Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 6) [2023] FCA 1276

Australian Securities and Investments Commission v M101 Nominees Pty Ltd (in liq) (No 6) [2023] FCA 1276

The Full Court's remittal order, properly construed in light of its reasons and the context of the appeal, remitted only ASIC's remaining case for permanent injunctions under s 1101B(1) of the Corporations Act 2001 (Cth), not a new trial or a broad opportunity to plead additional claims. ASIC therefore could not on remittal revive reliance on s 1324, seek new declarations, ASIC Act injunctions, disqualification orders or pecuniary penalties. In any event, the proposed amendments were late, distinct, placed Mr Mawhinney in greater jeopardy, and ASIC gave no sensible explanation for not advancing them earlier. Leave to file the amended originating process was therefore revoked.

Jurisdiction
Australia
Judgment Date
25 October 2023
Procedural Posture
Practice and Procedure in a Commercial and Corporations Proceeding, Regulator and Consumer Protection Sub Area / Proceeding Remitted by the Full Court After Appeal; Application Concerning the Scope of the Remittal Order and Whether Leave to File and Serve an Amended Originating Process Should Be Revoked
Outcome
Leave granted to ASIC on 9 December 2022 to file and serve an amended originating process was revoked; ASIC was required to file a further amended originating process, and costs submissions were directed.
Legal Topics
['construction of Remittal Order' 'scope of Remitter Under S 28(1)(c) of the Federal Court of Australia Act 1976 (cth)' 'amended Originating Process After Remittal' 'procedural Fairness' 'permanent Injunctions Under S 1101 B of the Corporations Act 2001 (cth)' 'late Amendments and Discretionary Leave']
['practice and Procedure' 'corporations Law' 'financial Services Regulation'] ['construction of Remittal Order' 'scope of Remitter Under S 28(1)(c) of the Federal Court of Australia Act 1976 (cth)' 'amended Originating Process After Remittal' 'procedural Fairness' 'permanent Injunctions Under S 1101 B of the Corporations Act 2001 (cth)' 'late Amendments and Discretionary Leave']

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Procedural Posture

Practice and Procedure in a Commercial and Corporations Proceeding, Regulator and Consumer Protection Sub Area / Proceeding Remitted by the Full Court After Appeal; Application Concerning the Scope of the Remittal Order and Whether Leave to File and Serve an Amended Originating Process Should Be Revoked

Legal Issues

  1. 1 ["How the Full Court's remittal order should be construed and whether it permitted ASIC to advance claims beyond the case remitted." "Whether ASIC's amended originating process impermissibly introduced new claims for relief including declarations, s 1324 relief, ASIC Act injunctions, disqualification orders and pecuniary penalties." 'Whether, even if within the scope of the remittal, the late amendments should be allowed absent an explanation for not raising them earlier.']

Ratio Decidendi

The Full Court's remittal order, properly construed in light of its reasons and the context of the appeal, remitted only ASIC's remaining case for permanent injunctions under s 1101B(1) of the Corporations Act 2001 (Cth), not a new trial or a broad opportunity to plead additional claims. ASIC therefore could not on remittal revive reliance on s 1324, seek new declarations, ASIC Act injunctions, disqualification orders or pecuniary penalties. In any event, the proposed amendments were late, distinct, placed Mr Mawhinney in greater jeopardy, and ASIC gave no sensible explanation for not advancing them earlier. Leave to file the amended originating process was therefore revoked.

Court Disposition

Leave granted to ASIC on 9 December 2022 to file and serve an amended originating process was revoked; ASIC was required to file a further amended originating process, and costs submissions were directed.

Orders

  • ["The leave granted by O'Callaghan J by order made on 9 December 2022 to the Australian Securities and Investments Commission (ASIC) to file and serve an amended originating process be revoked." 'ASIC file a further amended originating process within 21 days.' 'The parties file and serve written submissions not...