Affleck v Australian Securities and Investments Commission

Mark Affleck filed an originating application seeking orders allowing him to manage Hurford Wholesale Pty Ltd, pursuant to section 206G of the Corporations Act 2001. The central issue before the court was whether the applicant could be granted an exception to the statutory disqualification from managing a corporation imposed as a consequence of his criminal convictions. The applicant, previously the general manager and director of Moxon and Company Pty Ltd, had been convicted of multiple counts of forgery and a contravention of export regulations. He was sentenced to imprisonment and fined, resulting in an automatic five-year disqualification from managing corporations. Despite this, he continued to work for the company under a new management structure. The court had to determine if there were sufficient grounds to allow an exception to the statutory disqualification.

The court considered the statutory framework and the principles guiding disqualification from managing corporations. It noted the seriousness of the applicant’s offences, which involved the use of false AQIS stamps to falsely certify timber exports. However, it also took into account the applicant’s remorse, his cooperation with authorities, and the support he had from the new directors and management of Hurford Wholesale. The court found that, while the statutory disqualification was designed to protect the public interest, there were exceptional circumstances in this case warranting an exception. The applicant’s continued employment under new management, combined with his demonstrated rehabilitation and support from the current directors, provided sufficient grounds for granting the requested relief.

In light of the above, the court granted the applicant leave to manage Hurford Wholesale Pty Ltd, effective from 27 September 2015. However, the applicant was not to be appointed a director of the corporation without further leave from the court. This decision balanced the need to uphold the statutory policy with the exceptional circumstances presented by the applicant’s case.