Somerville, H.R. v Australian Securities Commission
[1995] FCA 125
•3 MARCH 1995
CATCHWORDS
PRACTICE AND PROCEDURE - Discovery - production of documents for inspection - privilege - legal professional privilege - public interest immunity - documents arising out of an investigation into certain matters by the Australian Securities Commission and the commencement of proceedings by the Commission in the name of various persons in relation to those matters
Australian Securities Commission Act 1989 s50
Federal Court Rules O 15 r 11
Sankey v Whitlam (1978) 142 CLR 1
Spargos Mining NL & Anor v Standard Chartered Aust Ltd & Ors (No 1) (1989) AC&SR SC(NSW) 311
Zarro v Australian Securities Commission (1992) 36 FCR 40
HUGH ROSS SOMERVILLE AND OTHERS v AUSTRALIAN SECURITIES COMMISSION AND OTHERS
No VG 188 of 1993
No VG 190 of 1993
No VG 205 of 1993
NORTHROP J
MELBOURNE
3 MARCH 1995
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 188 of 1993
GENERAL DIVISION
B E T W E E N :
HUGH ROSS SOMERVILLE AND OTHERS
Applicants
A N D :
AUSTRALIAN SECURITIES COMMISSION AND OTHERS
Respondents
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 3 MARCH 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The applicants motion notice of which is dated 30 August 1994 is refused.
The costs of the motion be costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 190 of 1993
GENERAL DIVISION
B E T W E E N :
HUGH ROSS SOMERVILLE AND OTHERS
Applicants
A N D :
AUSTRALIAN SECURITIES COMMISSION AND OTHERS
Respondents
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 3 MARCH 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The applicants motion notice of which is dated 26 August 1994 is refused.
The costs of the motion be costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VG 205 of 1993
GENERAL DIVISION
B E T W E E N :
HUGH ROSS SOMERVILLE AND OTHERS
Applicants
A N D :
AUSTRALIAN SECURITIES COMMISSION AND OTHERS
Respondents
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 3 MARCH 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
The applicants motion notice of which is dated 26 August 1994 is refused.
The costs of the motion be costs in the cause.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
No VG 188 of 1993
VICTORIA DISTRICT REGISTRY No VG 190 of 1993
No VG 205 of 1993
GENERAL DIVISION
B E T W E E N :
HUGH ROSS SOMERVILLE AND OTHERS
Applicants
A N D :
AUSTRALIAN SECURITIES COMMISSION AND OTHERS
Respondents
COURT: NORTHROP J
PLACE: MELBOURNE
DATE: 3 MARCH 1995
REASONS FOR JUDGMENT
By separate motions in each of these three proceedings, the applicants are seeking orders under Order 15 rule 11 of the Federal Court Rules that the respondents produce documents in their possession, custody or power for inspection by the applicants. With the consent of the parties, the three motions were heard together.
In order to understand the issues raised by the motions, it is helpful to make brief reference to the history of these proceedings. Each proceeding is an application brought under the Administrative (Judicial Review) Act 1977 seeking orders of review of a number of decisions of the Australian Securities Commission. The decisions were made by the Commission in relation to the powers conferred by section 50 of the Australian Securities Commission Act 1989 and relate to legal proceedings which have been commenced in the Supreme Court of Victoria. On 9 September 1993, the Court as presently constituted, made a number of orders in each proceeding, the orders relevant for present purposes being that the respondents give general discovery to the applicants in accordance with Order 15 rule 6. The reasons for making those orders are reported, Somerville & Others v Australian Securities Commission & Others (1993) 118 ALR 149. Those reasons should be read as they provide the background to the reasons about to be given. The respondents appealed, unsuccessfully, to a Full Court against the orders to give general discovery; Australian Securities Commission & Others v Somerville & Others Black CJ, Ryan and Olney JJ, 1 June 1994, unreported.
On 8 August 1994, pursuant to the orders made on 9 September 1993, the respondents in each proceeding filed their list of documents. For present purposes, each list of documents can be treated as being identical. A large number of documents are set out in Parts 1, 2A, 2B and 3 of Schedule 1. The respondents claim legal professional privilege with respect to the documents enumerated in Parts 2A, 2B and all of Part 3 with the exception of a number of identified documents, on the ground that they are or record:
"(a)confidential professional communications between the ASC or its legal advisors and third parties made after legal proceedings were contemplated or were commenced, for the sole purpose of obtaining evidence, or information as to the evidence which will be obtained, and otherwise for the use of the ASC's legal advisors in actual or contemplated litigation
(b)confidential communications passing between the ASC and its legal advisors or between its legal advisors and Counsel for the sole purpose of obtaining or providing legal advice or for the sole purpose of actual or contemplated litigation."
