Australian Securities and Investments Commission v Macks (No 3) - [2019] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS (No 3)
[2019] SASC 104
Judgment of The Honourable Justice Doyle
18 June 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COMMENCING PROCEEDINGS
PROCEDURE - JUDGMENTS AND ORDERS
CORPORATIONS - WINDING UP - LIQUIDATORS
Application for permission to amend an originating process in an inquiry under s 536 of the Corporations Act 2001 (Cth).
Held (per Doyle J):
1. Consideration of the principles governing applications for permission to amend, including the relevance of a previous forensic decision made by the applicant.
2. ASIC’s application for permission to amend its originating process is refused, and paragraphs [54], [58]-[60] and [66(b)] of its points of claim are to be struck out.
Corporations Act 2001 (Cth) ss 180, 181, 182, 536; Supreme Court Civil Rules 2006 (SA) r 54, referred to.
Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17; Macks v Viscariello (2017) 130 SASR 1; Hollington v F Hewthorn & Co Ltd [1943] KB 587; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Commissioner for Corporate Affairs v Harvey [1980] VR 669; Australian Securities and Investments Commission v Edge (2007) 211 FLR 137; In the Matter of Bernsteen Pty Ltd (in liq) [2018] SASC 76, considered.

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MACKS (No 3)
[2019] SASC 104
Civil

DOYLE J: These proceedings were commenced in March 2015. They involve an application by the plaintiff (ASIC) for an inquiry under s 536 of the Corporations Act 2001 (Cth) into the conduct of the defendant (Mr Macks) as liquidator of Bernsteen Pty Ltd and Newmore Pty Ltd.
By application dated 21 May 2019, ASIC seeks permission to amend its originating process pursuant to r 54(4)(a) of the Supreme Court Rules 2006 (SA). The application is opposed by Mr Macks.
The background to these proceedings, and the present application, has been set out at length in my earlier reasons in this matter,[1] and so need not be repeated. These reasons should be read in conjunction with those earlier reasons, and will adopt the same defined terms.
[1] Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17.
The earlier interlocutory applications
My earlier reasons addressed competing interlocutory applications by the parties.
These included an application by ASIC to amend its originating process to narrow the scope of the inquiry sought under s 536 in light of the decision of the Full Court in the Viscariello proceedings.[2] In its proposed second originating process, ASIC confined the inquiry it sought to the three heads of (mis)conduct that remained the subject of findings either not challenged on the appeal by Mr Macks (in the case of the fabrication of the 2002 and 2004 memos) or upheld by the Full Court (in the case of the post-April 2006 breach of s 180(1) of the Corporations Act 2001 (Cth)). ASIC thus abandoned its request for an inquiry into the matters upon which Mr Macks was successful in the Full Court, namely the trial judge’s findings of a contravention of s 180(1) of the Corporations Act (insofar as it related to the period from June 2005 to 28 April 2006), and that Mr Macks acted with a collateral and improper purpose contrary to ss 181 and 182 of the Corporations Act.
[2] Macks v Viscariello (2017) 130 SASR 1.
Mr Macks opposed the application to amend on various grounds. He also sought a permanent stay of the proceedings on the ground that they involved an abuse of process by ASIC.
The parties also requested that I determine whether there should be an inquiry under s 536, and that I determine how any such inquiry should be conducted (including the application of the rule in Hollington v Hewthorn[3]).
[3] Hollington v F Hewthorn & Co Ltd [1943] KB 587.
In relation to this last issue, ASIC contended that I should adopt a ‘show cause’ procedure that took as its starting point the findings made in relation to the three heads of conduct mentioned above, but gave Mr Macks an opportunity to show cause as to why the Court should not exercise its supervisory and disciplinary jurisdiction under s 536 to impose some sanction upon him. Mr Macks, on the other hand, contended that any inquiry should be conducted in the manner of ordinary inter partes litigation; that the rule in Hollington v Hewthorn will operate to render inadmissible in the inquiry the findings in the Viscariello proceedings; and that ASIC should be required to prove afresh the three heads of alleged misconduct.
