Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. The plaintiffs, as applicants, seek a release from the Hearne v Street (2008) 235 CLR 125 obligation in respect of 40 documents previously discovered by Mr Matthew Press and Forexco Australia Pty Ltd.

2. The applicants wish to use those documents for the purposes of bringing an action in the courts of England and Wales against Mr Press and Forexco and others, in relation to a 2019 consultancy agreement, to which the applicants and Mr Press were parties.

3. The documents were produced after the applicants brought a preliminary discovery application seeking to ascertain the identity of prospective defendants and for the purposes of deciding whether to commence proceedings for misleading or deceptive conduct against Mr Press in this Court.

4. The outcome of that preliminary discovery application was that Richmond J ordered Mr Press to file an affidavit setting out his knowledge of certain matters and 42 documents were discovered as ordered: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036. These reasons assume knowledge of that judgment.

5. Each of the discovered documents has been reviewed by the applicants' lawyers and advisers, and they consider that each of the documents is directly relevant to the claim to be brought in England and Wales.

Principles

6. The Court may release an applicant from the Hearne v Street obligation where the applicant can demonstrate "special circumstances": Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 (Springfield Nominees), 225 (Wilcox J).

7. If the Court does find special circumstances, then it has a broad discretion as to whether or not to grant leave: Papantoniou v Stonewall Hotel Pty Ltd (2018) 19 BPR 38,547 at 38,553 (Barrett AJA, Beazley P and Ward JA agreeing).

8. "Special circumstances" does not require extraordinary factors. Instead, "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.": Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31] (Branson, Sundberg and Allsop JJ).

9. In Springfield Nominees at 225, Wilcox J identified matters which may be relevant in determining whether to exercise the discretion:

1) the nature of the document;

2) the circumstances under which the document came into existence;

3) the attitude of the author of the document and any prejudice the author may sustain;

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

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

6) the circumstances in which the document came into the hands of the applicant; and

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

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198120e8c423030d7c51885f)

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