Zhu v Yingle Culture Exchange (Australia) Pty Ltd (in liquidation) [2009] NSWSC 897

Zhu v Yingle Culture Exchange (Australia) Pty Ltd (in liquidation) [2009] NSWSC 897

The plaintiffs had standing to seek leave because UCPR 21.7(1) imposed on them an obligation not to disclose documents obtained on discovery without leave, and it was reasonable and prudent for them to seek leave before producing those documents pursuant to a Federal Court subpoena. Although a subpoena issued in other litigation likely fell within the requirements of curial process to which the implied undertaking yields, leave was granted and, because the plaintiffs succeeded, the second and third defendants were ordered to pay the plaintiffs' costs.

Jurisdiction
Australia
Judgment Date
13 August 2009
Procedural Posture
Application Under UCPR 21.7(1) for Leave to Produce Discovered Documents in Response to a Federal Court Subpoena / Procedural Ruling; Ex Tempore Judgment on Notice of Motion
Outcome
Application granted; second and third defendants ordered to pay the plaintiffs' costs of the application.
Legal Topics
['ucpr 21.7(1)' 'implied Undertaking' 'discovery' 'subpoena' 'leave to Disclose Discovered Documents' 'costs of Application']
['civil Procedure'] ['ucpr 21.7(1)' 'implied Undertaking' 'discovery' 'subpoena' 'leave to Disclose Discovered Documents' 'costs of Application']

Case Brief

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Procedural Posture

Application Under UCPR 21.7(1) for Leave to Produce Discovered Documents in Response to a Federal Court Subpoena / Procedural Ruling; Ex Tempore Judgment on Notice of Motion

Legal Issues

  1. 1 ['Whether the plaintiffs had standing to seek leave under UCPR 21.7(1) to produce documents discovered by the second and third defendants in response to a subpoena issued out of the Federal Court of Australia.' 'Whether compliance with a subpoena issued in other proceedings would constitute disclosure in breach of the implied undertaking under UCPR 21.7(1) absent leave.' "Whether the plaintiffs' application for leave was reasonable or warranted in the circumstances." "Whether the second and third defendants should pay the plaintiffs' costs of the application."]

Ratio Decidendi

The plaintiffs had standing to seek leave because UCPR 21.7(1) imposed on them an obligation not to disclose documents obtained on discovery without leave, and it was reasonable and prudent for them to seek leave before producing those documents pursuant to a Federal Court subpoena. Although a subpoena issued in other litigation likely fell within the requirements of curial process to which the implied undertaking yields, leave was granted and, because the plaintiffs succeeded, the second and third defendants were ordered to pay the plaintiffs' costs.

Court Disposition

Application granted; second and third defendants ordered to pay the plaintiffs' costs of the application.

Orders

  • ['I grant leave to the plaintiffs to file in court a notice of motion dated 12 August 2009, returnable instanter.' 'Pursuant to UCPR 21.7, I grant leave to the first plaintiff and the second plaintiff to produce to the Federal Court of Australia such documents as are referred to in a subpoena issued out of that...