FEDERAL COURT OF AUSTRALIA
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413
Federal Court Rules: O 15 r 13, O 15 r 14, O 20 r 5, O 27 r 12(1), O 33 r 12, O 52 r 36
Federal Court Act 1976 (Cth): ss 17(4), 27, 50
Australian Securities and Investments Commission Act 2001 (Cth)
Haydon v Magistrates Court(2001) 87 SASR 448, cited
D A Christie Pty Ltd v Baker [1996] 2 VR 582, considered
Guss v Magistrates’ Court of Victoria [1998] 2 VR 113, cited
Nominal Defendant v Manning (2000) 50 NSWLR 139, considered
Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361, cited
CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1, followed
Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96, followed
Microsoft Corporation v CX Computer Pty Ltd (2002) 187 ALR 362, followed
Commissioner for Railways v Small (1938) 38 SR (NSW) 564, followed
National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372, followed
Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233, followed
Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275, followed
Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405, followed
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526, followed
University of Western Australia v Gray (No 12) [2007] FCA 396, followed
Hilton v Lord Granville (1841) 4 Beav 130; 49 ER 288, followed
Hemphill v M’Kenna (1842) 3 Dr & War 183, followed
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, followed
Garrard (T/As Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662, followed
Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47, followed
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955, followed
Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375, cited
Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (1981) 148 CLR 170, followed
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315, followed
Heydon JD, Cross on Evidence (7th Australian ed, 2004)
Spry, The Principles of Equitable Remedies (7th ed, 2007)
VID 1380 of 2006
GOLDBERG J
28 APRIL 2009
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | VID 1380 of 2006 |
| BETWEEN: | P DAWSON NOMINEES PTY LTD (ACN 004 743 408) First Applicant
FREDERICK HENRY HART Second Applicant
|
| AND: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent
BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) Second Respondent
BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917) Third Respondent
|
| JUDGE: | GOLDBERG J |
| DATE: | 28 APRIL 2009 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
1 There are two applications before the Court. First, a Notice of Motion filed by the applicants on 16 January 2009 by which they seek leave to inspect and copy documents produced by the Australian Securities and Investment Commission (“ASIC”) pursuant to a Subpoena to Produce issued on 13 July 2007 and served on it. The documents sought to be inspected by the applicants are the subject of a claim by ASIC that they are privileged from production and inspection on the ground of public interest immunity (“PII”). At the time of the issue of the subpoena the first applicant was the only applicant in the proceeding. Subsequently on 16 December 2008, the second applicant was added as an applicant as a result of the consolidation of this proceeding with another proceeding. For the sake of convenience and conformity, I refer in these reasons to the applicants although from time to time there was only the first applicant in the proceeding.
2 The second application before the Court is a Notice of Motion filed by the second and third respondents (“Multiplex”) on 13 March 2009 seeking orders that the applicants’ motion be dismissed or permanently stayed as an abuse of process of the Court either generally or under O 20 r 5 of the Federal Court Rules. Multiplex said that it filed the Notice of Motion out of an abundance of caution, having regard to what it said was the onus on the applicants to demonstrate by reference to new evidence or materially changed circumstances or some other compelling reason that the Court should permit the applicants to litigate again the PII issue which has been the subject of a previous interlocutory application and decision by a primary judge and a Full Court on appeal.
RELEVANT BACKGROUND
(a) documents provided to ASIC by Multiplex in the course of ASIC’s investigation of that company; and
(b) transcripts of examinations conducted by ASIC during the course of its investigation.
Production for inspection was not in issue for a substantial number of other documents.
4 On 25 July 2007, ASIC sent a letter to the applicants’ legal advisers, addressed to Mr Andrew Watson, in which it was stated, inter alia:
“Following a preliminary review, ASIC has now identified the documents which fall within the scope of the subpoena and has commenced the preparation of the list ordered by his Honour.
However, due to the large number of documents involved, the task of considering each document and making an assessment as to whether ASIC may wish to seek orders with respect to inspection of particular documents has been significant and time consuming”.
5 On 27 July 2007, Mr Watson sent a letter to ASIC responding to its letter of 25 July 2007. The letter stated, inter alia:
“4. No argument was advanced either prior or during the interlocutory hearing before Heerey J as to the basis of any claim for privilege or any other reason which would justify refusal of access to the Documents. This remains the position following receipt of your letter under reference notwithstanding the analytical process by which claims for privilege are being identified is underway.
5. The basis of any claim to be made by ASIC with respect to the Documents is presently obscure. We make no particular criticism of ASIC in this regard as the orders of the Court do not contemplate us being provided with details of any claim in advance to the filing of the List. However, in circumstances where any claim for privilege remains inchoate and there is significant foreshadowed delay, we wish to understand the nature of the claims that ASIC proposes to advance or at the very least require ASIC to review the Documents on an individual basis for such an extended period.
6. We would be grateful if you would advise us by return as to the ‘head’ or as to a brief description of the privileges or other claims which are either proposed to be advanced by ASIC or the consideration of which is presently informing the analysis of the Documents. Is it, for example, a claim for legal professional privilege (which for obvious reasons we would have thought unlikely), public interest immunity or some other statutory privilege? Uninstructed, we would have thought that the documents identified in the subpoena were unlikely, by their nature, to be amenable to the sorts of heads of privilege which we can presently envisage; particularly where the documents are unlikely to reveal any investigative methodology and the further consideration that the ASIC investigation has now been concluded. Having said this we of course recognise that in certain circumstances claims for public interest immunity can exist following the completion of an investigation but those circumstances do not seem apposite to the documents the subject of the subpoena.
6 On 3 August 2007, ASIC sent a letter to Mr Watson which stated, inter alia:
“We note your inquiry as to the basis of ASIC’s public interest claims. At this stage of our review, we do not propose to identify further details save to state that ASIC has identified a serious public interest immunity issue in relation to the documents sought by the subpoena.”
7 On 6 August 2007, Mr Watson sent a letter to ASIC which stated, inter alia:
“Your letter of 3 August 2007 refers to ‘a serious public interest immunity issue’ in relation to the documents without any elaboration. We have been proceeding on the assumption that there is no extant investigation following ASIC’s acceptance of the Enforceable Undertaking. Further, the categories of documents sought in the subpoena would not, on their face, seem to enliven any issue of ‘informer privilege’, nor raise any issue regarding ASIC’s internal investigative processes.
We would appreciate some broad indication of the serious public interest immunity issue which has arisen, so that we may properly consider ASIC’s request for an extension. A substantive response on this issue, rather than yet further correspondence with an urgent and peremptory deadline, may allow the Applicant to consent to ASIC’s request and obviate any need for the cross examination of Ms Sheppard.”
HEARING BEFORE FINKELSTEIN J ON 7 AUGUST 2007
8 On 7 August 2007, Finkelstein J varied Heerey J’s orders of 12 July 2007. Prior to the hearing on that day, ASIC notified the applicants’ solicitors that it would be making a claim for PII in respect of all the transcripts. At the hearing Mr Watson appeared for the applicant and Ms Hogan‑Doran appeared for ASIC. In response to a query from Finkelstein J as to what was happening between the applicant and ASIC, Mr Watson said:
“… we now it appears face a claim by ASIC in relation to the documents which were paragraph 2 of the subpoena, the transcripts of examinations, where there is as we apprehend it going to be a blanket claim for public immunity in respect of all of the transcripts.”
“Now, obviously enough given the history, your Honour, we are a bit bemused by that. It doesn’t appear that public interest immunity was at the forefront of, or a blanket claim was at the forefront of their processes when they were considering a section 25 request. It certainly doesn’t appear that even as late as 1 August a blanket claim was envisaged. Just going through the possible heads of public interest immunity as we understand it the investigation is concluded. That is what the enforceable undertaking announced. It is what Ms Shepherd herself says in her affidavit. So concluded the investigation we can’t understand that informer immunity would be an issue in respect of all of the transcripts and it doesn’t seem to us likely that all of the transcripts reveal details of ASIC’s internal processes which would be the claim for an immunity. So not surprisingly they say it is a claim for public interest immunity and we can’t tell you what it is but, your Honour, we do have a concern to get that issue, we understand now they will produce the documents tomorrow, those documents but they will make the blanket claim. We would like to get that issue sorted reasonably quickly in light of an eight month history.”
(emphasis added)
In the course of the hearing Senior Counsel for Multiplex said:
“… Insofar as I have been able to pick up from these ASIC affidavits the nature of the claim it is in part at least built on some concern that there was a third party informer, a whistle blower, etcetera and it seems to us that one would need to go well beyond the formal parts of the transcript anticipating the sort of argument ASIC may wish to make saying well identities are disclosed etcetera. Now, we also know from the material that there are 41 transcripts comprising 8400 pages. …”
He foreshadowed a concern whether the judge hearing ASIC’s claim for PII in respect of the transcripts and other documents should also be the trial judge.
10 The following discussion then occurred:
“MS HOGAN‑DORAN: Can I just indicate one thing to you? Your Honour, could I indicate I do have in Court a confidential affidavit but I have refrained from giving it to your Honour at this moment because of those concerns.
HIS HONOUR: Better not for the time being.
MS HOGAN‑DORAN: Thank you, your Honour. I think my friend has something he wishes to say.
MR WATSON: Well, just on that last interchange with your Honour. Some of that, your Honour, would make sense if the claim was a claim with respect for portions of the transcript. If an informer immunity is being claimed presumably it is not all of the transcript.
HIS HONOUR: Yes, that is fair comment if it is limited to that.
MR WATSON: And, your Honour, as we apprehend it from the correspondence ‑ ‑ ‑
HIS HONOUR: Nobody will know until we see the claim.
MR WATSON: Indeed, your Honour, but the claim of which we have been informed is not a claim for bits here and there but a claim in globo, the lot, 41 volumes. Hard to imagine how your Honour needs to see anything in that context.
MS HOGAN‑DORAN: Your Honour, might I indicate the claim as I anticipate it will be in respect of each of the transcripts by the reason of principle but also for a reason of practicality, which is something that I am not in a position to take your Honour to unless I was to take your Honour to the - - -
HIS HONOUR: What’s the principle?
MS HOGAN‑DORAN: The usual principle as to the public interest that we wish to protect.
HIS HONOUR: But what’s the principle that you want to run or argue?
MS HOGAN‑DORAN: Well, its difficult to do that, your Honour, because – to elaborate on that now without in some way risking defeating the interest we wish to protect. Might I indicate in the second matter there’s a peculiarity in relation to the transcripts that forces, in effect, the application to be made not in relation to certain portions or substantial portions but indeed in relation to all of them.
HIS HONOUR: Is it a physical problem?
MS HOGAN‑DORAN: Yes.
HIS HONOUR: Can you give me a clue what that is?
MS HOGAN‑DORAN: No.
HIS HONOUR: Or at least not yet.
MS HOGAN‑DORAN: Yes.”
(emphasis added)
“MS HOGAN‑DORAN: There are some difficult questions and also I might indicate that from inquiries made within ASIC it’s our understanding that this isn’t a claim that has been made in this fashion before and it’s partly because of the specific interest we wish to have the Court address but also the peculiarity which - - -
HIS HONOUR: My recollection is that there might be one or two cases that deal with the lawfulness of a temporary restriction.
MS HOGAN‑DORAN: There are, your Honour. Yes.
HIS HONOUR: Yes.
MS HOGAN‑DORAN: But the issues that we raise are in addition to that but I understand your Honour saying that that would be irrelevant.
HIS HONOUR: They have to be in addition to that.
MS HOGAN‑DORAN: That’s right.
HIS HONOUR: I understand that, and do they travel beyond the problem with informers?
MS HOGAN‑DORAN: I’m not in a position to answer that at this time.”
(emphasis added)
12 At the hearing before Finkelstein J on 7 August 2007 counsel for ASIC was not prepared to state, and did not state, either the basis for the claim that the documents and the transcripts were privileged from production on the ground of PII, or the interest ASIC was seeking to protect. Importantly, as recorded in par [11] above, counsel for ASIC did say:
“… this isn’t a claim that has been made in this fashion before …”
13 On 5 September 2007 ASIC served on the applicants a copy of an affidavit of Louise Anne Macaulay, which had been filed on 31 August 2007, in which Ms Macaulay referred to the investigation ASIC had conducted in relation to the construction of the Wembley Stadium in London by Multiplex. Ms Macaulay then addressed the documents sought by the subpoena. She annexed as Annexure A to her affidavit, a list of documents provided by Multiplex to ASIC in the course of the investigation, production of which documents ASIC resisted. She also annexed as Annexure B to her affidavit, a list of the transcripts of examinations of all the persons examined by ASIC under the Australian Securities and Investments Commission Act 2001 (Cth) during the course of the investigation, production of which transcripts ASIC resisted.
14 Ms Macaulay then said:
“ASIC proposes not to publicly elaborate on the matters of public interest that it has identified for resisting the production of the documents listed in ‘Annexure A’ and ‘Annexure B’. To so elaborate would or could disclose or tend to disclose certain confidential information contained in or revealed by those documents. Such disclosure would or could tend to defeat the public interest which ASIC seeks to protect in relation to these documents. A separate confidential affidavit will be filed by ASIC in support of ASIC’s claim. ASIC does not propose to serve a copy of that confidential affidavit on any party.”
