Hewish and Australian Securities and Investments Commission (Practice and procedure)
[2025] ARTA 541
•21 March 2025
Hewish and Australian Securities and Investments Commission (Practice and procedure) [2025] ARTA 541 (21 March 2025)
Applicant/s: Joel Hewish
Respondent: Australian Securities and Investments Commission
Tribunal Number: 2024/3838
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date of decision: 21 March 2025
Date of reasons: 24 March 2025
Decision:The respondent’s application to vacate the hearing dates will be dismissed if the applicant confirms in writing to the Tribunal and to the respondent by 5pm (AEST) on 21 March 2025 that he wishes to proceed with the hearing notwithstanding the risk that proceeding with the hearing may result in him providing assistance to the prosecution in the conduct of the foreshadowed criminal case, including:
(a)as a result of evidence being given that leads ASIC to make inquiries and obtain evidence that it might not have been able to obtain or lead had the Tribunal proceedings not gone ahead;
(b)telegraphing to the prosecution any defence upon which Mr Hewish may rely;
(c)confining the defences which could be appropriately run in any criminal proceedings; and
(d)by the waiver of the privilege against self-incrimination as a result of documents tendered or evidence given.
If the applicant fails to give that confirmation by that time, the application is granted.
Damien O‘Donovan
........................................................................Deputy President O'Donovan
Catchwords
PRACTICE AND PROCEDURE – application to vacate hearing dates in week prior to commencement of hearing – application brought by respondent – primary proceedings involve review of decisions to ban the applicant from the financial services industry for ten years – application based on possible criminal prosecution arising out of same facts – risk of prejudice to criminal proceedings as a result of proceeding with Tribunal review – applicant suffering ongoing financial prejudice from ban – applicant strong preference for review continuing – application dismissed provided applicant acknowledges potential prejudice to him in the conduct criminal proceedings
Legislation
Administrative Review Tribunal Act 2024
Cases
CFMEU v ACCC [2016] FCAFC 97
Commissioner of the Australian Federal Police & Ors v Zhao & Anor [2015] HCA 5
Hammond v Commonwealth of Australia & Ors (1982) 42 ALR 327
NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456.
Street Nation Pty Ltd and Australian Communications Authority [2004] AATA 1251
X7 v Australian Crime Commission (2013) 248 CLR 92Secondary Materials
Administrative Review Tribunal (Common Procedures) Practice Direction 2024
Statement of Reasons
Introduction
On 13 March 2025 the Australian Securities and Investment Commission (ASIC), advised the Tribunal and the applicant that it wished to bring an application to vacate the hearing that was to commence on 24 March 2025. The application was brought on the basis that ASIC was considering whether to refer a brief to the Commonwealth Director of Public Prosecutions (CDPP) to enable the CDPP to consider the laying of charges against Mr Hewish in relation to events that were relevant to his application for review before the Tribunal. The application was brought on the basis that vacation of the hearing was necessary to preserve the integrity of any criminal process that may be brought. Mr Hewish opposed the application.
Having considered the parties’ submissions, I am satisfied that proceeding with the matter next week may result in Mr Hewish providing assistance to the prosecution case in the event that criminal proceedings are brought against him. If the application had been brought by Mr Hewish I would have no hesitation in vacating the hearing dates on the basis that many of the procedural safeguards to which he is entitled as fundamental rights in the accusatorial system would be compromised. However, in circumstances where Mr Hewish is insistent that he wants the matter to proceed, has identified prejudice if it does not, and has had an opportunity to obtain legal advice on the issues, I have decided to dismiss the application provided Mr Hewish is prepared to acknowledge that he understands that proceeding with the hearing may have the effect of altering the conduct of any criminal prosecution that is proceeded with.
My reasons for this conclusion are set out below.
Background
In these proceedings, Mr Hewish (the applicant) seeks a review of a number of decisions made by a delegate of the ASIC which have the effect of banning him from the financial services industry for a period of ten years. The ban has been operative since 3 June 2024. The matter is set down for hearing for four days commencing on 24 March 2025.
