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[2012] FCA 1487
Federal Court of Australia
2012-12-21
Mr P, Ms J, Flick J
Original judgment source is linked above.
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicant: Mr P W Larkin SC with Mr M R Hall
Solicitor for the Applicant: Harris Wheeler Lawyers
Counsel for the First Respondent: Ms J A D Needham SC with Mr A F Fernon
Solicitor for the First Respondent: O'Neill Marengo Lawyers
Counsel for the Second Respondent: The Second Respondent submitted save as to costs
Counsel for the Third Respondent: The Third Respondent submitted save as to costs
Counsel for Mr B Yates and Yates Beaggi Lawyers: Ms C A Needham SC (29 October 2012 only)
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 630 of 2012
BETWEEN: PLATE GLASS HOLDINGS PTY LIMITED AS TRUSTEE FOR THE R GREGG FAMILY TRUST ABN 37 440 997 638
AND: FRASER GORDON INVESTMENTS PTY LIMITED ACN 124 311 904
JUDGE: FLICK J DATE OF ORDER: 21 DECEMBER 2012 WHERE MADE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 630 of 2012
BETWEEN: PLATE GLASS HOLDINGS PTY LIMITED AS TRUSTEE FOR THE R GREGG FAMILY TRUST ABN 37 440 997 638
AND: FRASER GORDON INVESTMENTS PTY LIMITED ACN 124 311 904
JUDGE: FLICK J DATE: 21 DECEMBER 2012 PLACE: SYDNEY
REASONS FOR JUDGMENT 1 An Originating Application and Statement of Claim were filed in this proceeding on 4 May 2012. The Applicant was Plate Glass Holdings Pty Limited ("Plate Glass Holdings"). Mr Roger Gregg was the sole director of Plate Glass Holdings. An Amended Originating Application and Amended Statement of Claim were filed on 29 August 2012. 2 The Amended Originating Application named three Respondents: Fraser Gordon Investments Pty Limited ("Fraser Gordon Investments") as the First Respondent; DDH Nominees Pty Limited as the Second Respondent ("DDH Nominees"); and Unicorn Holdings (NSW) Pty Limited as the Third Respondent ("Unicorn Holdings"). Mr Fraser Short was the sole director of Fraser Gordon Investments; Mr John Duncan was the sole director of DDH Nominees. One of the claims for relief was an order that shares in a company, Suckinvoice Pty Limited ("Suckinvoice"), be transferred to Plate Glass Holdings. As at September 2010 Plate Glass Holdings and Unicorn Holdings were the shareholders of Suckinvoice. 3 A Defence was filed on 4 June 2012. No Amended Defence was filed on behalf of Fraser Gordon Investments following the amendments to the Statement of Claim on 29 August 2012. The Second and Third Respondents filed submitting appearances. 4 Directions hearings were held on 6 June 2012 and 2 August 2012. Affidavits were filed. Leave was also given on 10 August 2012 to issue subpoenas addressed to: Roomservice Management Pty Limited; Mr Anthony Russell; Mr Duncan Dovico; and Yates Beaggi Lawyers Pty Limited ('Yates Beaggi Lawyers'). Documents were produced to the Court in answer to these subpoenas. 5 The hearing commenced on 29 August 2012. There was a short opening and an Affidavit sworn on behalf of the Applicant by Mr Roger Gregg was read and objections resolved. There was limited cross-examination. A claim for client legal privilege was made in respect to the documents produced on subpoena by Mr Russell. In support of that claim two Affidavits were sworn by Mr Brenton Yates, a solicitor at Yates Beaggi Lawyers. The first Affidavit had only the advantage of brevity; the second advanced the claim for privilege little further. There was cross-examination on the voir dire of Mr Yates. The claim for privilege was resolved. The hearing resumed on 3 September. Mr Short had sworn two Affidavits on behalf of Fraser Gordon Investments. Those Affidavits were read and the cross-examination of Mr Short proceeded on 3 and 4 September 2012. The hearing was stood over part-heard to 10 September 2012. 6 On 10 September 2012 Senior Counsel for Fraser Gordon Investments informed the Court that his client had "withdrawn" its Defence. 7 Orders were made that day for the disposition of the proceeding. Order 5 reserved liberty to Plate Glass Holdings, Mr Roger Gregg and Suckinvoice Pty Ltd to apply to be released from the "implied undertaking" to use the documents produced on subpoena solely for the purposes of the proceeding. 8 An Interlocutory Application was filed seeking an order that Plate Glass Holdings, Suckinvoice and Mr Gregg be released from the implied undertaking. 9 Senior Counsel for Fraser Gordon Investments opposed the orders sought in the Interlocutory Application. Mr Yates and Yates Beaggi Lawyers also sought to be heard in relation to the orders sought. Such a course was not opposed by the parties to the proceeding and leave was thus granted. Senior Counsel for Mr Yates and Yates Beaggi Lawyers also opposed the making of those orders. 10 The hearing of the Interlocutory Application commenced on 29 October 2012 and continued on the following day and on 6 November 2012. In response to a submission advanced by Senior Counsel for Fraser Gordon Investments, the Interlocutory Application was amended on 30 October 2012 in three relevant respects, namely: to make clear that it was Plate Glass Holdings, Mr Gregg and Suckinvoice that were applying for the orders sought; to seek orders releasing all three from the implied undertaking; and to seek orders permitting Plate Glass Holdings, Mr Gregg and Suckinvoice to undertake investigations for specified purposes, including the possible institution of proceedings by Suckinvoice. In the absence of those amendments, Plate Glass Holdings and Mr Gregg faced the prospect that they may have been released from the implied undertaking but that the company that may seek relief in any fresh proceeding - Suckinvoice - would remain subject to that undertaking. Subject to an order being made awarding Fraser Gordon Investments the costs thrown away by reason of the amendment, there was no real objection by Senior Counsel for Fraser Gordon Investments. 11 It is concluded that Plate Glass Holdings, Mr Gregg and Suckinvoice should be released from the implied undertaking in relation to a limited number of documents and that that release should be for limited purposes.
