Australian Securities and Investments Commission v Bekier (Separate Relief Hearing) [2025] FCA 84

Australian Securities and Investments Commission v Bekier (Separate Relief Hearing) [2025] FCA 84

On balance, and notwithstanding the judge's view that any application for disqualification would likely not be objectively compelling, the potential risk associated with a finding of apprehended bias, however small, warranted separate allocation to another judge for the aspects relating to Mr Theodore (and subsequently Mr Hawkins). The balance of the case, against the remaining defendants, was to proceed before Lee J.

Parties
Plaintiff: Australian Securities and Investments Commission; First Defendant: Matthias Michael Bekier; Second Defendant: Paula Maree Martin; Third Defendant: Gregory Francis Hawkins; Fourth Defendant: Harry James Theodore; Fifth Defendant: John Anthony O'Neill AO; Sixth Defendant: Wallace Richard Sheppard; Seventh Defendant: Kathleen Lahey AM; Eighth Defendant: Gerard Patrick Bradley AO; Ninth Defendant: Sally Anne Majella Pitkin AO; Tenth Defendant: Benjamin Andrew Heap; Eleventh Defendant: Zlatko Todorcevski
Jurisdiction
Australia
Judgment Date
05 February 2025
Procedural Posture
Civil / Interlocutory/separate Relief and Allocation of Aspects to Another Judge
Outcome
Partial reallocation and specification of scope for final hearing. Aspects relating to Mr Theodore and Mr Hawkins to be referred to another judge; final hearing to proceed for the remaining defendants.
Legal Topics
Apprehended Bias, Referral and Allocation of Proceedings, Declarations and Relief Under Corporations Act, Final Hearing Scope
Corporations Law Civil Procedure Apprehended Bias Referral and Allocation of Proceedings Declarations and Relief Under Corporations Act Final Hearing Scope

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Parties

Australian Securities and Investments Commission

Plaintiff

Matthias Michael Bekier

First Defendant

Paula Maree Martin

Second Defendant

Gregory Francis Hawkins

Third Defendant

Harry James Theodore

Fourth Defendant

John Anthony O'Neill AO

Fifth Defendant

Wallace Richard Sheppard

Sixth Defendant

Kathleen Lahey AM

Seventh Defendant

Gerard Patrick Bradley AO

Eighth Defendant

Sally Anne Majella Pitkin AO

Ninth Defendant

Benjamin Andrew Heap

Tenth Defendant

Zlatko Todorcevski

Eleventh Defendant

Procedural Posture

Civil / Interlocutory/separate Relief and Allocation of Aspects to Another Judge

Legal Issues

  1. 1 Whether proceedings as to specific defendants should be reallocated to another judge due to apprehended bias
  2. 2 Proper procedural approach in light of proposed agreements and consent orders
  3. 3 Scope of issues to be determined at the final hearing

Ratio Decidendi

On balance, and notwithstanding the judge's view that any application for disqualification would likely not be objectively compelling, the potential risk associated with a finding of apprehended bias, however small, warranted separate allocation to another judge for the aspects relating to Mr Theodore (and subsequently Mr Hawkins). The balance of the case, against the remaining defendants, was to proceed before Lee J.

Court Disposition

Partial reallocation and specification of scope for final hearing. Aspects relating to Mr Theodore and Mr Hawkins to be referred to another judge; final hearing to proceed for the remaining defendants.

Orders

  • The trial listed to commence 10 February 2025 will be a final hearing as to whether the defendants, except the third and fourth defendants, have contravened the Corporations Act as alleged.
  • Any issues regarding the third and fourth defendants (Mr Hawkins and Mr Theodore) are to be allocated to another judge for resolution.