ASIC imposed the ban based on the following findings in relation to Mr Hewish’s conduct.
Mr Hewish was the sole director of a company called United Global Capital Pty Ltd (UGC). UGC was an Australian financial services licensee. Mr Hewish was the key person and responsible manager under UGC’s licence. ASIC was satisfied that:
(a)Under Mr Hewish’s leadership, UGC (or its representatives) gave inappropriate and conflicted personal advice to its clients to establish a self-managed superannuation fund (SMSF), rollover their superannuation from an APRA-regulated fund into the SMSF and invest in speculative and highly speculative investments related to Mr Hewish. The investments included:
(i)Shares in an unlisted public company, Global Capital Property Fund Ltd (GCPF) – Mr Hewish was a director of GCPF. GCPF invested in companies including companies related to Mr Hewish which were undertaking property development;
(ii)Interests in the Pivotal Diversified Fund (Pivotal), an unlisted registered managed investment scheme which invested a portion of its funds in financial products related to Mr Hewish, including GCPF.
(b)Potential targets for provision of this advice were identified by the purchase of lists of contact details from a company which compiled them by using the chance to win an iPhone to persuade people to supply their details;
(c)Salespeople working for companies known as corporate authorised representatives (CARs) used call scripts when talking to potential targets, that created the impression that they were offering an audit of the potential target’s superannuation arrangements;
(d)When people were persuaded to undergo an examination of their superannuation arrangements, they were inevitably guided into transferring funds from APRA regulated funds to self managed superannuation funds and then advised to invest in vehicles associated with Mr Hewish. A referral to UGC followed and the transactions were executed by UGC (with limited additional advice). This policy of providing referred clients with limited advice was referred to as the Limited Advice Model;
(e)By its use of the Limited Advice Model, UGC contravened a number of its obligations under the Corporations Act 2001 (Corps Act);
(f)Mr Hewish was involved in UGC’s contraventions, including by reason of his position as UGC’s sole director, responsible manager and key person; and
(g)ASIC had reason to believe that Mr Hewish:
(i)was not adequately trained or was not competent to participate in the financial services industry;
(ii)is not fit and proper to participate in the financial services industry; and
(iii)is likely to contravene a financial services law.
Following a natural justice process in which Mr Hewish was represented, an ASIC delegate made decisions which imposed an effective ban on Mr Hewish’s participation in the financial services industry for a period of ten years. Those decisions were made on 31 May 2024.
Soon after, ASIC obtained freezing orders against UGC and GCPF. Meanwhile UGC and Mr Hewish were unsuccessful in obtaining a stay or confidentiality orders in relation to ASICs banning decisions.
Mr Hewish placed UGC into voluntary administration on 5 July 2024.
UGC subsequently went into liquidation and (on instructions from the liquidator) withdrew applications for review by the Tribunal of ASIC’s decisions concerning its conduct. Mr Hewish has persisted with his application for review of ASIC’s decisions.
The Tribunal made directions for the exchange of evidence and statements of facts issues and contentions on 2 September 2024 and listing notices for the hearing went out on 29 January 2025.
On 13 March 2025 the respondent foreshadowed that it would make an application:
(a)to adjourn the listed hearing; and
(b)that the matter be listed for directions ‘not before 2 February 2026’.
What prompted this request was summarised as follows:
…ASIC’s position is that these orders have become necessary to avoid the risk of prejudice to Mr Hewish in contemplated future criminal proceedings. In particular, ASIC’s ongoing investigation into the affairs of UGC and its officers and directors includes investigation into possible breaches by Mr Hewish of sections 1041E and 1041G of the Corporations Act, in relation to the authorisation of promotional material used by UGC’s corporate authorised representatives. The question of whether or not Mr Hewish authorised certain promotional materials has been put in issue in these proceedings. The overlap in subject matter creates a risk of prejudice to any criminal proceedings which may be brought against Mr Hewish in relation to the subject matter.
