Supreme Court New South Wales Medium Neutral Citation: In the matter of XY [2013] NSWSC 1747 Hearing dates: 28 October 2013 Decision date: 28 October 2013 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Suppression order made Catchwords: ORDERS - Suppression order - order necessary to prevent prejudice to the proper administration of justice. Legislation Cited: (Cth) Corporations Act 2001 s 1323 (NSW) Court Suppression and Non-Publication Orders Act 2010, s 8 Category: Interlocutory applications Parties: XY - names suppressed Representation: Counsel: Mr D Stack (plaintiff) Mr M Condon SC and Mr E Walker (first, sixth, seventh, eighth defendants) Mr P Fary (third defendant) Ms V Whittaker (second, fifth defendants) Mentioned by Mr Stack (fourth defendant) Solicitors: Australian Securities and Investment Commission (plaintiff) Patterson Houen & Commins (first, sixth, seventh, eighth defendants) Kemp Strang (second, fifth defendants) Evan James, Law Corporation (fourth defendant) File Number(s): 2013/317013 Judgment (EX TEMPORE) 1HIS HONOUR: The (NSW) Court Suppression and Non-Publication Orders Act 2010 ("the Act"), s 8, provides that the Court may make a suppression order or non-publication order on one or more of a number of grounds including, subsection (a) that the order is necessary to prevent prejudice to the proper administration of justice, and (e) that it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. 2This morning, by consent, the Court has continued until 2 December 2013 orders previously made under (Cth) Corporations Act 2001, s 1323, by way of asset preservation orders and disclosure orders and travel restriction orders against the defendants. Those orders were made in aid of an investigation being conducted by the Australian Securities and Investment Commission. ASIC's evidence on which those orders were obtained refers to its concerns and suspicions and to its desire to further investigate them. 3The evidence does not suggest that ASIC has reached any conclusion in respect of the matters about which it has concerns and suspicions. The proceedings before the Court do not claim final relief, but essentially interlocutory relief to protect the investigation. The affidavit of Mr Commins of 25 October 2013 shows that there may be an explanation for the central matter founding ASIC's concerns. Whether that is so or not, of course, remains to be investigated and concluded, but it is fair to record that an explanation has been advanced. 4Because of the nature of the business with which the defendants are associated, it is clear that, were knowledge of these matters to become widely known, there could well be irreparable damage to the economic interests of the defendants. That is in the context where the interlocutory relief has been obtained quite properly without an undertaking as to damages, which ASIC is not required to give under the legislation, but the ultimate effect of that is that if these matters come to public knowledge at this stage then, notwithstanding that there may be a satisfactory explanation for them, the defendants are very likely to suffer serious and possibly irreparable financial damage in a context in which they do not have the protection of an undertaking as to damages. That would be a seriously unjust situation. 5I bear in mind the interests of investors to know about developments in the market concerning the entities to which they have entrusted their moneys, but at this stage the circumstance that ASIC itself is not of the view that publication must take place affords some comfort that those interests will not be unduly jeopardised by the non-publication at this stage. In any event, the interlocutory orders themselves do much to safeguard those interests as best they can be at present. If in the course of the investigations matters arise that are thought to justify or require wider disclosure then the matter can be reviewed by the Court on short notice. 6Section 6 of the Act, while stressing that a primary objective of the administration of justice is to safeguard the public interest in open justice, recognises that that interest must sometimes yield to competing interests and that the interest in avoiding the defeat of justice by publication is a circumstance in which such a yielding will take place. For the reasons I have given, it seems to me that this is such a case. 7I, therefore, make a suppression order prohibiting the disclosure of information by publication or otherwise of any information tending to reveal the identity of or otherwise concerning the defendants to these proceedings in that capacity. This order is made on the ground referred to in s 8(1)(a) that the order is necessary to prevent prejudice to the proper administration of justice. This order applies throughout the Commonwealth of Australia. This order operates until and including 2 December 2013 or such later date as the Court may by further order specify. 8This order does not prevent disclosure in accordance with any order made by the Court nor disclosure to or by the legal representatives of a party to the extent necessary for the proper conduct of the proceedings. 9These orders may be entered forthwith. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 March 2014