P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044

P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044

Leave was granted because the subpoena sought documents sufficiently identified by specific description or by the objective criterion that they were provided by Multiplex to ASIC in the identified investigation; ASIC did not object and no oppressive burden on ASIC was shown; the documents had potential relevance to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
12 July 2007
Procedural Posture
Representative Proceeding Claiming Breach of Continuous Disclosure Obligations / Interlocutory Application for Leave to Issue a Subpoena to ASIC
Outcome
Leave granted on terms as to inspection; respondents ordered to pay the applicant's costs of the application.
Legal Topics
['subpoena Duces Tecum to Non Party' 'continuous Disclosure Obligations' 'asic Investigation Documents' 'discovery and Security for Costs' 'restrictions on Inspection' 'representative Proceeding Under Pt Iva']
['civil Procedure' 'corporations Law' 'representative Proceedings'] ['subpoena Duces Tecum to Non Party' 'continuous Disclosure Obligations' 'asic Investigation Documents' 'discovery and Security for Costs' 'restrictions on Inspection' 'representative Proceeding Under Pt Iva']

Source-derived case record

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Procedural Posture

Representative Proceeding Claiming Breach of Continuous Disclosure Obligations / Interlocutory Application for Leave to Issue a Subpoena to ASIC

Legal Issues

  1. 1 ['Whether leave should be granted to issue a subpoena to ASIC for documents obtained or created in its investigation of Multiplex concerning the Wembley Stadium project.' 'Whether the subpoena had a legitimate forensic purpose or was an abuse of process by being used as a substitute for discovery.' 'Whether the subpoena was oppressive or premature given pending applications concerning s 33N, security for costs and transfer.' "Whether production would subvert ASIC's natural justice obligations or improperly affect privilege or inspection rights." "Whether the terms of reference and consultant's report sought from ASIC had sufficient potential relevance."]

Ratio Decidendi

Leave was granted because the subpoena sought documents sufficiently identified by specific description or by the objective criterion that they were provided by Multiplex to ASIC in the identified investigation; ASIC did not object and no oppressive burden on ASIC was shown; the documents had potential relevance to the core issues of the proceeding and were likely to assist discovery, security for costs and the efficient conduct of the case; the applicant's purposes were legitimate forensic purposes; and the objections based on prematurity, natural justice, privilege and alleged fishing could be addressed or did not warrant refusing leave.

Court Disposition

Leave granted on terms as to inspection; respondents ordered to pay the applicant's costs of the application.

Orders

  • ['The applicant have leave to issue a subpoena directed to the Australian Securities and Investments Commission seeking the documents described in paragraph 10 of the reasons, subject to terms.' 'Within 14 days of service of the subpoena and a copy of the order and reasons, ASIC shall deposit at the Victoria...