Philipsen v Astora Women's Health, LLC

In the case of Philipsen v Astora Women's Health, LLC, the court considered an application for release from a Harman undertaking in relation to health records and claimant information and to disclose information in the Australian Documents for certain permitted purposes in connection with US Chapter 11 proceedings. The central issue was whether there were "special circumstances" to justify exercising the discretion to release the party from the Harman undertaking. The case also addressed the authorisation to use the Australian Documents pursuant to art 25(1) of the Model Law on Cross-Border Insolvency and to disclose information in the Australian Documents for the permitted purposes, considering the implications of Commonwealth, State, and Territory privacy legislation on the use and disclosure of personal information in the Australian Documents.

The court examined the various factors to determine if "special circumstances" existed, including the attitudes of the document authors, the necessity to notify creditors of the Chapter 11 proceedings, and compliance with US law. Given the sensitive nature of the documents, which included personal data such as health information, the court found that the requirement to notify creditors and comply with US law, coupled with the proposed regime to preserve confidentiality, constituted special circumstances. The court concluded that Australian creditors of Astora would likely accept the inclusion of their names in the list of creditors, provided their names were redacted in public documents and held in confidence by those entitled to receive the unredacted versions.

The court granted the application for release from the Harman undertaking and authorised the use and disclosure of the Australian Documents for the permitted purposes, while ensuring that date of birth, height, weight, and Medicare numbers were not included in any information disclosed. The court's decision balanced the need for disclosure in the Chapter 11 proceedings with the protection of personal and health information in accordance with applicable privacy laws. The final orders included releasing Astora from the Harman undertaking, authorising the use and disclosure of the Australian Documents for the permitted purposes, and vacating previous orders and listings in the proceedings.