(emphasis in original)
HEARING BEFORE GOLDBERG J ON 11 SEPTEMBER 2007
15 On 11 September 2007 the first applicant’s application for inspection of the documents produced by ASIC pursuant to the subpoena in respect of which ASIC had made a claim for privilege from production and inspection on the ground of PII came on for hearing before me. ASIC sought to prevent the inspection of thirty‑six specified documents obtained by ASIC from Multiplex and copies of forty‑one transcripts of examinations of witnesses conducted by ASIC. ASIC claimed relief from the subpoena on the basis of PII, legal professional privilege and further submitted that the documents otherwise available for inspection should only be inspected by persons who entered into confidentiality undertakings. ASIC argued that the documents and transcripts would, or would tend to, disclose confidential information contained in, or revealed by, the documents.
16 In the material it filed in the Court and served on the parties, ASIC did not elaborate on the matters of public interest it had identified as a ground or grounds for resisting the production of the documents and transcripts. It contended that to do so would, or could, disclose, or tend to disclose, certain confidential information contained in, or revealed by, the documents and the transcripts. ASIC contended that such disclosure would, or could, tend to defeat the public interest which ASIC sought to protect in relation to those documents and transcripts. Accordingly, ASIC sought to have its claim for PII privilege heard ex parte in camera in the absence of all the parties to the proceeding.
17 It is important to set out at some length the discussion between counsel and myself in the course of the open hearing on 11 September 2007. I do this so as to make it clear that Senior Counsel for ASIC (Dr Flick S.C.) was not only not prepared to state in open court the basis for ASIC’s claim that the documents and transcripts were privileged from production on the ground of PII, but also was not prepared to state why that basis could not be disclosed. In the subsequent ex parte hearing in camera which followed, he did not tell me why ASIC could not disclose the basis for its PII claim. I was only told by counsel for ASIC (Mr M Pearce S.C.) why that basis could not be disclosed for the first time in the course of submissions by Mr Pearce S.C. on 30 March 2009.
“HIS HONOUR: The difficulty which Mr Hutley faces at the moment is that he doesn’t know the basis of your claim.
DR FLICK: And if I can just complete that thought, your Honour, and then come back to what your Honour has just raised …”
There was discussion about procedure and then:
“HIS HONOUR: But can I get one thing clear. What is the basis of your claim – I’m not asking for the detail – is it a statutory claim or a common law claim for refusal to produce or protection from production?
DR FLICK: It’s a claim – what we seek to maintain as confidential and secret are the means whereby information came into the possession of the Commission and the sources of that information. To disclose the means whereby information came into the possession of the Commission – we say for reasons which have been advanced in a confidential affidavit – legitimately attract privilege and we say that to disclose either the means or the sources of information would also be contrary to the public interest, again for reasons set forth in the affidavit. …”
(emphasis added)
19 There was further discussion about procedure and ASIC’s submission that I should hear and determine its claim in an ex parte hearing in camera. Senior Counsel for ASIC then said:
“DR FLICK: Yes, and national security attracts public interest immunity, mere confidence doesn’t. But the court can publish reasons which say that a claim for public interest immunity is made in respect of a number of documents. The basis of that claim – and put it in the context of this case – is to disclose the documents, discloses the means whereby information came within the possession of the Commission and the sources of that information.
HIS HONOUR: But don’t we know that already from a public document?
DR FLICK: No.
HIS HONOUR: Don’t we know it from the enforceable undertaking?
DR FLICK: No. …
…
DR FLICK: What we are seeking to – what the enforceable undertaking discloses, your Honour, is that there was an investigation. It started in February 2005, and paragraph 1.15 of the undertaking sets out what ASIC found.
HIS HONOUR: Yes.
DR FLICK: But that which we are seeking to protect is the means whereby information came within our possession which occasioned us to actually start the investigation. The investigation didn’t just happen.”
“DR FLICK: What is – sorry. If you’re looking at a particular document and say, “What about this document”, what your Honour says may be correct, but what we are saying, and I keep putting this as Delphically as I can, is to say, what the documents for which we wish to claim the privilege discloses, is the means, the mechanism, the procedure, whatever you wish to call it, the means whereby information came into our possession. The fact that you may know a particular fact doesn’t disclose, necessarily, something else about the procedure whereby we got that fact.
…
DR FLICK: Yes. Yes, and that is this, to go back to Smith’s case, in that case, during the course of proceedings, a witness was being cross‑examined, and the question was put, “Who told you this”, and the witness answered the question identifying two individuals by name. The prisoner’s family’s representatives, supporters were in court. The genie had been out of the bottle, so to speak. Nevertheless, the court said that the claim for privilege had not been lost forever and orders were still made protecting it because, one, they said the limited disclosure was not sufficient to abrogate the privilege, and what was of concern to them was the – Mr Smith, a thoroughly respectable gentleman that your Honour may be aware of, is in for murder of a few people I think – it was said that Mr Smith may have a pretty shrewd idea as to who had told the police the information which occasioned them to conduct an investigation.
And the concern was that – it was obviously another prisoner, so you could reduce the number of potential suspects down – but say, there were 10 particular people that Mr Smith thought, “It’s one of you 10, I don’t know which,” but to tell the public at large that nine of those people had spoken to the police and had no difficulty whatsoever with their transcripts being released to the world at large enabled a very shrewd guess to be made as to who the remaining person was. Now, that was the facts of that case and what we are saying is that if you start disclosing information including particular transcripts – leaving aside the content of the individual transcripts – if you start disclosing individual transcripts, you’re going to start disclosing the means whereby information came into our possession and the sources of that information.
HIS HONOUR: Well, if that’s right, ASIC should have maintained confidentiality over the documents.
DR FLICK: They can maintain Crown privilege over the group of the documents.
HIS HONOUR: But doesn’t Crown privilege depend upon a sub‑stratum of confidentiality?
DR FLICK: And there were obligations of confidentiality imposed and sought.
HIS HONOUR: But those obligations have been evaporated.
DR FLICK: Yes.
HIS HONOUR: So the sub‑stratum for the public interest immunity claim in respect of the transcripts, on one view, is gone.
DR FLICK: No, that’s not – confidentiality is a basis and it may be a material basis upon which a claim for privilege is made but it is not - - -
HIS HONOUR: What is the other basis?
DR FLICK: I keep saying, Delphically, your Honour, the means whereby we obtained information and the sources of that information.”
(emphasis added)
“… Your Honour, can I give you the classic example of what’s happened this morning? If your Honour goes through the affidavits, we did not know, other than by guesswork, what type of claim it was. And your Honour will see we refer to that in our submissions. Now, my learned friend, this morning in open court, has disclosed for the first time that what we are dealing here is that we are concerned with the means by which ASIC became aware of the - - -
HIS HONOUR: The means by which the information came into the possession of ASIC - - -
MR HUTLEY: And the identity of - - -
HIS HONOUR: Well, he called it, “the source,” - - -
MR HUTLEY: The source
HIS HONOUR: - - - of the information which came into the possession of ASIC.
MR HUTLEY: Now, that is the first occasion where there has been any descent into any particularity.
HIS HONOUR: I understand that.
MR HUTLEY: Now, the first question is, is that as far as the descent can appropriately be made whilst protecting the confidentiality? Your Honour would, in our respectful submission, want to be satisfied that that is as far as one can go and protect the identification of the content claim, because it is a content claim. For example, at the moment, my learned friend has referred to “means”. We don’t know what that means because, does it mean, in effect, the physical means?
HIS HONOUR: But the enforceable undertaking tells you ASIC started an investigation, it got documents - - -
MR HUTLEY: No. No. No, as I understand – and I’m going to come to the particular – we know certain things about this case. But, anyway, at the moment the point we wish to make is there has, for the first time, been some identification of the character of the content. Now, the question is, firstly, your Honour should be satisfied that that characterisation which has been made public to my client is, as far as it can go without letting the cat out of the bag, that is, disclosing the confidential information claimed. Because it is an information case, there has to be precise identification of the information which obviously, we accept, cannot be identified before your Honour has determined it, but your Honour should be satisfied that we know as much as we can know whilst protecting that information, and also, to the extent possible, why disclosure of the information would harm the public interest. For example, one may well say, this is a means case and we think – the public thinks that disclosure of means in a case could deter future whistleblowers. I don’t know if that would be the argument, or it would likely identify to somebody, if it’s a means case, the precise means by which it took place. To take the example which my learned friend referred to, of Smith’s case, obviously there one had identified the information, and one was protecting the disclosure of that information from a particular person. It wasn’t disclosure to the public. It was disclosure to a particular person for the reasons indicated by my learned friend. At the moment we are completely unclear as to who this information ought not to be disclosed to.
…
MR HUTLEY: When you’re told, for the first time on the morning, it’s a means ‑ ‑ ‑
HIS HONOUR: And a source.
MR HUTLEY: - - - and a source and it’s an inquiry about the conduct of a particular organisation, to them - - -
HIS HONOUR: And the organisation has given you the documents and - - -
MR HUTLEY: And you’ve offered the entirety of the documents, the other documents, to the organisation subject to the individuals who claimed – object to it and I think – I can’t remember the precise number, all but 13? All but five go to the organisation. There may be some other basis of public interest immunity but it doesn’t sound to me like it’s a whistleblower type case and one would need to understand the reasoning in that context as to why the claim has been maintained to the extent that one can.”
(emphasis added)
No response was made by counsel for ASIC to these observations of Mr Hutley S.C.
22 After a short hearing in open court, I allowed ASIC to make submissions ex parte in camera and I made orders pursuant to ss 17(4) and 50 of the Federal Court Act 1976 (Cth) at the request of ASIC. I was extremely unhappy about adopting the procedure proposed by ASIC but did so after giving the applicants and the respondents the opportunity to make submissions in relation to ASIC’s proposal for the procedure for the hearing of its PII privilege claim.
23 During the course of these submissions in open court, counsel for ASIC stated to me, as I have noted earlier, that: “I keep putting this as Delphically as I can … what the documents for which we wish to claim the privilege discloses, is the means, the mechanism, the procedure, whatever you wish to call it, the means whereby information came into our possession.”
24 I then closed the Court, heard ASIC’s application ex parte in camera on that day and on 17 September 2007 and reserved my decision. In the course of that hearing I was not told by Senior Counsel for ASIC why he had been “Delphic”, that is “ambiguous, enigmatic, obscure” (according to The Macquarie Dictionary and The Shorter Oxford English Dictionary). I was never told by ASIC until the hearing on 30 March 2009 why it could not tell me in open court that its claim for PII was to protect the identity of an informer or informers to ASIC, that is to say, put colloquially, whistleblower or informer privilege.
25 On 2 November 2007, I dismissed ASIC’s application. My reasons for judgment were published publicly with a confidential appendix published only to ASIC: [2007] FCA 1659.
26 ASIC applied for, and was granted, a stay on production of the subpoenaed documents pending a possible appeal. On 16 November 2007, ASIC filed a motion seeking leave to appeal against my order and seeking the imposition of certain confidentiality orders. The parties, in preparation for the appeal, agreed to the imposition of a Special Counsel Regime, the terms of which are set out in the orders of Weinberg J made on 30 November 2007. In essence, the regime allowed Special Counsel appointed by the first applicant and Multiplex to have access to confidential material filed by ASIC on the leave application that included the disputed documents and the confidential appendix to my reasons at first instance. Special Counsel signed confidentiality undertakings that they would not disclose any of the confidential material to any person – including their instructing solicitors and clients. The regime also provided that Special Counsel would take no further part in the proceeding should ASIC’s claim for PII be upheld on appeal.
27 The application by ASIC for leave to appeal was heard by the Full Court on 8 May 2008. On 4 July 2008, the Full Court granted ASIC leave to appeal and upheld the appeal: (2008) 169 FCR 227. The reasons for judgment of the Full Court made public, for the first time, that ASIC based its claim of PII solely on the basis that production of the documents and transcripts would reveal the identity of informers. I had rejected ASIC’s claim in my confidential reasons which included that the identity of informers was already known within Multiplex or at least was known to some senior personnel in Multiplex.
28 The Full Court held that the applicability of PII was a question of substantive law, appellable on its merits and that in applying PII in civil proceedings, the Court should undertake a balancing exercise to determine whether the public interest which requires that documents privileged from production by PII should not be produced outweighs the public interest that a court of justice performing its functions should not be denied access to relevant evidence. Critically, the Full Court conformably with the reasoning in Haydon v Magistrates Court (2001) 87 SASR 448, held that “the partial disclosure of an informer’s identity, even to the person informed against, is not conclusive” and that immunity from further disclosure was not necessarily lost by the partial disclosure of informers’ identities. The Full Court decided that the documents were protected from production as they did not have sufficient importance to the applicants’ conduct of the litigation to outweigh the importance of not disclosing the identity of the informers.
29 (In the hearing of the present motions, Mr Watson said, and I accept his evidence, that the applicants and their legal advisers were unaware up until delivery of the Full Court’s reasons for judgment on 4 July 2008 of the basis of ASIC’s claim for PII and, in particular, were unaware that that claim rested solely on the ground of informer privilege. (I analyse his evidence later in these reasons)).
30 The applicants applied for special leave to appeal to the High Court. ASIC filed a summary of its argument for the purpose of the leave application. In that summary ASIC stated:
“The basis for ASIC’s claim of public interest immunity was that various documents produced on subpoena would (directly or indirectly) identify some informants who had given ASIC information in its investigations.”
