P Dawson Nominees Pty Ltd (ACN 004 743 408) v Australian Securities and Investments Commission (No 3) [2009] FCA 779 (23 July 2009)

Last Updated: 23 July 2009

FEDERAL COURT OF AUSTRALIA

P Dawson Nominees Pty Ltd (ACN 004 743 408) v Australian Securities and Investments Commission (No 3) [2009] FCA 779

PRACTICE AND PROCEDURE – Subpoena to produce – public interest immunity – disclosure of informer or informers – redaction – balancing exercise

Corporations Act 2001 (Cth): Pt 9.4AAA

Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227, followed
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466, cited
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission [2007] FCA 1659; (2007) 65 ACSR 239, cited
Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 67, cited
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, followed
Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667, followed
Cain v Glass (No 2) (1985) 3 NSWLR 230, followed
Rogers v Home Secretary [1973] AC 388, followed
Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311, followed

P DAWSON NOMINEES PTY LTD (ACN 004 743 408) and FREDERICK HENRY HART v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) and BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917)

VID 1380 of 2006

GOLDBERG J
23 JULY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1380 of 2006

BETWEEN:

P DAWSON NOMINEES PTY LTD (ACN 004 743 408) First Applicant FREDERICK HENRY HART Second Applicant

AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) Second Respondent BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917) Third Respondent

JUDGE:	GOLDBERG J
DATE OF ORDER:	23 JULY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The further hearing of the applicants’ motion filed on 16 January 2009 is adjourned to 29 July 2009 to enable the parties to make submissions as to the orders which should be made consequent upon the reasons for judgment published this day.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1380 of 2006

BETWEEN:	P DAWSON NOMINEES PTY LTD (ACN 004 743 408) First Applicant FREDERICK HENRY HART Second Applicant
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION First Respondent BROOKFIELD MULTIPLEX LIMITED (ACN 008 687 063) Second Respondent BROOKFIELD MULTIPLEX FUNDS MANAGEMENT LIMITED (ACN 105 371 917) Third Respondent
JUDGE:	GOLDBERG J
DATE:	23 JULY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

1. The application for determination by the Court arises out of a notice of motion filed by the applicants on 16 January 2009 by which they seek leave to inspect and copy documents produced by the first respondent, the Australian Securities and Investments Commission (“ASIC”) pursuant to a subpoena to produce issued on 13 July 2007 and served on it. The documents sought to be inspected by the applicants are the subject of a claim by ASIC that they are privileged from production and inspection on the ground of public interest immunity (“PII”). At the time of the issue of the subpoena the first applicant was the only applicant in the proceeding. Subsequently on 16 December 2008, the second applicant was added as an applicant as a result of the consolidation of this proceeding with another proceeding. For the sake of convenience and conformity, I refer in these reasons to the applicants although at particular times there was only the first applicant in the proceeding.
2. On 28 April 2009 I overruled a threshold or preliminary objection to the motion by ASIC and the second and third respondents, Brookfield Multiplex Limited and Brookfield Multiplex Funds Management Limited (collectively “Multiplex”) that the applicants were precluded from bringing the motion as it re-litigated a matter not open to them on an interlocutory hearing because the matter had already been determined against them by the decision of the Full Court of the Federal Court in Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227. ASIC and Multiplex submitted that the motion amounted to an abuse of process. On the same day, I dismissed a notice of motion filed by Multiplex on 13 March 2009 seeking orders that the applicants’ motion be dismissed or permanently stayed as an abuse of process of the Court.
3. There is a considerable background to the applicants’ motion and this proceeding which is set out in my earlier ruling on 28 April 2009: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466. I do not propose to rehearse it in detail and I incorporate that ruling in these reasons.
4. When the return of the subpoena first came before the Court, ASIC objected to the production of the documents and transcripts for inspection on the ground of PII. At the time the basis for the objection that they tended to reveal the identity of informers to ASIC was not disclosed publicly in open hearing. I rejected ASIC’s objection, in substance, on the basis that the identity of the informers, which ASIC was seeking to protect from disclosure, was already known within Multiplex and I set out my reasons in a confidential schedule to the published judgment: P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission [2007] FCA 1659; (2007) 65 ACSR 239. On 14 November 2007 I ordered that ASIC’s application that the documents and transcripts were protected from production for inspection on the ground of PII be dismissed.
5. ASIC sought leave to appeal against the orders. The Full Court granted leave to appeal, allowed the appeal, set aside the orders and ordered that the thirty-six specified documents and forty-one transcripts of examination of twenty-three witnesses produced to the Court pursuant to the subpoena were protected from production to, and inspection by, the applicants and Multiplex on the ground of PII: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227. An application by the applicants to the High Court for leave to appeal was refused.
6. The parties were in agreement as to the process of analysis and consideration which I should undertake in determining a challenge to an application for production and inspection of documents produced under subpoena on the ground of PII because the documents might tend to disclose the identity of an informer or informers. The first step is to determine whether the documents disclose the existence of an informer or informers to ASIC. The second step is to determine whether the documents tend to identity an informer or informers to ASIC. If they do, the second step also involves determining whether the documents can be redacted or masked in such a way that, in their masked form, it will not be possible, even by the conveying of “a shrewd idea”, to identify the informer or informers. The third step is to undertake a balancing exercise and determine whether, in the circumstances of this case, the documents to the extent to which they are not redacted or masked are of sufficient importance for the applicants’ conduct of the proceeding to outweigh the importance of not disclosing the identity of the informer or informers. ASIC and Multiplex submitted that the Full Court had decided this balancing exercise against the applicants and that it was not open to the applicants to raise this issue and that I was bound by the Full Court’s finding.
7. The position and circumstances facing the Court on the hearing of the present motion are different from the circumstances facing the Court at the time I made the order on 14 November 2007 dismissing ASIC’s application. The relevant different circumstances are as follows:

(a) it has been made public, and the applicants are now aware, that the basis for ASIC’s claim that the documents and transcripts are protected from production and inspection on the ground of PII is that inspection will disclose the identity of an informer or informers to ASIC. The exact number of informers is irrelevant for present purposes;

(b) the identity of Mr Stuart Cummins as an informer to ASIC in relation to the affairs of Multiplex has been disclosed. The consequence is that there is no longer any confidentiality attached to Mr Cummins’ identity as an informer to ASIC or as a

person entitled to protection pursuant to Pt 9.4AAA of the Corporations Act 2001 (Cth) (“the Act”);

(c) the Full Court handed down its decision on 4 July 2008.

8. As a result of the disclosure of the identity of Mr Cummins as an informer to ASIC, ASIC accepts, subject to it reserving its rights in respect of any appeal which it may seek to bring against my ruling on 28 April 2009 that production and inspection of the following documents cannot be objected to by it on the ground that they would or might disclose Mr Cummins’ identity as an informer to ASIC. The documents numbered:

(a) 1, 5, 8, 9, 10, 13, 15, 16, 20, 21, 23, 24, 25, 28, 29, 30, 35 and 36 on the ground that they would or might disclose Mr Cummins’ identity as a protected discloser and informer to ASIC.

(b) 4, 6, 7, 11, 12, 14, 18, 19, 22, 26, 27, 31 and 32 in redacted or masked form.

9. ASIC still opposes the production and inspection of documents numbered 2, 3, 17, 33 and 34 on the ground that inspection of those documents would or might disclose the identity of an informer or informers to ASIC who are entitled to protection in respect of their disclosures to ASIC pursuant to Pt 9.4AAA of the Act. For the same reason ASIC continues to object to the production and inspection of all forty-one transcripts.
10. Notwithstanding my ruling that the applicants are entitled to bring a further motion for production and inspection of the documents and transcripts, I must take into account, follow and apply the relevant and binding reasoning and ratio of the Full Court in its decision on 4 July 2008. I consider that I should apply the following principles and propositions contained in the reasoning of the Full Court whether they be the ratio, or one of the rationes, of the decision or persuasive and considered obiter dicta:

