Australian Securities and Investments Commission v Scholz (No 2) [2022] FCA 1542

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Scholz (No 2) [2022] FCA 1542 File number(s): QUD 426 of 2021

Judgment of: DOWNES J

Date of judgment: 20 December 2022

Catchwords: CORPORATIONS – whether contravention of s 911A(1) Corporations Act 2001 (Cth) – whether defendant carried on financial services business – where defendant expressed direct and indirect opinions about companies on Instagram – where defendant made recommendations about the purchase or sale of shares on social media, in direct messages and during seminars – where defendant received payments from consumers to attend seminars and be part of online group – where defendant used Instagram to promote business – where defendant used name "wolf" and displayed images depicting a wolf – where defendant held himself out as expert on how to trade shares successfully – where defendant did not have Australian financial services licence – whether exemption in s 911A(2)(eb) Corporations Act 2001 (Cth) applies – contraventions established EVIDENCE – admissibility of things seized pursuant to search warrants – whether evidence admissible pursuant to s 3ZQU Crimes Act 1914 (Cth) as modified by s 39H Australian Securities and Investments Commission Act 2001 (Cth) – evidence admitted EVIDENCE – admissibility of WeChat messages sent by defendant to third party – whether WeChat messages admissible as an admission within s 81 Evidence Act 1995 (Cth) – whether reasonably open that defendant made admission within s 88 Evidence Act 1995 (Cth) – evidence admitted

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 39H Corporations Act 2001 (Cth) ss 9, 19, 92, 761A, 764A(1) 766A(1)(a), 766B(1), 766B(3), 766B(4), 911A(1), 911A(2)(ea)(ii), 911A(2)(eb), 911A(5)(a), 911A(6), 911B, 1101B, 1324 Crimes Act 1914 (Cth) ss 3, 3ZQU, Pt IAA Evidence Act 1995 (Cth) ss 56(2), 59, 69, 81, 82, 88 Corporations Regulations 2001 (Cth) reg 7.6.01B