R v Bigatton (No 2) [2023] NSWDC 290

R v Bigatton (No 2) [2023] NSWDC 290

There is a live and bona fide issue between the parties regarding whether a scheme can be both a managed investment scheme and a Ponzi scheme as a matter of law under the Corporations Act. If resolved in favour of the accused, the communications between ASIC and FBI have legitimate forensic purpose. Material change in circumstances is not necessary to rehear this application, and different evidence and submissions have led to the conclusion that production should not be set aside.

Jurisdiction
Australia
Judgment Date
01 August 2023
Procedural Posture
Criminal / Interlocutory Application
Outcome
applications to set aside subpoenas dismissed
Legal Topics
['setting Aside Subpoena' 'managed Investment Schemes' 'ponzi Scheme' 'procedure']
['criminal Law' 'corporate Law'] ['setting Aside Subpoena' 'managed Investment Schemes' 'ponzi Scheme' 'procedure']

Case Brief

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Procedural Posture

Criminal / Interlocutory Application

Legal Issues

  1. 1 ['Whether the subpoenas issued to ASIC and CDPP for communications with FBI regarding BitConnect have a legitimate forensic purpose' 'Whether communications are admissible or relevant to trial issues' 'Whether a scheme can simultaneously be a managed investment scheme and a Ponzi scheme under Corporations Act']

Ratio Decidendi

There is a live and bona fide issue between the parties regarding whether a scheme can be both a managed investment scheme and a Ponzi scheme as a matter of law under the Corporations Act. If resolved in favour of the accused, the communications between ASIC and FBI have legitimate forensic purpose. Material change in circumstances is not necessary to rehear this application, and different evidence and submissions have led to the conclusion that production should not be set aside.

Court Disposition

applications to set aside subpoenas dismissed

Orders

  • ['The notice of motion filed 26 July 2023 on behalf of the Australian Securities Investment Commission is dismissed.' 'The notice of motion filed 26 July 2023 on behalf of the Commonwealth Director of Public Prosecutions is dismissed.']