Talib v Australian Securities and Investments Commission
[2024] FedCFamC2G 864
•11 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Talib v Australian Securities and Investments Commission [2024] FedCFamC2G 864
File number(s): MLG 2549 of 2022 Judgment of: JUDGE J YOUNG Date of judgment: 11 September 2024 Catchwords: INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application in a proceeding by first respondent – where the first respondent seeks suppression and non-publication orders over parts of, and annexures to, an affidavit filed by the applicant in the proceedings – where the first respondent submits the orders are necessary to prevent prejudice to the proper administration of justice in the first respondent discharging its statutory functions – where applicant submits that the prejudice asserted if the documents were not suppressed is speculative at best. Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act (2001) (Cth) ch 4, pt 7, div 2, ss 229, 230(1)(b)(i), 231.
Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68
Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741
Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44
Hogan v Australian Crime Commission [2010] HCA 21
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261
WU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 15 July 2024 Place: Melbourne Counsel for the Applicant: Self-represented litigant Counsel for the First Respondent: Ms Latif Solicitor for the First Respondent: Minter Ellison Second, Third and Fourth Respondents Did not participate ORDERS
MLG 2549 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASNAIN TALIB
Applicant
AND: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
First Respondent
GREG YANCO
Second Respondent
THEA ESZENYI
Third Respondent
PETER MCGEE
Fourth Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The First Respondent is to file and serve all of the lay evidence of the parties, except for paragraphs 19(c), 19(k) and 19(l) and annexures HT-33, HT-36, HT-42 and HT-43 attached to the Applicant’s reply affidavit affirmed on 13 November 2023 (Reply Affidavit), by way of a solicitor’s affidavit, by 4.00 pm on a date to be fixed.
2.Pursuant to ss 230(1)(b)(i), 231(1)(a) and 233 of the Federal Circuit and Family Court of Australia Act 2021:
(a)paragraphs 19(c) and 19(k) and 19(l) of, and annexures HT-33, HT-36, HT-42, HT43 attached to, the Reply Affidavit; and
(b)confidential exhibit SB-1 annexed to Shane Barbetti’s affidavit of 5 March 2024,
are not to be disclosed or published other than by the Respondents, or to the Parties and the Court, for a period of five years.
3.No order as to costs.
4.Liberty to apply.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
Before the Court is an interlocutory Application filed on 6 March 2024 by the first respondent, the Australian Securities and Investments Commission (ASIC), seeking certain material filed in the proceeding by the applicant, Mr Talib, not be disclosed or published other than by ASIC or to the parties or to the Court (Application).
ASIC is the moving party in the Application. The second to fourth respondents consent to the Application and do not otherwise seek to be heard.
CONTEXT
The applicant, Mr Talib, was employed by ASIC from 5 May 2008 until 22 September 2022.
On 21 November 2022, Mr Talib filed an Application in this Court alleging contraventions of various general protection provisions of the Fair Work Act 2009 (Cth) (Substantive Application).
The material which is the subject of the Application is a reply affidavit of Mr Talib, affirmed on 13 November 2023 (Reply Affidavit). The Reply Affidavit was served on the respondents but not filed with the Court. Two versions of the Reply Affidavit have been provided to the Court for the purpose of the Application:
(1)a redacted version with the redactions covering the information ASIC is seeking to protect; and
(2)an unredacted version.
The Application relates only to paragraphs 19(c), 19(k) and 19(l) and annexures HT-33, HT-36, HT-42 and HT-43 of the Reply Affidavit.
Mr Talib opposes the Application.
LEGAL PRINCIPLES
ASIC relies on s 230(1)(b)(i) of the Federal Circuit and Family Court of Australia Act (2001) (Cth) (FCFCOA Act) in support of its Confidentiality Application.
Chapter 4, Part 7, Division 2 of the FCFCOA Act deals with suppression and non-publication orders in Division 2 proceedings.
Section 229 of the FCFCOA Act provides that in deciding whether to make a suppression or non-publication order, the Court must take into account “that a primary objective of the administration of justice is to safeguard the public interest in open justice”.
