Australian Securities & Investments Commission v Pappas [2006] FCA 1785

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Pappas [2006] FCA 1785

PRACTICE & PROCEDURE – contempt charges – defendant failed to comply with notices to attend examination and give assistance to the Australian Securities and Investments Commission – Court ordered him to attend and give assistance – defendant failed to comply with Court's orders – undertakings given to the Court that were subsequently breached – whether defendant's conductin not complying with the orders and breaching the undertakings was wilful and contumacious Australian Securities and Investments Commission Act 2001 (Cth) ss 13, 19, 70 AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v ANDREW PAPPAS NSD 1367 OF 2005

EMMETT J

20 DECEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1367 OF 2005

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Plaintiff

AND: ANDREW PAPPAS

Defendant

JUDGE: EMMETT J

DATE: 20 DECEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application arises out of the failure by the defendant, Mr Andrew Pappas, to comply with notices under the Australian Securities and Investments Commission Act 2001 (Cth) ('the ASIC Act'), requiring him to attend for examination by, and give assistance to, the Australian Securities & Investments Commission ('the Commission') in connection with an investigation being conducted by the Commission. Following the defendant's failure to comply with notices given by the Commission, the Court made orders that the defendant appear on a specified day before officers of the Commission for examination and provide the Commission all reasonable assistance with its investigation. 2 The defendant failed to appear on the appointed day. After he was charged with contempt for failing to comply with the Court's orders, the defendant attended an examination by officers of the Commission. He was subsequently charged with contempt for failing to provide the Commission all reasonable assistance in giving answers at that examination. On the day on which the contempt charges were fixed for hearing, undertakings were given by the defendant to the Court that he would attend a further examination and would provide the Commission with all reasonable assistance with its investigation of certain enumerated topics. The hearing was then adjourned until after the date of that further examination. The defendant was subsequently charged with contempt for breach of the undertaking given to the Court. 3 Thus, there are three charges presently before the Court. It is desirable to deal separately with the circumstances relating to each charge. However, before doing so, I shall say something about the circumstances that led to the charges.