Boys v Australian Securities Commission [2001] FCA 1325

Boys v Australian Securities Commission [2001] FCA 1325

Special circumstances justified modifying the implied undertakings. The 1991 Affidavit was uncontestedly in the public domain, the Supreme Court Master had waived any undertakings, and it was relevant material for the Supreme Court application. The Perpetual Documents, excluding pages already accepted as public, were relevant as a bundle from which arguments concerning conflict could be drawn and might influence the outcome if estoppel was not established. Questions of estoppel were for the Supreme Court, not this application. The undertakings were therefore modified to permit use of the documents in support of the applicants' application to discharge the examination summonses.

Jurisdiction
Australia
Judgment Date
14 September 2001
Procedural Posture
Practice and Procedure; Application to Modify Implied Undertakings Concerning Subpoenaed Documents / Interlocutory Notice of Motion
Outcome
Application granted; undertakings modified and costs ordered in favour of the applicants.
Legal Topics
['subpoenaed Documents' 'implied Undertaking Against Collateral Use' 'special Circumstances' 'public Examination Summonses' 'use of Documents in Another Court']
['civil Procedure' 'corporations'] ['subpoenaed Documents' 'implied Undertaking Against Collateral Use' 'special Circumstances' 'public Examination Summonses' 'use of Documents in Another Court']

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Procedural Posture

Practice and Procedure; Application to Modify Implied Undertakings Concerning Subpoenaed Documents / Interlocutory Notice of Motion

Legal Issues

  1. 1 ['Whether undertakings in relation to the use of the Perpetual Documents and the 1991 Affidavit should be modified to permit use in Supreme Court proceeding COR 222 of 2001.' 'Whether special circumstances existed to support waiver or modification of implied undertakings against collateral use.' 'Whether arguments about relevance, conflict of interest and estoppel should prevent the documents being used on the application to discharge examination summonses.']

Ratio Decidendi

Special circumstances justified modifying the implied undertakings. The 1991 Affidavit was uncontestedly in the public domain, the Supreme Court Master had waived any undertakings, and it was relevant material for the Supreme Court application. The Perpetual Documents, excluding pages already accepted as public, were relevant as a bundle from which arguments concerning conflict could be drawn and might influence the outcome if estoppel was not established. Questions of estoppel were for the Supreme Court, not this application. The undertakings were therefore modified to permit use of the documents in support of the applicants' application to discharge the examination summonses.

Court Disposition

Application granted; undertakings modified and costs ordered in favour of the applicants.

Orders

  • ['The undertakings in relation to the use of the documents identified in the affidavit of J Garas sworn on 11 September 2001 as the "Perpetual Documents" pages 130 – 161 and 178 – 210 inclusive and the "1991 Affidavit" be modified to permit the applicants to use the documents in support of their application to...