JUDGMENT No. 023 od ott... CATCHWORDS ADMINISTRATIVE LAW - Judicial Review - review of decision to issue notice under s. 33 of the Australian Securities Commission Act 1989 - requirement of procedural fairness - interlocutory relief - whether serious question to be tried - balance of convenience. Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Securities Commission Act 1989 (Cth) Norwest Holst Ltd v Secretary of State for Trade [1978] 1 Chdiv ut: issioner of Taxati (1985) 85 ATC 4,307 Allen Allen & Hemsley v Deputy Commissioner of Taxatjon (1988) 81 ALR 617 v Al EB TI IN No. NG 622 of 1994 Sydney AUSTRALIA PRINCIPAL REGISTRY 28 September 1994 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G 622 of 1994 BETWEEN: MINOSEA PTY. LIMITED, "ZIGOLINI'S RESTAURANTS PTY. LIMITED AND ZIGOLINI'S MANAGEMENT PTY. LIMITED, Applicants AND AUSTRALIAN SECURITIES COMMISSION Respondent CORAM: LINDGREN J DATE : 28 SEPTEMBER 1994 PLACE: SYDNEY M F_ORDE THE COURT ORDERS THAT: 1. The application for interlocutory relief be refused. 2. The applicants pay the respondent's costs of that application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G 622 of 1994 BETWEEN: MINOSEA PTY. LIMITED, ZIGOLINI'S RESTAURANTS PTY. LIMITED AND ZIGOLINI'S MANAGEMENT PTY. LIMITED, Applicants AND AUSTRALIAN SECURITIES COMMISSION Respondent CORAM: LINDGREN J DATE: 28 SEPTEMBER 1994 PLACE: SYDNEY NS FOR NT F_ PR EDIN By their application filed on 14 September 1994 the applicants apply under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") for an order of review in respect of the decision and the conduct of the respondent pursuant to, and by which it prepared and issued a notice or Notices pursuant to s. 33 of the Australian Securities Commission Act 1989 (Cth) ("ASC Law") dated 8 September 1994 to unidentified persons, that is to say, to persons whose identities are not known to the applicants. The applicants claim a declaration that the notice or notices are invalid and an order that the notice or notices be set aside ab initio. A notice was given to the State Bank of New South Wales Limited ("SBNSW") and the evidence gives reason to think that notices in identical form were given to other persons - thus the reference to "notice or notices", but I shall henceforth, for convenience, refer simply to "notices". The notices were expressed to be given in relation to an investigation by the respondent ("the ASC") under Division 1 of Part 3 of the ASC Law of a suspected contravention of s. 229 of the Corporations Law by persons associated with the applicants in the period from 29 October 1991 to 30 June 1994 ("the relevant period"). The notices required production to Peter Riordan, a staff member of the ASC, on 20 September 1994, of the books specified in the schedule to the notices. The applicants seek by way of final relief, inter alia, a declaration that the notices are invalid and an order that they be set aside ab initio. The applicants claim by way of interlocutory relief, the following orders pending the final hearing and determination of the proceedings: "1. An order that the Respondent by itself, its servants and agents be restrained from inspecting, copying or otherwise recording documents in its possession custody or control obtained from the recipients of the Notice/s issued pursuant to Section 33 of the Australian Securities Commission Act, 1989 (Commonwealth) in relation to the affairs of the Applicant; 2. An order that the Respondent by itself, its servants and agents be restrained from requiring or seeking to require the recipients of the Notice/s to comply with the same; ..." These reasons for judgment relate only to the application for interlocutory relief. It was not in dispute that the criteria to be considered in connection with that application are whether there is a serious question to be tried that the applicants will be held entitled to the relief sought in their application, and whether the balance of convenience favours the granting of the interlocutory relief sought; cf. Minister fo Immigration Local vernment and Ethnic Affairs v Msilanga (1992) 34 FCR 169 (FCA/Full Court). THE HEARING ON 14 SEPTEMBER 1994 On the hearing of the application for interlocutory relief, Mr T K Tobin QC with Mr S T White of counsel appeared for the applicants, and Mr J T Gleeson of counsel appeared for the respondent. The evidence comprised an affidavit of Scott Maurice Freidman ("Mr Freidman") a solicitor employed by the solicitor for the applicants, and a document tendered on behalf of the applicants. No evidence was led by the respondent. There was no cross-examination. FACTS It is convenient to set out the facts in the form of a chronology. 