Australian Stock Exchange Limited v Hudson Securities Pty Limited [1999] NSWSC 1237

Reported Decision : [1999] 33 ACSR 416

New South Wales Supreme Court CITATION : Australian Stock Exchange Limited v Hudson Securities Pty Limited [1999] NSWSC 1237 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 4688/99 HEARING DATE(S) : 7/12/1999 JUDGMENT DATE : 15 December 1999

PARTIES : Australian Stock Exchange Limited (ACN 008 624 691) (Plaintiff) Hudson Securities Pty Limited (ACN 073 633 664) (Defendant) JUDGMENT OF : Santow J

COUNSEL : J Griffiths (Plaintiff) A G Hartnell (Sol) (Defendant) SOLICITORS : Johnson Winter & Slattery (Plaintiff) Atanaskovic Hartnell (Defendant) CATCHWORDS : CORPORATIONS — Stock Exchange — Interpretation of its Business Rules particularly Rule 13.1(1) dealing with ASX investigations — Is the basis for legal adviser and others from Participating Organisation to be present an implied requirement of procedural fairness — Rules of procedural fairness and Business Rule 13.1(1) must accommodate requirement that such presence not prejudice integrity of the investigation — Meaning of that expression — Necessity and justification for implied term to that effect — Public purpose of business rules of ASX and in particular investigation regime in Rule 13.1(1) derived from Pt 7.2 of the Corporations Law and constitution of ASX — Power of ASX to impose undertakings of confidentiality as condition of presence where necessary to avoid prejudice to integrity of investigation — Effect of presence of senior executive in inhibiting answers by interviewee — Scope of Rule 13.1(1) in relation to a potential shadow director being managing director of parent of Participating Organisation. ACTS CITED : Corporations Law s109H, s769A(1), s770, s772A, s774 s777 and s1114, Pt 7.2, Division 10 of Pt 1.2 Australian Securities Commission v Bell (1991) 6 ACSR 281 BP Refinery (Western Port) Pty Limited v Hastings Shire Council (1977) 16 ALR 363 Macquarie Advisory Group Pty Ltd (Receiver appointed) & Ors v Australian Securities and Investments Commission (1999) 33 ACSR 106 CASES CITED : National Companies and Securities Commission v Bankers Trust Australia Ltd & Ors (1989) 24 FCR 217 (Full Federal Court) NCSC v News Corporation Ltd [1984] 156 CLR 296 Shaw Stockbroking v Australian Stock Exchange Ltd (1998) 26 ACSR 702 Stanham v The National Trust of Australia (NSW) (1989) 15 ACL 87 DECISION : ASX permitted to impose undertakings to preserve confidentiality of investigative information.