Section 230 of the FCFCOA Act relevantly provides as follows:
230 Power to make orders
(1)The Federal Circuit and Family Court of Australia (Division 2) may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:
…
(b)information that relates to a proceeding before the Court and is:
(i)information that comprises evidence or information about evidence;
…
Section 231 of the FCFCOA Act further provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 2) may make a suppression order or non-publication order on one or more of the following grounds:
(a)the order is necessary to prevent prejudice to the proper administration of justice;
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c) the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in a criminal proceeding involving an offence of a sexual nature (including an act of indecency).
(2)A suppression order or non-publication order must specify the ground or grounds on which the order is made.
In Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44, the Full Court of the Federal Court set out the principles in relation to the making of a suppression or non-publication order which may be summarised as follows:
·suppression or non-publication orders should only be made in exceptional circumstances;
·that is both because the operative word is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice;
·the paramount consideration is the need to do justice;
·publication can only be avoided where necessity compels departure from the open justice principle;
·the word “necessary” is a “strong word”. It is nevertheless not to be given an unduly narrow construction;
·the question whether an order is necessary will depend on the particular circumstances of the case;
·once the court is satisfied that an order is necessary, it would be an error not to make it. There is no exercise of discretion or balancing exercise involved.
Whilst those comments were in relation to s 37AF of the Federal Court of Australia Act 1976, they are equally applicable here.
The threshold which ASIC must satisfy is high. Mere confidentiality is not enough: Hogan v Australian Crime Commission [2010] HCA 21 at [38]. Embarrassment, inconvenience, annoyance or unreasonableness or groundless fears will not suffice to found a suppression or non-publication order: Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; (2015) 331 ALR 68 at [30].
The onus is on ASIC to persuade the Court that the order ought be made. The onus is “a very heavy one”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [8].
THE PARTIES’ RESPECTIVE CASES
ASIC relies on the following material in support of the Confidentiality Application:
(1)the Application in a Proceeding filed on 6 March 2024;
(2)the affidavit of Mr Barbetti, Senior Specialist in ASIC’s Companies and Small Business Branch of its Regulation and Supervision Division, filed on 6 March 2024; and
(3)written submissions filed 3 April 2024.
Mr Talib relies on the following material in opposition to the Confidentiality Application:
(1)the affidavit of Mr Talib filed on 5 April 2024; and
(2)written submissions filed on 8 April 2024.
CONSIDERATION
ASIC is an independent Australian government body regulated by the Australian Securities and Investments Commission Act 2001 (Cth). ASIC regulates the conduct of Australian companies, financial markets and financial services organisation to ensure their conduct meets relevant legal standards.
ASIC relies on the evidence of Mr Barbetti, Senior Specialist in the Companies and Small Business Team of the Regulation and Supervision division of ASIC. Mr Barbetti deposes to having held similar roles since 2008 and to having worked in accounting and audit for over 30 years.
Prejudice
Mr Barbetti deposes to having been provided with a redacted version of the Reply Affidavit. He deposes that in his professional opinion, information in the Reply Affidavit discloses information that falls into three categories as follows:
(a)is confidential and shows or would be a basis to infer ASIC’s investigative methods when responding to apparent irregularities in the company’s financial reporting. Mr Barbetti considers that the release of this information may result in companies adapting their record-keeping processes to avoid irregularities being detected from their records in the future and may thereby undermine ASIC’s capacity to continue using its existing investigative methodology (Category 1);
(b)is market sensitive, and asserts that its release has the potential to give the market information about the opinions of officers at an early stage of investigation, which may or may not ultimately have been adopted by ASIC. Mr Barbetti deposed that, in his view, this has the capacity to put misleading or incomplete information into the public domain that could adversely affect the market and/or stock value of a third party company and erode public confidence in ASIC as a trusted custodian of commercially sensitive and confidential information (Category 2);
(c)could prejudice ASIC’s ability to discharge its statutory functions. Mr Barbetti deposed that if companies lost confidence and trust in ASIC to keep information voluntarily provided confidential, he strongly believed they would become less cooperative with the surveillance process and only provide information where legally compelled to do so. This would make surveillance take longer, be more expensive and potentially mean surveillances are based on less information than is currently the case. Further, ASIC’s current approach is to give the officer undertaking the surveillance an unfettered ability to give opinions and advice internally. Mr Barbetti deposes that ASIC’s processes, including for the supervision and deliberation on a surveillance mean there is scope for discussion between officers and for views to be double checked and/or refined before they are put to regulated entities. Mr Barbetti deposes to being concerned that if this information is released ASIC officers will feel less able to give their free and unconstrained views which may ultimately impact on ASIC’s ability to perform it functions (Category 3).
