FEDERAL COURT OF AUSTRALIA

Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123

EVIDENCE – public interest immunity – application for leave to appeal from dismissal of claim to resist production of documents tending to identify informer(s) to the Australian Securities and Investments Commission

Held:

1.                  Leave to appeal should be granted;

2.                  The order dismissing the claim for immunity was not an exercise of discretion;

3.                  The immunity from disclosure of informers’ identity was not absolute but required a balancing exercise;

4.                  It is not conclusive against immunity that an informer’s identity is known to the person informed against;

5.                  The documents in question would tend to identify the informer(s);

6.                  The balance should be struck against production of the documents;

7.                  The Court’s reasons should be published.

Corporations Act 2001 (Cth) Pt 9.4AAA, ss 1317AA, 1317AE

Federal Court of Australia Act 1976 (Cth) s 24(1A)

Aboriginal Sacred Sites Protection Authority v Maurice; re The Warumungu Land Claim (1986) 10 FCR 104 cited

Alister v The Queen (1984) 154 CLR 404 cited

Attorney-General v Stewart (1994) 34 NSWLR 667 cited

Byrne v Deane [1937] 1 KB 818 cited

Cain v Glass (No 2) (1985) 3 NSWLR 230 cited

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 cited

Goldberg v Ng (1994) 33 NSWLR 639 cited

Haydon v Magistrates Court (2001) 87 SASR 448 cited

House v The King (1936) 55 CLR 499 cited

Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84 cited

P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1659 reversed

R v Francis (2004) 145 A Crim R 233 cited

Sankey v Whitlam (1978) 142 CLR 1 cited

Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311 cited

State of Victoria v Brazel [2008] VSCA 37 followed

Warren v Coombes (1979) 142 CLR 531 applied

Zarro v Australian Securities Commission (1992) 36 FCR 40 cited

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v P DAWSON NOMINEES PTY LTD, MULTIPLEX LIMITED and MULTIPLEX FUNDS MANAGEMENT LIMITED

VID 1054 of 2007

HEEREY, MOORE AND TRACEY JJ

4 JULY 2008

MELBOURNE

THE COURT ORDERS THAT:

1.                  The appellant have leave to appeal;

2.                  The appeal be allowed;

3.                  Orders 1 and 2 made on 14 November 2007 (and entered on that date) be set aside, and in lieu thereof it is ordered:

(a)        the 36 specified documents and transcripts of examination of 23 witnesses produced to the court pursuant to subpoena duces tecum served on the Australian Securities and Investments Commission by the first respondent are protected from production to and inspection by the respondents;

(b)        the first respondent pay ASIC’s costs.

4.                  The first respondent pay ASIC’s costs of the appeal;

5.                  The costs of the second and third respondents to the appeal be their costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                                             Companies in the Multiplex Group contracted to design and construct a new Wembley National Stadium in London.  The project was hit by substantial delays and cost increases.  Multiplex announced a forecast loss on the project and a resultant reduction in earnings for the Group.  Multiplex shares fell sharply.

2                                             The Australian Securities and Investments Commission investigated these events and made findings that Multiplex had failed to comply with its continuous disclosure obligations under the ASX Listing Rules.

3                                             The present proceeding is brought by the applicant P Dawson Nominees Pty Ltd (PDN) on its own behalf and on behalf of other persons who acquired shares in Multiplex between 2 August 2004 and 30 May 2005.

4                                             PDN obtained leave for the issue of a subpoena duces tecum to ASIC to produce documents connected with its investigation: P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044.  Leave was opposed by Multiplex, but not by ASIC.  Some thousands of documents were produced. 

5                                             A judge of this Court has rejected ASIC’s objection to the production of a limited number of documents which ASIC says are covered by public interest immunity because they would tend to reveal the identity of an informer (or informers – it is unnecessary to detail how many there were) employed by a company associated with the project ("the Company") who informed ASIC of the Wembley problems and Multiplex’s alleged failure to disclose them: P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1659.  His Honour regarded as critical the fact that the identity of the informer(s) is already known within the Company at least to a limited number of senior people.  Indeed, those people knew at the time that the informer was about to make disclosures to ASIC and provided legal representation for the informer.