24.2.93 Jennifer Gail Austin ("Mrs Austin"), a director of the applicants, was examined pursuant to s. 19 of the ASC Law in connection with an investigation by the ASC into certain share trading in Johnson's Well Mining NL. 10.5.94 The ASC wrote to Mrs Austin advising that it had been asked by the Insolvency and Trustee Service Australia ("ITSA") to disclose to it the written record of Mrs Austin's examination to further its investigations into the affairs of Mr Manasseh Showa Manasseh who was ae bankrupt person under its administration. The letter enclosed a copy of the transcript of her examination, and inviting her, if she considered that her interests would be adversely affected by the disclosure, to make submissions in opposition to it for consideration by the ASC. The 25.5.94 1.6.94 6.6.94 12.8.94 15.8.94 15.8.94 letter included the following: "4... the Commission is required under the principles of procedural fairness to give you the opportunity to make submissions to oppose the disclosure of the transcript to ITSA and to consider any such submissions before deciding whether or not to disclose." Maurice Freidman & Company ("Freidman Co"), the solicitors for, inter alia, Mrs Austin, replied on her behalf submitting that disclosure should not be made for reasons set out in the letter. Freidman Co wrote to the ASC advising that, if the ASC approved, Mrs Austin would have no objection to their providing to ITSA a copy of the transcript. The ASC wrote to Freidman Co approving of the release by Freidman Co of the transcript to ITSA subject to conditions of confidentiality. On or about this date the ASC served on SBNSW a notice under s. 33 of the ASC Law ("the first notice") requiring SBNSW to produce to Ms Fiona Munro-Ashman, a staff member of the ASC, on 26 August 1994, the books specified in the schedule to the notice relating to the affairs of the applicants during the relevant period. SBNSW made available a copy of that notice to the applicants. Mr Freidman telephoned Ms Munro-Ashman of the ASC who said that notices had also been served on other persons but she declined to say who they were, asserting that the ASC was under no obligation to disclose that information as the ASC was "in the preliminary stage of making inquiries". Mr Freidman had a further telephone conversation 15.8.94 16.8.94 16.8.94 16.8.94 16.8.94 with Ms Munro-Ashman advising that there would be a challenge to the validity of the first notice. The ASC wrote to Freidman Co advising that without conceding that the first notice was defective, the ASC had withdrawn it, proposed to issue a fresh notice, and as a matter of courtesy enclosed a copy of the proposed further notice. The letter also asserted that the ASC was not obliged to provide a copy of any notice served in relation to any investigation into the affairs of the applicants. Mr Freidman telephoned Ms Munro-Ashman acknowledging receipt of her facsimile transmission and advised her that he would require an undertaking to withdraw all other notices in similar terms to the first notice, and a further undertaking that any books produced to the ASC by the recipients of notices would be returned to them unopened. Freidman Co wrote to the ASC calling for those two undertakings. The ASC wrote to Freidman Co giving the two undertakings sought. The letter also advised that the ASC was investigating suspected breaches of s. 229 of the Corporations Law concerning' the management of the applicants. By the concluding Paragraph the ASC advised that it proposed to give to "the various recipients" of the first notice, a notice in a form similar to a pro forma notice which was enclosed with the letter. Under cover of a facsimile transmission of this date, the ASC served on SBNSW a further notice ("the second notice") requiring the production of books under s. 33 of the ASC Law, and advised that the 17.8.94 18.8.94 19.8.94 19.8.94 19.8.94 first notice was withdrawn and that SBNSW was not to produce any books pursuant to the first notice, but was to produce them pursuant to the second notice. Freidman Co wrote to the ASC asking whether it would be prepared to advise when a further notice was served upon SBNSW and asking that a copy be furnished to that firm. The ASC wrote to Freidman Co in reply, pointing out that it had, in its facsimile dated 16 August 1994, advised that a fresh notice would be served on SBNSW and provided a pro forma notice similar to that intended to be served. The letter stated, however, that the ASC was under no obligation to advise of the date when the further notice would be served on SBNSW or to provide a copy of it. The letter concluded, "Accordingly, the Commission will not advise you of the date of service on the State Bank nor provide you with a copy of the notice." In fact, the second notice had already been served on SBNSW two days earlier on 16 August 1994. The applicants commenced proceedings in this Court seeking an order of review of the decision of the ASC to issue notices in the form of the second notice, on SBNSW and other unidentified persons. Mr Freidman spoke to Mr Peter Riordan of the ASC in which Mr Riordan said that the investigation arose out of Mrs Austin's examination before the ASC in 1993 in connection with Johnson's Well Mining NL. By facsimile transmission of this date Freidman Co enclosed a copy of the applicants' application for an order of review and seeking undertakings that the ASC would not seek to enforce the notices pending 19.8.94 5.9.94 8.9.94 the outcome of the proceedings, that it would advise recipients that the notices served on them were