FEDERAL COURT OF AUSTRALIA

Corbett v Corbett Court Pty Ltd, in the matter of Corbett Court Pty Ltd [2017] FCA 718

ORDERS

THE COURT ORDERS THAT:

1.    The First, Second and Third Defendants be relieved of the undertaking provided by them to this Court with respect to the use of documents produced under subpoena by:

(a)    Perpetual Trustee Company Limited;

(b)    BDO Australia Limited;

(c)    Gary Holbrook;

(d)    Coles Supermarkets Australia Pty Ltd;

(e)    Kinsley & Associates Pty Ltd;

(f)    LandMark White (NSW) Pty Ltd; and

(g)    National Australia Bank Limited.

2.    The relief from the undertaking be limited to use by the First, Second and Third Defendants of those documents in Supreme Court of NSW proceedings case number 2016/275519.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GLEESON J:

1    On 8 June 2017, I made orders, with the consent of the affected parties, that the first to third defendants (“Corbett parties”) be relieved of the undertaking provided by them to this Court with respect to the use of documents produced under subpoena, for use by the Corbett parties in proceeding number 2016/275519 in the Supreme Court of New South Wales (“Supreme Court proceeding”).

2    These are my reasons for making those orders.

Legal principles

3    An implied undertaking (commonly called the “Home Office v Harman” undertaking) is derived from the substantive legal obligation imposed on a party to litigation who obtains documents or information as a result of the compulsory processes of a court not to use them for any other purpose without leave of that court: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [96] and [106]; Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322; Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 2 WLR 338.

4    The obligation is owed to the Court: Binetter v BCI Finances Pty Ltd (in liq) [2015] FCAFC 122; (2015) 235 FCR 410 at [31].

5    In Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31], a Full Court of this Court comprising Branson, Sundberg and Allsop JJ, explained what is required to be released from the implied undertaking as follows:

In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show “special circumstances”: see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were:

•    the nature of the document;

•    the circumstances under which the document came into existence;

•    the attitude of the author of the document and any prejudice the author may sustain;

•    whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;

•    the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information):

•    the circumstances in which the document came in to the hands of the applicant; and

•    most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.

Subject matter of the implied undertaking

6    The relevant documents were produced under subpoenas issued to:

(1)    Perpetual Trustee Company Limited (“Perpetual”);

(2)    BDO Australia Limited (“BDO”);

(3)    Gary Holbrook;

(4)    Coles Supermarkets Pty Ltd (“Coles”);

(5)    Kinsley & Associates Pty Ltd (“Kinsley”);

(6)    LandMark White (NSW) Pty Ltd (“LandMark”); and

(7)    National Australia Bank (“NAB”).

7    The subpoenas were issued at the request of the Corbett parties, for the purposes of their defence of this proceeding. The defence was directed to allegations by Paul Corbett that, on or about 14 June 2012, the first defendant (“Corbett Court”) had purported to issue shares to the second and third defendants in contravention of the law.

8    In brief, Corbett Court is said to be the owner of land and improvements constituting the Picton Mall shopping centre in Picton, New South Wales. Paul Corbett, the second and third defendants and various other members of the Corbett family (including Joseph and Gwen Corbett) are said to be shareholders of Corbett Court.

9    Perpetual is the manager of the estate of the father of all the shareholders Corbett Court. BDO is a firm of accountants appointed by Perpetual to manage the affairs of a number of companies in which the father was a shareholder and in which the children were directors from time to time, including Corbett Court. Mr Holbrook is a partner of BDO, and was an independent director of Corbett Court appointed by Perpetual at the relevant time.

10    Coles is the anchor tenant of Corbett Court at the Picton Mall shopping centre. The 2012 share issue that was the subject of these proceedings was, on the Corbett parties’ case, necessary to fund a redesigning of and works done at the Picton Mall. These works were said to have been done in order to prevent the triggering of a clause in the lease with Coles which would have allowed Coles to reduce the rent it paid to Corbett Court on the basis that a certain percentage of shops at the Picton Mall were vacant. Kinsley is a firm of surveyors that was engaged to undertake an assessment of the work described above. LandMark is a valuation company which provided a valuation of the Picton Mall. NAB provided finance to Corbett Court and the father’s estate during the relevant periods.

Relevant facts

11    On 4 November 2015, this Court made orders including orders to the effect that the purported share issue be set aside: Corbett v Corbett Court Pty Limited, re Corbett Court Pty Limited [2015] FCA 1176; (2015) 109 ACSR 296. An appeal was lodged from that decision but the matter was resolved between the parties before the appeal was heard.

12    Joseph and Gwen Corbett have now commenced the Supreme Court proceeding against the Corbett parties and Paul Corbett. Those proceedings are listed for trial in August 2017. The allegations in the Supreme Court include allegations that Corbett Court had purported to issue shares to the second and third defendants in contravention of the law.

13    The Corbett parties wish to consider and, if appropriate, use the documents obtained under subpoenas in this Court for the purposes of defending the Supreme Court proceeding. If they are not released from the implied undertaking, the Corbett parties intend to seek documents from the same individuals and the same entities in substantially the same manner as they were sought in this proceeding at significant expense and inconvenience to themselves and to the subpoenaed parties.

Consideration

14    I was informed by counsel for the Corbett parties, Mr DeBuse, that the documents comprise documents relevant to the circumstances of the 2012 share issue. They do not contain personal data. To the extent that their contents are confidential, the owner of the confidential information is Corbett Court.

15    There was no suggestion that any party would be prejudiced by releasing the Corbett parties from the proposed undertaking. Each of the subpoenaed parties consents to the use of the subpoenaed documents in the Supreme Court proceeding.

16    I was satisfied that the orders will facilitate the economical preparation of the defence in the Supreme Court proceeding, and avoid the unnecessary expense and inconvenience of the issue of further subpoenas to the same individuals and entities by the Supreme Court. While it is not clear what contribution the documents will make towards achieving justice in the Supreme Court proceeding, I accepted that it was appropriate for the Corbett parties to defer a consideration of that question until after a release from the undertaking was sought.

Conclusion

17    Orders were made in the terms sought in the interlocutory application.

Associate:

Dated:    26 June 2017

SCHEDULE OF PARTIES