6                                             ASIC now seeks leave to appeal from his Honour’s order.

7                                             The documents in question fall into three categories:

·        36 various documents;

·        Transcripts of ASIC examinations of the informer;

·        Transcripts of ASIC examinations of other persons.

8                                             The following issues arise:

1.                  His Honour’s order being interlocutory, should leave be granted?

2.                  Is the order discretionary, and thus subject to House v The King (1936) 55 CLR 499 appellate restraints?

3.                  Is the immunity from disclosure of informers’ identity absolute, or is a balancing exercise called for?

4.                  If a balancing exercise is required, is it conclusive against immunity that the informers’ identity is known to the entity informed against?

5.                  Would the documents in question tend to identify the informer(s)?

6.                  How should the balance be struck in the present case?

7.                  To what extent should our reasons be public?

The grant of leave

9                                             Leave is required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  PDN says that his Honour’s judgment reflected a conventional application of settled principles and that no error has been shown.

10                                          PDN’s submission implicitly treats his Honour’s order as discretionary.  As will appear, we do not think that is correct.  But in any event, the questions in this case have general importance beyond the concerns of the parties in the present case; cf Zarro v Australian Securities Commission (1992) 36 FCR 40 at 51, 58. There is some divergence of Australian authority at intermediate appellate level.  Leave should be granted.

A discretionary order?

11                                          PDN submitted that his Honour’s decision was a discretionary one in the House v The King sense.  Senior counsel referred to what was said by Woodward J in Aboriginal Sacred Sites Protection Authority v Maurice; re The Warumungu Land Claim (1986) 10 FCR 104.  The Aboriginal Land Commissioner (Maurice J) had ordered the production by the Authority of certain documents prepared by anthropologists and others on the basis that no immunity was available.  His Honour held that if he were wrong in that view, it would be necessary to balance the public interest in favour of non-disclosure against the public interest in favour of disclosure.  Having done so, he decided in favour of production, on terms as to restriction of access.  The Full Court held that the doctrine of public interest immunity was attracted, but that his Honour had correctly balanced the considerations involved.  Woodward J said at 115:

Although this exercise of the Commissioner’s discretion was criticised by counsel for the Authority, they were not able to point, in my opinion, to any way in which the exercise has miscarried.  His Honour saw himself as having a wide discretion.  There was no important consideration omitted from his deliberations, and nothing wrongly taken into account, which could vitiate the exercise.  The weight to be given to the various factors was a matter for his Honour.

12                                          Toohey J took a different view, although arriving at the same conclusion.  His Honour noted at 131 the argument that the balancing process was an exercise of discretion.  However, Toohey J said:

“Discretion” may not be the most appropriate description for the evaluative process the Commissioner performed.  Furthermore, the constraints placed on appellate courts by decisions such as Gronow v Gronow [(1980) 144 CLR 513] must be read against the particular criteria spelled out in s 5 of the Judicial Review Act…

13                                          The third member of the Court, Bowen CJ, did not address the question directly.  However, his Honour pointed out at 111, as did Toohey J, that the proceeding was an application to the Court in its original jurisdiction for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for writs of prohibition and certiorari.

14                                          In Goldberg v Ng (1994) 33 NSWLR 639Kirby P discussed the issue whether the balancing process in relation to the public interest immunity is discretionary.  The question in that case was whether public interest immunity should operate to prevent disclosure by the Law Society of New South Wales of certain documents, which had come into its possession during an investigation into the alleged conduct of a legal practitioner.  The documents had been given by the practitioner to the Law Society upon a condition of confidentiality.

15                                          Kirby P cited the case of Neilson v Laugharne [1981] QB 736, in which Lord Denning MR stated (at 748) that “on weighing them all the judge decides according to which side the balance comes down.  Once it is decided that the public interest is in favour of non-disclosure, the decision is regarded as a precedent for later situations of the same kind.”  Kirby P stated at 644:

Where a judge is required to perform a “balancing exercise” such as the present, the performance of that exercise involves the judge's discretion.  The review of a judge's exercise of discretion by an appellate court is rigorously controlled by well-established and well-known principles. Those principles were stated by Dixon, Evatt and McTiernan JJ in the oft quoted passage in House v The King… Clearly, these principles apply to this case…

The other members of the Court did not address this point.

