Michael Wilson & Partners Ltd v Robert Colin Nicholls & Ors [2007] NSWSC 317

Michael Wilson & Partners Ltd v Robert Colin Nicholls & Ors [2007] NSWSC 317

The Court made the orders sought because the plaintiff established a principled basis for confidentiality around the Macquarie Bank subpoena and showed significant changes in circumstances, including serious inconsistencies between affidavit and disclosure material in different jurisdictions, making it necessary in the interests of justice for the plaintiff's legal advisers to obtain full instructions and to use the material in imminent British Virgin Islands receivership applications. The strong commonality between the proceedings and the special features of the case justified relaxing the Harman undertaking.

Jurisdiction
Australia
Judgment Date
26 March 2007
Procedural Posture
Equity Division Commercial List Proceeding Concerning Freezing Orders, Tracing Orders, and Use or Disclosure of Material From the Proceedings / Ex Parte Notice of Motion Heard in Closed Court
Outcome
Orders sought made
Legal Topics
['freezing Orders' 'tracing Orders' 'subpoena Confidentiality' 'closed Court Applications' 'rule in Harman V Home Office' 'use of Documents Obtained in Proceedings' 'ex Parte Receivership Application in the British Virgin Islands']
['equity' 'civil Procedure'] ['freezing Orders' 'tracing Orders' 'subpoena Confidentiality' 'closed Court Applications' 'rule in Harman V Home Office' 'use of Documents Obtained in Proceedings' 'ex Parte Receivership Application in the British Virgin Islands']

Case Brief

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Procedural Posture

Equity Division Commercial List Proceeding Concerning Freezing Orders, Tracing Orders, and Use or Disclosure of Material From the Proceedings / Ex Parte Notice of Motion Heard in Closed Court

Legal Issues

  1. 1 ['Whether orders should be made for the issue of a subpoena to Macquarie Bank with confidentiality conditions.' "Whether order 4 of Bergin J's orders dated 20 October 2006 should be varied to permit access by Mr Michael Wilson and the plaintiff's legal advisers in other jurisdictions to affidavits filed by the defendants and associated correspondence." 'Whether the plaintiff should have leave to use affidavits and correspondence obtained in these proceedings for proposed ex parte receivership proceedings in the British Virgin Islands.' 'Whether special circumstances justified relaxing the implied undertaking under Harman v Secretary of State for the Home Department [1983] AC 280.']

Ratio Decidendi

The Court made the orders sought because the plaintiff established a principled basis for confidentiality around the Macquarie Bank subpoena and showed significant changes in circumstances, including serious inconsistencies between affidavit and disclosure material in different jurisdictions, making it necessary in the interests of justice for the plaintiff's legal advisers to obtain full instructions and to use the material in imminent British Virgin Islands receivership applications. The strong commonality between the proceedings and the special features of the case justified relaxing the Harman undertaking.

Court Disposition

Orders sought made

Orders

  • ['Orders in terms of paragraphs 2 to 5 inclusive of the notice of motion were made, including confidentiality conditions in relation to the subpoena to Macquarie Bank.' 'The subpoena was made returnable before the Court on 28 March 2007 at 2.00pm.' 'Order 4 of the orders of Bergin J dated 20 October 2006 was varied...