FEDERAL COURT OF AUSTRALIA

Gangemi v Australian Securities & Investments Commission

And

Liedermoy v Australian Securities & Investment Commission

[2003] FCA 494

CORPORATIONS – investigations – examinations – directions to examinee and legal representative by inspector – direction as to non-disclosure of content of examination – direction unlimited in time – implied power to make non-disclosure direction – power not unlimited in time – power not extending beyond completion of investigation – non-disclosure order invalid – legal representation – right of legal representation – right of inspector to exclude lawyer of examinee’s choice – lawyer representing several examinees – evidence of disclosure between excluded lawyers of content of examination – exclusion order for legitimate purposes – reasonable basis for exclusion order – exclusion order valid

Australian Securities and Investments Commission Act 2001 (Cth) s 13(1), s 19. s 22(1) and (2), s 23(1), (2) and (3), s 51, s 55 (1), (2),  s 56(1) and (2)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 discussed

Australian Securities Commission v Bell (1991) 104 ALR 125 applied

Stockbridge v Ogilvie (1993) 10 ACSR 688 applied

NINO GANGEMI v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

W289 OF 2002

JOHN OLIVER LIEDERMOY v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

W290 OF 2002

FRENCH J

20 MAY 2003

PERTH

IT IS HEREBY DECLARED THAT:

1.         The direction made on 18 September 2002 by the Respondent by its delegate Marcus Claridge that the Applicant and his legal representative may not discuss with or disclose to any other person any matter concerning the investigation disclosed in the examination of the Applicant pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 is invalid.

2.         The application is otherwise dismissed.

3.         There be liberty to apply on the question of costs within 7 days by written submissions.

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

IT IS HEREBY DECLARED THAT:

1.         The direction made on 5 September 2002 by the Respondent by its delegate Georgina Louise Parke that the Applicant and his legal representative may not discuss with or disclose to any other person any matter concerning the investigation disclosed in the examination of the Applicant pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 is invalid.

2.         The application is otherwise dismissed.

3.         There be liberty to apply on the question of costs within 7 days by written submissions.

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

                                                                                                                        W290 OF 2002

BETWEEN:                   JOHN OLIVER LIEDERMOY

                                        APPLICANT

AND:                               AUSTRALIAN SECURITIES AND INVESTMENTS

                                         COMMISSION

                                         RESPONDENT

REASONS FOR JUDGMENT

Introduction

1                     The Australian Securities and Investments Commission (“ASIC”) is charged by the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) with the administration, inter alia, of the Corporations Act 2001 (Cth).  It is also required to take whatever action it can take, and is necessary, to enforce and give effect to the Corporations Act and the other laws that confer functions and powers on it.  In its law enforcement role, ASIC is empowered to carry out investigations into suspected contraventions of corporations legislation and to examine persons and conduct hearings for that purpose.  The examination of persons in relation to contraventions is required by the ASIC Act to be private.  Persons being examined have a right to be represented by a lawyer.  ASIC inspectors from time to time give directions to examinees and their lawyers prohibiting disclosure of matters covered at such examinations.  Directions are also given from time to time excluding a particular lawyer from representing a particular examinee at an examination.  In the present case, two examinees challenge the validity of non-disclosure directions which were unlimited in time.  They also challenge directions given that they could not be represented at their examinations by the lawyers of their choice.

Factual History in Relation to Nino Gangemi

2                     At a date in 2002, which does not appear from the evidence, Nino Gangemi was served with a notice issued under s 19(2) of the ASIC Act requiring him to attend at the ASIC office in Perth on 18 September 2002 to give ASIC all reasonable assistance in connection with an investigation:

‘In relation to a suspected contravention of sections 997, 998 and 1002G of the Corporations Law in the period from 26 April 2000 to 14 July 2001 and sections 997, 998 and 1002G of the Corporations Act 2001 in the period 15 July 2001 to 19 October 2001, concerning dealings in the securities of Rand Mining NL (ACN 004 669 658) (“Rand”) in the period 26 April 2000 to 19 October 2001 (“the Relevant Period”).’

He was required by the notice to appear before Marcus Claridge and Brian Keith Colliss.  Mr Gangemi instructed a legal practitioner, Trevor Mark Andrews of Mark Andrews and Associates, to act on his behalf in connection with the examination.  Mr Andrews had also received instructions to act for two other persons, Anton Billis and Michael Giovinazzo, in relation to the same investigation.

