Dimitropoulos and Australian Securities and Investments Commission

Mr Dimitropoulos applied to the Administrative Appeals Tribunal for an order requiring the Australian Securities and Investments Commission (ASIC) to lodge 19 file notes and a draft witness statement. These documents related to communications between ASIC officers and three witnesses whose statements ASIC had already lodged. Mr Dimitropoulos sought these documents in relation to his substantive review applications concerning ASIC's decisions to permanently ban him from engaging in credit activities and providing financial services.

The primary legal issue before the Tribunal was whether the contentious documents, described by ASIC as recording "instructions and discussions with individuals during the preparation of their respective witness statements" and claimed to be subject to legal professional privilege, were "relevant" for the purposes of a notice requiring lodgement under section 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Mr Dimitropoulos argued that the documents were relevant to impeaching the credit of the three witnesses, whose employment with Heritage FSA had been terminated due to alleged client diversion.

The Senior Member considered the scope of the "may be relevant" criterion in section 37(2) of the AAT Act. He noted that the documents were asserted to be relevant to the credit of the witnesses, particularly given their terminations from Heritage FSA. The Tribunal acknowledged that if the information within the witness statements had been obtained through a formal recorded examination process, it would likely have been made available. The Senior Member indicated that the relevance of the documents to the credit of the witnesses, and the potential impact on the weight to be given to their evidence, was a significant consideration in exercising the discretion to order their lodgement.