P Dawson Nominees Pty Ltd v Australian Securities and Investment Commission (No 5) [2010] FCA 232

P Dawson Nominees Pty Ltd v Australian Securities and Investment Commission (No 5) [2010] FCA 232

The Court found that documents produced under the subpoena should, before inspection by applicants, be redacted and masked so as to prevent risk of identifying an informer, balancing the public interest in protecting informer identity against the applicants’ need for evidence, and permitting the respondents to raise legal professional privilege objections to specific documents.

Parties
First Applicant: P Dawson Nominees Pty Ltd; Second Applicant: Frederick Henry Hart; First Respondent: Australian Securities and Investment Commission; Second Respondent: Brookfield Multiplex Limited; Third Respondent: Brookfield Multiplex Funds Management Limited; Intervener: XX
Jurisdiction
Australia
Judgment Date
17 March 2010
Procedural Posture
Civil / Interlocutory Application Regarding Subpoena, Public Interest Immunity, and Production of Documents
Outcome
Documents produced by Stewart Cummins are to be redacted and masked before inspection; Multiplex may object to inspection of documents; no order as to costs.
Legal Topics
Subpoena to Produce, Public Interest Immunity, Disclosure of Informer, Redaction, Balancing Exercise
Practice and Procedure Subpoena to Produce Public Interest Immunity Disclosure of Informer Redaction Balancing Exercise

Case Brief

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Parties

P Dawson Nominees Pty Ltd

First Applicant

Frederick Henry Hart

Second Applicant

Australian Securities and Investment Commission

First Respondent

Brookfield Multiplex Limited

Second Respondent

Brookfield Multiplex Funds Management Limited

Third Respondent

XX

Intervener

Procedural Posture

Civil / Interlocutory Application Regarding Subpoena, Public Interest Immunity, and Production of Documents

Legal Issues

  1. 1 Whether parts of documents produced under subpoena should be withheld on the basis of public interest immunity due to risk of disclosing informer identity
  2. 2 Whether redaction or masking is sufficient to prevent disclosure of informer identity
  3. 3 Whether the applicant’s need for evidence outweighs public interest in protecting informer identity

Ratio Decidendi

The Court found that documents produced under the subpoena should, before inspection by applicants, be redacted and masked so as to prevent risk of identifying an informer, balancing the public interest in protecting informer identity against the applicants’ need for evidence, and permitting the respondents to raise legal professional privilege objections to specific documents.

Court Disposition

Documents produced by Stewart Cummins are to be redacted and masked before inspection; Multiplex may object to inspection of documents; no order as to costs.

Orders

  • ASIC to produce redacted and masked documents to the Court by 29 March 2010 as specified.
  • Multiplex given leave to inspect and copy documents; Multiplex may object to applicants’ inspection by 9 April 2010 with reasons and evidence.