Labruyere v Parsons Brinckerhoff Australia Pty Limited (No 2)

HER HONOUR: Before the Court this morning is a motion brought by the plaintiff, Mr Labruyere, seeking that the parties be granted leave to inspect, copy and otherwise utilise documents produced under subpoena by two companies who are not parties to the proceedings, Thiess Pty Limited and John Holland Pty Limited. The motion is supported by an affidavit sworn by Mr Scott Hall Johnston on 22 May 2017.

This morning, orders have been pressed in terms of MFI 1, as amended, at the hearing. Those orders finally are not consented to, nor opposed by the other parties, whose attitude is that they are not necessary. Having heard the parties and considered the submissions which have been advanced, I am satisfied that the orders pressed in MFI 1, as amended this morning, should be made.

Some 14,000 documents have been produced, some of them, it appears, in the form of a copy of a court book utilised in other proceedings to which these parties were not also a party. Ms Krikorian was involved in those proceedings and understands that the majority of the documents belong to the two companies, but there is no certainty, as I am following her submissions, that all of them fall into that category. Some of them may have come into the companies’ possession as a result of compulsion in those other proceedings.

In those circumstances, the authorities discussed in the written submissions arise for consideration. They include Hearne v Street (2008) 235 CLR 125; (2008) HCA 36, where consideration was given to the question of whether a third party may breach an implied undertaking of the kind dealt with in Harman v Secretary of State for Home Department [1983] 1 AC 280 even where that party has no knowledge of the undertaking. In Esso Australia Resources Pty Limited v Ploughman (1995) 183 CLR 10; [1995] HCA 19, consideration was given to the limits of such an undertaking, but there have been other cases, like here, where parties have sought orders of the kind here pursued by Mr Labruyere, for abundant caution.

Having heard the parties this morning, I am satisfied that the circumstances are such that it is sensible to make the orders sought. That would remove the possibility of unintended difficulties arising in this litigation in the future. The making of the orders, it seems to me, is also consistent with the provision made in section 56 of the Civil Procedure Act 2005 (NSW), as to the overriding purpose there specified, namely, of the just, quick and cheap resolution of the real issues in the proceedings. Accordingly, I make orders in terms of MFI 1 as amended this morning.