Case: Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: followed
Ms Collins then submitted that a balancing exercise was involved, essentially between the forensic significance of the material and the harm that would be done to the public good by disclosure. In essence, Mr Halley accepted that proposition the correctness of which is borne out by a recent judgment of the Full Court of this Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Limited (2008) 169 FCR 227 at 232 [22]. The Full Court (Heerey, Moore and Tracey JJ) set out the well known passage from Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at 38-39, which was in these terms: The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. 10 Quite apart from the Full Court's decision to that effect, I am, of course, bound by what was said in Sankey v Whitlam . Ms Collins then submitted that I should take into account the clear relevance of the material to the present proceedings. She submitted that the relevance was plain from the terms of the notice to produce. The notice to produce was in the following terms: 1. All documents provided to Mr David McGuinness on or before 10 October 2008 in relation to the decision or opinion recorded in the letter from Ms Dodds and Mr Astar to Atanaskovic Hartnell dated 10 October 2008 that it will not be possible for the First, Second and Third Applicants to have the same legal representatives, or different representatives each from Atanaskovic Hartnell, at their examinations under section 19 of the ASIC Act (" the Decision "). 2. All documents provided to Mr McGuinness in relation to the Reasons for the Decision pursuant to s.13 of the Administrative Decisions (Judicial Review) Act Re: Legal Representation of Mr Collard, Ms Li and Ms Zeng at their Examinations pursuant to s.19 of the ASIC Act signed by him and dated 22 October 2008. ASIC produced MFI 1 in answer to both paragraphs of that notice to produce. In Ms Collins' submission, it followed that the relevance of the material was established. 11 Mr Halley submitted, broadly speaking, that perhaps not that much could be gleaned from production, particularly where the issues in the proceedings were effectively about whether a particular administrative decision should be set aside. I approach the matter on the basis that the documents are relevant. However, beyond that, there is little that can usefully be said. Ms Collins submitted that the balancing exercise should take into account the possibility that a confidentiality regime could be fashioned which would limit access to the Applicants' advisors. In her submission, it was significant that Mr McGuinness did not say in his affidavit that such a regime could not work. 12 Mr Halley submitted that disclosure to the legal representatives should not occur due to the risk of inadvertent disclosure. Further, he submitted that a legal representative holding such information might be compromised even if only subconsciously. I do not read too much into the fact that Mr McGuiness did not deal with the possible alternative of a confidentiality regime, particularly where it was agreed that he should not be cross-examined. I do think that there may be risks of unintended subconscious disclosure. However, the extent of the risk is difficult to discern without viewing the documents. Ms Collins then submitted that to the extent that informers were involved, their names and any other identifying aspects of the materials could be redacted.