Easterday, Clark Ervin v Australian Securities Commission
[1996] FCA 790
•25 JUNE 1996
CATCHWORDS
PROCEDURE - "appeal" from Administrative Appeals Tribunal - extension of time to lodge notice of appeal - whether merit in proposed grounds of appeal - whether merit in identified questions of law
FREEDOM OF INFORMATION - exemptions - documents affecting enforcement of law and protection of public safety - Tribunal decision affirming application of exemption - whether arguable exemption subject to public interest considerations - whether arguable Tribunal in error in exempting document in face of reference to it in course of cross‑examination in applicant's criminal trial - whether arguable that exemptions subject to wider public interest considerations
Administrative Appeals Tribunal Act 1975 (Cth), s44(1) and s44(2A)
Criminal Code (WA), s135 and s143
Director of Public Prosecution Act 1991 (WA), s24(1)
Federal Court of Australia Act 1976 (Cth), s23
Freedom of Information Act 1982, subs37(1)(b), subs37(2)(b), subs40(1)(d), subs43(1)(c)(i), subs43(1)(c)(ii) and s45(1)
Rules of the Federal Court of Australia, O52 r18(1) and O53 r15
Securities Industry (Western Australia) Code 1981, s41(1)
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Arrow Crest Group Pty Ltd v Gill (1993) 46 FCR 90
Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515
British Coal Corporation v Dennis Rye (No 2) [1988] 1 WLR 1113
Hunter Valley Developments Pty v Cohen (1984) 3 FCR 344.
Repatriation Commission v Tuite (1992) 37 FCR 571
CLARK ERVIN EASTERDAY v AUSTRALIAN SECURITIES COMMISSION and AUSTRALIAN STOCK EXCHANGE LTD (ACN 008 624 691)
NO WAG 18 OF 1996
R D NICHOLSON J
PERTH
25 JUNE 1995
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 18 OF 1996
B E T W E E N: CLARK ERVIN EASTERDAY
Applicant
and
AUSTRALIAN SECURITIES COMMISSION
First Respondent
AUSTRALIAN STOCK EXCHANGE LTD
(ACN 008 624 691)
Second Respondent
DRAFT MINUTE OF ORDER
JUDGE MAKING ORDER: R D NICHOLSON J
DATE OF ORDER: 25 JUNE 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1.The application dated 8 March 1996 for extension of time within which to lodge a notice of appeal be dismissed.
2.The applicant pay the respondents' costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 18 OF 1996
B E T W E E N: CLARK ERVIN EASTERDAY
Applicant
and
AUSTRALIAN SECURITIES COMMISSION
First Respondent
AUSTRALIAN STOCK EXCHANGE LTD
(ACN 008 624 691)
Second Respondent
CORAM:R D NICHOLSON J
DATE:25 JUNE 1996
PLACE:PERTH
REASONS FOR JUDGMENT
The applicant seeks an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal given on 9 February 1996. The application for extension is dated 8 March 1996 and was lodged on 12 March 1996. It is opposed by each of the respondents, substantially on the ground that the proposed "appeal" is without merit.
Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") provides for a right to "appeal" from a decision of the Tribunal. Section 44(2A) of the AAT Act provides an appeal shall be instituted not later than the twenty eighth day after the day on which a document setting out the terms of the decision of the Tribunal is furnished to the applicant "or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows". It was not disputed that the
notice of application for extension of time was dated on the last day upon which the applicant could have appealed as of right had he been ready to do so.
The Tribunal decision
The Tribunal affirmed the decision made by an officer of the first respondent ("the ASC") refusing the applicant's application for access under the Freedom of Information Act 1982 ("the FOI Act") to a document entitled "Australian Stock Exchange Ltd Market Surveillance Report 54/90 dated 4 December 1990" ("the document"). The document had been given to the ASC by the second respondent ("the ASX") in that month. Refusal of access was based on the view that the document was exempt from production pursuant to subss37(2)(b) and 45(1) of the FOI Act.