Upon being advised of the foreshadowed application the Tribunal listed the matter for an urgent directions hearing on 14 March 2025. Prior to and at that directions hearing, Mr Hewish advised that he opposed the application and that he wanted the hearing date to remain in place and the hearing to proceed. At the directions hearing I explained to Mr Hewish that if the hearing were to proceed it could compromise many rights to which he would be entitled as a criminal defendant in the event that he was charged with one or more criminal offences. I informed him that the criminal process is an accusatorial process and that the burden on the Crown is to prove its case without the assistance of the accused. If he chose to give evidence in the Tribunal proceedings he may be giving up the privilege against self-incrimination and may provide ASIC with information that leads to lines of inquiry that may cause it to prove its case in criminal proceedings. I asked Mr Hewish to obtain legal advice about these issues before finalising his position on the matter.
Directions were made for the filing of material by ASIC.
ASIC filed submissions in support of its application to vacate the hearing date along with an affidavit. The application was listed for hearing on 19 March 2025. Both parties attended by videolink. ASIC was represented by counsel. Mr Hewish represented himself.
In the materials filed by ASIC, the following facts were identified as relevant:
(a)On 23 May 2022, ASIC commenced a formal investigation in relation to suspected contraventions by UGC and/or its officers and representatives of a number of sections of the Corps Act;
(b)On 9 February 2023, the scope of ASIC’s investigation was expanded to include suspected contraventions by UGC and/or its officers and representatives of sections 952E and 1041H of the Corps Act;
(c)On 17 May 2024 the investigation was further expanded to include further suspected contraventions by UGC and GCPF and/or their officers and representatives;
(d)ASIC’s investigation is ongoing;
(e)
The subject matter of the suspected offences, including under s 1041E and 1041G relates to the officers and representatives of both UGC and
GCPF including the applicant’s suspected involvement in the preparation and/or dissemination of presentations and call scripts given by UGC’s CARs to investors that contained various representations about the nature of the investment;
(f)Offences under ss1041E and 1041G carry a maximum penalty of 15 years imprisonment.
ASIC identified the following as resulting in an overlap between the subject matter of the criminal investigation, and the issues to be determined by the Tribunal in these proceedings:
(a)On 24 January 2025, the applicant put in issue the question of the provenance and authorisation of the call scripts and presentations included in the T documents and referred to in the delegate’s decision and in ASIC’s SFIC – these being the call scripts used by corporate authorised representatives (CARs);
(b)Prior to this date it was not apparent that this would be in issue or that the Tribunal would have to make contested findings on the issue…
(c)The use of call scripts and presentations by the CARs forms part of the overall advice model which was utilised by UGC.
(d)In order for the Tribunal to make any findings as to the provenance of the call scripts and presentations, it would need to have regard to the evidence of the applicant, the evidence of ASIC, and cross examination of the applicant on these points (should that occur);
(e)On the basis of the material filed by the applicant, ASIC does not understand there to be any issue between the parties as to whether the call scripts and presentations were misleading, which the applicant appears to accept.
ASIC has advised that should it form a view that a brief should be referred to the Commonwealth Director of Public Prosecutions (CDPP) that would be done by July 2025.
ASIC anticipates that the CDPP would likely need approximately 6 months to assess the referral and make a recommendation to ASIC about whether to lay charges.
Contentions
ASIC submits that it is in the interests of justice for the matter to adjourned and re-listing not considered for some time. Initially the proposal was not to relist until February next year, but during the course of oral argument a suggestion that the matter be brought back sooner was floated.
ASIC submits that I should not be troubled by the delay in the hearing of the matter as it is almost inevitable that the applicant will be banned for a period of time and probably several years and so there is no prejudice to him if the matter is not finally heard and determined until next year.
