Rich v Australian Securities and Investments Commission

The appeal concerned the availability of the privilege against self-exposure to a penalty in proceedings brought by the Australian Securities and Investments Commission (ASIC) against Mr Rich. ASIC sought declarations that Mr Rich had contravened civil penalty provisions of the *Corporations Act 2001* (Cth), disqualification orders under sections 206C and 206E of the Act, and compensation orders. The proceedings were heard in the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the privilege against self-exposure to a penalty, a common law right, applied in the context of civil penalty proceedings brought by ASIC under the *Corporations Act 2001* (Cth). Specifically, the court had to determine if this privilege could be invoked to resist discovery or the pre-trial filing of witness statements in such proceedings, particularly where the potential consequences included disqualification from managing corporations and liability for compensation.

The Court of Appeal held that the privilege against self-exposure to a penalty was not available in civil penalty proceedings brought by ASIC under the *Corporations Act 2001* (Cth). The court reasoned that the statutory scheme of the Act, particularly provisions relating to ASIC's investigative and enforcement powers, evinced a legislative intention to override the common law privilege in this context. The court found that the purpose of civil penalty provisions was to enforce corporate regulatory standards, and that allowing the privilege would unduly frustrate ASIC's ability to investigate and prosecute contraventions. The court concluded that the privilege was confined to criminal proceedings and did not extend to civil penalty proceedings, even where those proceedings carried the risk of significant penalties and disqualification.

The appeal was dismissed, and Mr Rich was ordered to pay ASIC's costs.