P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2)

P Dawson Nominees Pty Ltd and another sought to enforce a subpoena issued to the Australian Securities and Investments Commission (ASIC) seeking the production of documents and transcripts from ASIC's investigation of Multiplex. ASIC resisted on the basis of public interest immunity (PII). The applicants sought to re-litigate the issue of whether the documents were subject to PII, arguing that new evidence had come to light that was not available at the time of the earlier hearings. Multiplex opposed the application, arguing that the applicants had not demonstrated new evidence or materially changed circumstances sufficient to justify re-litigation of the PII issue.

The central legal issue was whether the applicants had demonstrated exceptional circumstances warranting the re-litigation of the PII issue. The Court found that the broadcast of a "Four Corners" program and subsequent media reports, which were not previously disclosed to the applicants, constituted new evidence that was not reasonably available at the time of the earlier hearings. This new evidence suggested that an informer may have been involved in ASIC's investigation, which was not previously apparent. The Court concluded that this constituted a material change in circumstances and exceptional circumstances warranting re-litigation of the PII issue.

The Court granted the applicants' motion, finding that it was in the interests of justice to allow the re-litigation of the PII issue in light of the new evidence. The Court found that the applicants were not given an opportunity to bring the new evidence to the Court's attention due to the nature of the correspondence, the ex parte nature of the earlier hearings, and the imposition of the Special Counsel regime. The Court exercised its discretion under relevant authorities to permit the re-litigation of the PII issue.

The Court ordered that the applicants' motion be heard and determined on its merits. The Court also found that the circumstances upon which the applicants relied constituted either a material change in circumstances since the original application or the discovery of new material, warranting the exercise of the Court's discretion in favour of allowing the re-litigation of the PII issue.