3                     On 18 September Mr Gangemi attended at the ASIC office accompanied by Mr Andrews.  The examination was conducted by Messrs Claridge and Colliss.  Mr Claridge was acting under an instrument of delegation from ASIC granted under s 102 of the Act.  Mr Colliss was assisting him. Mr Claridge asked Mr Gangemi if he wanted to be represented.  Mr Gangemi said he wanted Mr Andrews to represent him as he had known him for ten years and had never had any other lawyer represent him.  Mr Andrews confirmed that he appeared for Mr Gangemi.

4                     Mr Claridge then said he would make a direction that Mr Gangemi and his legal representative not discuss with or disclose to any other person any matter concerning the investigation which was disclosed in the examination, nor the answers given by Mr Gangemi.  He then went on:

‘I propose to make a direction excluding Mark Andrews or any other lawyer from Mark Andrews and Associates, any lawyer from O’Connor Partners and any lawyer from Butcher Paull and Calder from representing Mr Gangemi at this and any further section 19 examinations of Mr Gangemi under section 19 of the ASIC Act 2001 in relation to the investigation.  ASIC considers that attendance at this examination by Mr Mark Andrews or any person from Mark Andrews and Associates or O’Connor Partners or Butcher Paull and Calder will or may prejudice ASIC’s investigation.’

He said he proposed to make a direction that the examination take place in private and stated that it was essential to the effective conduct of the investigation that questions asked and answers given during the examination remain confidential. 

5                     Mr Claridge then stated a number of reasons ‘… as a basis for the proposed direction’.  He said that ASIC considered that each of the reasons was on its own a sufficient basis for making such a direction.  The reasons in summary were as follows:

1.         A letter from Mark Andrews and Associates dated 26 March 2002 (a copy of which was produced at the examination by Mr Claridge) was said to contain information that led ASIC to believe that the letter evidenced and appeared to be written in furtherance of an illegal or improper purpose contrary to the public interest.  Specifically it appeared that the letter referred to the disclosure of information obtained in the course of a s 19 examination and itself disclosed that information in circumstances in which the disclosure was likely to hinder or obstruct the investigation.  According to Mr Claridge ASIC considered, on the basis of the letter, that if Mr Andrews or any lawyer from his firm were permitted to represent Mr Gangemi at the examination there would be a risk that a person not yet examined could obtain information regarding the questions and answers in relation to previous examinees and in relation to ASIC’s investigation.  Such prior knowledge would diminish the efficacy of questions asked and affect the veracity of the answers at an examination thereby prejudicing ASIC’s investigation.  Moreover it was said that Mr Gangemi might not feel free to cooperate fully in the investigation and to answer questions candidly and completely knowing that Mr Andrews or a lawyer from his firm may have previously divulged information about what occurred during a private examination to other persons.

2.         Mark Andrews and Associates were said to have previously advised ASIC that the firm acted for Kevin Alan Trezona, Michael James Giovinazzo and Anthony Byron Billis.  Those, according to Mr Claridge, were persons whom ASIC might wish to examine in the future.  On that basis ASIC considered that if Mr Andrews attended the examination of Mr Gangemi there was a risk that, without consciously intending any impropriety he might divulge to his clients what had passed in the examination of Mr Gangemi.  His clients might in turn divulge information to their associates who might be examined in the future.

3.         Mr Claridge asserted that Mr Andrews or any lawyer from his firm might have a conflict of interest in that, if they were to represent Mr Gangemi, they had a duty to use all information available to them to further the interests of their clients, Trezona, Giovinazzo and Billis.  Accordingly there was a risk that the questions and answers in Mr Gangemi’s examination might be divulged to future examinees. 

4.         As an additional reason for the proposed direction it was said that Mark Andrews and Associates is a small firm of which Mr Andrews is the principal.  That being so, ASIC did not consider that attempting to use Chinese walls to reduce the risk of disclosure within the firm would be an adequate or appropriate approach. 

5.         In relation to the proposed exclusion of O’Connor Partners it was said that the letter previously referred to led ASIC to believe that Mr O’Connor might have revealed to Mark Andrews and Associates (representing persons who might in future be examined in connection with the investigation) details of a private examination of a person Mr O’Connor represented at an ASIC examination in February 2002.  On the basis of the letter from Mark Andrews and Associates, Mr O’Connor was not permitted to represent Mr Gangemi at the examination.

