Plaintiff v Defendants

Plaintiff v Defendants - [2013] VSC 154 - VSC 2013 case summary — Zoe

[33]

Release of transcripts and related books

RG 103.16 ASIC may release transcripts or related books as an authorised disclosure under s 127 or under s 25(1). Under s 25(1) ASIC may release transcripts of examinations conducted by it under s 19 and related books to a person's lawyer if the lawyer satisfies ASIC that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related. Subsection 25(2) limits the use which may be made of copies released under s 25(1). ASIC may also impose additional conditions on the release of documents: see RG 103.37. In ASIC's view plaintiffs/applicants and defendants/respondents to an action are entitled to apply for transcripts as well as intending plaintiffs and applicants: see Wardley v ASC (1991) 9 ACLC 1565.

RG 103.17 ASIC considers that the words "related books" refer to documents formally identified and incorporated in the record of examination, and also to documents referred to directly or indirectly in the record which would help people to understand the record. For example, if an officer of a company refers to a meeting which occurred on a particular day, the minutes of that meeting would constitute a related book.

RG 103.18 In exercising its discretion as to whether it should release copies of transcripts using the power in s 25(1), ASIC:

(a) must be satisfied that the person is carrying on, or contemplating, a proceeding;

(b) must be satisfied that the proceeding is in respect of a matter to which the examination (or part of an examination) is related;

(c) will consider whether any of ASIC's enforcement requirements - relating to the continued investigation, prosecution, instituting or intervening in civil proceedings or taking of administrative action - would be jeopardised by the release of the transcripts; and

(d) will consider whether other persons may be adversely affected by the release of the transcripts (see RG 103.52).

ASIC will also have a general discretion, taking into account factors such as:

(a) its functions and powers;

(b) the objects of the Corporations Law and ASIC Law;

(c) interpretations by the court in decisions such as Wardley and Johns; and

(d) the public interest generally.

While ASIC will take all these factors into account, in the absence of compelling reasons to the contrary ASIC will generally assist litigants by disclosing transcripts as contemplated by s25(1).

RG 103.19 Section 25(3) provides ASIC with a general ability to release transcripts and related books. In Johns v ASC [1993] HCA 56; (1993) 178 CLR 408, the High Court held that s 25(3) is a machinery or facultative provision: it merely enables the provision of transcripts and books and the imposition of conditions, where the release is for a purpose authorised in some other way (eg by one of the provisions of s 127). ASIC may impose conditions on releases under s 25(3). A contravention of a condition imposed under s 25(3) is an offence against s 26.

[39]

In applying the phrase "otherwise provided" in s 79, Latham CJ and Starke J asked whether the particular law of the Commonwealth was to be regarded in any way as "inconsistent" with the application of the State Act which was said to be "picked up" by s 79. Later, Menzies J asked whether the law relied upon as a law of the Commonwealth was one "displacing" the law of the State. In Australian National Airlines Commission v Commonwealth, Mason J said:

"Section 26A of the High Court Procedure Act [1903 (Cth)], which provides that judgments of the court shall carry interest, should be regarded as a comprehensive expression of the entitlement in this court of a litigant to interest on damages to the exclusion of any provision in State law which would otherwise be made applicable by virtue of s 79."

The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of "inconsistency" involved in the phrase "otherwise provided" in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.

The issue whether the [Commonwealth Act] makes relevant provision otherwise to s 97(3) of the [State Act] may be approached by asking whether the operation of the former so reduces the ambit of the latter that the provisions of the [Commonwealth Act] are irreconcilable with those of the [State Act], with the result that the [Commonwealth Act] "otherwise provide[s]".[17]

[85]

Order 42A

SUBPOENA FOR PRODUCTION TO PROTHONOTARY

42A.01 Application

(1) This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before -

(a) the hearing of an interlocutory or other application in the proceeding; or

(b) the trial of the proceeding.

(2) Order 42 applies so far as is practicable to a subpoena to produce under this Order.

42A.02 Issuing subpoena

A subpoena issued under this Order shall require the addressee to produce to the Prothonotary on or before a day specified by the Prothonotary in the subpoena the document identified in the subpoena.

42A.03 Form of subpoena

A subpoena under this Order shall be in Form 42AA.

42A.04 Affidavit of service

(1) A subpoena under this Order shall be served personally on the addressee.

(2) The issuing party shall serve a copy of a subpoena to produce under this Order on each other party as soon as practicable after the subpoena has been served on the addressee, but it shall not be necessary that the copy served be sealed or be served personally.

(3) A party who serves a copy of a subpoena under this Order shall forthwith file an affidavit of service.