the subject of challenge and that no documents should be produced to the ASC pending the outcome of the proceedings, and finally that the ASC would not examine any documents which might be produced to it pursuant to the notices. By facsimile transmission of this date the ASC acknowledged receipt of the application for an order of review and gave an undertaking in the terms sought by Freidman Co. Freidman Co wrote to the ASC requesting, pursuant to s. 13 of the AD(JR) Act, a statement in writing setting out the findings on material questions of fact (referring to evidence or other material on which the findings were based), and giving reasons for the decision to issue the second notice. The ASC wrote to Freidman Co undertaking, without conceding any obligation to do so, that it would withdraw the second notice and those in similar form to it issued on 16 and 17 August 1994, and advising that it would issue fresh notices. The letter included the following paragraph: "The ASC is not obliged to provide your clients with a copy of any notice served in relation to the investigation nor to inform your clients of the proposed recipients of any _ notices. However, as a matter of courtesy, I enclose a copy of the further notice which the ASC proposes to serve on the State Bank of New South Wales Limited." There was indeed enclosed a copy of a third notice dated 8 September 1994 addressed to SBNSW and signed by "Peter Riordan" ("the third notice"). 9.9.94 On this date, the ASC wrote to Freidman Co advising that the ASC assumed that the applicants no longer pressed their request pursuant to s. 13 of the AD(JR) Act in relation to the second notice, and requesting confirmation of this. 9.9.94 Freidman Co wrote to the ASC advising that they were instructed to consent to discontinuance or dismissal of the pending proceedings on the basis that the ASC pay the applicants' costs, and that they were seeking counsel's advice in relation to pressing for a reply under s. 13 of the AD(JR) Act in relation to the second notice. By the same letter, Freidman Co advised the ASC that the applicants had given instructions for the filing of an application for an order of review in relation to the third notice, and sought, in relation to the third notice, the same undertakings as the ASC had given in relation to the second notice. 9.9.94 The ASC wrote to Freidman Co advising that the ASC was not prepared to give any undertakings in relation to the third notice. 14.9.94 The application in these proceedings was filed. PARTIES' ISSION Although the application by which the proceedings were commenced gave as grounds not only breaches of the rules of natural justice, but as well impropriety of the decision to exercise or of the exercise of the power conferred by s. 33 of the ASC Law and unreasonable delay in the making of the decision, it was only the first ground referred to which was relied upon in submissions as supporting the grant of interlocutory relief. Section 33 of the ASC Law is relevantly as follows: "33 The Commission may give to a person a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books that are in the first-mentioned person's possession and relate to: (a) affairs of a body corporate; or The applicants submitted that the kinds of situations in which the requirements of procedural fairness may be attracted have expanded in recent years and should no longer be conceived of in terms of "the character of the proceedings". They cited Kioa v West (1985) 159 CLR 550 esp. at 584-585 (Mason J); Annetts v McCann (1990) 170 CLR 596 esp. at 599-600 (per Mason CJ, Deane and McHugh JJ) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 esp. at 576-577 (per Mason CJ, Dawson, Toohey and Gaudron JJ) and Johns v Australian Securities Commission (1993) 178 CLR 408. It was submitted that the applicants had "interests" and/or "legitimate expectations" which would be prejudiced by a decision to exercise the power conferred by s. 33 of the ASC Law. In particular, it was submitted that, at least in the case of a recipient which was a bank, there would be a breach of the obligation of confidence owed by it to the applicants. It was further submitted that the applicants' reputation would be injured because of the "suspicion of wrongdoing" which would arise from the recipients' reading in the notices that there was a suspected contravention of s. 229 of the Corporations Law by persons associated with the applicants. In relation to the latter, the applicants relied upon Lewis v Daily Telegraph Limited [1964] AC 234 (HL). The applicants further submitted that a legitimate expectation that they would be afforded an opportunity to be heard prior to the issue of any notice under s. 33 arose from the fact that the ASC had given Mrs Austin an opportunity to make submissions before providing a copy of the transcript of her examination to ITSA and/or from the course of correspondence between the ASC and Freidman Co in connection with the first and second notices in 1994. In reply to these submissions, the respondent submitted as follows: 1. It will almost always be the case that compliance with a gs. 33 notice will raise a confidentiality issue, and in any event the confidentiality of information given to the Commission is safeguarded by provisions in Division 2 (ss. 127, 127A) of Part 7 of the ASC Law. 2. The reference in the third notice to a contravention of 8. 