31 During the course of the High Court leave to appeal hearing, the applicants submitted that:
· they had knowledge of the informer’s identity at the time of the hearing before me and before the Full Court;
· that identity had been publicly disclosed through the media by reference to the informer’s job title;
· the applicants’ instructing solicitor had had conversations with the informer who had confirmed his identity, his position at Multiplex and the fact that he had been to ASIC to provide information.
32 The High Court (Hayne and Kiefel JJ) refused special leave to appeal, stating inter alia:
“Australian Securities and Investments Commission submitted that one reason not to grant leave is that the applicant has an alternative remedy available, namely, to apply to reopen the question of inspection before a single judge of the Federal Court of Australia. The Multiplex parties did not submit to the contrary. On the face of it, it appears that it is open to a primary judge to reopen the interlocutory order that has been made precluding inspection at least if, as the applicant alleges, the factual foundations for that order were not sound, or, we would add, if circumstances affecting the existence of the privilege have changed in the time between the making of the order and the new application for leave to inspect.”
THE PRESENT MOTIONS
33 ASIC objects to the production and inspection of certain documents and transcripts pursuant to the Subpoena to Produce dated 13 July 2007 on the ground of PII but, in contrast to the hearing before me on 11 September 2007, has stated in open court that the sole ground on which PII is claimed is to protect the identity of informers, that is whistleblower or informer immunity. Further, both ASIC and Multiplex argue that the applicants are precluded from bringing their motion as it seeks to re‑litigate a matter not open to them on an interlocutory hearing because the matter has already been determined against them by the Full Court hearing and that such motion amounts to an abuse of process.
34 Both motions came on for hearing on 27 March 2009. The applicants submitted that it was only fair and just that leave be granted to inspect ASIC’s documents. Counsel for the applicants submitted that the evidence of Mr Watson, the applicants’ instructing solicitor, established that:
· the applicants and their solicitors were unaware until the delivery of the Full Court’s judgment on 4 July 2008 of the basis of ASIC’s claim for PII, and in particular, that the claim rested solely on the ground of informer privilege;
· on 5 September 2005, ABC television broadcast a Four Corners program entitled ‘Road to Wembley’. In that program the Multiplex accounting group general manager was identified as having “blown the whistle” and contacted ASIC. Further, on 5 and 6 September 2005, eleven press reports posted on the internet on the websites of various media commented on the Four Corners program and explicitly referred to Multiplex’s accounting group general manager;
· Mr Watson was aware at the time of the hearing on 11 September 2007 that the fact that Multiplex’s accounting group general manager had “blown the whistle” on Multiplex in connection with the Wembley Stadium project had been published in the national print and electronic media;
· on 2 May 2008 Mr Watson had a telephone conversation with Mr Stewart Cummins in which he confirmed to Mr Watson that he was Multiplex’s accounting group general manager in February 2005, that he had been the whistleblower referred to in the Four Corners program and that he went to ASIC with his concerns about the Wembley Stadium project;
· due to the procedures adopted in the hearing before me and in the Full Court, combined with the fact that the applicants and their solicitors were unaware that ASIC’s objection to the production of documents was based on informer privilege, the applicants were not in a position to draw the above matters to the Court’s attention at the earlier hearings.
35 The applicants submitted that the Court, when balancing between the public interest in the protection of the particular informer in question and the encouragement of potential future informers, and the fair and efficient disposition of civil disputes by the courts, should have regard to the fact that the documents subject to the PII claim “will be highly material to the Applicants’ claim and potentially of significance in narrowing the issues in dispute in the proceeding.” In addition, the applicants submitted that it was not credible that all of the forty‑one transcripts of examinations said to be subject to PII would reveal the identity of the informer and that all of them could be subject to an immunity claim.
THE THRESHOLD ISSUE
36 ASIC and Multiplex submitted that the current motions require the resolution of a threshold issue – namely whether it is open to the applicants to have the interlocutory matter (whether the documents sought in the subpoena should be produced for inspection) effectively reheard, before any substantive matters raised by the applicants’ motion can be considered. ASIC submitted that there are a number of limits on the applicants’ ability to re‑litigate matters already the subject of an interlocutory order.
(a) there is new material or new evidence which was not available to the moving party at the time the first order was made; or
(b) there is a material change in the circumstances since that order was made; or
(c) there are exceptional circumstances which warrant re‑consideration of the matter.
38 Although there have been a number of decisions which have sought to categorise the circumstances which entitle or allow a moving party to seek to vary or change an interlocutory order which has previously been made, at the end of the day, it is a matter for the discretion of the Court.
“A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust …”,
is a relevant consideration. I also take into account the observation of Heydon JA in Nominal Defendant v Manning (2000) 50 NSWLR 139 (“Manning”) at par [46]:
“… These ‘general rules’ and ‘ordinary rules of practice’ [as to when a further interlocutory application can be made when an earlier interlocutory application has been determined] are to be administered bearing in mind the ‘over‑riding principle governing the approach of the Court to the interlocutory applications’, namely ‘that the court should do whatever the interests of justice require in the particular circumstances of the case’: Brimaud v Honeysett Instant Print Pty Ltd (at 4)”,
and of Palmer A‑JA (with whom Mason P and Santow JA agreed) in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 at 318:
“…the over riding principle governing the approach of the court to the interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case: per Foster A-JA in Nominal Defendant v Manning (at 161)”.
40 The present state of authorities reveals that there are two divergent views as to the circumstances in which a court will entertain a second interlocutory application in respect of the seeking of the same order as was sought in an earlier interlocutory application which was dismissed. There is:
(a) what is said to be the strict view of Brooking and Hayne JJA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 (“Christie”) and Mason P in Manning;
(b) what is said to be the liberal view of Charles JA in Christie and of Heydon JA and Foster AJA in Manning.
41 ASIC and Multiplex submitted that a second interlocutory application will be an abuse of process if it is not based upon fresh material which was not available at the time of the original interlocutory application or a material change in circumstances since that application. In Christie, Brooking JA and Hayne JA held that as the purported new material had been available at the time of the first application and as the applicant had not offered any explanation for the reason why it was not being adduced, that the second application should have been stayed as an abuse of process. Charles JA dissented and said at 610‑611:
“I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the ‘fresh evidence’ rule.
…
… I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent.”
ASIC’s written submissions asserted that Batt J’s ruling in Guss v Magistrates’ Court of Victoria [1998] 2 VR 113 established Christie as a rule of general application.
42 The applicants submitted that as a matter of principle, a second interlocutory application may be made where there has been a material change in circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put before the Court on the hearing of the original application referring to Manning. The applicants submitted, however, that recent authorities suggest that the ability to make a subsequent application is not limited only to these circumstances, as has beenconsidered in Manning. The applicants submitted that by a majority, the New South Wales Court of Appeal in that case refused to follow Christie. It was submitted that the Court of Appeal held that whether a second or subsequent application should be stayed was ultimately a matter for the discretion of the Court. Further, the applicants submitted that Christie does not stand as a general authority applicable to all interlocutory applications. Instead, the majority decision of Brooking JA and Hayne JA was said to make it clear that they were not laying down a general rule to be applied carte blanche. The decision of Mandie J in Global Realty Development Corp (a Dellaware Company) v Dominion Wines Ltd (in liq) (2005) 225 ALR 361 was cited in support of this proposition.
43 In Manning, Heydon JA made the following observations at 155‑156, [70]‑[72]:
“The assumptions made by Charles JA in D A Christie Pty Ltd v Baker as to the construction of the New South Wales legislation and the likelihood of evidence being received on interlocutory appeals appear to correspond with the approach of the New South Wales Courts. In these circumstances it cannot be said that the majority reasoning in D A Christie Pty Ltd v Baker should, as a matter of comity or otherwise, be followed. Rather, the position in New South Wales is such that the principles propounded by Charles JA should be applied in order to avoid an anomalous difference arising between the relative liberality with which evidence is admitted on interlocutory appeals and the extremely restrictive approach to permitting second interlocutory hearings based on additional (but not fresh) evidence urged by the Nominal Defendant. Whether Charles JA is, or the majority in D A Christie Pty Ltd v Baker are, correct on the true view of the Victorian legislation is not a matter that need be commented on.
For present purposes it is not necessary to go further than to reject the test proposed by the Nominal Defendant, and to decline to apply the view of the majority in D A Christie Pty Ltd v Baker that the applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on before. It is not necessary, and it is probably undesirable, to seek to define a test capable of application to all cases involving statutory extensions of time to start proceedings, or even all cases arising out of s 52(4) of the Motor Accidents Act 1988. The Nominal Defendant did not submit that if the test contended for did not exist, the conduct of the respondent constituted an abuse of process on any other basis.
Nothing in the above reasoning rejecting the Nominal Defendant’s submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non‑tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non‑deliberate failure to tender evidence is extremely risky. The Nominal Defendant’s proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self‑created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker (at 602‑603) – the risk of conflicting decisions, the unnecessary vexing of respondents, judge‑shopping and the diminution of certainty in the conduct by respondents of their affairs – and others – damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily – are evils which each court in its individual discretion will rightly strain to avoid.”
44 It is to be noted that in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315, Palmer A‑JA said that nothing said by the majority in Manning could be construed:
“… as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order – indeed, quite to the contrary: see eg, per Heydon JA (at 156 [72])”.
45 Whilst acknowledging that there is conflict in the authorities concerning the applicable legal principles governing a second interlocutory application, ASIC submitted that the view of the majority of court in Christie and Mason P in Manning was to be preferred. This preference was said to be based on a close examination of the reasons for the divergence in views and the applicable Rules of Court in Victoria and New South Wales. ASIC submitted that the minority view of Charles JA in Christie was predicated on the basis that it would be anomalous to hold that a further interlocutory application was an abuse of process because it was based on fresh evidence that was reasonably available at the first application, when, under the applicable Rules of Court, such evidence could be adduced on appeal. In Victoria, it was said that there is no longer a requirement for “special grounds” to admit new evidence in appeals from final orders or in appeals from interlocutory orders: see Supreme Court Rules, r 64.22(3).
46 ASIC submitted that having regard to the rules in the Federal Court applicable to the reception of evidence in appeals from interlocutory orders, the correct approach in the Federal Court is, or should be, the strict view of Brooking and Hayne JJA in Christie and Mason P in Manning. The result is, according to ASIC, that the applicants must show that the fresh material they rely upon was not reasonably available to them on the first application or else the second application must be dismissed as an abuse of process.
47 In New South Wales, however, a distinction is drawn by the legislation between appeals from final orders and from interlocutory orders. In interlocutory orders, there is no requirement for “special grounds” to adduce fresh evidence. This, it was submitted, explained why Heydon JA and Foster AJA in Manning preferred the approach of Charles JA’s dissenting judgment. To this extent, it was submitted that as s 27 of the Federal Court Act 1976 (Cth) and O 52 r 36 of the Federal Court Rules draw no distinction between appeals from final orders and appeals from interlocutory orders (as per the Victorian position) that “special grounds” (or some similar exceptional circumstances) must be established to receive fresh evidence.
48 To the extent that there is conflict or inconsistency between the decisions or rationes in Christie and Manning, it is not for me to resolve that conflict or inconsistency or decide which is the correct or preferable principle to adopt. I leave that exercise to more eminent judicial authority.
49 I consider that for present purposes in order for the applicants to satisfy the threshold issue they need to persuade me that since the order I made on 2 November 2007 and the decision of the Full Court, one or more of the following factors has occurred or is satisfied:
(a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made on 2 November 2007 and 4 July 2008;
(b) there has been a material change in the circumstances since those orders were made;
(c) there are exceptional circumstances which warrant re‑consideration of the matter, the subject of their Notice of Motion;
(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of their Notice of Motion.
50 Notwithstanding the conflict in the authorities, and even if a more liberal approach of the authorities was taken, both ASIC and Multiplex submitted that the applicants faced difficulty in re‑agitating the matters sought absent exceptional circumstances.
EVIDENCE IN SUPPORT OF APPLICANTS’ MOTION
51 Mr Watson, the solicitor for the applicants was the only witness called by the applicants. He narrated the background to, and the history of, the application. In particular, he referred to a number of passages in the transcript of the hearings on 7 August 2007 and 11 September 2007, to some of which I have already referred. Mr Watson gave the following evidence‑in‑chief:
· at no time prior to the Full Court judgment did ASIC or its solicitors indicate that the ground of PII upon which it relied in resiting production of the documents for inspection was that to do so would risk identifying a whistleblower or informer. Rather, ASIC’s position, as explained (albeit cryptically) to the Federal Court, led Mr Watson to believe that the grounds relied upon by ASIC were considerably more complex;
· prior to delivery of the Full Court judgment it was not apparent to either the applicants or their solicitors that the basis for ASIC’s claim for PII was informer privilege and that this was ASIC’s sole ground for resisting production of the documents;
· these matters became clear to Mr Watson only when he read the judgment of the Full Court.
The Four Corners program entitled ‘Road to Wembley’
“TICKY FULLERTON[ABC presenter]: Things had gone wrong. Someone in Multiplex had blown the whistle. In mid‑February, Multiplex’s accounting group general manager raised concerns about the February accounts. In the week leading up to the results, he wrote to members of the board and contacted ASIC, the corporate regulator. ASIC launched an investigation
But when the accounting group general manager came to senior management and said that he had concerns, did you take him seriously?
