Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 EVIDENCE – public interest immunity – application for leave to appeal from dismissal of claim to resist production of documents tending to identify informer(s) to the Australian Securities and Investments Commission Held: 1. Leave to appeal should be granted; 2. The order dismissing the claim for immunity was not an exercise of discretion; 3. The immunity from disclosure of informers' identity was not absolute but required a balancing exercise; 4. It is not conclusive against immunity that an informer's identity is known to the person informed against; 5. The documents in question would tend to identify the informer(s); 6. The balance should be struck against production of the documents; 7. The Court's reasons should be published. Corporations Act 2001 (Cth) Pt 9.4AAA, ss 1317AA, 1317AE Federal Court of Australia Act 1976 (Cth) s 24(1A) Aboriginal Sacred Sites Protection Authority v Maurice; re The Warumungu Land Claim (1986) 10 FCR 104 cited Alister v The Queen (1984) 154 CLR 404 cited Attorney-General v Stewart (1994) 34 NSWLR 667 cited Byrne v Deane [1937] 1 KB 818 cited Cain v Glass (No 2) (1985) 3 NSWLR 230 cited D v National Society for the Prevention of Cruelty to Children [1978] AC 171 cited Goldberg v Ng (1994) 33 NSWLR 639 cited Haydon v Magistrates Court (2001) 87 SASR 448 cited House v The King (1936) 55 CLR 499 cited Jarvie v The Magistrates' Court of Victoria at Brunswick [1995] 1 VR 84 cited P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1659 reversed R v Francis (2004) 145 A Crim R 233 cited Sankey v Whitlam (1978) 142 CLR 1 cited Spargos Mining NL v Standard Chartered Aust Ltd (No 1) (1989) 1 ACSR 311 cited State of Victoria v Brazel [2008] VSCA 37 followed Warren v Coombes (1979) 142 CLR 531 applied Zarro v Australian Securities Commission (1992) 36 FCR 40 cited AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v P DAWSON NOMINEES PTY LTD, MULTIPLEX LIMITED and MULTIPLEX FUNDS MANAGEMENT LIMITED