ASE16 v Australian Securities and Investments Commission

The applicants in the case of ASE16 v Australian Securities and Investments Commission sought judicial review of the ASIC's decision to issue notices requiring them to show cause why they should not be disqualified from managing corporations under s 206F of the Corporations Act 2001. The applicants challenged the legality of the statutory preconditions for issuing these "show cause" notices and sought non-publication orders to prevent commercial disadvantage. The court was tasked with determining whether the statutory preconditions under s 206F(1)(a)(ii) require the winding up of a company to be complete and a liquidator’s report to be lodged within 12 months after the cessation of the officers’ roles in respect of two or more corporations. Additionally, the court had to consider the appropriateness of making non-publication orders given the potential commercial disadvantage to the applicants.

The court examined the legislative framework and historical context of the statutory provisions, noting the evolution from s 562A of the Companies (New South Wales) Code to s 600 of the Corporations Law. It concluded that the statutory preconditions do not require the winding up of a company to be complete or a liquidator’s report to be lodged within 12 months of the officers' cessation. The court also considered the applicants' request for non-publication orders to prevent prejudice to the proper administration of justice and commercial disadvantage. The court ruled that the orders should not be indefinite but should instead operate for a fixed period to allow the applicants to take necessary steps and for the statutory process to proceed.

The court declined to make the non-publication orders sought by the applicants, finding that such orders should not operate indefinitely. Instead, it determined that the orders should be in place until 30 September 2016, providing sufficient time for the applicants to respond to the judgment and for the statutory process to continue. The court dismissed the applicants' amended originating application and ordered the applicants to pay ASIC's costs of the proceedings. The decision highlighted the need for non-publication orders to be time-bound and to serve a legitimate purpose, as per s 37AJ of the Federal Court Act.