Boys v Australian Securities Commission - [2001] FCA 1325

FEDERAL COURT OF AUSTRALIA
Boys v Australian Securities Commission [2001] FCA 1325
PRACTICE AND PROCEDURE – subpoenaed documents – implied undertaking against collateral use – whether leave should be granted to make use of documents in proceedings in another court – whether “special circumstances”
Boys v Australian Securities Commission (1997) 24 ACSR 1 cited
Boys v Australian Securities Commission (1998) 26 ACSR 464 cited
Re Geneva Finance Limited; Quigley (Receiver and Manager appointed) v Cook (1992) 7 WAR 496 cited
ESSO Australia Resources Limited & Ors v Plowman & Ors (1995) 183 CLR 10 cited
Minister for Education v Bailey (2000) 23 WAR 149 referred to
Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220 referred to
Grosvenor Hill (QLD) Pty Ltd v Barber (1994) FCR 301 cited
Worthley v England; Re Excel Finance Corporation Ltd (1994) 14 ACSR 407 cited
Emanuel Investments Pty Ltd (in liq); Saint v Macks (Burley J, 24 June 1999, unreported) referred to
cf Whelan v Australian Securities Commission (1994) 13 ACSR 427 referred to
ALAN HAROLD BOYS, RONALD GEORGE HOWARD, DESMOND FRANK CRAWLEY, ANTHONY HAYES DOUGLAS-BROWN & ANTHONY HOWARD LEIBOWITZ v AUSTRALIAN SECURITIES COMMISSION, ERNST & YOUNG, PHILLIPS FOX, PETER REYMOND QUIGLEY and KEVIN LEE CHRISTENSEN
WAG 123 of 1994
RD NICHOLSON J
14 SEPTEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 123 of 1994

BETWEEN:

ALAN HAROLD BOYS
RONALD GEORGE HOWARD
DESMOND FRANK CRAWLEY
ANTHONY HAYES DOUGLAS-BROWN
ANTHONY HOWARD LEIBOWITZ
APPLICANTS

AND:

AUSTRALIAN SECURITIES COMMISSION
FIRST RESPONDENT

ERNST & YOUNG (a firm)
SECOND RESPONDENT

PHILLIPS FOX (a firm)
THIRD RESPONDENT

PETER REYMOND QUIGLEY
FOURTH RESPONDENT

KEVIN LEE CHRISTENSEN
FIFTH RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

14 SEPTEMBER 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.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 discharge the examination summonses in Supreme Court proceeding COR 222 of 2001.
2.Applicants’ costs be paid by the fourth respondent and Perpetual Trustees (WA) Limited and be paid forthwith.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 123 of 1994

BETWEEN:

ALAN HAROLD BOYS
RONALD GEORGE HOWARD
DESMOND FRANK CRAWLEY
ANTHONY HAYES DOUGLAS-BROWN
ANTHONY HOWARD LEIBOWITZ
APPLICANTS

AND:

AUSTRALIAN SECURITIES COMMISSION
FIRST RESPONDENT

ERNST & YOUNG (a firm)
SECOND RESPONDENT

PHILLIPS FOX (a firm)
THIRD RESPONDENT

PETER REYMOND QUIGLEY
FOURTH RESPONDENT

KEVIN LEE CHRISTENSEN
FIFTH RESPONDENT

JUDGE:

RD NICHOLSON J

DATE:

14 SEPTEMBER 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

A notice of motion is brought on behalf of the applicants seeking the waiver of all undertakings in relation to the use of documents identified in the evidence as the “Perpetual Documents” and the “1991…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1325
Decision Date: 14 SEPTEMBER 2001

CaseChat Overview and Summary

The case involves Boys and the Australian Securities Commission. The dispute centres on the use of certain documents, specifically the "Perpetual Documents" and the "1991 Affidavit," in a legal proceeding in the Supreme Court. The applicants sought to modify existing undertakings that restricted the use of these documents to allow them to support their application to discharge examination summonses in a separate Supreme Court case. The legal issues before the court were whether the undertakings should be modified to permit the use of the documents in the Supreme Court proceeding, and if so, under what conditions.

The court considered that a significant portion of the Perpetual Documents was already in the public domain and that reading these pages together with the remainder of the documents would provide better understanding. The court also noted that the applicants should ensure the documents are not made available to the judicial officer prior to any argument about estoppel based on findings made in Boys. The court concluded that the implied undertakings should be modified to allow the applicants to use the documents as sought. This modification would enable the applicants to effectively support their application to discharge the examination summonses in the Supreme Court proceeding.

The court ordered that the undertakings in relation to the Perpetual Documents and the 1991 Affidavit be modified to permit the applicants to use these documents in support of their application to discharge the examination summonses in the Supreme Court proceeding. Additionally, the court ordered that the applicants’ costs be paid by the fourth respondent and Perpetual Trustees (WA) Limited, and that these costs be paid forthwith. This decision ensures that the applicants can proceed with their legal application while adhering to the conditions set by the court regarding the disclosure and use of the documents.

Orders

Orders of the court

1. 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 discharge the examination summonses in Supreme Court proceeding COR 222 of 2001.

2. Applicants’ costs be paid by the fourth respondent and Perpetual Trustees (WA) Limited and be paid forthwith.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is another relevant circumstance and that is that a significant portion of the Perpetual Documents namely, pages 162 – 177 inclusive are already in the public domain. It would appear that those documents could be better understood read together with the remainder of the Perpetual Documents.Conclusion For these reasons I consider that both in relation to the Perpetual Documents and the 1991 Affidavit the implied undertakings should be modified as sought. It will be for the applicants in utilising the documents in the Supreme Court proceeding to ensure the documents are not made available to the judicial officer prior to the making of any argument that the officer estopped as a consequence of findings made in Boys.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 123 of 1994

BETWEEN:	ALAN HAROLD BOYS RONALD GEORGE HOWARD DESMOND FRANK CRAWLEY ANTHONY HAYES DOUGLAS-BROWN ANTHONY HOWARD LEIBOWITZ APPLICANTS
AND:	AUSTRALIAN SECURITIES COMMISSION FIRST RESPONDENT ERNST & YOUNG (a firm) SECOND RESPONDENT PHILLIPS FOX (a firm) THIRD RESPONDENT PETER REYMOND QUIGLEY FOURTH RESPONDENT KEVIN LEE CHRISTENSEN FIFTH RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	14 SEPTEMBER 2001
WHERE MADE:	PERTH

JUDGE:	RD NICHOLSON J
DATE:	14 SEPTEMBER 2001
PLACE:	PERTH