In the matter of Trio Capital Ltd (admins apptd) [2010] NSWSC 454 (13 May 2010)

Last Updated: 14 May 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
In the matter of Trio Capital Ltd (admins apptd) [2010] NSWSC 454


JURISDICTION:
Equity

FILE NUMBER(S):
2010/011359

HEARING DATE(S):
10 May 2010

JUDGMENT DATE:
13 May 2010

PARTIES:
Stephen James Parbery, Neil Singleton and Nicholas Martin in their capacity as Joint and Several Administrators of Trio Capital Ltd (admins apptd), Astarra Funds Management Pty Ltd (admin apptd) and ASI Administration Pty Ltd (admin apptd) (Plaintiffs)
Jack Flader, Marty Cohen, The GCSL Group of Companies Ltd (Applicants)
Australian Securities and Investments Commission (Second Respondent on Motion)

JUDGMENT OF:
Ward J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
T G R Parker SC with R Foreman (Plaintiffs/Respondents on Motion)
I Lloyd QC (Applicants on Motion)
J A Halley SC (ASIC, as Second Respondent on Motion)

SOLICITORS:
Norton Rose (Plaintiffs/Respondents on Motion)
The Criminal Law Practice Pty Ltd (Applicants)
Georgina Hayden, Solicitor for Australian Securities and Investments Commission (Second Respondent on Motion)


CATCHWORDS:
PRACTICE AND PROCEDURE
application to set aside Order for Production
Order for Production addressed to ASIC requiring disclosure of documents provided to it by Hong Kong Securities and Futures Commission in connection with enquires made on ASIC’s behalf in Hong Kong in relation to certain fund management schemes and individuals
CORPORATIONS ACT
whether secrecy provisions in s 127 of Corporations Act 2001 prevented disclosure under Order for Production
PRIVILEGE
whether public interest immunity privilege available to restrain production
HELD
application dismissed
production to court under Order for Production is not prevented by s 127
public interest immunity does not apply to prevent disclosure

LEGISLATION CITED:
Australian Securities and Investment Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Securities and Futures Ordinance (HK)


CASES CITED:
Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408
Katsuno v R [1999] HCA 50; 199 CLR 40; 166 ALR 159
Marcel v Commissioner of Police (1992) Ch 225
Maronis Holdings Ltd v Nippon Credit Australia Ltd & ors [2000] NSWSC 138
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Shipley v Masu Financial Management [2008] NSWSC 1187; (2008) 68 ACSR 412
Somerville v ASIC [1995] FCA 1102

TEXTS CITED:


DECISION:
Applicants' Notice of Motion dismissed



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST


WARD J

THURSDAY 13 MAY 2010

2010/011359 IN THE MATTER OF TRIO CAPITAL LTD (ADMINS APPT)

JUDGMENT

1 Listed for hearing on 10 May 2010 before his Honour Justice Palmer were two applications brought by third parties to these proceedings.

2 The first was an application, by Amended Notice of Motion filed 9 April 2010, by Mr Jack Flader, Mr Marty Cohen and the GCSL Group of Companies Ltd (the GCSL Applicants) for an order setting aside an Order for Production issued in this Court on 29 March 2010 and addressed to the Proper Officer of the Australia Securities and Investments Commission (ASIC) together with an order restraining ASIC from producing documents pursuant to that Order for Production.

3 The second was an application by Notice of Motion brought by Mr Shawn Richard, seeking an order that a separate Order for Production dated 15 January 2010 also addressed to ASIC be set aside (and seeking other orders no longer being pressed).

4 When the matter came before his Honour at 2pm on 10 May 2010, an application was made by the GCSL Applicants that his Honour disqualify himself from hearing this motion. His Honour acceded to that application and the two applications were then referred to me in the Duty List for hearing.

5 In the event, only the first application (that brought by the GCSL Applicants) was heard by me and I reserved judgment until today. Mr Richard’s application was stood over until today.

