In the matter of Restech International Ltd (ARBN 003 060 455) & Ors. Australian Securities Commission v Restech International Ltd

[1993] FCA 324

I

l

324  1 1q43

JUDGMENT NO. ...11111.11.11u111 .1111111u11.

C A T C H W O R D S

PRACTICE AND PROCEDURE - notice to produce documents - claim to public interest immunity and legal professional privilege.

Alister v The Oueen (1983-84) 154 CLR 404
Commonwealth of Australia v Northern Land Council (1991) 30
FCR 1

Grant v Downs (1976) 135 CLR 674

National Em~lo~erS' Mutual General Insurance Association Ltd v

Waind (1979) 141 CLR 648

V Q& (1984-85) 59 ALR 225

Zarro v Australian Securities Commission (1992) 10 ACLC

REGISTRY

LEE J. SYDNEY 31 MARCH 1993

RECEIVED

2 OMAY 1993

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
NEW SOUTH WALES	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. NG 3044 OF 1992

IN THE MATTER OF
RESTECH INTERNATIONAL LIMITED

(ARBN 003 060 455) AND OTHERS

B E T W E E N :  AUSTRALIAN SECURITIES COMMISSION

Applicant

and

RESTECH INTERNATIONAL LIMITED

First Respondent

and

RESTECH AUSTRALIA PTY. LIMITED

(ACN: 000 682 191)

Second Respondent

and

TECHNOMIN AUSTRALIA NL

(ACN: 010 216 322)

Third Respondent

and

HUNTER RESOURCES LIMITED

(ACN: 010 267 428)

Fourth Respondent

and

JOHN CAMERON ROWNTREE

Fifth Respondent

and

JOHN LESLIE THOMPSON

Sixth Respondent

and

ROBERT FRANCIS USHER

Seventh Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: LEE J.

DATE OF ORDER:	31 MARCH 1993
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant is not required to produce documents 3,

   4, 6 and 7 as set out in part 2 of the schedule of the

   affidavit of Geoffrey Shelley sworn 12 March 1993.

   The applicant is not required to produce the documents described in the further affidavit of Geoffrey Shelley sworn 30 March 1993.

   Access to the documents the applicant has lodged with

made available to the respondents not before 8 April the Court pursuant to the notice to produce is to be 1993.

The respondents are to advise the applicant whenever they wish to avail themselves of the right to inspect the documents produced pursuant to the notice.

Note:  Settlement and entry of orders is dealt with
in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
NEW SOUTH WALES	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. NG 3044 OF 1992

IN THE MATTER OF
RESTECH INTERNATIONAL LIMITED

(ARBN 003 060 455) AND OTHERS

B E T W E E N :  AUSTRALIAN SECURITIES COMMISSION

Applicant

and

RESTECH INTERNATIONAL LIMITED

First Respondent

and

RESTECH AUSTRALIA PTY. LIMITED

(ACN: 000 682 191)

Second Respondent

and

TECHNOMIN AUSTRALIA NL

(ACN: 010 216 322)

Third Respondent

and

HUNTER RESOURCES LIMITED

(ACN: 010 267 428)

Fourth Respondent

and

JOHN CAMERON ROWNTREE

Fifth Respondent

and

JOHN LESLIE THOMPSON

Sixth Respondent

and

ROBERT FRANCIS USHER

Seventh Respondent

C O W : LEE J.
DATE : 31 MARCH 1993

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

I have taken the opportunity to look through the papers and I will give short reasons now as to what I have determined. This motion involves the return of a notice to produce documents. The notice is directed to the applicant by the respondents. A list of discoverable documents has already been provided by the applicant in this proceeding.

The applicant objects to the production of some of the
documents soughtin the notice on the grounds of public interest

immunity, legal professional privilege and lack of relevance.

Not all grounds apply to all documents. I have received helpful

submissions from the solicitor for the applicant and counsel for the respondent and have been invited by them to peruse the documents to decide the issues raised.

I agree that in a case such as the present, as discussed in Youna v Ouin 59 ALR 225 and in Zarro v Australian Securities Commission (1992) 10 ACLC at 831, it is a matter of discretion for the judge to determine, according to whether the issues are properly raised, as to whether it is necessary to look at the documents to make a proper determination of the claims raised. I am satisfied that in this case that it is appropriate for me to look at the documents and I have so inspected them.

