Michael Wilson and Partners Limited v Robert Colin Nicholls

[2008] NSWSC 523

CITATION:	Michael Wilson and Partners Limited v Robert Colin Nicholls [2008] NSWSC 523
HEARING DATE(S):	12/05/08, 13/05/08, 20/05/08, 23/05/08, 26/05/08
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
EX TEMPORE JUDGMENT DATE:	26 May 2008
DECISION:	Documents remained subject to Harman undertaking.
CATCHWORDS:	PRACTICE AND PROCEDURE - Tender of documents on interlocutory application - Whether documents part of public domain -
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW)
CATEGORY:	Procedural and other rulings
CASES CITED:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Esso Australia Resources Limited v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10
PARTIES:	Michael Wilson & Partners (Plaintiff) Robert Colin Nicholls (First Defendant) David Ross Slater (Second Defendant) Temujin Services Limited (Third Defendant) Temujin International Limited (Fourth Defendant) Temujin International FZE (Fifth Defendant) Shaikenov & Partners, LLP (Sixth Defendant) Scoulton Holdings Limited (Seventh Defendant)
FILE NUMBER(S):	SC 50151/06
COUNSEL:	Mr M Walton SC, Mr J Drake (Plaintiff) Mr A Fox (Second to Fifth Defendants mention for First Defendant) Ms Shand (solicitor) (PJT Corporate Services, a non-party) Ms K Virtue (Solicitor) (Sokol Holdings Inc and Frontier Mining Ltd)
SOLICITORS:	Clayton Utz (Plaintiff) Henry Davis York (First to Fifth Defendants) Shand & Associates (PJT Corporate Services, a non-party) Allens Arthur Robinson (Sokol Holdings Inc and Frontier Mining Ltd)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Monday 26 May 2008 ex tempore
Revised 29 May 2008

50151/06 Michael Wilson & Partners Limited v Robert Colin Nicholls & Ors

JUDGMENT

The current position

1 Late on Friday, 23 May, the court heard argument in relation to a notice of motion filed by the plaintiff seeking leave to use particular documents produced to the court pursuant to subpoena issued to PJT Corporate Services Pty Limited and two individuals in the Eastern Caribbean Supreme Court in the High Court of Justice of the British Virgin Islands. The notice of motion sought such leave.

2 An ex tempore judgment was given in which the court held that insofar as the plaintiff sought leave to use documents produced to the court pursuant to materials produced by PJT Corporate Services, the principled exercise of the relevant discretion was to accede to that application. The court further expressed the view that the plaintiff had not made good a case for the grant of leave insofar as the two named individuals were concerned.

3 It is unnecessary to repeat other of the reasons save to indicate that they included reliance upon the proposition that where outside persons or corporations responded to subpoenas regularly issued in the jurisdiction, even though they may not take any objection to the parties being entitled to inspect the documents, they were entitled to the benefit of the significant general understanding that the implied Harman undertaking would be honoured absent very special circumstances.

4 The ex tempore judgment held that there was a prima facie entitlement to be permitted to address in relation to the position even if not strictly joined as parties.

5 The orders of the court granted leave to the plaintiff to use the documents produced to the court pursuant to the subpoenas issued to PJT Corporate Services Pty Limited in the fashion sought by the plaintiff.

6 In the course of the reasons the court indicated that the plaintiff had not made good a case for the grant of leave insofar as the two individuals named in the notice of motion were concerned. The matter was stood over until this afternoon in terms of the balance of the notice of motion.

7 During the course of the listing of the matter this afternoon, Mr Walton of senior counsel has put a different argument to the court: in effect an argument which, if correct, would have meant that the application pursued on Friday was otiose because his client, on this analysis, had already become no longer bound by the implied Harman undertaking. Mr Walton reached this route by reference to an event which occurred on Friday afternoon where [as the transcript at page 3 records], there was tendered by the plaintiff and admitted into evidence as exhibit KPB1, documents described as "exhibits to the affidavit of Kate Bolster, sworn 23 May 2008". Those are the documents in respect of which the plaintiff's notice of motion had been made.

8 Mr Walton's argument this afternoon has been that a careful reading of the material authorities, as well as an analogy to be drawn from the current rule 21.7 of the UCPR rules would make clear that absent a court order, the implied Harman undertaking falls away as soon as the documents in issue are received into open court.

9 Rule 21.7 deals with discovered documents and is headed "Discovered Documents not to be Disclosed". It reads:

"(1) No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.

(2) Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order".

10 The authorities to which Mr Walton has referred the court are Esso Australia Resources Limited v Plowman (Minister for Energy & Minerals) (1995) 183 CLR 10, in particular the observations by Mason CJ to be found at pages 32 and 33, where his Honour inter alia in referring to the Harman undertaking said:

"Because an undertaking is implied it has not been the practice to condition the making of the orders in that way. 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 publication of it".

11 His Honour continued:

"It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation e.g. discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation".

12 The other authority is Ainsworth v Hanrahan (1991) 25 NSWLR 155 where Kirby P at page 168 observed that once answers to interrogatories had been tendered or read out in open court, liability in contempt for their later use would evaporate.

13 A further development this afternoon occurred when Mr Fox of counsel, representing the second to fifth defendants today [but mentioning the matter on behalf of the first defendant], made an oral application to the court to order that the documents produced to the court by the two named individuals not be permitted to be remitted to the British Virgin Islands.

14 In my view there is substance to Mr Fox's application. The only purpose of the plaintiff in tendering the specific documents in respect of which the application was made, was to have them identified and to avoid the criticism made by other parties that the plaintiffs needed to identify the documents with precision in order to further the application. This was an interlocutory tender for a defined purpose as opposed to a tender during a final hearing.

15 The curial process referred to by Sir Anthony Mason in Esso Australia is not blind to the exigencies of the particular circumstances. To my mind the reasons given in the ex tempore judgment delivered late on Friday remain of substance. To the extent that it is permissible to draw an analogy between the part 21.7 discovered documents situation and the present, that analogy throws up the fact that the court does have power to make an order restricting the disclosure or use of any document, whether or not received into evidence.

16 For those reasons the application made by and on behalf of the second to fifth defendants is acceded to.

Orders

17 The court orders that the plaintiff not use the documents produced to the court pursuant to the subpoenas issued to Mr Brian Weir, dated 10 April 2008, and Ms Debra Lighezzolo, dated 10 April 2008, in the Eastern Caribbean Supreme Court in the High Court of Justice of the British Virgin Islands unless and until this order be otherwise discharged.

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