Case: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227
Outcome: followed
28 April 2009 I overruled a threshold or preliminary objection to the motion by ASIC and the second and third respondents, Brookfield Multiplex Limited and Brookfield Multiplex Funds Management Limited (collectively "Multiplex") that the applicants were precluded from bringing the motion as it re-litigated a matter not open to them on an interlocutory hearing because the matter had already been determined against them by the decision of the Full Court of the Federal Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227. ASIC and Multiplex submitted that the motion amounted to an abuse of process. On the same day, I dismissed a notice of motion filed by Multiplex on 13 March 2009 seeking orders that the applicants' motion be dismissed or permanently stayed as an abuse of process of the Court. ASIC sought leave to appeal against the orders. The Full Court granted leave to appeal, allowed the appeal, set aside the orders and ordered that the thirty-six specified documents and forty-one transcripts of examination of twenty-three witnesses produced to the Court pursuant to the subpoena were protected from production to, and inspection by, the applicants and Multiplex on the ground of PII: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 ; (2008) 169 FCR 227. An application by the applicants to the High Court for leave to appeal was refused. The parties were in agreement as to the process of analysis and consideration which I should undertake in determining a challenge to an application for production and inspection of documents produced under subpoena on the ground of PII because the documents might tend to disclose the identity of an informer or informers. The first step is to determine whether the documents disclose the existence of an informer or informers to ASIC. The second step is to determine whether the documents tend to identity an informer or informers to ASIC. If they do, the second step also involves determining whether the documents can be redacted or masked in such a way that, in their masked form, it will not be possible, even by the conveying of "a shrewd idea", to identify the informer or informers. The third step is to undertake a balancing exercise and determine whether, in the circumstances of this case, the documents to the extent to which they are not redacted or masked are of sufficient importance for the applicants' conduct of the proceeding to outweigh the importance of not disclosing the identity of the informer or informers. ASIC and Multiplex submitted that the Full Court had decided this balancing exercise against the applicants and that it was not open to the applicants to raise this issue and that I was bound by the Full Court's finding. The position and circumstances facing the Court on the hearing of the present motion are different from the circumstances facing the Court at the time I made the order on 14 November 2007 dismissing ASIC's application. The relevant different circumstances are as follows: (a) it has been made public, and the applicants are now aware, that the basis for ASIC's claim that the documents and transcripts are protected from production and inspection on the ground of PII is that inspection will disclose the identity of an informer or informers to ASIC. The exact number of informers is irrelevant for present purposes; (b) the identity of Mr Stuart Cummins as an informer to ASIC in relation to the affairs of Multiplex has been disclosed. The consequence is that there is no longer any confidentiality attached to Mr Cummins' identity as an informer to ASIC or as a person entitled to protection pursuant to Pt 9.4AAA of the Corporations Act 2001 (Cth) ("the Act"); (c) the Full Court handed down its decision on 4 July 2008. As a result of the disclosure of the identity of Mr Cummins as an informer to ASIC, ASIC accepts, subject to it reserving its rights in respect of any appeal which it may seek to bring against my ruling on 28 April 2009 that production and inspection of the following documents cannot be objected to by it on the ground that they would or might disclose Mr Cummins' identity as an informer to ASIC. The documents numbered: (a) 1, 5, 8, 9, 10, 13, 15, 16, 20, 21, 23, 24, 25, 28, 29, 30, 35 and 36 on the ground that they would or might disclose Mr Cummins' identity as a protected discloser and informer to ASIC. (b) 4, 6, 7, 11, 12, 14, 18, 19, 22, 26, 27, 31 and 32 in redacted or masked form. ASIC still opposes the production and inspection of documents numbered 2, 3, 17, 33 and 34 on the ground that inspection of those documents would or might disclose the identity of an informer or informers to ASIC who are entitled to protection in respect of their disclosures to ASIC pursuant to Pt 9.4AAA of the Act. For the same reason ASIC continues to object to the production and inspection of all forty-one transcripts.