6.         Mr O’Connor had previously advised ASIC that his firm represented Rand Mining NL, Tribune Resources NL and Oretek Ltd.  He had also represented two previous examinees in the examination, one of whom was a director of Oretek Ltd and who was closely associated with other persons whom ASIC might wish to examine in the future.  ASIC had information which indicated that persons who might in the future be examined by ASIC were closely associated with Rand Mining and Oretek Ltd. 

7.         Mr O’Connor was said to have a conflict of interest in that he had attended previous examinations in the same investigation covering issues that might be raised in the examination of Mr Gangemi. 

8.         O’Connor Partners was also said to be a small firm of which Mr O’Connor was the principal and that attempting to address the matter by way of Chinese walls would not be an adequate or appropriate approach.

Similar reasons were given for directions relating to Butcher Paull and Calder which are not in issue in these proceedings.  The examination was stood over until 27 September 2002.

6                     On 8 October 2002 an application was filed in this Court by Mr Gangemi, seeking orders setting aside both the non-disclosure direction of 18 September 2002 and the exclusion direction in relation to Mark Andrews and Associates.  The grounds of the application are referred to below.

Factual History in Relation to John Oliver Liedermoy

7                     On 4 September 2002, John Liedermoy was served with a notice issued under s 19(2) of the ASIC Act requiring him to attend at the ASIC office in Perth on 5 September 2002 to give ASIC all reasonable assistance in connection with the same investigation as was identified in the notice to Nino Gangemi.  He was required by the notice to appear before Marcus Claridge, Georgina Parke and Brian Colliss, all officers of ASIC, for examination on oath or affirmation and to answer questions put to him in relation to the investigation. 

8                     Mr Liedermoy instructed a legal practitioner, Michael O’Connor of O’Connor Partners, to act on his behalf in connection with the examination.  Mr O’Connor had also received instructions to act for the following persons in relation to the same investigation:

1.         Rand Mining NL, Tribune Resources NL and Oretek Ltd

2.         William Harold Jay, a director of Oretek Ltd and Tribune Resources NL

3.         Francis Joseph O’Kane, a director of Rand Mining NL, Tribune Resources NL and formerly a director of Oretek Ltd

4.         Robert Samuel Allen, secretary of Oretek Ltd

5.         Ivo Sulenta, a director of Oretek Ltd

6.         John Richard George Andrews, a director of Oretek Ltd

7.         Gary Lemon

8.         Gary David Feazey

9                     On 5 September Mr Liedermoy attended the ASIC office accompanied by Mr O’Connor.  The examination was opened by Ms Parke acting under an instrument of delegation under s 102 of the ASIC Act.  She was assisted by Mr Claridge.  Mr Liedermoy said that he wanted Mr O’Connor to appear for him.  Mr O’Connor confirmed that he was appearing for Mr Liedermoy.  Ms Parke then made a direction that Mr Liedermoy and his legal representative could not discuss with or disclose to any other person any matter concerning the investigation which was disclosed in the examination, nor the answers given by the examinee.  She also said she proposed to make a direction that Mr O’Connor be excluded from attending the examination of Mr Liedermoy and any further s 19 examinations of him in relation to the investigation.  She proposed to make a further direction excluding any other lawyer from O’Connor Partners and any lawyer from Mark Andrews and Associates from representing Mr Liedermoy at that examination or any further s 19 examinations of him. 

10                  Ms Parke stated reasons for her exclusion directions, which were substantially along the lines of the reasons stated by Mr Claridge for the directions which he had given on 18 September 2002.  However she made no reference to Messrs Butcher Paull and Calder in her directions.  Mr Liedermoy denied that he had been given any information by Mr O’Connor.

11                  On 8 October 2002, Mr Liedermoy filed an application in this Court seeking orders setting aside both the non-disclosure and exclusion directions made by Ms Parke.

The Grounds of the Applications

12                  The grounds for the applications filed on behalf of Messrs. Gangemi and Liedermoy respectively were in substantially the same terms.  In connection with the non-disclosure direction made in each case it was said:

‘1.        The direction went beyond what was reasonably necessary to achieve the secrecy of the hearing and in effect prohibited disclosure indefinitely or at least unless and until the making of an order of discharge, thus operating as a permanent restraint on future publication.

2.         A direction prohibiting disclosure during the currency of the hearing (sic) would have been valid and within power, but the direction was not so confined.’ 