229 of the Corporations Law by persons associated with the applicants would not reflect adversely on the applicants since they were not pointed to in that notice as the alleged contraveners. 3. The according by the ASC of an opportunity to be heard to Mrs Austin prior to the disclosure of the confidential transcript of her examination was explicable by reference to s. 127 of the ASC Law. 4. The correspondence between the ASC and Freidman Co relating to the first and second notices did not generate a legitimate expectation that a third notice would not be given without the ASC's first according to the applicants an opportunity to be heard, and in particular the "withdrawal" of the first notice and of the second notice was explicable by the ASC's desire to ensure that the form of notice ultimately to be relied upon was beyond challenge. REASONS I accept the applicants' submission that the question whether the exercise of a statutory power attracts the requirements of procedural fairness must be approached flexibly and with a view to the factual context of the particular case. I think it was accepted by the applicants, and in any event it seems to me, that to hold that the requirements applied here would be to go further than any existing case has gone. There are three cases in which it has been held that the rules of natural justice did not apply to the decision to issue generally similar notices in somewhat similar circumstances. In Norwest Holst Ltd v Secretary of State for Trade rs [1978] 1 Ch 201 (CA) the Department of Trade, under s. 109 of the Companies Act 1967 (UK), required a company to produce certain of its books and papers to two appointed officers. The notice was complied with. Four months later, the Secretary of State appointed inspectors to investigate the affairs of the company and to report. Lord Denning M R said (at 224) "There are many cases where an inquiry is held - not as a judicial or quasi-judicial inquiry - but simply as a matter of good administration. In these circumstances there is no need to give preliminary notice of any charge, or anything of that sort. Take the case where a police officer is suspected of misconduct. The practice is to suspend him pending inquiries. He is not given notice of any charge at that stage, nor any opportunity of being heard. The rules of natural justice do not apply unless and until it is decided to take proceedings. Other instances can be given in other fields. For instance, the Stock Exchange may suspend dealings in a company's shares. They go by what they know, without warning the company beforehand. Equally, so far as s. 109 is concerned, when the officers of the Department of Trade are appointed to examine the books, there is no need for the rules of natural justice to be applied. If the company was forewarned and told that the officers were coming, what is to happen to the books? In a wicked world, it is not unknown for books or papers to be destroyed or lost." Ormrod and Geoffrey Lane L JJ agreed. An application for leave to appeal to the House of Lords was dismissed. The primary challenge was to the Board of fTrade's later appointment of the inspectors to investigate the company's affairs, and the Court of Appeal held that the requirements of natural justice did not apply to that appointment either. The second case to which I referred is Sixth Ravini Pt td v Deputy Commissioner of Taxation (1985) 85 ATC 4,307. In that case application was made for an order of review of a decision of the Deputy Commissioner of Taxation to serve a notice under sg. 264 of the Income T Assessment Act 1936 ("the Assessment Act"). Relevantly, that section provided as follows: "264(1) The Commissioner may by notice in writing require any person, ... (b) to attend and give evidence ... before any officer authorised by him in that behalf concerning his oor any other' person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto." The notice in question required a company to produce to a named officer of the Australian Taxation Office, certain classes of books, documents and papers concerning the income and/or assessment of the company as trustee of certain named trusts for certain specified financial years. The decision to issue the notice under s. 264 was attacked on various grounds set out in s. 5 of the AD(JR) Act. Northrop J said this in relation to the question of the applicability of the requirements of natural justice to the decision: "The power conferred by sec. 264 of the Assessment Act is a power to investigate, a power which in many respects is inquisitorial in nature. The Deputy Commissioner is seeking information and the production of documents. The person to whom the notice is given must, in the absence of lawful excuse, comply with the requirements of the notice. If he does not, he commits a criminal offence. In this context it is difficult to see how the law