ASIC submits that it is in the interests of justice to vacate the hearing to ensure that, in the event that criminal charges are laid, there is no interference with the rights of the applicant within the criminal process and to ensure that no basis arises which might permit acceptance of an argument that the criminal process should be permanently stayed.
Mr Hewish for his part submits that he will suffer significant prejudice if the hearing of his review is delayed. In his assessment he has good prospects of having the ban overturned. Since the banning decisions were made he has been unable to work and has been without a source of income since the ban was imposed. He is keen to test the merits of the decision and the merits of ASIC’s conduct overall. He feels that he has not had a proper opportunity to respond to ASIC’s allegations in any forum and that the Tribunal proceedings represent the first opportunity for an independent assessment of his conduct to be undertaken where he is an active participant. He has not received formal legal advice on the issues but he has spoken to some familiar people who have dealt with similar situations about the risks of proceeding with the Tribunal proceedings when there is the possibility of criminal proceedings in the future. He has decided that he wants to proceed.
ASIC notes that there is no formal evidence before me about the impact on Mr Hewish’s financial position following the ban and on this basis I should not accept Mr Hewish’s arguments based on financial prejudice. I do not accept that submission. In circumstances where Mr Hewish is representing himself, has advised the Tribunal from the bar table that there is such a financial impact, and those statements are consistent with the known facts - namely that he had been working full time in the financial services industry for more than a decade before the ban imposed on him by ASIC - I am satisfied that delay is causing him financial prejudice.
At the hearing of the application Mr Hewish was informed by the Tribunal that if the matter proceeded next week and he tendered his statements into evidence, then he may not be in a position to claim the privilege against self-incrimination during cross-examination after having voluntarily given evidence on a topic. I again emphasised the significant prejudice he could do to the conduct of any criminal defence if the matter proceeded next week. Despite these clear warnings Mr Hewish maintained his position that he wanted to have the matter proceed.
Consideration
The Tribunal can as a matter of discretion grant the orders that ASIC seeks.
Section 82 of the Administrative Review Tribunal Act 2024 (ART Act) expressly provides for the adjournment of case events. Section 49 provides that the procedure of the Tribunal in a proceeding is within the discretion of the Tribunal.
In combination these provisions are adequate to support the orders that ASIC seek.
The Administrative Review Tribunal (Common Procedures) Practice Direction 2024 relevantly provides as follows:
5.12 The Tribunal will not adjourn a hearing date unless it considers that there are good reasons to justify the adjournment.
…
5.14 An application for an adjournment made within 10 days of a hearing is unlikely to be granted unless there are good reasons for doing so.
The objectives of the Tribunal as set out in section 9 of the ART Act are also relevant:
The Tribunal must pursue the objective of providing an
independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as
quickly, and with as little formality and expense, as a proper
consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to
proceedings; and
(d) improves the transparency and quality of government
decision-making; and
(e) promotes public trust and confidence in the Tribunal.
There are strong factors that weigh in favour of continuing with the hearing. First, the applicant, who has been deprived of his livelihood by the decision under review, wants the matter to proceed. While the decision remains unreviewed he is suffering serious financial consequences and reputational harm. If his application for review is successful, it may forestall further financial damage and restore his reputation.
I do not accept, as ASIC suggests, that I should proceed on the basis that the applicant is likely to get a ban of some sort if the matter proceeds, and so he suffers no prejudice as a consequence of delay. The applicant believes and contends that he is the victim of ASIC overreach and received poor advice at the point in time when ASIC was considering the banning orders. To the extent that he conceded that he was in breach of the Corps Law in his dealings with ASIC prior to the reviewable decision, that is no longer his position. In those circumstances I am not prepared to proceed on the basis that it is inevitable that a banning order will be imposed following review and that it will be of such length that Mr Hewish will suffer no loss of income arising from the delay in hearing the matter. To take such an approach would prejudge the outcome of the matter.
I am therefore, satisfied that there are significant considerations that weigh against granting the adjournment application.
