Australian Competition and Consumer Commission v Master Wealth Control Pty Ltd

1. The applicant be permitted to produce documents in response to the notice to produce filed on 27 May 2024 with redactions applied to: (a) personal information, including name and contact details; and (b) any other information which is capable of allowing a person to be identified, and which relates to any person who has not provided their express consent to the ACCC to the disclosure of such information.
2. The respondents pay the applicant's costs of this interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKMAN J 1 By an interlocutory application dated 11 June 2024, the ACCC seeks an order permitting it to produce documents in response to a notice to produce with redactions applied to personal information, including names and contact details and any other information which is capable of allowing a person to be identified, and which relates to any person who has not provided their express consent to the ACCC to the disclosure of such information. The redaction is made on the basis of public interest immunity. 2 The documents which the ACCC has produced under those redactions are in a folder marked as exhibit A. The ACCC relies upon the affidavit of Mr Greiss dated 12 June 2024, who is the executive general manager of the consumer and fair trading division of the ACCC. The respondents rely on three affidavits by Mr Klopper, the first dated 18 June 2024 and two further affidavits dated 21 June 2024. 3 It is well established that a party required to produce documents can resist doing so on the basis of public interest immunity. The principles were helpfully summarised by Abraham J in DCL22 v Sage [2022] FCA 1310, relevantly as follows, omitting citations: (a) a public interest immunity claim pertaining to pre-trial disclosure or inspection of documents is to be determined according to common law principles rather than pursuant to the Evidence Act 1995 (Cth): [23]. (b) whether a claim of public interest immunity ought to be upheld requires the court to consider two conflicting aspects of the public interest: first, whether harm will be done by the disclosure of matters of state; and second, whether the proper administration of justice would be frustrated or impaired if the documents were withheld. If it appears that both aspects of public interest require consideration, the final step is a balancing exercise of those interests: [24]. (c) if the claim of public interest immunity is successful: (i) the information in question need not be produced for inspection by any party to the proceedings; (ii) the information in question cannot be adduced in evidence by any party; and (iii) the substantive proceedings continue in effect without regard to the existence of the information over which public interest immunity has been successfully asserted: [27]. (d) the applicable test is whether harm to the public interest could arise from disclosure as a matter of real possibility as opposed to a matter of probability: [28]. (e) the balance between competing public interests may be struck differently in civil and criminal proceedings, noting that the public interest in favour of disclosure is generally stronger in criminal proceedings where the ultimate issue is the guilt or innocence of a particular individual: [29]. (f) although the categories of public interest immunity are not closed and may alter from time to time, whether by restriction or by extension as social conditions and social legislation develop, there are a number of well-recognised categories of public interest immunity which relevantly include documents of which production would hinder or affect proper policing, documents the production of which would hinder ongoing police investigations, and the protection of police informers: [30]. (g) the courts have recognised that full respect should be given to the evidence of the deponent who makes an affidavit in support of a claim of public interest immunity and it is relevant that the deponent is a person of seniority and that the matters in respect of which the evidence is given are not, or not wholly, within the competence of the court to evaluate for itself: [35]. (h) in most cases where a claim of public interest immunity is made, the claim may be determined without the court inspecting the documents over which the claim is made, although the court has the power to inspect the documents privately if this is considered necessary to determine the claim: [36]. 4 The ACCC seeks to redact information from documents responsive to the notice to produce that would identify people who have made complaints to the ACCC about the conduct of the respondents and which would provide the respondents with those consumers' contact details and enable the respondents to carry out their stated objective of contacting them. The ACCC also seeks to redact information from documents responsive to the notice to produce that is the personal information of third parties who may not be aware that this personal information was contained in the complaint made to the ACCC. 5 The people whose personal information or other identifying information the ACCC seeks to redact fall into three categories: (a) complainants who have expressly indicated to the ACCC that they do not want their personal information to be provided to the respondent; (b) complainants who have not responded to the ACCC's request for them to indicate whether they have any concerns in relation to disclosure of their personal information to the respondent; and (c) third parties who did not make a complaint to the ACCC but are identified in, or are identifiable from, information contained in a complaint submitted to the ACCC by another person. 6 As a matter of principle, there is a strong and well-established interest in the confidentiality of information that would allow a party to identify a source of information. Courts have long protected such information from disclosure. The public interest in protecting informers and encouraging future informers is as important to a regulatory agency such as ASIC as it is to police in their traditional role: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227 at [48] (Heerey, Moore and Tracey JJ). It has been held that this public interest is also of importance to the ACCC in the performance of its statutory functions: Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; (2011) 283 ALR 137 at [182] (Lander J). 