Gore v Australian Securities and Investments Commission [2017] FCAFC 13

FEDERAL COURT OF AUSTRALIA

Gore v Australian Securities and Investments Commission [2017] FCAFC 13 Appeal from: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (No 2) (2015) 106 ACSR 302; [2015] FCA 527

File number: QUD 488 of 2015

Judges: DOWSETT, RARES, GLEESON JJ

Date of judgment: 13 February 2017

Catchwords: CORPORATIONS – Corporations Act 2001 (Cth) – accessorial liability – prohibition on offering securities under s 727(1) and (2) without disclosure document being lodged if disclosure required under Pt 6D.2 – whether alleged accessory without actual knowledge that offer required disclosure capable of being found to be knowingly concerned in principal's contraventions of s 727(1) and (2) – elements of accessory's contravention of s 727(1) and (2) – whether necessary for party alleging contravention to prove that no exemption from requirement of disclosure applies to the offer of securities CORPORATIONS – Corporations Act 2001 (Cth) – accessorial liability – where civil and criminal penalties apply to offences under s 727 – where offence of contravening s 727(1) and (2) created by s 1311(1) – where s 1308A of Corporations Act 2001 (Cth) applied provisions of Criminal Code (Cth) to offences under Act – whether Pt 2.4 of Criminal Code (Cth) required proof of physical and fault elements in respect of contravention of s 727(1) and (2) – proof of physical and fault elements under the Criminal Code (Cth) necessary to establish accessory's contravention of s 727(1) and (2) CORPORATIONS – accessorial liability for misleading or deceptive conduct under s 1041H of the Corporations Act 2001 (Cth) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) – elements of an accessory's contravention of s 1041H and s 12DA – whether accessory had actual knowledge that disclosure document made representation that was misleading or deceptive or likely to mislead or deceive EVIDENCE – Australian Securities and Investments Commission Act 2001 (Cth) – admissibility of transcript of examination under s 19 – where transcript not admissible in criminal proceeding or proceeding for imposition of a penalty – where examinee claimed privilege against self-incrimination or exposure to a penalty in examination – whether application for injunctions pursuant to s 1324(1) of Corporations Act 2001 (Cth) to prevent examinee from engaging in lawful conduct by which she previously had earned livelihood was proceeding for the imposition of a penalty for the purposes of s 68(3)(b) of Australian Securities and Investments Commission Act 2001 (Cth) CORPORATIONS – injunction ordered under s 1324(1) of Corporations Act 2001 (Cth) after finding that accessory knowingly concerned in principal's contravention of s 727(1) and (2) – whether purpose of injunction under s 1324(1) protective or punitive – where principal contraveners received lesser penalties than accessory – whether principle of parity in sentencing or imposing penalty correctly applied – whether primary Judge erred in exercise of discretion in setting length of injunction restraining accessory from engaging in lawful conduct