King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Limited (Discovery) [2019] FCA 1408

King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Limited (Discovery) [2019] FCA 1408

The Tedford Reports were not subject to the implied undertaking because Linkage filed them voluntarily and without any court order, direction, request by Mr King, or practical compulsion. By contrast, there was a respectable argument that Mr King or his office provided Mr Cassidy's affidavit to the FBI in breach of the implied undertaking because the affidavit had been served under an order requiring evidence in chief in the earlier related proceeding. Nevertheless, discovery was refused because there was no current issue about the Model Law freezing order, the proposed relevance of the material was insufficiently substantial to justify discovery, and leave to provide the affidavit to the...

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Interlocutory Application for Discovery in a Cross Border Insolvency Proceeding Concerning a Recognised Foreign Non Main Proceeding / Amended Interlocutory Application for Discovery Determined After Judgment Had Been Entered on Mr King's Claims, With an Undetermined Model Law Freezing Order Application Stood Over
Outcome
The application for discovery was refused with costs.
Legal Topics
['discovery' 'implied Undertaking' 'use of Documents Produced in Litigation' 'foreign Non Main Proceeding' 'freezing Orders' 'uncitral Model Law for Cross Border Insolvency']
['commercial and Corporations' 'general and Personal Insolvency' 'cross Border Insolvency' 'civil Procedure'] ['discovery' 'implied Undertaking' 'use of Documents Produced in Litigation' 'foreign Non Main Proceeding' 'freezing Orders' 'uncitral Model Law for Cross Border Insolvency']

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Procedural Posture

Interlocutory Application for Discovery in a Cross Border Insolvency Proceeding Concerning a Recognised Foreign Non Main Proceeding / Amended Interlocutory Application for Discovery Determined After Judgment Had Been Entered on Mr King's Claims, With an Undetermined Model Law Freezing Order Application Stood Over

Legal Issues

  1. 1 ['Whether the Tedford Reports filed and served by Linkage without any court order or direction were subject to the implied undertaking not to use litigation documents for extraneous purposes without leave.' "Whether access by the FBI to Mr Cassidy's affidavit, served pursuant to an order for evidence in chief in an earlier related proceeding, gave rise to a prima facie or respectable argument of breach of the implied undertaking." 'Whether the alleged breaches of the implied undertaking provided sufficient grounds to order discovery against Mr King.']

Ratio Decidendi

The Tedford Reports were not subject to the implied undertaking because Linkage filed them voluntarily and without any court order, direction, request by Mr King, or practical compulsion. By contrast, there was a respectable argument that Mr King or his office provided Mr Cassidy's affidavit to the FBI in breach of the implied undertaking because the affidavit had been served under an order requiring evidence in chief in the earlier related proceeding. Nevertheless, discovery was refused because there was no current issue about the Model Law freezing order, the proposed relevance of the material was insufficiently substantial to justify discovery, and leave to provide the affidavit to the...

Court Disposition

The application for discovery was refused with costs.

Orders

  • ['The amended interlocutory application filed on 26 June 2019 be dismissed with costs.']