Deloitte Touche Tohmatsu v Australian Securities Commission

Deloitte Touche Tohmatsu (the applicant) sought judicial review of a decision by the Australian Securities Commission (the respondent) to issue a notice under s 52 of the *Australian Securities Commission Act 1989* (Cth) requiring Deloitte to produce documents. The dispute concerned the scope of the ASC's power to compel the production of documents from a third party, in this instance, an auditor, in relation to an investigation into the affairs of a company. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the ASC had the power under s 52 of the *Australian Securities Commission Act 1989* (Cth) to require Deloitte to produce documents that were in Deloitte's possession but related to the affairs of a company that was the subject of an ASC investigation, even though Deloitte was not itself being investigated. Specifically, the court considered whether the phrase "affairs of a body corporate" in s 52 extended to documents held by a third party, such as an auditor, that were relevant to those affairs.

The High Court held that the ASC's power under s 52 was not limited to compelling the production of documents from the body corporate itself, but extended to third parties who possessed documents relevant to the affairs of the body corporate under investigation. The court reasoned that the purpose of s 52 was to facilitate the ASC's investigative functions, and a broad interpretation of "affairs" was necessary to achieve this purpose. The court found that documents held by an auditor, which were prepared in the course of auditing the company, were indeed part of the "affairs" of that company for the purposes of the ASC's investigation.

The High Court dismissed the application for judicial review.