Australian Securities and Investments Commission v Daly (Liability Hearing) [2023] FCA 290

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Daly (Liability Hearing) [2023] FCA 290 File number: QUD 269 of 2020

Judgment of: CHEESEMAN J

Date of judgment: 3 April 2023

Date of publication of reasons: 4 April 2023

Catchwords: CORPORATIONS — civil penalty proceedings — liability phase — duties of officers of responsible entity of a registered managed investment scheme — whether first respondent is an "officer" of the responsible entity for the purposes of the Corporations Act 2001 (Cth) — whether officers of responsible entity breached duties owed pursuant to s 601FD(1) of the Act — Held: contravention established. PRACTICE AND PROCEDURE — pleadings — where proceedings based on an originating process, amended concise statement and amended statement of claim — where first respondent alleges claims against him not sufficiently pleaded — whether procedural unfairness occasioned — Held: ASIC's claim against first respondent adequately disclosed, no procedural unfairness occasioned. EVIDENCE — where none of the respondents gave evidence — application of rule in Jones v Dunkel in civil penalty proceedings — Held: appropriate to draw Jones v Dunkel inferences in respect of issues on which respondents did not give evidence. EVIDENCE — where Australian Securities and Investments Commission (ASIC) did not call a witness who could have given relevant evidence — whether evidence from other sources should be discounted by reason of ASIC not calling the witness — Held: no procedural unfairness. No basis to discount other evidence.

Legislation: Corporations Act 2001 (Cth) ss 9, 601FD(1), 601FD(3), Evidence Act 1995 (Cth) s 140(2) Federal Court Rules 2011 (Cth) r 16.02(1)