Lui, In the matter of an application for leave to issue a proceeding

This matter concerned an application by Mr Lui for leave to issue a proceeding against the respondent, the Australian Securities and Investments Commission (ASIC). The application was made pursuant to s 1317FA of the Corporations Act 2001 (Cth), which requires a person to obtain leave from the court before commencing proceedings for contravention of civil penalty provisions of the Act. Mr Lui sought to bring proceedings alleging that ASIC had contravened certain provisions of the Corporations Act in its conduct relating to a previous proceeding brought by ASIC against Mr Lui.

The primary legal issue before Crennan J was whether Mr Lui had established a sufficient likelihood of success in the proposed proceeding to warrant the grant of leave under s 1317FA. This required the court to assess whether Mr Lui had demonstrated a *prima facie* case that ASIC had contravened the relevant civil penalty provisions. The court also considered the broader public interest considerations relevant to the exercise of its discretion to grant leave.

Crennan J applied the principles established in cases concerning applications for leave under s 1317FA. His Honour noted that the applicant bears the onus of demonstrating a sufficient likelihood of success, which involves showing that the allegations are not frivolous or vexatious and have a real prospect of success. The court is not required to determine the ultimate merits of the case at this preliminary stage, but rather to assess whether there is a *prima facie* case. After reviewing the material before him, Crennan J concluded that Mr Lui had not established a sufficient likelihood of success to justify granting leave. His Honour found that the evidence did not support the allegations of contravention by ASIC, and that the proposed proceeding was unlikely to succeed.

Leave to issue the proceeding was therefore refused.