Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342 Citation: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342

Parties: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v ACTIVESUPER PTY LTD (IN LIQUIDATION) ACN 125 423 574 AND ORS

File number: VID 426 of 2012

Judge: WHITE J

Date of judgment: 14 April 2015

Catchwords: CORPORATIONS – contraventions of Corporations Act 2001 (Cth) – elements of primary contraventions – attribution of knowledge and/or conduct to other defendants – s 726 (offering securities in a non-existent company) – s 727 (offering securities without disclosure document) – whether offering in Australia of shares in companies incorporated in British Virgin Islands requires disclosure – s 911A(1) (unlicensed provision of financial services) – whether offering of advice and services in relation to Self-Managed Superannuation Funds and investment by those SMSFs was authorised – s 1041H(1) and s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (misleading or deceptive conduct) – whether statements in prospectuses as to the use to which monies invested in the BVI companies would be put were misleading CORPORATIONS – accessorial liability – whether persons "knowingly concerned" in contraventions of Corporations Act – establishing actual knowledge by inference – whether accessory to s 727 contravention must know that offers required disclosure – whether accessory to s 1041H contravention must know that representations were false or misleading – attribution of knowledge and/or conduct to other defendants CORPORATIONS – accessorial liability – whether findings of accessorial liability open with respect to contraventions of ss 727 and 911A – whether declarations and injunctions may be granted when persons knowingly concerned in contraventions are not deemed to be contravenors themselves EVIDENCE – admissibility of transcripts of examinations conducted pursuant to s 19 of the ASIC Act – application of hearsay provisions in Evidence Act 1995 (Cth) to tender of transcripts – whether reliance on transcript precluded by ss 68(3) and 76(1)(a) of the ASIC Act – whether proceedings for injunctions under ss 1101B(1) and 1324(1) of the Corporations Act enliven privileges against self-incrimination and self-exposure to penalty – effect of s 1349 of Corporations Act EVIDENCE – admissibility of unauthenticated documents PRACTICE AND PROCEDURE – pleadings – effect of r 16.07 of Federal Court Rules 2011 (Cth) – purpose of pleadings