7 The ACCC submits, and I accept, that some of the information which the ACCC seeks to redact would explicitly identify a complainant or person otherwise identified in someone else's complaint. Other information would allow the respondents to identify who the complainant is, despite not identifying them explicitly. 8 Second, the ACCC submits, and I accept, that a number of complainants have expressly indicated to the ACCC that they do not want their personal information shared with the respondents. The concerns they expressed include concerns about their personal safety and the safety of their families, fear about being harassed and abused, and fear of reprisal. Where a person has complained to the regulator about a respondent, their wishes should be respected so that they are free from any potentially unwelcome approaches from the person about whom they have made a complaint. 9 Third, the ACCC submits, and I accept, that insofar as some complainants have yet to indicate whether they have concerns about disclosure of their personal information to the respondents, it is appropriate to redact their details to preserve their ability to choose whether or not to object to disclosure of their personal information. 10 Fourth, the ACCC submits, and I accept, that in respect of the third parties identified in the complaints who do not themselves make a complaint, there is an interest in preserving their ability to choose whether or not to share their personal information with the respondents. The personal information relating to third parties in the complaints includes their names and, in one instance, a photograph of a child. 11 Fifth, the ACCC submits, and I accept, that in respect of all the complaints there is a general interest in redacting personal information from documents to be disclosed so as not to discourage future potential complainants. Mr Greiss has expressed the opinion that disclosure would have a material adverse effect on the ACCC's ability to effectively carry out its functions. That opinion is based on his long professional experience and is entitled to considerable weight. 12 The fact that the ACCC's privacy policy and information policy do not guarantee complainants that their identities will remain confidential is not inimical to the claim of confidentiality. These policies make it clear that there is a risk that information provided by complainants may be required to be disclosed, including their identity, but that the ACCC recognises that the release of such information may have a substantial adverse effect and will take steps to seek to protect that information from disclosure. A member of the public making a complaint is likely to assume that disclosure to the person or company about whom they are complaining will not occur absent their express consent. There is a reasonable expectation of confidentiality when members of the public use a public hotline or web form to submit a complaint. 13 The respondents place primary reliance in opposing the order sought by the ACCC on the proposition that the ACCC has not led any evidence of a single consumer having suffered actual loss or damage by reason of the products or services in question, and that the absence of evidence of loss or damage or the fact that no consumer suffered loss or damage is a mitigating factor on the question of penalty. In this regard, the respondents are starting at shadows. The ACCC has expressly confirmed at the hearing before me that it does not seek to put any submission to the effect that any consumer or anyone else suffered loss or damage by reason of the conduct complained of in the proceedings, except for the payment by consumers of course fees. Accordingly, the penalty hearing will be conducted on the basis that no consumers have been shown to have suffered loss or damage and, to the extent that this is at all materially different, on the basis that consumers, in fact, have not suffered loss and damage apart from the payment of course fees. 14 The respondents also rely on the proposition that they suspect that a number of the complaints were the product of agitation and coaching by an online activist who is said to have become fixated with the respondents. The ACCC submits, and I accept, that whether complaints were lodged because the complainants were approached by that person is irrelevant to penalty. 15 Mr Klopper, in his affidavit of 18 June 2024, also says that without the names of the alleged complainants the respondents have no way of verifying whether the complaints are from real customers or even real people, and even if so, whether the complaints relate to the two products that are the subject of these proceedings. 16 There is no merit in the submission that the names of the alleged complainants are required in order to ascertain whether the complainants relate to the two products that are the subject of the proceedings. The substance of the complaints has been disclosed, as shown by the documents contained in exhibit A. 17 As to the respondent's ability to test whether the complaints are from real customers of the respondents or even real people, if that submission is pursued at the final hearing on penalty, then it is a matter which I will take into account. While that is also a matter to be taken into account at this stage, it does not override the public interest which favours the redactions which the ACCC has made. 18 Where the interest in non-disclosure lies in protecting the identity of an informer, the Full Federal Court has held that the Court should engage in a balancing exercise: ASIC v P Dawson Nominees Pty Ltd at [47] and [53]. In this particular case, the ACCC submits, and I accept, that the interest in confidentiality is a strong one, given the systemic importance of complaints to the ACCC, and I do not regard the countervailing interest in disclosure as outweighing that matter. In particular, the countervailing interest is weakened when regard is had to the disclosures of the substance of the complaints which have already been made by the ACCC as well as unredacted copies of complaints where the complainants have consented to their details being shared. Accordingly, I make the order sought by the ACCC in its interlocutory application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.