THE CLAIMS MADE AND RESOLVED 12 The material facts as set forth in the Statement of Claim, and as summarised in the opening of the case for Plate Glass Holdings on 29 August 2012, should be briefly set forth. 13 It would appear that in mid-2010 Mr Gregg wished to develop a fully automated computing/software system for taking electronic sales invoices provided by suppliers, repackaging them into a standard format and hosting them in a manner that permitted proposed customers to import the data into their accountancy software. 14 He approached Mr Short with a proposal to establish a new company to develop and exploit the concept. Mr Short invited Mr Duncan to be involved. The proposal was that Mr Gregg would develop the system and Messrs Short and Duncan would provide the finance. 15 On about 15 September 2010 Suckinvoice was incorporated for this purpose. As at approximately 30 September 2012, its shareholders were Plate Glass Holdings as to 50% and Unicorn Holdings as to 50%. 16 On or about 30 September 2010 a Shareholders' Agreement was entered into between Plate Glass Holdings, Unicorn Hotel Pty Limited and Suckinvoice. That Shareholders' Agreement provided in cl 3.1 for each shareholder to pay $15,000 "by way [of] initial capital". Clause 3.2 of that agreement further required Unicorn Holdings to provide written notice by 1 March 2011 advising whether it wished to retain its 50% shareholding. If it wished to retain its shareholding, cl 3.3 provided for the payment of "an amount not exceeding $250,000 … less any amounts already paid …". 17 In about February 2011 Messrs Short and Duncan decided that Unicorn Holdings would no longer be a shareholder and they wanted the shares transferred to other companies controlled by them. Thereafter the shares held by Unicorn Holdings were transferred to Fraser Gordon Investments and DDH Nominees. 18 In very summary form, Plate Glass Holdings contended that: the September 2010 Shareholders Agreement was subject to a novation that occurred in February 2011 whereby that Agreement continued as an agreement between Plate Glass Holdings, Fraser Gordon Investments and DDH Nominees; the monies required to be paid in accordance with cl 3.3 were not paid; and an order should be made requiring DDH Nominees and Fraser Gordon Investments to transfer of the shares previously held by Unicorn Holdings to Plate Glass Holdings. Subsidiary questions concerned whether: the Shareholders Agreement was subject to an implied term that neither shareholder would transfer its shareholding without the consent of the other; notice had been given in accordance with cl 3.2; the provision of notice was a condition precedent to the exercise of the right conferred by cl 3.5; and Fraser Gordon Investments and DDH Nominees engaged in misleading or deceptive conduct by representing to Mr Gregg that Plate Glass Holdings' rights under the Shareholders' Agreement would not be affected by him consenting to the transfer of the shares previously held by Unicorn Holdings to those two corporate entities. Mr Gregg resigned as a director of Suckinvoice in October 2011. Although his departure was variously characterised in oral submissions as him being "frozen out" or as a "resignation", the fact is that from that point he had no knowledge of the affairs of Suckinvoice until he resumed control in September 2012. 19 The relief sought included declarations of right, an order for the transfer of shares, damages for breach of contract and pursuant to the Australian Consumer Law and costs. 20 Given the withdrawal by Fraser Gordon Investments of its Defence, it is unnecessary to resolve any factual issue that would otherwise have arisen had the matter proceeded to judgment. 21 Relevantly for present purposes, the orders sought and made on 10 September 2012 included orders for the transfer of shares in Suckinvoice. No damages were awarded.
THE IMPLIED UNDERTAKING 22 During the course of the hearing of the present Interlocutory Application at least five propositions were common ground as between the parties, namely: (i) the documents produced to the Court pursuant to each of the subpoenas were subject to an "implied undertaking" that they would only be used for the purposes of resolving the proceeding in which the subpoenas had been issued; (ii) an "implied undertaking" ceases upon the documents being admitted into evidence in open court; (iii) the Court has a discretionary power to release a person from the "implied undertaking"; (iv) the discretionary power "is not freely exercised, but it will be exercised when special circumstances appear"; and (v) the onus lies upon those who seek to be released from the undertaking to persuade the Court that such an order should be made. It was the application of these general propositions that divided the parties. 23 In the absence of an order to the contrary, it was thus accepted that documents which are produced to a superior court pursuant to the compulsory processes of that court - such as a subpoena - can only be used for the purposes of the proceeding in which they are produced. Documents so produced cannot be used for any "collateral or ulterior" purpose. The limitation upon the use of documents so produced is founded (at least in part) upon protecting the public interest in the administration of justice. Any intrusion upon the privacy of those compulsorily required to produce documents is to be no greater than is necessary to ensure that justice is done between the parties. See: Groves, The implied undertaking restricting the use of material obtained during legal proceedings (2003) 13 Aust Bar Rev 314. 24 Although this constraint upon the use of documents so produced is commonly referred to as an "undertaking", there is nothing voluntary about it; the constraint is a substantive obligation. Thus, in Hearne v Street [2008] HCA 36, 235 CLR 125 Hayne, Heydon and Crennan JJ set forth the reach of the "implied undertaking" as follows: [96] Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. … In concluding that the "implied undertaking" is an obligation of substantive law, their Honours went on to observe: [106] The fact that the role of the word "undertaking" is merely to indicate the way in which an "obligation" which is "imposed by law" as a "condition" of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the "undertaking"… [107] The expression "implied undertaking" is thus merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering "a very serious invasion of the privacy and confidentiality of [their] affairs", any burden which is "harsher or more oppressive … than is strictly required for the purpose of securing that justice is done.'… Gleeson CJ agreed with Hayne, Heydon and Crennan JJ: [2008] HCA 36 at [3], 235 CLR 125 at 131. 25 The concern of courts to ensure that documents produced pursuant to their compulsory processes are used only for the purposes of resolving the proceeding in which they are produced has often been repeated and has long been recognised. In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33, for example, Mason CJ had observed: In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated: "A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit … nor to use them or copies of them for any collateral object … If necessary an undertaking to that effect will be made a condition of granting an order." Because an undertaking is implied, it has not been the practice to condition the making of 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. 