VISCARIELLO v Macks (No 3) - [2008] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
VISCARIELLO v MACKS (No 3)
[2008] SASC 225
Reasons of Judge Lunn a Master of the Supreme Court
18 August 2008
PROCEDURE
Amendment of pleadings - objection to proposed amendment of statement of claim that it included material obtained in other Court actions between different parties in breach of the implied undertakings in those actions against the use of documents and information disclosed in those actions - whether the undertaking could be waived by a party to such actions or only by leave of the Court - held where there was an arguable case that a proposed amendment involved a breach of an implied undertaking in another action the question of whether there was a breach should be dealt with in that action - whether implied undertaking discharged where documents inspectible under s 131(1) of the Supreme Court Act or s 51 of the Magistrates Court Act - application dismissed.
Discovery of documents - application by defendant for better discovery by the plaintiff of documents relating to his general financial affairs - plaintiff pleaded that proper particulars yet to be given of his loss and damage - held direct relevance of documents in question could not be assessed without such particulars - application adjourned until particulars given - held where further or continuing discovery made under 87RR 58.05 or 58.06 no requirement to refer in list to privileged documents or documents no longer held by the party unless discovery was then being made of such documents.

VISCARIELLO v MACKS (No 3)
[2008] SASC 225
JUDGE LUNN:
Plaintiff’s application to file a new statement of claim.
Background

By an application of 24 June 2008 the plaintiff applied for leave to file a new statement of claim (“the ASOC”). It was filed in a sealed envelope because the defendant alleged part of its contents would be an unauthorised use of materials put forward in other actions which constituted an abuse of process. The defendant also apparently has other objections to the ASOC, but has not yet pursued them. These reasons are confined to what is necessary to deal with the issues raised on the present application for the filing of the ASOC.
The plaintiff is an admitted practitioner of this Court. He is a director of the legal firm, Commercial & General Law (“Commercial & General”), which represents him in this action. That firm is the successor to McNamara Business and Property Law (“McNamaras”) with which the plaintiff was associated and which represented him at an earlier stage of this action.
Paragraph 77 of the ASOC pleads:
77At all material times from November 2001, Tanya Hamilton-Smith (“Hamilton-Smith”) had a close personal relationship with the Plaintiff.
Nothing more is said about this relationship in the ASOC or the affidavits. In all the proceedings mentioned below Hamilton-Smith was represented by McNamaras.
The plaintiff was a director, employee and creditor of Bernsteen Pty Ltd (“Bernsteen”). This case is also concerned with the affairs of a connected company, Newmore…

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.

Continue reading VISCARIELLO v Macks (No 3)

Details

AGLC: VISCARIELLO v Macks (No 3) [2008] SASC 225
Case: [2008] SASC 225
Decision Date: 18 August 2008

CaseChat Overview and Summary

The plaintiff, Viscarelli, applied to file a new statement of claim in Viscarelli v Macks (No 3). The defendant, Macks, objected to the application on the ground that it included material obtained in other court actions that breached implied undertakings against the use of disclosed documents and information. The court was required to decide whether the defendant could waive the undertaking or if the court had to grant leave for the use of the documents and information. The court found that the primary question of whether there was a breach of the implied undertaking should be resolved in the court where the action was conducted, not in this court. The court also considered whether the implied undertaking was discharged once the documents or information had passed into the public domain. The court found that the plaintiff's application was dismissed, and the defendant was awarded costs. The court also considered the defendant's application for better discovery by the plaintiff of documents relating to his general financial affairs. The court found that the application was premature until proper particulars and/or an expert report had been supplied by the plaintiff. The application was adjourned to a date to be fixed. The court also dismissed subparagraphs 2.4 and 2.5 of the application, which were based on the plaintiff's failure to refer to privileged documents or documents no longer held by him. The court reserved costs of that application.

Orders