Reported Decision:
68 ACSR 412
New South Wales
Supreme Court
CITATION: Shipley v Masu Financial Management [2008] NSWSC 1187 HEARING DATE(S): 21/10/08
JUDGMENT DATE :
22 October 2008JURISDICTION: Equity JUDGMENT OF: White J EX TEMPORE JUDGMENT DATE: 22 October 2008 DECISION: Refer to paras 41-43 and 45-47 of judgment. CATCHWORDS: PRACTICE AND PROCEDURE – subpoenae – subpoena issued on ASIC following examinations – legitimate forensic purpose – on the cards that material will assist the plaintiffs’ case – claim for confidentiality outweighed by the interests of the plaintiffs and the public – subpoena not set aside but production limited in the first instance to legal representatives - CORPORATIONS – ASIC – examinations – confidentiality of examinations – s 127(1)(a) ASIC Act requires ASIC to take all reasonable measures to protect confidentiality of information elicited in examinations against unauthorised use or disclosure – whether ASIC required to assert claims of privilege and inspection pursuant to Court’s order not an unauthorised use or disclosure production to the Court – ASIC not a party – evidence did not establish that ASIC could have claimed privilege – not established that ASIC failed to take all reasonable measures to protect the confidentiality of the information LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)CASES CITED: Johns v Australian Securities Commission (1993) 178 CLR 408
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138; (2000) 18 ACLC 609
Saleam v R (1989) 16 NSWLR 14
National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372
R v Saleam [1999] NSWCCA 86
Attorney General (NSW) v Chidgey [2008] NSWCCA 65
DPP v Selway [2007] VSC 244
Ragg v Magistrates’ Court of Victoria [2008] VSC 1PARTIES: James Shipley and Patricia Shipley in their own right and as representative for the persons in Sched A to the Originating Process
v
Masu Financial Management Pty LtdFILE NUMBER(S): SC 1817/07 COUNSEL: Plaintiffs: R G Forster SC & A J Abadee
Defendant: D L Williams SCSOLICITORS: Plaintiffs: Slater & Gordon
Defendants: Gilchrist Connell
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WHITE J
Wednesday, 22 October 2008
1817/07 James Shipley and Patricia Shipley in their own right and as representative for the persons in Sched A to the Originating Process v Masu Financial Management Pty Ltd
JUDGMENT
1 HIS HONOUR: The plaintiffs issued a subpoena to the Australian Securities and Investments Commission (“ASIC”) for the production of records of examinations conducted under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”) of directors, officers or agents of the defendant, and any related books.
2 ASIC produced 19 folders of documents in response to the subpoena. The defendant and three of its officers, who were examined under s 19 of the ASIC Act, seek to restrain the plaintiffs from having access to the transcripts of the examination…
Keep reading for free
Create a free CaseChat account to read Shipley v Masu Financial Management Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2008] NSWSC 1187
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the issuance of the subpoena was justified given the statutory obligation of ASIC to protect the confidentiality of information obtained during examinations. A key issue was whether compelling ASIC to assert claims of privilege and inspection pursuant to the court's order constituted an unauthorised use or disclosure of the information. The court also needed to consider whether ASIC had failed to take all reasonable measures to protect the confidentiality of the information as required by section 127(1)(a) of the ASIC Act.
The court ruled that while the plaintiffs had demonstrated a legitimate forensic purpose and that there was a strong likelihood the material would assist their case, the claim for confidentiality was outweighed by the interests of the plaintiffs and the public. The court decided not to set aside the subpoena but limited the initial production of the documents to the legal representatives of the parties. ASIC was found not to be a party to the proceedings, and it was not established that ASIC could have claimed privilege. The evidence did not demonstrate that ASIC had failed to take all reasonable measures to protect the confidentiality of the information.
The final orders included a direction that the documents be produced to the Court initially for inspection by legal representatives only, pending further orders. This decision highlights the balancing act between the need for confidentiality in regulatory examinations and the interests of justice in individual cases.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.