Mr Talib asserts that Mr Barbetti’s evidence is prejudiced and misleading and that the Court ought “carefully scrutinise” it before admitting it and identified a number of bases for this assertion at paragraph [6] of his affidavit. I reject those submissions. Firstly, no objection to the admission of Mr Barbetti’s affidavit into evidence was made by Mr Talib and the matters relied upon by Mr Talib as to this, in large part, do not go to the question of admissibility. Secondly, there is nothing before the Court that establishes or infers that Mr Barbetti is seeking to mislead the Court and such an assertion ought not be made without substantial evidence. Thirdly, as to Mr Barbetti being provided with a redacted version of the Reply Affidavit, rather than undermining the thoroughness of his opinion, I consider this evidences ASIC’s commitment to independence. Fourthly, as to the assertions regarding Ms Eszenyi, she is not a moving party to this Application and I am unable to see the relevance of Mr Barbetti’s participation in the spill and fill process in the context of the current Application. Fifthly, as to the assertion that Mr Barbetti’s expertise is in financial reporting surveillance and that audit surveillance is beyond the scope of his expertise, Mr Barbetti has given sworn evidence which he states is based on his direct knowledge, training and experience. Further, in oral submissions Mr Talib said that “to his knowledge” Mr Barbetti had not undertaken audit surveillance. I prefer the direct evidence of Mr Barbetti as to his expertise.
Mr Talib also submits that ASIC’s refusal to allow cross examination of Mr Barbetti “further heightens the risk of his prejudicial and misleading opinion”. The usual approach of the Court to an interlocutory application such as this is that Mr Barbetti’s evidence would be taken at its highest. Cross-examination would usually only be by leave of the Court and is exercised “cautiously” and “sparingly”: Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 at 272. Mr Talib made no application to cross-examine Mr Barbetti nor did he indicate to the Court what topics he would seek to cross-examinate Mr Barbetti in respect of, or how such cross-examination would assist the Court. Accordingly, I reject that submission.
Mr Talib submits that Mr Barbetti’s opinion in relation to Category 1, 2 and 3 is untenable and speculative at best. His evidence is that Mr Barbetti’s opinion as to these matters is flawed because:
(a)the Category 1 information cannot be confidential or give rise to concerns regarding disclosure of ASIC’s surveillance methodology because any qualified professional with knowledge of auditing and accounting standards, as well as comprehensive experience, can prepare similar memos/reports based on publicly available information. Further, he says that the methodology for raising auditing and accounting queries is regularly disclosed by ASIC through media releases;
(b)ASIC’s concerns as to Category 2 information are overstretched and speculative. There are currently 3,000 listed companies on the ASX and over 5 million unlisted entities in Australia. The investigation memos and other documents contain information primarily obtained from publicly available sources. The check list comprises Australian Accounting Standards requirements and does not include any privileged or patented ASIC methodology, work or knowledge;
(c)there have been few instances where companies have been less co-operative but even if voluntary cooperation were to decrease slightly, ASIC’s compulsory powers ensures it can compel the necessary information for its surveillance activities. The disclosure of officer opinions does not necessarily impede the surveillance process or preclude further internal discussion. Further, ASIC’s correspondence (letters of inquiry and comment forms) has been sent to over 1000 entities and their respective audit firms, rendering ASIC’s concerns about disclosure of its investigative process and regulatory decision-making untenable.