6 During the course of argument in relation to the GCSL application, Mr Lloyd QC (Senior Counsel appearing for the GCSL applicants) indicated that, of the substantive relief sought in the Amended Notice of Motion, only the relief in paragraph 3 was now pressed (namely, an order restraining ASIC from production of documents) and, even then, that the restraining order was sought only in relation to those documents provided to ASIC by the Securities and Futures Commission in Hong Kong (SFC). I gave leave for a further Amended Notice of Motion to be filed in the proceedings in order to clarify the limited extent of the relief now sought. I do not know whether that has yet been filed.

7 Mr Lloyd also confirmed, when the issue was raised by Senior Counsel appearing for ASIC (Mr Halley SC), that the GCSL Applicants would formally join ASIC as a respondent to the motion.

8 By way of brief background to the GCSL application, on 19 March 2010 Justice Palmer made orders pursuant to s 601ND(1)(c) of the Corporations Act 2001 (Cth) for the winding up of five managed investments schemes for which the responsible entity in each case was Trio Capital Ltd (Administrators Appointed). His Honour published his reasons for the making of those orders on 16 April 2010. (The application for his Honour to disqualify himself from hearing the present application was based on certain of the comments made by his Honour in those reasons. A copy of his Honour’s reasons was provided to me by Mr Lloyd, who referred me to certain paragraphs setting out the factual background to the winding up application.)

9 The applications by the administrators (the plaintiffs in these proceedings) for the winding up of the relevant schemes were made on the just and equitable ground and the orders made by his Honour Justice Palmer were so made. In his reasons for judgment, his Honour referred, among other things, to the public interest in the acceleration of investigations into the losses of the schemes.

10 The more immediate background to the making of the Order for Production is outlined in an affidavit sworn 17 March 2010 by Ms Alison Deitz, on which the administrators rely on the GCSL application. For the GCSL Applicants, reliance is placed on two affidavits, sworn 14 March and 23 April 2010 respectively, of their solicitor Mr Dion Accoto.

11 On the basis of the material contained in those affidavits and in the bundle of documents tendered and admitted by me as Exhibit A on the applications, I note as follows.

12 Mr Jack Flader is the Chairman and CEO of the GCSL Group of Companies. Mr Cohen is the former Group Operations Director. (Mr Richard, for completeness, was at all relevant times a director of Astarra Asset Management Pty Ltd (AAM).)

13 AAM was appointed by Trio in September 2009 as the investment manager of a number of funds including the Astarra Strategic Fund (ASF).

14 In July 2008, GCSL was appointed to administer the operations of EMA International Ltd, which had entered into a Master Deferred Agreement in 2006 with the entity now known as AAM in its capacity as investment manager of the ASF. Under the Master Deferred Agreement AAM had the contractual right to receive certain Delivery Assets at a future time, the value of which was based upon the performances of specific offshore funds into which EMA invested the purchase price paid to it.

15 ASIC is investigating funds relating to Astarra, EMA and the activities of Mr Richard and another individual in Sydney. ASIC requested the SFC to make enquiries on its behalf in Hong Kong to ascertain the involvement of the GCSL Applicants with Astarra, EMA or the named individuals. Tendered on a confidential basis were copies of notices issued in early December 2009 (and subsequent notices issued in March 2010) by the SFC to the GSCL Applicants pursuant to ASIC’s request for assistance. As at 12 March 2010, the SFC investigation was still ongoing.

16 Mr Accoto has deposed that GCSL produced a very large quantity of documents under the compulsory notices issued by the SFC and that both Mr Flader and Mr Cohen had attended at least one compulsory interview by the SFC under the Securities and Futures Ordinance (HK) (SFO). It is accepted that the production of documents by the GCSL Applicants to the SFC, and the interviews attended by the individuals, were under compulsion and subject to the secrecy provisions of the SFO.

17 The SFC has disclosed to ASIC documents and information produced by, and transcripts of interviews given by, the GCSL Applicants pursuant to the relevant SFC notices.