13                  In relation to the exclusion direction in Mr Gangemi’s examination it was asserted, in the application, that one of the grounds for that direction was that Mr Andrews had, on or before 26 March 2002, received confidential information from Mr O’Connor relating to the private examination of one William Jay, whom O’Connor had represented at a s 19 examination on 16 February 2002, and that Mr O’Connor was the author of a letter dated 26 March 2002 referring to that information.  The ground stated:

‘The disclosure of matters by O’Connor to Andrews took place after the examination of William Jay had been completed.  The communication between O’Connor and Andrews was not a reasonable ground for making the exclusion direction.’

Similarly, in the Liedermoy application it was said that the same matter was a ground for the exclusion direction against Mr O’Connor and the same contention was raised in the Liedermoy application that this disclosure was not a reasonable ground for making the exclusion direction.

14                  Other grounds relied upon by the respondent for the respective exclusion directions related to the other parties represented by Messrs Andrews and O’Connor respectively and in this connection it was asserted in each of the applications:

‘The fact that a solicitor represents a group of companies and certain individuals who are associated with one or more of those companies and who might be examined by the Commission, is not of itself a reasonable ground for excluding the solicitor, and the exclusion is not reasonably necessary for achieving the privacy of the hearing.’

The Evidence at the Hearing

15                  The two applications were heard together.  In each case Mr Morison of counsel represented the applicant and Mr Beech represented the respondent.  Directions had been made on 10 December 2002 that the evidence in each of the applications be evidence in the other. Moreover it was ordered that at the hearing of the applications the respondent have leave to rely upon a confidential affidavit of Georgina Louise Parke sworn 24 October 2002.  A similar direction was made in respect of a confidential affidavit sworn by Marcus Essex Claridge on 25 October 2002. 

16                  In the Gangemi application evidence was received by way of an affidavit of Trevor Mark Andrews which exhibited the first page of the s 19 notice directed to his client and a transcript of the commencement of the examination of his client on 18 September 2002 including the various directions made at that time by Mr Claridge which have been referred to above.  Mr Claridge swore an affidavit of 25 October 2002 in which he identified the investigation mentioned in each of the s 19 notices.  Mr Claridge also deposed to the fact that ASIC is conducting a related investigation under Pt 3 of the ASIC Act 2001 into suspected contraventions of the Corporations Law, the Corporations Act 2001 and the Criminal Code arising from the conduct of officers and/or representatives of Investment Planners (Australia) Pty Ltd in regard to offers for subscription or issue of invitations to subscribe for securities without a prospectus in Oretek Ltd and the conduct of other entities in the management and ownership of Rand, Tribune Resources NL and Oretek.  Although the orders made on 10 December 2002 had made reference to a confidential affidavit of Mr Claridge sworn on 25 October 2002, no confidential affidavit sworn by him was relied upon at the hearing.

17                  In relation to the Liedermoy application, reliance was placed by the applicant on the affidavit of his solicitor, Michael O’Connor, which exhibited the relevant s 19 notice and the transcript of the examination held and directions given on 5 September 2002.  The respondent relied upon the affidavit of John Robert Thorne, sworn on 24 October 2002 and two affidavits of Georgina Louise Parke sworn on that date, one of which was a confidential affidavit.

18                  Mr Thorne’s affidavit referred to the investigation the subject of the s 19 notices and the related investigation which was mentioned in Mr Claridge’s affidavit.  Mr Thorne also referred to s 19 notices which had been issued to Mr Kevin Trezona and Dr William Jay to attend for examination under s 19 of the Act.  Mr Trezona was represented by Mr Paull and a non-disclosure order was made at that time.  Dr Jay was represented by Mr O’Connor and a similar non-disclosure order was made in relation to that examination.

19                  Ms Parke’s non-confidential affidavit of 24 October 2002 also referred to the two related examinations and exhibited company searches relating to Rand, Tribune Resources and Oretek.  She said that in or about June 2002 Mr Thorne had given her a copy of a letter dated 26 March 2002 which appeared to be from Mark Andrews and Associates to their client, Mr Michael Giovinazzo.  Mr Thorne told her he had been given the letter by another ASIC officer who had received it from Mark Andrews and Associates as part of a complaint made against various ASIC officers.  She also referred to an examination held on 28 June 2002 in relation to Mr Gary Lemon who was represented by Mr O’Connor.  Mr Thorne at that examination had made an order excluding Mr O’Connor from representing Mr Lemon at it.  Later Mr Thorne told Ms Parke that the letter of 26 March 2002 had originally been received by ASIC on 4 April 2002 from a Mr Robert Allen as part of a bundle of documents relating to a complaint against ASIC officers.  Ms Parke said that neither Mr O’Connor nor anyone else had ever said to her or given her cause to believe that the contents of the letter were not true.  Ms Parke went on to refer to the directions she had made at the examination of Mr Liedermoy on 5 September 2002. 