(a) in determining a claim for protection of documents from disclosure and inspection on the ground of PII a Court must undertake a balancing exercise and determine whether the public interest in protecting from disclosure the identity of an informer outweighs the public interest that in a civil proceeding a party should not be denied access to relevant evidence;

(b) the partial or limited disclosure of the identity of an informer is not conclusive in determining whether the identity of the informer should be protected from being disclosed in documents sought to be the subject of inspection on the ground of PII. Immunity from further disclosure is not necessarily lost where there has been a partial limited disclosure of the identity of an informer;

(c) the transcripts of the examination of the informer or informers would, both directly and circumstantially, identify the informer or the informers;

(d) the appropriate test to apply in determining whether inspection of the relevant documents and transcripts might disclose the identity of an informer or informers is to ask whether there is in the documents any material by which “a shrewd idea” might be conveyed as to the identity of the informer or informers, noting that documents taken together may convey information which each, by itself, could not convey. Further, the benefit of the doubt should be in favour of non-disclosure.

11. The Full Court concluded that the thirty-six documents and all forty-one transcripts were properly the subject of a claim for protection from disclosure and inspection on the ground of PII unless, on balance, the public interest was outweighed by other public interest considerations. The Full Court did not see the documents as having sufficient importance for the applicants’ conduct of the litigation to outweigh the importance of not disclosing the identity of informers. Significantly, the Full Court said at [62]:

“We note that at our invitation the parties conferred to see if an agreed form of the documents with redactions could be supplied. However, no agreement was reached.”

12. The end result was that the Full Court ordered that the thirty-six specified documents and the transcripts of examination of twenty-three witnesses produced to the Court pursuant to the subpoena were protected from production to, and inspection by, the applicants and Multiplex.

CONSIDERATION OF THE MOTION

13. I am satisfied that the confidential material relied upon by ASIC discloses the existence and identity of an informer or informers to ASIC other than Mr Cummins. It is implicit in the Full Court’s reasoning that the Court reached the same conclusion. It was accepted by all parties that the protection of the identity of an informer or informers to ASIC from disclosure is a legitimate and accepted basis upon which to object to the protection and inspection of documents on the ground of PII: see, for example, Rogers v Home Secretary [1973] AC 388; Cain v Glass (No 2) (1985) 3 NSWLR 230; Spargos Mining NL v Standard Chartered Australia Ltd (No 1) (1989) 1 ACSR 311; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
14. I am satisfied that ASIC has discharged the evidentiary onus upon it to establish that the informer or informers, other than Mr Cummins, provided ASIC with information voluntarily and on a confidential basis and that the information provided had itself the requisite character of confidence. Consistently with the submissions of the applicants, I have felt an “actual persuasion” that the informer or informers provided ASIC with information, that they did so voluntarily, that it was on a confidential basis and that the information provided had itself the requisite character of confidence.
15. The next step is to determine whether any parts of the documents and the transcripts can be redacted or masked in such a manner that the passages not redacted or masked do not disclose the identity of an informer or informers and do not, taken in conjunction with other passages not redacted or masked, convey a shrewd idea as to the identity of the informer or informers. In this context, it must be borne in mind at all times that documents taken together may convey information which each document, by itself and upon consideration of its contents alone, does not convey in relation to the identity of an informer or informers.
16. It seems to me that the redaction or masking exercise should be undertaken before entering upon the balancing exercise to determine whether the public interest in the protection of the identity of the informer or informers is outweighed by other public interest considerations.
17. The Full Court did not enter upon this redaction or masking exercise. I did not undertake this redaction or masking task at the earlier hearing because I concluded that the totality of the documents and transcripts should be the subject of an order for production and inspection because the basis for the claim for protection from production and inspection, PII, had not been made out. The feasibility of undertaking that task must now be addressed.
18. The only significant change since my earlier order is that the identity of Mr Cummins as an informer to ASIC has been disclosed and the identity of another informer or other informers has not been disclosed. I must therefore undertake the task of determining whether the documents and the transcripts can be redacted or masked and, if so, whether they should be so redacted or masked.
19. The practice or task of undertaking the redaction or masking exercise in respect of documents the subject of an order for discovery or inspection is well accepted. However, there have been different approaches to the manner in which such redaction or masking is to be undertaken and as to the principal basis for the practice. The various approaches are discussed and analysed by Martin CJ in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd (No 2) [2009] WASC 67.
20. In Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 66-67, Stephen J considered whether Loan Council documents in issue might be the subject of redaction or masking. The informant had sought the production of the Loan Council documents for the purpose of establishing that the claimed proposed borrowing of $4 billion was not the subject of Loan Council consent. Stephen J said at 67:

“At the conclusion of argument it seemed to me scarcely credible that an inspection of the papers would not reveal the practicability of extracting material in itself quite innocuous, consisting perhaps of no more than the figure of approved Commonwealth borrowings not in fact availed of, which would provide evidence of this negative character. Were production of such material, and of such material only, to be permitted, no public interest would be prejudiced and at the same time the course of justice would not be impeded unnecessarily. Authority for such a course is to be found in Conway v Rimmer. Lord Reid (35), contemplated that part only of a document might properly be withheld, according to it alone privilege from production: Lord Pearce said (36), that the court might call for and itself inspect a document and then, if ‘part of a document is innocuous but part is of such a nature that its disclosure would be undesirable, it should seal up the latter part and order discovery of the rest, provided that this will not give a distorted or misleading impression’. A statement of the outcome of the inspection of the Loan Council documents which has in fact been undertaken by this Court appears at the end of the several statements of reasons for judgment in this case.”

In the result, the High Court undertook an inspection of the Loan Council documents and ordered disclosure of those parts that disclosed only the figure of borrowing approved by the Commonwealth.

THE THIRTY-SIX DOCUMENTS

21. As I have noted earlier (par [8] above) ASIC accepts that, subject to any appeal against my ruling on 28 April 2009, the following documents cannot be the subject of objection to it on the ground of PII, namely 1, 5, 8, 9, 10, 13, 15, 16, 20, 21, 23, 24, 25, 28, 29, 30, 35 and 36.
22. ASIC made a similar submission in relation to the documents numbered 4, 6, 7, 11, 12, 14, 18, 19, 22, 26, 27, 31 and 32 in a redacted or masked form. I have considered the redaction or masking proposed by ASIC in relation to those documents and have also had regard to the confidential affidavits filed by ASIC which bear upon the redaction and masking of these documents. I have reached the conclusion that the redaction and masking undertaken by ASIC goes beyond the redaction and masking which are necessary in order to ensure that the documents do not have a tendency to disclose the identity of an informer or informers to ASIC. I set out in confidential Appendix A to these reasons the redaction and masking of these documents which I consider should be undertaken. This appendix will only be made available to ASIC’s legal advisers and the deponents of its affidavits for the purpose of determining the form of any public non-confidential order which I should make.
23. In relation to documents numbered 2, 3, 17, 33 and 34, I am satisfied that the documents numbered 2, 3, 33 and 34 should be protected from production and inspection on the ground that inspection of those documents would tend to disclose the identity of an informer or informers to ASIC who are entitled to protection in respect of their disclosures to ASIC pursuant to Pt 9.4AAA of the Act. I consider that there should be only a partial redaction or masking of document number 17 and I set out the manner in which I consider that document should be redacted in confidential Appendix B to these reasons. This appendix will only be made available to ASIC’s legal advisers and the deponents of its affidavits for the purpose of determining the form of any public non-confidential order which I should make.

THE TRANSCRIPTS

24. ASIC submitted that the two confidential affidavits of Grant Moodie, an officer of ASIC, explained why it was not practical to release any part of the transcripts without risking identifying an informer or informers to ASIC. ASIC did not elaborate on this submission in open session other than to submit in its written outline of submissions that:

(a) the difficulty about release of any part of the transcripts was that release of a meaningful portion of the transcripts automatically narrowed down the field of inquiry as to who the informer or informers might be;

(b) special counsel for the applicants in the Full Court declined the opportunity to suggest how the transcripts might meaningfully be redacted.