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, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation. McHugh and Dawson JJ agreed with Mason CJ. "The implied undertaking is an endeavour to balance the intrusion into privacy by the compulsory production of documents necessary to do justice, with maintenance of privacy otherwise": Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 at [14], 58 ATR 113 at 116 per Giles JA (Hodgson and Ipp JJA agreeing). See also: Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345 at [13]-[16], [2011] 1 Qd R 145 at 149-150 per McMurdo P (Muir JA agreeing); [2009] QCA 345 at [26]-[41], [2011] 1 Qd R 145 at 152-154 per Chesterman JA. 26 But, as stated by Mason CJ in Esso Australia, "once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it". Once a document is adduced in evidence "… the open court principal (sic) necessarily overrides the right of privacy": Clone Pty Ltd v Players Pty Ltd (In Liquidation Receivers Appointed) [2012] SASC 12 at [181] per Kourakis J. Whether any "right of privacy" is overridden by adducing a document in evidence may be left to one side; any suggestion that confidentiality in documents produced pursuant to the compulsory processes of the Court and adduced in evidence is maintained is inconsistent with the document now being "in the public domain". For the confidentiality in such documents to be lost, however, a mere reference in open court to "… the nature of the document or its general subject matter will not suffice … [w]hat is required, as a minimum, is a disclosure of the substance of what is stated in the document": Forty Two International Pty Ltd v Barnes [2010] FCA 397 at [86] per Yates J. 27 It has also long been recognised, however, that a Court may release a party from the "implied undertaking". In discussing the circumstances in which such an order may be made, Brennan J in Esso Australia Resources said: But such an undertaking "can, in appropriate circumstances, be released or modified by the court". That dispensing power is not freely exercised, but it will be exercised when special circumstances appear. In the Federal Court, special circumstances have been held to exist where "there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present". It is unnecessary to consider whether the dispensing power should be so broadly defined. It is relevant to note only that the obligation enforceable as an undertaking to the court in the case of a curial order is not unqualified: (1995) 183 CLR at 37. More recently, in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3, 218 ALR 283 Branson, Sundberg and Allsop JJ expressed the principles to be applied as follows: [31] In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, 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. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. This list of "considerations" is, obviously enough, not exhaustive. See also: James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722 at [26]-[28], 292 ALR 673 at 678-679 per Edmonds J. 28 The "… public interest in discovering the truth so that justice may be done between the parties … is to be put into the scales against the public interest in preserving privacy and protecting confidential information": Riddick v Thames Board Mills Ltd [1977] QB 881 at 895. Lord Denning MR there also went on to observe: … The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice … : [1977] QB at 896. See also: Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60 at [8] per Buss JA; Deputy Commissioner of Taxation v Karas [2012] VSC 143 at [39] per J Forrest J. 29 In determining whether an order that a person be released from an "implied undertaking" should be made, it is not necessary for a Court to be satisfied that "any particular end of justice will be furthered" by the use of a particular document otherwise subject to the undertaking: Liberty Funding [2005] FCAFC 3 at [33], 218 ALR at 290. There in issue was whether an Affidavit which had been sworn for the purposes of a proceeding in this Court by an officer of the Respondent (Mr Jeffery) and filed but not read in that proceeding could be used in another proceeding in the Supreme Court of Victoria. In permitting the use of the Affidavit, Branson, Sundberg and Allsop JJ there further observed: [33] … It should be recognised, of course, that any use in the Supreme Court proceedings will be under the restriction of a similar implied undertaking as to the use for the purposes of the proceedings in the Supreme Court. While the Jeffery affidavit might not have been intended to reach the public domain, given the width of the permitted purpose, information within the Jeffery affidavit was likely to reach the public domain if the matter was litigated. It is not said that the Jeffery affidavit contains personal data or commercially sensitive information. If it does, its use will be able to be protected both by the implied undertaking in the Supreme Court or by any necessary confidentiality orders. While it cannot be said categorically that any particular end of justice will be furthered by the use of the Jeffery affidavit in the Supreme Court proceedings, it seems to us appropriate that, to the extent that it deals with issues relevant to the resolution of the controversy in the Supreme Court, the Supreme Court should have available to it relevant material, including such an affidavit, sworn in an earlier proceeding, which may illuminate matters in the Supreme Court. It is sufficient if a Court is satisfied that releasing a party from an "implied undertaking" opens up "avenues of inquiry": Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 220. An application was there made to use a witness statement prepared but not used in one proceeding in a different proceeding. In that decision Wilcox J made clear that an order may be made releasing a party from the "implied undertaking" for the purpose of enabling the party to pursue "avenues of inquiry". His Honour observed (at 220): … Counsel for Hongkong Bank mentioned the possibility of calling Mr Preston, using the statement as his evidence in chief. Whether that course will eventually commend itself, I do not know. But, even if Mr Preston is not called by either party, it is possible that the statement will prove useful in opening up avenues of inquiry. Without wishing to predict the most likely form of use, I think it probable that the statement will assist Hongkong Bank in relation to the Aetna claim. No doubt that is why Aetna opposes the order now sought. Apprv'd: Forty Two International Pty Limited v Barnes [2010] FCA 397 at [72] per Yates J. His Honour notes Wilcox J's observation that "perhaps the most important consideration of all in considering whether leave should be granted is the likely contribution of the documents in achieving justice": [2010] FCA 397 at [98]. 30 One consideration which is not expressly referred to in Liberty Funding is whether the document or documents disclose wrongdoing. Just as the "implied undertaking" is founded upon the need to protect the public interest in the administration of justice, it is also to be recognised that there is a public interest in disclosing (for example) criminal conduct. 