Before the Tribunal the respondents also relied upon subss37(1)(b), 40(1)(d) and 43(1)(c)(i) and (ii) of the FOI Act.
The document
Pursuant to directions made by a Senior Member on 25 August 1995 certain information was filed with respect to the document by the respondent. There it is stated the document contains, inter alia, information as to the following matters:
"1. The course of trading in the stock ("Stock") of a specified company ("Company") for a specified period ("Period").
2.The identity of 36 persons who placed orders ("Order Placers") to buy or sell the stock during the Period.
3.The business affairs/personal circumstances of some of the Order Placers.
4.The identity of 60 clients accounts through which the trades were effected ("Clients").
5.The price and timing of all trades executed on behalf of each of the Clients during the Period.
6.The relationship between some of the Order Placers and some of the Clients.
7.The personal circumstances of some of the Clients.
8.The business activities and/or occupations of some of the Clients.
9.The possible reasons why some of the Clients may have undertaken a particular trade in the Stock.
10.The possible sources of information upon which some of the Clients may have decided to trade in the Stock.
11.The business relationship between some of the Clients and their stock brokers.
12.The advice given and/or not given to some of the Clients by their respective stock brokers.
13.The identity of and the reasons why various persons and/or entities may be linked ("Linked Persons") to some of the clients and/or some of the Order Placers.
14.The business activities and/or personal circumstances of some of the Linked Persons.
15.Possible relationships between the Company and/or its officers and the Linked Persons, the Order Placers, the Clients, the stockbrokers of the Clients and/or each of them.
16.Assertions, including the evidentiary basis for these assertions, as to possible contraventions of the Code that may have been committed by some of the clients and/or some of the Order Placers.
17.Suggestions as to avenues of inquiry that the National Companies and Securities Commission may wish to pursue with respect to possible contraventions of the Code.
18.Much of the information set out above was obtained on a confidential basis by the ASX from stock brokers.
19.Methods employed by the ASX to detect and investigate possible contraventions of the Securities Industry (Western Australia) Code ("Code").
With reference to item 18, there is affidavit evidence before this Court from the Manager Surveillance for the ASX that the practice and understanding of brokers and other persons who provide information to the Market Surveillance Division of ASX that the information is kept confidential. ASX Business Rule 3.15 introduced on 17 September 1990 provides:
"(1) DEFINITIONS
For the purposes of this rule:
"Authorised Person" means the Group Managing Director or an officer or employee of the Exchange nominated to the Board by the Group Managing Director and approved by the Board; and
"Reciprocal Arrangement" means any agreement between the Exchange and any governmental agency or public or regulatory authority (in Australia or elsewhere) whose functions include the regulation or surveillance of trading in Securities or commodities (in Australia or elsewhere) which provides for the disclosure of information between the Exchange and the other party in relation to dealings in Securities and commodities (in Australia or elsewhere).
(2)PERMITTED DISCLOSURE
Information relating to the terms and circumstances of an parties to any dealings in Securities by clients may be reported to the Exchange Surveillance Department and, subject to Rule 3.15(3), the officers and employees of that Department may disclose such information to any authorised person; and
(i)to any governmental agency or public or regulatory authority which, in the proper exercise of its powers, requests that the Exchange provide the information;
(ii)pursuant to any Reciprocal Arrangement;
(iii)to any person to whom the Board delegates as authority to adjudicate on matter or discipline for the purposes of the adjudication;
(iv)to an appeal Committee of the Exchange established under Article 56 where such information is required in the performance of its duties;
(v)as required by law or an order of a court or competent tribunal or other lawful process; and
(vi)to any person to whom, in the opinion of an Authorised Person, disclosure should be made in the interests of promoting the order and good government of the Members or Member Organisations of the Exchange and the affairs of the Exchange, and the maintenance and promotion of an efficient, informed and property regulated market.