For the reasons given, I made orders:
·dismissing Mr Macks’ application to have the proceedings permanently stayed on the ground that they were an abuse of process;
·allowing ASIC’s application to amend its originating process to confine the inquiry it sought to the three heads of conduct that remained the subject of findings by the Court; and
·that there be an inquiry by the Court under s 536(1) of the Corporations Act into those three heads of conduct, as identified in ASIC’s proposed second originating process.
In relation to the procedure to be adopted in the s 536 inquiry, I held that the rule in Hollington v Hewthorn will apply to render inadmissible the findings in relation to the three heads of alleged conduct by Mr Macks; and that the inquiry will be conducted in the manner of ordinarily inter partes proceedings rather than as ‘show cause’ proceedings. I also made an order requiring that ASIC file a points of claim setting out the material facts upon which it relied in support of its three allegations of misconduct.
ASIC’s points of claim
ASIC subsequently filed its points of claim. In that points of claim, ASIC pleaded material facts in support of the three heads of alleged misconduct by Mr Macks addressed in its second originating process. However, ASIC also pleaded allegations that went beyond the second originating process, and hence outside the inquiry that I had ordered.
By way of overview of the structure and content of the points of claim, paragraphs [1] to [9] plead various formal matters. Paragraphs [10] to [53] then plead the detail of Mr Macks’ conduct of the Bernsteen proceedings and George proceedings, including not only the general course of those proceedings, but also the attempts at settlement, the legal costs incurred and the legal advice received.
There then follows a section of the points of claim from paragraphs [54]-[63], under the heading ‘Other Matters’. Paragraph [54] pleads reference to Mr Viscariello’s pre-action letter dated 24 December 2004. Paragraphs [55]-[57] plead reference to the 14 November 2005 meeting of the Committee of Inspection of Bernsteen and allege that Mr Macks did not inform the Committee, or obtain its approval, of the expenditure of funds in the Bernsteen proceedings or the indemnity in the George proceedings. Paragraph [58] pleads the February 2006 commencement of the Viscariello proceedings. Paragraphs [59]-[60] plead reference to a 28 April 2006 meeting between Mr Macks and his legal advisors, and a statement by Mr Macks at that meeting to the effect that settling the Bernsteen and George proceedings would result in Mr Viscariello putting more effort into the Viscariello proceedings, and that these proceedings were ‘the main game’. Paragraphs [61]-[63] plead reference to a 29 May 2006 meeting of the Committee of Inspection of Bernsteen, and allege that Mr Macks did not inform the Committee, or obtain its approval, of the expenditure of funds in the Bernsteen proceedings or the indemnity in the George proceedings.
The relief sought by ASIC is pleaded in paragraphs [64]-[67]. In paragraph [64], ASIC alleges that by his conduct in paragraphs [10]-[63], Mr Macks has demonstrated that he is not a fit and proper person to be a registered liquidator. In paragraph [65], ASIC pleads the fabrication of the 2002 and 2004 memos. Then, in paragraph [66], ASIC pleads as follows:
From, at the latest, the end of April 2006 onwards the Defendant continued the Bernsteen proceedings and continued to indemnify George in respect of the costs of the George proceedings in circumstances where:
(a) no reasonable person in his position as liquidator of Bernsteen, in Bernsteen’s circumstances, would have continued the Bernsteen proceedings or have continued to indemnify George having regard in particular to:
(i)the amounts at stake in those proceedings;
(ii)the legal costs already incurred in those proceedings;
(iii)the estimated further legal costs likely to be incurred in those proceedings;
(iv)the legal advice received concerning those proceedings;
(v)the failure to obtain approval of the Committee of Inspection to the expenditure of funds in the Bernsteen Proceedings or the indemnity to George;
(vi)the attitude of Hamilton-Smith in defending the Bernsteen proceedings and the George proceedings; and
(vii)the opportunities to settle the proceedings;
(b) the continuation of the Bernsteen proceedings and the indemnity to George in respect of the costs of the George proceedings were:
(i)not done by the Defendant in good faith in the best interests of the company;
(ii)not for a proper purpose; and
(iii)to gain an advantage for himself,
because the Defendant’s purpose in continuing the Bernsteen proceedings and the indemnity to George was to improve his ability to defend the Viscariello proceedings.