25. In his first confidential affidavit Mr Moodie identified in relation to each page of the forty-one transcripts of examinations:

(a) those pages of transcript in which other examinees or investigators identified an informer or informers as the source of information to ASIC or as whistleblowers;

(b) those pages of transcript of each examinee in which reference was made by examiners or investigators to documents the subject of ASIC’s claim for PII;

(c) those pages of transcript of persons other than an informer or informers in which reference was otherwise made, or could be inferred, to an informer or informers.

26. I have considered the pages of transcript identified by Mr Moodie and am satisfied that his description of those pages of transcript is substantially correct. There are some pages which do not appear to bear the description given to them by Mr Moodie, but those pages do not impact upon, or result in me altering the conclusion I have reached as to whether the transcripts should be produced to, and inspected by, the applicants.
27. In his second confidential affidavit Mr Moodie reconsidered each of the forty-one transcripts with a view to identifying whether any of them could be disclosed in their entirety or in a redacted form, so that there would be no risk of identification of an informer or informers other than Mr Stuart Cummins. He reaches the conclusion that there is such a risk having regard to titles, responsibilities and reporting lines to and from examinees and having regard to what Mr Moodie called “a simple process of deduction”. I agree with that conclusion for the reasons to which I shall refer.
28. The applicants submitted that protection of documents from production and inspection on the ground of PII will only be established in relation to those parts of documents which identified or tended to identify an informer or informers to ASIC other than Mr Cummins. They submitted that where portions of the documents were innocuous the sections which identified or tended to identify an informer or informers should be masked and the balance made available to the applicants for inspection.
29. Adopting and adapting the observation and words of Stephen J in Sankey v Whitlam (supra), the applicants submitted that it “seemed scarcely credible” that an inspection of the forty-one transcripts would not reveal the practicability of extracting material in itself quite innocuous without revealing or tending to reveal the identity of any informer.
30. I have considered whether I should accept that submission and undertake the exercise of seeking to redact and mask parts of the forty-one transcripts so as to leave those parts which are, in general terms, innocuous, on the basis that they do not identify or tend to identify an informer or informers. I have reached the conclusion that I should not undertake this task for the following reasons.
31. The transcripts record the evidence of twenty-three witnesses. The identity, occupation, role, employment title and employer of each of them is disclosed in the transcripts. If I were to redact or mask the transcripts so as to leave the “innocuous” parts so that the names, occupations, roles, employment titles and employers of the various witnesses and the organisation or company which employs them or with which they were involved were still disclosed, the applicants’ legal advisers would still be left with material by which a shrewd idea would be conveyed as to the identity of an informer or informers other than Mr Cummins.
32. This situation would occur because there would have been available publicly at relevant times information and documents relating to the many officers and employees of Multiplex and the reporting lines between them. I refer, for example to Multiplex’s Annual Report to Shareholders. I also assume that the applicants have available to them information as to the management structure of Multiplex and the identity of a number of persons who were employed by Multiplex in various roles at relevant times. This is apparent from a consideration of the consolidated statement of claim. It would therefore be possible, in my opinion, by a process of elimination for the applicants’ legal advisers to deduce the identity of the informer or informers other than Mr Cummins.
33. The question arises whether I should go one step further and redact or mask the names, occupations, roles, employment titles and employers of each of the twenty-three witnesses. I am satisfied that even if I were to go this far, it would still be possible for the applicants’ legal advisers, by a process of deduction and inference, to reach a conclusion as to the identity of an informer or informers to ASIC. The only way this situation could be avoided would be if I were to go through each of the forty-one transcripts with a fine toothcomb and eliminate by redaction or masking any reference to a name, occupation, role, employment title and line of communication or reporting to or from each of the witnesses or any reference from which an inference could be drawn in relation to these matters. In undertaking this task I would continue to bear in mind the observation of the Full Court (supra) (par [41]) that:

“Consistently with the underlying public policy of public interest immunity, the benefit of the doubt should be in favour of non-disclosure.”