16                                          House v The King is not widely cited in cases dealing with public interest immunity.  Apart from State of Victoria v Brazel [2008] VSCA 37 (see below), there is R v Francis (2004) 145 A Crim R 233 in which Simpson J made the following comment at 237-8:

The application before this Court is an application pursuant to s 5F of the Criminal Appeal Act for leave to appeal against what was, essentially, a discretionary decision.  (I say it is discretionary because Blackmore DCJ purported to exercise a discretion under s 130 of the Evidence Act (Cth).  The correct exercise, in my view, was a balancing exercise, weighing the two conflicting aspects of the public interest, which, of itself, is not, but is analogous to, a discretionary judgment.  In any event, the determination to set aside a subpoena on that basis is, in essence, a discretionary decision.)

17                                          InBrazel the respondent argued that the balancing is discretionary.  Reliance was placed on Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 where the Victorian Court of Appeal unanimously held that the decision to permit inspection of disputed documents, against a claim of commercial confidentiality, involved the exercise of judicial discretion.  However, in Brazel the Court of Appeal said:

[38]     In our view, a decision to uphold, or reject, a claim of PII [public interest immunity] is not an exercise of discretion.  Although the task of balancing competing public interests might at first appear to have characteristics in common with a discretionary judgment (see eg Norbis v Norbis (1986) 161 CLR 513, 518 (Mason and Deane JJ)), we think that the determination of the immunity question is of a different character.  There is, in our view, a direct parallel with the decision as to whether a particular document is immune from production on the ground of legal professional privilege.  That is a question of substantive law about “an important common law immunity” (Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, 552-3 [9], [11]).  On appeal, the question is whether the decision was erroneous, not whether it fell within the “limits of a sound discretionary judgment”.

[39]     This conclusion accords with what happens in practice.  Appellate courts have consistently decided PII appeals on their merits.  The members of the appellate court – conducting a conventional appeal by way of rehearing – have carried out the balancing exercise for themselves, and for that purpose have inspected the documents in issue (see Conway v Rimmer [1968] AC 910, 954; Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404).

18                                          The Court distinguished the decision of the Full Federal Court in Commonwealth v Northern Land Council (1991) 30 FCR 1.  In that case, a single judge had ordered the Commonwealth to produce for inspection by legal representatives of the Council documents recording Cabinet deliberations.  The judge did not inspect the documents but expressed the view that the information was likely to assist the Council’s case and that the public interest in favour of granting inspection clearly outweighed the public interest in denying inspection.  The Full Court dismissed an appeal, not treating the single judge’s decision as discretionary, except insofar as it is a matter of evaluation and discretion for the judge as to whether to permit confidential inspection by the legal representative for the party seeking access in order to determine whether any wider disclosure was justified.

19                                          The Court in Brazel noted at [42] that the High Court upheld the Commonwealth’s appeal from that decision (Comonwealth v Northern Land Council (1995) 176 CLR 604) and commented that:

there is nothing in the joint judgment in the High Court to suggest that the appeal was treated as an appeal from an exercise of discretion.  On the contrary, the High Court approached the question of immunity on the basis that it was for the court itself to decide whether the immunity attached.

20                                          The Court concluded at [43]:

It is clear, in our view, that the question whether PII attaches is a question of substantive law, appellable (subject to a grant of leave in interlocutory proceeding) on its merits.  The mechanical question of how access is to be granted, which only arises once the claim for immunity has been rejected, might well be thought to be discretionary in character.  But, since the assessment of the harm likely to follow from disclosure will often involve – necessarily – a consideration of the terms on which inspection might be permitted, it is probably artificial to treat the inspection question as separate from the balancing exercise.

