Idoport Pty Limited v Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [30] [2001] NSWSC 648

New South Wales Supreme Court

CITATION : Idoport Pty Limited v Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [30] [2001] NSWSC 648 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 25/07/01 JUDGMENT DATE : 31 July 2001

Idoport Pty Limited (Plaintiff) PARTIES : Market Holdings Pty Limited (Plaintiff) National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr M Dicker, Mr R Titterton (Plaintiffs) Mr J Gleeson SC, Mr A S Bell (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehills (Defendants) CATCHWORDS : Practice and procedure - Application for security for costs - Documents sought by defendants for purposes of application for security for costs - Conditions to be imposed by Court by way of confidentiality undertakings in relation to use of documents sought - Whether form of undertaking should oblige defendants not to use confidential information other than for the purposes of the proceedings or rather for the purposes of the security for costs application - General rule as to use of documents disclosed in proceedings - Whether general rule should govern access in this case - Extremely sensitive documents containing information as to capacity of plaintiffs to continue with litigation - Bifurcation of defendants' team between those given access to confidential documents and those denied access based on past involvement and non-involvement with proceedings - Disadvantage to defendants of bifurcation by depriving them of knowledge gained by solicitors, agents and counsel during main proceedings - Exercise of discretion taking into account unusual nature of case - Possible, likely and probable prejudice to plaintiffs in being forced to abandon litigation outweighs possible prejudice to defendants in non-disclosure regime to be ordered. Ainsworth v Hanrahan (1991) 25 NSWLR 155 Akins v Abigroup Ltd (1998) 43 NSWLR 539 Allstate Life Insurance Co Ltd v ANZ Banking Group Ltd (1995) 57 FCR 360 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 18 ACSR 218 Crest Homes plc v Marks [1987] 1 AC 829 Distillers Co v Times Newspapers [1975] 1 QB 613 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 CASES CITED : Harman v Secretary of State for the Home Department [1983] AC 280 Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors [2000] NSWSC 945 Idoport Pty Ltd & Anor v National Australia Bank Limited & 8 Ors [2001] NSWSC 509 Tate Access Floors Inc v Boswell [1991] Ch 512 Riddick v Thames Board Mills Ltd [1977] QB 881 Sybron Corporation v Barclays Bank Plc [1985] Ch 299 Telnet Pty Ltd v Takepuna Investments Pty Ltd (1994) 51 FCR 520 The Commonwealth v Northern Land Council (1992) 176 CLR 604 DECISION : Orders to be made imposing upon the defendants, as a condition of access to confidential documents produced on notice to produce in relation to security for costs motions, a form of undertaking which will oblige those persons having access to the documents, not to use the confidential documents or the confidential information or any part of them other than for the purposes of the security for costs motions in the proceedings.