Kelly v Hilton [No 3]

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.