Moage Ltd (in liq) v Jagelman - [2002] NSWSC 953

Reported Decision:
43 ACSR 173

New South Wales

Supreme Court

CITATION: Moage Ltd v Jagelman and Others [2002] NSWSC 953 revised - 31/10/2002

FILE NUMBER(S): SC 50067/01

HEARING DATE(S): 11/10/02

JUDGMENT DATE: 15 October 2002

PARTIES :

Moage Limited (in liquidation) - Plaintiff
County Natwest Securities Australia Ltd - Fifth Defendant - Applicant
Jagelman and Others - Defendants

JUDGMENT OF: Gzell J

COUNSEL : Ms Wendy Harris - Plaintiff/Respondent
Mr A Davis - 1st and 2nd Defendants
Mr TGR Parker - 5th Defendant/Applicant

SOLICITORS: Kemp Strang Lawyers
Allens Arthur Robinson
Snelgrove Boyle Neilson Solicitors

CATCHWORDS: PROCEDURE - Discovery and interrogatories - Affidavits disclosed under court order - Implied undertaking not to use information for collateral or ulterior purpose - Undertaking at end when affidavits read in open court - Application for release from undertaking to disclose to ASIC and Commonwealth DPP - Balancing public interest in investigation of criminal offences against public interest in maintenance of confidentiality - Motive of applicant - ASIC and DPP not wishing to be heard - Disclosure of affidavits three years before application - Application following publicity deponent to return to Australia to give evidence under DPP statement no likelihood of arrest for past criminal matters and no fresh charges in contemplation

LEGISLATION CITED: Companies (Acquisition of Shares) (Victoria) Code
Foreign Takeovers Act 1975 (Cth)
Corporations Act 2001 (Cth)

CASES CITED: Home Office v Harman [1983] 1 AC 280 at 302
Bailey v Australian Broadcasting Corporation (1995) 1 Qd R 476 at 484
Riddick v Tims Board Mills Ltd [1977] QB 881 at 895
Ainsworth v Hanrahan (1991) 25 NSWLR 155 at 166-168,169-170
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 at 501-511
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223
Abigroup Ltd v Atkins (1997) NSWLR 623 at 627-628
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 at [15]
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 32-33
Crest Homes Plc v Marks [1987] 1 AC 829 at 854
Prudential Assurance Co v Fountain Page Ltd [1991] 3 All ER 878 at 895
Minister for Education v Bailey (2000) 23 WAR 149 at 157
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578
Rank Film Distrubutors Ltd v Video Information Centre [1982] AC 380 at 447
The Australian Competition and Consumer Commission v Telstra Corporation Ltd (2000) 96 FCR 317 at 321

DECISION: Application dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

GZELL J

TUESDAY 15 OCTOBER 2002

50067/01 MOAGE LIMITED (in liquidation) v JAGELMAN & OTHERS

JUDGMENT

1 The fifth defendant applied by notice of motion for leave to provide copies of affidavits and exhibits served on it by the plaintiff by direction of the court to the Commonwealth Director of Public Prosecutions (“DPP”) and the Australian Securities and Investments Commission (“ASIC”). The application is supported by the first and second defendants.

2 The material…

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: [2002] NSWSC 953
Decision Date: 15 October 2002

CaseChat Overview and Summary

In the matter of Moage Ltd (in liq) versus Jagelman, the court was presented with a dispute involving the disclosure of affidavits under a court order. The liquidator of Moage Ltd sought the disclosure of certain affidavits, which were subsequently ordered to be disclosed by the court. The primary issue for the court to determine was whether the applicant was bound by an implied undertaking not to use the information contained in the affidavits for any collateral or ulterior purpose. Additionally, the court needed to balance the public interest in the investigation of potential criminal offences against the public interest in maintaining confidentiality.

The court examined the circumstances surrounding the disclosure of the affidavits, including the timing of the disclosure and the applicant's motive in seeking to be released from the undertaking. It was noted that the affidavits had been disclosed three years prior to the application and that the applicant's motive was to avoid the need to return to Australia to give evidence under a Director of Public Prosecutions (DPP) statement. Furthermore, it was acknowledged that neither the Australian Securities and Investments Commission (ASIC) nor the Commonwealth Director of Public Prosecutions (DPP) wished to be heard on the matter. The court concluded that there was no likelihood of arrest for past criminal matters and no fresh charges in contemplation.

The court held that the applicant was bound by an implied undertaking not to use the information contained in the affidavits for any collateral or ulterior purpose. However, the court also recognised the public interest in maintaining confidentiality and the potential consequences for the applicant if they were to return to Australia to give evidence. Consequently, the court granted the application for release from the undertaking, allowing the applicant to disclose the affidavits to ASIC and the Commonwealth DPP. This decision balanced the competing public interests and the specific circumstances of the case.

Orders