20                  In her confidential affidavit, Ms Parke exhibited the letter of 26 March 2002.  The letter in part referred to a conference held between Mr Giovinazzo and Mr Andrews.  It confirmed that during that conference Mr Andrews had outlined various matters discussed during a conference he had had with Messrs O’Connor and Paull on 21 March 2002.  According to the letter, Mr O’Connor had taken the opportunity to outline his assessment of the current status of the ASIC investigation based on knowledge derived during his client’s interviews held pursuant to s 19.  Reference was made to the substance of those matters.

21                  There was no cross-examination on any of the affidavits and the factual matters set out in them were not in dispute.  I accept the evidence set out in those affidavits. 

Admissions by the Applicants

22                  For the purpose of the hearing the applicants each made the following admissions which were set out in their written outline of submissions:

(a)        Michael O’Connor represented William Jay at a s 19 examination on 26 and 27 February 2002.

(b)        Greg Paull of Butcher Paull and Calder represented Kevin Trezona at a s 19 examination on 6 November 2001. 

(c)        Mark Andrews acts for or has acted for Michael Giovinazzo in relation to a possible s 19 examination.

(d)        On 21 March 2002, Mr O’Connor identified to Mr Andrews three issues the respondent appeared to be focussing on.

(e)        Mr O’Connor told  Mr Andrews the thrust of Dr Jay’s evidence on one issue and Mr Paull told Mr Andrews the thrust of Mr Trezona’s evidence on another issue.

(f)         On 26 March 2002, Mr Andrews wrote to his client, Mr Giovinazzo, setting out these matters, among others.

(g)        Mr Giovinazzo is a person the respondent may wish to examine in the course of its investigation.

(h)        At the Jay examination, the inspector made a direction that Dr Jay and Mr O’Connor must not discuss Dr Jay’s evidence with any person or disclose to any person any matter concerning the investigation which was revealed to them in the course of the examination except to each other for the purpose of Dr Jay taking legal advice, and that the order was expressed to remain in force for so long as was necessary for the purpose of the investigation and until further order.  At the Trezona examination a similar direction was made.

Statutory Framework

23                  Part 3 of the ASIC Act 2001 is entitled “Investigations and Information Gathering”.  Section 13 confers general powers of investigation upon ASIC.  In particular s 13(1) provides:

‘13(1)  ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions) where it has reason to suspect that there may have been committed:

(a)       a contravention of the corporations legislation (other than the excluded provisions); or

(b)       a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that:

            (i)         concerns the management or affairs of a body corporate or managed investment scheme; or

            (ii)        involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products.’

Subsection 13(2) empowers ASIC to make such investigation as it thinks fit where it has reason to suspect that unacceptable circumstances within the meaning of Subdivision B of Division 2 of Part 6.12 of the Corporations Act have, or may have, occurred.  Section 14 authorises the Minister to direct investigations into particular matters.  Section 15 provides for investigations by ASIC following the lodgment of the report of a receiver or liquidator under ss 422 or 533 of the Corporations Act.  Sections 16 and 17 provide for ASIC to make  interim and final reports on examinations.  Section 18 relates to the distribution of such reports.  The preceding sections all comprise Div 1 of Pt 3. 

24                  Division 2 of Pt 3 relates to Examination of Persons.  Section 19 is in the following terms:

‘19(1)  This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.

   (2)   ASIC may, by written notice in the prescribed form given to the person, require the person:

(a)       to give to ASIC all reasonable assistance in connection with the investigation; and

(b)       to appear before a specified member or staff member for examination on oath and to answer questions.

   (3)  A notice given under subsection (2) must:

(a)       state the general nature of the matter referred to in subsection (1); and

(b)       set out the effect of subsection 23(1) and section 68.’

25                  Section 20 applies the remaining provisions of Div 2 to the circumstances in which, pursuant to a requirement under s 19 a person (designated the examinee) appears before another person (designated the inspector) for examination.  Section 21 empowers an inspector to examine the examinee on oath or affirmation and to require the examinee to answer the questions put at the examination which are relevant to a matter that ASIC is investigating or is to investigate under Div 1.  Sections 22 and 23 are of central importance to the present application.  These relate to the privacy of the examination and the right of attendance of the examinee’s lawyer.  They are in the following terms:

‘22(1)  The examination must take place in private and the inspector may give directions about who may be present during it, or during a part of it.

