Australian Securities and Investments Commission v Web3 Ventures Pty Ltd (No 2)

[2024] FCA 197

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Web3 Ventures Pty Ltd (No 2) [2024] FCA 197  

File number(s):	NSD 1007 of 2022
Judgment of:	JACKMAN J
Date of judgment:	29 February 2024
Catchwords:	PRACTICE AND PROCEDURE – whether to make orders allowing running of defences – where initial trial dealt with questions of liability – where defendant’s concise statement raised exculpatory provisions – where defendant under impression that exculpatory provisions outside scope of initial trial – where orders not opposed – orders made
Legislation:	Corporations Act 2001 (Cth) ss 601E, 911A, 1317S, 1317QC
Cases cited:	Australian Securities and Investments Commission v Web3 Ventures Pty Ltd [2024] FCA 64
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulation and Consumer Protection
Paragraphs	5
Date of hearing:	29 February 2024
Counsel for the Plaintiff:	Ms EL Beechey
Solicitor for the Plaintiff:	Australian Securities and Investment Commission
Counsel for the Defendant:	Mr J Entwisle
Solicitor for the Defendant:	Gilbert + Tobin

ORDERS

NSD 1007 of 2022

BETWEEN:

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Plaintiff

AND:

WEB3 VENTURES PTY LTD ACN 655 090 869

Defendant

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	29 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The orders of 9 February 2024 be amended by inserting at the beginning of declarations 1 and 2 the words: “Subject to any application of ss 1317S and 1317QC of the Corporations Act 2001 (Cth)”.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript

JACKMAN J

1. I gave judgment in this matter on 9 February 2024 in the decision cited as Australian Securities and Investments Commission v Web3 Ventures Pty Ltd [2024] FCA 64. At [6] of that judgment, I said that the judgment dealt with questions of liability only and that questions of penalty were to be decided later. That statement was an adoption of ASIC’s written submissions at [4], to which the defendant had not objected or sought to qualify.

2. In the concise statement in response in the present case, the defendant at [48] and [49] raises defences pursuant to ss 1317S and 1317QC of the Corporations Act 2001 (Cth) (Exculpatory Provisions). The defendants say in those paragraphs that if it is found that Block Earner has contravened either of ss 911A or 601ED(5), then relief from liability should be granted under one or other of the Exculpatory Provisions.

3. At the initial trial, ASIC sought declarations of contravention of those provisions and the defendant sought an order dismissing the proceedings. No submission was put by the defendant at the initial trial concerning the Exculpatory Provisions.

4. It appears that the defendant was under the impression that the Exculpatory Provisions were not within the scope of the initial trial. Whether or not the defendant was correct in proceeding on that basis, ASIC does not resist the defendant being able to rely on the Exculpatory Provisions at the penalty stage of the proceeding. For my part, I accept that the defendant adopted the stance it did bona fide, and not as a tactical manoeuvre. There does not appear to be any prejudice to ASIC in allowing the defendant to run those defences at the penalty hearing.

5. In light of the issue which has only recently arisen concerning the Exculpatory Provisions, the declarations which I made on 9 February 2024 as to contraventions by the defendant should now be understood as being subject to any application of ss 1317S and 1317QC of the Corporations Act. Accordingly, I will amend those declarations to insert at the beginning of each declaration the words: “subject to any application of ss 1317S and 1317QC of the Corporations Act 2001 (Cth)”.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       5 March 2024