Hardy (by his tutor, Lynette Maree Hardy) and Australian Securities and Investments Commission

The Australian Securities and Investments Commission (ASIC) sought a summons directed to Mr Robert Hardy, the applicant, to obtain evidence concerning his capacity to manage corporations. Mr Hardy, represented by his tutor Lynette Maree Hardy, sought to have this summons set aside. The dispute arose in the context of ASIC's decision to disqualify Mr Hardy from managing corporations for five years, following reports of companies he directed being wound up in insolvency. Mr Hardy contended that his serious medical condition prevented him from having a genuine opportunity to be heard, thus invalidating ASIC's disqualification decision.

The primary legal issues before the Tribunal were whether the summons issued by ASIC was valid and whether the documents sought were relevant to the proceedings. Specifically, the Tribunal had to consider if the creation of certain documents would be too onerous for Mr Hardy or if compliance with the summons would be oppressive. Additionally, the Tribunal considered whether Mr Hardy was denied a meaningful opportunity to respond to ASIC's notice due to his medical condition, and whether the preconditions for ASIC's disqualification discretion under section 206F(1) of the Corporations Act 2001 (Cth) had been met.

Deputy President Bernard J McCabe P reasoned that Mr Hardy could not rely on the *Harman* principle to resist the summons, as it was unclear how the implied undertaking applied to court documents like pleadings and originating applications, or to Mr Hardy's own evidence which he was not compelled to provide. The Deputy President found that most of the documents sought by ASIC were relevant to the proceedings, particularly concerning Mr Hardy's capacity and his history as a director. However, the Deputy President disallowed items 4 and 6 of the summons, relating to particulars of disputes and responses to show cause notices, on the grounds of oppressiveness or lack of relevance.

Consequently, the Tribunal upheld the summons, subject to the disallowance of specific items. Mr Hardy's application to set aside the summons was therefore declined, and ASIC was permitted to file a revised request for the summons to be issued on the amended basis.