   (2)  A person must not be present at the examination unless he or she:

(a)       is the inspector, the examinee or a member; or

(b)       is a staff member approved by ASIC; or

(c)        is entitled to be present by virtue of:

            (i)         a direction under subsection (1); or

            (ii)        subsection 23(1).

            Penalty:10 penalty units or imprisonment for 3 months, or both.

   (3)  Subsection (2) is an offence of strict liability.

23(1)  The examinee’s lawyer may be present at the examination and may, at such times during it as the inspector determines:

(a)       address the inspector; and

(b)       examine the examinee;

about matters about which the inspector has examined the examinee.

   (2)  If, in the inspector’s opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.

   (3)  An offence under subsection 64(4) relating to subsection (2) of this section is an offence of strict liability.’

Section 24 provides for the inspector to cause a record to be made of statements made at the examination and s 25 deals with the provision by ASIC of copies to other persons.  Copies may be given subject to conditions (s 26).  If a report about the investigation is prepared under s 17, each record of the examination must accompany the report (s 27). 

26                  Division 6 of Pt 3 deals with hearings.  In particular, s 51 provides:

‘51.  ASIC may hold hearings for the purposes of the performance or exercise of any of its functions and powers under the corporations legislation (other than the excluded provisions), other than a function or power conferred on it by Division 1 of this Part or by section 657C or 657G of the Corporations Act.’

There is a general discretion to hold hearings in public or private (s 52).  Relevant for present purposes are ss 55 and 56 under which ASIC may restrict publication of certain material and direct who may be present when the hearing takes place in private.  Thus s 55 provides:

‘55(1)  Where, at a hearing that is taking place in public or in private, ASIC is satisfied that it is desirable to do so, ASIC may give directions preventing or restricting the publication of evidence given before, or of matters contained in documents lodged with, ASIC.

   (2)  In determining whether or not to give a direction under subsection (1), ASIC must have regard to:

(a)       whether evidence that has been or may be given, or a matter that has arisen or may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law; and

(b)       any unfair prejudice to a person’s reputation that would be likely to be caused unless ASIC exercises its powers under this section; and

(c)        whether it is in the public interest that ASIC exercises its powers under this section, and

(d)       any other relevant matter.’

27                  The relevant parts of s 56 are as follows:

‘56(1)  ASIC may give directions about who may be present during a hearing that is to take place in private.

   (2)  A direction under subsection (1) does not prevent:

(a)       a person whom the corporations legislation (other than the excluded provisions) requires to be given the opportunity to appear at a hearing; or

(b)       a person representing under section 59:

            (i)         a person of a kind referred to in paragraph (a) of this subsection; or

            (ii)        a person who, by virtue of such a direction, is entitled to be present at a hearing;

            from being present during the hearing.’

Jurisdiction

28                  It was not clear from the form of the applications or from the grounds set out in them what jurisdiction of the Court the applicants sought to invoke.  In the event, counsel for the applicants relied upon the Administrative Decisions (Judicial Review) Act  (“ADJR Act”) and also upon s 39B of the Judiciary Act 1903 (Cth).  The nature of the relief sought in each case seemed more appropriate to the ADJR Act than to s 39B of the Judiciary Act.  Underpinning the submissions made to the Court was the contention that the directions, in the circumstances in which they were made, were beyond power.

The Non-Disclosure Directions

29                  A threshold point was taken by the respondent in each case that no directions were made on 5 and 18 September 2002 by its delegates.  In each case, it is said, the delegates informed the examinee and his lawyer of their intentions to make such directions.  However notwithstanding the form of words used, I am satisfied that what was said on each occasion amounted to substantive directions and were so understood by all those present.

30                  As appears from the statutory framework there is no express power to make directions requiring that an examinee not disclose the questions put or answers given at an examination.  It was submitted for the respondent however, that the requirement of s 22(1) that a s 19 examination take place in private, coupled with the power in s 24 and 25 to restrict publication of a written record of the examination, give rise to an implied power to make non-disclosure orders.  Moreover, it was said to be essential to the effective and efficient conduct of investigations under Pt 3, and reasonable, that a non-disclosure direction be able to apply beyond the currency of the examination and for as long as was necessary for the purpose of the investigation. 