could imply the necessity for the Deputy Commissioner to comply with the requirements of natural justice before issuing and serving the notice. In my opinion, there is no basis for saying that the requirements of natural justice apply to the facts of this case." (at 4,313) His Honour granted an application by the Deputy Commissioner under Order 20, rule 2 of the Federal Court Rules for an order for summary dismissal on the basis that the company's application failed to disclose a reasonable cause of action, and was frivolous, vexatious and an abuse of the process of the Court. Of course his Honour acknowledged that he was entitled to grant such an application only if it was shown that the application "cannot possibly succeed" or otherwise that the stringent test laid down by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 was satisfied. It should be noted, when the relevance of the foregoing passage from the Sixth Ravini case to the facts of the present case is being considered, that sub-section 63(1) of the ASC Law provides, inter alia, that a person shall not, without reasonable excuse fail to comply with a requirement under s. 33, and that non-compliance attracts a maximum penalty of $10,000 or imprisonment for two years, or both. This suggests at least that Parliament intended that the operation, vis-a- vis the recipient, of a notice under s. 33 should not be "suspended" by reason of non-compliance with requirements of procedural fairness prior to the issue of the notice. The third case to which I referred, Allen Allen Hemsley v ion Ww. (1988) 81 ALR 617, concerned an application by a firm of solicitors ("Allens") under the AD(JR) Act seeking an order of review of decisions of taxation officers to seek access to the firm's trust account records. Section 263 was as follows: "(1) The Commissioner, or any officer authorised by him in that behalf, shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this Act, and for that purpose may make extracts from or copies of any such books, documents or papers. (2) An officer is not entitled to enter or remain on or in any building or place under this section if, on being requested by the occupier of the building or place for proof of authority, the officer does not produce an authority in writing signed by the Commissioner stating that the officer is authorised to exercise powers under this section. (3) The occupier of a building or place entered or proposed to be entered by the Commissioner, or by an officer, under sub-section (1) shall provide the Commissioner or the officer with all reasonable facilities and assistance for the effective exercise of powers under this section." The trust account records in question related to particular clients of Allens. One of the "lesser" arguments advanced for Allens was that there had been a failure to comply with the requirements of natural justice in the making of the relevant decisions. Pincus J held, citing the Norwest Holst and Sixth Ravini cases, that the Commissioner had no obligation to observe those requirements before issuing an authority to an officer to exercise powers under s. 263. I accept the applicants' submission that there has been in recent years a considerable liberalisation of the criteria according to which the courts impose obligations of procedural fairness in connection with the exercise of statutory powers. I further note that the most recent of the three cases to which I have referred was decided six years ago. Yet I do not think that there is a serious question to be tried as to whether the obligation exists in respect of the ASC's decision to issue the third notice. It is convenient to address the matters raised by the applicants in the four categories suggested by the respondent. 1. In relation to the applicants' interest in the maintenance of confidentiality by their banker, it must be the case that many s. 33 notices to third parties would trespass upon a right which the subject company would otherwise have to prevent the third party from producing books to the ASC without that company's consent. Accordingly, s. 33 must be taken to contemplate compulsion of what would otherwise, at least in many cases, be a breach of an obligation of confidence. Of course, 80 stated this fact does not necessarily signify an intention that an obligation of procedural fairness is not to apply. However, the commonness of the situation and the inconvenience and delay which would occur in many cases by the law's imposition of that obligation, suggests an intention that the obligation should not exist. Moreover, the ASC Law, by ss. 127 and 127A, safeguards the confidentiality of information derived by the ASC's officers from books produced pursuant to notices under s. 33. What harm is done if the information derived from inspection of the books produced does not go beyond those officers? Finally, it should be noted that the power given by s. 33 is, relevantly, only to be exercised in relation to a suspected contravention of a national scheme law; see ASC Law, 8. 