It is apparent from the above that Mr Talib disputes the prejudice Mr Barbetti says will be suffered by ASIC from disclosure of the disputed information on the basis that the underlying information upon or from which the documents are produced, is available in the public domain. I reject that submission. The fact that the ASIC material may be responsive to or informed by information which is in the public domain, for example accounting standards, is not to the point. What is at issue is the specific consolidated information ASIC seeks to protect, not generic information which may have informed it. I consider that the evidence before the Court establishes that the information at issue, whilst it may be informed by publicly available information, is unique and specifically tailored to ASIC’s regulatory function. Mr Talib’s submission and evidence fails to engage with that specific information. Accordingly, I accept Mr Barbetti’s evidence as to the prejudice that may be occasioned by disclosure of the information as set out in Categories 1, 2 and 3.
Paragraph 19 of the Reply Affidavit
Paragraph 19(c) and Annexure HT-33 of the Reply Affidavit
Mr Barbetti deposes that information in paragraph 19(c) of the Reply Affidavit, specifically the assertion that an additional impairment of the dollar amount set out in the paragraph is required, is enough to enable identification of the relevant company. Further, the requirement of an additional impairment amount was not ASIC’s concluded view. Mr Barbetti deposes that this information is market sensitive, and asserts that its release has the potential to give the market information about the opinions of officers at an early stage of investigation, which may or may not ultimately have been adopted by ASIC. Mr Barbetti deposed that, in his view, this has the capacity to put misleading or incomplete information into the public domain that could adversely affect the market and/or stock value of a third party company and inadvertently cause the market to be misinformed. Further, release of this information could erode public confidence in ASIC as a trusted custodian of commercially sensitive and confidential information and impact on ASIC’s capacity to perform its functions.
Annexure HT- 33 is included in paragraph 19(c). Mr Barbetti deposes that the information contained in HT-33 could be used to identify the relevant company as there are only two such companies in Australia. Mr Barbetti deposes that identification of the relevant company is of concern for the reasons set out above.
Mr Talib deposes that paragraph 19(c) addresses the adequacy of the audit work performed and says that there is no specific conclusion by ASIC that an additional impairment of a specific dollar amount is required. He says further that the assertion by Mr Barbetti that disclosure and identification of the relevant company potentially making the company less likely to provide information voluntarily is speculative and incorrect. As to Annexure HT-33 Mr Talib deposes that “there are 134 oil and gas companies listed on [the] Australian Stock Exchange as at date, instead of the erroneously stated 2 companies, which appears to be an attempt to mislead the Court”.
I prefer Mr Barbetti’s evidence as to this matter for the following reasons. Firstly, by his submission that “disclosure and identification of the relevant company potentially making the company less likely to provide information voluntarily is speculative and incorrect”, Mr Talib appears to concede that the information in paragraph 19(c) would enable identification of the relevant company. I have already addressed above Mr Talib’s assertion that the information is confidential or sensitive because it is sourced from publicly available information. Secondly, Mr Talib’s submission supports Mr Barbetti’s evidence that the impairment amount identified was not a concluded view held by ASIC. I accept Mr Barbetti’s evidence that release of this information has the capacity to put misleading or incomplete information into the public domain that could adversely affect the market and/or stock value of a third party company and inadvertently cause the market to be misinformed. Thirdly, although it is well established that unreasonable or groundless fears will not suffice to found a suppression or non-publication order, an applicant is not required to prove that the harm which they fear would be an inevitable consequence in the absence of such an order: AWU15 v Minister for Immigration and Border Protection (No 2) [2019] FCA 2132 at [32]. Accordingly, I reject Mr Talib’s contention that Mr Barbetti’s evidence that “disclosure and identification of the relevant company renders the company potentially less likely to provide information voluntarily” is not to be accepted because “it is speculative and incorrect”. Fourthly, Mr Talib’s evidence as to Annexure HT-33 is simply incorrect. Mr Barbetti at no time contends that there are only two oil and gas companies listed on the Australian Stock Exchange. Rather, his evidence is that there are only two “such” companies, being companies with assets of the relevant value. Further, Mr Talib’s oral submissions on this point were inconsistent and contradictory.