31                  The respondent relied upon the decision of the Full Court of the Federal Court in National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217 as supporting an implied power to make a non-disclosure order.  That case concerned private hearings conducted by the NCSC under s 36 of the National Companies and Securities Commission Act 1979 (Cth).  The provisions of s 36 were summarised by Lockhart J at 220 thus:

‘.          section 36 authorises the Commission to hold hearings for the purpose of the performance of any of its functions or the exercise of any of its powers (s 36(1));

.           where the Commission is required or decides to hold a hearing, the Commission is authorised to direct that the hearing take place either in public or in private (s 36(2));

.           the Commission is empowered to give directions as to the persons who may be present at a private hearing (s 36(5));

.           where, at a hearing by the Commission that is held in public, it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Commission is empowered to direct that the hearing or a part of the hearing take place in private and give directions as to the persons who may be present (s 36(6)(a)) or give directions preventing or restricting the publication of evidence given before the Commission or of matters contained in documents lodged with the Commission: (s 36(6)(b)).  There is no provision comparable to s 36(6)(b) with respect to private hearings.’

The trial judge (Foster J) had held that the power of the NCSC as a statutory body to direct that a hearing before it be conducted in private did not carry with it a further unspecified power to prevent or restrict publication of evidence given at the hearing.  Lockhart J, however, held that the power of the Commission to conduct a hearing in private pursuant to s 36 and the express power conferred by s 36(5), to determine who should be present, carried with them the power to give directions preventing or restricting the publication of evidence given before the Commission or the content of documents lodged with it.  He said:

‘The essence of a private hearing before the Commission is that what takes place is in private and therefore, by definition and of necessity not open or accessible to the public.’ (221)

His Honour went on to say:

‘The power of the Commission to maintain the privacy of the evidence is a necessary element in the private hearing itself.  Alternatively, it may be regarded as a power which is incidental to or consequential upon the express power of the Commission to hold a hearing in private… The power which must be implied is a power to take all reasonable steps to ensure that the hearing takes place privately.’ (221)

Beaumont and Einfeld JJ also held that it was necessary that the Commission have power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. 

32                  The provisions under consideration in the NCSC case related to the conduct of hearings rather than of examinations and so were closer in their terms to the provisions of Div 6 of Pt 3 relating to hearings than to those of Div 2 relating to examinations.  In the case of the NCSC, as in the case of ASIC, the regulator had the power to direct that a hearing be in private (s 52).  In the case of a private hearing under the ASIC Act, as well as a public hearing, there is now express authority for ASIC to give directions preventing or restricting the publication of evidence given before it, or any matters contained in documents lodged with it.

33                  In contradistinction to the provisions of s 36 of the NCSC Act and s 52 of the ASIC Act in relation to hearings, there is no discretion in ASIC to determine whether an examination should take place in private.  That is a statutory mandate under s 22(1).  And while the legislature has now conferred express power on ASIC to make non-disclosure orders in relation to both public and private hearings, it has not done so in respect of private examinations.  Nevertheless it is clear enough from NCSC v Bankers Trust that the requirement of privacy in relation to hearings imports an element of secrecy which is not for the benefit of those who are witnesses at the hearing nor able to be waived by them.  So too the statutory requirement of privacy in relation to examinations is evidently in aid of the investigative process rather than protective of the interests of examinees.  The power of an inspector to give directions as to who may be present during an examination (s 22(1)) and the restrictions on the publication of written records of examinations (s 25(2)) are indicative of a legislative intention to protect the secrecy of the examination.  Such a policy is not surprising given the character of the examination as an investigative tool.

34                  In relation to the like provisions of the Australian Securities Commission Act 1989,Lockhart J said in Australian Securities Commission v Bell (1991) 104 ALR 125 at 129 that:

‘… if it is desired to ensure that the lawyer attending an examination under Div 2 keeps confidential to himself and his client what occurred and what was said during the examination, appropriate undertakings may be called for by the inspector and given by the lawyer,…’

35                  There is no doubt that there is a power in an inspector to prevent a particular lawyer from appearing for an examinee when the presence of that lawyer at the examination raises an unacceptable risk of compromising its confidentiality.  It was on that basis, in part, that I upheld an exclusion order in relation to a lawyer representing a number of examinees in Stockbridge v Ogilvie (1993) 10 ACSR 688 at 698.  In my opinion it is of the essence of an examination in aid of an investigation that it be able to be kept confidential pending the completion of the investigation and that the inspector conducting the examination be able to give directions accordingly.  Having said that, in my opinion it is desirable that as is the case with hearings, the matter be put beyond doubt by the enactment of an express power with clear sanctions for the breach of directions so given. 

