Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking) - [2017] VSC 735

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2017 00109

Ubertas Funds Management Pty Ltd (ACN 101 997 853)	Plaintiff
v
PricewaterhouseCoopers (a firm) (ABN 52 780 433 757)	Defendant

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2017
DATE OF JUDGMENT:	4 December 2017
CASE MAY BE CITED AS:	Ubertas Funds Management Pty Ltd v PwC (release from implied undertaking)
MEDIUM NEUTRAL CITATION:	[2017] VSC 735

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PRACTICE AND PROCEDURE ‒ Release from Harman undertaking ‒ Release from obligation under s 27(1) Civil Procedure Act 2010 ‒ Consideration of special circumstances in context of a large body of documents sought to be used ‒ Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. North Q.C. with Mr C. Salpigtidis	Brand Partners Commercial Lawyers
For the Defendant	Mr J. Slattery	King & Wood Mallesons

HIS HONOUR:

Introduction

Section 27 of the Civil Procedure Act 2010 (the Act) imposes an obligation upon any person who receives information or documents provided by another person involved in a civil proceeding, as a result of compulsory disclosure processes (see s 26 of the Act), not to use the information or documents other than in connection with the civil proceeding (the s 27 obligation).

The s 27 obligation is a statutory manifestation of a similar, longstanding common law obligation, taken to be an implied undertaking made to the Court, notably recognised in the UK in Harman v Secretary of State for Home Department[1] and in Australia, for example, in Hearne v Street[2].
[1][1983] 1 AC 280.
[2](2008) 235 CLR 125 (‘Hearne’).

In this application the parties to this proceeding—the plaintiff, Ubertas Funds Management Pty Ltd (UFM), and the defendant, PricewaterhouseCoopers (a firm) (PwC)—seek the Court’s leave to be released from the obligation and implied undertaking to enable them to use a very substantial body of documents disclosed by numerous parties in a previous civil proceeding.

That previous civil proceeding,[3] commenced in 2013 (the 2013 proceeding), was also conducted in this Court. In it there were three plaintiffs, one of whom was the plaintiff in this proceeding, UFM. There were 12 defendants and a number of third parties, only two of whom were not also defendants. Each of those parties made discovery in that proceeding, some providing their discovery in multiple lists over a period of time. Relevantly, two entities (who were not parties to the proceeding) produced documents to the Court in answer to subpoena—one was PwC and the other was Balanced Securities Ltd.
[3]Proceeding number S CI 2013 00899.

From the combined discovery (4,704 documents) and subpoenaed documents, a court book was produced in readiness for the trial containing a total of 11,328 pages. A supplementary court book was also served by the plaintiff on the defendants.

The trial commenced before Judd J on 13 April 2015, listed for 15 days.…

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: [2017] VSC 735
Decision Date: 4 December 2017

CaseChat Overview and Summary

Ubertas Funds Management Pty Ltd brought proceedings against PwC seeking, amongst other things, the return of documents that had been created during the course of PwC's audit of Ubertas' financial statements. The parties entered into a Harman undertaking, under which PwC agreed not to use or disclose the documents. Ubertas subsequently sought to release PwC from the Harman undertaking and to allow PwC to use the documents in its defence. Ubertas applied for leave to depart from the terms of the Harman undertaking, and PwC opposed the application. The court had to decide whether the application should be granted, and if so, on what terms. The court found that Ubertas had not established the special circumstances required to release PwC from the Harman undertaking. However, the court held that the special circumstances exception to the obligation under section 27(1) of the Civil Procedure Act 2010 (Qld) applied, and granted leave for PwC to use the documents in its defence. The court ordered that PwC be released from the Harman undertaking, but only to the extent necessary to allow it to use the documents in its defence, and that PwC pay Ubertas' costs of the application.

Orders