ANDREW ROBERTS[a director of Multiplex]: Of course. And, I mean, not just his concerns. I mean, at the time there were concerns of others in, in, both accounting and also, importantly, in relation to site and senior construction management.
…
TICKY FULLERTON: Did the account group general manager actually raise his concerns before your major fundraisings late last year?
ANDREW ROBERTS: Um, I believe that there was examination in relation to the Wembley position and other project positions in the portfolio. Certainly … obviously …
TICKY FULLERTON: But did he raise those concerns?
ANDREW ROBERTS: Yes, there would have been concerns raised by him and … discussion and debate.
…
TICKY FULLERTON: Andrew Roberts won’t comment on the ASIC investigation. The accounting group general manager told Four Corners he also could not comment for legal reasons. In late March, he was retrenched. At the end of our interview with Andrew Roberts, we just had time to ask him why.
MAN: That’s the 20 minutes, sorry.
TICKY FULLERTON: Sorry, one last question. The accounting group general manager was retrenched in March. Can you tell us why? . . .
ANDREW ROBERTS: Um, I understand that he was redundant but by mutual agreement. I mean there’s … that … If the suggestion is that there was … he was retrenched because he’s raised issues, then absolutely, that’s not the case.”
“A senior manager at Multiplex raised concerns with the board and the corporate regulator about the building company’s accounts in the week leading up to the release of its shock half‑yearly profit report.
…
Multiplex’s accounting group general manager raised the concerns officially in February before being later made redundant, according to an ABC Four Corners report, which airs tonight.
…
The whistleblower was retrenched in March.”
The same report appeared on “The Age” website.
54 The “Australian Associated Press” report stated:
“The [Four Corners] report also said Multiplex’s accounting group general manager contacted ASIC and wrote to the company’s board raising his concerns about the half‑yearly accounts in the week before they were announced.”
There was a second “Australian Associated Press” report on the internet which stated:
“A senior manager at Multiplex Group contacted the corporate regulator with concerns about the construction company’s half‑yearly accounts a week before they were released to the market.
…
A report on ABC television’s Four Corners program, to be aired tonight, said Multiplex’s accounting group general manager wrote to the company’s board to raise his concerns about the February accounts in the week before they were made public.
He also reported his concerns to the Australian Securities and Investments Commission (ASIC), which launched an investigation, the program said.”
55 The “Herald Sun” report stated:
“A report on ABC television’s Four Corners program, aired last night, claimed Multiplex’s accounting group general manager wrote to the company’s board to raise his concerns before the accounts were made public. The ABC program claimed the manager also reported his concerns to the Australian Securities and Investments Commission (ASIC), which had launched an investigation.”
56 The “Courier Mail” report stated:
“The [Four Corners] report also said Multiplex’s accounting group general manager contacted ASIC and wrote to the company’s board raising his concerns about the half‑yearly accounts in the week before they were announced.”
57 The “Daily Telegraph report stated:
“The accounting group general manager at Multiplex contacted the Australian Securities and Investments Commission with concerns about the construction company’s half‑yearly accounts the week before they were released to the market.”
58 “The Australian” report stated:
“The [Four Corners] program said that in mid‑February, Multiplex’s accounting group general manager raised concerns about the February accounts.
In the week leading up to the results, he wrote to members of the Board and contacted ASIC, which has since launched an investigation.”
59 The “Asia Pulse” report stated:
“The [Four Corners] report also said that Multiplex’s accounting group general manager contacted ASIC and wrote to the company’s board raising his concerns about the half‑yearly accounts in the week before they were announced.”
60 Mr Watson said that he was aware at the time of the hearing before me on 11 September 2007 that the fact that Multiplex’s accounting group general manager had “blown the whistle” on Multiplex in connection with the Wembley Stadium project had been published in the national print and electronic media and was thus a matter of public record. Mr Watson said that because of the procedure adopted in the hearing before me on 11 September 2007 which was an ex parte hearing in camera, neither Mr Watson nor counsel instructed on behalf of the applicants were in a position to draw these matters to my attention. Mr Watson said, as he had said earlier that, in any event, he was unaware at the time of the hearing on 11 September 2007 that the ground upon which ASIC objected to production of the documents was informer privilege.
61 Mr Watson said that on 29 April 2008 he was contacted by a private investigator engaged on behalf of the applicants who told him that she had just had a conversation with Mr Stewart Cummins who had confirmed to her that he was the whistleblower referred to in the “Four Corners” program. The private investigator gave Mr Watson Mr Cummins’ contact details. On 2 May 2008 Mr Watson had a telephone conversation with Mr Cummins in which Mr Cummins confirmed to Mr Watson that he was Multiplex’s accounting group general manager in February 2005 and that he had been the whistleblower referred to in the “Four Corners” program who went to ASIC with his concerns about the Wembley Stadium project.
62 Mr Watson said, as he had said earlier, that at this time, neither the applicants nor their solicitors were aware that the basis for ASIC’s claim for PII in respect of the documents was informer privilege. Mr Watson said that had he been aware at this time that this was the basis of ASIC’s claim, and more particularly, if Special Counsel had been able to inform him that this was the basis of ASIC’s claim before the Full Court, he would have informed Special Counsel and sought to have evidence led and submissions made before the Full Court to the effect that Mr Cummins’ identity and status as a whistleblower to ASIC:
· had been revealed not only to the Board of Multiplex but also was known to the applicants;
· had been revealed in the Four Corners broadcast and in the press; and
· had been confirmed directly and voluntarily to him by Mr Cummins himself in a telephone conversation.
Mr Watson said that because of the procedures adopted by myself and the Full Court, he was unable to bring these matters to the attention of the Full Court.
Cross‑examination of Mr Watson
63 Mr Watson was cross‑examined at length along the lines that he must have known either on 7 August 2007 or 11 September 2007 that either the basis or a basis for ASIC’s claim that the documents were protected from production on the ground of PII was to protect the identity of informers or whistleblowers. Mr Watson repeatedly denied that he had this knowledge and, in substance, said that he was diverted from considering that informer immunity or whistleblower immunity was the basis for ASIC’s PII claim by the statements made by ASIC’s counsel on 7 August 2007 and 11 September 2007.
64 Mr Watson was challenged in cross‑examination on the basis that it was not clear whether he was saying that he did not know until the Full Court decision that informer immunity was a basis for ASIC’s PII claim or whether he was saying that it was only then that he found out that it was the sole basis for ASIC’s PII immunity claim. His response consistently was that up until the time he became aware of the Full Court judgment, he had no idea that the basis of ASIC’s PII claim was informer or whistleblower immunity. He said consistently in cross‑examination that the reason why he had no idea was because on 7 August 2007 he was told by ASIC’s counsel that the claim being made:
“ …was a claim advanced over the entirety of the 41 transcripts of examination of witnesses, that it was a claim of a kind that had never been made before by ASIC and that it was claim that involved a matter of principle which could not be disclosed without revealing the very content of the confidential information which was sought to be protected and it related to a physical characteristic of the document.”
That evidence of Mr Watson is a reference to the passage in the transcript I have extracted at par [10]‑[11] above.
65 When it was put to Mr Watson in cross‑examination whether he was saying that he only discovered that informer immunity was a basis or whether he was saying that he only discovered it was the sole basis upon hearing of the Full Court judgment. Mr Watson reiterated that he did not realise that the basis for ASIC’s claim for PII was informer immunity not only because of what counsel for ASIC had said on 7 August 2007 but also because of what transpired at the hearing on 11 September 2007 before me. He referred in particular, to Mr Hutley S.C.’s statement towards the end of the open hearing that “well, whatever it is it doesn’t sound like it’s a whistleblower type case”. (What Mr Hutley S.C. actually said was “There may be some other basis of public interest immunity but it doesn’t sound to me like it’s a whistleblower type case …”). Mr Watson said that there was nothing said to contradict that and so in his words:
“whatever it was, in the light of what had been said earlier and in the light of what transpired on that day, whatever it was that sounded like some exotic, unheard of, form of privilege that we had never come across before.”
66 Mr Watson was taken to his observation at the hearing on 7 August 2007 when he said:
“So concluded the investigation – we can’t understand that informer immunity would be an issue in respect of all of the transcripts.”
Mr Watson said that his state of mind at that time was that he could not understand how a claim for whistleblower immunity could be advanced in respect of every line of every page of forty‑one transcripts.
67 Mr Watson was taken to Multiplex’s counsel’s observation on 7 August 2007 (par [9] above) that:
“… Insofar as I have been able to pick up from these ASIC affidavits the nature of the claim, it is, in part at least, built on some concern that there was a third party informer, a whistle blower …”
Mr Watson was asked whether he entirely discounted what counsel said on that occasion. Mr Watson’s response was:
“Well I did.”
He then explained that the reason for that response was what happened when counsel for ASIC said she had an affidavit to tender and that he then interrupted her (par [10] above). Mr Watson said that after that exchange he was clear in his understanding that the claim for PII was not about whistleblowers in any way, shape or form. I accept this evidence of Mr Watson. I consider that he was entitled to discount what counsel for Multiplex had said having regard to what counsel for ASIC had said.
68 Mr Watson was taken to Senior Counsel for ASIC’s statement on 11 September 2007 (par [20] above) that:
“I keep saying, Delphically, Your Honour, the means whereby we obtained information and the sources of that information.”
It was put to Mr Watson “it didn’t alert you?” Mr Watson’s answer was:
“No. In fact, in a sense, it emphasised to me that this was something other than a pure and simple case of whistleblower immunity. If it had been whistleblower immunity it would not have needed to be Delphic. You could have said – even in part you could have said ‘Look, your Honour, there are a variety of bases of our claim. Part of it is whistleblower immunity’. There would have been no need to be Delphic. The fact that it was Delphic seemed to me to confirm all of what had transpired earlier”.
I accept this evidence of Mr Watson. I consider it to be quite credible. Indeed, it is a logical, credible and reasonable response to Senior Counsel for ASIC’s observation, particularly having regard to the other statements made by ASIC’s counsel on 7 August 2007 and 11 September 2007.
69 Repeatedly in cross‑examination Mr Watson said that the reason why he put informer immunity out of his mind was because there was a chain of events, starting from the moment the applicants were notified of the nature of ASIC’s claim and its extent going through the hearing and what was said on 7 August 2007, the submissions which were filed in the lead‑up to the hearing on 11 September 2007, what was said at the hearing in open session on 11 September 2007 and then finally leading to the fact that Mr Hutley S.C. said what he said (par [21] above) and no one said anything. I accept this evidence of Mr Watson. I consider it to be credible and a reasonable response to the statements which had been made by counsel for ASIC from time to time.
70 It was put to Mr Watson that Mr Hutley’s statement towards the end of the open hearing on 11 September 2007 (par [21] above) was a kind of tipping point at which his mind tipped over into the conviction that ASIC was not relying on whistleblower or informer privilege. Mr Watson’s response was that insofar as there was a tipping point it occurred for him much earlier:
“… On 7 August hearing when Ms Hogan‑Doran said that it had something to do with the physical characteristics of the document and that it was a claim of a kind which had never been advanced before and it appeared to me that she was specifically advancing a claim of a kind in character that was inconsistent with it being whistleblower protection”.
I accept that evidence, I consider it to be credible and a reasonable response to what had been said by counsel for ASIC on 7 August 2007.
71 It was put to Mr Watson that Ms Hogan‑Doran had not said that “this was a claim that had never been advanced before”, rather she had said that it was being advanced in “a fashion” that had not been done before. Mr Watson accepted that the words he had used were not her precise words, but I consider that the difference between the words which he used and the actual words used by Ms Hogan‑Doran is a distinction without a difference.
72 It was put to Mr Watson that he may have misunderstood what Ms Hogan‑Doran said. Mr Watson’s response was:
“Well, it now appears plain that I did, because the claim, as I understand it, that was advanced in the Federal Court, was a claim of a type which is always advanced routinely and commonly.”
73 Insofar as Mr Watson misunderstood what Ms Hogan‑Doran said, I am satisfied that Ms Hogan‑Doran had not said anything which could be construed or interpreted as a reference to the fact that the ASIC claim was in some way related to informer immunity or whistleblower immunity. The thrust of what Ms Hogan‑Doran was saying was that the claim being advanced was a claim that was novel and new in relation to the way in which it was being presented. In my view, this would not lead any experienced legal practitioner, barrister or solicitor, familiar with the area of PII to the view that the claim was in any way related to informer immunity or whistleblower immunity.
74 As Mr Watson said in the course of cross‑examination:
“If it had been a claim about whistleblowers then I still find it hard to see how it was advanced in respect of all 41 transcripts, each and every line on each and every page. If it had been a claim about whistle blowers, I do not see why Ms Hogan‑Doran could not have said either or in whole or in part, ‘this is a claim about whistle blowers’. That would not have run the risk of revealing anything confidential about the documents.”
Mr Watson maintained this position further in cross‑examination:
“If it had been just informer privilege she [Ms Hogan‑Doran] could have said so and she would not have revealed who the informers were or their identities. It happens routinely.”
I accept this evidence. It is credible and a reasonable response to what had been said by Ms Hogan‑Doran on 7 August 2007.
