In the matter of Addstone Pty Ltd (in liquidation) Acn 010 764 997 [1998] FCA 1681

In the matter of Addstone Pty Ltd (in liquidation) Acn 010 764 997 [1998] FCA 1681

The court implied an undertaking on Thomsons not to use documents released under court direction for purposes other than the original application. However, as information about the insurer's identity (obtained from the documents) was already publicly available and had been used in related proceedings, the court held that it was impossible to enforce confidentiality meaningfully. The court released Thomsons and their solicitors and counsel from the implied undertaking to the extent that material referred to the name Charles Fice. Leave to proceed against the Emanuel Group was refused because Thomsons had opportunity to raise concerns earlier, granting leave would risk conflicting findings...

Parties
Applicant: Peter Ivan Macks; Intervenor: David Winston Simmons; Intervenor: Daniel Lee Farrugia; Intervenor: Anthony John Saint; Intervenor: David John Purcell; Intervenor: Peter Anthony John Herriman; Intervenor: Kevin Francis Gilchrist; Intervenor: Stephen John Lyons; Intervenor: Stephen Gerard Connell; Intervenor: Richard Neville McNeil; Intervenor: David Hudson Proudman; Intervenor: David George Gaszner; Intervenor: Paul Geoffrey Turner; Intervenor: John Clark Brimacombe; Intervenor: Richard Dewell Ross-Smith; Intervenor: David John Tucker; Intervenor: Denise Jean Watkins; Intervenor: Andie William Blaise Nicholas; Intervenor: William David Jennings
Jurisdiction
Australia
Judgment Date
23 December 1998
Procedural Posture
Motion / Post Liquidation Application for Release From Undertaking and for Leave to Proceed
Outcome
Orders made; partial relief from implied undertaking granted; leave to proceed against Emanuel Group refused.
Legal Topics
Court Ordered Document Disclosure, Implied Undertaking Regarding Document Use, Winding Up Proceedings, Leave to Commence Proceedings Against a Company in Liquidation, Funding Arrangements for Litigation, Conflict of Interest Regarding Insurers, Maintenance and Champerty
Practice and Procedure Corporations Court Ordered Document Disclosure Implied Undertaking Regarding Document Use Winding Up Proceedings Leave to Commence Proceedings Against a Company in Liquidation Funding Arrangements for Litigation Conflict of Interest Regarding Insurers +1 more

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Parties

Peter Ivan Macks

Applicant

David Winston Simmons

Intervenor

Daniel Lee Farrugia

Intervenor

Anthony John Saint

Intervenor

David John Purcell

Intervenor

Peter Anthony John Herriman

Intervenor

Kevin Francis Gilchrist

Intervenor

Stephen John Lyons

Intervenor

Stephen Gerard Connell

Intervenor

Richard Neville McNeil

Intervenor

David Hudson Proudman

Intervenor

David George Gaszner

Intervenor

Paul Geoffrey Turner

Intervenor

John Clark Brimacombe

Intervenor

Richard Dewell Ross-Smith

Intervenor

David John Tucker

Intervenor

Denise Jean Watkins

Intervenor

Andie William Blaise Nicholas

Intervenor

William David Jennings

Intervenor

Procedural Posture

Motion / Post Liquidation Application for Release From Undertaking and for Leave to Proceed

Legal Issues

  1. 1 Whether an implied undertaking exists prohibiting use of court-released documents for collateral purposes
  2. 2 Whether there are grounds to release parties from an implied undertaking regarding document use
  3. 3 Whether leave should be granted under s 471B of the Corporations Law to proceed against companies in liquidation

Ratio Decidendi

The court implied an undertaking on Thomsons not to use documents released under court direction for purposes other than the original application. However, as information about the insurer's identity (obtained from the documents) was already publicly available and had been used in related proceedings, the court held that it was impossible to enforce confidentiality meaningfully. The court released Thomsons and their solicitors and counsel from the implied undertaking to the extent that material referred to the name Charles Fice. Leave to proceed against the Emanuel Group was refused because Thomsons had opportunity to raise concerns earlier, granting leave would risk conflicting findings...

Court Disposition

Orders made; partial relief from implied undertaking granted; leave to proceed against Emanuel Group refused.

Orders

  • David Winston Simmons, Daniel Lee Farrugia, Anthony John Saint, David John Purcell, Peter Anthony John Herriman, Kevin Francis Gilchrist, Stephen John Lyons, Stephen Gerard Connell, Richard Neville McNeil, David Hudson Proudman, David George Gaszner, Paul Geoffrey Turner, John Clarke Brimacombe, Richard Dewell...
  • Application for leave to proceed against the Emanuel Group of Companies in a proposed action in the Supreme Court of South Australia is refused.