Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123

Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123

The court held that the immunity from disclosure of informers' identity is not absolute, but requires a balancing exercise between the public interest in non-disclosure (protection of informers and encouragement of future whistleblowers) and the public interest in facilitating justice through full access to evidence. It is not conclusive against immunity that the informer's identity is known within the company. In this case, the documents in question, if disclosed, would tend to identify the informers, and the balance of public interest should be struck in favour of non-disclosure. Therefore, the order dismissing the claim for immunity was erroneous and should be set aside.

Jurisdiction
Australia
Judgment Date
04 July 2008
Procedural Posture
Application for Leave to Appeal (public Interest Immunity) / Full Federal Court Appeal From Single Judge Decision
Outcome
Appeal allowed; leave to appeal granted; documents protected from inspection; first respondent to pay ASIC’s costs.
Legal Topics
['public Interest Immunity' "protection of Informers' Identity" 'disclosure Obligations' 'civil Procedure']
['evidence' 'administrative Law' 'corporate Law'] ['public Interest Immunity' "protection of Informers' Identity" 'disclosure Obligations' 'civil Procedure']

Case Brief

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Procedural Posture

Application for Leave to Appeal (public Interest Immunity) / Full Federal Court Appeal From Single Judge Decision

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from dismissal of claim seeking public interest immunity protection for documents tending to identify ASIC informers' "Whether immunity for informers' identity is absolute or subject to a balancing exercise" "Whether it is conclusive against immunity if informer's identity is already known within the company" 'Whether the documents in question would tend to identify informers and how the balance should be struck between disclosure and immunity']

Ratio Decidendi

The court held that the immunity from disclosure of informers' identity is not absolute, but requires a balancing exercise between the public interest in non-disclosure (protection of informers and encouragement of future whistleblowers) and the public interest in facilitating justice through full access to evidence. It is not conclusive against immunity that the informer's identity is known within the company. In this case, the documents in question, if disclosed, would tend to identify the informers, and the balance of public interest should be struck in favour of non-disclosure. Therefore, the order dismissing the claim for immunity was erroneous and should be set aside.

Court Disposition

Appeal allowed; leave to appeal granted; documents protected from inspection; first respondent to pay ASIC’s costs.

Orders

  • ['The appellant have leave to appeal;' 'The appeal be allowed;' "Orders 1 and 2 made on 14 November 2007 be set aside, and in lieu thereof: (a) the 36 specified documents and transcripts of examination of 23 witnesses produced to the court pursuant to subpoena duces tecum served on ASIC by the first respondent are...