18 On the application of the administrators, an Order for Production was issued on 29 March 2010 by this Court, requiring the production by ASIC of documents falling within 13 specified categories. The definition of documents in the schedule to the Order for Production makes it clear that the documents to be produced encompass any record of information, document, item of correspondence, financial statements, financial reports and financial accounts obtained by ASIC, inter alia, from overseas regulators but do not include any documents prepared by or on behalf of ASIC and or any overseas regulator. Mr Halley has indicated that, of the documents available for production falling within the category of documents received from overseas regulators, the only material to be produced is that which was produced by the GCSL Applicants themselves to the SFC (although that presumably does not include the transcripts of Mr Flader’s and Mr Cohen’s interviews with the SFC).

19 On 13 April 2010, Mr Accoto, in correspondence with ASIC, requested that ASIC identify and list all documents in its possession coming within the schedule of the Order for Production which related to his clients. ASIC’s response was that such disclosure would be in breach of s 127 of the Australian Securities and Investment Commission Act 2001 (Cth) and article 10 of the Multilateral Memorandum of Understanding. ASIC’s letter also noted that the SFC had advised that it could not consent to ASIC providing such information as it would not be for the purposes of the ASIC investigation.

20 Mr Halley notes that this was a very broad request and that, apart from a query as to its practical utility (in circumstances where the only documents obtained from the foreign regulator were documents provided by the GCSL Applicants themselves), compliance with this request would have required ASIC to identify (within a production of some thousands of documents) any documents generally relating to the GCSL Applicants.

21 I was provided with a copy (Exhibit 4) of the Multilateral Memorandum of Understanding concerning consultation and co-operation and the exchange of information, signed in May 2002, which sets out the general principles in relation to mutual assistance and the exchange of information between signatories to the Multilateral Memorandum of Understanding. It is pursuant to this Multilateral Memorandum of Understanding that ASIC’s request was made to the SFC.

22 Article 10 sets out the permissible uses of non-public information and non-public documents furnished in response to a request for assistance under the Multilateral Memorandum of Understanding. Article 11, headed “Confidentiality”, provides that (in sub-article (a)) each authority will keep confidential requests made under the Multilateral Memorandum of Understanding, the contents of such requests and any matters arising under the Memorandum of Understanding. Article 11(b) provides:

The Requesting Authority [here ASIC] will not disclose non-public documents and information received under this Memorandum of Understanding, except as contemplated by paragraph 10(a) (that referring to use for the purposes set forth in the request for assistance including insuring compliance with the laws and regulations related to the request or for a purpose within the general framework of the use stated in their request for assistance) or in response to a legally enforceable demand. In the event of a legally enforceable demand, the Requesting Authority will notify the Requested Authority [here SFC] prior to complying with the demand, and will assert such appropriate legal exemptions or privileges with respect to such information as may be available. The Requesting Authority will use its best efforts to protect the confidentiality of non-public documents and information received under this Memorandum of Understanding. (my emphasis)

23 Section 186 of the SFO deals with the provision of assistance by the SFC to regulators outside Hong Kong. The Commission’s power to provide assistance is subject to satisfaction of the condition provided in s 186(3) (namely, that it is desirable or expedient that assistance be provided in the interests of the investing public or the public interest or that assistance will enable or assist the recipient performing its functions and will not be contrary to the interest of the investing public or public interest that assistance be provided).

24 Mr Lloyd places weight on the fact that the SFC must be satisfied, when receiving a request for assistance from an authority or regulatory organisation outside Hong Kong, among other things, that the authority is subject to adequate secrecy provisions (see s 186(5)).

25 Section 186(6) makes it clear that a claim may be made for privilege against self-incrimination in proceedings brought in Hong Kong in relation to material produced in compliance with notices under the relevant SFC provisions.

26 Section 378 of the SFO, as noted above, imposes secrecy obligations in relation to persons obtaining or receiving information disclosed in the circumstances set out in the section. Those secrecy obligations do not, however, prevent disclosure in a number of circumstances, including where disclosure is in accordance with an order of a court or in accordance with a law or requirement made under a law (s 378(2)(e)) (a matter to which Senior Counsel for the administrators, Mr Parker SC, points when noting that this is to like effect as the operation of s 127 for which the administrators contend).

