Emirates Park Pty Ltd v Rejesh Chimanlal Upadhyaya & anor [2011] NSWSC 390

Emirates Park Pty Ltd v Rejesh Chimanlal Upadhyaya & anor [2011] NSWSC 390

Because the undertaking given by the independent computer expert restricted use of information obtained under the search order for proceedings other than this proceeding, it would be imprudent, if not contemptuous, to disclose the information to police without leave; given conflicting authority on whether such leave should be granted for unrelated criminal proceedings, the appropriate course was for the application for leave to be heard on notice to the parties, while preserving confidentiality of the disputed material from the plaintiff for the present.

Jurisdiction
Australia
Judgment Date
23 March 2011
Procedural Posture
Practice and Procedure; Application by Independent Computer Expert Under Search Order / Application for Leave to Disclose Information Obtained Under a Search Order to New South Wales Police
Outcome
Application for leave to be heard on notice to other parties to the proceedings.
Legal Topics
['search Orders' 'independent Computer Experts' 'undertakings to the Court' 'disclosure to Police' 'child Abuse Material' 'use of Information Obtained Under Court Order']
['practice and Procedure' 'equity' 'criminal Law'] ['search Orders' 'independent Computer Experts' 'undertakings to the Court' 'disclosure to Police' 'child Abuse Material' 'use of Information Obtained Under Court Order']

Case Brief

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Procedural Posture

Practice and Procedure; Application by Independent Computer Expert Under Search Order / Application for Leave to Disclose Information Obtained Under a Search Order to New South Wales Police

Legal Issues

  1. 1 ['Whether independent computer experts appointed under a search order required leave of the Court before disclosing to police information obtained in executing the order that may disclose an unrelated criminal offence.' 'Whether performance of directions concerning material that may be child abuse material would expose the independent computer experts to liability under (NSW) Crimes Act 1900, s 91H.' 'Whether the application for leave to disclose material should be heard on notice to the parties, and what material should be withheld from the plaintiff pending that hearing.']

Ratio Decidendi

Because the undertaking given by the independent computer expert restricted use of information obtained under the search order for proceedings other than this proceeding, it would be imprudent, if not contemptuous, to disclose the information to police without leave; given conflicting authority on whether such leave should be granted for unrelated criminal proceedings, the appropriate course was for the application for leave to be heard on notice to the parties, while preserving confidentiality of the disputed material from the plaintiff for the present.

Court Disposition

Application for leave to be heard on notice to other parties to the proceedings.

Orders

  • ['Upon the undertaking of Matthew Johnston, barrister, to pay the appropriate filing fee, leave was granted to Klein & Co Computer Forensics Pty Ltd to file a notice of motion claiming an order that, for the purposes of the undertaking given to the Court by the independent computer expert on 9 March 2011, the...