While the sections numbers are not identified in the pleading itself, it is apparent that paragraph [66(a)] pleads a post-April 2006 breach of s 180(1) of the Corporations Act in accordance with the findings of the Full Court, while paragraphs [66(b)] pleads a post-April 2006 breach of ss 181 and 182 of the Corporations Act.
Finally, paragraph [67] pleads the disciplinary sanctions that ASIC contends should be ordered against Mr Macks.
Challenges to ASIC’s points of claim and proposed originating process
Mr Macks filed a defence to the points of claim. However, in so doing he protested that the points of claim went beyond the second originating process, and hence outside the inquiry that I had ordered, in two respects: first, by the inclusion of the paragraph [66(b)] allegation of breaches of ss 181 and 182, and secondly, by the inclusion of the paragraphs [55]-[57] and [61]-[63] allegations in relation to the two Bernsteen Committee of Inspection meetings.
ASIC concedes that the former requires an amendment of its originating process, and hence the scope of inquiry that I have ordered. To that end, by interlocutory application dated 21 May 2019, ASIC seeks permission to file a third originating process that expands the particulars of the scope of the inquiry to include the issue of “whether [Mr Macks continued the Bernsteen and George proceedings] after 28 April 2006 for the improper purpose of improving his ability to defend [the Viscariello proceedings]”.
ASIC does not concede that the latter requires any amendment to the originating process.
ASIC’s application to amend to include allegations of post-April 2006 breaches of ss 181 and 182
There is no doubt that the inclusion of the alleged breaches of ss 181 and 182 would expand the scope of the s 536 inquiry.
ASIC contends that the expansion will be a relatively modest one; that while the allegation of an improper purpose involves a different focus from the allegation of a lack of care and diligence, it nevertheless relies upon a consideration of the same range of facts and circumstances; and that the expansion of the inquiry will be essentially confined to a further level of legal analysis and characterisation of those facts and circumstances. ASIC emphasises that its case as to an improper purpose will be one based upon inferences to be drawn from the documentary evidence upon which it intends to rely, being essentially the same evidence it will rely upon to establish its allegation of a post-April 2006 breach of s 180(1).
Mr Macks, on the other hand, contends that the expansion will be a significant one. While accepting that there is an objective overlay to the assessment of an improper purpose, he contends that the expanded inquiry would nevertheless involve a substantial inquiry into Mr Macks’ subjective state of mind over an extended period of time that would not have been relevant or necessary under the inquiry as presently contemplated by my orders (that is, as confined by the second originating process).
Mr Macks objects to ASIC’s application to amend on various bases. He invokes the principles set out in AON Risk Services Australia Ltd v Australian National University.[4] He contends that ASIC has not adequately explained or justified the amendments it now seeks to make. He also complains that ASIC made a tactical or forensic decision to narrow its originating process to confine the inquiry it sought to the three heads of conduct that remained the subject of findings in the Viscariello proceedings (namely the fabrication of the 2002 and 2004 memos, and the post-April 2006 breach of s 180(1)), and that it should not now be entitled to resile from that decision to seek an expanded inquiry into allegations that relate to matters that occurred over 13 years ago and have already been the subject of extensive investigation and litigation.
[4] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, as applied in Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59, and as summarised by me in PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307 at [39] and Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17 at [78]ff.
In support of the proposed amendment, ASIC first points out that its attempt to include allegations of post-April 2006 breaches of ss 181 and 182 does not involve it pursuing any allegations inconsistent with the conclusions or reasons of the Full Court in the Viscariello proceedings. It accepts that the Full Court overturned the trial judge’s findings of breaches of those sections dating back to June 2005, and does not seek to revisit those findings. However, it points out that the Full Court expressly left open the question of whether there might have been post-April 2006 breaches of ss 181 and 182.[5] The Full Court was not able to reach a conclusion on that matter, and declined to exercise its discretion to remit that issue for retrial.[6] In so exercising its discretion, the Court relied primarily upon the lack of utility in doing so in the context of the Viscariello proceedings. However, the Full Court also noted that there was evidence at trial to the effect that ASIC was investigating the conduct of Mr Macks, adding that “[i]t could be said that ASIC is the appropriate body to consider proceedings against Mr Macks relating to potential breaches of his duties as liquidator.”[7]
[5]    Macks v Viscariello (2017) 130 SASR 1 at [624]-[627].
