Shipley v Masu Financial Management [2008] NSWSC 1187

Reported Decision : 68 ACSR 412

New South Wales Supreme Court

CITATION : Shipley v Masu Financial Management [2008] NSWSC 1187

HEARING DATE(S) : 21/10/08

JUDGMENT DATE : 22 October 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 22 October 2008

DECISION : Refer to paras 41-43 and 45-47 of judgment.

CATCHWORDS : PRACTICE AND PROCEDURE – subpoenae – subpoena issued on ASIC following examinations – legitimate forensic purpose – on the cards that material will assist the plaintiffs' case – claim for confidentiality outweighed by the interests of the plaintiffs and the public – subpoena not set aside but production limited in the first instance to legal representatives - CORPORATIONS – ASIC – examinations – confidentiality of examinations – s 127(1)(a) ASIC Act requires ASIC to take all reasonable measures to protect confidentiality of information elicited in examinations against unauthorised use or disclosure – whether ASIC required to assert claims of privilege and inspection pursuant to Court's order not an unauthorised use or disclosure production to the Court – ASIC not a party – evidence did not establish that ASIC could have claimed privilege – not established that ASIC failed to take all reasonable measures to protect the confidentiality of the information

Australian Securities and Investments Commission Act 2001 (Cth) LEGISLATION CITED : Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth)

Johns v Australian Securities Commission (1993) 178 CLR 408 Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 138; (2000) 18 ACLC 609 Saleam v R (1989) 16 NSWLR 14 CASES CITED : National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372 R v Saleam [1999] NSWCCA 86 Attorney General (NSW) v Chidgey [2008] NSWCCA 65 DPP v Selway [2007] VSC 244 Ragg v Magistrates' Court of Victoria [2008] VSC 1