(3)CONFIDENTIALITY
Except where disclosure is permitted under Rule 3.15(2), the Surveillance Department and any authorised person will observe confidentiality in any information of the kind mentioned in Rule 3.15(2) and will not disclose confidential information to third parties."
At the time the document was prepared the ASX was required under s41(1) of the Securities Industry (Western Australia) Code 1981 to provide such assistance to the National Companies and Securities Commission ("the NCSC") or to a person acting on behalf of, or with the authority of NCSC, as the NCSC reasonably required for the performance of its functions and duties. The document was provided to the NCSC by ASX on a confidential basis pursuant to arrangements existing between those bodies with respect to exchange of information and in particular ASX reports and referrals relating to the trading of listed securities in Western Australia.
The arrangements between the ASX and the NCSC are now reflected in arrangements between the ASX and the ASC. These arrangements were reduced to writing in a Memorandum of Understanding as to market matters signed by the ASX and the ASC on 18 December 1992. Paragraphs 10, 11 and 12 of this document expressly recognise the confidentiality and market sensitivity of information passing between those two bodies in the course of conducting surveillance and investigation of market matters. Further Memoranda of Understanding between the ASC and ASX entered into on 5 November 1993 and 23 September 1994 again recognise such confidentiality. The affidavit evidence is that in the ordinary course of undertaking its lawful surveillance and reporting business activities, ASX expects the maintenance of strict confidentiality of information and documents submitted to the ASC and this is the common understanding of ASX and the ASC as reflected in the Memoranda of Understanding.
Applicant's criminal trial, conviction and appeal
The Tribunal reasons recount the evidence of the applicant that he was one of three prospectors who formed a partnership to prospect for gold in September 1988 on the Mount Gibson Station about three hundred and fifty kilometres north east of Perth. After early disappointing results, an assay on their drilling result in March 1990 showed a high gold content. The applicant and his partners sold their shares in the company for $6M and rights to royalty. The purchasers had in turn on-sold a portion of their shares and the price of the company's shares began to rise. A number of persons bought shares in the company while the price was low.
The Tribunal's reasons then recount that a confirmation drilling conducted by the purchasers indicated the previous announcement had been incorrect and that there was no gold. The company's share price dropped immediately, but a significant group of the recent share purchasers had sold their shares at the top of the market, making a significant profit just before the second announcement.
As a consequence of these events, the reasons recount, the applicant and two others were convicted of conspiracy and false pretences at a trial in June/July 1993. An appeal by them to the Full Court of the Supreme Court of Western Australia was not successful. The applicant served approximately fifteen months of a three year sentence of imprisonment.
The reasons of the Tribunal now under appeal also state:
"at the criminal trial the Sergeant in charge of police investigations gave evidence he had received a report from the respondent and passed it on to the Director of Public Prosecutions ("DPP"). In answer to questions from the applicant's lawyer he said he was not concerned about the question of share trading and price fluctuations".
The Tribunal was there referring to a passage in the cross-examination of the Sergeant which reads:
"As of 1 August did you go and investigate with the Australian Securities Commission as to the share movements in Perilya?---Yes. I developed a liaison with the Australian Stock Exchange.
Did you ascertain who it was who was buying and selling large amounts of Perilya shares?---I was told certain things by the Australian Stock Exchange but the final word was that they were not concerned as to the stock market movements.
Did you obtain any information?---Yes; they reported".
Later in cross-examination the following passage occurred:
"In the course of your investigations - I asked you about the stock market transactions earlier on and I just want to confirm with you - did you, in addition to investigating on-market transactions did you also investigate off-market transactions?---I would have to check what the Australian Stock Exchange reported back to me on. I'm not quite sure at the moment what the full extent of the report was.
You can't now recall whether you investigated off-market transactions as well as on the stock market transactions? Can you recall?---I asked the Australian Stock Exchange to advise me of their investigations of it and I have a report. I would have to check it to tell you what the extent is".