31 In Australian Trade Commission v McMahon (1997) 73 FCR 211 the Commission sought to be released from an "implied undertaking" in respect to documents it had received during the course of proceedings before the Administrative Appeals Tribunal. The Commission sought to use those documents for "the purpose of investigating possible criminal conduct". In releasing the Commission from the "implied undertaking", Lehane J observed: … The general principle is, no doubt, that a release of the implied undertaking will be given only if "special circumstances" are established: Crest Homes plc v Marks [1987] AC 829. Where an application for release is decided in contested proceedings, it seems that "special circumstances" will fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings: see, for example, Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. Where an authority or person charged with the investigation of possible criminal conduct is a party to a proceeding and obtains, through for example documents discovered in the proceeding, information suggesting that criminal conduct, of a kind which the authority or person is charged to investigate, the public interest seems to me to require, in most cases at least, that permission be given to use the information for that purpose. Once that step is taken, it seems to me difficult to resist the next step: if the public interest accepts the necessity of secrecy in the conduct of criminal investigation, particularly as to the issue of warrants, an authority ought, in a proper case, to be able on ex parte application, without notice, to obtain leave to use for that purpose information the subject of a Harman implied undertaking. His Honour there placed reliance upon the status of the person applying for a release as a person or authority "charged to investigate" criminal conduct. 32 In Rank Film Distributors Ltd v Video Information Centre (A Firm) [1982] AC 380 at 447 reference was made to the prospect of answers to interrogatories tending to show that a party has been "guilty of a serious offence" and to there being nothing "improper in his opponent reporting the matter to the criminal authorities with a view to prosecution". Notwithstanding these observations, a possibly more cautious and qualified approach has been embraced in Australia: Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476. Lee J there referred to the Rank Film decision and went on to conclude: Does it then follow that a party who, through discovery, has come into possession of documents which disclose the commission of a criminal offence may, as of right, disclose them to the criminal authorities? In my opinion, it does not. To so conclude one would have to be able to say that in every case where the criminal law is infringed, the public interest in pursuing a prosecution in respect of that infringement outweighs the public interest in ensuring the integrity of the discovery process. However, the law is not so black and white. Indeed the plaintiff conceded that it will not be in every case where the criminal law is infringed that the Court will grant the leave sought: … The infringement may be of a trivial or inconsequential nature or the application for leave might be brought, not for the purpose of promoting the public interest, but rather out of malice or spite on the part of the applicant: … Moreover, the disclosure may have been brought about by circumstances in which the respondent was unable to claim a privilege otherwise open to him, e.g. through the compulsion of an Anton Pillar order. In such a case, the respondent may have a legitimate right to have the order set aside … and that is a factor which may render it unfair or unjust for the Court to grant the leave sought. All of the circumstances must be looked to in order to determine the nature and extent of the countervailing public interest raised: [1995] 1 Qd R at 486. Where the Commonwealth is a party to a proceeding, it too - like any other party - requires the leave of the Court to use documents it has acquired through the compulsory processes of the Court for a "collateral or ulterior" purpose: Commonwealth v Temwood Holdings Pty Ltd [2001] WASC 282 at [41], 25 WAR 31 at 39 per Pullin J. 33 Other than to recognise that the notion of "special circumstances" does not require a party seeking to be released from the "implied undertaking" to establish "extraordinary factors", it would be neither wise nor possible to attempt any exhaustive list of what would constitute "special circumstances" in a given case. 34 Finally, it needs to be remembered that the onus lies upon those who seek to be released from the undertaking to use documents only for the purposes of the proceeding in which they were produced and that "discharging that onus and persuading the court to relax or waive those obligations is no easy matter": Northbuild Constructions [2009] QCA 345 at [13]; [2011] 1 Qd R 145 at 149-150 per McMurdo P. 35 It was assumed throughout that these were the same principles to be applied when considering r 20.03 of the Federal Court Rules 2011 (Cth). Indeed, the application of that rule was not referred to during the course of either written or oral submissions. That rule, however, provides as follows: Undertakings or orders applying to documents (1) If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies. (2) However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document. The current rule had as its predecessor O 15 r 18 of the now-repealed Federal Court Rules. The principles to be applied when interpreting this rule were reviewed by Edmonds J in ThoughtWeb Systems Pty Ltd v Loughnan (No 2) [2006] FCA 432 at [11]-[25], 230 ALR 515 at 521-523. There is no reason why the current rule should be interpreted in any different manner to the former O 15 r 18.
SPECIAL CIRCUMSTANCES 36 The purposes for which Plate Glass Holdings, Mr Gregg and Suckinvoice seek to be released from the "implied undertaking" were expressed in the written Outline of Submissions initially filed on behalf of Plate Glass Holdings as follows: (i) To provide them to Suckinvoice Pty Limited so that that company may then use them to determine what has become of its assets, including particularly its intellectual property assets, and of its liabilities, during the period that Plate Glass Holdings and Mr Gregg have been out of the management of that company. (ii) To investigate breaches of duty committed towards that company or Mr Gregg and, report any such breaches to the relevant authorities. 37 These purposes, it is respectfully considered, fall into three - and not two - categories, namely: documents which are sought to be used to - in effect - trace the assets of Suckinvoice and to determine its liabilities; documents which may disclose other "breaches of duty committed towards" Suckinvoice; and documents which may disclose "breaches" which would then be reported "to the relevant authorities". It is respectfully concluded that there should be a limited release from the "implied undertaking" in respect to particular documents. "Special circumstances" or - to use the language of Branson, Sundberg and Allsop JJ in Liberty Funding - "good reason", it is concluded, has been demonstrated sufficient to release Plate Glass Holdings, Mr Gregg and Suckinvoice from their "implied undertaking" in respect to some of the documents. 38 Rejected at the outset are the submissions advanced by Senior Counsel on behalf of Fraser Gordon Investments that Plate Glass Holdings, Mr Gregg and Suckinvoice were engaging in nothing other than a "fishing exercise" and that they could not "identify any matter to be pursued by it or on behalf of Suckinvoice that proceeds beyond mere speculation". Contrary to these submissions, it is concluded that the execution of the Deed of Release (for example) at a time when Mr Gregg was not participating in the affairs of Suckinvoice - and the very terms of the Deed of Release - certainly invite scrutiny. So, too, does the conduct of Mr Short.