75 Mr Watson was cross‑examined in relation to his evidence about what the private investigator had told him about Mr Cummins on 29 April 2008 and his contact with Mr Cummins on 2 May 2008. He said that the private investigator had been engaged by the applicants on a general retainer shortly after the commencement of the proceeding for the purposes of locating from time to time witnesses who they regarded might be of assistance in the prosecution of the case. The private investigator was instructed in early April 2008 to see if she could make contact with Mr Cummins as a result of a review of documents which had been produced and inspected under the ASIC subpoena. The documents produced under the ASIC subpoena and inspected, in the words of Mr Watson, made it “plain as a pikestaff that we should get on to trying to find Mr Cummins”. Mr Watson said that they suspected at that point that Mr Cummins was a whistleblower and his suspicions were confirmed by the telephone conversation with the private investigator on 29 April 2008.
76 Mr Watson reiterated in cross‑examination that in the conversation he had with Mr Cummins on 2 May 2008, Mr Cummins confirmed that he was the whistleblower.
77 Mr Watson was also cross‑examined along the lines that in relation to the Full Court hearing there was nothing in the orders made by Weinberg J that inhibited his ability to provide instructions to the applicants’ Special Counsel. Mr Watson’s response was:
“… No. Well, I wouldn’t agree with that in its entirety. There was nothing which inhibited me from providing instructions about things which I might have known about, but plainly the orders meant that there was nothing that I knew about the conduct of the appeal and upon which I could give instructions. And counsel could not discuss even the grounds of appeal with me and obtain my instructions about things. So if you’re saying there’s nothing inhibiting me giving instructions, the fact that I can’t discuss with counsel the very substance of the proceeding, in that case the appeal, I would regard as an inhibitor.”
I accept this evidence.
78 In this context Mr Watson repeated his evidence that he had formed the view since 7 August 2007 that ASIC was not claiming PII privilege, either in whole or in part in relation to whistleblowers. He said that that was the reason why he did not give the applicants’ Special Counsel instructions to consider whether ASIC was claiming informer privilege.
79 Mr Watson also said in cross‑examination, in response to a specific question, that at no point before the hearing, or during the hearing in the Full Court did either he or, to his knowledge, anyone else in the applicants’ solicitors office give instructions to Special Counsel that they should consider the issue of informer immunity.
80 It was then put to Mr Watson that on 19 February 2008 an employee solicitor from the applicants’ solicitor had sent an email to Special Counsel which stated:
“Please see attached rather helpful decision of Gordon J, – … in Cadbury Schweppes v Amcor on privilege and use of regulators’ material .. Whilst not precisely on point please note comments re public interest immunity and … the ACCC’s attempt to use common law privilege to protect co‑operators at 46 to 47.”
81 It was put to Mr Watson that this case was about informer immunity. He said it was about informer immunity in a particular case. He was then asked why Special Counsel were being referred to the case if not to draw their attention to the issue of informer immunity. His answer was:
“…Because she’s – she is referring to a judgment – if you go to paragraphs 46 and 47, she is referring to a judgment in which her Honour made some quite critical remarks about a regulator attempting to restrict private litigants from using documents in a private suit. And her Honour, in that context, made a number of remarks about the regulator in that case attempting to, in effect, advance a policy in opposition to private litigants having access to the products of their investigation through the prism of public interest immunity and privilege.”
82 Mr Watson said he had read the case at about the time that it was sent to Special Counsel and he would have read the catchwords which referred to PII and whistleblowers. It was then put to Mr Watson that the case had been drawn to Special Counsel’s attention because it dealt with the issue of informer immunity. Mr Watson’s response was:
“… No, no it was not. It was not drawn to the attention of Special Counsel because it related to informer immunity. It was drawn to the attention of Special Counsel because it was a case about a regulator trying to deny private litigants documents, and it was a case in which the court were critical of the regulator for attempting to misuse the application of privilege and public interest immunity to deny those things. Her Honour went on to say that if that was the case, if the regulator in that case – ACCC – had a concern regarding that matter, that that was a matter for the legislature. And Ms Neesham, when she discussed the case with me, said she thought we were in an even stronger case, because in this case the legislature had actually dealt with the matter in section 25.”
83 I accept Mr Watson’s explanation for the reason why the applicants’ solicitors sent the email to Special Counsel and drew their attention to the Cadbury Schweppes case. In particular, I accept Mr Watson’s evidence that it was not drawn to the attention of Special Counsel because it related to informer immunity. I accept Mr Watson’s evidence that the email was not instructions to counsel to consider whistleblower or informer immunity.
84 Mr Watson was also cross‑examined by Senior Counsel for Multiplex. It was put to Mr Watson that when he heard Dr Flick’s statement (par [18] above) that:
“what we seek to maintain as confidential and secret are the means whereby information came into the possession of the Commission and the sources of that information”,
he was in a position to provide instructions to the applicants’ counsel that the source of information had been disclosed on the ABC Four Corners program as long ago as 2005. Mr Watson’s answer was:
“I was in a position to. I didn’t because I didn’t understand the reference to be one to a whistleblower.”
This answer was consistent with Mr Watson’s earlier answers to ASIC’s Senior Counsel. I accept the evidence of Mr Watson. I consider it to be credible and reasonable having regard to what had occurred on 7 August 2007 and on 11 September 2007 and, in particular, the statements made by counsel for ASIC.
85 In final submissions counsel for ASIC submitted that Mr Watson made a series of compounding mistakes. The first mistake was misunderstanding what counsel for ASIC said on 7 August 2007 when she said (par [11] above):
“There are some difficult questions, and also I might indicate that from inquiries made within ASIC it’s our understanding that this isn’t a claim that has been made in this fashion before.”
Counsel for ASIC submitted that Mr Watson interpreted this statement to mean that it was a novel claim, a new claim, a claim that had not been made before. Counsel submitted that Mr Watson misunderstood what counsel for ASIC said and that thereafter there followed a series of events that should have put things back on the rail. It followed that Mr Watson’s understanding failed to take account of what Senior Counsel for ASIC said on 11 September 2007 on four or five occasions when he referred to the means and source of information which could only sensibly have been to informer immunity.
86 Mr Watson’s evidence in cross‑examination was that it was now plain that he did misunderstand what counsel for ASIC was saying on 7 August 2007 because the claim which he now understood had been advanced in the Federal Court before me “was a claim of the type which is always advanced routinely and commonly”.
87 I am satisfied that Mr Watson only misunderstood what counsel for ASIC was saying because counsel had not made it clear what she was saying and Mr Watson was misled by what she was saying that ASIC’s claim for PII was based either partly or solely on informer immunity or the need to protect the identify of informers.
88 To the extent that Mr Watson did labour under a misunderstanding, it was a misunderstanding because he understood from what counsel for ASIC was saying, and in my view, it was reasonable for him to understand from what counsel was saying, that the basis for the claim of PII was not a claim that was commonly or routinely advanced before the Court, such as informer immunity, but was something that had never been advanced before.
89 Counsel for ASIC also submitted that a reasonable person would have understood why Senior Counsel for ASIC on 11 September 2007 was being “delphic”. I reject that submission. In my view, neither a reasonable person nor an experienced legal practitioner, barrister or solicitor, familiar with the area of PII would have understood during the open hearing on 11 September 2007 why Senior Counsel for ASIC was being delphic. At that time I did not understand why Senior Counsel for ASIC was being delphic, either during the open hearing or the in camera hearing. Further, I did not understand why Dr Flick was being delphic until hearing from Mr Pearce on 30 March 2009.
90 In the alternative to his submission that Mr Watson had made a number of compounding mistakes, counsel for ASIC submitted that I was entitled to disbelieve Mr Watson. It was submitted that Mr Watson was an intelligent man and that I was entitled to conclude that a person like Mr Watson would not have made this series of errors.
91 I accept Mr Watson’s evidence that on 7 August 2007, on 11 September 2007 and at the time of the hearing of the application before the Full Court by ASIC for leave to appeal against my decision, he did not know the basis for ASIC’s claim for objecting to the production of the documents and the transcripts on the ground of PII and did not know that it was based on whistleblower or informer privilege, that is, it was based on seeking to prevent the disclosure of the identity of informers to ASIC. I also accept Mr Watson’s evidence that had he known of this basis of ASIC’s claim for PII he would have instructed counsel to bring to the court’s attention on 11 September 2007 the broadcast of the Four Corners program on 5 September 2005 and its contents and the other media reports on 5 and 6 September 2005, and he would also have instructed Special Counsel to bring the Full Court’s attention to his conversation with the private investigator on 29 April 2008 and Mr Cummins on 2 May 2008.
92 I do not accept the submissions of ASIC and Multiplex that Mr Watson should have realised or appreciated at the hearing before Finkelstein J on 7 August 2007 and at the hearing before me on 11 September 2007 that the basis of ASIC’s claim was whistleblower or informer privilege. I am satisfied that ASIC through its counsel deliberately refrained from informing the Court of that basis. Senior Counsel for ASIC on 11 September 2007 was putting the matter “as Delphically as I can”. Having regard to The Macquarie Dictionary and The Shorter Oxford English Dictionary definition of “Delphic”, I apply to ASIC’s counsel’s statement the maxim “res ipsa loquitur”. I have no doubt that Mr Watson was diverted from concluding that the basis of ASIC’s PII claim was whistleblower or informer privilege by the stance taken by ASIC through its counsel on 7 August 2007 and 11 September 2007.
93 I am satisfied that Mr Watson was an honest and truthful witness and I am in no doubt that he was telling the truth when he said that he did not become aware, nor did he know, that the sole basis or indeed, any basis for ASIC’s claim for PII before me and Full Court had been informer immunity or whistleblower immunity, that is to say, seeking to protect disclosure of the identity of an informer. Mr Watson presented as a credible witness with a clear grasp of the issues which were before the Court and he gave his evidence without hesitation or prevarication. His credit and credibility were not dented in any way by the cross‑examination either by counsel for ASIC or counsel for Multiplex. I reject the submission that I should disbelieve Mr Watson’s evidence as to his belief and understanding at all relevant times. I accept the whole of his evidence as credible and truthful.
94 I am satisfied, and I find, that:
· prior to the publication of the reasons for judgment of the Full Court on 4 July 2008 neither the applicants nor their legal advisers (other than the Special Counsel briefed for the Full Court application by ASIC for leave to appeal against my orders on 2 November 2007) were aware, nor was there any reason why they should have been aware, that the ground upon which ASIC relied in resisting the production of documents pursuant to the subpoena served on 13 July 2007 was that to do so would identify, or would risk identifying, an informer or a whistleblower, that is to say, that ASIC was claiming informer privilege;
· the fact that informer privilege was ASIC’s ground only became apparent to the applicants and their legal advisers (other than Special Counsel) upon the publication of the Full Court’s reasons;
· there was nothing said by ASIC in its correspondence with the applicants’ legal advisers, or in the open material it filed in Court or in what its counsel said on 7 August 2007 or 11 September 2007 which should have made the applicants and its legal advisers understand or believe that ASIC was claiming informer privilege;
· the references by ASIC’s Senior Counsel on 11 September 2007 to “the means whereby information came into the possession of the Commission and the sources of that information” did not alert the applicants or their legal advisers, and would not have alerted experienced lawyers, barristers or solicitors familiar with the area of PII, to the fact that the ground or a ground for ASIC’s claim for PII was informer privilege, having regard to ASIC’s correspondence with the applicants’ legal advisers, the open material it filed in Court or in what its counsel said on 7 August 2007 or 11 September 2007;
· the applicants’ legal advisers were inhibited by the Special Counsel regime established for the purpose of the Full Court hearing from instructing Special Counsel in relation to the Four Corners broadcast, the media reports and Mr Watson’s telephone conversations with the private investigator and Mr Cummins.
95 As I have noted earlier, Mr Watson’s evidence was that for the reasons he gave extensively in examination‑in‑chief and cross‑examination he was diverted from, or turned away from, considering or believing that the basis for ASIC’s claim for PII was informer privilege or protection of the identity of informers. I am satisfied that at the hearings on 7 August 2007 and 11 September 2007 counsel for ASIC expressed themselves in such terms that any well‑informed member of the legal profession, barrister or solicitor, who was familiar with the principles applicable to claims for public interest immunity, would not have considered or suspected that the sole basis for ASIC’s claim, or indeed part of ASIC’s claim for PII, was informer privilege or to protect the identity of informers. I am fortified in this view by the fact that counsel for ASIC on these occasions at these hearings was not prepared to state in open court that that was the basis for ASIC’s claim because, in ASIC’s view, the fact of the disclosure that that was the basis of ASIC’s claim would identify the informer referred to in the Four Corners broadcast. That was why Senior Counsel for ASIC on 11 September 2007 was being “delphic”.
96 I reject ASIC’s and Multiplex’s submission that Mr Watson’s knowledge that the basis for ASIC’s claim for PII had something to do with the means whereby information came into the possession of ASIC and the sources of that information meant that he should have realised that the means and source had something to do with informer privilege.
97 Multiplex submitted that Mr Watson’s evidence in cross‑examination, combined with statements made by Senior Counsel for ASIC and Senior Counsel for the applicants on 11 September 2007 entitle the Court to conclude that the legal representatives of the applicants had sufficient information before them to determine that informer immunity was a basis for ASIC’s claim. I reject that submission for the reasons to which I have already referred. I do not consider that the applicants or their legal advisers had sufficient information before them on 7 August 2007, 11 September 2007 or at the time of the hearing before the Full Court on 8 May 2008 to determine that informer immunity was a basis for ASIC’s PII claim.
