CTC Resources Nl v Australian Stock Exchange Ltd
[2001] WASCA 173
•8 JUNE 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
TITLE OF COURT : THE FULL COURT (WA)
CITATION: CTC RESOURCES NL -v- AUSTRALIAN STOCK EXCHANGE LTD [2001] WASCA 173
CORAM: WHEELER J
McLURE J
HEARD: 23 MAY 2001
DELIVERED : 23 MAY 2001
PUBLISHED : 8 JUNE 2001
FILE NO/S: FUL 62 of 2001
BETWEEN: CTC RESOURCES NL
Appellant
AND
AUSTRALIAN STOCK EXCHANGE LTD
Respondent
Catchwords:
Appeal - Interlocutory decision - Interrogatory - Public interest immunity
Legislation:
Nil
Result:
Application for extension of time to appeal granted
Application for leave to appeal refused
Representation:
Counsel:
Appellant: Mr M J McPhee
Respondent: Dr J T Schoombee
Solicitors:
Appellant: Michell Sillar McPhee
Respondent: Mallesons Stephen Jaques
Case(s) referred to in judgment(s):
CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19
Case(s) also cited:
Becker v Smith's Newspaper Ltd & Anor (No 1) [1930-1] SASR 1
Challenge Bank Ltd v Rae, unreported; SCt of WA; Library No 940435; 19 August 1994
Coonan v Richardson [1947] QWN 19, 41 QJPR 65
CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 980031; 2 February 1998
CTC Resources NL v Australian Stock Exchange Ltd, unreported; SCt of WA; Library No 990167; 1 April 1999
Danby v Australian Financial Agency & Guarantee Co Ltd (1891) 17 VLR 156
M & S Constructions Pty Ltd v Skewes (1983) 34 SASR 406
Murdoch v Taylor (1923) 40 WN(NSW) 83
Nicholl v Wheeler (1886) 17 QBD 101
Potters Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd (1911) 13 CLR 101
Sankey v Whitlam (1978) 142 CLR 1
WHEELER J: The dispute underlying this application for leave to appeal and the difficulties faced by the applicant in relation to certain documents for which public interest immunity is claimed are set out by now in a number of decisions of this Court. I do not feel it is necessary to set them out again. The summaries most relevant for present purposes are to be found in the decision of the Full Court, CTC Resources NL v Australian Stock Exchange Ltd [2000] WASCA 19, delivered on 17 February last year and the Master's reasons in the decision appealed from dated 20 February this year, and I adopt those summaries of facts.
As to the merits of the proposed appeal, I would have been disposed to agree with the decision of the learned Master for the reasons given by him in any event. I would add, however, that it seems to me that the submissions of the applicant reveal two related fundamental misconceptions which underlie the proposed interrogatory and which are such that it could not be permitted. It reads as follows:
"1(a)Refer to the affidavit of James Hunter Berry sworn herein on 6 October 1998 and the affidavit of Alan Joseph Shaw sworn 6 December 1998 and to the lists of documents attached to each of those affidavits, and in respect of each such documents or part thereof which are said to be directly relevant to the matters at issue in the action and in respect of which the contents of the document or the directly relevant part thereof has been concealed in the copies presented to the plaintiff for inspection, state -
bracket - and I emphasise the material in bracket -
(without identifying any informant, investigator or confidential method of investigation) the substance of each and every document or part thereof said to be directly relevant to the issues in the case and so concealed."
The remainder of the interrogatory is not material. The first assumption appears to be that privilege is validly claimed only in respect of the identity of any informant, investigator or confidential method of investigation and that whatever else of relevance the blacked-out portions of the documents might reveal is not subject to public interest immunity. There appears to be a further assumption that there must be parts of the documents which have been blacked out and which do not go to those matters.
Public interest immunity was in fact asserted on a number of grounds which are set out conveniently at 21, par 47, of the Full Court decision [2000] WASCA 19 (supra). The grounds are not, it seems to me, limited to the matters referred to in the bracketed portion of the proposed interrogatory.
