Asic v Adler and 4 Ors

In the Federal Court, the Australian Securities and Investments Commission (ASIC) commenced proceedings against Adler and four other respondents. ASIC sought penalties for various breaches of the Corporations Act, including misleading or deceptive conduct, insider trading, and breaches of continuous disclosure obligations. The matter proceeded to trial, resulting in the respondents being found liable for several of the charges. Post-trial, ASIC sought contribution or indemnity from the respondents, claiming a late application.

The central legal issue before the court was whether ASIC's late application for contribution or indemnity could be entertained and, if so, whether the court had the discretion to grant it. ASIC argued that the court should exercise its power and discretion to allow the application, as the only remaining relief to be argued was the apportionment of liability between the respondents. The respondents, on the other hand, contended that the court should not entertain the late application as it would be unjust and would prejudice their rights to a fair trial.

The court held that, while the power to grant contribution or indemnity was discretionary, it could be exercised even after the determination of liability. The court emphasised that the late application was not a challenge to the liability itself but rather an attempt to apportion the liability among the respondents. The court acknowledged that the respondents had a right to a fair trial but found that the application did not prejudice their rights, as the liability had already been established. Consequently, the court exercised its discretion to allow the late application for contribution or indemnity.

The court ordered that ASIC's late application for contribution or indemnity be allowed and that the matter proceed to determine the apportionment of liability among the respondents. The court did not specify the exact orders for contribution or indemnity but left it to be determined in subsequent proceedings.