Supreme Court New South Wales Medium Neutral Citation: Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2) [2017] NSWSC 1048 Hearing dates: On the papers Decision date: 11 August 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) ASIC is to serve on the plaintiff's legal representative within 7 days redacted copies of any documents within Confidential Exhibit "A" not already served on the plaintiffs' legal representatives, such redactions to be in accordance with the documents prepared by ASIC and provided to the Court on a confidential basis on 28 July 2017. (2) Access to such documents is to be restricted in accordance with order 4 of the orders made by McDougall J on 16 December 2016. Catchwords: EVIDENCE — Privilege — Public interest immunity Cases Cited: Findex Group Ltd v iiNet Ltd [2017] NSWSC 853 Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 Category: Consequential orders (other than Costs) Parties: Findex Group Ltd (First Plaintiff) Spiro Paule (Second Plaintiff) Danielle Ludbey (Third Plaintiff) Phillip Hart (Fourth Plaintiff) iiNet Ltd (First Defendant) iiNet (Ozemail) Pty Ltd (Second Defendant) LinkedIn Australia Pty Ltd (Third Defendant) David Keith McKay (Fourth Defendant) ASIC (Applicant) Representation: Counsel: P Singleton (Applicant - ASIC) MA Friedgut (Plaintiffs) Solicitors: Conrad Gray (Applicant - ASIC) Harmers Workplace Lawyers (Plaintiffs) Corrs Chambers Westgarth (Third Defendant) Just Dispute Resolution (Fourth Defendant) File Number(s): 2016/00271090 Publication restriction: Nil Judgment 1. HER HONOUR: On 30 June 2017 I published my reasons for upholding an application by the Australian Securities and Investments Commission (ASIC) (heard on 28 April 2017) claiming public interest immunity in respect of certain documents seized from or produced by a Mr McKay, a former employee of Findex Group Limited (Findex) (see Findex Group Ltd v iiNet Ltd (Application by ASIC) [2017] NSWSC 853). The background to the present application is set out in the reasons published on 30 June 2017 and need not here be repeated. 2. Being conscious of the need to do no more than is necessary to protect the public interest immunity (see, for example, Sankey v Whitlam (1978) 142 CLR 1 at 41; [1978] HCA 43 (Gibbs ACJ)), I acceded to the plaintiffs' submission that, if (as I did) I were to conclude that the public interest immunity claim was valid and outweighed the plaintiffs' interest in access to the said documents, then I should review the documents and consider whether a regime could be put in place so as to restrict access only to the extent necessary to uphold the immunity. The plaintiffs contemplated that such a regime might be by way of redaction of the documents in question. 3. Having inspected the documents over which the immunity was claimed, I did not accept that it was not practicable to implement a process of redaction of sensitive material from the documents so as adequately to preserve the immunity but at the same time to allow the plaintiffs access to that which would not destroy the immunity (see my reasons at [69]). Accordingly, although I upheld ASIC's claim to public interest immunity, I put in place a regime whereby ASIC's legal representatives were provided with a copy of the documents the subject of the claimed immunity, marked so as to indicate the redactions which I considered would meet the competing concerns in relation to that material, and were given an opportunity to make further submissions if ASIC considered that, despite the proposed redaction, the public interest immunity would be destroyed by the publication to the plaintiffs of the redacted material (see [70] and [72] of my reasons). 4. In accordance with further directions made by me on 17 July 2017, ASIC served written submissions dated 28 July 2017 in which ASIC indicated that it had no objection to the provision to the plaintiffs of the proposed redacted copies of a number of the documents over which public interest immunity had been established (and I understand that this has by now occurred) but sought further redactions in relation to certain other documents. By consent, ASIC's further submissions were provided on a confidential basis although a redacted version (comprising only [1]-[8] of the written submissions) was served on the plaintiffs' legal representatives. 5. The essence of ASIC's submissions on the further redactions it seeks before access to the remaining documents is provided to the plaintiffs (as contained in the non-confidential section of their submissions) is that certain portions of the documents now in question appear in other documents that have already been disclosed to the plaintiffs. In that regard, ASIC says (at [6] of its submissions) that ASIC's proposed redactions are based on the following two propositions: (1) Such portions should be produced again if producing them again would not harm the public interest. This is so even if the plaintiffs would derive no benefit from receiving the material again. (2) However, if the production of such material would show that there was some hitherto undisclosed context into which the material had been put then the value to the plaintiffs of disclosing that context – or, in appropriate cases, of disclosing the mere fact that there was a new context at all – must be balanced against the public interest in non-disclosure of the new context or its existence. 1. At [7] of its submissions ASIC goes on to say: To put the matter more bluntly, if giving the plaintiffs the same material again would do no harm then it must be given. If to give the plaintiffs the same material again would not benefit the plaintiffs, but would harm the public interest, then the material must not be given. If to give the same material again to the plaintiff would help the plaintiffs in some legitimate way, but would also harm the public interest, then the potential help and harm must be balanced. 