28 (c)(i). Accordingly, notices of the kind in issue in this case are given at a fact gathering stage, which is conceptually remote from the taking of any decision by the ASC on the commencement of proceedings in relation to the suspected contravention. I do not think that the reference in the third notice to "a suspected contravention of s. 229 of the Corporations Law by persons associated with" the applicants is apt to injure the reputations of the applicants themselves, or if it is, I think that the injury is of a kind contemplated and accepted by s. 33 in the same way as the breach of an obligation of confidence is. The probability is that a recipient of a notice would think that the applicants had been the "victims" rather than the perpetrators of any wrongdoing which may be found to exist. I do not accept that a legitimate expectation that an Opportunity to be heard would be granted prior to the issue of the third notice was generated by the stance taken by the ASC in 1993 in relation to the confidential transcript of Mrs Austin's evidence. No doubt the ASC perceived that it was subject to an obligation to accord procedural fairness to Mrs Austin by reason of the High Court's decision in Johns v Australian Securities Commission (1993) 178 CLR 408. Unlike that case, the present case does not concern a threat by the ASC to disclose information which it has obtained in exercise of a statutory power for one purpose, to another body to be used by it for a different purpose. I do not accept that a legitimate expectation of an opportunity to be heard was generated by the ASC's conduct in relation to the first notice and the second notice. The ASC did not, for example, expressly or by implication give an assurance or create or contribute to an assumption that once it "got its form right", it would not serve it without giving the applicants an opportunity to be heard. On the contrary, orally on 15 August 1994, by letter dated 15 August 1994, by letter dated 18 August 1994 and by letter dated 8 September 1994, the ASC, in effect, asserted that it was entitled to give a notice under s. 33 without providing a copy to the applicants or advising them of the identity of the recipients of the notice. In summary, I do not think that the applicants have demonstrated a serious issue to be tried as to whether they would, on a final hearing obtain the relief sought in their application. The conclusion which I have just expressed renders it unnecessary for me to consider the issue of balance of convenience. [It is somewhat artificial to consider the latter in the hypothetical context that there is a serious question to be tried, since the strength of the applicant's case for the granting of final relief is related to the strength of the applicant's case on the balance of convenience. Assume that an applicant appears to have a strong case for the grant of final relief: it may not matter that the balance of convenience is evenly poised or would favour the respondent in that situation. Assume, on the other hand, that an applicant has barely established the existence of a serious question to be tried and that the probability appears to be that there will not be a grant of the final relief sought: the applicant may need to show that the balance of convenience distinctly favours the granting of interlocutory relief in that situation. On this interrelationship between "serious question to be tried" and "balance of convenience", see, for example, Bullock v The Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464 (FCA/Full Court) at 472 (per Woodward J with whom Smithers and Sweeney JJ agreed); Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 (FCA/Full Court) at 397-398 (per Hill J with whom Sweeney J agreed). A refusal of the interlocutory relief here would pre-empt the granting of the particular final relief sought. Against this, the respondent pointed out that the suspected contravention was of s. 229 of the Corporations Law and that for this reason there should not be further delay. Section 229 prohibits certain persons from managing a corporation. Apparently, it is suspected that such persons have managed, or are managing one or more of the applicants. This is, indeed, a serious matter. If, contrary to what I have said earlier, I had been of the view that there was a serious issue to be tried as to whether the applicants would obtain the final relief which they seek, I would not have considered on the basis of nothing more than the nature of the suspected offence, that the balance of convenience would have favoured the respondent. On the contrary, I would have granted interlocutory relief and made directions designed to achieve an early final hearing. CONCLUSION The application for interlocutory relief is refused and the applicants are ordered to pay the respondent's costs of that application. I certify that this and the preceding 17 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren Associate: Vy JN Dated: 28 cum 1994 | 14 September 1994 Sydney 28 September 1994 Mr T K Tobin QC and Mr S T White of counsel instructed by Maurice Friedman & Company appeared for the applicants. Mr J T Gleeson of counsel instructed by the Australian Securities Commission appeared for the respondent.