ASIC’s knowledge of the Four Corners investigation and broadcast
98 As I have observed earlier, it was not until 30 March 2009 that I was informed by ASIC through its counsel, or became aware, of the reason why ASIC could not state, or was not prepared to state, either in open court or in the ex parte hearing in camera why it could not identify the reason why it was not prepared to state publicly or openly the basis for its claim for PII which was informer or whistleblower privilege.
99 In the course of the hearing on 30 March 2009, it became apparent that ASIC had become aware of an investigation by the Four Corners program into Multiplex’s Wembley Stadium project prior to the broadcast of the ‘Road to Wembley’ program on 5 September 2005. It also appeared that ASIC was aware of that broadcast and the contents of it referred to in par [52] above.
100 These revelations occurred in the course of Senior Counsel for ASIC’s closing submissions in which he analysed various passages in Mr Watson’s evidence‑in‑chief and cross‑examination:
“MR PEARCE: The first is that a reasonable person in Mr Watson’s position would, by the time of the Full Court hearing, have deduced that ASIC was relying, at least in part, on informer immunity. Secondly, and assuming that Mr Watson is being truthful – assuming that what he said was truthful, then his failure to reach that conclusion by the time of the Full Court hearing, was a failure of his own making. In particular, his misunderstanding of what Ms Hogan‑Doran said on 7 August, his failure to undertake any research into public interest immunity, including on Smith’s case, his failure to take account of what Dr Bell said on 7 August, and especially of what Dr Flick said on 11 September - - -
HIS HONOUR: So, failure to take account of what Dr Bell said on - - -
MR PEARCE: What Dr Bell said on 7 August, but more importantly, what Dr Flick said on 11 September. His failure to appreciate why it was that ASIC was not disclosing the basis of its claim for immunity, and it seems as if I need to spell it out, but your Honour, it’s quite plain that if ASIC had disclosed that it was relying on informer immunity, it would have pointed the finger strait at Mr Cummins.
HIS HONOUR: Why?
MR PEARCE: Because there had been speculation in the press that Mr Cummins was the whistleblower, and whether ASIC knew that – whether ASIC was aware of the Four Corners program and the press speculation is not known, but a person – a reasonable person in ASICs position, would have assumed a likelihood, or at least the possibility, that Maurice Blackburn was aware of that. Their concern, your Honour – ASICs concern was to protect the identity of the whistleblower, or whistleblowers. That’s what all their conduct was directed at. It was reasonable for ASIC to have assumed, had they stated explicitly their claim was for informer immunity, that would have pointed the finger straight at Mr Cummins.
HIS HONOUR: That’s because ASIC knew, on 11 September, about the Four Corners program.
MR PEARCE: I’m not conceding that, your Honour, and I don’t know the answer to that.
HIS HONOUR: But that must follow.
MR PEARCE: Well, no, your Honour. What can fairly be inferred - - -
HIS HONOUR: Because Dr Flick was being Delphic. Why was he being Delphic?
MR PEARCE: Well, it’s a reasonable inference, your Honour. It’s a reasonable inference, but it’s not the - - -
HIS HONOUR: In that case, that needs to be a matter of evidence, doesn’t it?
MR PEARCE: Well, no, your Honour, what can fairly be inferred about ASICs conduct, is that they apprehended that by disclosing their claim for immunity as one of informer privilege, that that would have alerted Maurice Blackburn to the source of their information being Mr Cummins. Now, that is a fair inference from the material, and that being so, they were right not to disclose the basis of their claim for immunity.”
101 ASIC submitted that the material relating to the broadcast of the Four Corners program on 5 September 2005 was reasonably available to the applicants at the time of the hearing before me on 11 September 2007 and was also reasonably available to the applicants together with the details of the conversations Mr Watson had with the private investigator and Mr Cummins in late April/early May 2008 before the hearing before the Full Court. When I asked Senior Counsel for ASIC why would the solicitor fail to put that material before the Court, the response was that he had made “a number of mistakes”.
102 Senior Counsel for ASIC said that Senior Counsel for ASIC’s references before me on 11 September 2007 to “the means and source” could only sensibly have been to informer immunity. (I reject that submission having regard to all the statements made by ASIC’s counsel on 7 August 2007 and 11 September 2007). I put to counsel for ASIC that “Dr Flick was being Delphic” and his response was that “a reasonable person would have understood why Dr Flick was being Delphic”.
103 Counsel for ASIC said that there was a series of compounding mistakes made by Mr Watson, the first being his misunderstanding of what Ms Hogan‑Doran said (on 7 August 2007) and then his failure to take account of what Dr Flick said, his failure to appreciate why it was that ASIC was being delphic.
104 ASIC’s reliance on Mr Watson’s failure to appreciate why it was that ASIC was being delphic presupposes that Mr Watson was able to determine why ASIC was being delphic. However, neither ASIC nor Dr Flick ever explained why ASIC was being delphic. So far as I am concerned, I was never told by ASIC or by its counsel in the open or ex parte hearings in camera on 11 or 17 September 2007 why it could not say in open court that the basis of its claim for PII was informer privilege or whistleblower privilege.
105 The following discussion then ensued:
“HIS HONOUR: But there’s – I understand the submission, and I’ll – I have to consider it, but the reason why ASIC couldn’t say whistleblower immunity was because you say ‑ ‑ ‑
MR PEARCE: It just would have pointed the finger straight at Mr Cummins.
HIS HONOUR: ‑ ‑ ‑ that would have pointed to Mr Cummins.
MR PEARCE: Yes.
HIS HONOUR: Because what was in the public domain.
MR PEARCE: Well, but ASIC were entitled to apprehend the risk that that would happen.
HIS HONOUR: But it was in the public domain, anyway.
MR PEARCE: Well, no, it wasn’t, your Honour. I’ll come to that in a moment. It wasn’t. The Four Corners show did not name Mr Cummins. The Four Corners show referred to a whistleblower, and referred to a person occupying the position that Mr Cummins ‑ ‑ ‑
HIS HONOUR: Well, group general manager.
MR PEARCE: Correct. Now, those in the know would have worked out who it was referring to, and the curious could have made their inquiries. But the great bulk of the viewers, and we don’t know how many viewers, of course, there were for Four Corners on that night, but the great bulk – the great bulk would not have been told. Only those in the know would have had confirmed what they either already knew or suspected. The curious could have made their inquiries and worked it out, but there’s no evidence – there’s no evidence that the Four Corners show led to widespread disclosure that Mr Cummins was the whistleblower. There’s no evidence at all of that, your Honour. The same applies for the press reports. They didn’t name Mr Cummins
HIS HONOUR: I understand that, but you say if Dr Flick had said whistleblower immunity, that would have pointed – that would have exposed ‑ ‑ ‑
MR PEARCE: I say ‑ ‑ ‑
HIS HONOUR: That would have pointed to Mr Cummins.
MR PEARCE: I say there was a sufficiently serious risk of that to make it incumbent on ASIC to adopt this Delphic position.
HIS HONOUR: But it wouldn’t have pointed to Mr Cummins on what you have just told me, it would have pointed to someone occupying a position of group general manager.
MR PEARCE: Yes, and ‑ ‑ ‑
HIS HONOUR: But that was in the public domain.
MR PEARCE: That was, your Honour, yes.
HIS HONOUR: Yes, I follow that.
MR PEARCE: Right. Now, your Honour ‑ ‑ ‑
HIS HONOUR: Well, I understand how you put the submission.
“HIS HONOUR: Can I just – there’s something troubling me about this submission. It must be implicit in that submission that ASIC was aware of the Four Corners program.
MR PEARCE: It’s not, your Honour, with respect. It’s ‑ ‑ ‑
HIS HONOUR: But assuming ASIC wasn’t aware of the Four Corners program, does your submission still stand up?
MR PEARCE: It does, your Honour, for this reason that I tried to explain a moment ago. That the position from ASICs point of view is, would disclosure of the nature of the claim have incurred a risk of identifying Mr Cummins as the whistleblower.
HIS HONOUR: And the answer, in the absence of Four Corners program, is no.
MR PEARCE: Well, not necessarily, your Honour. We didn’t ‑ ‑ ‑
HIS HONOUR: Why?
MR PEARCE: Because we didn’t know what sources Maurice Blackburn may have had. We didn’t know that they’d launched this proceeding.
HIS HONOUR: But if you didn’t know of any sources of information that Maurice Blackburn had, and you weren’t aware of the Four Corners program, on the material before ASIC there’s no risk, surely.
MR PEARCE: Well, your Honour, it’s reasonable for a regulator in ASICs position to think that somebody bringing a claim in the manner and nature that Maurice Blackburn was would have had their own sources of information. It was reasonable for ASIC even not knowing about the Four Corners show.
HIS HONOUR: Why?
MR PEARCE: Why, because they have got – they must have sources of information too.
HIS HONOUR: I’m sure Maurice Blackburn Cashman ‑ ‑ ‑
MR PEARCE: And it’s turned out that they had a private investigator. Now, we didn’t know that at the time, but ‑ ‑ ‑
HIS HONOUR: Well, you didn’t know that at the time either.
MR PEARCE: No, we didn’t know that at the time, but ‑ ‑ ‑
HIS HONOUR: But why should ‑ ‑ ‑
MR PEARCE: ‑ ‑ ‑ if we had assumed, your Honour, that they had sources of information we would have been right to assume that. Now, that’s all I’m saying, your Honour.
HIS HONOUR: So you’re saying ASIC was entitled to assume that Maurice Blackburn had knowledge of ‑ ‑ ‑
MR PEARCE: Sufficient facts that would have pointed them straight at Mr Cummins had we disclosed the basis of this claim.”
107 In my view, the conclusion to be drawn from these observations of counsel for ASIC is that ASIC knew on 11 September 2007 of the fact of the Four Corners program ‘Road to Wembley’ broadcast on 5 September 2005 and was not prepared to disclose the existence of that broadcast, or the fact that it knew about the broadcast, because otherwise as soon as it said that the basis of the claim for PII was informer or whistleblower privilege, the applicants would immediately respond to it by saying, words to the effect – “oh, we know that the identity of the informer was disclosed on the ABC Four Corners program on 5 September 2005 and that the informer was Mr Cummins”.
109 In the course of submissions I asked counsel for ASIC whether the fact of the Four Corners program was in evidence before me or the Full Court. Counsel said “there is material that suggests that it was”. I expressed surprise at that statement and counsel for ASIC said that he was instructed that the position was that it was not directly raised by counsel in submissions but that there was material which was put before me and before the Full Court. He said that my attention was not drawn to this material.
110 Mr Hutley S. C. followed with his closing submissions. The following dialogue is instructive:
“… I’m going to come what must now be inferred about Ms Hogan‑Doran’s approach to this application before Finkelstein J and that depends upon what now seems to be the case as to what ASICs position was before your Honour. And this is, and I say it is, in my respectful submission, extraordinary. It appears to be this, that at all time, ASICs sole case was that it was informer privilege.
HIS HONOUR: I think you can make that assumption.
MR HUTLEY: Yes. It appears that there seems to be a fear that if that was said, Mr Cummins would have been identified by us, in court, as the informer, on the basis, no doubt, of the publicly available information that he was the informer as Dr Bell freely conceded. The distinction between having him identified as the general manager - - -
HIS HONOUR: Group general manager.
MR HUTLEY: Group general manager and giving his name to a publicly listed company such as Multiplex is meaningless and Dr Bell’s concession in that is clearly correct. So there appears to have been a fear that if your Honour was told – we were told, in open court, the fact of what their application was, we would have, as we say we would have, have brought forward the evidence of the matters we seek to agitate here and prove to the court that it was common knowledge that the informer was Mr Cummins. So the aim was to avoid that. And it now appears for the first time, unbeknown to your Honour, we might say, or it appears to the Full Court, that somewhere buried in the confidential information which we haven’t seen is some reference to that Four Corners program. We may but speculate as to the elliptical character of that. We do not know.
HIS HONOUR: Mr Pearce doesn’t say that either my attention or the Full Court’s attention was drawn to the Four Corners program.
MR HUTLEY: I accept that but, your Honour, what does now become perfectly clear is the reason for the elliptical, Delphic, however one wants to describe it, language before your Honour in open court was for the purpose of diverting us from raising the very matter we seek to agitate. It’s the only possible construction. Since ASIC was clearly was aware of it, because they now admit that somewhere buried in the materials ‑ ‑ ‑
HIS HONOUR: ASIC was clearly aware of what?
MR HUTLEY: Of the Four Corners program ‑ ‑ ‑
HIS HONOUR: I have no evidence of that.
MR HUTLEY: No, Mr Cummins has, after the adjournment, said to your Honour reference to that fact. Mr Pearce said reference to that fact will be found in the confidential material which was before your Honour on the application, at first instance.
HIS HONOUR: Does that mean that someone might want to re-open the evidence in this application before me?
MR HUTLEY: Well, your Honour, I take that as – I can’t get access to that confidential information. I would call for that material but, your Honour, there’s a concession by ASIC. And I don’t wish to go back to the position of ASIC as being the Commonwealth but we conduct litigation on the basis that the Commonwealth conducts itself on the basis of a model litigant. Now the true seems to be that your Honour – somewhere buried in the material which was before your Honour, on the first application, was material in fact established that ASIC at all times knew that Mr Cummins had effectively been identified in 2005 in the ‑ ‑ ‑
HIS HONOUR: Four Corners program.