The tracing of assets & liabilities 39 The principal argument raised on behalf of Plate Glass Holdings, Mr Gregg and Suckinvoice focussed upon a Deed of Release produced on subpoena by Mr Russell. This Deed was a deed between Suckinvoice and Alicia Hannan trading as Verdet Technologies ("Verdet"). Ms Hannan was the wife of Mr Russell and the sister of Mr Luke Hannan - a close friend of Mr Short. The Deed was signed on 23 January 2012 - after Mr Gregg ceased to be a director of Suckinvoice and before the orders were made on 10 September 2012. Prior to its production by Mr Russell, neither Plate Glass Holdings nor Mr Gregg had a copy of the Deed. 40 The Deed recited by way of background an agreement whereby Suckinvoice had "agreed to grant a licence to Verdet to use Existing IP and Existing Confidential Information" and Verdet had agreed "to waive its rights to seek payment from [Suckinvoice] of the Invoices". Clause 1.1 of the Deed provides as follows (without alteration): 1.1 Definitions Claim means any action, complaint, suit, cause of action, proceeding, claim or demand. Confidential Information means any information belonging or relating to the Company or any related company not already in the public domain, including but not limited to: financial information; products; service costs; prices; profit and sales figures; new business ideas; business strategies; product and service plans; marketing plans and studies; forecasts; computer codes; software ideas; concepts and designs; intellectual property; research; customer records and product designs. Existing Confidential Information means the Confidential Information that the Company has as at the date of this deed. Existing IP means the Intellectual Property Rights that the Company owns, or has a right to use as at the date of this deed. Intellectual Property Rights means all intellectual property rights, whether or not now existing, protected by statute or common law in Australia or elsewhere in the world, including copyright, trade marks, designs, patents, patentable information, circuit layouts, licences and other rights to possess and use the works and other subject matter of intellectual property rights, trading names and domain names, but excluding moral rights (to the extent they cannot be assigned) and any inventions, ideas, discoveries and improvements whether patentable or unpatentable. Invoices means Verdet's invoices 101 (dated 10 May 2011) and 102 (dated 13 April 2011). Verdet means Alicia Hannan and any of her employees, agents or contractors. The trade mark "SUCKINVOICE" has apparently been registered in classes 35, 37 and 42 of the Trade Mark Register in the name of Fraser Gordon Investments. 41 Plate Glass Holdings, together with Mr Gregg and Suckinvoice, seek to use a number of identified documents for the purposes of (inter alia) investigating whether the directors of Suckinvoice were acting bona fide in the interests of the company when executing the Deed of Release in January 2012. The validity of the consideration ostensibly given by Verdet for the grant of the licence, it is further submitted, should also be investigated. 42 The documents in respect to which a release from the implied undertaking was sought were identified in the written submissions of Plate Glass Holdings as follows (without alteration): 1. The deed of release produced by Verdet. 2. Email chain between Mr Yates, Mr Short, and was beginning 3 August 2010, produced by Yates Beaggi. 3. Email chain between Mr Short and Mr Yates beginning 11 August 2010 (Yates Beaggi). 4. Email of 13 September 2010, Mr Short to Mr Yates (Yates Beaggi). 5. Email, Verdet to Mr Short 21 January 2011 (Verdet). 6. Email chain, Verdet and Mr Short beginning 17 March 2011 (Verdet). 7. Email Mr Short to Mr Russell 5 April 2011 and reply dated 6 April 2011 (Verdet). 8. Emails, Ms Hannan to Mr Short 14 April 2011 and 12 May 2011 (including electronic version) (Verdet). 9. Email chain beginning 23 May 2011, Mr Short to Mr Russell, Mr Cain and ors (Verdet). This list of documents was supplemented during the course of the hearing of the Interlocutory Application by a list which identified the specific documents in respect of which a release was sought and whether each document had been the subject of cross-examination. To some extent such cross-examination went beyond a mere reference in open court to the existence of a particular document and went beyond a mere reference to the "general subject matter" of a document. The "substance" of some documents has thus already been disclosed such that their contents are already "in the public domain". 43 Any consideration as to whether "good reason" has been demonstrated such as to warrant a release from the "implied undertaking" must thus necessarily recognise at the outset that there has already been considerable cross-examination upon either the contents of some of the subpoenaed documents or the documents themselves. 44 It must further be recognised that the cross-examination of Mr Short was directed to both the "hard copy" of a particular invoice and to earlier "electronic versions". 45 The cross-examination of Mr Short thus exposed considerable detail as to some of the subpoenaed documents. There was (for example) cross-examination in respect to both: the "electronic version" of particular invoices; and the absence of any explanation by Mr Short (for example) "as to why [a] bill from a supplier should be last saved by [him] and created about … exactly a month after its date". Without attempting to be exhaustive, reference may be made to the following exchange between Mr Short and his cross-examiner (without alteration): In respect of the second one, do you have any explanation for why a document bearing the date 10 May 2011 was created on 13 May 2011?---I have no recollection of this document. Do you offer any explanation as to how that could be so to his Honour?---Sitting here now, without having time to go through it, I just don't recall this document. Do you have any explanation for his Honour as to how it could be that you were the last person to save the document?---That I got sent it and I save it. In any event, if you were sent it that would be reflected in the documents produced on subpoena by Mr Russell, wouldn't it?---I don't agree with that, no. I see. Do you recall receiving it?