Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (In Liq) (No 4) [2011] FCA 1536

Australian Securities and Investments Commission v Storm Financial Limited (Receivers and Managers Appointed) (In Liq) (No 4) [2011] FCA 1536

Challenger had been afforded procedural fairness by being joined for the limited purpose of pursuing its objection and being heard. Section 127 of the ASIC Act did not create a positive confidentiality duty constraining ASIC, but only a negative obligation against unauthorised use or disclosure. In deciding whether to authorise disclosure by court order, the appropriate test in the unusual circumstances was whether the documents had apparent relevance to issues in one or more of the related proceedings and therefore a legitimate forensic purpose, not the stricter direct relevance test for discovery under Pt 20.

Jurisdiction
Australia
Judgment Date
21 December 2011
Procedural Posture
Federal Court Civil Proceeding Concerning Discovery of Documents Obtained by ASIC Under Investigative Powers / Ex Tempore Reasons on Challenger's Objection to ASIC Discovering Documents to Other Parties
Outcome
No order was made.
Legal Topics
['discovery' 'asic Investigative Powers' 'confidentiality Under S 127 of the ASIC Act' 'procedural Fairness' 'apparent Relevance and Legitimate Forensic Purpose']
['civil Procedure' 'corporations and Securities Regulation'] ['discovery' 'asic Investigative Powers' 'confidentiality Under S 127 of the ASIC Act' 'procedural Fairness' 'apparent Relevance and Legitimate Forensic Purpose']

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Procedural Posture

Federal Court Civil Proceeding Concerning Discovery of Documents Obtained by ASIC Under Investigative Powers / Ex Tempore Reasons on Challenger's Objection to ASIC Discovering Documents to Other Parties

Legal Issues

  1. 1 ['Whether s 127 of the Australian Securities and Investments Commission Act 2001 (Cth) imposed a positive duty on ASIC to keep the Challenger documents confidential.' 'Whether Challenger had rights to constrain ASIC in how it dealt with the Challenger documents in the proceedings.' 'What test should be applied before ordering or authorising ASIC to disclose the Challenger documents to other parties in the related proceedings.']

Ratio Decidendi

Challenger had been afforded procedural fairness by being joined for the limited purpose of pursuing its objection and being heard. Section 127 of the ASIC Act did not create a positive confidentiality duty constraining ASIC, but only a negative obligation against unauthorised use or disclosure. In deciding whether to authorise disclosure by court order, the appropriate test in the unusual circumstances was whether the documents had apparent relevance to issues in one or more of the related proceedings and therefore a legitimate forensic purpose, not the stricter direct relevance test for discovery under Pt 20.

Court Disposition

No order was made.

Orders

  • ['There be no order.']