
Antonio Manuel De Carvalho Conceicao (Second defendant/respondent)
Patricia Conceicao (Third defendant/respondent)
David Conceicao (Fourth defendant/respondent)
Sandra Conceicao (Fifth respondent)
Representation:
Counsel:
E Bartley (Plaintiffs)
M J Stevens (First to Fourth defendants/respondents) (24 March 2022)
Solicitors:
Jeresyn Legal (Plaintiffs)
Somerset Ryckmans (First to Fourth defendants/ respondents)
Fifth respondent (no appearance)

File Number(s): 2020/135763

Judgment

Application is made by the plaintiffs by notice of motion dated 18 March 2022 for leave to use in proposed proceedings against four individuals and the Australian Securities and Investment Commission (ASIC) certain documents obtained by the plaintiffs in these proceedings in which the principal judgment was given on 8 March 2022: Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226.
The application seeks relief from the “implied undertaking” not to use documents and the information contained therein obtained in the present proceedings on subpoena issued to third parties for a purpose other than the conduct of these proceedings: Harman v Secretary of State for Home Department (1983) 1 AC 280. The principle underlying the “implied undertaking” was stated by Hayne, Heydon and Crennan JJ in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [96]:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 370
Decision Date: 31 March 2022

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Loureiro v Mac Aus Unit Pty Ltd (No 4) involved an application by the defendant, Mac Aus Unit Pty Ltd, to release documents that had been produced in a prior proceeding. The applicant sought to use these documents in fresh proceedings against the plaintiff, Loureiro. The central dispute focused on whether the special circumstances existed to warrant the release of these documents from the implied undertaking that they would not be used for any purpose other than the original proceeding.

The court had to determine whether the release of the documents would breach the implied undertaking, particularly given that some documents contained potentially sensitive information. The legal issues included whether there were any objections from or prejudice to the documents' author, and whether the use of these documents in the fresh proceedings was necessary to achieve justice. The court also considered whether the material could be obtained through a new subpoena in the fresh proceedings.

The Federal Court concluded that special circumstances did indeed exist to permit the release of the documents from the implied undertaking. The court found no objection from or prejudice to the author of the documents, and that the documents were likely to achieve justice in the fresh proceedings. The court determined that although some documents contained potentially sensitive information, the benefits of using them outweighed any potential prejudice. The court also noted that while the material could potentially be obtained through a new subpoena, the efficiency and effectiveness of using the existing documents justified their release.

The final orders of the court were to release the documents from the implied undertaking, allowing them to be used in the fresh proceedings against Loureiro. The decision highlighted the importance of balancing the need for justice with the potential prejudice to the author of the documents and the existence of special circumstances.

Orders