21                                          Brazel is a recent, considered, authoritative decision which directly addresses the issue.  We propose to follow it.  In the present case there was no dispute of primary fact before his Honour.  Nothing turned on the credibility of witnesses.  The appeal therefore will fall to be considered in accordance with the principles laid down in Warren v Coombes (1979) 142 CLR 531.

A balancing exercise

22                                          The general rule is that where public interest immunity is raised 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.

Sankey v Whitlam (1978) 142 CLR 1 at 38-9 per Gibbs ACJ, see also at 58 per Stephen J; Alister v The Queen (1984) 154 CLR 404 at 412.  In the present case the learned primary judge took this approach.  However, on the appeal ASIC raised arguments which require the question to be considered.

23                                           In Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-252 McHugh JA held that there was a special rule in relation to public interest immunity when it applied to the protection of the identity of informers.  In such a case the protection is absolute and not subject to any balancing of considerations.  The rule is subject to only one exception: in criminal proceedings the identity of an informer may be revealed if it could help to show the defendant was not guilty.  In McHugh JA’s view this exception applied to committal proceedings before a magistrate (the proceeding in question in Cain) and was not confined to criminal trials.

24                                          The other member of the majority in Cain, Priestley JA, plainly did not treat the informer immunity rule as absolute.  His Honour said at 242-3:

In considering these arguments I take the following propositions to be established: (1) When objection is taken to the production of documents on the ground of public interest, the court must consider the public interest in avoiding damage from the production of the documents, and the public interest in facilitating a just result in the litigation: Alister v The Queen (1984) 58 ALJR 97 at 98; 50 ALR 41 at 44.  (2) These two public interests will be weighed one against the other only when it seems that there will be harm both by the production and the protection from production of the documents (ibid at 98, 99; 45-46).  (3) The courts have always recognized the great importance of not forcing public disclosure by police of their sources of information: Marks v Beyfus [(1890) 25 QBD 494]; Johnson v McLennan (Yeldham J, 6September 1985, unreported).  (4) Judges at trials have always been regarded as being in the best position to determine whether in a particular case justice requires that the identity of a police informant should be disclosed: R v Richardson (1863) 3 F & F 693; 176 ER 318; Marks v Beyfus (at 498).

25                                          In Jarvie v The Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84 at 91, which involved a closely analogous claim to protect the identity of undercover police, Brooking J applied a balancing test.  His Honour at 90 concluded that the test should be whether “there is good reason to think that disclosure of the informer's identity may be of substantial assistance to the defendant in answering the case against him”.  His Honour “respectfully doubt(ed) whether McHugh JA (as he then was) in Cain v Glass (No 2)… intended to lay down any substantially different test”.  With equal respect, however, we are inclined to think there is a difference between Jarvie and what McHugh JA said in Cain.  The latter postulates a strict rule of exclusion with only one exception.  That exclusion may be expressed in terms of “show(ing) that the defendant is innocent” (D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, cited by McHugh JA in Glass at 247, 248) or the perhaps the less onerous test of “substantial assistance”.  Nevertheless there is a difference in principle.  If there is a strict rule with an exception the court must ask (i) whether the rule applies and, if so, (ii) whether the exception takes the case out of the rule.  There is no room for any balancing of competing values arising from the particular circumstances of the case. 

26                                          In R v Smith (1996) 86 A Crim R 308 at 311-312 the New South Wales Court of Criminal Appeal adopted McHugh JA’s view. 

27                                          However, in Haydon v Magistrates Court (2001) 87 SASR 448 the Full Court of the South Australian Supreme Court considered Cain and Smith but came down in favour of the balancing approach.  Doyle CJ said at [18]:

In my opinion there is a good deal to be said for the view expressed by the court in Smith. But it seems to me, with respect, that by implication the High Court in Alister and in Sankey v Whitlam (1978) 142 CLR 1 has proceeded on the basis that the court must weigh competing interests.  The main difference may be that, on the approach taken in Smith, the strength of the claim for non-disclosure is not to be assessed or weighed, the court merely considering the significance or possible significance of the material for the defence case.  If the competing interests are weighed, there appears to be more scope for the qualitative assessment of the strength of the claim for non-disclosure.  Be that as it may, in the present state of authority I consider it safer to take the approach that the court is required to weigh the competing interests.

