Moage Ltd v Jagelman and Others [2002] NSWSC 953

Moage Ltd v Jagelman and Others [2002] NSWSC 953

Although the public interest in investigation of possible offences was powerful, the fifth defendant had possessed the Material for a considerable time, the application was prompted by recent reports that Johnson might return to Australia to give evidence, and the applicant's motive and timing were significant. Because Johnson might soon give evidence at trial, causing the affidavits to be read in open court and become available to ASIC and the DPP, and because those authorities had been notified but showed no urgency and did not seek to be heard, the balance of interests did not justify release from the implied undertaking at this time.

Jurisdiction
Australia
Judgment Date
15 October 2002
Procedural Posture
Application by Notice of Motion for Leave to Provide Affidavits and Exhibits to the Commonwealth Director of Public Prosecutions and the Australian Securities and Investments Commission / Interlocutory Motion Before Trial
Outcome
Application dismissed with costs
Legal Topics
['discovery and Interrogatories' 'implied Undertaking to the Court' 'use of Documents for Collateral or Ulterior Purpose' 'disclosure to ASIC and Commonwealth Director of Public Prosecutions' 'legal Professional Privilege']
['civil Procedure' 'evidence' 'corporations'] ['discovery and Interrogatories' 'implied Undertaking to the Court' 'use of Documents for Collateral or Ulterior Purpose' 'disclosure to ASIC and Commonwealth Director of Public Prosecutions' 'legal Professional Privilege']

Case Brief

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Procedural Posture

Application by Notice of Motion for Leave to Provide Affidavits and Exhibits to the Commonwealth Director of Public Prosecutions and the Australian Securities and Investments Commission / Interlocutory Motion Before Trial

Legal Issues

  1. 1 ['Whether the fifth defendant should be released from the implied undertaking not to use affidavits and exhibits served pursuant to court direction for a collateral or ulterior purpose.' 'Whether the public interest in investigation of possible criminal offences outweighed the public interest in preserving confidentiality of material produced in the proceedings.' "Whether the timing and motive of the fifth defendant's application affected the exercise of the court's discretion."]

Ratio Decidendi

Although the public interest in investigation of possible offences was powerful, the fifth defendant had possessed the Material for a considerable time, the application was prompted by recent reports that Johnson might return to Australia to give evidence, and the applicant's motive and timing were significant. Because Johnson might soon give evidence at trial, causing the affidavits to be read in open court and become available to ASIC and the DPP, and because those authorities had been notified but showed no urgency and did not seek to be heard, the balance of interests did not justify release from the implied undertaking at this time.

Court Disposition

Application dismissed with costs

Orders

  • ['Notice of motion dismissed.']