Lombe v Pollak

FEDERAL COURT OF AUSTRALIA

Lombe v Pollak [2004] FCA 593

DAVID JOHN FRANK LOMBE (AS TRUSTEE OF THE BANKRUPT ESTATE
OF JOSEPH POLLAK) v AANA POLLAK (ALSO KNOWN AS
ANNA POLLAK AND AANA CZEIZLER)

N7209 of 2003

JACOBSON J
SYDNEY
29 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7209 of 2003

BETWEEN:	DAVID JOHN FRANK LOMBE (AS TRUSTEE OF THE BANKRUPT ESTATE OF JOSEPH POLLAK) APPLICANT
AND:	AANA POLLAK (ALSO KNOWN AS ANNA POLLAK AND AANA CZEIZLER) RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	29 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.

Insofar as it may be necessary, leave be granted to the applicant to give discovery of the documents set out in Schedule A to the Notice of Motion filed on 30 March 2004 (the “Motion”)

2.Insofar as it may be necessary, leave be granted to the applicant to rely on the document set out in Schedule B to the Motion for the purpose of his evidence in these proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7209 of 2003

BETWEEN:	DAVID JOHN FRANK LOMBE (AS TRUSTEE OF THE BANKRUPT ESTATE OF JOSEPH POLLAK) APPLICANT
AND:	AANA POLLAK (ALSO KNOWN AS ANNA POLLAK AND AANA CZEIZLER) RESPONDENT

JUDGE:	JACOBSON J
DATE:	29 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is a motion by the applicant (“the Trustee”) to be released from the implied undertaking which flows from the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] AC 280 (“Harman”) not to use documents produced by a party in the course of discovery otherwise than in relation to the litigation in which the documents were disclosed. 

2. That there is such an implied undertaking has been affirmed by the High Court; see Esso Australia Resources Limited v Plowman (1994-1995) 183 CLR 10 at 32.

3. The motion is not opposed by the respondent to the proceedings or by the National Australia Bank or Dr Pollak, both of whom appeared at the hearing.  Nevertheless, the orders are not made by consent.  Dr Pollak’s sister, Mrs Ilana Stern, may have had an interest in the outcome of the motion.  She was served with a copy of it but did not appear at the hearing.  It was not until the hearing resumed on 29 April 2004 that the respondent and Dr Pollak indicated that they did not oppose the relief sought.

4. For reasons mentioned below, the motion is brought out of an abundance of caution but that is not to say that it has not been  properly brought before me. 

5. In the present proceedings the Trustee claims that transfers of the interests of Dr Joseph Pollak to his wife, who is the respondent to the proceedings, are void against the Trustee under s 121 of the Bankruptcy Act 1966 (Cth).