Case Reports

Discovery - implied undertakings - release

In Fortis Business Holdings LLC v Commonwealth Bank of Australia [2009] VSC 274 (30 June 2009) , the Supreme Court of Victoria determined when a party can be released from their implied undertaking that they will only use discovered documents for the purpose of proceedings in which they are produced. The Court held that a party will be released from their implied undertaking where there are “special circumstances” warranting the use of the documents in another proceeding and the party opposing the application will not suffer undue prejudice and injustice. Notably, the Court referred to the description of “special circumstance” in the judgment of Wilcox J in Springfield Nominees Pty Ltd v Bridgelands (1992) 38 FCR 217 at 225:

For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it 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 into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.