The legal proceedings referred to in these grounds are the proceedings commenced in the Supreme Court of Victoria under section 50 of the Australian Securities Commission Act.
In addition, the respondents claim all the documents enumerated in Part 3 are immune from production on the ground of public interest immunity.
In support of their claims for immunity to produce the identified documents, the respondents relied upon a number of affidavits. None of the deponents were cross-examined. The evidence given was not challenged but criticisms were made of that evidence and submissions were made that the evidence did not support the claims made by the respondents.
Legal Professional Privilege
Before turning to the evidence some reference should be made to the legal principles to be applied relating to legal professional privilege and the nature of the relevant Supreme Court proceedings. It must be remembered, however, that the proceedings before this Court are brought under the Judicial Review Act to challenge decisions made by the Commission in relation to the institution and prosecution of the Supreme
Court proceedings. In short form, the applicants are seeking to prevent the Commission from continuing to prosecute the Supreme Court proceedings being proceedings in which the applicants are named as defendants.
Section 50 of the Australian Securities Commission Act contains a number of unusual features. If certain conditions precedent are established, the section authorizes the Commission to begin and carry on legal proceedings for the recovery of damages or the recovery of property in the name of a person or persons for the benefit of that person or persons. The Commission is not a party to any proceedings so begun although it has the conduct of the proceedings and is responsible for the legal costs incurred in prosecuting the proceedings. For ease of reference, the section is set out in full:
"50.Where, as a result of an investigation or from a record of examination (being an investigation or examination conducted under this Part or a corresponding law), it appears to the Commission to be in the public interest for a person to begin and carry on a proceeding for:
(a)the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or
(b) recovery of property of the person;
the Commission:
(c) if the person is a company - may cause; or
(d)otherwise - may, with the person's written consent, cause;
such a proceeding to be begun and carried on in the person's name."
On one view, the Commission is not a party to the litigation in the Supreme Court, but at the same time, from a practical point of view, it plays the active role of a plaintiff in those proceedings. In this regard it can be compared to the relation in proceedings brought in a relator action in which the Attorney General is the party in a legal action to enforce a public right, to compel the performance of a public duty or to abate a public nuisance at the relation of a person seeking to prevent the commission or continuation of the public wrong; see Halsbury's Laws of England, Fourth Edition, para 230.
The claim for legal professional privilege made by the respondents is based on the Supreme Court proceedings. The first proceeding was commenced on 23 March 1993 being Meadow Gem Pty Ltd & Others v ANZ Executors and Trustee Company Ltd & Others No 2045 of 1993 F3968. There are some 13 plaintiffs named in that proceeding. The second proceeding was issued on 21 June 1993, but not served until much later, being Kenneth Abbott & Others v ANZ Executors and Trustee Company Ltd & Others No 7034 of 1993 F4137. There are over 1000 plaintiffs named in that proceeding. The third proceeding was issued on 27 August 1993 but not served until much later, being Louise Bergfield & Others v ANZ Executors and Trustee Company Ltd No 8284 of 1993 F4136. There are over 270 plaintiffs named in that proceeding. The applicants in the proceedings before
this Court are defendants to each of the Supreme Court proceedings. Any damages awarded in any of the Supreme Court proceedings belong to the plaintiffs being the persons in whose names the proceedings are brought, not the Commission, see Lightning Ridge Mining NL v Jacombe (1978) 3 ACLR 360 per Waddell J at 362.
I accept the general rule with respect to legal professional privilege as stated in the course of submissions by Dr Kenny, counsel for Hugh Ross Somerville:
"Legal professional privilege entitles the client and the client's legal adviser to refuse to disclose:
(a)confidential communications between the legal adviser and his client (whether directly or through their respective agents) if made for the sole purpose of enabling a client to obtain, or the legal adviser to give, legal advice;
(b)confidential communications between the client and his legal adviser (whether directly or through their respective agents), or between the legal adviser or client and third parties, if made for the sole purpose of use in existing or anticipated litigation. See Grant v Downs (1976) 135 CLR 674 at pp682-3, 688."
