Australian Securities and Investments Commission v Pattison; Ex parte

[2011] VSC 252

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 0469 of 2011

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION	Plaintiff
v
PAUL PATTISON	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2011
DATE OF RULING:	3 May 2011
CASE MAY BE CITED AS:	ASIC v Pattison; Ex parte Mircevski
MEDIUM NEUTRAL CITATION:	[2011] VSC 252

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PRACTICE AND PROCEDURE ––application by a party to a Federal Court proceeding to use in the Federal Court proceeding an affidavit filed by ASIC in the Supreme Court of Victoria in an application by ASIC to remove the defendant as liquidator of several companies – Harman principles discussed – application granted

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APPEARANCES:	Counsel	Solicitors
For Mr A  Mircevski	Mr G Slater	A I F Lucas and Co
For the Defendant	No appearance

HIS HONOUR:

1. Mr Mircevski seeks[1] an order that he may use an affidavit and the exhibits thereto of Brett Stanley Sanders,[2] filed by ASIC  in this Court in proceedings between ASIC and Mr Pattison, in  proceedings in the Federal Court of Australia between Mr Mircevski and Mr Pattison.

   [1]Summons dated 2 May 2011

   [2]Sworn 7 February 2011

1. Mr Slater of counsel appeared for Mr Mircevski.  Mr Green announced to the Court that he appears for Mr Pattison in the Federal Court proceedings, but does not seek to appear for him on this application.

1. The Court received into evidence a letter dated 3 May 2011 by the Australian Securities and Investment Commission that neither consents or opposes the summons.

1. Mr Mircevski has instituted proceedings in the Federal Court of Australia for an order under s 179 of the Bankruptcy Act to inquire into the activities of Mr Pattison as Mr Mircevski’s trustee in bankruptcy. Mr Slater says, and I accept, that s 179 of the Bankruptcy Act 1966 is the Bankruptcy Act equivalent of s 536 of the Corporations Act 2001 and that it is necessary for his client to establish the need for an inquiry before an inquiry may be ordered.

1. In proceedings in this Court,[3] ASIC applied to remove Mr Pattison as the liquidator or receiver of some 104 companies.  From reviewing the file, it appears that the affidavit of Mr Sanders was the basis of ASIC’s application.  The file discloses that on 28 February of this year, orders were made by consent, inter alia, that other  liquidators be appointed as liquidators of the companies referred to in the order in lieu of Mr Pattison.  Those orders were made upon the basis that Mr Pattison had agreed voluntarily to cease carrying on his practice as an official and registered liquidator and that he would be resigning his posts from the 104 companies.

   [3]Matter no 0469 of 2011

1. Mr Slater has provided me with written submissions.  I direct these be placed on the court file.  Mr Slater acknowledges that he is aware of the obligation on counsel in ex parte matters to inform the court of all relevant legal principles and facts, whether assisting his case or not. 

1. Mr Slater’s submissions address the Harman principle.[4]  He contends that the Harman principle is limited to circumstances where documents are provided under court compulsion and does not apply to an affidavit voluntarily filed.  He relied on the decision of J. Forrest J in Rowe v Silverstein.[5]  There J. Forrest J held that the Harman principle only applied to information provided under compulsion.  He held that an affidavit voluntarily filed in support of an application was not covered by the Harman principle. J Forrest J said:[6]

[7]    It is now settled law that where documents are required to be produced under compulsion by reason of a rule of Court or specific order (express or implied), there is an obligation upon the other party or parties to the proceeding to use them only for the purpose related to the subject litigation. For the documents to be used in other litigation requires the leave of the Court.

In Hearne v Street, Hayne, Heydon and Crennan JJ said:

“Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.” (My emphasis). (citation omitted)

[4]           Home Office v Harman [1983] 1 AC 280

[5][2009] VSC 157 (J Forrest J)

[6]Ibid at [7]

1. I am not satisfied that the affidavit was read into evidence.  It appears, from the order, that the matter was dealt with by consent before the affidavit was read into evidence.  Nevertheless, I accept it was voluntarily filed .  It was filed in support of an application by ASIC.  The affidavit was not produced or filed under compulsion.  It was prepared and filed pursuant to ASIC’s duty and obligation to enforce the provisions of the Corporations Act2001 and protect the public accordingly.

1. I can see no good reason why the disclosure of this affidavit, or its further use in proceedings in the Federal Court, is prejudicial to any party.   Accordingly, I will give leave to Mr Mircevski to uplift the affidavit from the court file, copy it and use it in the Federal Court.  I will make orders accordingly.