36                  I conclude therefore, that the inspectors in these two cases were empowered  to make non-disclosure orders.  In each case however the non-disclosure order made was unlimited in time.  In NCSC v Bankers Trust a non-disclosure order in relation to a hearing was held to be invalid in part because it was unlimited in time.  Beaumont and Einfeld JJ said, at 233:

‘It is one thing to secure the secrecy of the hearing by prohibiting disclosure during the currency of the hearing, or, perhaps, within a reasonable time after it has concluded … It is a very different thing, as was attempted here, to seek to prohibit disclosure indefinitely, or at least unless and until an order of discharge, if any, is made.  For all practical purposes, the order would have operated as a permanent restraint upon future publication.  Put differently, the order, in our view, travelled beyond the period in respect of which the Commission’s implied power to prohibit disclosure could reasonably operate.’

37                  An examination under Pt 3 of the ASIC Act is conducted in aid of an investigation under that Part.  That is evident from the provisions of s 19(1).  The purpose of the implied power to direct non-disclosure on the part of the examinee and the legal representative must be to protect the integrity and efficacy of the investigative process.  Once that process is complete, there is no further statutory purpose in maintaining a prohibition on disclosure.  The non-disclosure orders that were made in these cases, being unlimited in time, were beyond power.  It may, of course, be difficult to determine with precision at the time of an examination when the investigation to which it relates will be completed.  Where a final report is prepared under s 17 that will mark the end of an investigation.  But such a report is not required in every case.  In my opinion where an investigation is ongoing and it is not clear when it will conclude an appropriate non-disclosure direction would specify a period of non-disclosure based upon a reasonable estimate of the time likely to be taken by the investigation.  In the event that the investigation has not been completed at the end of that period then it may be open to the inspector to make a further non-disclosure order.  It may be that there are other ways of dealing with the limits upon the implied power.  But the power does not in my opinion support the indefinite prohibition imposed in these cases.  The directions given were therefore ultra vires.  It is sufficient in my opinion to make declarations to that effect.

The Exclusion Order

38                  There was a certain formulaic repetition in the reasons stated by the inspectors for making the exclusion orders that they did.  The statements of reasons were in part derived from case law.  There is no doubt that there is a power in the inspector at an examination in appropriate circumstances to exclude a particular legal representative of an examinee.  An inspector may decline to allow a lawyer to appear before him if there are reasonable grounds for a bona fide belief that to allow the lawyer to attend will or is likely to prejudice the investigation which the inspector is obliged to carry out pursuant to the requirements of the Act – Australian Securities Commission v Bell at 130 per Lockhart J, and at 139 per  Sheppard J.  The right of an examinee to have legal representation at an examination is conferred by s 23(1).  It is subject to the qualification in s 23(2) by which the inspector may require a person acting obstructively in the exercise of the rights of representation conferred by s 23(1), to stop addressing the inspector or examining the examinee as the case may be.  It is also subject to the power conferred on the inspector by s 22(1) to give directions about who may be present during the examination or part of it.  As I observed in Stockbridge v Ogilvie at 698 that power must be exercised for legitimate statutory purposes.  And relevantly to the present case, as I observed there:

‘Where one lawyer seeks to represent a number of examinees in the same investigation, it may be thought that there is a risk that without consciously intending any impropriety that lawyer might divulge to one examinee what has passed in the examination of another.  The extension of a restriction to all members of a given firm may be controversial: see Wood v NCSC (1990) 1 ACSR 779; 8 ACLC 642.  However there are matters of judgment and assessment involved.  It is of course, not the role of the ASC to supervise the lawyer-client relationships of those who appear before it in s 19 examinations.  It is only where a conflict of interest has some actual or potential impact on the investigative process that a direction based on such a concern would be within power.’

39                  Having regard to the factual bases upon which the exclusion directions affecting Mr Andrews and Mr O’Connor and their respective firms were made, I am satisfied that they were made for legitimate purposes and that they were within power.  It is not for the Court to substitute its judgment for that of the inspector in relation to the directions made.  It is sufficient that there was a reasonable basis for the directions and that they were made in accordance with the statutory purpose to be served by the examinations and the investigation of which they formed part. 

40                  The applications will be dismissed in so far as they relate to the exclusion directions.

Associate:

Dated:              20 May 2003