Bringans and Australian Securities and Investments Commission

[2023] AATA 3103

Bringans and Australian Securities and Investments Commission [2023] AATA 3103 (26 September 2023)

Division:TAXATION AND COMMERCIAL DIVISION

File Number(s):      2022/5410

Re:Mark Bringans

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

File Number(s):      2022/6104

Re:Oskar Pecyna

APPLICANT

AndAustralian Securities and Exchange Commission

RESPONDENT

File Number(s):      2022/6158

Re:Jonathan Richard Schneider

APPLICANT

AndAustralian Securities and Exchange Commission

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:26 September 2023

Place:Adelaide

The Tribunal directs:

1.The Australian Securities and Investments Commission (ASIC) must file any amended or reply statements of facts, issues and contentions (SFIC) by 9 October 2023;

2.The applicants must file and serve their evidentiary material by 3 November 2023;

3.ASIC must provide its material in reply by 20 December 2023; and

4.A conciliation conference shall be held on a date convenient to the parties and the Tribunal in November 2023.

.................................SGD.......................................

Deputy President Bernard J McCabe

Catchwords

Banning Orders – Case Management

Legislation

Corporations Act 2001 (Cth)

REASONS FOR DECISION

Deputy President Bernard J McCabe

26 September 2023

1. The applicants in these proceedings were each the subject of banning orders. The banning orders were made under s 920A of the Corporations Act 2001 (Cth) on 28 June 2022 in the case of Mr Bringans and on 29 June 2022 in the cases of Mr Pecyna and Mr Schneider.

2. The parties have now filed and served upon each other their statements of facts, issues and contentions. ASIC went first. That was thought appropriate given the possibility that ASIC’s case against each applicant may have evolved somewhat since the date of the reviewable decision.

3. What comes next? The solicitors representing Mr Bringans suggested a set of directions that provided for:

   (a)

   ASIC to file an amended or reply statement of facts, issues and contentions

   
   

   (the SFIC) by 9 October 2023;

   (b)The applicants to file and serve their evidentiary material by 27 October 2023;

   (c)ASIC to provide its material in reply by 13 December 2023; and

   (d)A conciliation conference to be held in late December 2023.

4. I will deal firstly with ASIC’s amended or reply SFIC.

5. ASIC says it should be given the opportunity to file either an amended SFIC or a reply SFIC in each case. The other parties do not disagree that ASIC should be given that opportunity, but there is a controversy over the timing. ASIC says it should be allowed to file its SFIC after it has seen the evidence provided by the applicants, whereas the applicants say the amended/reply SFIC in each case should be filed before the applicant’s evidence is filed so each applicant knows what is put against them and can provide evidence accordingly. The applicants say that allowing ASIC to wait until the applicants file their evidence might require them to reopen their evidence. That would be inefficient.

6. I asked Dr Bender KC, who appeared for ASIC, whether ASIC had decided it would be necessary to amend its SFICs in light of what it has read in the SFICs provided by the parties. He indicated ASIC had not formed a view about that and would rather respond once the evidence was in. Dr O’Mahoney (for Mr Schneider) and Mr Mitchell (for Mr Pecyna) both pointed out the SFICs which have been exchanged are very detailed and ASIC should be in a position to make amendments to its SFIC now should it wish to do so. Mr Mitchell acknowledged ASIC was always free to seek leave to make further amendments to its SFICs after receiving and reviewing the applicants’ material if there was anything in that material that could not have been anticipated. Mr Mitchell added he would oppose leave being granted to make further amendments in due course if the amendments being proposed could have been made earlier after reviewing the applicants’ SFICs.

7. ASIC must be given an opportunity to file an amended or reply SFIC. It seems to me ASIC should be able to address any matters raised in the applicants’ SFICs by filing its own amended SFICs without waiting for the applicants’ material. The applicants would then have the benefit of understanding ASIC’s position when the applicants prepare their evidence. That should make the process more efficient and comprehensive. I agree with Mr Mitchell that ASIC could seek leave to further amend the SFIC if that appears desirable after reviewing the applicants’ material. Hopefully that will be unnecessary if ASIC has already previewed its case by filing an amended or reply SFIC in reply to the applicants’ SFICs.

8. I am satisfied that requiring ASIC to file the amended or reply SFIC responding to each applicant’s SFIC is likely to be the most expeditious and efficient course. ASIC should do that (if it wishes to do so) by 9 October 2023.

9. That brings me to the date on which the applicants should file their material. While the directions suggested on behalf of Mr Bringans say that material should be provided by 27 October 2023, counsel for Mr Schneider has asked for a further week. The other applicants were content with that extension provided they all received additional time. Dr Bender said ASIC did not agree to the additional week because it would place too much pressure on ASIC to read and absorb what may be a significant amount of material. If I understand

   
   

   Dr Bender correctly, he and his junior counsel may have other commitments that may limit the amount of time ASIC has to respond.

10. I am not satisfied that affording an extra week to the applicants to provide their material would unduly burden ASIC. It is not required to produce its material in reply until

    
    

    13 December 2023 according to the draft directions. In the circumstances, I am content to give ASIC an extension until 20 December 2023 to file its material.

11. That leaves only the question of the conciliation conference. Dr O’Mahoney said he and his junior would be unable to attend a conciliation conference in late December as was suggested on behalf of Mr Bringans. Dr O’Mahoney said it would be desirable to conduct such a conference at the earliest opportunity. All the applicant parties agreed it would be possible to have separate conferences but they each agreed it would be preferable for there to be one event for all of them. Mr Mitchell and Mr Shakenovsky (who appeared for

    
    

    Mr Bringans) were agreeable to participating in an event scheduled for some time in November after the applicants had filed their material. All the applicants agreed an event might be valuable at that point even if they had not received ASIC’s evidentiary material. I do not understand that ASIC had any objection to this proposal.

12. I am satisfied the conciliation conference should be convened on a date that is convenient to the parties and the Tribunal in November 2023.

13. It is probably unnecessary to add that each party is at liberty to apply.

I certify that the preceding 13 (thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

...................................SGD.....................................

Associate

Dated: 26 September 2023

Date(s) of hearing:

22 September 2023

Counsel for the Applicant – Bringans:

Jonathan Shakenovsky

Solicitors for the Applicant – Bringans:

Counsel for the Applicant – Pecyna:

Solicitors for the Applicant – Pecyna:

Counsel for the Applicant – Schneider:

Solicitors for the Applicant – Schneider:

Kennedy's Law

Donald Mitchell

Glenjon Aligiannis

Dr Greg O'Mahoney

Clyde & Co

Counsel for the Respondent:

Counsel for the Respondent:

Dr Philip Bender

Ganesh Jegatheesan