MR HUTLEY: Four Corners. And the object of what they were doing, that is, what Dr Flick was doing, was to divert our attention for the possibility of agitating that. That’s the only possible construction of what was occurring, because, as your Honour observed, Mr Pearce says our object was to avoid Mr Cummins being identified. Why, one asks, would reference to informer privilege identify Mr Cummins? Why wouldn’t equally identify ever other possible witness? Answer, as your Honour observed in debate, that must mean that ASIC was aware of the Four Corners program.
Mr Pearce, before the adjournment, says that doesn’t follow. Frankly, after the adjournment, Mr Pearce comes into court and tells your Honour, amongst the material that was before you, although not drawn to your attention, was evidence that ASIC knew of that fact, that is, Mr Cummins had been identified in the Four Corners program. Now, we submit it is quite clear what was the object of the Delphic remarks, etcetera, etcetera. It was to avoid exactly what we complain. Exactly what – it’s the only possible aim of ASIC. And then the temerity of ASIC is just breathtaking. They say having succeeded in that aim, we are not to be given leave to reopen because we should have caught on to the trick; we shouldn’t have been deceived; it was an inept tempt to deceive us.
It is, with respect, the unique, in my respectful submission, submission your Honour will hear over the next – the rest of – probably in your Honour’s judicial career and probably for the rest of it. It amounts to this: ASIC embarked upon a course seeking to prevent us from bringing to the attention of the court that Mr Cummins was known to the world as the informant, which you might think was some what relevant to what was occurring before your Honour, or even the Full Court ‑ ‑ ‑ “
111 Mr Hutley then called for the material which ASIC had relating to the Four Corners broadcast on 5 September 2005.
112 After Mr Hutley concluded his submissions, Senior Counsel for ASIC said that there were two documents placed before me and the Full Court that referred to the fact of a Four Corners investigation. These documents were on pp 228 and 231 of a Confidential Exhibit ANS‑6 to the affidavit of Anna Skreiner sworn on 6 February 2009. They remain confidential exhibits.
113 When I asked Counsel for ASIC whether these documents had been brought to my attention, or to the attention of the Full Court during the previous hearings, counsel answered that he was instructed that this was not the case.
114 Counsel for ASIC reiterated that these documents were not drawn to my attention on 11 September 2007. The following discussion then ensued:
“MR PEARCE: No. I wasn’t there, of course, and I have not gone back and looked at the transcripts, but I’m instructed they weren’t drawn to your Honour’s attention. I’m being prompted from all sides to say the question of media was raised, both before your Honour and the Full Court – the question of media interest.
HIS HONOUR: Media interest?
MR PEARCE: Yes, in the matters, was raised before your Honour and before the Full Court, and that’s evidence in the Full Court reasons.
HIS HONOUR: I’m not sure I understand why you’re referring to that.
MR PEARCE: Because I’m being prompted to do that, your Honour. I don’t really understand either. I’m sorry I said it now. Should have trusted my instincts.
HIS HONOUR: So – yes.
MR PEARCE: I think I’ll sit down now before I give anything else away.
HIS HONOUR: So, on your instructions, there is nothing in the material that was placed before me that identifies or refers to the fact that the Four Corners program was broadcast?
MR PEARCE: That's right, your Honour. I think that’s right. I will just check that – 231. Certainly that is right about 228, but I think that’s – yes. I am told both those documents refer to events that predate the broadcast.”
115 Mr Hutley then sought a direction that he have access to the material relating to the inquiry conducted by Four Corners in the confidential exhibit. In that context the following dialogue occurred:
“MR HUTLEY: Yes, your Honour. I should be given the – your Honour, I don't know what is in that document. Your Honour should direct that that be made available to me. I mean, your Honour, if it doesn’t refer to the broadcast, if it refers to some form of investigation, it’s pounds to peanuts that ASIC must have been aware, must have been aware, at the time of the application before your Honour as to what occurred during that. They had interviewed Mr Cummins. They were obviously aware.
And, your Honour, what was submitted by my learned friend before lunch as to a possible explanation is only consistent, and it is only consistent with the aim of this thing is so we wouldn’t be alerted to this very fact. And I would ask that ASIC admit that they were at all times aware of the broadcast. I mean, we are dealing with the Commonwealth. It is supposed to be a litigant, it is suppose to behave ‑ ‑ ‑
HIS HONOUR: Yes, you have told me that before.
MR HUTLEY: Yes, your Honour. But it is very – I mean, this is pretty extraordinary stuff, your Honour. I would seek a direction that I have access to that material and I don’t mind if it cut – anything beyond it is, of course, blanked out, but the material which goes to the inquiry conducted by the Four Corners, or the Four Corners program should be made available to me.
HIS HONOUR: Yes. Mr Pearce, what do you say as to what Mr Hutley says about ‑ ‑ ‑
MR PEARCE: It is opposed, your Honour, subject to existing confidentiality orders, and we oppose any removal of those orders.”
116 I asked counsel for ASIC whether he was submitting that I did not have power to direct that these documents be disclosed to Mr Hutley, his junior and his instructing solicitor on their undertaking for the moment until further order not to disclose the contents of the documents to any person. The following dialogue then occurred:
“MR PEARCE: Your Honour, I would say the nature of these documents is such that they are, on their face, confidential materials the sort of which ought not to be disclosed in the manner that is being proposed. Your Honour can see that from reading the document at 228 to 229.
HIS HONOUR: Yes, but in the light of the way this case has been conducted and the material which has emerged and, in particular, the evidence given by Mr Watson in relation to his and the investigator’s communications with Mr Cummins, do you submit that apart from the matter of principle, any significant damage will result if these documents are made available on a ‑ ‑ ‑ “
117 Counsel for ASIC said he would need to take instructions.
118 Mr Hutley then asked whether I would permit the applicants to serve a notice to produce to ASIC calling for all documents evidencing or establishing that ASIC was aware prior to the hearing on 11 September 2007 of the fact of the Four Corners broadcast and its content. Mr Hutley sought that leave as a matter of courtesy on the basis that he might not need such leave. I gave the applicants that leave and adjourned the further hearing to a date to be fixed. I asked counsel for ASIC to obtain instructions in relation to the inspection by the applicants’ counsel of the two documents in the confidential exhibit and to communicate those instructions by email to my Associate, copied to the other parties. I then adjourned the further hearing of the matter to a date to be fixed.
119 On 1 April 2009 the applicants served on ASIC a Notice to Produce requiring it to produce before the Court the following documents for the purpose of evidence:
“1. One copy of all documents referring to an ABC television programme relating to Wembley Stadium and/or a “Four Corners” investigation and/or a Four Corners television programme known as the “Road to Wembley”:
a. created by the Australian Securities and Investments Commission, its officers, servants or agents on or prior to 11 September 2007; and/or
b. in the possession of the Australian Securities and Investments Commission, its officers, servants or agents on or prior to 11 September 2007.
2. One copy of all documents evidencing or establishing that the Australian Securities and Investments Commission, its officers, servants or agents were aware prior to 11 September 2007 of the fact that the ABC had aired a television broadcast the subject of which related to:
a. Multiplex Group or any of its subsidiaries;
b. the construction of Wembley Stadium by Multiplex Group or any of its subsidiaries;
c. the Australian Securities and Investments Commission’s investigation into Multiplex Group or any of its subsidiaries;
d. Multiplex Group’s accounting group general manager; and/or
e. any whistleblower or informer to the Australian Securities and Investments Commission regarding Multiplex Group or any of its subsidiaries.”
120 On 2 April 2009 the applicants served on ASIC a Notice to Produce the following documents for the purpose of evidence:
1. One copy of any document evidencing or establishing that ASIC was aware prior to 11 September 2007 that there had been broadcast by the Australian Broadcasting Corporation on television Channel 2 in the Four Corners program on 5 September 2005 a segment relating to the affairs of the second and third respondent or one or other or them, a transcript of which is exhibit “AJW-10” to the affidavit of Andrew John Watson sworn on 6 January 2009, in which it was broadcast that:
“Things had gone wrong. Someone in Multiplex had blown the whistle. In mid-February Multiplex’s accounting group general manager raised concerns about the February accounts. In the week leading up to the results, he wrote to members of the board and contacted ASIC, the corporate regulator. ASIC launched an investigation”.
This description of the documents was consistent with the order I made on 30 March 2009 giving the applicants leave to serve a notice to produce on ASIC.
“(1) The Court may, at any stage of any proceeding, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceeding.
(2) Upon production of a document to the Court pursuant to an order under subrule (1), the Court may deal with the document in such manner as the Court thinks fit.”
Order 15 rule 14 provides:
“Where an application is made for an order under rule 11 for the production of any document for inspection by another party or for an order under rule 13 for the production of any document to the Court and a claim is made that the document is privilege from production or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or rejection.”
122 Order 33 rule 12 of the Federal Court Rules gives a notice to produce the same effect as a subpoena for production. That is to say, compliance with the notice is required and is mandatory unless excused by the Court: CCOM Pty Ltd v Jiejing Pty Ltd (1992) 37 FCR 1 at 3; Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 132; Microsoft Corporation v CX Computer Pty Ltd (2002) 187 ALR 362 at 369, [36]. Order 27 rule 12(1) of the Federal Court Rules provides the failure to comply with the subpoena is contempt of court.
“The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross‑examination or otherwise.”
124 On 20 March 2009 I had ordered that a confidential affidavit to be filed by ASIC on 20 March 2009 be marked confidential and not be disclosed to any person other than a Judge of the Court, the Judge’s Associate and the Executive Assistant or to persons who had signed an undertaking in the form attached to the order. Those persons included solicitors and counsel for the applicants and Multiplex.
125 I considered that the persons who had signed the undertakings referred to in that order and subsequent amendments to it should be entitled and allowed to have access to the two documents on pp 228 and 231 of Confidential Exhibit ANS‑6, and that those documents should be made available to those persons on the terms that the undertaking they had signed in relation to ASIC’s confidential affidavit applied to the two documents. Having regard to the statements made by Senior Counsel for ASIC subsequently on 7 April 2009 (par [128] post), that access was not pursued by the applicants’ counsel.
126 The adjourned hearing of the Notices of Motion came on for hearing on 7 April 2009 when counsel for the applicants called on ASIC to produce the documents referred to in the two Notices to Produce.
127 Prior to that hearing, ASIC sent a letter on 3 April 2009 to my Executive Assistant, copied to the solicitors for the applicants and Multiplex, in which, in response to an earlier request from me, ASIC objected to the release of two confidential documents which appeared in Confidential Exhibit ANS‑6 to the affidavit of Anna Skreiner sworn 6 February 2009 at pp 228 and 229 and pp 231 and 232. These documents were also part of Confidential Exhibit LAM‑11 to the confidential affidavit of Louise Macaulay affirmed 3 September 2007. In the letter ASIC contended that these two documents were covered by both PII and legal professional privilege. The letter also stated:
“ASIC rejects any suggestion of impropriety in not drawing these documents to the court’s attention on earlier occasions.
ASIC will not answer the Applicants’ Notices to Produce dated 1 April 2009 and 2 April 2009. The reasons for this include the above.”
ASIC’s statement that it would not answer the notices to produce is not in conformity with the procedure, to which I have referred in pars [121] to [123] above.
· the Notices were not answered;
· some documents falling within the terms of the Notices to Produce had been found but were not produced;
· there was a reference to the Four Corners broadcast on 5 September 2005 in documents which were included in the material placed before me on 11 September 2007. These documents were to be found at pp 225, 228‑232 and 234 of Confidential Exhibit ANS‑6. They remain confidential exhibits. ASIC was not suggesting that these documents were drawn to my attention;
· ASIC accepted that on the basis of these documents it was relevantly aware of the broadcast of the Four Corners program on 5 September 2005 and the content of the program which was broadcast at the time of the hearing before me on 11 September 2007 and the hearing before the Full Court on 8 May 2008;
· there was no duty on ASIC to disclose to me or to the Full Court the fact of the broadcast of the Four Corners program;
· ASIC had not breached any duty which it owed to the Court;
· the hearing before me on 11 September 2007 could not be categorised as an ex parte application which involved a duty of full disclosure being imposed on ASIC;
· as the purpose of the Notices to Produce had been resolved, namely the forensic exercise of establishing that at the time of the hearing before me on 11 September 2007 and at the time of the hearing before the Full Court on 8 May 2008 ASIC was aware of the broadcast of the Four Corners program, the purposes of the Notices to Produce had been resolved and there was no need for them to be called on.
129 At the hearing on 7 April 2009, ASIC relied upon an affidavit of Abigail Sheppard affirmed on 7 April 2009. Ms Sheppard produced in a confidential exhibit to that affidavit six documents which were contained in an ASIC file containing internal ASIC documents and file notes relating to the Multiplex investigation in 2005 which appeared to her to be relevant to the Notices to Produce. Ms Sheppard also said that searches of archived files had disclosed 30 files located off‑site. I therefore adjourned the further hearing of the call on the Notices to Produce to 21 April 2009 to enable ASIC to determine whether any further documents were to be produced in response to the Notices to Produce.