Counsel for the applicant or for the co-accused did not call for the document.
As the Tribunal recounted in its reasons, it was submitted to it by the applicant that, in accordance with DPP guideline 59 issued pursuant to s24(1) of the Director of Public Prosecutions Act 1991 (WA) which came into force on 1 November 1992, the DPP was obliged to disclose the existence of any exculpatory information to the defence. This had not occurred at the trial. He submitted to the Tribunal further that the ASC knew of the DPP's obligations under the guidelines when it handed the document to the police. The applicant therefore argued even if the information had originally been confidential, the act of handing it to the police constituted a "waiver of confidentiality". As a result the applicant submitted the provisions of the FOI Act did not apply to the document. In the alternative, the applicant argued before the Tribunal that it should find there was a public interest in rectifying procedural injustice which had occurred at a criminal trial which should override any exemption provided by the FOI Act to the document.
The DPP Guideline referred to in the reasons of the Tribunal reads as follows:
"59. When information which may be exculpatory comes to the attention of a prosecutor and the prosecutor does not intend adducing that evidence, the prosecutor will disclose to the defence-
(a)the nature of the information;
(b)the identity of the person who possesses it; and
(c)when known, the whereabouts of the person.
60.If a prosecutor knows of a person who can give evidence which may be exculpatory, but forms the view that the person is not credible, the prosecutor is not obliged to call that witness.
62.In either case, the Crown, if requested by the defence, should subpoena the person.
63.If the prosecutor possesses such exculpatory information but forms the view that the statement is not credible or that the subject matter of the statement is contentious, the prosecutor is not obliged to disclose the contents of the statement to the defence, but should inform the defence of the existence of the information and its general nature.
64.However, if the prosecutor is of opinion that the statement is credible and not contentious, then a copy of that statement should be made available to the defence in good time."
The appeal was heard in October 1993 with judgment being given on 6 May 1994. On 14 December 1993 further guidelines for disclosure of material additional to the Crown case were issued by the DPP but are not contended as having any relevance to the present application. No issue concerning the guidelines was raised on the appeal against conviction. The position is therefore that notwithstanding no call for the document in the course of his defence during the criminal trial and no reliance upon non-production of the document in the argument on his appeal, the applicant now seeks access to the document and seeks to argue that any applicable exemptions found by the Tribunal to be applicable under the FOI Act should yield to wider public interest considerations arising from the way the document was made available to the police and then dealt with at trial.
Tribunal's reasons
In its reasons the Tribunal stated that the main thrust of the submissions of both the ASC and the ASX was that the exemptions provided by subss37(1)(b) and (2)(b) were applicable. Those provisions read:
"37(1) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:
(a)...;
(b) disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of law; or
(c)...;
(2) A document is an exempt document if its disclosure under this act would, or could reasonably be expected to:
(a)...'
(b) disclose lawful methods or procedures for preventing, detecting, investigating, or dealing with matters arising out of, breaches or evasions of the law the disclosure of which would, or would be reasonably likely to, prejudice the effectiveness of those methods or procedures;
...".
With reference to some additional reasoning to which it is presently not necessary to go, the Tribunal reached the following conclusions:
"16. The Tribunal finds that the disclosure of the document would disclose lawful methods or procedures which would be reasonably likely to prejudice the effectiveness of those methods or procedures as set out in s37(2)(b) of the FOI Act.
17.It also finds that disclosure could reasonably be expected to disclose or enable a person to ascertain the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law as set out in s37(1)(b) of the FOI Act.
18.The Tribunal is unable to find any head of public interest which would influence the Tribunal to order disclosure in the face of these very serious considerations. Section 37 does not provide for an exception in the case of public interest and in any event the Tribunal is not satisfied that there was any procedural unfairness raising a question of public interest as the document is not exculpatory of the applicant and its existence was in any event disclosed at the criminal trial and was the subject of cross-examination.
