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Australian Securities & Investments Commission v P Dawson Nominees Pty Limited [2008] FCAFC 123

In the course of an investigation into Multiplex's public disclosures concerning the Wembley National Stadium project ASIC used its statutory powers to obtain documents from Multiplex and examine a number of persons.

In the Multiplex class action, which was commenced in the Federal Court shortly before the conclusion of ASIC's investigation, the Applicant alleged that Multiplex failed to publicly disclose certain matters concerning the Wembley project.

The Applicant caused a subpoena to be issued to ASIC seeking production of the transcripts of examinations it conducted and other documents produced to it by Multiplex. ASIC objected to production of the transcripts and certain of the other documents on the basis they were the subject of a public interest immunity.

In a unanimous decision the Full Federal Court overturned a first instance decision which would have allowed the Applicant access to the transcripts and other documents. In doing so the Full Court held that:

• the transcripts and other documents would, both directly and circumstantially, identify an informer;
• the public interest in protecting informers, and encouraging future informers, is as important to a regulatory agency such as ASIC as it is to the police in their traditional role,
• where public interest immunity is raised, 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 functions should not be denied access to relevant evidence, and
• in the circumstances of the case, the transcripts and other documents did not have a sufficient importance for the Applicant’s conduct of the litigation as to outweigh the importance of not disclosing the identity of an informer.

ASIC has welcomed the Full Court's decision noting that “this decision is an important one for whistleblowers. It affirms the principle that when people come forward to report matters to ASIC in confidence, their confidence will be respected where that is in the public interest. Otherwise, there is the risk that fewer people would report matters to us.” Full text of the judgment is available here.