Paragraph 19(l) and (k) of the Reply Affidavit
Mr Barbetti deposes that the information contained in paragraphs 19(l) and 19(k) could be used to identify the relevant company. Further, his evidence is that the assertion that the impairment was taken in the wrong period may have implications for directors of the company in the performance of their duties and is market sensitive as ASIC did not ultimately pursue any additional impairment. Accordingly, the release of this information has the potential to give the market information about the opinions of officers at an early stage of investigation, which were ultimately not adopted by ASIC and has the capacity to put misleading or incomplete information into the public domain that could adversely affect the market and/or stock value of a third party company and erode public confidence in ASIC as a trusted custodian of commercially sensitive and confidential information.
Mr Talib’s evidence is that the information in paragraph 19(l) and (k) is not confidential information (for the reasons set out earlier) identifying the relevant company and therefore could not have the adverse consequences asserted by Mr Barbetti. Mr Talib also asserts that Mr Barbetti’s evidence that “this assertion was never made to the company, accordingly, the company never had the opportunity to respond” is incorrect and says that he explicitly stated in paragraph 19(l) that “notably these were among the significant issues I had raised with Audit Firm X and Company A between June and July 2020” and at paragraph 19(k) where he says “I was not permitted to take any further action and was instead instructed to send a close-out letter to Company A”. Mr Talib also asserts that Mr Barbetti’s statement that “that impairment was taken in the wrong period may also have implications for directors of the company in terms of performing their duties…there is judgement required about the timing of recognition of any impairment due to the nature of the exercise” is incorrect as there is no judgement about the timing of an impairment. Finally, of Mr Barbetti’s statement “that there is additional impairment required is market sensitive”, Mr Talib also says it is “incorrect and that ASIC has not provided any evidence as to why it did not pursue the matter and accepted the company’s position as reasonable”.
I prefer Mr Barbetti’s evidence as to this matter for the following reasons. Firstly, I reject Mr Talib’s evidence that the information is not confidential for the reasons set out above and accept Mr Barbetti’s evidence that the information is capable of identifying the relevant company. Secondly, Mr Talib’s assertions as to the contents of paragraphs 19(k) and 19(l) do not, in my view, accord with a plain reading of those paragraphs. Mr Talib deposes that “despite these discrepancies” he was not permitted to take any further action in relation to impairment consistent with Mr Barbetti’s evidence. Further, the reference in paragraph 19(l) is in relation to matters included in the company’s financial report relating to asserted reasons for the impairment. Accordingly, the asserted reasons are “these matters” referred to in paragraph 19(l), not the matters referenced in paragraph 19(k). Thirdly, I have earlier accepted Mr Barbetti’s evidence as to the market sensitivity of unconfirmed views formed at an early stage in an investigation. Fourthly, that ASIC has not provided any evidence as to why it did not pursue the matter further and accepted the company’s position as reasonable is irrelevant to the Application currently before the Court.
Annexure HT-36
As to Annexure HT-36, Mr Barbetti deposes that the information contained at item 9 of page 1 of the Annexure enables the relevant company to be identified as there is only one such asset in Australia. Further, he says that the document creates the impression there is a large impairment, which if made public could adversely affect the relevant company’s share price. This is particularly so as the relevant asset is one the company has a long term lease on. Mr Barbetti’s further evidence is that the fact that ASIC has made enquiries about the carrying value of the asset may be considered market sensitive and disclosure may make the company less inclined to disclose voluntarily in the future. He deposes that as the information does not contain the company’s rebuttal or subsequent steps, it is incomplete, does not reflect the regulatory position ultimately taken by ASIC and may imply that ASIC has on-going concerns or that the enquiry is on-going. He says that the prejudice identified in Category 1, 2 and 3 applies.