[6]    Macks v Viscariello (2017) 130 SASR 1 at [796]-[815].
[7]    Macks v Viscariello (2017) 130 SASR 1 at [814].
It is apparent that this was a reference by the Full Court to these proceedings, and disclosed an anticipation by the Full Court that ASIC might investigate, or seek an inquiry into, the potential of post-April 2006 breaches of ss 181 and 182.
ASIC concedes that it subsequently made a decision – which might be described as a forensic or strategic decision – not to pursue an inquiry into breaches of these sections. Its first originating process had been based upon the findings of the trial judge in the Viscariello proceedings and so had included allegations of breaches of ss 181 and 182. However, as mentioned earlier, in its application to amend in terms of its proposed second originating process, ASIC sought to narrow the scope of the inquiry to the three heads of conduct that remained the subject of findings against Mr Macks. In so doing, it expressly abandoned its allegations of breaches of ss 181 and 182, and so did not seek to pursue an inquiry into the potential post-April 2006 breaches of those sections left open by the Full Court.
The reason given for making this forensic decision was ASIC’s view at the time that the proceedings could and should be conducted as a ‘show cause’ proceeding. It considered that this procedure had advantages and disadvantages. It had the advantage of resulting in a more efficient procedure, but had the disadvantage that ASIC would need to confine the inquiry it sought to the three heads of conduct that were already the subject of findings. ASIC thus made a deliberate and informed choice to frame and confine the proceedings in the way it did in an attempt to secure the advantage of the ‘show cause’ procedure, accepting that the ‘price’ of this was an inability to pursue any allegation of breaches of ss 181 or 182. ASIC obviously formed the view that this was an appropriate decision to take, and course to follow, in pursuit of the public and regulatory interests that it represents.
ASIC frankly concedes that it now seeks to revisit the forensic decision or choice that it made. It seeks to do so as a result of my rejection of its contention that the s 536 inquiry should be conducted on a ‘show cause’ basis. It says that now that I have determined that it must prove its allegations from the ground up in the style of ordinary inter partes litigation, there is no longer any advantage or reason for it to confine itself to existing findings against Mr Macks. Hence it now seeks to expand the inquiry to include the allegations of post-April 2006 breaches of ss 181 and 182 left open by the Full Court.
In addition to this explanation for the proposed amendments, ASIC points out that a hearing date for the inquiry has not yet been set and so will not be jeopardised. While accepting some increase in the likely cost and length of the inquiry, ASIC contends that this will be modest in the scheme of things. And, while acknowledging the difficulties associated with conducting an inquiry into matters that happened over a decade ago, ASIC emphasises that this will be required in any event by reason of the inquiry into the alleged breach of s 180(1).
While I attach some weight to the matters in the preceding paragraph, I am not ultimately persuaded that it is appropriate to give ASIC permission to amend its originating process to include an inquiry into post-April 2006 breaches of ss 181 and 182. There are, broadly speaking, two reasons for this. The first and primary reason is that I do not consider it is appropriate to permit ASIC to revisit the forensic decision it made to abandon any allegation of breaches of ss 181 and 182 in circumstances where the interlocutory applications the subject of my earlier reasons were fought and determined on the basis of that forensic decision. The second is the nature of these proceedings, being an inquiry conducted by the Court in an exercise of its supervisory and disciplinary jurisdiction, rather than proceedings in pursuit or vindication of private rights.
As to the first of these matters, at several places in my earlier reasons I emphasised the significance of ASIC’s narrowing of the proposed inquiry (to confine it to the three heads of conduct that remained the subject of findings), both to my preparedness to permit the amendments sought, and to my decision that the proceedings not be stayed.[8]
[8] Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17 at [114], [121]-[126].

I do not go so far as to say that the precise breadth of the inquiry sought was a decisive consideration; or that had the proposed second originating process included an allegation of post-April 2006 breaches of ss 181 and 182, the outcome of the amendment or stay applications would have been different. However, it is the case that the way in which ASIC chose to frame and confine the proceedings was a relevant and significant consideration in my determination of those applications. ASIC succeeded on its application to amend, and succeeded in resisting Mr Macks’ application for a stay, on the basis of the proceedings framed and confined in the way they were, and hence with any allegation of breaches of ss 181 or 182 (whether confined to post-April 2006 or otherwise) having been abandoned.