There is a gloss on this general principle where privilege is claimed with respect to third party communications, not being communications between legal advisor and client. Again, I accept the general rule as stated by Dr Kenny:
" ... privilege will attach only if:
(a)the document was brought into existence or the communication was made at a time when litigation was in existence or reasonably contemplated; and
(b)the document was brought into existence or the communication was made for the sole purpose of obtaining advice for that litigation or otherwise for the sole purpose of use in that litigation."
The authorities referred to during the course of submissions by all counsel support these statements of principles. The principles were not in doubt, the application of the principles to the facts of this case give rise to dispute.
The evidence before the Court is contained in five affidavits sworn by Mark George Spittal, Peter Michael Chapman, Lynette May Slade, Isaac Gotlib and Anne Therese Dalton respectively. The evidence discloses that Farrow Finance Co Ltd ("Farrow") collapsed in September 1990 and that in June 1991 the Commission commenced an investigation into matters relating to the collapse of Farrow and related companies. All of the circumstances giving rise to the Supreme Court litigation were then in existence. Officers of the Commission first contemplated that the Commission should take legal proceedings under section 50 of the Australian Securities Commission Act in about October 1991. Thereafter officers of the Commission continued to contemplate the commencement of those legal proceedings and set about obtaining material to determine whether to institute those legal proceedings and where necessary the material to be used in the anticipated legal proceedings. To this end frequent
meetings took place between members of the investigation staff of the Commission and the legal staff of the Commission, outside legal advisors and with third parties with respect to matters relating to the anticipated legal proceedings.
The grounds of the objections to production of the documents are stated in the respondent's list of documents. The grounds relating to the head of professional privilege are set out in the passage quoted earlier in these reasons. Those grounds relate to the documents enumerated in Parts 2A and 2B of Schedule 1 of the list of documents and documents other than those numbered 1, 2, 4, 5, 9 and 39 to 43 in Part 3 ("the Part 3 professional privilege documents"). Part 2A comprises documents numbered 1 to 16 inclusive. Items 1, 2 and 3, on any view of the evidence before the Court, are privileged. Items 4 to 16 give more particulars of documents and include both originals and copies. Part 2B, comprising items 17 to 94 inclusive gives particulars of documents and include both originals and copies. Part 3 is headed:
"DOCUMENTS PREPARED AND OBTAINED BY THE ASC FOR THE PURPOSE OF INVESTIGATION AND IN RESPECT OF WHICH PUBLIC INTEREST IMMUNITY AND ALSO LEGAL PROFESSIONAL PRIVILEGE AS INDICATED IS CLAIMED BY THE ASC."
Part 3 comprising items 1 to 43 inclusive, gives particulars of documents and includes both originals and copies. The respondent claims privilege with respect to all of the documents enumerated in Part 3 based on public interest immunity, and, in addition, legal professional privilege is
claimed with respect to the Part 3 professional privilege documents. At this stage, the Court will consider the claim based on legal professional privilege only and will defer a consideration of the documents for which public interest immunity is claimed.
The evidence shows that from the time legal proceedings under section 50 of the Australian Securities Commission Act were first contemplated by officers of the Commission until the issue of the first Supreme Court proceeding, frequent meetings took place between the investigative staff of the Commission and the legal staff of the Commission. In his affidavit, Mark George Spittal, a Principal Investigator in the Investigations Division of the Commission, said:
"The purpose of such meetings was to obtain legal advice as to matters relevant to the proceedings and as to the legal procedural and practical requirements to ensure the effective conduct of the investigations with a view to launching civil proceedings. The investigation was at all relevant times conducted for the purpose of the litigation and pursuant to said legal advice. The work involved frequent communications between and amongst the investigation staff and the legal staff. Those communications were solely for the purposes of the litigation which was then in contemplation. They were not for the purpose of determining whether or not it was in the public interest for the litigation to be begun but I was conscious at the time that the Commission would ultimately determine that question and might take into account matters that were ascertained in the course of gathering evidence."
For the purposes of gathering evidence for use in the anticipated proceedings, the investigation staff of the Commission interviewed a number of noteholders of Farrow and also made other enquiries. In addition, both the investigation staff and the legal staff were, subsequent to February 1992, involved in the interviewing of potential witnesses for the purpose of the anticipated proceedings and in communicating with noteholders or their representatives for the purposes of the proceedings. In his affidavit, Mr Spittal said:
"None of these communications with persons outside the Commission were for any purpose other than the gathering of information for submission to lawyers for use in the proceedings."