27 The administrators have sought production of the documents itemised in the Order for Production. As I understand it this is for the purposes of their investigations in relation to the schemes’ losses. I am told that examinations are scheduled to take place this July.

28 Mr Halley informed me that ASIC neither consents nor opposes to the production of the documents, subject to an appropriate undertaking as to the maintenance of confidentiality in relation to those documents. A confidentiality regime has been agreed as between ASIC and the administrators; and Mr Halley handed up to me a copy of the confidentiality undertakings as agreed.

29 On the face of those confidentiality undertakings, the administrators, as a condition of being granted access to the documents, will undertake among other things to comply with a regime which would maintain the confidentiality of documents proposed to be used in these or any subsequent proceedings and for the examination of a person on documents marked as confidential exhibits to be held in private, with corresponding limitations on the availability of transcript of any such examinations.

30 Mr Lloyd makes an application to restrain the production of the documents obtained by ASIC from the SFC on two bases.

31 First, Mr Lloyd submits that s 127 of the ASIC Act prohibits ASIC from producing the material to the administrators (and therefore submits that the court should restrain the production of that material under the Order for Production).

32 Secondly, Mr Lloyd raises an argument based on public interest immunity and says that this Court should find that it is in the public interest that documentation forwarded to ASIC by the SFC (being documentation produced the SFC under the secrecy provisions of the Hong Kong legislation) should not be disclosed to third parties. It is noted that this latter point is raised in circumstances where ASIC itself does not raise any public interest immunity issue in order to resist the production of the documents.

33 I consider each argument in turn.

(i) Section 127

34 Section 127 of the ASIC Act, relevantly, provides:

127(1) ASIC must take all reasonable measures to protect from unauthorised use or disclosure information

(a) given to it in confidence in or in connection with the performance of its functions or the exercising of its powers under the corporations legislation (other than the excluded provisions); or

(b) that is protected information.

35 Section 127(1A) provides that disclosures of summaries of information or statistics derived from information constitutes authorised use and disclosure of the information in certain circumstances.

36 Section 127(2) provides that, for the purposes of sub-section 1, the disclosure of information as required or permitted by a law of the Commonwealth or a prescribed law of a State or internal Territory is taken to be authorised use and disclosure of the information.

37 There follows then a series of sub-sections (2A) – (4) which provide that disclosure of information to specific persons or bodies or in certain circumstances is taken to be authorised use and disclosure of that information for the purposes of the section. Sub-section (5) permits regulations to be made specifying uses/disclosures of information as authorised uses/disclosures for the purposes of the section.

38 There is no suggestion that disclosure of the information sought under the Order for Production falls within the authorised disclosure provisions. What is in dispute is whether production of the documents in answer to an Order for Production issued by this Court amounts to ‘disclosure’ at all (and hence as to whether it could ever amount to unauthorised disclosure by ASIC). There is also a dispute as to whether, properly construed, s 127 prohibits disclosure by ASIC in any event (it being couched in terms of an obligation to take all reasonable measures to protect from unauthorised use or disclosure, not as a prohibition on use or disclosure).

39 Mr Lloyd submits that, based on the plain English language meaning and terms of the section, the proper construction of s 127 is that the only authorised disclosure by ASIC would be disclosure within the terms of one of the sub-sections and, therefore, says that ASIC is enjoined from handing over the material sought and that this Court is precluded from allowing the disclosure of those documents and should restrain the production of documents required to be produced under the existing Order for Production.

40 Mr Parker says that, properly construed, s 127 contains no prohibition on disclosure by ASIC at all but simply requires it to take reasonable measures to protect the confidentiality of information; that the language of the section is not cast in terms of absolute prohibition and cannot be read as a limitation on access to documents. I agree.

