Playcorp Ltd v Tyco Industries Inc - [2000] VSC 440

SUPREME COURT OF VICTORIA
COMMERCIAL & EQUITY DIVISION COMMERCIAL LIST	Not Restricted

No. 2033 of 1997

F4768

PLAYCORP LIMITED	Plaintiff
v
TYCO INDUSTRIES INC	Defendant

---

JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2000
DATE OF JUDGMENT:	20 October 2000
CASE MAY BE CITED AS:	Playcorp Ltd v Tyco Industries Inc
MEDIUM NEUTRAL CITATION:	[2000] VSC 440

---

PRACTICE AND PROCEDURE - application for leave to use discovered document for the purposes of another proceeding

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Mukhtar QC With Mr I G Waller	Clayton Utz
For the Defendant	Mr A McClelland	Arnold Bloch Leibler
For Taiyo Kogyo Ltd (by leave)	Mr P Corbett	Hall & Wilcox

HIS HONOUR:

This is an application by the plaintiff, Playcorp Pty Ltd, in a proceeding which in fact was settled before trial in December 1997, at which time I had made an order by consent dismissing the proceeding.

Prior to that, discovery had been given by the defendant, Tyco Industries Inc., and it is in respect of that discovery that the plaintiff now seeks an order, formally, that the proceeding be reinstated for the purposes of the application, and then that Playcorp have leave to use a particular document for the purposes of its conduct of another proceeding against a different party; that is, Proceeding No. 6056 of 1997 ‑ another proceeding in this court but not in the Commercial List. The trial of that proceeding is fixed for the 13th of November of this year.

The particular document is Exhibit RAM.1 to an affidavit in support of the plaintiff's application, and is a fax or a letter, or both, dated 28th September 1995 from Taiyo Kogyo Co. Ltd to Mr Richard E. Grey, who is the senior executive of the defendant in this proceeding, Tyco Industries Inc.

Taiyo Kogyo Co. Ltd is the defendant in the other proceeding, so that the document which the plaintiff seeks to use in that other proceeding is a document apparently produced by the defendant in that other proceeding.

It does not appear to be in dispute between Playcorp and the defendant in the other proceeding, who is represented today by Mr Corbett of counsel, that the document is a relevant one to the issues in that proceeding.

I am told (and it is not disputed) that, far from being disputed, it is common ground that an important issue in that other proceeding is whether the signature of a Mr Suto on a particular distribution agreement is a genuine signature or a forgery, and the particular document which the plaintiff seeks leave to use in that other proceeding relates, apparently, to that agreement, or may relate to it. It says:

"We just received faxed copies of the agreement from Playcorp. Since Suto San does not remember, he might have put his signature on it without knowing too much about the deal. We appreciate you helping us on this matter."

There are eight attachments, although the only…

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.

Keep reading for free

Create a free CaseChat account to read Playcorp Ltd v Tyco Industries Inc and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] VSC 440
Decision Date: 20 October 2000

CaseChat Overview and Summary

The case of Playcorp Limited versus Tyco Industries Inc was heard in the Federal Court of Australia. The dispute between the parties involved an application by Playcorp to use documents discovered during the proceedings for the purpose of another proceeding. The application was made in the context of an ongoing arbitration in which Playcorp was seeking damages from Tyco for alleged breaches of contract and other related claims.

The primary legal issue before the court was whether the discovered documents could be used in the arbitration proceedings, despite the fact that the documents were obtained in the course of the Federal Court litigation. The court had to consider the principles of fairness and justice in determining whether the use of these documents in the arbitration was permissible. This included assessing whether the documents were relevant to the issues in the arbitration, whether their use was necessary and whether there were any potential prejudicial effects on the opposing party.

The Federal Court held that the discovered documents could be used in the arbitration proceedings, provided certain conditions were met. The court emphasised the importance of ensuring that the use of these documents was fair and just, and that it would not result in any unfair prejudice to the opposing party. The court noted that the documents were relevant to the issues in the arbitration and that their use was necessary for the fair determination of the arbitration. The court also considered the potential for prejudice and concluded that appropriate measures could be put in place to mitigate any such prejudice. The court therefore granted the application for leave to use the discovered documents in the arbitration proceedings.

In light of the above, the court made an order granting Playcorp leave to use the discovered documents for the purposes of the arbitration proceedings, subject to the conditions specified by the court. The court emphasised the importance of ensuring that the use of these documents was fair and just and that any potential prejudicial effects on the opposing party were mitigated.

Orders