Ehrenfeld and Australian Securities and Investments Commission

[2017] AATA 2595

Ehrenfeld and Australian Securities and Investments Commission [2017] AATA 2595 (6 December 2017)

Division:TAXATION & COMMERCIAL DIVISION

File Number(s):      2016/3122

Re:Gabriel Ehrenfeld

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:6 December 2017

Place:Sydney

The Applicant’s objection to the inspection of documents returned under summons issued to Australia and New Zealand Banking Group is dismissed. Accordingly, the Respondent is granted access to inspect such documents from the date of this decision.

.......................[sgd].................................................

Deputy President B W Rayment

Catchwords

PRACTICE AND PROCEDURE – summons – summons to produce bank records – objection to issue of summons – objection to inspection of summons material – whether summons documents capable of throwing light on issues these proceedings – summons not a fishing expedition – objection to inspection dismissed – access to inspect summons material granted

REASONS FOR DECISION

Deputy President B W Rayment

6 December 2017

1. The Respondent caused a summons to be issued to the Australia and New Zealand Banking Group (ANZ Bank) for certain bank records (the Summons). The Summons was issued on 29 September 2017.

2. The documents were produced to the Tribunal and have been inspected by the Applicant.

3. The Applicant opposes the Respondent having access to the documents and applies to set the Summons aside.

4. The documents having been produced to the Tribunal, the application to set aside the Summons is moot in my opinion. If the Summons ought not to have been issued, the proper course is to refuse to permit inspection of the documents rather than to make an order excusing the ANZ Bank from the obligation to produce.

5. The Respondent submits that the question of setting aside the Summons and the question of inspection ought to be dealt with according to tests established in the courts for subpoenas to produce documents and that the documents are those of companies of which the Applicant was a director, and that the documents are capable of throwing light on issues which will or may arise in the proceedings. It points out that the Applicant himself made reference in section 5 of his Statement of Facts, Issues and Contentions to related questions. It also makes reference to the Applicant’s outline of evidence to which it says the documents called for from the ANZ Bank also may be relevant.

6. The existing directions in this proceeding required the filing by the Respondent of its Statement of Facts, Issues and Contentions shortly after the Summons was issued. The Applicant contested the making of those directions and submits that he should not have been ordered to commence the “pleading” process, and indeed the Respondent has put on submissions suggesting that it may wish to introduce allegations that were not dealt with by the delegate, or not extensively dealt with. It is the Applicant’s present application which is holding up the flow of pleadings and I am anxious to ensure that such delay does not continue. The submissions of the Respondent which I have noted in paragraph 5 above, show, in my opinion, that the Summons is not, as the Applicant submits, a fishing expedition.

7. If fresh allegations are made by the Respondent in its Statement of Facts, Issues and Contentions which the Applicant says he cannot meet, then that will have to be dealt with by a further directions hearing.

   DECISION

8. I am satisfied that inspection by the Respondent of the documents produced by the ANZ Bank ought to be ordered and I grant liberty for their inspection from the date of this decision.

9. Further, the Respondent is directed to file, by 15 December 2017:

   (a)any outlines of evidence, witness statements and other evidence on which the Respondent intends to rely at the hearing; and

   (b)a Statement of Facts, Issues and Contentions.

10. The Applicant is directed to file, by 19 January 2018, any additional evidence on which he seeks to rely in response to the material filed by the Respondent under paragraphs 9(a) & (b) above.

11. If any application is made by the Applicant concerning that material I am able to entertain it on 21 December 2017.  I wish to ensure that the matter is ready to proceed on the date fixed for its hearing, 5 February 2018. 

I certify that the preceding  (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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Dated: 6 December 2017

Date(s) of hearing:	2 November 2017
Date final submissions received:	28 November 2017
Applicant:	In person
Counsel for the Respondent:	Mr D Healey & Ms D Tucker
Solicitors for the Respondent:	Australian Securities and Investments Commission