Jorgensen v Australian Securities and Investments Commission

Jorgensen appealed to the High Court of Australia against a decision of the Federal Court of Australia, which had affirmed a decision of the Australian Securities and Investments Commission (ASIC). The dispute concerned ASIC's power to issue a notice under s 1317D of the *Corporations Act 2001* (Cth) requiring Jorgensen to provide information and documents relevant to an investigation into his conduct as a director of a company. Jorgensen contended that ASIC's notice was invalid because it was issued for an improper purpose, namely to obtain information that ASIC could use in separate civil penalty proceedings against him, rather than solely for the purpose of ASIC's statutory investigation.

The central legal issue before the High Court was whether ASIC's power to issue a notice under s 1317D of the *Corporations Act* was limited to the purpose of conducting an investigation, or if it could also be exercised to gather evidence for existing or contemplated civil penalty proceedings. This involved an examination of the scope of ASIC's investigative powers and the proper exercise of its statutory discretions.

Kiefel J held that the power conferred by s 1317D was not confined to the purpose of conducting an investigation in the abstract. Rather, the purpose of an investigation under the *Corporations Act* inherently included the gathering of information that might lead to or support enforcement action, including civil penalty proceedings. Her Honour reasoned that the statutory scheme contemplated that ASIC's investigative powers would be used to identify contraventions and to gather evidence to prosecute them. Therefore, ASIC was entitled to issue the s 1317D notice even if the information sought would also be relevant to civil penalty proceedings. The appeal was dismissed.