Playcorp Ltd v Tyco Industries Inc [2000] VSC 440

8. 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.

11. 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.

14. 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.

17. 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."

21. There are eight attachments, although the only further sheet of paper which is attached to this exhibit is what appears to be the first page of the distribution agreement.

24. Clearly, this document is relevant to the issue to which I have just referred. Which way it points, if it points anywhere, is of course a completely different matter with which I need not be concerned. But it could not be said, and it has not been said, that that it is not relevant.

27. The material in support of the application shows that a request was made to the solicitors for Tyco Industries Inc. for their consent to the use of this document, and that request was made in September. By letter dated the 6th of October from the solicitors for the defendant in this proceeding, Arnold Bloch Leibler, and a Mr Chiappi of that firm, the reply to the request is simply -

"We refer to your letter of 28 September 2000. Tyco does not consent to Playcorp using the document referred to in your letter".

31. Mr Chiappi, by an affidavit sworn today, in effect complains (he also complains through counsel) that he has not had much time to get instructions. The application was only served on Wednesday, and came to his attention at about 2:30. He has not been able to get instructions in relation to the application.

34. What Mr Chiappi does not tell the court is what the basis was for the refusal of consent contained in his letter of the 6th of October. It can only be inferred at that point he had disclosed the nature of the request and the document concerned to the client, and had obtained instructions. The affidavit says nothing of that, and it seems to me that something should have been said about it.

37. No reason is given in the letter for the refusal of consent, and it is hard to see what reason could be given. The document is not a document of Tyco Industries Inc.; it is a document of the defendant in the other proceeding. What possible harm or prejudice could be caused to Tyco Industries Inc. is hard to imagine, and one would have thought that if Mr Chiappi had received instructions, as he must have, to refuse consent, that some reason would have been given. But none has been disclosed.

40. It is appropriate in most cases where a solicitor says that he cannot get instructions in answer to an application to grant an adjournment and, as Mr McClelland (who appears for Tyco) points out, there is time for such an adjournment to be granted. But in the circumstances, to which I will refer in a moment, I see no reason to grant that adjournment.

43. My attention has been drawn to two cases which are concerned with the principles affecting an application such as this. The first is Holpitt Pty Ltd v. Varimu Pty Ltd [1991] FCA 269; (1991) 29 F.C.R. 576, in which Burchett, J., after pointing out that the application should be taken out in the proceedings in which the implied undertaking to the court was given, went on to refer to a line of cases in England which culminated in a decision of the House of Lords in Crest Homes PLC v. Marks (1987) A.C. 829, in which Lord Oliver of Aylmerton at p.860 said -

"The court will not release or modify the implied undertaking given on discovery, save in special circumstances and where the release or modification will not occasion injustice to the person giving discovery".

47. Burchett, J. went on to say that in his opinion the court's duty in an application of this kind was to consider whether the applicant had shown some circumstances which took the matter out of the ordinary course according to which production of documents pursuant to an obligation to make discovery involved the implied undertaking to the court; and if so, whether the exercise of the court's discretion in favour of the application would be in the interests of justice. He concluded in that particular case that the interests of justice required that such an order should be made, and that it would not occasion injustice to the party affected.

50. The second case to which I was taken was Springfield Nominees Pty Ltd v. Bridgeland Securities Limited (1992) 38 F.C.R. 217, a decision of Wilcox, J. He said at p.225, referring to the special circumstances test -

"For special circumstances to exist it is enough that there is a special feature of a case which affords a reason for modifying or releasing the undertaking that is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant."

54. He then lists possible factors. He says it is not an exhaustive list, but he refers to the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document, any prejudice the author may sustain, the nature of the information in the document, the circumstances in which it came into the hands of the applicant for leave, and "perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding".

57. Looking at the factors in this case, they all, it seems to me, point in the one direction, and that is that the leave should be granted.

60. The document is one produced by the defendant in the other proceeding. It is highly relevant to the issues in that other proceeding. Its use is not opposed by the defendant in the other proceeding.

63. The information in it does not appear to be commercially sensitive or to be in any way harmful to the defendant in this proceeding and, although I have not had the benefit of Mr Chiappi obtaining further instructions from his client, it is hard to imagine how any injustice could possibly be caused by making the order which is sought.

66. I am satisfied that in the interests of justice this leave should, indeed must, be granted.

69. I will make the order subject to an undertaking, which has been given on behalf of the plaintiff by its counsel, to provide a copy of the plaintiff's and the defendant's lists of documents in this proceeding to the defendant in the other proceeding, and on the basis of that undertaking I will order:

(1) that this proceeding be reinstated for the purposes only of this application;

(2) that the plaintiff, Playcorp Pty Ltd, have leave to use the document, which is Exhibit RAM.1 to the affidavit of Richard Alan Mereine sworn on 17 October 2000, for the purposes of its conduct of Proceeding No. 6506 of 1997.