Case: National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315
Outcome: followed
respect of the factor of "exceptional circumstances", the observation of the majority of the High Court in Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 178 that: "A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust ..." , is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 (" Manning ") at par [46]: "... These 'general rules' and 'ordinary rules of practice' [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the 'over-riding principle governing the approach of the Court to the interlocutory applications', namely 'that the court should do whatever the interests of justice require in the particular circumstances of the case': Brimaud v Honeysett Instant Print Pty Ltd (at 4)" , and of Palmer A-JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318: "...the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)". It is to be noted that in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 , Palmer A-JA said that nothing said by the majority in Manning could be construed: "... as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order indeed, quite to the contrary: see eg, per Heydon JA (at 156 [72])". I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants' motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).