In contending for the adjournment, ASIC does not suggest that to proceed would amount to a contempt in the event that criminal proceedings are ultimately brought. Nonetheless it is prudent for me to state clearly that I am affirmatively satisfied that to proceed in the present circumstances does not involve contempt.
For a start, there are no criminal proceedings on foot, only consideration being given to bringing them. Chief Justice Spigelman in NSW Food Authority v Nutricia Australia Pty Ltd (2008) 72 NSWLR 456 (Nutricia) at [135] noted the significance of the commencement of criminal proceedings as ‘…a step which brings into consideration the integrity of the judicial system enforced by the law of contempt’. As we are here only dealing with the possibility that proceedings may be brought at some point in the future there may never be any interference at all with any criminal proceedings if none are brought.
Further, it is not the case that any interference with criminal proceedings amounts to contempt. It must be ‘improper’ interference.[1] It cannot be suggested that by proceeding next week, the Tribunal, or anyone involved in the proceedings, is engaged in any improper interference with a possible criminal trial. Indeed, even if the criminal trial were on foot that may not be the case. As Deane J noted in Hammond v Commonwealth of Australia & Ors (1982) 42 ALR 327 at 340:
The mere fact that proceedings are pending in a court of law does not mean that any parallel or related administrative inquiry, conducted for proper administrative purposes, constitutes an interference with the due administration of justice in that court…
[1] See the authorities summarised by Spigelman CJ in Nutricia at [54] and following.
However, his Honour did go on to sound the following cautionary note:
On the other hand, it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the Criminal Court. Such extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the Criminal Court and contempt of court.
I am satisfied that we are a very great distance from those circumstances. While it is the case that it is possible that matters will be traversed next week which will also be traversed in criminal proceedings down the track, they will be traversed in an environment where the applicant himself is insisting that the matter proceed. The proceedings will be conducted in circumstances where the applicant is entitled to claim the privilege against self-incrimination and there are other procedural protections such as confidentiality orders available to further diminish any risk of prejudice to any subsequent criminal proceedings.
However, having satisfied myself that to proceed would not involve contempt of court, that does not finally answer the question whether an adjournment should be granted. I have a discretion available that should be considered by reference to the objects of the Tribunal and other relevant principles. The principles relevant to determining whether an order in the nature of a stay should be granted were summarised by the Full Federal Court in CFMEU v ACCC [2016] FCAFC 97 in the following terms by reference to the High Court’s decision in Commissioner of the Australian Federal Police & Ors v Zhao & Anor [2015] HCA 5:
(i)where both civil and criminal proceedings are pending, a stay of the civil proceeding will be ordered where ‘the interests of justice require such an order’: Zhao (HC) at [36];
(ii)a court will not grant a stay of a civil proceeding merely because related charges have been brought against an accused and criminal proceedings are pending: Zhao (HC) at [35];
(iii)to warrant a stay of the civil proceedings ‘it must be apparent’ that the accused ‘is at risk of prejudice in the conduct of his or her defence in the criminal trial’: Zhao (HC) at [35];
(iv)the risk of prejudice must be real and, in considering what the interests of justice require, that risk is to be weighed against the prejudice that a stay of the civil proceeding would occasion: Zhao (HC) at [47] and [50].
The Full Court also noted at [23]:
The reasoning of both the High Court and the Court of Appeal in Zhao recognised that a potential prejudice for an accused is that evidence given by that person in a civil proceeding would reveal or telegraph information to the prosecutor about the accused’s defence in the criminal proceeding. The potential to advantage the prosecutor was regarded by the Court of Appeal as an infringement of the privilege against self-incrimination and the right to silence. The High Court relied upon a different but related foundation. As the Court noted at [18], by reference to the fundamental principle of the common law as explained in Lee v the Queen (2014) 253 CLR 455 at [32] –[33], the prosecution is to prove the guilt of an accused person and cannot compel a person charged with a crime to assist in the discharge of its onus of proof.