Included among documents described in the lists of documents are documents described as "Prospectus Questionnaires". In January 1993, after the Commission had decided to commence proceedings under section 50 of the Australian Securities Commission Act and officers of the Commission sought the consent of each noteholder to be a plaintiff in the anticipated proceedings and requested each to complete a questionnaire. The consent was obtained in a form of Memorandum and Consent Agreement which the noteholder was required to sign. The purpose of the questionnaire was to inform officers of the Commission of the circumstances of each noteholder's investment. Each questionnaire is headed "Privileged and Confidential - Prepared for the purposes of the Proceedings referred to in the Memorandum of Consent and Agreement". In addition, the Lists of Documents refers to documents which were provided to the Commission by Mr D.J. Habersberger QC on the express agreement between Mr Habersberger who was investigating the affairs of the Farrow group of companies and Mr Spittal, and documents recording conversations between Mr Spittal and Mr John Pinney, a police officer seconded to Mr Habersberger's enquiry. The evidence of the Commission is that all communications between the police and officers of the Commission were understood and treated as confidential.
One document had been prepared by legal practitioners employed in the legal division of the Commission in conjunction with a qualified legal practitioner who was at the time employed on secondment from a firm of solicitors as a special consultant in litigation to the Commission. The document contains advice in relation to a draft agreement. In his affidavit, Isaac Gotlib, a senior legal officer of the Commission, said:
"The sole purpose for which the said document was prepared was to provide to the Commission that advice and to seek the instructions of the Commission as to the form ad content of the document and approval for its execution."
Other documents are said to be confidential professional communications to officers of the Commission from a professional legal adviser acting his capacity as such. The documents contain advice as to the progress of preparation of evidence for an anticipated legal proceeding under section 50 of the Australian Securities Commission Act and the proceeding generally. The documents seek the instructions and approval of the Commission to continue to prepare and gather evidence and to expend funds for the purpose of the contemplated proceeding. In his affidavit Mr Gotlib said:
"The sole purpose for which the documents were prepared was to provide to the Commission that advice and to seek those instructions and approval."
Another document is said to be a confidential professional communication from legal officers employed by the Commission to the Commission in their capacity as professional legal advisers. The document contains advice as to the commencement of further proceedings under section 50 of the Australian Securities Commission Act. In her affidavit, Lynette Mary Slade, one of the legal officers of the Commission who prepared the document, states that:
"The sole purpose for which the document was prepared was to provide to the Commission that advice and to seek the instructions of the Commission as to whether the proceeding to which it refers should be begun."
The facts relating to the claim to public interest immunity will be set out later.
Counsel for the applicants submitted that the Court should look at the documents set out in the respondents' lists of documents to assist in the determination of the issues before the Court, but the Court does not find it desirable or necessary to do that.
Counsel for the respondents submitted that the Supreme Court proceedings were contemplated by officers of the Commission from October 1991 and that all the documents for which legal professional privilege is claimed come within the general principles conferring that privilege including the facts that all the investigations undertaken by officers of the Commission, both investigative and legal, were, at all relevant times, conducted pursuant to legal advice and for the purpose of anticipated litigation and with respect to litigation when it had been commenced. The material disclosed, also, that the sole purpose for which the documents came into existence was the anticipated litigation and reliance was placed on Waterford v The Commonwealth (1986) 163 CLR 54 especially the reasons of Mason and Wilson JJ at 62-67, and Nikmar Pty Ltd v Preservative Skandia Insurance Ltd (1985) 3 NSWLR 44.
A number of submissions were made by counsel for the applicants to support the contention that the respondents had not established their claim for legal professional privilege. It was put that at no stage was it in contemplation that the Commission would be a party to litigation. Under section 50 of the Australian Securities Commission Act, any litigation had to be brought by other plaintiffs. This submission is not accepted. Reference has been made already to relator actions. Under section 50, the Commission is the moving party. The Commission is required to take all the preliminary steps relating to the commencement of legal proceedings which are begun and carried on by the Commission in the names of the plaintiffs. In a very real sense, the Commission is the person entitled to the protection of legal professional privilege. The policy behind the principles of law to be applied demands that the Commission has all the privileges conferred on a party to litigation.
It was submitted further that since the pleadings in the proceedings before this Court show that the Commission did not make the decision to commence the Supreme Court proceedings until 7 January 1993, the documents for which legal professional privilege is claimed, or the majority of them, were brought into existence before that date and thus it followed that at all relevant times, legal proceedings would not be in the contemplation of the Commission. This submission is supported, so it was said, by the fact that the evidence referred to "officers of the Commission" and the fact that some staff members of the Commission contemplated some unspecified litigation was not sufficient to attract the privilege.
