McIvor and Australian Securities and Investments Commission

This matter concerned a request by the liquidator of Equititrust for access to documents that had been provided to the Administrative Appeals Tribunal by Mr McIvor. Mr McIvor had initially sought a review of a decision by the Australian Securities and Investments Commission (ASIC) concerning his role at Equititrust, but he withdrew his application before a final hearing. The liquidator also sought access to the documents directly from ASIC via a freedom of information request.

The primary legal issue before the Tribunal was whether the liquidator should be granted access to the documents that Mr McIvor had provided to ASIC and subsequently to the Tribunal, despite the withdrawal of Mr McIvor's review application. This involved considering the competing interests of the liquidator in obtaining information relevant to the winding-up proceedings, Mr McIvor's interest in preserving his privacy, and ASIC's obligations to protect confidential information.

Deputy President McCabe P reasoned that the Tribunal's role in promoting good government included encouraging parties to access relevant information through established processes that adequately protect privacy and other interests. The Tribunal noted that the documents had not been admitted into evidence or considered in a final hearing, distinguishing the situation from cases where reasons for a decision are published. While acknowledging the liquidator's legitimate interest and the public interest in shedding light on the collapse of Equititrust, the Tribunal found that the request was overly broad and could constitute a "fishing expedition." Furthermore, ASIC had statutory obligations to protect confidential information, and the burden of redacting such information would be unduly burdensome.

Consequently, the Tribunal ordered that the liquidator be denied access to the material. The liquidator was advised to pursue access through further applications under the Freedom of Information Act or by utilising the information-gathering powers available in Federal Court proceedings, which would allow for proper consideration of any claims for exemptions and contested release of documents.