---I don't recall this document. Do you recall receiving the tax invoice in the amount of $77,000?---I don't recall specific invoices, no. I see. All right. You see what you wanted to do was to increase the amount of the Verdant bills in order to put pressure on Mr Gregg?---No. We've seen that on 7 April you said to Mr Russell that you wanted him to be well paid. Do you recall that?---Yes. There had also been earlier cross-examination on the e-mails forwarding the invoices to Mr Short and the different e-mails recording different amounts payable. 46 Anticipating the reliance likely to be placed by Fraser Gordon Investments on the extent of the cross-examination that had already taken place, Senior Counsel for Plate Glass Holdings: accepted that there may have been a more intense focus on the conduct of Mr Short during the course of that cross-examination; but further contended that such cross-examination did not focus the same attention upon: the conduct and knowledge of Mr Russell; or the Deed of Release itself. He further submitted that the information disclosed by the transcript of evidence would fall short of putting Suckinvoice in the position where it could either commence proceedings seeking (for example) an order setting aside the Deed of Release or perhaps preliminary discovery in advance of commencing any such proceeding. Accepting the requirements set forth in r 7.23 of the Federal Court Rules 2011 as an appropriate yardstick, Senior Counsel contended that the existing transcript would not provide a sufficient basis for the requirement that there be a reasonable belief as to a right to obtain relief. The requirement that a prospective Applicant have a reasonable belief as to a right to obtain relief from a prospective Respondent, it was submitted, could only be founded upon the documents which were subject to the implied undertaking. But, without being released from the implied undertaking, reliance could not be placed upon the information within those documents. 47 Even if there was sufficient material to be discerned from the transcript of Mr Short's cross-examination, a fall-back position for Plate Glass Holdings, Mr Gregg and Suckinvoice was that an ability to obtain preliminary discovery was not (in any event) a reason why there should be no release from the implied undertaking. 48 Although it is unquestionably the fact that the contents of some of the subpoenaed documents have been disclosed during the cross-examination, it is concluded that there should be an order made releasing Plate Glass Holdings and Mr Gregg and Suckinvoice from the implied undertaking in respect to: the Deed of Release; and those documents upon which there has been either cross-examination on the subject matter of the document or those documents which had been put to a witness during the course of the cross-examination. These are the following documents, identified by reference to the person or entity that produced the document on subpoena: Documents produced by Yates Beaggi Lawyers Pty Limited Email chain, 4/8/10 1.58 pm and 12.06 pm Email 3/8/10 5.10 pm with BY comments inserted. Email chain 11/8/10 9.52 pm to 4/8/10 3.13 pm (including enclosed draft deed). Email 13/9/10 12.42 pm Email 14/4/11 4.37 pm (including attachment and electronic version) Email chain 23/5/11 2.26 pm to 11.31 am Documents produced by Anthony Russell Email chain 6/4/11 8.12 am and 5/4/11 8.43 pm Email 14/4/11 6.57 pm (Hannan to Short), including enclosure and including electronic version Email 12/5/11 11.50 am (Hannan to Short), including enclosure and including electronic version Email chain 14/5/11 11.57 am and 9.18 am, including enclosures and including electronic version Email chain 23/5/11 1.27 pm to 11.16 am Documents produced by Roomservice Pty Limited Email 14/4/11 5.07pm (Note - also produced by Yates Beaggi Lawyers) 49 The Deed of Release warrants separate consideration. There was no cross-examination upon that Deed or its contents. The Deed was not admitted into evidence. Indeed, there was no express reference to the Deed of Release at any stage during the course of the hearing of the substantive proceeding. There should nevertheless be a release from the implied undertaking in respect to this document. To not so order may well place Plate Glass Holdings, Mr Gregg or Suckinvoice in a position where they were unable able to freely use the document potentially of critical importance to any future litigation. 50 The conclusion that there should be a release from the "implied undertaking" in relation to these documents, it is respectfully considered, effects an appropriate balance between: the need for caution or reservation when exercising the discretionary power and the need to preserve the privacy of those producing documents to the Court pursuant to its compulsory processes; as against the need to ensure that justice is done, including justice to those seeking a release from the implied undertaking. The factual issues pursued during the substantive proceeding before Fraser Gordon Investments withdrew its Defence, it is concluded, raises considerable cause for concern as to Mr Short's conduct and whether he was acting in a manner consistent with his duties, including his duties to Suckinvoice. It would do less than justice to those to whom he owed duties if documents which may expose his conduct could not be used for the purposes identified. 51 Special circumstances have been demonstrated for releasing Plate Glass Holdings, Mr Gregg and Suckinvoice from their "implied undertaking" so as to enable some of the documents produced on subpoena to be used for the first of the purposes identified. To the extent that the privacy of those who produce documents to the Court pursuant to its compulsory process is diminished, such is the necessary consequence of enabling justice to be done as between the Applicants for the release on the one hand and Mr Short and his company Fraser Gordon Investments on the other. There is an acknowledged "… public interest in discovering the truth so that justice may be done between the parties …": Riddick [1977] QB 881 at 895 per Lord Denning MR. 52 The conclusion that there should be a limited release from the "implied undertaking" is only reinforced when consideration is given to the second of the purposes relied upon by the Applicants.