42A.05 Compliance with subpoena

(1) The addressee shall comply with the subpoena under this Order by producing the document to the Prothonotary by delivering or sending it and, if sent, the document shall be sent so that the Prothonotary receives it on or before the day specified in the subpoena.

(2) If the document is not in writing, then, provided the original is held by the person named until trial, a copy only need be produced to the Prothonotary and, if a copy is produced, it shall be clearly marked as such and may be used by the Prothonotary for the purposes of inspection and, if necessary, copying.

42A.06 Receipt for document

Where a document is produced in compliance with a subpoena under this Order the Prothonotary shall, if requested to do so, give a receipt to the person producing the document.

42A.07 Objection by addressee or other person

If -

(a) the addressee has any objection to producing a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding; or

(b) a person having a sufficient interest, other than a party, has any objection to the production of a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding -

that person shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena.

42A.08 Objection by party to inspection by other party

(1) Subject to paragraph (2), if a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena.

(2) If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff may, before taking objection under paragraph (1), inspect the file or record produced to the Prothonotary and notify the Prothonotary thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and notifies that objection and the grounds of that objection in writing within seven days after the day specified in the subpoena for production of the file or record to the Prothonotary.

42A.09 Procedure after objection

(1) Upon receiving notice under Rule 42A.07 or 42A.08, the Prothonotary shall refer the subpoena to a Judge of the Court or an Associate Judge for the hearing and determination of the objection.

(2) The Prothonotary shall notify the issuing party in writing of the objection and the grounds of that objection and the time and place at which the objection will be heard and that party shall notify the addressee and all other parties accordingly.

42A.10 Inspection of document produced

If no objection is notified under Rule 42A.07 or 42A.08 or to the extent that any such objection is disallowed, each party, unless a Judge of the Court or an Associate Judge otherwise orders, may by appointment with the Prothonotary inspect and take copies of a document produced in compliance with a subpoena under this Order.

42A.11 Removal of document

(1) The Prothonotary shall not permit any document produced in compliance with a subpoena under this Order to be removed from the office of the Prothonotary except upon application in writing signed by the solicitor for a party.

(2) A solicitor who signs an application under paragraph (1) and removes a document from the office of the Prothonotary, undertakes to the Court by force of this Rule that -

(a) the document will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and

(b) the document will be returned to the office of the Prothonotary in the same condition, order and packaging in which it was removed, as and when directed by the Prothonotary.

(3) The Prothonotary may, in his or her discretion, decline to accede to any application under paragraph (1).

42A.12 Return of document

....

42A.13 Production of document at trial

Subject to Rule 42A.12, the Prothonotary shall, unless otherwise ordered, produce or hand to the Associate of the trial Judge for production at the trial of the proceeding each document produced to the Prothonotary in compliance with a subpoena under this Order.

42A.14 Subpoena for trial not affected

The issuing of a subpoena under this Order shall not preclude the issuing of a subpoena otherwise than under this Order.

[91]

The subpoena seeks production of documents including "the transcript of any hearing conducted by ASIC in relation to [our client] in relation to the matters the subject of the Federal Court of Australia proceeding numbered VID594/2012 (Proceeding) commenced by ASIC" (Transcript) and any "related book" in relation to our client within the meaning of section 25 of the ASIC Act (Related Books).

ASIC conducted a hearing and examination of our client pursuant to section 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) in May and June 2012.

Our client objects to the plaintiff's inspection of the Transcript and the Related Books on the following grounds:

1. Pursuant to section 22 of the ASIC Act the examination of our client took place in private although records of statements made at the examination were made pursuant to section 24. The examination was conducted behind closed doors and no person was entitled to be present in the examination other than the examinee, the inspector, approved ASIC staff members, the examinee's lawyers and persons authorised by the inspector: sections 22 (2) and 23(1) of the ASIC Act.

2. Under section 25(1) of the ASIC Act ASIC may release transcripts of examinations conducted by it under section 19 and related books to a person's lawyer if the lawyer satisfies ASIC that the person in carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related. Further, ASIC must take reasonable measures to prevent unauthorised use and disclosure of information it receives in confidence in connection with its statutory functions: section 127(1). Accordingly there is a statutory regime in place designed to protect records of ASIC examinations from disclosure unless the requirements of section 25(1) are met. The plaintiff has not sought to invoke the section 25(1) procedure to obtain the records as far as client is aware and has instead sought production of documents by means of subpoena.

3. The Transcript has not yet been reviewed by ASIC for accuracy nor has our client been required to read it and sign it, as to the latter point, as contemplated by section 24 of the ASIC Act.

4. To allow any person, especially the plaintiff in the present proceeding, to read and use the Transcript and the Related Books will infringe our client's right to silence and/or the privilege against self-incrimination enjoyed by him.

