Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681

Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681

The inspectors' direction to exclude the applicants' lawyer from section 19 examinations was not based on reasonable grounds as required by s 22(1) of the ASIC Act and established case law; the direction was therefore ultra vires and invalid, and should be set aside.

Jurisdiction
Australia
Judgment Date
12 November 2008
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application granted in part; direction set aside; costs ordered against ASIC
Legal Topics
['exclusion of Legal Representatives From Examination' 'procedural Fairness' 'powers of ASIC Inspectors' 'conflict of Interest']
['corporations Law' 'administrative Law' 'civil Procedure'] ['exclusion of Legal Representatives From Examination' 'procedural Fairness' 'powers of ASIC Inspectors' 'conflict of Interest']

Case Brief

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Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 ["Whether ASIC inspectors had reasonable grounds for excluding applicants' lawyer from section 19 examinations" 'Whether the power to exclude a lawyer is conferred on ASIC or the inspectors under s 22(1) ASIC Act' 'Whether the exercise of exclusionary power attracts procedural fairness obligations']

Ratio Decidendi

The inspectors' direction to exclude the applicants' lawyer from section 19 examinations was not based on reasonable grounds as required by s 22(1) of the ASIC Act and established case law; the direction was therefore ultra vires and invalid, and should be set aside.

Court Disposition

Application granted in part; direction set aside; costs ordered against ASIC

Orders

  • ['The direction made by the Second and Third Respondents on Friday 10 October 2008 is set aside and the application is otherwise dismissed.' 'The First Respondent pay the costs of the Applicants.']