19.Having reached this conclusion regarding the application of s37 of the FOI Act it is not necessary to proceed to consider the submissions in relation to ss40, 43 and 45 of the FOI Act".
Principles relating to extension of time
The range of considerations which may be relevant to the exercise of the Court's discretion to grant or refuse an application for extension of time to lodge a notice of appeal are not limited but likely relevant considerations were considered by Wilcox J in the well known statement in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-50. It is appropriate to mention that the following are among such relevant considerations: (1) The Court will not grant the application unless positively satisfied that it is proper to do so. This involves the discharge by the applicant of the burden of showing "an acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time. (2) Action taken by the applicant apart from the application is relevant to the question. (3) Prejudice to the respondent is a material factor. (4) The mere absence of prejudice is not enough to justify the grant of an extension. (5) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (6) Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant.
As has been stated, the application was dated the day of the expiration of the period within which the applicant could have appealed as of right. His explanation for delay in not lodging a notice of appeal was that, as an unrepresented person, he had had commitments which did not allow him the time necessary to research for, prepare, file and serve the notice of appeal. His evidence was he had been and was on 8 March 1996 still working on a mine in the Eastern Goldfields. While the explanation is not sufficient
to establish an acceptable explanation of the delay, the respondents base their case against the grant of the application on the absence of merit in the application. It is said for them that the grounds of appeal do not raise any question of law or any meritorious question of law as is required by s44(1) of the AAT Act: cf Repatriation Commission v Tuite (1992) 37 FCR 571 at 577.
On behalf of the second respondent it is contended that, even if the appeal had been instituted within time, the respondents would have been obliged in terms of the current practice of the Court to bring on a motion under O52 r18(1) of the Rules of the Federal Court of Australia ("FCR") prior to the hearing of the appeal for its dismissal (see Arrow Crest Group Pty Ltd v Gill (1993) 46 FCR 90 at 98-9) or to have moved to strike-out the appeal under FCR O53 r15 or s23 of the Federal Court of Australia Act 1976 (Cth): cf Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515.
It is therefore appropriate to turn to the questions of law and grounds identified by the applicant as the proposed basis of the appeal if the extension is granted.
Questions of law proposed for the appeal
In a draft notice of appeal the applicant identifies the following proposed questions of law:
"a) Are the Australian Stock Exchange Ltd ("ASX") and/or the ASC legally able to form an agreement between themselves which dispenses with s135 and/or s143 of the Western Australian Criminal Code ("the Code") and/or which obstructs the administration of criminal justice.
b)Are the ASX and/or the ASC legally able to form an agreement with a third party which dispenses with s135 and/or s143 of the Code and/or which obstructs the administration of criminal justice.
c)Can the Tribunal recognise the terms of an agreement which in its operation dispensed with s135 and s143 of the Code and/or which obstructed the administration of criminal justice.
d)Can the Tribunal sanction the fruits of an agreement which in its operation dispensed with s135 and s143 of the Code and/or which obstructed the administration of criminal justice.
e)Can the Tribunal accept as valid the exemptions contained within the Freedom of Information Act 1982 ("FOI Act") when the relevant exemptions are only available because of an agreement which in its operation dispensed with s135 and s143 of the Code and/or which obstructed the administration of criminal justice.
f)Can the Tribunal be directed by a higher court to correct a written decision when that written decision contains significant errors of fact and evidence".
It will be noted that each of these so called questions of law turns upon the assertion by the applicant of the existence of an agreement between the ASC and the ASX to obstruct the administration of criminal justice or the existence of an agreement which presumably had that intent or purpose ("the alleged agreement"). There is no finding of fact in the reasons of the Tribunal of the existence of such agreement. The only evidence relevant to that issue is a series of memoranda of understanding between the ASX and the ASC for the purpose of giving lawful effect to the responsibilities and functions each has with respect to regulation of the market for listed securities. Grounds (a) to (e) raise no relevant question of law although ground (e), absent the reference to the agreement, directs attention to the validity of the application of the exemptions to which reference will follow. Ground (f) does not raise a relevant question of law.