This submission is not accepted. The Commission is a statutory body consisting of not fewer than three nor more than eight members. Effectively, the members of the Commission constitute the controlling mind of the Commission but they can act only on information brought to those members by the officers and employees of the Commission. The exact nature of the powers and authorities of the relevant officers involved in this case are not before the Court, but action taken by them in the course of their employment by the Commission must, of necessity, be treated as action by the Commission. If in due course the Commission decides that no legal proceedings be initiated, it may well be that from then on, legal proceedings are not in contemplation by the Commission unless the Commission decided that further investigation take place before any final decision is made. In my opinion, documents brought into existence by actions taken by officers of the Commission before the Commission first considers the matter must be entitled to legal professional privilege if otherwise they are privileged.
It was submitted further that legal professional privilege is not absolute and that in each case the Court is required to undertake a balancing exercise between competing public interests and that in the present case a competing public interest, namely the right of a person to seek a review of a decision or conduct of an administrative character made under an enactment, could be frustrated by the legal professional privilege claimed by the Commission. This submission is based upon the nature of the rights enforced on persons by the Judicial Review Act to review decisions being the decisions, essentially, of the Commission to begin and carry on the Supreme Court proceedings against the applicants in the proceedings before this Court in the names of the plaintiffs to those Supreme Court proceedings. The submission continued that since the Commission could not be compelled to give reasons for the decisions sought to be reviewed, see section 13 of the Judicial Review Act and in particular subsection 13(11) and item (f) of Schedule 2, if the claim to legal professional privilege succeeded, the applicants would be deprived, for practical purposes, of their right to review the challenged decisions and this would result in the defeat of the public interest behind the enactment of the Judicial Review Act.
The existence of the need to balance possible conflicting public policy or public interest principles is accepted, see The Queen v Bell Ex Parte Lees (1980) 146 CLR 141, a case which involved a conflict between legal professional privilege and a criminal or unlawful proceeding or was made in furtherance of an illegal object, per Gibbs J at 145-6. The matter was considered further in Northern Territory of Australia v Kearney (1985) 158 CLR 500 by Gibbs CJ at 510-514. His Honour stated the general principle, after considering Lees, as follows:
"The case is authority for the view that legal professional privilege will be denied to a communication which is made for the purpose of frustrating the processes of the law itself, even though no issue or fraud is contemplated."
This principle can have no application to the facts of this case. The provisions of section 13 and item (f) of Schedule 2 of the Judicial Review Act make it clear that Parliament as a matter of policy has enacted that an authority cannot be compelled to give reasons for a decision in connection with the institution or conduct of proceedings in a civil court. There is no room to invoke a public interest policy consideration for not granting legal professional privilege otherwise established, because to do so could have the practical effect of denying an applicant access to review, when the Judicial Review Act itself provides that reasons for the decisions cannot be compelled. This seems to negate the existence of a public interest policy that legal professional privilege otherwise available should not be granted because to do so would thwart an application for review. The submission is not accepted.
In my opinion, the respondents have made out their claim for legal professional documents with respect to the documents enumerated in Parts 2A and 2B of Schedule 1 and all the documents enumerated in Part 3 of Schedule 1 save and except for the documents numbered 1, 2, 4, 5, 9 and 39 to 43.
Public Interest Immunity
The nature of public interest immunity is best illustrated by the following passages from the judgment of Gibbs CJ in Sankey v Whitlam (1978) 142 CLR 1 at 38, 39 and 41.
"The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. ... "
"It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide ... whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its function should not be denied access to relevant evidence. In some cases, therefore, the court may weigh the one competing aspect of a public interest against the other, and decide where the balance lies."
"The fundamental principle is that documents may be withheld from disclosure only if, and to the extent that, the public interest renders it necessary."
The respondents claim public interest immunity with respect to all the documents enumerated in Part 3 of Schedule 1 of their list of documents as being:
"DOCUMENTS PREPARED AND OBTAINED BY THE ASC FOR THE PURPOSE OF INVESTIGATION AND IN RESPECT OF WHICH PUBLIC INTEREST IMMUNITY AND ALSO LEGAL PROFESSIONAL PRIVILEGE AS INDICATED IS CLAIMED BY THE ASC."