Perry J at [115]-[117], with whom Olsson J at [44] agreed, was of the same view.

28                                          We think the better view, and one consistent with the exposition of the doctrine of public interest immunity in Sankey and Alister, is that a balancing exercise by the Court is required.  There is an undeniable public interest in the protection of the particular informer in question and the encouragement of potential future informers.  Other important heads of public interest immunity are subject to a balancing test.  There is no point in attempting categorisation into different levels of importance.  The particular head of public interest immunity dealing with the protection of informers should be treated no differently from others.

29                                          There remains the question of the significance, if any, of the immunity being raised in a civil proceeding.  Cain, Jarvie, Smith and Haydon were all criminal cases.  Brazel was a civil case but it did not deal with informers, rather with what was said to be the public interest in not disclosing details of security arrangements in prisons.

30                                          In Cain McHugh JA said at 247 that the identity of an informer is not admissible in civil proceedings “in any circumstances”.  His Honour cited Marks v Beyfus (1890) 25 QBD 494 (English Court of Appeal), Signorotto v Nicholson [1982] VR 413 (Fullagar J, Supreme Court of Victoria) and Johnson v McLennan (Yeldham J, Supreme Court of New South Wales, 6 September 1985, unreported).

31                                          Yet his Honour noted that in R v Lewes Justices; Ex parte Home Secretary [1973] AC 388 and D v National Society for the Prevention of Cruelty to Children, both civil cases, the balancing test was applied to claims for protection for an informer to, respectively, a gaming board and a society which could institute prosecutions for cruelty to children.  Moreover, the United States Supreme Court has held the balancing test applies even in the case of a police informer: Rovario v United States 353 US 53 (1957) at 62.

32                                          In our view, once the balancing test is seen as appropriate for claims of public interest immunity there is no rational basis for not applying that test in civil proceedings.  There is a public interest in the fair and efficient disposition of civil disputes by the courts, including the access of the courts to relevant evidence which litigants may wish to adduce.  Very often, no doubt, that interest will be outweighed by the interest in protecting the identity of informers, but that is no reason for not putting the former on the scales at all.

Informers’ identity known to the person informed against

33                                          His Honour reasoned at [16] (this and subsequent paragraphs cited from his Honour’s judgment are in part of the reasons which his Honour directed to be confidential) that if officers and directors of the Company have known the informers’ identity as the source of confidential information to ASIC since the informer(s) approached ASIC “then it is difficult to see a reason to invoke the public interest immunity privilege to protect their identity as informants to ASIC”.  Any potential disadvantage or detriment to the informer(s) as an informer would be likely to emanate only from the Company.  The conclusion was at [26] that “the rationale for the protection of (his, her or their) identity from disclosure to (PDN) and its solicitors is removed”.

34                                          His Honour at [76] did not consider there was any real prospect of victimisation or adverse consequences being visited upon the informer(s) at the instigation of any other persons outside the Company.

35                                          Whether the informer(s), in fact, remains employed by the Company is a matter it is unnecessary for us to retail.  However the approach adopted by the primary judge at [68] was to the effect that if the informer(s) had left, or was to leave, employment with the Company, the prospect of victimisation or reprisal from within the Company was “speculative and remote”.

36                                          His Honour’s conclusion at [69] demonstrates the importance he placed on the Company’s awareness of the informers’ identity.  His Honour said:

My conclusion is that there is no reason to protect from disclosure the identity of [the informer(s)] as being sources of information for ASIC as [the Company] knew right from the start that they were going to speak to ASIC or had gone to speak to ASIC on 17 February 2005 in relation to Multiplex’s affairs.