Mr Talib contends that there are 10 port terminals in Australia, not one as asserted by Mr Barbetti. He further says that the company’s response is included but redacted. Finally, Mr Talib refers to the reasons why he says the prejudice asserted by Mr Barbetti does not arise. I reject those submissions. Firstly, Mr Barbetti’s evidence is that there is only one “such” asset. It is therefore not to the effect asserted by Mr Talib. I accept Mr Barbetti’s evidence that the information enables the relevant company to be identified and that the information could adversely affect the company’s share price. Secondly, I accept Mr Barbetti’s evidence that the information does not contain the company’s ultimate rebuttal or subsequent steps and as such it is incomplete, does not reflect the regulatory position ultimately taken by ASIC and may imply that ASIC has on-going concerns or that the enquiry is on-going. The document provides that as at 30 June 2022 ASIC continues to have concerns, has further “additional questions” and a significant number of “information requests”. The company’s response to these questions and requests, nor subsequent steps nor ASIC’s ultimate position are included. Thirdly, for the reasons already set out I accept Mr Barbetti’s evidence as to the prejudice in Categories 1, 2 and 3.
Annexure HT-42
As to Annexure HT-42, Mr Barbetti deposes that the information contained at page 3 of the Annexure is confidential as it is the checklist that is currently used by ASIC and if disclosed would identify how ASIC identifies an area of the audit file for review. He deposes that given the volume of information and the disclosure of the revenue model of the relevant company at page 169 of the Annexure, the company is able to be identified. He deposes that disclosure may make the company less inclined to provide information voluntarily in the future. He says that the prejudice identified in Category 1, 2 and 3 applies.
Mr Talib deposes that the information at page 3 of the Annexure is not confidential as ASIC discloses its audit focus areas half yearly. He also deposes that information that could enable identification of the company has been redacted as much as possible and that no revenue model has been disclosed. He otherwise relies upon his earlier evidence as to why the prejudice contended for by Mr Barbetti ought not be accepted. I reject that evidence. Firstly, that ASIC discloses its audit focus regularly fails to engage with the specific information at issue. I consider that the checklist is a specific, unique document, tailored to ASIC’s regulatory functions. It is the consolidation of that information into a checklist tailored for ASIC’s purposes that renders it confidential and release of which would result in the prejudice contended for by Mr Barbetti. Secondly, by his evidence that the information which might allow identification of the company has been redacted “as much as possible”, Mr Talib appears to concede that the company is still able to be identified. Thirdly, for reasons already set out above, I accept Mr Barbetti’s evidence as the prejudice identified in Category 1, 2 and 3 applying.
Annexure HT-43
As to Annexure HT-43, Mr Barbetti deposes that the information contained at page 3 of the Annexure is confidential as it is the checklist that is currently used by ASIC and its disclosure could undermine ASIC’s investigative function by alerting companies to the way in which ASIC seeks to identify breaches of accounting standards in financial reports and encourage behaviour designed to hamper the conduct of ASIC’s future reviews. Mr Barbetti further deposes that the information contained in the Reviewsheet Report at page 4 of the Annexure enable the relevant company to be identified and the information contained at page 5 would have been commercially sensitive at the time it was provided to ASIC, although acknowledges that it is not presently so.
Mr Talib’s evidence is that the checklist is not confidential as it sourced from publicly available information and based on the Australian Accounting Standards. As such he deposes that its disclosure could not cause any behavioural change. He also deposes that the Reviewsheet Report is also sourced from publicly available information and that ASIC has not produced any evidence that its disclosure would enable identification of the relevant company. I reject those submissions. As with Annexure HT-42, I consider that the checklist and the Reviewsheet are specific, unique documents, tailored to ASIC’s regulatory functions. That they are derived from publicly available information is not to the point. It is the consolidation of that information into documents tailored for ASIC’s purposes that renders them confidential. I accept Mr Barbetti’s evidence that the release of these documents would result in the prejudice contended for by him.
DISPOSITION
For the reasons set out above, I consider it necessary to prevent prejudice to the proper administration of justice that paragraphs 19(c), (k) and (l) together with Annexures HT-33, HT-36, HT-42 and HT-43 of the Reply Affidavit not be disclosed or published other than to the parties and the Court and pursuant to s 231(1)(a) of the FCFCOA Act make the orders set out at the commencement of this judgment.
ASIC seeks that the order be for a period of 5 years. I shall order accordingly.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 11 September 2024
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