130 ASIC submitted that the documents which it produced pursuant to the Notices to Produce were privileged from production and inspection on the grounds of PII and, in respect of two of the documents, on the ground of legal professional privilege. I consider that the documents in respect of which legal professional privilege is claimed are so privileged from production for inspection. I am satisfied that they have come into existence for the purpose of a client seeking legal advice in relation to subject‑matter set out in the documents. The fact that those documents have been communicated to ASIC does not destroy the privilege as I consider that there is a common interest between ASIC and the relevant client in relation to the subject‑matter recorded in the documents: Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd (The Good Luck) [1992] 1 AC 233; Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275; Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 410‑411; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526; University of Western Australia v Gray (No 12) [2007] FCA 396 at [4]; Heydon JD, Cross on Evidence (7th Australian ed, 2004), [25265].
132 On 20 April 2009 Ms Sheppard affirmed a further affidavit in which she explained the steps ASIC had taken, and still needed to take, in order to determine whether there were any further documents to be produced in response to the Notices to Produce.
133 On 21 April 2009, counsel for the applicants did not seek to call on ASIC any further to produce documents pursuant to the Notices to Produce or to seek access to the documents already produced. He adopted this position on the basis that the forensic exercise sought to be accomplished by the Notices to Produce had been satisfied. That exercise was to establish that on 11 September 2007 before me and on 8 May 2008 before the Full Court, ASIC was relevantly aware of the fact of the Four Corners broadcast on 5 September 2005 and the content of that broadcast.
THE EX PARTE IN CAMERA HEARING
134 I turn to the question whether ASIC was bound under a duty to the Court to disclose to me and to the Full Court at the hearings before us the fact and contents of the Four Corners broadcast on 5 September 2005. If such a duty exists and has been breached the next question to determine is whether that is relevant to the present application and the motions before me.
135 There is clear authority for the proposition that on an ex parte interlocutory hearing before the Court, in the absence of the party against whom the order is sought, the moving party is under a duty to the Court to make full disclosure of all material facts relevantly bearing upon the orders and relief which the moving party is seeking. There is also clear authority for the proposition that if it be established that such full disclosure was not made at the time an ex parte interlocutory order was sought and made, then the fact of that non‑disclosure is a sufficient ground of itself, for discharging the order which had been obtained from the Court.
136 It has been well established for well over one hundred and fifty years that a party moving a court for an injunction ex parte, that is to say in the absence of the party against whom the order is sought, is obliged to put before the Court all the material and relevant facts and circumstances of which it is aware which bear upon the determination of the application for the relief sought: Hilton v Lord Granville (1841) 4 Beav 130; 49 ER 288; Hemphill v M’Kenna (1842) 3 Dr & War 183 at 194. If a party fails to carry out this obligation, such a failure is sufficient in itself to warrant the discharge or setting aside of the ex parte order made by the Court.
137 The extent of the duty and responsibility imposed upon a party seeking an ex parte order was explained by Isaacs J in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681‑682:
“Dalglish v. Jarvie, a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall. I add the word "almost" in deference to such an exceptional case as Holden v. Waterlow. The obligation is stated by Turner L.J. in that case to be to "state their case fully and fairly," and so by Sugden L.C. in Dease v. Plunkett …(at p.261), where he said:- "The plaintiff had not fully and fairly disclosed the entire facts of the case." Lord Cottenham L.C., in Brown v. Newall … (at p. 579) observes that the power to grant such an injunction should exist is indispensable, but, from the liability to injustice, must be exercised with caution. Then he says:- "The Court can have no ground upon which it can proceed, in granting an ex parte injunction, but a faithful statement of the case." The learned Lord Chancellor distinguishes between mis‑statement, or suppression likely to influence the Court in acceding to the application, and that which is immaterial.
In the present instance the admitted circumstances are most material: no order could have been made had they been stated, without considering and weighing them, and therefore the order for injunction was improperly obtained.”
138 This duty of full disclosure and candour is usually found in the context of an application for an injunction but the principles and jurisprudence which underlie and warrant the performance of the duty are, in my view, equally applicable to any application made to a court ex parte for an order against a party who is either not put on notice of the application or who is excluded for one reason or another from participating in the hearing.
139 As was observed by Mahoney AP (with whom Clarke JA agreed) in Garrard (T/As Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677:
“There is, in my opinion, no distinction for this purpose between an order in the nature of an injunction and an order which otherwise creates or confirms rights which otherwise would not exist. The obligation of candour and diligence exists in such a case.”
See also Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 at [11].
140 The performance of the duty of full disclosure by a party moving a court ex parte for orders was recently restated by Allsop J (as he then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38]:
“In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application: Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681‑82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis‑stating the position. It means squarely putting the other side’s case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders. It is not for the Court to search out, organise and bring together what can be said on the respondents’ behalf. That is the responsibility of the applicant, through its representatives.”
(emphasis added)
Allsop J’s observation that matters should not be stated “obliquely” is of particular relevance in the present context where it is put against the applicants that they should have realised what Senior Counsel for ASIC meant when he referred “delphically” to “means and sources”. See also Grant Matich & Co Pty Ltd v Toyo Menka Kaisha Ltd (1978) 3 ACLR 375 at 376.
141 In Lane v Channel 7 Adelaide Pty Ltd [2004] SASC 47 the Full Court of the Supreme Court of South Australia said at [12]:
“The obligation to make proper disclosure requires the moving party not only to place before the Court all relevant matters which would have been raised by the other party if that party had been present but to make express reference to those matters. The obligation must extend so far because the ex parte procedure constitutes an exception to the rules of natural justice. Furthermore, it is not reasonable to impose upon the Court the obligation to sift through the papers for the purpose of ascertaining everything which is material to its decision whether to grant the relief sought. As Lander J said in Zadow v Tolmer Fuels Pty Ltd[(Lander J, 1 February 1995, unreported, Judgment No S5085]at [20]:
True it is that that affidavit was on the District Court file, and it is probable ... that the District Court file was before his Honour at the time that the application for leave was granted. However, it seems to me no counsel can assume that the Judge has the time to read the whole of the contents of a District Court file before the application for leave to appeal. Nor can it be assumed by counsel that a Judge can read the file, on an application for leave to appeal, knowing the matters to which he or she ought to be addressing their mind, for the purpose of determining what is material.
While the Court will, of course, conscientiously examine the papers, it is possible that relevant material may be overlooked, particularly given that the Court is not as familiar with all relevant facts as are the parties and it is not always immediately apparent what is relevant.”
See also Spry, The Principles of Equitable Remedies (7th ed, 2007), 496‑497.
142 ASIC submitted that the hearing before me on 11 September 2007 could not be characterised as an ex parte hearing. It was submitted that ASIC at that stage was not an applicant but was rather a respondent seeking to resist an order which had been sought against it. ASIC submitted that no duty of full disclosure could be imposed upon a respondent.
143 ASIC submitted further that in any event, in the course of the ex parte hearing in camera I expressed a tentative view then a firm view which was fatal to the case which ASIC was seeking to maintain and that as a result, consideration of any wider disclosure of the identity of the whistleblowers became irrelevant, and any issue relating to disclosure of the Four Corners broadcast on 5 September 2005 was still‑born. In support of this submission counsel for ASIC relied on a number of passages in the confidential transcript of the in camera hearing on 11 and 17 September 2007. I refer to those passages in the confidential appendix to these reasons which are only to be published to ASIC and its legal advisers until further order.
144 I do not accept that anything I said in the course of those in camera hearings expressed either a tentative or a firm view such as to render any issue of a disclosure by ASIC of the Four Corners broadcast on 5 September 2005 irrelevant or still‑born. In my opinion, the relevance of the Four Corners broadcast and the obligation of ASIC to disclose it to me had arisen at a point of time prior to the commencement of the ex parte hearing in camera before me, and at the latest, at that commencement. I also consider that the obligation of ASIC to disclose it to me continued throughout those in camera hearings.
145 Senior Counsel for ASIC made the following submission on 7 April 2009:
“… Because of the course of the argument, because of the way it developed, there was simply no opportunity or call for ASIC to develop or elaborate on the issue of whether there was some wider public knowledge; and that, in my submission, is the explanation for why the matter was not drawn to your Honour’s attention. …”
146 I reject that submission. The submissions made by ASIC in the course of the in camera hearings demonstrate that there was an abundance of opportunities and calls for ASIC to raise its knowledge, and the fact, of the Four Corners broadcast on 5 September 2005.
147 As I have observed earlier, in the course of the open hearing before me on 11 September 2007, Senior Counsel for ASIC was not prepared to state that the basis of ASIC’s claim for PII was informer privilege or whistleblower privilege, that is to say, that it was seeking to protect the identity or identities of informers. As I have also noted earlier, it is now apparent that the reason for that stance was that ASIC was concerned that if it made known that was the basis for its claim for PII, attention would immediately be directed to the identity of the informer or informers being the person referred to in the Four Corners broadcast. I can see no other basis why Senior Counsel for ASIC was “delphic”, that is to say, ambiguous, enigmatic and confusing.
148 I am satisfied that in these circumstances ASIC owed a clear duty to the Court to bring to the Court’s attention the fact of the Four Corners broadcast in the ex parte hearing in camera at the start of that hearing, at the least, if its view was that disclosure of the basis of its claim for PII would, or might, identify the identity of an informer to ASIC.
149 I accept that limited disclosure of the identity of an informer, such as to persons within the Multiplex organisation, does not destroy or negate ASIC’s claim for protection of the identity of that person who is an informer to it on the ground of PII. So much was decided by the Full Court. Nevertheless, it is clearly relevant to the consideration of ASIC’s claim for PII that not only was there the limited disclosure to the persons within Multiplex referred to by the Full Court but also that there was a wider dissemination of the identity of the position the informer held at Multiplex through the broadcast of the Four Corners program on 5 September 2005 and the other media reports, to which I have referred.
150 In those circumstances, independently of the ground or reason for allowing a second interlocutory application for relief along the same lines as an earlier interlocutory application on the basis of fresh evidence or materially changed circumstances, I consider that the effect of the non‑disclosure of the Four Corners broadcast to me by ASIC is that exceptional circumstances have arisen and that, in substance, ASIC’s application to resist, and its grounds for resisting, the claim for production and inspection of the documents sought in the subpoena should be visited afresh. It would not be in the interests of justice to do otherwise.
CONCLUSION ON THE THRESHOLD ISSUE
151 I am satisfied that on the basis of the findings I have made earlier, particularly in relation to Mr Watson’s evidence, that:
(a) the applicants have demonstrated that there is new material or new evidence which was not available or was not reasonably available to them at the time the orders were made on 2 November 2007 and 4 July 2008;
(b) there has been a material change in the circumstances facing the applicants since those orders were made;
(c) there are exceptional circumstances which warrant re‑consideration of the applicants’ application for leave to inspect and copy documents produced by ASIC pursuant to a Subpoena to Produce issued on 13 July 2007 and ASIC’s claim that thirty‑six of those documents and forty‑one transcripts of examinations of witnesses conducted by ASIC are privileged from production and inspection on the ground of PII;
(d) I should otherwise exercise the discretion committed to me to permit the re‑litigation of the matter raised in the applicants’ Notice of Motion. It is in the interests of justice to do so.
152 I am also satisfied that the applicants were not given the opportunity to bring to the Court’s attention the fact of the Four Corners broadcast and the media reports because of the nature of the correspondence between the applicants’ legal advisers and ASIC after the service of the subpoena, the submissions made by counsel for ASIC on 7 August 2007 and 11 September 2007, the ex parte in camera hearing on 11 and 17 September 2007 from which the applicants were excluded and the Special Counsel regime imposed for the Full Court hearing.
153 I have concluded that the circumstances upon which the applicants rely to renew their call for production of documents pursuant to the Subpoena to Produce issued on 13 July 2007 constitute either a material change in circumstances since their original application heard before me on 11 and 17 September 2007 and since the hearing before the Full Court or the discovery of new material which could not reasonably have been put before me on 11 or 17 September 2007 or before the Full Court. I have also concluded that those circumstances constitute such exceptional circumstances as, consistently with the reasoning of the Court of Appeal in Manning warrant the exercise of my discretion in favour of allowing the applicants’ motion filed on 16 January 2009 to be heard and determined on its merits. I am also of the view that it would be unjust not to allow the applicants to make a further application to inspect the documents produced by ASIC under the subpoena in respect of which ASIC claims privilege from production on the ground of PII: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated (supra); National Parks and Wildlife Service v Pierson (supra) (par [39] above).
154 The result of the determination of the threshold issue is that the applicants’ notice of motion filed on 16 January 2009 is not an abuse of process and they are entitled to proceed with it and have it determined on its merits. I so rule.
155 Multiplex’s notice of motion should be dismissed.
| I certify that the preceding one hundred and fifty‑five (155) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. |
Associate:
Dated: 28 April 2009
| Counsel for the Applicants: | N C Hutley S. C. with M B J Lee |
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| Solicitor for the Applicants: | Maurice Blackburn Pty Limited |
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| Counsel for the First Respondent: | M Pearce S. C. with L Lo Piccolo |
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| Solicitor for the First Respondent: | Australian Securities and Investments Commission |
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| Counsel for the Second and Third Respondents: | Dr A S Bell S.C. with D T Thomas |
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| Solicitor for the Second and Third Respondents: | Mallesons Stephen Jaques |
| Date of Hearing: | 27 & 30 March, 7 & 21 April 2009 |
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| Date of Judgment: | 28 April 2009 |
