Dimitropoulos and Australian Securities and Investments Commission

This matter concerned a summons issued by the applicant to the Australian Securities and Investments Commission (ASIC) seeking production of transcripts, recordings, or file notes of interviews conducted by ASIC officers with Albert Murphy, Lincoln Naish, and Dany Dona, relating to ASIC's investigations into Sunpac Finance Pty Limited and Heritage Financial Solutions Australia Pty Limited. The proceeding was before Linda Kirk SM in the Administrative Appeals Tribunal.

The legal issue before the Tribunal was whether it was appropriate to issue the summons to ASIC for the production of these documents, particularly at the current stage of the proceedings where the applicant had not yet filed his statement of facts, issues, and contentions. The Tribunal was required to consider the scope and application of section 37 of the Act, which imposes an ongoing obligation on ASIC to produce relevant documents throughout review proceedings, and the general principles governing the use of the summons power.

The Tribunal reasoned that it is generally inappropriate to use the summons power to obtain documents from a party to the proceedings. Instead, section 37 of the Act requires the decision-maker, ASIC in this instance, to produce every document in its possession or control that is relevant to the review at all stages. If ASIC fails to produce such documents, the Tribunal has the power to order their production. Following the approach in *Ehrenfeld and Australian Securities and Investments Commission*, the Tribunal determined that the summons should be set aside. The applicant was advised that once he files his statement of facts, issues, and contentions, he may then seek an order under section 37(2) of the Act for the production of any specific documents in ASIC's possession that have not been produced and are relevant to the Tribunal's decision.

The Tribunal ordered that the summons issued on 14 February 2018 be set aside.