Mitchell Morgan Finance Pty Ltd v Planhall Pty Ltd [2006] NSWSC 131

New South Wales Supreme Court

CITATION : Mitchell Morgan Finance Pty Ltd v Planhall Pty Ltd [2006] NSWSC 131

HEARING DATE(S) : 24 February 2006

JUDGMENT DATE : 24 February 2006

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Leave granted to Commonwealth DPP to use documents filed in these proceedings in criminal prosecution.

CATCHWORDS : PROCEDURE [429] – Discovery and interrogatories – Discovery of documents – Generally – Release from implied undertaking – Court will not release undertaking save for special circumstances – Release for use in prosecution of serious criminal offences.

Australian Trade Commission v McMahon (1997) 73 FCR 211 CASES CITED : Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Harman v Home Department State Secretary [1983] AC 280 Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173

Mitchell Morgan Finance Pty Limited (P) PARTIES : Planhall Pty Limited (In Liquidation) (D) Commonwealth Director of Public Prosecutions (A)

FILE NUMBER(S) : SC 2707/04

C Bavin, Solicitor (P) COUNSEL : No appearance (D) C A Webster (A)

Hunt & Hunt (P) SOLICITORS : No appearance (D) Commonweath Director of Public Prosecutions (A)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 24 FEBRUARY 2006

2707/04 MITCHELL MORGAN FINANCE PTY LIMITED v PLANHALL PTY LIMITED JUDGMENT 1 HIS HONOUR: Harold van Haltren is being prosecuted by the Commonwealth DPP (with the assent of the New South Wales DPP) for various offences of dishonesty under Commonwealth laws and under State laws. Those proceedings are still at an early stage. Although the proceedings have been commenced, a committal hearing in the Local Court has not yet taken place. 2 The Commonwealth DPP, by motion in these proceedings, applied to this Court for leave to use as evidence in the criminal proceedings various documents filed in these proceedings, principally affidavits of Harold van Haltren sworn either in that name or in another name used by him. Mr van Haltren's position in these proceedings is that he was a director of the defendant company, Planhall Pty Limited. The documents have come into the applicant's possession either from solicitors engaged at some prior stage in these proceedings or upon the execution at solicitors' offices of search warrants obtained by the Police. The documents having been filed for the purposes of these proceedings, and there being no evidence that they have been at any stage read in open court, there are attached to people into whose possession they come implied undertakings concerning their use under the principle in Harman v Home Department State Secretary [1983] AC 280. 3 The applicant very properly applied to this court to be released from those undertakings, so as to permit the use of the documents in the criminal proceedings which I have mentioned. The Harman undertaking is not absolute or perpetual. Where it arises from the creation or use of documents in proceedings in this Court, it may, in appropriate circumstances, be released by this Court. However, the principle is that the release will be given from the undertaking only where there are "special circumstances": see Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 37 per Brennan J (as his Honour then was). Without otherwise going into the concept of special circumstances as it operates in the area of release from Harman undertakings, the courts have said that, in most cases at least, permission will be given to a prosecuting authority to use information for the purposes of a prosecution because of the public interest in appropriate investigation and prosecution of offences which have been committed: see Australian Trade Commission v McMahon (1997) 73 FCR 211 per Lehane J at 217; Moage Ltd (in liq) v Jagelman (2002) 43 ACSR 173 per Gzell J at [21]. The purpose for which the release is sought here is, as I have made plain, for use in the prosecution of serious criminal offences. 4 I take into account that there is nothing untoward or inappropriate about the manner in which the documents have come into the possession of the applicant. 5 I further take into account that the plaintiff in these proceedings, having been served with this motion, has appeared by his solicitor and raises no objection to the making of the orders sought. Equally, the defendant, of which Harold van Haltren was a director, was served and did not appear to object to the release of the undertaking. Furthermore, the evidence shows that the motion has been brought to the attention of the solicitors appearing for Harold van Haltren in the committal proceedings and that they have explicitly acknowledged receipt of the notice of motion and indicated that it is not intended to take any steps to resist the making of this order. 6 In all of those circumstances, it is my view that the order for release from the undertaking ought to be made as sought.