37                                          However, the partial disclosure of an informer’s identity, even to the person informed against, is not conclusive.  Immunity from further disclosure is not necessarily lost.  The point arose in Haydon.  The informer was one of several defendants charged with a number of murders.  Another defendant obtained the issue of a subpoena to produce records of interview between the informer and police officers.  As a result of a misunderstanding by the prosecutor there was a disclosure in open court to the magistrate, and hence to the other defendants, that the informer was the person interviewed.  Doyle CJ accepted that this disclosure was relevant, but the question remained whether the contents of the interviews should be disclosed.  His Honour said at [23]:

The disclosure of the name of the maker of the statement is not the end of the matter.  If disclosure were the end of the matter then, as the court observed in Smith (at 313), the public interest immunity “could be frustrated by an accident, or by the malice of a witness who blurted out the name of an informer in open court”.

Perry J at [124]-[125] agreed in that approach, as did Olsson J at [44].  The claim for immunity was upheld.  Apparently Haydon was not cited to the learned primary judge in the present case.

38                                          There is the additional circumstance in the present case that persons giving confidential information to ASIC are protected by Pt 9.4AAA of the Corporations Act 2001 (Cth) headed “Protection for Whistleblowers”.  In certain circumstances it is an offence to disclose the identity of the whistleblower: s 1317AE(1)(e)(ii).  However, the regime of Pt 9.4AAA assumes the identity of the whistleblower may become known to the employer (s 1317AA(1)(b)(ii),(iii) and (iv)), but not necessarily other employees, future employers or parties to litigation, or generally.  The common law doctrine of public interest immunity should be applied consistently with the legislative policy manifest in Pt 9.4AAA in the particular case of disclosures to ASIC.

The documents in question

39                                          There could be little doubt that the transcripts of the examination of the informer(s) themselves would, both directly and circumstantially, identify the informer(s).

40                                          As to the other documents, we think an appropriate test is whether there is, in the words of Hunt J in Attorney-General v Stewart (1994) 34 NSWLR 667 at 674,

any material by which a shrewd idea might be conveyed as to the identity of the informer.

Documents taken together may convey information which each by itself could not: Zarro v Australian Securities Commission (1992) 36 FCR 40 at 60.

41                                          His Honour at one stage of the judgment, at [38], spoke of documents which “reveal, or could reveal, or tend to reveal” the fact that the informer provided information to ASIC.  Elsewhere, however, his Honour applied a test of whether documents “disclose the identity of” the informer(s) (at [45]) or “identify” the informer(s) as such (at [55]) or whether his or her connection is “disclosed” (at [56]).  If actual disclosure or identification is taken as the standard, we think the bar is set too high.  Consistently with the underlying public policy of public interest immunity, the benefit of the doubt should be in favour of non-disclosure.  There is always the risk that seemingly innocuous information in a particular document, when combined with information in another document or the reader’s background knowledge, may reveal the identity of an informer, or at least give rise to strong suspicion.

42                                          Throughout his Honour’s reasoning in relation to the particular categories of documents there is substantial reliance on the fact that the identity of the informer(s) as an informer is already known to some at the Company: [53] (transcripts of examination of the informer); [57] (transcripts of examination of other persons); [36] (the remaining 36 documents).  For the reasons already given, we think this fact is by no means conclusive against immunity and in any event seems irrelevant to the question whether a particular document might identify an informer.

43                                          As to the transcripts of examination of persons other than the informer, senior counsel for ASIC made the following points:

·        From these transcripts and the other documents a reader could compile a dramatis personae of those involved with the Wembley project;

·        Some of the documents show a particular concern or qualms by the informer(s) in relation to Wembley problems;

·        If the reader gets transcripts of persons other than the informer(s) but not of those of the informer(s) it would be apparent that ASIC have successfully claimed privilege over those transcripts and are likely to have been the informer(s).

44                                          In response senior counsel for PDN argued that the mere fact that the informer raised concerns within the Company does not identify him or her as an informer.  We are not so sure.  If it is undoubted, and publicly known, that (i) Multiplex had major problems with the Wembley project extending over a period of time and (ii) a person, presumably reasonably senior, in the Company, associated with the project, made disclosures to ASIC, some people in the community (being not bound by the rules of evidence) might not unreasonably infer that, on learning that the person at the Company was complaining internally about these matters, the complainer and the informer were the same person.

