iSam Securities (UK) Ltd v Press (No 3)

Category: Procedural rulings

Parties: iSam Securities (UK) Ltd (First Plaintiff)
iSam Securities (HK) Ltd (Second Plaintiff)
iSam Securities (Global) Ltd (Third Plaintiff)
iSam Securities (USA) Inc (Fourth Plaintiff)
Matthew Press (First Defendant) (submitting appearance)
Forexco Australia Pty Ltd (Second Defendant) (submitting appearance)

Representation: Counsel:
Z Graus (Plaintiffs)
Solicitors:
Corrs Chambers Westgarth (Plaintiffs)

File Number(s): 2024/00263578

Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiffs, as applicants, seek a release from the Hearne v Street (2008) 235 CLR 125 obligation in respect of 40 documents previously discovered by Mr Matthew Press and Forexco Australia Pty Ltd.

2. The applicants wish to use those documents for the purposes of bringing an action in the courts of England and Wales against Mr Press and Forexco and others, in relation to a 2019 consultancy agreement, to which the applicants and Mr Press were parties.

3. The documents were produced after the applicants brought a preliminary discovery application seeking to ascertain the identity of prospective defendants and for the purposes of deciding whether to commence proceedings for misleading or deceptive conduct against Mr Press in this Court.

4. The outcome of that preliminary discovery application was that Richmond J ordered Mr Press to file an affidavit setting out his knowledge of certain matters and 42 documents were discovered as ordered: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036. These reasons assume knowledge of that judgment.

5. Each of the discovered documents has been reviewed by the applicants’ lawyers and advisers, and they consider that each of the documents is directly relevant to the claim to be brought in England and Wales.

Principles

6. The Court may release an applicant from the Hearne v Street obligation where the applicant can demonstrate “special circumstances”: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees), 225 (Wilcox J).

7. If the Court does find special circumstances, then it has a broad discretion as to whether or not to grant leave: Papantoniou v Stonewall Hotel Pty Ltd (2018) 19 BPR 38,547 at 38,553 (Barrett AJA, Beazley P and Ward JA agreeing).

8. “Special circumstances” does not require extraordinary factors. Instead, “good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes.”: Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] (Branson, Sundberg and Allsop JJ).

9. In Springfield Nominees at 225, Wilcox J identified matters which may be relevant in determining whether to exercise the discretion:

10. the nature of the document;

11. the circumstances under which the document came into existence;

12. the attitude of the author of the document and any prejudice the author may sustain;

13. whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

14. the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);

15. the circumstances in which the document came into the hands of the applicant; and

16. most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

Prospective proceedings

10. The applicants’ prospective proceedings concern the consultancy agreement, as noted. That agreement is governed by the law of England and Wales and has an exclusive jurisdiction clause in favour of the Courts of England and Wales.

11. The prospective proceedings will be pursued against Mr Press and Forexco and three other entities trading under the name ‘PTX Markets’ and associated with Mr Press (PTX Entities).

12. The solicitor for the applicants, who would be responsible for bringing the applicants’ claim in England and Wales, has given evidence that the prospective proceedings will plead:

13. breaches of the consultancy agreement, including breaches of non-compete obligations, good faith obligations, and confidential information protections;

14. breaches of the applicants’ terms of business with SRW Global, being one of the PTX Entities;

15. passing off by the PTX Entities through use of the applicants’ IDX symbol (which was used to identify the applicants as the source of pricing for the relevant instruments); and

16. breach of confidence through unlawful use of the applicants’ confidential product pricing information.

17. The documents the subject of the application can be grouped into four categories that are relevant to those four identified proposed claims:

18. 14 documents evidencing engagement between the prospective defendants and the applicants’ prospective clients during the consultancy agreement;

19. 10 documents evidencing activities undertaken by the PTX Entities in competition with the applicants during the consultancy agreement;

20. 18 documents evidencing trading volumes of the PTX Entities during the consultancy agreement; and

21. 6 documents evidencing the use of the applicants’ IDX symbol.

Consideration

14. I accept that there are special circumstances to release the applicants from the Hearne v Street obligation here for the following reasons.

15. First, having reviewed the documents in the context of the evidence and the applicants’ submissions, I accept that the documents are relevant to the prospective proceedings.

16. Secondly, I accept that the release of the documents will facilitate the efficient conduct of the prospective proceedings. I accept the applicants will be able to plead and particularise the case more specifically than if they did not have the documents at this point in time, and they were required to wait to for those documents to be produced through the processes of discovery in those prospective proceedings.

17. Thirdly, there is no prejudice to Mr Press and Forexco, as production of the documents at some time would seem to be inevitable.

18. Fourthly, Mr Press and Forexco, have filed submitting appearances and have been excused from attendance at the hearing today.

19. Finally, on balance I do not consider any of the considerations identified in Springfield Nominees provides a reason to refuse exercising the discretion here. The documents each appear to be ordinary business records of Mr Press and Forexco without any apparent commercial sensitivity. In any event, the use of the documents will be contained within the prospective proceedings and protections available there.

Orders

20. The applicants have appropriately not sought costs of the motion which has been unopposed.

21. I make the following orders:

22. The Plaintiffs are released from the Hearne v Street obligation in respect of the documents identified in Annexure A to these reasons, such that those documents may be used for the purposes of the prospective action in the courts of England and Wales against, inter alios, Mr Matthew Press, Forexco Australia Pty Ltd.

23. The directions hearing listed at 10:00am on Friday, 18 July 2025, in the Commercial List is vacated.

Annexure A (128 KB, pdf)

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