Case: Zarro v Australian Securities Commission (1992) 36 FCR 40
Outcome: considered
Ms Collins, who appeared for the Applicants, submitted first that the Court should examine the documents in MFI 1 for itself to determine the claim. On the other hand, Mr Halley SC, who appeared with Ms Allars for ASIC, submitted that in the first instance the Court should determine the matter on the affidavit of Mr McGuinness and only if it proves not possible to determine the claim should the Court look at the material. In the event that the claim was not obvious from that process, the Court should permit further evidence to be put on. Mr Halley drew particular attention to that which had fallen from Gummow J in the decision of the Full Federal Court in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61: Where a claim has not been propounded in proper form, the court has various avenues open to it before taking its final decision in the matter. It may order that unless within a specified time a further affidavit be sworn within a specified time which shows the claim to privilege with greater particularity, the documents in question should be produced for inspection ... The court may call for a further affidavit from the same deponent to clarify some point or amplify the claim; or it may require the tender of an affidavit sworn by a more senior officer or the relevant Minister. 8 Mr Halley says that the documents contained in MFI 1 are pertinent to an ongoing investigation and that, generally speaking, they would be covered by public interest immunity. In my opinion, Mr Halley's submissions on this are to be preferred. Generally, if a claim for public interest immunity can be substantiated without the Court seeing the material, that is the preferable course. This is particularly so in relation to certain classes of documents such as cabinet documents. In view of the exigencies of the present situation, if that affidavit does not suffice, however, I will inspect the documents myself, notwithstanding what was said by Gummow J in Zarro . If that does not suffice, then I will permit a further affidavit to be filed. 15 By itself, I do not think that this explanation is sufficient for me to form a view that the documents are the proper subject of a claim for public interest immunity. More is that so where it does not appear from Mr McGuinness' affidavit that he has, in fact, examined the documents himself. I propose, therefore, to examine this document in due course. I am fortified in that approach by what was said by Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 50-51: In these days with large government instrumentalities and agencies involved in time consuming and extensive investigations into possible irregularities and offences, great care is required by the bodies themselves in ensuring both that the correct person within the structure of the organisation (that is, a person who knows the facts, has seen the documents and who is preferably at a high level within the organisation) swears the appropriate affidavit claiming public interest immunity and that the claim is not made too widely so as to sweep within its net documents that are not legitimately an essential integer in the investigative process. This also calls for vigilance by the courts lest documents are shielded from public scrutiny or inspection by parties to litigation under an unduly broad umbrella of public interest immunity. 16 Document 2 is an email from Ms Hayden to Ms Dodds of 4 September 2008, attaching a spreadsheet. Ms Dodds is a solicitor within the Commission. Mr McGuinness says that the email contains the work of an ASIC officer, which work is derived from the information in document 1. He says that it should be the subject of a public interest immunity claim on that basis. For the same reasons which obtain in the case of Document 1, I propose to examine document 2. 17 Document 3 is a file note of Ms Dodds of 8 September 2008, recording a conversation she had with members of the public. Ms Collins sought clarification during the course of the hearing that they were not the same discussions of which evidence, apparently, has already been filed in Supreme Court proceedings. ASIC gave that assurance. The information in the document was obtained voluntarily in circumstances where its donors would not have appreciated that their information would be given to the Applicants. Disclosure would imperil the future gathering of such information. Mr McGuinness also thought that if this information was known to the Applicants they may be able to tailor their evidence in response. It might also tip them off as to the line of inquiry being pursued. 20 I will not describe in any detail the content of document 1. Mr McGuinness says these documents have a tendency to reveal the course of the investigation. I am, unfortunately, unable to tell from looking at them the extent of the truth of that proposition. The same may be said of documents 2, 3 and 5. For present purposes, I have resealed MFI 1 and I direct that it not be opened by any person apart from myself or as ordered by another judge of this Court. Having regard to what was said by Gummow J in Zarro , I propose to allow ASIC to provide to the Court a confidential affidavit setting out what it is that is in documents 1, 2, 3 and 5 that makes them the subject of a proper claim for public interest immunity. That affidavit is to be given to my associate in a sealed envelope by 4 pm tomorrow. 21 The envelope is not to be opened by any person other than myself or as directed by another judge of the Court. The affidavit is not to be served on the Applicants nor filed through the registry. I will deliver a separate judgment at 9.30 am on Monday 27 October 2008. [ There was further discussion with counsel. ] 22 I amend the deadline in respect of the affidavit to be 4 pm on Monday 27 October 2008. I will deliver judgment at 9.30 am on Tuesday 28 October 2008. I vacate the hearing fixed for tomorrow and I fix the matter for hearing on Friday 31 October 2008. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 7 November 2008 Counsel for the Applicants: Ms EA Collins Solicitors for the Applicants: Atanaskovic Hartnell Counsel for the Respondent: Mr JA Halley SC with Ms M Allars Solicitors for the Respondent: Australian Securities &amp; Investments Commission Date of Hearing: 23 October 2008 Date of Judgment: 23 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1650.html