P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413

P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413

The applicants established there was new evidence or material (the public dissemination and confirmation of the whistleblower's identity and ASIC's knowledge of the Four Corners broadcast) and exceptional circumstances that were not reasonably available or appreciated at the time of the prior applications. Combined with procedural and disclosure issues regarding ASIC's conduct, the interests of justice required permitting the applicants to have their subpoena/inspection application determined on its merits, and that their application was not an abuse of process.

Jurisdiction
Australia
Judgment Date
28 April 2009
Procedural Posture
Interlocutory Application / Ruling on Threshold Issue for Re Hearing Applications Regarding Subpoena and Public Interest Immunity
Outcome
Applicants' motion to re-hear is allowed; Multiplex's motion is dismissed.
Legal Topics
['subpoena to Produce' 'public Interest Immunity' 'privilege' 'abuse of Process' 'interlocutory Applications' 'notice to Produce']
['practice and Procedure'] ['subpoena to Produce' 'public Interest Immunity' 'privilege' 'abuse of Process' 'interlocutory Applications' 'notice to Produce']

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Procedural Posture

Interlocutory Application / Ruling on Threshold Issue for Re Hearing Applications Regarding Subpoena and Public Interest Immunity

Legal Issues

  1. 1 ['Whether applicants can re-litigate the question of inspection of documents previously determined under a claim for public interest immunity (PII)' 'Whether nondisclosure by ASIC regarding the Four Corners broadcast and the basis of its PII claim constituted exceptional circumstances or new evidence justifying a re-hearing' 'Whether ASIC was under a duty of full disclosure in ex parte in camera hearings regarding PII claims']

Ratio Decidendi

The applicants established there was new evidence or material (the public dissemination and confirmation of the whistleblower's identity and ASIC's knowledge of the Four Corners broadcast) and exceptional circumstances that were not reasonably available or appreciated at the time of the prior applications. Combined with procedural and disclosure issues regarding ASIC's conduct, the interests of justice required permitting the applicants to have their subpoena/inspection application determined on its merits, and that their application was not an abuse of process.

Court Disposition

Applicants' motion to re-hear is allowed; Multiplex's motion is dismissed.

Orders

  • ["Applicants' notice of motion filed on 16 January 2009 is not an abuse of process and may proceed to hearing on its merits." "Multiplex's notice of motion is dismissed."]