P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044

FEDERAL COURT OF AUSTRALIA

P Dawson Nominees Pty Ltd v Multiplex Limited [2007] FCA 1044 PRACTICE – representative proceeding claiming breach of continuous disclosure obligations – investigation by Australian Securities and Investments Commission – subpoena to ASIC to produce documents obtained and created in course of investigation – no opposition by ASIC – opposition by respondents Held: Leave granted on terms as to inspection Corporations Act 2001 (Cth) s 674 Federal Court of Australia Act 1976 (Cth) ss 33N, 33P Australian Securities and Investments Commission Act 2001 (Cth) s 25(1) Federal Court Rules O15A r 8, O27A r 2(3)(a) Johns v Australian Securities Commission (1993) 178 CLR 408 cited Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 followed Commissioner for Railways v Small (1938) 38 SR (NSW) 564 discussed Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686 cited Pasini v Vanstone [1999] FCA 1271 cited Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 cited Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432 cited McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 cited P DAWSON NOMINEES PTY LTD v MULTIPLEX LIMITED & ANOR VID 1380 OF 2006

HEEREY J

12 JULY 2007

HOBART (HEARD IN MELBOURNE) IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1380 OF 2006

BETWEEN: P DAWSON NOMINEES PTY LTD

Applicant

AND: MULTIPLEX LIMITED

First Respondent

MULTIPLEX FUNDS MANAGEMENT LIMITED

Second Respondent

JUDGE: HEEREY J DATE OF ORDER: 12 JULY 2007

WHERE MADE: HOBART (HEARD IN MELBOURNE)

THE COURT ORDERS THAT: 1. The applicant have leave to issue a subpoena directed to the Australian Securities and Investments Commission seeking the documents described in par 10 of these reasons subject to the following terms: (1) Within 14 days of service of the subpoena and a copy of this order and these reasons ASIC shall (a) deposit at the Victoria District Registry of the Court the documents the subject of the subpoena together with a list of such documents; and (b) file such list in the Court and serve a copy on the parties. (2) If ASIC seeks to restrict inspection of any of the documents by the parties on grounds of privilege or for any other reason it shall (a) separate such documents in an identified bundle and (b) file in the Court and serve on the parties a statement identifying such documents and the grounds on which such restriction is claimed. (3) The respondents shall have 14 days after the deposit of such documents to inspect and make copies of those to which ASIC does not seek to restrict inspection. (4) If the respondents seek to restrict inspection of any of the documents by the applicant they shall (a) by arrangement with ASIC separate such documents in an identified bundle; and (b) file in Court and serve on ASIC and the applicant a statement identifying such documents and the grounds on which such restriction is claimed. (5) After the expiry of the period in (3) above the applicant shall be at liberty to inspect and make copies of the documents to which neither ASIC nor the respondents seek to restrict inspection. (6) The parties and ASIC may refer to a judge any dispute as to restrictions on inspection. 2. The respondents pay the applicant's costs of the application for leave.