Breaches of duty 53 The second purpose for which a release from the undertaking was sought by Plate Glass Holdings, Mr Gregg and Suckinvoice was to enable investigations to be undertaken into whether there had been "breaches of duty" committed towards Suckinvoice. 54 This purpose was more fully expressed in Plate Glass Holdings' written outline of submissions as being to enable Plate Glass Holdings, Suckinvoice and Mr Gregg to investigate: • Whether Mr Short, or any other officer of Suckinvoice, breached any fiduciary or other duty to Suckinvoice by his conduct of the affairs of the company, including in relation to the raising of invoices by Roomservice and Verdet and the transfer or licensing of any asset of Suckinvoice; • Whether Mr Yates was at any time in breach of fiduciary or other duties he may have owed to Suckinvoice or its members, particularly whether he preferred the interests of one of those members (Mr Short) over the interests of the company or of all of its members; • Whether Mr Short induced or participated in such breaches by Mr Yates; • Whether any other person knowingly assisted any such breaches, or knowingly received property tainted by such a breach. 55 If attention is initially confined to the conduct of Mr Short, there seems to be a factual basis accepted by Mr Short for concluding that his conduct was less than what may otherwise have been desirable. The prospect that Mr Short may have engaged in conduct which constitutes a breach of duty owed to others, including Suckinvoice, can certainly not be characterised as "speculation". 56 It is unnecessary for present purposes to form any view as to Mr Short's credibility. Any need to do so was removed by the withdrawal of Fraser Gordon Investments' Defence. It is nevertheless prudent, perhaps, to record the following exchange during his cross-examination: In any event, you accept that the exchanges that we just went through shows a high degree of duplicity on your part, doesn't it?---It does - these were - well - - - The answer is yes, isn't it?---It appears to be. It is sufficient for present purposes to conclude that the evidence of Mr Short during cross-examination was such that Mr Gregg could justifiably be concerned about the integrity of Mr Short's dealings. 57 If attention is focussed upon Mr Yates, there also seems to be an accepted basis for concluding that he too may have placed himself in a position of conflict and potentially breached duties owed to Suckinvoice. According to the written submissions filed on behalf of Mr Yates, it seems to be accepted that Mr Yates was in a position of "conflict" but that "[t]he conflict was unintentional". 58 The pursuit of this secondary purpose also constitutes "good reason" for releasing Plate Glass Holdings, Mr Gregg and Suckinvoice from the implied undertaking. 59 To some extent the conclusion that there should be a release from the "implied undertaking" in respect to some documents is founded upon: the fact that the substance of some of the documents is already in the "public domain"; together with the fact that: the very existence of the Deed of Release, let alone its terms, was unknown to Mr Gregg until it was produced on subpoena by Mr Russell; the conduct engaged in by Mr Short was unknown to (and could not be known by) Mr Gregg; and there is a sound basis - not a speculative basis - for questioning whether the conduct of Messrs Short and Yates involved any breach of duty. Although it is accepted that a release from the "implied undertaking" in respect to some (but not all) of the documents produced on subpoena may continue to hamper the pursuit of the principal purpose sought to be advocated by the Applicants, that limited release will effect an appropriate balance between the interests of those seeking to be released from the undertaking as opposed to the interests of those producing documents on subpoena in preserving their privacy in those documents. 60 This secondary purpose warrants no greater variation of the ambit of the "implied undertaking" than that already contemplated. 61 "Justice … between the parties" would not be done if there was not a release from the "implied undertaking" to enable Plate Glass Holdings, Mr Gregg or Suckinvoice to pursue this secondary purpose.
A reference to the regulators 62 The final purpose for which a release from the implied undertaking was sought was to enable further investigations to be undertaken in respect to the conduct of both: Mr Yates and Yates Beaggi Lawyers; and Mr Short and Fraser Gordon Investments The documents relevant to the conduct of Mr Yates and Yates Beaggi Lawyers could (perhaps) be most relevantly referred to: the New South Wales Legal Services Commissioner. The conduct of Mr Short and Fraser Gordon Investments could (perhaps) be referred to either: the New South Wales Police; or the Australian Securities and Investments Commission. 63 It is concluded that no order should be made to enable Plate Glass, Suckinvoice or Mr Gregg to use the subpoenaed documents for any such purpose. 64 The position of Mr Yates and Yates Beaggi Lawyers need to be separately addressed. Some of the written submissions advanced by Senior Counsel on their behalf were misplaced. The submission, for example, that Mr Yates was cross-examined on "matters not relevant to any issues in the proceeding", was without substance. But such submissions may be left to one side. 65 When considering the present application, there is (again) no clearly defined line between the purposes sought to be pursued. In respect to Mr Yates, for example, one purpose sought to be pursued is to investigate whether "Mr Yates was at any time in breach of fiduciary or other duties he may have owed to Suckinvoice or its members"; another purpose is to investigate and communicate with the Legal Services Commissioner "about any breaches of solicitor's duties to Suckinvoice or its shareholders". 66 Mr Yates, on any view of the facts, found himself in a difficult position. Mr Yates knew Mr Fraser Short far better than Mr Roger Gregg. Mr Yates was Mr Short's brother-in-law, Mr Short having married Mr Yates' sister in 2010. It was on 5 April 2011 that a meeting was held "to sort out the share issue" and to resolve who had "opted in" by the payment of the amounts required by cl 3 of the September 2010 Shareholders' Agreement. By that stage there had been some falling out between the original shareholders. It was thus not surprising that Mr Yates was taken to his knowledge of the emerging conflict between the interests of the shareholders as follows: By no later than the conclusion of the meeting on 5 April, you were of the view that there was a conflict between the interests of the shareholders and the company, that's correct?---That became apparent, that Roger had a differing view and he was awaiting his own legal advice at that point. In fact, he told me that when - … his response to my suggestion that he get legal advice, he said that he was already undertaking that process. So may we take it that you immediately told Mr Short that he also should get independent legal advice?---I don't remember saying those words to him. I do know that when it became apparent that there was a problem between the parties that I then recommended to Fraser that he get his own legal advice. That's right, yes. Mr Yates was then immediately thereafter taken as follows to his knowledge of the different interests of the initial shareholders (without alteration): You have told us that you were aware that there was a problem between the parties by no later than the conclusion of the meeting of 5 April. That's right, isn't it?---I was aware that there was a difference of opinion in relation to the agreement that had been executed back in September. That was all that I knew at that point in time. That was all the detail that we go into. That meeting was designed and the bulk of it was about what the parties were going to do moving forward together. It was a very short discussion about the effect of that document - of the agreement. You knew, didn't you, at that meeting that Mr Gregg was a 50 per cent shareholder in your client. That's correct, isn't it?---Correct. And you knew that his interests, potentially, were different from the interests of Mr Short as a shareholder in that company, didn't you?