34. In such circumstances I would also have to bear in mind that I have an extremely limited knowledge of Multiplex’s activities and the circumstances and background leading up to the applicants’ proceeding. In particular, I do not have the benefit of the knowledge obtained by the applicants’ legal advisers, nor do I have the benefit of the knowledge of Multiplex’s legal advisers in relation to the subject matter of the proceeding.
35. Although it might seem to the outside observer that it is “scarcely credible” that an inspection of the forty-one transcripts would not reveal the practicability of extracting material in itself quite innocuous, I have reached the conclusion that that task is impracticable for me for the reasons to which I have referred. It might be possible for that task to be undertaken by special counsel for the applicants in conjunction with ASIC and special counsel for Multiplex, but that route has not been chosen by the parties.

SHOULD I UNDERTAKE A BALANCING EXERCISE

36. In an affidavit sworn and filed on 3 March 2009 the applicants’ solicitor, Mr Andrew John Watson, explained the importance of the thirty-six documents and forty-one transcripts in relation to the principal proceeding. Although Mr Watson has not had access to these documents and transcripts, he said that, having regard to the overlap between the issues in the principal proceeding and the matters the subject of the ASIC investigation, the documents and transcripts “are likely to cast significant light on the central issues in the proceeding”. In particular, he referred to:
    • The awareness or knowledge of Multiplex, its directors and senior officers regarding cost overruns and delays on the Wembley Stadium project and the impact of those cost overruns and delays on profitability of the project and the Multiplex group, the deterioration in Multiplex’s estimated profit on its West India Quay project and Qantas project and the significant change in the composition of the Multiplex group and construction division revenue.
    • Whether Multiplex had reasonable grounds for representations regarding its profit forecasts and whether it had reporting systems which ensured adequate and timely reports regarding the Wembley Stadium, West India Quay and Qantas projects.
      
37. In the light of the Full Court decision, I do not consider that it is open on the hearing of the current motion for the applicants to rely upon this evidence. The Full Court specifically addressed the issue of the significance and importance of the thirty-six documents and the forty-one transcripts in issue in the proceeding (see pars [55] to [61]). In my opinion, it is not open to me to re-open or re-visit the finding of the Full Court in par [61], namely:

“In the circumstances of this case, we do not see the documents in question as having sufficient importance for PDN’s conduct of this litigation to outweigh the importance of not disclosing the identity of informers. The documents may be discoverable, and relevant, but beyond that they are not shown to have any greater significance for PDN.”

38. Mr Watson deposed to the fact that since the issue of the subpoena and since the decision of the Full Court, the range of contraventions alleged by the applicants against Multiplex has increased to include failure to keep the Australian Securities Exchange and investors properly informed in relation to:
    • Deterioration in its estimated profit on its West India Quay project and Qantas project and the impact of that deterioration on the profitability of the group and its construction division;
    • A significant change in the composition of group and construction division revenue, such that a substantial portion of that revenue was to be derived from non-core earnings.
      
39. I do not consider that the addition of those contraventions requires or enables a reconsideration of the view of the Full Court that the documents in question do not have sufficient importance for the applicants’ conduct of the litigation to outweigh the importance of not disclosing the identity of informers.
40. It therefore follows that the applicants’ motion should be granted in part in relation to the documents referred to in pars [22] and [23] above. Otherwise I consider that ASIC’s claim that the production of the forty-one transcripts for inspection should be refused on the ground of PII, on the basis that such inspection might tend to disclose the identity of an informer or informers to ASIC, should be upheld.
41. I will hear the parties as to the form of the order I should make as a consequence of these reasons.
    

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated: 23 July 2009

Counsel for the Applicants:	M B J Lee
Solicitor for the Applicants:	Maurice Blackburn
Counsel for the First Respondent:	M R Pearce S.C. with L Lo Piccolo
Solicitor for the First Respondent:	Australian Securities and Investments Commission
Counsel for the Second and Third Respondents:	C M Scerri QC with S Nixon
Solicitor for the Second and Third Respondents:	Mallesons Stephen Jacques
Counsel for seven unnamed examinees:	T J McLean
Solicitor for seven unnamed examinees:	Sparke Helmore

Date of Hearing:	30 June 2009
Date of Judgment:	23 July 2009