These authorities make clear that in considering the application for an adjournment a weighing exercise is involved. The risk of prejudice to a criminal trial is a powerful factor but not the only factor.
In the present case, if it were Mr Hewish that had brought the application I would have had no hesitation in granting the adjournment. There is a risk that during the conduct of the hearing next week the applicant will provide material or evidence that is of assistance to the prosecution in the event that criminal charges are ultimately laid. The hearing presents other risks for Mr Hewish. Any admissions made by Mr Hewish may have consequences for the conduct of the criminal trial. As Justices Hayne and Bell noted in X7 v Australian Crime Commission[2] in the unusual statutory setting of that case:
Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered.
[2] (2013) 248 CLR 92 at [71]
However, it is important to record that to the extent that information is revealed by the applicant next week which provides assistance to a prosecutor or interferes with Mr Hewish’s conduct of his defence, those alterations of position are the result of a choice by Mr Hewish. As I have made clear, if the applicant were to bring an application to vacate the hearing as a consequence of ASIC disclosing that it is considering criminal charges, I would grant it.
Further, the applicant has been given an opportunity to obtain independent legal advice. He has also been given information in summary form about the possible impact of proceeding next week on any subsequent criminal trial. He has been informed about his entitlement to claim the privilege against self-incrimination and that revelations in the proceedings could undermine the accusatorial nature of any subsequent criminal process. In these circumstances it cannot be concluded that the applicant has been compelled in any way to proceed to hearing. To the extent that what unfolds at the substantive hearing assists in the discharge of any future prosecutor’s burden, it is the result of a conscious decision on the part of the applicant. It is the product of the free choice of the applicant.
That being the case, in circumstances where the applicant has identified significant and continuing prejudice which he wants addressed by a timely review of the banning orders to which he is subject, the balance of interests in this case favours proceeding with the hearing and refusing the adjournment.
I note that Deputy President Forgie took a more cautious approach in the matter of Street Nation Pty Ltd and Australian Communications Authority [2004] AATA 1251 and in particular was concerned that the matter should not proceed unless she was assured that the applicant had received proper legal advice on the risks of proceeding in the Tribunal before the resolution of the criminal proceedings.
In this case, the applicant has not taken any formal advice on the legal issues that arise in his current circumstances. It would be preferable if he did obtain advice. However, I am satisfied that the applicant has had an opportunity to get advice. He was informed that it would be prudent for him to get advice a week ago. He has chosen not to obtain it. He is an intelligent man who has run a sophisticated business operation. I cannot compel him to obtain legal advice. I am satisfied that he has had sufficient opportunity to get advice and has decided not to seek any formal advice. For present purposes I am willing to let him be the judge of his own best interests.
DP Forgie also wanted confirmation that the applicant wished to proceed even though any evidence that was given may lead the respondent to make inquiries and to lead evidence in the criminal proceedings that it might not have been able to lead had the Tribunal proceedings not been heard first.
That strikes me as a prudent step to take in this case.
Accordingly, the application is refused provided that Mr Hewish confirms in writing by 5pm (AEST) on 21 March 2023 that he wishes to proceed with the hearing notwithstanding the risk that proceeding with the hearing may result in him providing assistance to the prosecution in the conduct of the foreshadowed criminal case, including:
(a)as a result of evidence being given that leads ASIC to make inquiries and obtain evidence that it might not have been able to obtain or lead had the Tribunal proceedings not gone ahead;
(b)telegraphing to the prosecution any defence upon which Mr Hewish may rely;
(c)confining the defences which could be appropriately run in any criminal proceedings; and
(d)by the waiver of the privilege against self-incrimination as a result of documents tendered or evidence given.
If Mr Hewish does not confirm in writing that he understands those risks, then I will vacate the hearing dates and list the matter for a directions hearing in July 2025 to gauge progress of the matter. If he does confirm his understanding then the matter will proceed.
Applicant: Self-represented
Counsel for the Respondent: Jonathon Hyde
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