---Well, that would have to be correct, yes. And that was something that was apparent to you by no later than the conclusion of the meeting of 5 April?---By no later of the conclusion of the meeting, yes. Yes. So may we take it that you immediately advised Mr Short that he should seek independent advice? - Well, I didn't immediately advise him during that meeting from memory, because my understanding was, at the end of that meeting, that they two of them would sit down and have a chat about what they were going to do. So it wasn't as though we signed off on - sorry, that the parties signed off on respective positions during that - at the end of that meeting. It was - there was discussion being had about what they were going to do. Of course, one - you told us a moment that you first received - well you perceived receiving instructions from Mr Short in his own personal capacity towards the end of March. Do you recall that answer?---Well, I do, yes. Yes. And you have also just told me a moment ago - and correct me if I'm wrong - that it's apparent by the end of the meeting of the 5th that there is a conflict, correct?---It was apparent that the parties were in conflict, yes. You duty, at that point in time, was to cease to act for all the parties. That's correct, isn't it?---Well - - - Whether Mr Short was required to "cease to act for all of the parties" need not be addressed. The difficulty for Mr Yates was that there was at least some basis upon which it could be suggested that he thereafter acted more in the interest of Mr Short than the interests of Mr Gregg. There was thus the following exchange (without alteration): You knew that you, as the company's - you were the company's solicitor at this time, that's correct?---Well, as far as I was concerned, I was assisting the shareholders to achieve their objectives in terms of registration of company - registration of the company and to prepare a shareholders agreement. Now, I notice you were very careful to say the shareholders. May I take it that you intend to include within that group Mr Gregg?---I prepared the documents and forwarded them to all the parties and my understanding was that Roger was getting his own advice about the documents that had been prepared. I see. So do you mean to say that you thought it was - you thought that you were assisting the shareholders, other than Mr Gregg, in being engaged in these communications?---No, I'm not going to suggest that. No. Well, that means, I suggest to you, that you thought that you were engaging in these communications in order to assist Mr Gregg; is that correct?---No. You were engaging in these communications in order to assist Mr Short; is that correct?---Correct. Now, you continued, didn't you, to act for the company until at least till 18 May. That's correct, isn't it?---I'm not sure of that. I would have to - from memory, I sent a letter in April. There is no need to even attempt to resolve whether Mr Yates had breached any duty to Suckinvoice. The conflict in which he had placed himself, it is submitted on his behalf, "was unintentional". These matters can be left to others. 67 Of relevance at present is whether there is "good reason" to release the Applicants from the "implied undertaking" so that the subpoenaed documents could be used for the purpose of referring the conduct of either Mr Yates or Yates Beaggi Lawyers to the Legal Services Commissioner. It is concluded that there should be no release from the undertaking to pursue that purpose. Having had the benefit of observing Mr Yates' evidence and reading the contents of his Affidavits in the substantive proceeding, it is concluded that any breach of duty on his part as a solicitor can be left to the Legal Services Commissioner to pursue irrespective of whether a release were granted - should the Commissioner consider it appropriate to do so. There is considered to be no sufficient public interest in releasing the Applicants from their implied undertakings for this stated purpose. 68 Different considerations, however, are relevant to whether the "implied undertaking" should be varied to permit the subpoenaed documents to be used for the purpose of investigating whether the conduct of Mr Short and Fraser Gordon Investments could or should be referred to either the New South Wales Police or the Australian Securities and Investments Commission. There is, as submitted by Senior Counsel on behalf of Plate Glass Holdings, a public interest in reporting "wrongdoing". 69 As with the other purposes sought to be pursued by Plate Glass Holdings, the purposes overlap. A breach of duty on the part of Mr Short, may also constitute an offence. Section 184 of the Corporations Act 2001 (Cth), for example, provides for those circumstances in which a director who fails to comply with duties to a company may also commit an offence: Good faith, use of position and use of information--criminal offences Good faith-directors and other officers (1) A director or other officer of a corporation commits an offence if they: (a) are reckless; or (b) are intentionally dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. Use of position-directors, other officers and employees (2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. Use of information-directors, other officers and employees (3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. The Australian Securities and Investments Commission, in turn, may institute proceedings for "an offence against this Act" (s 1315). 70 Again, however, it is concluded that there should be no variation of the implied undertaking for this purpose. Adopting the approach of Lee J in Bailey, it is considered that no such order should be made because: even though it may not be necessary to identify with any great particularity the conduct potentially giving rise to any offence or breach of any particular statutory provision, there has not been any specification of the conduct that would be brought to the attention of (for example) the Australian Securities and Investments Commission or the alleged offence or breach of any identified statutory provision; in the absence of any such specification, it is difficult to conclude that any greater public interest would be served by releasing the Applicants from their implied undertakings as opposed to the freedom they already have to send the transcript of the proceeding (or part thereof) to date to one or other of the applicable regulators; if the Applicants for the release do see fit to refer conduct to one or other of the regulators, there was no identified lack of power possessed by one or other of the regulators to conduct such further investigations as they see fit; and in all the circumstances of the this case it is not considered that there is sufficient public interest to warrant the making of such an order. The public interest relevant to the present application, it is considered, lies in favour of putting those who may have suffered loss or damage by reason of any breach of duty on the part of Mr Short (or others) in a position where they can pursue any available civil causes of action.
CONCLUSIONS 71 It is concluded that there should be a release from the "implied undertaking" in respect to the Deed of Release and some of the documents produced on subpoena. The release from the undertaking should be confined to the first two purposes; there should be no release from the undertaking to pursue the final purpose relied upon. Those to be released from the undertaking are Plate Glass Holdings, Mr Gregg and Suckinvoice. 72 It was jointly agreed as between Plate Glass and Fraser Gordon Investments that costs should be reserved. 73 Plate Glass Holdings, Mr Gregg, Suckinvoice, Fraser Gordon Investments, Mr Yates and Yates Beaggi Lawyers are to bring in agreed Short Minutes of Orders which give effect to these reasons within fourteen days. Whether any order should be made in respect to the costs incurred by Mr Yates and Beaggi Lawyers should also be addressed in those Short Minutes of Orders.
The ORDER of the Court IS:
Plate Glass Holdings Pty Limited as trustee for the R Gregg Family Trust
Fraser Gordon Investments Pty Limited
[2007] WASCA 60
[2012] SASC 12
[2001] WASC 282
[2012] VSC 143
[2009] QCA 345
(1997) 73 FCR 211
(1995) 183 CLR 10
(1992) 38 FCR 217
(1991) 29 FCR 576