[ASIC] v Pattison, Paul; Ex parte Micervski 
  Supreme Court of Victoria. Practice Court 


IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
PRACTICE COURT
No. 0469 of 2011
AUSTRALIAN SECURITIES AND
INVESTMENTS COMMISSION
Plaintiff
v
PAUL PATTISON Defendant
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JUDGE: ROBSON J
WHERE HELD: Melbourne
DATE OF HEARING: 3 May 2011
DATE OF RULING: 3 May 2011
CASE MAY BE CITED AS: ASIC v Pattison; Ex parte Mircevski
MEDIUM NEUTRAL CITATION: [2011] VSC 252
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PRACTICE AND PROCEDURE ––application by a party to a Federal Court proceeding to
use in the Federal Court proceeding an affidavit filed by ASIC in the Supreme Court of
Victoria in an application by ASIC to remove the defendant as liquidator of several
companies – Harman principles discussed – application granted
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APPEARANCES: Counsel Solicitors
For Mr A Mircevski Mr G Slater A I F Lucas and Co
For the Defendant No appearance

HIS HONOUR:
1 Mr Mircevski seeks1
 an order that he may use an affidavit and the exhibits thereto of
Brett Stanley Sanders,2
 filed by ASIC in this Court in proceedings between ASIC and
Mr Pattison, in proceedings in the Federal Court of Australia between Mr Mircevski
and Mr Pattison.
2 Mr Slater of counsel appeared for Mr Mircevski. Mr Green announced to the Court
that he appears for Mr Pattison in the Federal Court proceedings, but does not seek
to appear for him on this application.
3 The Court received into evidence a letter dated 3 May 2011 by the Australian
Securities and Investment Commission that neither consents or opposes the
summons.
4 Mr Mircevski has instituted proceedings in the Federal Court of Australia for an
order under s 179 of the Bankruptcy Act to inquire into the activities of Mr Pattison as
Mr Mircevski’s trustee in bankruptcy. Mr Slater says, and I accept, that s 179 of the
Bankruptcy Act 1966 is the Bankruptcy Act equivalent of s 536 of the Corporations Act
2001 and that it is necessary for his client to establish the need for an inquiry before
an inquiry may be ordered.
5 In proceedings in this Court,3
 ASIC applied to remove Mr Pattison as the liquidator
or receiver of some 104 companies. From reviewing the file, it appears that the
affidavit of Mr Sanders was the basis of ASIC’s application. The file discloses that on
28 February of this year, orders were made by consent, inter alia, that other
liquidators be appointed as liquidators of the companies referred to in the order in
lieu of Mr Pattison. Those orders were made upon the basis that Mr Pattison had
agreed voluntarily to cease carrying on his practice as an official and registered
liquidator and that he would be resigning his posts from the 104 companies.
6 Mr Slater has provided me with written submissions. I direct these be placed on the
1
 Summons dated 2 May 2011
2
 Sworn 7 February 2011
3
 Matter no 0469 of 2011  2 T0252
court file. Mr Slater acknowledges that he is aware of the obligaation on counsel in
ex parte matters to inform the court of all relevant legal principles and facts, whether
assisting his case or not.
7 Mr Slater’s submissions address the Harman principle.4
 He contends that the Harman
principle is limited to circumstances where documents are provided under court
compulsion and does not apply to an affidavit voluntarily filed. He relied on the
decision of J. Forrest J in Rowe v Silverstein.
5
 There J. Forrest J held that the Harman
principle only applied to information provided under compulsion. He held that an
affidavit voluntarily filed in support of an application was not covered by the
Harman principle. J Forrest J said:6
[7] It is now settled law that where documents are required to be produced
under compulsion by reason of a rule of Court or specific order (express or
implied), there is an obligation upon the other party or parties to the
proceeding to use them only for the purpose related to the subject litigation.
For the documents to be used in other litigation requires the leave of the
Court.
In Hearne v Street, Hayne, Heydon and Crennan JJ said:
“Where one party to litigation is compelled, either by reason ofa rule of court, or by reason of a specific order of the court, or
otherwise, to disclose documents or information, the party
obtaining the disclosure cannot, without the leave of the court, use it
for any purpose other than that for which it was given unless it is
received into evidence. The types of material disclosed to which
this principle applies include documents inspected after
discovery, answers to interrogatories, documents produced on
subpoena, documents produced for the purposes of taxation of
costs, documents produced pursuant to a direction from an
arbitrator, documents seized pursuant to an Anton Piller order,
witness statements served pursuant to a judicial direction and
affidavits.” (My emphasis). (citation omitted)
8 I am not satisfied that the affidavit was read into evidence. It appears, from the
order, that the matter was dealt with by consent before the affidavit was read into
evidence. Nevertheless, I accept it was voluntarily filed . It was filed in support of
an application by ASIC. The affidavit was not produced or filed under compulsion.
4
 Home Office v Harman [1983] 1 AC 280
5
 [2009] VSC 157 (J Forrest J)
6
Ibid at [7]  3 T0252
It was prepared and filed pursuant to ASIC’s duty and obligation to enforce the
provisions of the Corporations Act 2001 and protect the public accordingly.
9 I can see no good reason why the disclosure of this affidavit, or its further use in
proceedings in the Federal Court, is prejudicial to any party. Accordingly, I will
give leave to Mr Mircevski to uplift the affidavit from the court file, copy it and use it
in the Federal Court. I will make orders accordingly.