Grounds of appeal
There are eight proposed grounds of appeal. The first is simply an assertion of fact and not a valid ground. The second, third and fourth all rely on the existence of the alleged agreement in relation to which no finding of fact was made by the Tribunal so there is nothing to which those grounds could apply.
Waiver
The fifth ground of appeal states the Tribunal erred when it did not conclude that the confidentiality of the document had been waived when information was furnished to the Sergeant during the criminal investigation of the offences of which the applicant was convicted. The ground contends the protection of the exclusion clauses of the FOI Act could not apply.
In its terms the ground includes a statement that the Tribunal had before it evidence showing (i) the ASC furnished the document to the Sergeant during the criminal investigation on a confidential basis; (ii) the DPP Guidelines required that evidence which may be exculpatory must be disclosed to the defence; (iii) the failure of the ASC to apply to have the document declared confidential during the criminal trial of the applicant constituted a waiver of confidentiality by it in respect of the document.
In this ground and in his written submission the applicant starts from the proposition that the Tribunal had first to determine if the document was confidential. That was not the issue before the Tribunal. The issue was whether the document was such that it fell within the description of either of the classes of document exempted by operation of ss37(1)(b) or (2)(b). The grounds of exemption do not themselves involve a consideration of "confidentiality" save to the extent that in s37(1)(b) it is necessary for the Tribunal to have formed the view that the disclosure of the document would, or could reasonably be expected to, disclose, or enable a person to ascertain, the existence or identity of a "confidential source of information, or the non‑existence of a confidential source of information, in relation to the enforcement or administration of the law" the applicant's submissions concerning confidentiality and waiver are therefore to be approached as submissions directed to the loss of confidentiality of the sources of information as a consequence of the way the document was used.
As appears from the formulation of the ground, the applicant accepts the document was provided to the Sergeant for the purposes of criminal investigation "on a confidential basis". It is not therefore the act of passing the document to the police which is said to constitute a waiver of confidentiality attaching to sources referred to in it.
Additionally, evidence uncontested before the Tribunal positively excluded any finding of waiver of any relevant confidentiality in the passing of the document for the purposes of criminal investigation. An affidavit of Katherine Hitchins of the Office of the DPP deposed that all documents provided to the office for the purposes of current or anticipated criminal prosecutions are treated as confidential and that the document was not circulated to the Court or to applicant's counsel at the trial or to scientists for expert opinion. In addition, there was evidence of a letter from the Sergeant to the ASC that to the best of his recollection he received the document on the basis it was confidential and for intelligence purposes relevant to the fraud inquiry only. He deposed the document was amongst papers gathered during the course of the inquiry which were passed to the State DPP for information during the conduct of the criminal prosecution.
The argument of confidentiality was considered by the Tribunal (par8 of its reasons) and rejected by its finding (par10).
The absence of any application by the ASC for a confidentiality order is directly the consequence of the way in which the applicant's defence was conducted at trial. The essential fact is that there is no evidence that his defence called for any ASX documents or information which he or the prosecution possessed so that the matter could have then be dealt with in accordance with the well established procedures. Had there been a call for production, the issue of production could then have been dealt with before the Court. The failure to bring an application for refusal of production when there was no call for it cannot constitute a waiver of such confidentiality as the document attracted. To hold otherwise would be to confuse a reference to the existence of the document (by the Sergeant) with full disclosure of its contents, which clearly was not made. In the result, the document has retained its confidential status at all times: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 and British Coal Corporation v Dennis Rye (No 2) [1988] 1 WLR 1113. In Cockcroft's case it was held that the majority of a Tribunal erred in holding that the conduct of a company in forwarding a copy of a letter to an association was capable of characterising subsequent dealings between the parties as lacking the necessary quality of confidence.
