Kelly v Hilton [No 3] - [2023] WASC 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KELLY -v- HILTON [No 3] [2023] WASC 235
CORAM:   STRK J
HEARD:   31 JANUARY 2023 & ON THE PAPERS FILED
DELIVERED          :   29 JUNE 2023
FILE NO/S:   CIV 2228 of 2020
BETWEEN:   ALLAN JOHN KELLY
First Plaintiff
ALLAN JOHN KELLY AS TRUSTEE FOR THE KELLY FAMILY TRUST
Second Plaintiff
XGS PTY LTD AS TRUSTEE FOR THE KELLY SUPERANNUATION FUND
Third Plaintiff
DEBNAL PTY LTD
Fourth Plaintiff
AND
JOHN CHARLES HILTON
Defendant

Catchwords:

Practice and procedure - Subpoena to produce issued to the Australian Securities and Investments Commission - Corporations Act 2001 (Cth) pt 9.4AAA (protection for whistleblowers) - Information not to be disclosed to a court or tribunal - Exception to prohibition if s 1317AG(c) or (d) applies - Application made seeking exemption under s 1317AG(d) - Production of documents to a court where the court thinks production necessary in the interests of justice

Legislation:

Corporations Act 2001 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Category: A

Representation:

Counsel:

First Plaintiff	:	SB Nadilo
Second Plaintiff	:	SB Nadilo
Third Plaintiff	:	SB Nadilo
Fourth Plaintiff	:	SB Nadilo
Defendant	:	D Banda
Interested Party	:	R Chiarella for the Australian Securities and Investments Commission (31 January 2023) & A Willinge (on papers)

Solicitors:

First Plaintiff	:	HHG Legal Group
Second Plaintiff	:	HHG Legal Group
Third Plaintiff	:	HHG Legal Group
Fourth Plaintiff	:	HHG Legal Group
Defendant	:	Bennett + Co
Interested Party	:	Australian Government Solicitor

Case(s) referred to in decision(s):

Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404
Attorney-General (NSW) v Lipton [2012] NSWCCA 156; (2012) 224 A Crim R 177
Attorney-General (NSW) v Nationwide News Pty Ltd [2007] NSWCCA 307; (2007) 73 NSWLR 635
Brown v Commissioner, Australian Federal Police (1988) 15 ALD 318; (1988) 83 ALR 477
Commonwealth of Australia v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Earglow Pty Ltd v Newcrest Mining Ltd [2015] FCA 328; (2015) 324 ALR 316
El Ossman v Minister for Immigration and Border Protection [2017] FCA 636; (2017) 248 FCR 491
Kelly v Hilton [2021] WASC 369
Kelly v Hilton [No 2] [2022] WASC 374
LM Investment Management Ltd (ACN 077 208 461) (in liq) (recs and mgrs apptd) (as responsible entity of the LM First Mortgage Income Fund) v Bruce [2014] QCA 136; (2014) 102 ACSR 481
National Crime Authority v Gould (1989) 23 FCR 191; (1989) 90 ALR 489
Parkin v O'Sullivan [2009] FCA 1096; (2009) 260 ALR 503
Rochfort v Trade Practices Commission [1982] HCA 66; (1982) 153 CLR 134

Table of Contents

Introduction

Claims made in this proceeding and applications now agitated

Procedural history - the first application

Evidence

The submissions

Mr Hilton's position

The plaintiffs' position

ASIC's position

When the application of s 1317AG is in issue

Section 1317AG(d)

Disposition

Statutory context

Section 1317AG

Application of s 1317AG

Is production by ASIC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASC 235
Decision Date

CaseChat Overview and Summary

In Kelly v Hilton [No 3], the Supreme Court of Western Australia was asked to determine whether the Australian Securities and Investments Commission (ASIC) was required to comply with a subpoena to produce documents under the Corporations Act 2001 (Cth). The subpoena was issued to ASIC at the request of the defendant, John Charles Hilton, and sought documents recording complaints or statements made by Allan John Kelly regarding Riversgold Limited or Mr Hilton on or after 1 June 2019. ASIC considered itself precluded from complying with the subpoena due to section 1317AG of the Corporations Act, which provides that a person is not to be required to disclose to a court or tribunal information that is likely to lead to the identification of a whistleblower, unless certain exceptions apply.

The court held that section 1317AG applies only if a person has made a disclosure of information that qualifies for protection under the Corporations Act. The court found that ASIC was not required to produce documents to the court if the discloser had made a disclosure of information that qualified for protection under the Corporations Act. The court also held that the exception in section 1317AG(d) applies only if the court thinks it necessary in the interests of justice to make an order for disclosure or production. The court considered various factors, including the context in which the application was made, the proposed use of the information or documents, and the views of the discloser, in determining whether production was necessary in the interests of justice.

In this case, the court found that production was necessary in the interests of justice because the documents sought by the subpoena were relevant to the issues for determination in the proceeding, and there was no risk of victimisation or prejudice to the discloser. The court granted the application and ordered ASIC to produce the documents within five business days of the date of the order.

Orders