41 In any event, Mr Parker relies upon authority to the effect that s 127 does not prevent the issue of a subpoena to ASIC nor does it require the court to deny access to documents produced by ASIC on subpoena.

42 In Maronis Holdings Ltd v Nippon Credit Australia Ltd & ors [2000] NSWSC 138, Bryson J (as his Honour then was) considered an application for leave to inspect documents produced to the Court by ASIC in answer to a subpoena for production. Those documents comprised transcripts of interviews, evidence or statements made in proceedings before ASIC. (The circumstances of that case, his Honour noted, were very different to the circumstances before the High Court in Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408.) His Honour referred to s 127(1) of the ASIC Act and said (at [12]):

Production by ASIC in accordance with the requirements of a subpoena of a written record ... is not expressly dealt with by the ASIC Act. I do not regard production by ASIC of a document in accordance with a subpoena as a disclosure at all; ASIC has no choice about compliance, and the exercise of producing a document does not fall within the concept of a disclosure.

43 His Honour went on further to say (at [13]):

Where ASIC produces a document to a court in compliance with a subpoena or other order of a court the protection of confidentiality with respect to the documents comes under the control of that court and is not under the control of ASIC.

44 Maronis has been followed more recently in Shipley v Masu Financial Management [2008] NSWSC 1187; (2008) 68 ACSR 412, where White J dismissed an application by a defendant and three of its officers to restrain the plaintiffs in those proceedings from having access to transcript of an examination before ASIC and other items of correspondence between ASIC and the defendant or the particular examinees, which were produced on subpoena by ASIC. The said transcript and items of correspondence had arisen in connection with ASIC’s execution of its coercive investigative powers.

45 White J accepted there was no question but that the documents and the information were provided in the confidence imposed by the provisions of the ASIC Act.

46 The applicants there contended that ASIC was obliged under s 127(1)(a) to protect the confidentiality of the examinations and the documents produced to it. His Honour considered (at [21]) there to be fundamental difficulties with that submission, the first of which was that, while ASIC was required under s 127(1)(a) to take all reasonable measures to protect information given to it in confidence in connection with the exercise of its powers from an unauthorised use or disclosure, in producing documents to a court pursuant to a subpoena ASIC was not making disclosure of such information (citing Maronis). His Honour said (at [21]):

...nor would any use or disclosure of information resulting from its compliance with the subpoena be unauthorised. The command of the subpoena and the order of the Court permitting inspection, authorises disclosure to those to whom inspect is given and authorises use of the information for the purposes of the proceedings.

47 No reason was advanced by Mr Lloyd for the proposition contended for by the GCSL Applicants that Bryson and White JJ were incorrect in holding as they did in Maronis and Shipley respectively. Mr Lloyd simply urged me to form a view that the proper construction of s 127 was otherwise than had been held by their Honours.

48 It seems to me that an obligation to take reasonable precautions to protect from unauthorised disclosure is not in its terms (nor is it as a matter of plain English language usage) a prohibition on disclosure as such. It contemplates a distinction between authorised and unauthorised disclosure and does no more than require ASIC to use reasonable endeavours to protect against unauthorised disclosure. The fact that certain kinds of disclosure are then deemed to be authorised does not mean that any other kind of disclosure is not. Indeed, s 127(6), to which I was not taken by Mr Lloyd, provides that nothing in various of the preceding sub-sections limits what may otherwise constitute, for the purposes of sub-section (1), authorised use or disclosure of information.

49 The position of ASIC, adopting the submissions in this regard of Mr Parker, is that compliance with a subpoena or order for production can never be unauthorised disclosure for the purposes of s 127 of the ASIC Act. Certainly, on the face of the section, it is hard to see how any disclosure made in compliance with a court order could be said to be unauthorised.

50 In any event, in both Maronis and Shipley their Honours recognised that production to the court in compliance with an order for production is not disclosure. Disclosure of material produced to the court under a subpoena occurs only once there is an order granting access to the subpoenaed material, a matter which is within the control of the court.

