Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049

Nicholas Arthur Stokes v Molly Harriss Toyne [2021] NSWSC 1049

The implied undertaking does not apply to the Evidence, being affidavits and expert reports filed and served in the ordinary course, rather than under compulsory process; alternatively, if the Harman undertaking does apply, special circumstances warrant release, as use of the Evidence is necessary for answering challenges and claims closely connected to the original proceedings between the same parties.

Jurisdiction
Australia
Judgment Date
20 August 2021
Procedural Posture
Notice of Motion / Final Determination on Plaintiff's Application for Release From Harman Undertaking
Outcome
Application allowed; no order as to costs
Legal Topics
['implied Undertakings' 'use of Evidence in Other Proceedings' 'harman Undertaking' 'release From Undertaking' 'costs Order']
['equity' 'civil Procedure'] ['implied Undertakings' 'use of Evidence in Other Proceedings' 'harman Undertaking' 'release From Undertaking' 'costs Order']

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Procedural Posture

Notice of Motion / Final Determination on Plaintiff's Application for Release From Harman Undertaking

Legal Issues

  1. 1 ['Whether the implied undertaking (Harman undertaking) applies to evidence served by the defendant' 'Whether the plaintiff should be released from the Harman undertaking to use the evidence in other proceedings']

Ratio Decidendi

The implied undertaking does not apply to the Evidence, being affidavits and expert reports filed and served in the ordinary course, rather than under compulsory process; alternatively, if the Harman undertaking does apply, special circumstances warrant release, as use of the Evidence is necessary for answering challenges and claims closely connected to the original proceedings between the same parties.

Court Disposition

Application allowed; no order as to costs

Orders

  • ['The plaintiff and any legal representative of the plaintiff may use specified affidavits and expert reports (the Evidence) for purposes of Federal Circuit Court proceeding MLG 597 of 2021 and District Court proceeding 2021/195454.' 'No order as to costs of the application.']