Case: Cadence Asset Management Pty Ltd v Concept Store Ltd [2006] FCA 711
Outcome: cited
In Cadence Asset Management Pty Ltd v Concept Store Ltd [2006] FCA 711 , Finkelstein J, faced with a similar application in relation to the same litigation funder said (at [6] and [7]): [6] The view that I take is that the implied undertaking does not prevent absolutely a party giving discovered documents to a non-party. There are circumstances in which a party has a legitimate interest in disclosing discovered documents to a non-party. Obvious examples include showing a discovered document to an actual or prospective witness or to an expert non-witness. Of course that is permissible; because in each case the document is being used for the action. There are also cases where a non-party has a legitimate interest in seeing discovered documents. ... The reason permission is not required is that the provision of the documents is not for an ulterior or foreign purpose. Another way of putting it is that the non-party is not a true stranger to the action. [7] The private interests of the opposite parties are not affected if the documents are handed over. This is because the implied undertaking will bind any person to whom the documents are given ... at least once he is aware that the documents have been obtained by way of discovery... His Honour held in that case that IMF was not a stranger to the action. It had a sufficient interest to be provided with the discovered documents or at least those it needed to assess the merits of the action. In my opinion the general disclosure of discovered documents and information derived there from to a party's litigation funder raises concerns which are not answered by saying that the litigation funder has an interest in the case. I note that Finkelstein J adverted to a possible limitation that disclosure to the litigation funder might go no further than was needed for it to assess the merits of the case. 24 In a letter dated 10 November 2006 Mr Rollnik wrote to the solicitors for the Ericsson parties stating that they were instructed that IMF had a funding agreement with the applicants and "a recognised interest in this dispute". He referred to Cadence Asset Management Pty Ltd [2006] FCA 711. In a further letter dated 29 November 2006 he described IMF's purpose in accessing the discovery as being "to look after its interest in the litigation as set out in the Funding Agreement". 25 The Ericsson parties submitted that the Court should not entertain the applicants' application until they had had a reasonable opportunity to consider confidentiality issues with respect to specific documents the subject of the application. The broad brush approach of the applicants was said to place an unreasonable burden on them. Subject to the identification of specific documents the Ericsson parties might accede to the "release" of some or all of the documents identified. 26 I agree with the submission of the Ericsson parties. I am not prepared to accede to the applicants' application in the general terms in which it is made. I do not think a general licence to disclose documents to IMF on the broad basis that it has a legitimate interest in the proceedings is a sufficient basis for such disclosure in light of the considerations to which I have earlier referred. I will therefore refuse the application. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 1 March 2007 Counsel for the First and Second Applicants: Mr J A Thomson and Mr M Lundberg Solicitor for the First and Second First and Second Applicants: Mallesons Stephen Jaques Counsel for the First and Second Respondents: Dr J McL Emmerson QC and Mr RA Heath Solicitor for the First and Second Respondents: Carrick Kellow Smyth Date of Hearing: 22 February 2007 Date of Judgment: 1 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/244.html