45                                          It was also said that since 5 March 2007, the date when the ASIC imposition of confidentiality expired, all the examinees have been free to disclose the contents of the transcripts to anyone they wished; see the non-confidential judgment at [5].  However, as already mentioned, partial disclosure is not a conclusive answer to an immunity claim.

46                                          As to the remaining 36 documents, the arguments are essentially the same.

47                                          We conclude that all documents are properly the subject of a claim for public interest immunity unless, on balance, the public interest is outweighed by other public interest considerations.

Striking the balance

48                                          The public interest in protecting informers, and encouraging future informers, is as important to a regulatory agency such as ASIC as it is to police in their traditional role: Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311 at 312.

49                                          ASIC’s regulatory role is vital to the proper functioning of the Australian financial and investment system, on which the prosperity of the Australian community is dependent.  Fraud and incompetence can cause catastrophic damage to thousands of individuals.

50                                          Confidential disclosure to ASIC has particular benefits, given its area of responsibility:

·        Misconduct that ASIC might not otherwise be aware of is brought to its attention;

·        Timely investigation enables ASIC to move quickly, obtaining interlocutory injunctions, freezing assets before dissipation and preventing implicated parties fleeing the jurisdiction;

·        Information from knowledgeable persons enables ASIC to target its investigations to particular documents, transactions and persons, thus saving time and money and preventing further loss;

·        Witnesses can be interviewed while events are still fresh in their mind and business records still available.

51                                          The effect of disclosure on the informer(s) in this case as well as the intimidatory effect on potential future informers carries great weight.  It may be that as a matter of libel law it is not defamatory to call a person an informer: Byrne v Deane [1937] 1 KB 818.  Greer LJ dissented in that case, his Lordship’s view being, in the opinion of the learned editors of Gatley on Libel and Slander, 10^th ed, 2004, p 45, fn 33, “more in accord with the views of real people”.  Persons who may act against the interests of informers are not confined to those hypothetical “right-thinking members of society” who provide the touchstone for defamation law.  Nor, as we have already noted, are such persons confined to those informed against.  Rightly or wrongly, informers are often regarded with disfavour.  Their motives are often questioned – sometimes justifiably, although the public interest is not confined to protection of those informers who act from pure altruism.  Persons contemplating whistleblowing would realise that disclosure of their identity may cause them harm in ways they never find out – employment or promotions not offered, friendships undermined.

52                                          That such adverse consequences may ensue is not to be dismissed as speculative.  Assessing what is likely to happen in the future, or would be likely to have happened had not something intervened, is not a matter of scientific demonstration or proof.  Nor, unlike findings as to alleged past events, is it a case of all or nothing; 51 per cent probability win, 49 per cent probability lose: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643.  The point is that such fears may well be held by potential future informers who may, if disclosure is permitted in the present case, decide that informing ASIC is just not worth it.

53                                          What then should be weighed on the other side of the balancing exercise?  What disadvantage would PDN suffer in its litigation against Multiplex by not getting access to the documents in question?

54                                          His Honour held at [71] that the documents were “directly relevant” to the issues raised in PDN’s statement of claim.  The documents “arguably adversely affect Multiplex’s case and arguably support (PDN’s) case”.  They would be discoverable by Multiplex if an order were made under Order 15 of the Federal Court Rules.

55                                          In its written submissions (par 6.7) ASIC invited a submission by PDN as to how the documents were likely to be of significance in the proceeding.  Apart from general assertions as to relevance, the invitation was not accepted.

56                                          On 18 December 2006 PDN filed its application and statement of claim.  The latter is a complex document of some 39 pages.  The central allegations concern a sub-contractor Cleveland Bridge UK Limited, which was to design, fabricate and erect the structural steelwork for the Wembley Stadium.  It is said that on 2 August 2004 Cleveland Bridge alleged that Multiplex had repudiated its contract, purported to terminate the contract and refused to do any further work with the consequence that on 5 August, in turn, Multiplex alleged repudiation by Cleveland Bridge and also terminated the contract.

