Williams and Members of the Companies Auditors Disciplinary Board
[2021] AATA 380
•17 February 2021
Williams and Members of the Companies Auditors Disciplinary Board [2021] AATA 380 (17 February 2021)
Division:TAXATION AND COMMERCIAL DIVISION
File Number(s): 2018/7129
Re:Reginald Williams
APPLICANT
Members of the Companies Auditors Disciplinary BoardAnd
RESPONDENT
Australian Securities and Investments CommissionAnd
Other Party
DECISION
Tribunal:Deputy President Bernard J McCabe
Date:17 February 2021
Place:Sydney
On or before 24 February 2021, the parties must file with the Tribunal draft confidentiality orders giving effect to these reasons.
Should the parties be unable to agree on the form of those orders, they shall each provide the form of orders they individually propose.
................................SGD........................................
Deputy President Bernard J McCabe
Catchwords
CONFIDENTIALITY ORDERS – s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) – whether affidavits and submissions constitute evidence given before the Tribunal – where commercial sensitive negotiations are detailed in those documents – where privacy and commercial interests of third parties are in issue – confidentiality orders partly granted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Williams and Members of the Companies Auditors and Liquidators Disciplinary Board [2019] AATA 504
REASONS FOR DECISION
These reasons relate to an interlocutory application for confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth)(the AAT Act). The interlocutory application relates to three documents that were referred to in the course of an earlier interlocutory decision that was made in these proceedings. The applicant, Mr Williams, had requested a stay of the reviewable decision to cancel his registration as an auditor. Mr Williams also asked for confidentiality orders under s 35 of the AAT Act on that occasion so that his identity would not be published while the review was on foot. Mr Williams filed two affidavits in support of the interlocutory application, and his lawyer filed submissions.
The application for a stay and confidentiality orders was refused, and the reasons for decision were published in the ordinary course: see Williams and Members of the Companies Auditors and Liquidators Disciplinary Board [2019] AATA 504. The review remains on foot, but Mr Williams has returned with a fresh request for confidentiality orders. He says there are good reasons for suppressing the two affidavits and the written submissions that were produced at the interlocutory stay hearing. I note an unrelated third party has requested access to that material.
I heard from representatives for the applicant, the respondent and the Australian Securities and Investments Commission (ASIC) at a directions hearing. As a practical matter, ASIC has carriage of the proceedings on behalf of the respondent. ASIC opposed the grant of blanket confidentiality orders over the material in question although it conceded there might be a basis for supressing some passages in the material.
The Relevant Law
The power to make confidentiality orders is set out in s 35 of the AAT Act. Sub-sections 35(2), (3) and (4) set out the different types of confidentiality order that might be made. Sub-section (5) points to the balancing act required when deciding whether any of those orders should be made in a particular case. Sub-section (5) provides:
In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)that hearings of proceedings before the Tribunal should be held in public; and
(b)that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
The Affidavits
The applicant acknowledged the two affidavits used in the earlier interlocutory hearing amounted to “evidence given before the Tribunal” which was ordinarily available to the public in the absence of confidentiality orders. Mr Williams’ representative also conceded the submissions would be accessible. I was not asked to distinguish between documents given in evidence and written submissions made about that evidence.
Mr Woods, who appeared on behalf of Mr Williams, accepted the application for orders suppressing the entirety of the material was unlikely to succeed. He was right to make that concession in circumstances where he was unable to point to reasons (apart from the potential for bad publicity that impacted on the applicant) suggesting the entirety of the material ought to be treated as confidential. Having made that concession, he pressed for orders in relation to paragraphs [29] - [38] of the affidavit of Mr Williams sworn on 10 December 2018. Those paragraphs refer to negotiations between Mr Williams and third parties about a business venture. I am satisfied the material referred to in paras [30] - [38] is material that is confidential in nature. I do not accept para [29] is in and of itself confidential in nature.
Given the commercial sensitivity of the negotiations and the fact the privacy and commercial interests of third parties are at issue, I am satisfied there are good reasons for making suppression orders in relation to that material, notwithstanding the general principle referred to in s 35(5). Those orders should extend to the annexures to the extent the annexures disclose any of the material referred to in the suppressed paragraphs. I would also suppress the words of the first sentence in para [48] appearing after the words: “…have serious ramifications for the…” on the same basis.
Mr Woods did not hold instructions to press for confidentiality orders in relation to the affidavit of Ms Dipenar dated 10 December 2018. As it happens, I am satisfied it would be appropriate to excise the names of (a) two former clients referred to in the first sentence of para [15] and (b) the prospective purchaser of the business referred to in the second line of para [17]. Each of those entities are strangers to these proceedings and the information in relation to each of the dealings appears to be inherently confidential. I would extend the scope of the orders to any annexures which disclose the information I have just described. I would also suppress the amounts referred to in line 3 of para [15] because that information is, on its face, confidential. In those circumstances, I am satisfied there are good reasons for making the suppression orders notwithstanding the general principle in s 35(5).
Para [15] of the affidavit of Ms Dipenar also refers to arrangements being made with the applicant’s bankers. The fact that arrangements were being made is already on the record: the reasons for the interlocutory decision say as much at [7]. I do not see any basis for making further orders in relation to para [15] of the affidavit. Having said that, the detailed letter of offer dated 4 December 2018 was written on a ‘without prejudice’ basis. On its face, the detailed information contained therein is inherently confidential. I am satisfied it would be appropriate to make orders with respect to exhibit LKD-1 of the affidavit in all the circumstances.
I do not propose to make any other orders in relation to the Dipenar affidavit in the absence of further submissions.
That leaves the submissions that were lodged in connection with the earlier interlocutory hearing. The parties focused on the contents of para [4.5], but that paragraph does not disclose any detail that would justify making confidentiality orders. I would decline to make any orders in relation to the submissions.
It makes sense to make orders under s 35 in relation to the transcript of the Directions Hearing on 5 February 2021 and the submissions discussed therein, in order to preserve the efficacy of the confidentiality orders I propose making.
Conclusion
The parties shall, within 7 days of the date of this decision, provide draft confidentiality orders giving effect to these reasons. In default of agreement on the terms of those orders, the parties shall each provide the form of orders they individually propose.
14. I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe
.............SGD..................
Associate
Dated: 17 February 2021
Date(s) of hearing: 5 February 2021 Counsel for the Applicant:
Mr Thomas Woods
Solicitors for the Applicant: Small Myers Hughes Lawyers Solicitors for the Respondent: Australian Government Solicitor Counsel for the Other Party:
Mr Ross Glover Solicitors for the Other Party:
Self-Represented
0
1
0