Ryan v Australian Securities and Investments Commission

[2006] FCA 1451

FEDERAL COURT OF AUSTRALIA

Ryan v Australian Securities and Investments Commission; in the matter of Allstate Explorations NL (Subject to Deed of Company Arrangement) [2006] FCA 1451

PRACTICE AND PROCEDURE – discovery – reports specifically referred to in recommendation to decision-maker to be produced

IN THE MATTER OF ALLSTATE EXPLORATIONS NL (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 679 023
MICHAEL JOSEPH PATRICK RYAN AND ANTONY WOODINGS v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, MATTHEW GILL AND MACQUARIE BANK LIMITED
NSD 1879 OF 2006

GYLES J
2 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1879 OF 2006

IN THE MATTER OF ALLSTATE EXPLORATIONS NL (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 679 023

BETWEEN:

MICHAEL JOSEPH PATRICK RYAN AND ANTONY WOODINGS
Applicants

AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
First Respondent

MATTHEW GILL
Second Respondent

MACQUARIE BANK LIMITED
Third Respondent

JUDGE:	GYLES J
DATE OF ORDER:	2 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

Pursuant to O 15, r 11 of the Federal Court Rules, the first respondent produce for inspection the ‘reports contained in SPEAR ID 02-70010’, referred to at paragraph 3 of document number 24 of the first respondent’s list of documents filed on 20 October 2006.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1879 OF 2006

IN THE MATTER OF ALLSTATE EXPLORATIONS NL (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 000 679 023

BETWEEN:

MICHAEL JOSEPH PATRICK RYAN AND ANTONY WOODINGS
Applicants

AND:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
First Respondent

MATTHEW GILL
Second Respondent

MACQUARIE BANK LIMITED
Third Respondent

JUDGE:	GYLES J
DATE:	2 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. So far as the categories of documents are concerned in paragraph 1 of the notice of motion which I have been considering, a good deal of my thinking will have been revealed in the course of the debate which has been recorded in the transcript, but I will just run through those documents and indicate a short basis for my rulings. 

2. As regards the documents referred to in paragraph 1(a), in my view, the recommendation which went to the decision-maker expressly referred to and identified the particular reports concerned.  Although I do not equate the recommender with the decision-maker in this case, it seems to me that the specific reference to that material which was before that party brings it within the penumbra which is reasonably producible on discovery.

3. In my opinion, paragraphs 16 and 23 of the recommendation to which reference is made in paragraph (b) of the motion, do not identify documents which were before the decision-maker in the sense to which I have just referred. 

4. Paragraph (d) is a coverall and I do not think anything is gained from that category.

5. Although in a very broad sense, the documents described in paragraph (e), dealing with ‘the criteria’, could be described as being before the decision-maker, it seems to me that that is stretching that concept too far in the present case.  It is true that the recommender obviously gave thought to these criteria in the course of his mental processes, but what use is made of them, if any, in forming his view is quite unclear.  I do not think this is sufficient to link it with any claim for relief.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        7 November 2006

Counsel for the Applicants:	Mr N Perram SC with Mr B Dharmananda
Solicitor for the Applicants:	Mallesons Stephen Jaques
Counsel for the First Respondent:	Dr AG Bell SC, Mr JS Emmett
Solicitor for the First Respondent:	Ms K Turner of Australian Securities and Investments Commission
Solicitor for the Second Respondent:	Ms J Row of Henry Davis York
Counsel for the Third Respondent:	Mr SA Goodman
Solicitor for the Third Respondent:	Clayton Utz

Date of Hearing:	2 November 2006
Date of Judgment:	2 November 2006