Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159

FEDERAL COURT OF AUSTRALIA

Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159 Appeal from: Australian Securities and Investments Commission v M101 Nominees Pty Ltd (No 3) [2021] FCA 354

File number: VID 244 of 2021

Judgment of: JAGOT, O'BRYAN AND CHEESEMAN JJ

Date of judgment: 15 September 2022

Catchwords: APPEAL AND NEW TRIAL — appeal against findings of contraventions of Corporations Act and ASIC Act in proceeding for permanent injunctions — where ASIC conducted case on basis that no findings of contraventions necessary for injunctions under s 1324 of Corporations Act — where appellant denied procedural fairness — exceptional case in which proceeding must be remitted for hearing in different basis from original case — where other appeal grounds alleging incompetence of counsel and lawyers spurious and unnecessary — appeal allowed

Legislation: Australian Securities and Investments Act 2001 (Cth) ss 8, 11, 12A, 12DA(1), 12DB(1)(a), 12DB(1)(e), 12GB(1)(d), 12GBCL Corporations Act 1989 (Cth) s 82 Corporations Act 2001 (Cth) ss 79, 79(c), 180–184, 206E, 461(1)(k), 474A, 530A, 530B, 597(12), 597(12A), 911A(1), 1041H, 1101B(1), 1101B(4), 1324(1) Evidence Act 1995 (Cth) ss 76, 79, 80, 135, 140 Federal Court of Australia Act 1976 (Cth) s 23 Securities Industry (Amendment) Act 1971 (NSW) Securities Industry (Amendment) Act 1970 (Vic) Securities Industry Act 1980 (Cth) s 14 Securities Industry Act 1970 (NSW) s 5F Securities Industry Act 1975 (NSW) s 12 Securities Industry Act 1971 (Qld) s 10 Securities Industry Act 1975 (Qld) s 12 Securities Industry Act 1970 (Vic) s 5B Securities Industry Act 1975 (Vic) s 12 Securities Industry Act 1970 (WA) s 32 Securities Industry Act 1975 (WA) s 12