1. Further, at [8] of its submissions, ASIC submits that: (1) To the extent that the Court has crafted redactions on the basis that they are sufficient to protect the public interest in question then ASIC apprehends that the principal purpose of Order 4 made on 29 June 2017 was to allow ASIC to make further submissions on whether the redactions will be sufficient or more redacting is needed to achieve that purpose. That includes addressing any apparent slips or inconsistencies in the redactions. (2) To the extent that the redactions proposed by the Court are based on identifying in the emails material that may be useful to the plaintiffs – and that is the reason that the Court has held that certain material should be disclosed – then ASIC below [in the redacted submissions] draws attention to instances where the material in question is already in the plaintiffs' hands (because it appears in other documents already produced to the plaintiffs or their lawyers) and/or makes contentions on the relative value to the plaintiffs and harm to the public interest. 1. Pausing there, while I accept that what is stated at [8(1)] of ASIC's submissions is correct, in that I considered that ASIC should have an opportunity to consider and make submissions as to the production of the redacted documents that I proposed otherwise to order, I do not accept the proposition stated at [8(2)] of ASIC's submissions. 2. I did not undertake the exercise of identifying, in the emails over which public interest immunity existed, material "that may be useful to the plaintiffs" nor was that the reason that I held that certain material (albeit with redactions) should be disclosed to the plaintiffs. It was not for me to make any assessment as to whether a document might be "useful" to the plaintiffs nor would I have been in a position to do so having regard to the limited material before me as to the substantive dispute. 3. Rather, as set out in [63] to [65] of my earlier reasons, I inspected the documents for the purpose of balancing the public interest in the non-disclosure of the documents in question (that being the public interest in the efficacy of ASIC's policing and investigation in its capacity as a regulatory authority) with the public interest that the administration of justice not be frustrated by the withholding of those documents from the plaintiffs (those documents having been the subject of orders for production made on 23 September 2016). 4. In my reasons, I noted (at [65]) that the plaintiffs' "need" to inspect the documents seemingly went to a desire on their part to bolster their already existing claims for misleading and deceptive conduct/defamation and/or to formulate other causes of action in relation to the same or whatever other publications may have been the subject of the unseen communications. That was based on the submissions made for the plaintiffs as to their interest in production of the documents, not on any review of the documents on my part. No part of the exercise that I carried out in reviewing the documents involved the identification within specific documents of material "that may be useful to the plaintiffs", as suggested in [8(2)] of ASIC's submissions. Provided that the proposed redactions fully protected the public interest that was the basis of ASIC's public interest immunity claim, there was no warrant further to consider the usefulness or value of particular material to the plaintiffs. Determination 1. I have considered ASIC's submissions of 28 July 2017 by reference to the documents in their unredacted form and as ASIC now submits they should be redacted. Having done so, I am satisfied that the public interest in non-disclosure which forms the basis of ASIC's public interest immunity claim (which in my opinion undoubtedly outweighs the public interest in disclosure) requires the further redactions proposed by ASIC. This includes the redaction of portions of documents which appear in other documents already disclosed to the plaintiffs where disclosure of the context and/or the fact that there was a new context would itself be prejudicial to ASIC's public interest immunity claim. I accept that without the further redactions in relation to a relatively small number of documents, the public interest in maintaining the efficacy of ASIC's policing and investigation in its capacity as a regulatory authority will be harmed. For completeness, I note that the proposed additional redactions include redactions to correct a slip or inconsistency. 2. Finally, I would be inclined again to order that there be no order as to costs. However, I note that at the time of publication of my first set of reasons in this matter the plaintiffs foreshadowed that they might seek the making of costs orders in relation to the application. There now being a position in which further orders will be made in this matter it may be that the plaintiffs will wish to agitate the question of costs. For that reason I make no formal order as to the costs of the further steps taken in this matter since my last judgment. Conclusion 1. For the above reasons, I make the following orders: 1. ASIC is to serve on the plaintiff's legal representative within 7 days redacted copies of any documents within Confidential Exhibit "A" not already served on the plaintiffs' legal representatives, such redactions to be in accordance with the documents prepared by ASIC and provided to the Court on a confidential basis on 28 July 2017. 2. Access to such documents is to be restricted in accordance with order 4 of the orders made by McDougall J on 16 December 2016. ********** Amendments 11 August 2017 - New version uploaded 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: 11 August 2017