In my opinion there is no merit in the proposed ground in which the applicant seeks to argue that the exclusion clauses of the FOI Act did not apply, and the Tribunal should have so held, because of the previous waiver of confidentiality of sources because the ASC did not make an application to preserve confidentiality at trial.
Public interest
The applicants' proposed sixth ground reads:
"The Tribunal erred when it found that either:
i) the confidentiality agreement between the ASX and/or the ASC and or third parties was superior law to the Statute Law of Western Australia (specifically s135 and s143 of the Code) and the Common Law of Australia, or
ii) the ASX and/or the ASC and/or third parties had an agreement which allowed them to dispense with the law and engage in illegality and which the Tribunal could and would enforce."
The sections of the Criminal Code (WA) referred to create the offences of conspiring and attempting to conspire to defeat justice.
The short point showing the unarguability of this ground is that the Tribunal made no such findings. In support of the ground, however, the applicant seeks to contend on a wider basis that public interest considerations arising from the need for justice to be done in the criminal process should override the exemptions.
The starting point for assessing the merit of the proposed argument is that neither of the grounds of exemption relied upon by the Tribunal are subject to any public interest exception. The exemptions are applicable in their terms. It is beyond argument that the Tribunal could not have found either of the exemptions upon which it relied to not be applicable because of the consideration of public interest. Not only is there no statutory provision to that effect in the FOI Act but it cannot be the case that even if the State DPP had breached the Guidelines at the applicant's criminal trial, such conduct would create an exception to a Federal statute.
The seventh ground of appeal contends that the Tribunal was in error in the way in which it described the nature of the Sergeant's response in cross-examination to the questions directed to him. It is accepted for the respondents that such is the case. That is an error of fact so no arguable error of law is disclosed thereby.
Paragraph 18
In relation to par18 of the Tribunal's reasons the eighth ground of appeal seeks to contend firstly, there is an arguable error of law present because the evidence available to the Tribunal did not enable it to determine whether the document might be exculpatory of the applicant. In particular it is said the Tribunal did not have available those parts of the criminal trial transcript which dealt with motive. In oral argument the applicant presses the view that, even if the document was not exculpatory of him personally, it may have had relevance to the involvement of others and hence to raising the question of a reasonable doubt in his case. Even if the Tribunal was in error in stating the document was "not exculpatory of the applicant" that would not create the condition which would have entitled the Tribunal to set aside the exemption applicable to the document. The finding that the document was not exculpatory of the applicant is not an essential part of the Tribunal's finding that s37 does not provide for a public interest exception, which is the end of the matter.
Secondly, it is sought to argue as part of this ground that the evidence given by the Sergeant disclosed the existence of the document so that he may have committed perjury about its contents. It is contended such cannot be conduct in the public interest. There was no evidence before the Tribunal upon which any finding of the possibility of perjury was open. Again there is no merit in this ground as it seeks to contend for the existence of a public interest exception to the relevant exemptions under the FOI Act applied by the Tribunal.
Inspection
As appears from par18 of the reasons of the Tribunal, the Tribunal exercised its independent right of inspection of the document. To this point these reasons have been prepared without inspection of the document. It was common ground the Court could inspect the document on this application. Having inspected the document I do not consider it could be open to argument that the document is not exempt pursuant to s37(1)(b) and s37(2)(b).
For these reasons the proposed grounds of appeal are without merit. In those circumstances the weight of factors relevant to the exercise of the discretion to grant an extension of time is markedly against the grant of the extension. Accordingly I refuse the application.
I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date:
APPEARANCES
The applicant appeared in person
Counsel for the First Respondent: Mr J Longo
Solicitors for the First Respondent: Australian Securities Commission
Counsel for the Second Respondent: Dr H Schoombee
Solicitors for the Second Respondent: Australian Stock Exchange
Date of Hearing: 16 May 1996
Date of Judgment: 25 June 1996
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