The submissions of the applicant proceed on the basis that matters other than the identify of informers, investigators or methods of investigation are not subject to any claim for immunity which has been determined to be valid by this Court. If that were so, the proper course, it seems to me, would be to seek inspection of all documents and parts of documents described by the respondent which do not reveal those matters, rather than simply interrogating about the contents of the documents. However, in my view the assumption that only the bracketed matters are properly the subject of a claim for immunity, is incorrect. The whole of the grounds upon which public interest immunity were claimed were before Master Sanderson in an earlier application, and in reasons delivered on 1 April 1999 he accepted the whole of the claim as valid.
It is true that the learned Master characterised the grounds as dealing entirely with "the identity of informers or investigators or confidential methods of investigation" and that this was perhaps a shorthand which is not entirely accurate when regard is had to the whole of the grounds relied upon by the respondent. However, an appeal was taken from that decision to the Full Court and in the reasons to which I have already referred the Full Court set out all of the grounds verbatim in par 47. The Court then said at par 49:
"There is nothing suspect, unusual or inherently improbable in the way that the claim is advanced and described in the affidavits."
being plainly a reference, in my view, to all of those grounds of immunity claimed. More broadly, the Full Court noted at par 31:
"There is ample authority for the proposition that documents within the possession of an investigative and law enforcement agency such as the Australian Securities Commission relating to investigations and possible offences may fall within the public interest immunity.
The expression "relating to investigations and possible offences" is one wider than the sort of immunity which the applicant considers to be made out. Their Honours in the same paragraph concluded by saying:
"We do not think it is in issue in these proceedings that documents of a confidential nature which record information received by the defendant or generated by it concerning possible irregularities and recording the course of possible course of investigations into the alleged irregularities could be the subject of public interest immunity."
It appears to me that this Court has already accepted that all of the grounds set out in the respondent's affidavits as affording a basis for public interest immunity do furnish the grounds for a valid claim.
Even if the valid claim were to be understood as being confined to grounds (a) and (b) of the grounds set out in par 47 of the Full Court's reasons; that is, to matters which would reveal the identity of informants or the methodology of the market surveillance division, it appears to me that the Full Court directly dealt with those aspects in par 43 of the decision, to which I have referred. The Court noted that the present applicant submitted to it at that time that the extent to which privilege had been claimed over the documents would itself provide evidence that the claim was unfounded. The court noted that, in an argument which, it seems to me, is precisely mirrored by the argument today, the applicant claimed that it was unlikely that all of the material blacked out could refer to names of informers and methods of surveillance and investigation. Their Honours further noted that it was argued before them by the present applicant that, given the nature and length of some of the documents, it was difficult to accept that those documents would not contain any material of relevant substance, but not relating to the privilege claimed. That was an argument which, it seems to me, was directly rejected by the previous decision of the Full Court.
If one accepts either that all of the grounds upon which privilege has been claimed in the affidavits as set out in the previous decision at par 47 are valid grounds or, alternatively, if one accepts that the grounds essentially are those relating to the identity of informants and the methodology of the market surveillance division and that the blacked-out material is properly to be regarded as relating to those matters, in either event it seems to me the same conclusion follows. It would not be proper to order interrogatories which permit the respondents to conceal only those aspects of the documents which relate to some of the grounds of privilege if one takes the former view. Alternatively, it has already been determined that the matters which are blacked out are precisely matters which would identify any informant, investigator or confidential method
of investigation, and it would be entirely improper to permit an interrogatory directed to precisely those matters.
It seems to me, therefore, that the proposed appeal has no prospect of success. It has also been pointed out during the course of argument that at least some of the material, which it seems the applicant seeks to ascertain, may be capable of being ascertained by means of other procedures.
I would extend the time for the bringing of the application. I accept the explanation that there has been an oversight, and it seems to me the delay is not particularly gross. I would, however, not grant leave to appeal on the basis that the decision of the learned Master was not attended by sufficient doubt.
McLURE J: I agree with the orders proposed by Wheeler J for the reasons that she has stated, and I have nothing further to add.
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