Illustrations of the application of these principles are contained in a number of authorities referred to in the course of submissions. Reference need be made to some only of those authorities. In Spargos Mining NL & Anor v Standard Chartered Aust Ltd & Ors (No 1) (1989) AC&SR SC(NSW) 311 McLelland J had to determine whether the National Companies and Securities Commission could rely on public interest immunity in refusing to produce documents pursuant to a notice to produce. The facts of that case were very similar to the facts of the matter presently before this Court. At 312 his Honour said:
"In my opinion, documents within the possession of the Commission of a confidential nature recording information received by the Commission relating to possible offences or irregularities, or recording information received in the course of the investigation of possible offences or irregularities, including the identity of informants, and confidential documents recording the actual or possible course of such investigations or particulars of available or potentially available evidence, are in the public interest prima facie immune from compulsory disclosure, on the basis that such disclosure would be likely to seriously impede the ability of the commission to fulfil its function of effectively investigating possible offences under, inter alia, the Companies (NSW) Code, and in appropriate cases instituting and prosecuting criminal or civil proceedings in the public interest."
Reference may be made to the authorities referred to in that judgment.
The principles were considered by Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 commencing at 44. His Honour drew a distinction between cases where the claim is that production of identified documents would be against the public interest and the claim that documents belong to a class of documents which in the public interest ought not to be produced. His Honour doubted whether the latter claim could succeed. In the present case the respondents have based their claim under the first category.
The main affidavit relied upon to support the claim by the respondents is that of Peter Michael Chapman, the Director of Special Investigations in the Investigations Division of he Commission. I accept the facts stated in that affidavit. Officers of the Commission began an investigation into the affairs of Farrow Finance Co Ltd in June 1991. The
investigation included, but was not limited, to the circumstances surrounding and the consequences of the offer to the public to subscribe for notes pursuant to various prospectuses. This is the area essentially giving rise to the Supreme Court proceedings. Certain of the documents enumerated in Part 3 of the Schedule 1 are identified and public interest immunity is claimed with respect to them on the ground that the documents are of a confidential nature recording information received by the Commission in confidence in the course of its investigations of various matters relating to the affairs of Farrow including, but not limited to the circumstances surrounding and the consequences of the offer to the public to subscribe for notes pursuant to various prospectuses. Other documents are identified as being of a confidential nature recording the actual or possible course of an investigation or particulars of available or potentially available evidence. These documents include internal communications between officers of the Commission in the course of or for the purposes of the investigation referred to. Mr Chapman then expresses the opinion that the disclosure of all these documents would be likely to:
"(a)impede seriously the ability of the Commission to fulfil its function of effectively investigating possible offences and, in the appropriate cases instituting and prosecuting criminal and civil proceedings in the public interest;
(b)reveal investigatory methods used by the Commission which may hinder future investigations; or
(c)hinder or inhibit voluntary assistance in this and future investigations and proceedings conducted by the Commission."
Accepting as I do the facts contained the affidavit of Mr Chapman and the opinion expressed by him, the claim for public interest immunity comes squarely within the principles expressed in Spargos Mining and Zarro. The claim by the respondents that the documents enumerated in Part 3 of Schedule 1 are protected from production and inspection on the ground of public interest immunity must succeed.
For these reasons, the motions of the applicants in each proceeding must be refused. The costs of the motions are costs in the cause. Orders made accordingly.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of The Honourable Justice Northrop.
Associate:
Date: 3 March 1995
ATTACHMENT
No VG 188 of 1993
Counsel for the Applicants: Dr S. Kenny
Solicitor for the Applicants: Mallesons Stephen Jaques
Counsel for the Respondents: Mr F.X. Costigan QC
Mr R. Strong
Solicitor for the Respondents: Regional General Counsel for Victorian Australian Securities Commission
Date of Hearing: 15 September 1994
No VG 190 of 1993
Counsel for the Applicants: Dr C.L. Pannam QC
Mr D. O'Callaghan
Solicitor for the Applicants: Arnold Bloch Leibler
Counsel for the Respondents: Mr F.X. Costigan QC
Mr R. Strong
Solicitor for the Respondents: Regional General Counsel for Victorian Australian Securities Commission
Date of Hearing: 15 September 1994
No VG 205 of 1993
Counsel for the Applicants: Mr D.M. Derham
Solicitor for the Applicants: Phillips Fox
Counsel for the Respondents: Mr F.X. Costigan QC
Mr R. Strong
Solicitor for the Respondents: Regional General Counsel for Victorian Australian Securities Commission
Date of Hearing: 15 September 1994
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