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

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

Section 127 of the Australian Securities and Investment Commission Act 2001 (Cth) did not prevent ASIC from producing documents to the Court in compliance with the Order for Production because the section is not an absolute prohibition on disclosure and production under a court order is not disclosure by ASIC; any later access is controlled by the Court. Public interest immunity did not justify restraining production because there was no evidence that the documents related to matters of state or that disclosure would harm Australian governmental interests or future inter-regulatory cooperation, and neither ASIC nor the Securities and Futures Commission objected to production.

Jurisdiction
Australia
Judgment Date
13 May 2010
Procedural Posture
Application to Restrain Production of Documents Under an Order for Production / Notice of Motion by Third Party Applicants in Supreme Court of New South Wales Equity Division
Outcome
Applicants' Notice of Motion dismissed.
Legal Topics
['order for Production' 'asic Secrecy Provisions' 'section 127 of the Australian Securities and Investment Commission Act 2001 (cth)' 'public Interest Immunity' 'documents Obtained From Overseas Regulator' 'confidentiality Undertakings']
['practice and Procedure' 'corporations' 'evidence' 'privilege'] ['order for Production' 'asic Secrecy Provisions' 'section 127 of the Australian Securities and Investment Commission Act 2001 (cth)' 'public Interest Immunity' 'documents Obtained From Overseas Regulator' 'confidentiality Undertakings']

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Procedural Posture

Application to Restrain Production of Documents Under an Order for Production / Notice of Motion by Third Party Applicants in Supreme Court of New South Wales Equity Division

Legal Issues

  1. 1 ['Whether s 127 of the Australian Securities and Investment Commission Act 2001 (Cth) prohibited or prevented ASIC from producing documents provided to it by the Securities and Futures Commission in Hong Kong in compliance with an Order for Production.' 'Whether public interest immunity should restrain production of documents provided to ASIC by the Securities and Futures Commission in Hong Kong.' 'Whether production to the Court under an Order for Production amounts to disclosure by ASIC for the purposes of s 127.']

Ratio Decidendi

Section 127 of the Australian Securities and Investment Commission Act 2001 (Cth) did not prevent ASIC from producing documents to the Court in compliance with the Order for Production because the section is not an absolute prohibition on disclosure and production under a court order is not disclosure by ASIC; any later access is controlled by the Court. Public interest immunity did not justify restraining production because there was no evidence that the documents related to matters of state or that disclosure would harm Australian governmental interests or future inter-regulatory cooperation, and neither ASIC nor the Securities and Futures Commission objected to production.

Court Disposition

Applicants' Notice of Motion dismissed.

Orders

  • ["The GCSL Applicants' Amended, or Further Amended if filed, Notice of Motion is dismissed." 'The Order for Production is to be stood over to a convenient date.']