51 In my opinion, s 127 does not prevent production by ASIC of documents in compliance with the Order for Production nor does it require that I restrain the production by ASIC of material the subject of the Order. Accordingly, the first basis on which the GCSL Applicants make their application fails.

(ii) Public interest immunity

52 As to the second basis, Mr Lloyd says that ASIC should have claimed public interest immunity and did not do so but that its “nonchalance” in that regard does not preclude the court from maintaining an objection based on public interest immunity. Mr Lloyd cites what was said by Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, to the effect that it is in all cases the duty of the court (and not the privilege of the executive government) to decide whether a document will be produced or may be withheld.

53 His Honour there said:

the Court must decide ... whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence.

54 I was also referred to the decision of Northrop J in Somerville v ASIC [1995] FCA 1102, and to the authorities referred to by his Honour therein. Mr Lloyd relies upon the fundamental principle that documents may be withheld from disclosure if the public interest renders this necessary.

55 Mr Lloyd places emphasis on what was said in Johns, by Brennan J (as his Honour then was) when his Honour noted that the purposes for which a power to require disclosure of information is conferred limit the purpose for which the information so disclosed can lawfully be disseminated or used, referring to Marcel v Commissioner of Police (1992) Ch 225. In Katsuno v R [1999] HCA 50; 199 CLR 40; 166 ALR 159, Kirby J considered (at [112]) and applied the principles stated in Johns.

56 Mr Lloyd referred to the SFO secrecy provisions governing the production to the SFC of documents by the GCSL Applicants and the interviews given by those applicants. He submitted that s 378(2)(e) either expressly or implicitly conditions the provision of that material with a duty on the recipient to maintain the secrecy or confidentiality of the material provided. Mr Lloyd submitted that there was an intention disclosed in the Hong Kong legislation that confidentiality of material provided to the SFC should be maintained (though as noted above s 378 itself contemplates that there might be disclosure under compulsion of a court order) and that the intention discernible from the Multilateral Memorandum of Understanding was to maintain confidentiality of information provided as between regulatory bodies of both countries.

57 It was submitted by Mr Lloyd that it is in the public interest to maintain the confidentiality of material provided from an overseas regulator to ASIC (where that material had been provided in a situation of express or implied confidence/secrecy) so as to enable ASIC to go about its investigative work in private and so that foreign governments would know that when material (acquired from individuals and companies under compulsion) was provided confidentially to Australian regulators that information would remain confidential in the hands of Australian regulators. It was submitted that if this were not to occur, then foreign regulatory agencies would be less likely to assist, as would those persons assisting overseas regulators (including whistleblowers, though here, as pointed out by Mr Parker, there is no suggestion that any of the information in question was provided by whistleblowers – rather, as Mr Lloyd was at pains to note, the information was provided by the GCSL Applicants under a process of compulsion).

58 Mr Lloyd submitted that if secrecy provisions were to be easily circumvented then the flow of information (provided in confidence by overseas regulators in the assurance that this would be without risk that it would find the way into the public domain) may well ‘dry up’ and that this would be to the detriment of ASIC’s performance of its regulatory role. It was submitted that ASIC was akin to a police investigator and not an agent for company administrators.

59 Mr Parker, in response, noted that s 130 of the Evidence Act 1995 (NSW), which permits the exclusion of evidence relating to matters of state where the public interest in preserving its secrecy or confidentiality outweighs the public interest in its admission, sets out various circumstances in which information is taken to relate to matters of state and that those matters are all to be tested having regard to Australian governmental interests. (Mr Parker conceded the possibility, far-fetched though he suggested it was, that the production by Australian regulators of documents provided to those Australian regulators by overseas regulators might give rise to such a privilege if such disclosure would damage Australian governmental interests but submitted that the mere fact that a document related to events overseas or activities in Hong Kong was not of itself a matter of state.

60 Mr Parker submitted that there is no evidence that any of the documents the subject of the Order for Production is a document relating to matters of state and there is no reason to draw such a conclusion. I agree. That would seem to me to be an end to the application, since the balancing exercise between competing public interests does not arise unless there is evidence that would give rise to a claim for public interest immunity in the first place.