In doing so, I have had regard to the principles in respect to public interest immunity as set out in Alister v The gueen 154 CLR 404 and as discussed by the Full Court of this Court in Commonwealth of Australia v Northern Land Council 30 FCR 1. With regard to the matter of legal professional privilege the principles, of course, are well known and set out in National Ernolovers Mutual General Insurance Association Ltd v Waind 141 CLR 648 following upon the earlier decision of the High Court in Grant v Downs 135 CLR 674.

Having had regard to those principles and then perusing

the documents I have come to the following conclusions: In

Geoffrey Shelley sworn 12 March 1993 (hereafter the first	respect of document number 1 in part 2 of the affidavit of
affidavit of Shelley) I am not satisfied that any claim of public interest immunity can be made out. I am also satisfied that the document has some relevance to the issues in the proceeding and I therefore consider that there should be no order excluding it from production.
As to the document number 2 in part 2, of the first affidavit of Shelley I am again not satisfied that any public interest immunity attaches to that document or that any public purpose would be served by declining to provide for the production of the document. The Australian Stock Exchange is obliged to assist and in this case is only providing material that the corporations themselves were obliged to submit to the Stock Exchange. The material has some relevance to the issues in this proceeding and so I will decline to direct that it be excluded from production.
In regard to documents 3 and 4, I am not satisfied that the material in these documents has any relevance at all to the proceedings and I will not order the production or, in the terms of the motion, will make an order that the documents be excluded from production.
With regard to document 5 I can see why the issue of public interest immunity is raised in that it is an internal
document but having perused it I am satisfied that its contents involves no disclosure of method or system that begs protection.
The document has some relevance to the issues, is minor in nature amounting to little more than a note-making record and for these reasons I will decline to order that it be excluded from production.
I consider documents 6 and 7 to be quite irrelevant to the proceedings. The immunity claim raised in respect of them is not strong but in the absence of relevance the documents should be excluded from production.
I am unable to discover on the face of Documents 8 and 9 any ground for a claim of legal professional privilege. It appears that the documents were generated as part of an information gathering exercise. They are provided to an investigating officer who may also have other functions within the commission but the fact remains that the prime purpose that led to the generation of the documents was the gathering of facts as part of an investigatory process. The reasoning of the High Court in Grant v Downs at 685 as to why the privilege exists indicates that these documents do not come within the purpose of the rule.
There may be interesting questions raised about the role and function and the consequences of those functions being
carried out by an employed solicitor of a corporation or Commission but when one bears in mind that the Commission has a
prime investigatory role in which solicitors may be involved as investigators in addition to performing their professional functions, one has to look very closely at the documents before one can lay claim to legal professional privilege. As I have indicated, I am not satisfied that the claim can be maintained in relation to documents 8 and 9. They have relevance and, therefore, there should be no order excluding them from production.
Having perused the affidavit of Geoffrey Shelley sworn 30 March 1993 (hereafter the second affidavit of Shelley) and the documents identified in respect of which exclusion from production or from obligation to produce is claimed I have concluded that the documents are irrelevant to the proceedings. In addition there is an element of public interest to be served by the non-disclosure of the documents which may be outweighed in other circumstances but certainly not in the circumstances of this case and I will, therefore, order that those documents not be subject to the obligation to produce under the notice.
In summary, therefore, the motion will be dealt with in the following way and in particular in relation to paragraph 3 of the motion; it will be ordered that the applicant is not required to produce documents 3, 4, 6 and 7 set out in part 2 of
the schedule of the affidavit of Geoffrey Shelley sworn 12 March 1993 and it will be ordered also that the applicant not be
required to produce the documents described in the further affidavit of Geoffrey Shelley sworn 30 March 1993.
Access to documents that have been produced without objection is to be provided to the respondent by the Court as required. The respondent is to advise the applicant whenever it wishes to avail itself of the right to inspect these documents. The applicant may uplift the documents I have directed not be produced and leave the rest in Court. Access to the documents that remain is to be made available to the respondent not before
8 April.
In regard to the matter of costs having heard counsel it will be ordered that the costs of the application be costs in the cause of the applicant.

I certify that the preceding
seven (7) pages are a true copy of the

Reasons for Judgment of his Honour M r Justice Lee.

-	f	e	t	a	i	c	o	s	A
Date :

3'>3,79

Australian Securities Commission: P.N. Riordan

Counsel for the Respondents: S.J. Archer
Solicitors for the Respondents: Smits Leslie Barwick

Date of Hearing: 31 March 1993 Date of Judgment: 31 March 1993