57                                          It is alleged that by 2 August 2004, amongst other things:

·        The project had been delayed by 86 days;

·        22,000 tonnes of steelwork should have been fabricated and erected but only 8,500 tonnes were in place;

·        Completion of steel work would exceed the contact price by £36 million if done by Cleveland Bridge and £23 million if done by another sub-contractor, the latter figure probably being “too conservative”;

·        Steel prices had risen substantially and were continuing to rise;

·        Multiplex did not have a fixed price contract to complete the steelworks;

·        Some 14 other major sub-contactors had been delayed in their work because of the steelworks delay.

58                                          As a result of these problems, it is alleged, it was likely, or there was a material risk that, Multiplex would make a loss on Wembley and forecasted Group profit earnings for 2005 and 2006 would be substantially reduced.  However, there was no disclosure of these matters until a limited disclosure on 24 February 2005 and full disclosure on 30 May 2005.

59                                          It is further alleged that there were in the meantime misleading and deceptive statements by Multiplex, for example:

·        current UK projects including Wembley Stadium project were all currently on or ahead of programme (Preliminary Results 2004);

·        the Board believed the outlook for the 2005 Financial Year remains solid and in line with its April Forecast of $130.9m (Preliminary Results 2004);

·        works on the Wembley Stadium project continued to progress at a rate which would permit completion of the project ahead of schedule (ASX Announcement 18 August 2004).

60                                          The public announcements Multiplex made, or failed to make, to the ASX and others over the relevant period will be a matter of public record, the proof of which should present no difficulty to PDN.  The construction problems in the UK, particularly those concerning the Cleveland Bridge sub-contract, should be the subject of the usual massive documentation that accompanies major construction projects.  The internal reporting and recording documents of Multiplex should be recoverable in the ordinary course of this litigation.  In any case, it is alleged that the company constructing Wembley Stadium, Multiplex Constructions (UK) Ltd, was a wholly owned subsidiary of the Multiplex Group, which group included the first respondent to the main proceeding, the ASX listed Multiplex Limited.  It seems inconceivable that Multiplex Limited would not be fixed with the knowledge of its subsidiary contractor.  So the case really boils down to an objective assessment of what in fact was happening at Wembley and whether or not that assessment should have been disclosed by Multiplex, so as to properly inform the market.

61                                          In the circumstances of this case, we do not see the documents in question as having sufficient importance for PDN’s conduct of this litigation to outweigh the importance of not disclosing the identity of informers.  The documents may be discoverable, and relevant, but beyond that they are not shown to have any greater significance for PDN. 

62                                          We note that at our invitation the parties conferred to see if an agreed form of the documents with redactions could be supplied.  However, no agreement was reached.

Publication of reasons

63                                          His Honour was asked by ASIC to hear its application for its public interest immunity claim ex parte, in camera and with no other party or person present.  His Honour was “extremely unhappy” about adopting this procedure but “reluctantly acceded” to ASIC’s submissions (at [18]).  His Honour’s reasons, apart from a brief introduction, were not published.

64                                          ASIC asked us to adopt the same procedure on this appeal.  We decline to do so.  Not to publish our reasons would be contrary to the public policy behind our decision, which is at least as much to clarify the law for potential future informers as it is to protect the informer(s) in this case.  Moreover, in none of the reported cases referred to in these reasons did the court adopt the procedure sought by ASIC.

Orders

65                                          There will be orders that:

1.                  The appellant have leave to appeal;

2.                  The appeal be allowed;

3.                  Orders 1 and 2 made on 14 November 2007 (and entered on that date) be set aside, and in lieu thereof it is ordered:

(a)        the 36 specified documents and transcripts of examination of 23 witnesses produced to the court pursuant to subpoena duces tecum served on the Australian Securities and Investments Commission by the first respondent are protected from production to and inspection by the respondents;

(b)        the first respondent pay ASIC’s costs.

4.                  The first respondent pay ASIC’s costs of the appeal;

5.                  The costs of the second respondent of the appeal be its costs in the cause.

Associate:

Dated:         4 July 2008