It is true that what ASIC now seeks to do is not inconsistent with anything found or said by the Full Court. Indeed, as explained earlier, ASIC merely seeks to expand the inquiry to include the post-April 2006 breaches of ss 181 and 182 that the Full Court expressly left open and appears to have anticipated ASIC might pursue. But this is not a complete answer to the significance of the forensic decision that ASIC made.
The fact remains that ASIC made a forensic decision to abandon any reliance upon ss 181 and 182, to frame the proceedings as ‘show cause’ proceedings, and to contest the earlier interlocutory applications on this basis. It must have anticipated, and certainly should have anticipated, that I might accept Mr Macks’ contention that I should not proceed in this way, and that the findings in the other proceedings will not be admissible in these proceedings. In this respect it made a forensic decision which, like most forensic decisions, involved some risk (namely, forgoing the pursuit of allegations of breaches of ss 181 and 182 without obtaining the advantages of a ‘show cause’ procedure). However, it made a conscious and informed decision to take this risk.
I do not criticise this decision. There is no reason for me to think that it was other than an appropriate attempt to balance various competing considerations in pursuit of the public and regulatory interests that ASIC represents. However, I do consider that the decision had potential consequences for the future conduct of the litigation, which in the context of these proceedings include it being appropriate that I hold ASIC to the inquiry as presently framed and confined.
Put another way, ASIC had the opportunity to seek to include an allegation of post-April 2006 breaches of ss 181 and 182 at the time of the earlier interlocutory applications. It could have recast its proposed second originating process in that way in reliance upon the passages from the Full Court’s reasons mentioned earlier. But it chose not to take that opportunity. This is not a case of a litigant who was not aware of its ability to make an allegation, or not in a position to do so for some reason. Rather, ASIC made a conscious and informed decision not to take the opportunity to plead breaches of ss 181 and 182. In the context of this litigation, and the lengthy history of the underlying issues more broadly (as set out in my earlier reasons in this matter), I consider this to be a powerful reason for declining to give ASIC a further opportunity to plead alleged breaches of ss 181 and 182.
I have not overlooked ASIC’s reference to authorities which have acknowledged the potential for the scope of inquiries commenced under s 536 to be expanded beyond their initially contemplated parameters.[9] However, to my mind, the circumstances in which it might be appropriate to contemplate such expansion will depend very much upon the nature and circumstances of the particular inquiry. Where an inquiry is in the nature of a first investigation of particular allegations or issues, it is entirely to be expected that the inquiry might uncover matters which might take the inquiry in a direction not initially anticipated. However, the present inquiry is quite different in its nature. As ASIC emphasised in the earlier interlocutory applications, the present inquiry is not intended or expected to cover any new ground. Rather, what ASIC seeks is an inquiry into matters that have already been the subject of detailed and lengthy investigation and litigation for the purposes of making appropriate findings in relation to these matters and then considering whether disciplinary sanctions are appropriate. It seems to me that there is inherently less occasion or room for flexibility in the scope of this latter kind of inquiry.
[9] Commissioner for Corporate Affairs v Harvey [1980] VR 669 at 688; Australian Securities and Investments Commission v Edge (2007) 211 FLR 137 at [80].
Underlying ASIC’s submissions in the previous paragraph is recognition of the potentially more flexible approach that might be taken to the ordinary application of the principles in AON Risk Services in the context of a s 536 inquiry, given that it is ultimately a court-driven investigation in an exercise of the court’s supervisory and disciplinary jurisdiction, and not ordinary litigation focussed upon the pursuit or vindication of private rights. Of course, ASIC sought to invoke this flexibility in its favour, as supporting its application to expand the inquiry. However, it seems to me that in the circumstances of this case, the nature of the proceedings merely underscores the breadth of discretion I have in determining the scope of the inquiry.[10] In my view, and this is the second of the broad reasons I mentioned earlier for refusing ASIC permission to amend, the nature of these proceedings gives me some greater flexibility in holding ASIC to its earlier forensic decision. It does so because the nature of the proceedings is potentially relevant to the weight that might be attached to various considerations, such as the parties’ prejudice and forensic choices.
