Australian Securities and Investments Commission v Albarran [2008] FCA 147

Australian Securities and Investments Commission v Albarran [2008] FCA 147

Reliance on legal advice is not a 'reasonable excuse' under s 219 of the ASIC Act for refusing to answer questions before the Disciplinary Board. Even if legal advice had been received, such reliance is not reasonable where all questions covered evidence previously given by the defendant, and the statutory scheme...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 February 2008
Procedural Posture
Corporations Contempt/enforcement of Disciplinary Orders / Post Hearing, Determination of Whether Defendant Had Reasonable Excuse and Order on Contempt
Outcome
Defendant to be punished as if guilty of contempt of court; orders on punishment stood over.
Legal Topics
['reasonable Excuse Under S 219 ASIC Act' 'refusal to Answer Questions Before Disciplinary Panel' 'contempt Proceedings' 'reliance on Legal Advice as Excuse' 'burden of Proof Under Criminal Code']
['corporations Law' 'administrative Law' 'evidence Law'] ['reasonable Excuse Under S 219 ASIC Act' 'refusal to Answer Questions Before Disciplinary Panel' 'contempt Proceedings' 'reliance on Legal Advice as Excuse' 'burden of Proof Under Criminal Code']

Source-derived case record

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Procedural Posture

Corporations Contempt/enforcement of Disciplinary Orders / Post Hearing, Determination of Whether Defendant Had Reasonable Excuse and Order on Contempt

Legal Issues

  1. 1 ["Does reliance on legal advice constitute a 'reasonable excuse' for refusing to answer questions before the Companies Auditors & Liquidators Board Disciplinary Panel under s 219 of the ASIC Act?" 'Did the defendant, Mr Albarran, actually receive such legal advice?' 'Even if he did, was reliance on it reasonable in the circumstances?']

Ratio Decidendi

Reliance on legal advice is not a 'reasonable excuse' under s 219 of the ASIC Act for refusing to answer questions before the Disciplinary Board. Even if legal advice had been received, such reliance is not reasonable where all questions covered evidence previously given by the defendant, and the statutory scheme requires compliance except for specific, objectively justified exceptions. The defendant did not discharge his evidential burden that he had a reasonable excuse, nor did he establish that legal advice to that effect was actually given.

Court Disposition

Defendant to be punished as if guilty of contempt of court; orders on punishment stood over.

Orders

  • ['Pursuant to s 219(7)(b) of the Australian Securities and Investments Commission Act 2001 (Cth), the defendant be punished in the same manner as if he had been guilty of contempt of court.' 'The matter be stood over to a date to be fixed for the making of orders on the question of punishment.']