61 Mr Parker further submitted that (rather than evidence that there is or is likely to be information falling within the Order for Production that relates to matters of state) all that has been put forward by the GCSL Applicants is a suggestion that production of this material to the Court in answer to the order for production will deter or interfere in some way with the ability of Hong Kong regulators in the future to conduct investigations of this kind or to comply with requests of this kind. Not only is there no evidence to suggest that this would be so, the SFC seems to have been put squarely on notice of the present application and has taken no steps to raise any objection to production by ASIC of any of the material in question.

62 It seems to me that a fundamental difficulty with Mr Lloyd’s submission in this regard is that article 11 of the Multilateral Memorandum of Understanding itself contemplates that documents produced in answer to a request for assistance may later be subject to the possibility of release. As adverted to above, I was informed that by consent an application was made last week for ASIC to have liberty to provide the SFC in Hong Kong with notification of the present GCSL application (including the submissions of Mr Lloyd, the notice of motion and affidavit in support), and that the SFC was thereafter put on notice of the application. It has raised no objection itself to the production by ASIC of the documents to this Court nor has it suggested that to do so would harm the prospects of future inter-regulatory cooperation.

63 ASIC has not sought, and Mr Halley confirms it does not wish, to assert any public interest immunity. Mr Halley submits that ASIC has no obligation to do so unless disclosure would in its view be injurious to the public interest. While Mr Parker concedes that the court could conceivably conclude there was nevertheless a public interest attached to the documents (notwithstanding ASIC’s decision not to claim privilege), he submits that the court should be slow to reach that conclusion. I agree. In that regard, reliance was placed on what was said by Gibbs ACJ in Sankey v Whitlam, at 44-45:

the court must then intervene if it appears that the public interest requires the document to be protected from disclosure. However, it is very different if a Minister has considered the question and decided that no objection should be taken. In those circumstances it would be most exceptional for the court to intervene.

64 Not only am I not satisfied that it has been shown that documents the subject of the Order for Production are documents in respect of which public interest immunity is likely to attach, this is a case where neither ASIC nor the foreign regulatory body which produced those documents to ASIC raises any objection to production of the documents (thus seemingly forestalling any argument based on the perceived hindrance to future inter-regulatory cooperation between those regulatory bodies). The Multilateral Memorandum of Understanding itself contemplates that (subject to compliance with the contemplated procedure, which I am informed by Mr Halley was duly undertaken in this case) information produced to the SFC under the secrecy provisions of the applicable Hong Kong legislation may nevertheless ultimately be disclosed or publicly released in some fashion.

65 For those reasons, the second basis on which an order restraining production is brought must also fail.

Conclusion

66 In conclusion, therefore, I am not satisfied that production by ASIC of the documents the subject of the Order for Production should be restrained. I dismiss the GCSL’s Amended (or, if it has been filed, Further Amended) Notice of Motion.

67 From a practical point of view I note that I was informed on Monday that the first tranche of production (of some 6,000 documents) was available by ASIC. As noted earlier, at the outset of the hearing of this application I was informed that there was no application to restrain production of any documents other than those which had been produced to ASIC from the SFC. Arrangements were therefore made for the production to the administrators of that portion of the first tranche of documents in respect of which no restraining order was sought, subject to the confidentiality undertakings which had been agreed between ASIC and the administrators. I assume that has occurred. It is anticipated that the second tranche (in respect of which a review for any professional legal privilege claims is currently being undertaken) will be available for production within the next four weeks. I will formally stand over the Order for Production to a convenient date for that purpose.

68 Subject to any application of the kind foreshadowed by Mr Lloyd for a stay, the balance of the first tranche of production should be produced to the court today.

69 I will hear Counsel if there is any argument as to costs. Otherwise, I propose to order that the GCSL Applicants pay the costs of the plaintiffs and of ASIC of this application.

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LAST UPDATED:
13 May 2010