[10] See the discussion in my earlier reasons as to the nature of this supervisory and disciplinary jurisdiction, and the court’s discretion to control the fact, scope and procedure of any inquiry: Australian Securities and Investments Commission v Macks (No 2) [2019] SASC 17 at [47]-[60].
The prejudice to Mr Macks of permitting the amendments would be to burden him with a longer and more expensive inquiry; to do so in circumstances where the allegations of misconduct relate to matters that occurred over a decade ago and would be out of time if sought to be pursued in ordinary inter partes litigation commenced now; to do so in circumstances where Mr Macks has already been subjected to lengthy and detailed investigation and litigation in relation to the relevant conduct (as explained in my earlier reasons); and to do so in circumstances where ASIC had previously abandoned any allegation of breaches of ss 181 and 182 and had secured successful outcomes in the earlier interlocutory applications on that basis.
While at one level, this prejudice appears significant, as ASIC submits, it is important to understand this prejudice in the broader context of the explanation for the timing of these proceedings (as set out in my earlier reasons) and the fact that there is, in any event, to be an inquiry into a similar range of facts and circumstances by reason of the inquiry into the allegation of a post-April 2006 breach of s 180(1) of the Corporations Act.
In light of this last-mentioned submission by ASIC, it may be that this prejudice Mr Macks would not suffice if the effect of me refusing the amendment would have been to shut a private party out of its pursuit of an apparently meritorious cause of action. However, in the circumstances of these proceedings, where ASIC had previously determined that the public and regulatory interest that it represents did not require pursuit of the ss 181 and 182 allegations, and had secured procedural or interlocutory victories on that footing, it is appropriate that I hold ASIC to the forensic choice it made, and decline it permission to amend its originating process in the terms sought.
As a consequence of this it will also be appropriate to strike out or disallow paragraphs [54], [58]-[60] and [66(b)] of the points of claim, which are the paragraphs relating exclusively to the allegations of post-April 2006 breaches of ss 181 and 182 of the Corporations Act.
ASIC’s allegations in relation to the Bernsteen Committee of Inspection meetings
As mentioned, the second aspect of ASIC’s points of claim complained of by Mr Macks is the pleadings in paragraphs [55]-[57] and [60]-[63] to the effect that Mr Macks failed to inform, and obtain the approval of, the Bernsteen Committee of Inspection of the expenditure of funds in the Bernsteen proceedings or the indemnity in the George proceedings.
Mr Macks’ objection to these paragraphs was made in circumstances where it was not clear to him the asserted relevance of these allegations. The objection was primarily anchored in a submission that it would be inappropriate for ASIC to use the allegations as a basis for it revisiting the issues sought to be addressed in some other related proceedings that I judicially managed, and ultimately dismissed,[11] or for it to advance these matters in support of its impugned allegation of breaches of ss 181 and 182.
[11] In the Matter of Bernsteen Pty Ltd (in liq) [2018] SASC 76.
ASIC has since clarified that the only relevance of its pleas in relation to the Committee of Inspection meetings is in support of its allegation of a post-April 2006 breach of s 180(1). As I indicated arguendo, I am not sure that the events of these meetings of themselves carry much significance in this respect. However, I accept that the events of these meetings are relevant at least insofar as they form part of the factual narrative and context to be explored in consideration of the alleged breach of s 180(1).
In circumstances where the asserted relevance of the matters in paragraphs [55]-[57] and [60]-[63] has been confined in the way I have described, and I have otherwise refused permission to amend to allege any breach of ss 181 and 182, I can see no material prejudice to Mr Macks in these paragraphs remaining in the points of claim. I thus do not intend to make any order in relation to these paragraphs.
Conclusion
I will thus make orders to the effect that ASIC’s application for permission to amend its originating process is refused, and that paragraphs [54], [58]-[60] and [66(b)] of the points of claim are to be struck out. I will not make any orders in relation to paragraphs [55]-[57] and [60]-[63] of the points of claim.