Smith, Brian Millwood v Papamihail, Kerrie & Anor [1998] FCA 1310

Smith, Brian Millwood v Papamihail, Kerrie & Anor [1998] FCA 1310

Section 19(2) of the ASIC Law is to be read disjunctively. The Commission may require reasonable assistance without also requiring appearance for examination. Privilege against self-incrimination does not provide reasonable excuse for non-compliance with required assistance under s 19(2), subject to s 68. There was sufficient evidence to infer Centurion Trust would likely comply, so futility did not arise. The application is dismissed.

Jurisdiction
Australia
Judgment Date
16 October 1998
Procedural Posture
Judicial Review / Final Judgment
Outcome
Application dismissed
Legal Topics
['investigation Powers Under ASIC Law' 'privilege Against Self Incrimination' 'statutory Interpretation' 'reasonable Assistance in Investigations']
['corporations Law' 'administrative Law'] ['investigation Powers Under ASIC Law' 'privilege Against Self Incrimination' 'statutory Interpretation' 'reasonable Assistance in Investigations']

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Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 ['Whether s 19(2) of ASIC Law requires notice to be issued conjunctively, requiring both reasonable assistance and appearance for examination' 'Whether s 19 only applies if an examination is held' 'Whether privilege against self-incrimination applies to requirement of reasonable assistance under s 19(2)(a)' 'Whether assistance required would prove futile']

Ratio Decidendi

Section 19(2) of the ASIC Law is to be read disjunctively. The Commission may require reasonable assistance without also requiring appearance for examination. Privilege against self-incrimination does not provide reasonable excuse for non-compliance with required assistance under s 19(2), subject to s 68. There was sufficient evidence to infer Centurion Trust would likely comply, so futility did not arise. The application is dismissed.

Court Disposition

Application dismissed

Orders

  • ['The application be dismissed.' "The applicant pay the respondents' costs."]