Antares Global Pty Limited v Yang [2018] NSWSC 455

Supreme Court New South Wales

Medium Neutral Citation: Antares Global Pty Limited v Yang [2018] NSWSC 455 Hearing dates: 6 April 2018 Decision date: 06 April 2018 Jurisdiction: Common Law Before: R A Hulme J Decision: Permit the use of documents by the defendant's trustee in bankruptcy in other proceedings Catchwords: CIVIL PROCEDURE — implied undertakings – documents produced under compulsion – release from undertaking — special circumstances – whether release would cause prejudice to producer of documents – where defendant's trustee in bankruptcy sought to use documents in other proceedings – where producer of documents did not provide reasons why consent withheld – where producer of documents did not indicate any apparent prejudice – use of documents permitted Cases Cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne & Anor v Street & Ors (2008) 235 CLR 125; [2008] HCA 36 Category: Principal judgment Parties: Antares Global Pty Limited (First plaintiff) Swealt Pty Limited (Second plaintiff) Jin Hueng Yang (Defendant) Marian Yang (Third party) Representation: Counsel:

Solicitors: Mr Catchpoole (Applicant/Defendant) Mr Kasep (Third party) File Number(s): 2017/116773

Judgment 1. HIS HONOUR: It is a principle that documents compulsorily produced in the course of litigation will not normally be permitted to be used by a party or a non-party for some ulterior or alien purpose. That principle and its rationale is discussed in the judgment of Hayne, Heydon and Crennan JJ in Hearne & Anor v Street & Ors (2008) 235 CLR 125; [2008] HCA 36 at [105]-[114]. This "obligation" not to use such documents for other purposes is one that is owed to the Court rather than to a party. The Court has the right to control it and to modify or release a person from its effect if it sees fit. It has been referred to as "an implied undertaking to the Court". It is also sometimes called a "Harman undertaking" after Harman v Secretary of State for the Home Department [1983] 1 AC 280. 2. The defendant in these proceedings has been declared bankrupt. His trustee in bankruptcy seeks to use documents produced in the proceedings in the course of proceedings in the Federal Court of Australia relating to that bankruptcy and proceedings that might otherwise arise in relation to that bankruptcy. 3. The documents in question include documents produced in response to correspondence by Compass Global Holdings Pty Limited. A director of that company has indicated, in a letter of 3 April 2018, that it does not consent to the documents being used by the trustee in bankruptcy in other proceedings. Otherwise, the plaintiff in the proceedings has notified its consent. The defendant, Mr Yang, has not been consulted as to his position and I accept from what Mr Catchpoole, who appears for the applicant trustee in bankruptcy, has told me that that is for understandable reasons. 4. The documents in question also include an affidavit of Ms Marian Yang, the estranged wife of the defendant, that was filed in Court on 28 March 2018 and relates to certain aspects of her financial situation. Ms Yang is represented today and it has been indicated that there is no objection to her affidavit being used by the trustee in bankruptcy, subject to certain conditions which are incorporated in the proposed orders the Court will make which will have the effect of protecting her personal and private information from disclosure. 5. Accordingly, the only objection to be considered is that raised by Compass Global Holdings. 6. A covering letter which accompanied the documents produced by Compass Global Holdings dated 14 March 2018 include: "We have provided detailed information to you in this regard confidentially and it is not to be used for any other purpose". The letter of 3 April 2018 refers to that as being the reason why Compass Global Holdings does not consent. 7. Having regard to the nature of the obligation or undertaking that relates to the use of documents compulsorily produced in the course of litigation not being used for other purposes, it is relevant to have regard to whether there is, or might be, any prejudice to the party that was required to produce the documents. In that regard, I note that the documents do not relate to the affairs of Compass Global Holdings itself but to the affairs of the defendant who, it would seem, was a client of that company. It is not apparent that the proposed use of the documents by the trustee in bankruptcy could be prejudicial to Compass Global Holdings at all. 8. It is relevant to have regard to whether the applicant has a bona fide use of the documents in mind and I am satisfied that the trustee in bankruptcy does. 9. It is relevant to have regard to the basis upon which any objection is made. In that regard, there is no particularisation of the objection apart from an assertion that the documents were produced with an expectation that they would remain confidential and used only in the primary proceedings. 10. The application is said to be brought for an abundance of caution because most of the documents, that is, those aside from the affidavit of Ms Yang, have apparently become evidence in the primary proceedings. I readily understand such a cautionary approach being taken having regard to the potential ramifications of breach of the principle in question. 11. Having regard to the nature of the use proposed by the trustee in bankruptcy, the conditional consent by Ms Yang, which is reasonable, and the lack of any apparent prejudice to Compass Global Holdings in relation to its documents, I propose to accede to the application. 12. I make the orders set out in the short minutes of order which have the effect of permitting the use of the documents proposed by the defendant's trustee in bankruptcy.