5. The transcript and the Related Books may contain material that is not relevant to the matters the subject of the Proceeding.

In the circumstances, if access to the subpoenaed documents is to be granted, our client's view is that access should be restricted to named legal practitioners for the plaintiff in the first instance pursuant to a Court ordered restricted access regime. Further, we and our client should have first access to the Transcript and the Related Books for a period of 14 days for the purpose of making any claim for legal professional privilege and/or redacting any irrelevant material and in the event the plaintiff thereafter intends to deploy the subpoenaed documents in this proceeding, the plaintiff should give us as much notice as is reasonably practicable of its intention to do so.

[239]

1 Subject to Orders 2, 3, 4, 5, 6, 7 and 8 below, the Court grant leave to those of the legal representatives of the parties named in the Schedule hereto who give to the Court an undertaking in writing duly signed that, without the prior leave of the Court, he or she will not use any of the information contained in the subpoenaed documents described below for any purpose other than for the purposes of these proceedings, to inspect the documents produced to the Court by Australian Securities and Investments Commission under subpoena dated 19 September 2012 (the subpoenaed documents).

2 The first, second, third, fourth and fifth defendants (the director defendants) only, have first and exclusive access to the subpoenaed documents for a limited period, ending 4pm on 11 January 2013, for the purpose of making any claim for restricting the plaintiff's access to the subpoenaed documents on the grounds of:

(a) A claim to legal professional privilege over any, or part of, of the subpoenaed document(s); or

(b) A claim that inspection of the subpoenaed document(s), or part of the document(s), by the plaintiff, would tend to expose the director defendant directly or indirectly to a penalty; or

(c) A claim that inspection of the subpoenaed document(s), or part of the document(s), by the plaintiff, would tend to directly or indirectly incriminate the particular director defendant.

3 If a director defendant does not intend to make any claim for restricted access under 2 above, then this fact is to be communicated to the solicitors for the plaintiff and the other director defendants by 11 January 2013.

4 In the event that a director defendant intends to make a claim (or claims) for restricted access under 2 above, the director defendant who makes such a claim must by 4pm 11 January 2013 file and serve an affidavit which:

(a) Enumerates any document in respect of which any inspection is wholly objected to; and

(b) Otherwise exhibits any of the subpoenaed documents in respect of which only part of the document(s) is objected to and in that case, those exhibits are to be redacted in a manner which obscures those documents or parts of documents the subject of each claim; and

(c) Specifies, with respect to each document or partly redacted document so identified, the basis or bases of the relevant claim to restricted access.

5 In the event of a claim for restricted access being made under 4 above, the representatives of the plaintiff are not permitted to access the subpoenaed documents in Court until further order.

6 If the plaintiff proposes to challenge any claim(s) for restricted access made under 4 above, the plaintiff:

(a) must notify the director defendant(s) of this fact within 7 days of receiving an affidavit under 4 above and otherwise is not permitted to challenge the claim(s) after 4pm 18 January 2013; and

(b) has liberty to apply to his Honour Justice Robson's associate for an allocation of time for the dispute as to access of the challenged document(s) to be heard and determined by his Honour.

7 Those legal representatives of the parties named in the Schedule hereto, who provide the undertaking contemplated by Order 1 above, are otherwise granted leave to uplift the subpoenaed documents from the Prothonotory on the date access is first granted to those representatives pursuant to these orders, for the purpose of photocopying the subpoenaed documents and upon the undertaking of the relevant representative that he or she will return the original subpoenaed document(s) to the Prothonotary within 24 hours of uplift.

8 No copy of the subpoenaed documents be provided to any person other than:

(a) the Court; or

(b) in accordance with these orders, or until further order:

(i) the solicitors or counsel for the plaintiff identified in the Schedule below;

(ii) the solicitors or counsel for the director defendants identified in the Schedule below.

and that, without the prior leave of the Court the contents of the subpoenaed documents not be disclosed to any person other than as provided for in this Order 8.

9 Should either the plaintiff or any of the director defendants intend to tender the subpoenaed documents or any part of them to use them or any part of them in examination or cross-examination of any witness at the trial, the party intending to use that material in that fashion must give at least 7 days prior notice (or other shorter period if given leave to do so by the Court) of that intention in writing to the director defendants.

10 Liberty to apply is reserved.

SCHEDULE

Persons for the plaintiff who will need to see confidential material produced in answer to the subpoena:

(a) [These parties to be agreed]

Persons for the director defendants who will need to see confidential material produced in answer to the subpoena:

(b) [These persons to be agreed]

At a glance

Court

Decision date

Before

Source

Judgment (321 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (26)