FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Helou [2019] FCA 1634

File number:

VID 682 of 2019

Judge:

BEACH J

Date of judgment:

4 October 2019

Catchwords:

CORPORATIONS multiple regulatory enforcement proceedings – breaches of duties of directors and officersASIC proceedings against chief executive officer and chief financial officer for disqualification orders – earlier ASIC proceedings against corporate entity – separate ACCC proceedings against corporate entity and officers for disqualification orders – application for permanent stay of proceedings – overlap of proceedings – vexatious and oppressive proceedings – administration of justice – abuse of process – applications dismissed

Legislation:

Australian Consumer Law ss 18, 21, 29, 224, 248

Australian Securities and Investments Commission Act 2001 (Cth) ss 1, 12A, 12DA, 13, 19, 102

Competition and Consumer Act 2010 (Cth) ss 26, 155, Sch 2

Corporations Act 2001 (Cth) ss 180, 206C, 206E, 674, 675, 1041H, 1317F, 1317G, 1317J, 1317N, 1349

Federal Court of Australia Act 1976 (Cth) ss 33M, 33V

Cases cited:

Australian Competition and Consumer Commission v Murray Goulburn Co-Operative Co Limited [2018] FCA 1964

Australian Competition and Consumer Commission v Swishette Pty Ltd [2018] FCA 55

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256

Blatch v Archer (1774) 98 ER 969

Johnson v Gore Wood & Co [2002] 2 AC 1

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Ridgeway v The Queen (1995) 184 CLR 19

Rogers v The Queen (1994) 181 CLR 251

Rozenblit v Vainer (2018) 262 CLR 478

Strickland v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; 361 ALR 23

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

UBS AG v Tyne (2018) 92 ALJR 968; 360 ALR 184

Date of hearing:

13 September 2019

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Category:

Catchwords

Number of paragraphs:

303

Counsel for the Plaintiff:

Mr JWS Peters AM QC and Ms N Moncrief

Solicitor for the Plaintiff:

HWL Ebsworth Lawyers

Counsel for the First Defendant:

Mr M Borsky QC and Mr C Moller

Solicitor for the First Defendant:

Corrs Chambers Westgarth

Counsel for the Second Defendant:

Mr RG Craig and Mr HC Whitwell

Solicitor for the Second Defendant:

Minter Ellison

ORDERS

VID 682 of 2019

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Plaintiff

AND:

GARY HELOU

First Defendant

BRADLEY HINGLE

Second Defendant

JUDGE:

BEACH J

DATE OF ORDER:

4 October 2019

THE COURT ORDERS THAT:

1.    The first defendant’s application for a permanent stay of these proceedings be dismissed.

2.    The first defendant’s costs of and incidental to his application be his costs in the cause and otherwise there be no order as to costs.

3.    The second defendant’s application for a permanent stay of these proceedings be dismissed.

4.    The second defendant’s costs of and incidental to his application be his costs in the cause and otherwise there be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BEACH J:

1    The present proceeding brought by ASIC concerns events relating to the conduct of Murray Goulburn Co-operative Co Limited (MG), MG Responsible Entity Limited (MGRE) and its directors and officers during the period 1 May 2015 to 27 April 2016 concerning non-disclosure of material information to the Australian Securities Exchange Limited (ASX) specifically and the market generally and misleading or deceptive conduct relating to securities.

2    The present proceeding is the last of five proceedings that have been brought in this Court concerning these events, four of which have been in my docket. There have been three regulatory enforcement proceedings, two of which have been brought by ASIC and one which has been brought by the ACCC. The first ASIC proceeding was brought against MGRE seeking declarations and a pecuniary penalty only. It was resolved by another judge of this Court on 15 December 2017. The present proceeding has been brought against MG’s and MGRE’s former chief executive officer and director Mr Gary Helou and former chief financial officer Mr Bradley Hingle seeking declarations and disqualification orders. The ACCC proceeding was brought against MG, Mr Helou and Mr Hingle seeking declarations, pecuniary penalties and disqualification orders. I made final orders disposing of the ACCC proceeding on 6 December 2018. In addition to the three regulatory proceedings, there have been two class actions. These were both set down for a joint trial before me on 5 February 2020 for four weeks. However, one of these class actions has recently settled subject to Court approval under s 33V of the Federal Court of Australia Act 1976 (Cth) (FCA). The other class action is continuing.

3    In the present ASIC proceeding each of Mr Helou and Mr Hingle have made an application to permanently stay or dismiss the proceeding against him as an abuse of process. They have each sought to invoke either or both of the usual conditions said to justify a permanent stay being that the present proceeding is unjustifiably oppressive or vexatious and that it only serves to bring the administration of justice into disrepute.

4    Various themes have been raised which are said separately or cumulatively to justify the stay or dismissal.

5    First, it is said that the present proceeding is the second commenced by ASIC and the third commenced by a Commonwealth regulator arising out of the same conduct, with each of the regulators being an emanation of the Commonwealth. It is said that ASIC could have but chose not to bring the present claims as part of the earlier ASIC proceeding. Moreover, the present ASIC proceeding will traverse the factual substratum that was the subject of that earlier proceeding. It is said that it was unreasonable for ASIC not to make in the earlier ASIC proceeding the claims now made in this proceeding, given that those claims are intimately connected with the subject matter of the earlier ASIC proceeding, and given that ASIC was armed with all facts and matters relevant to the present proceeding before it commenced the earlier ASIC proceeding.

6    Second, it is said that ASIC deliberately chose to allow the proceeding brought by the other Commonwealth regulator (the ACCC), which again arose from the same conduct, to proceed all the way to judgment before it commenced the present proceeding more than six months after that resolution, and then only because ASIC was dissatisfied with the result of my judgment in the ACCC proceeding. In context it is said that ASIC’s conduct has involved deploying the resources of the Commonwealth to vex the defendants. One Commonwealth agency (the ACCC) attempted to secure by way of penalty proceeding a particular result, but did not succeed. Now a second Commonwealth agency (ASIC) having held its claims back, and finding the outcome unsatisfactory, is attempting to secure by way of another penalty proceeding resting on the same underlying facts that same result. Moreover, it is said that ASIC’s conduct leads to the perverse outcome whereby the better a defendant fares in settlement negotiations with one Commonwealth agency, the more likely they are to face a subsequent penalty proceeding by another Commonwealth agency. The defendants point to the chilling effect that this wait and see approach will have, prospectively, on the early resolution of disputes.

7    Third, it is said that the present proceeding will put the defendants to significant cost, expense and stress, all of which could have been avoided or greatly minimised if ASIC had commenced this proceeding sooner, either as part of the earlier ASIC proceeding or during the pendency of the ACCC proceeding.

8    Fourth, it is said that the timing of the present proceeding puts the defendants at a significant forensic disadvantage relative to the position that would have prevailed had it been commenced sooner.

9    Fifth, it is said that notice of ASIC’s intention to institute the present proceeding was not given to the defendants until well after judgment in the ACCC proceeding, which has caused further prejudice. It is said that had notice been given earlier, the defendants would have approached negotiations with the ACCC differently. Moreover, it is said that the late notice has put at risk the considerable time, money and energy that they had been devoting to new enterprises.

10    Sixth, it is said that the present proceeding represents a collateral attack on my judgment in the ACCC proceeding.

11    Seventh, it is said that the prosecution of the present proceeding would be inconsistent with the overarching purpose expressed in s 37M of the FCA and the obligation of parties to further that purpose. It is said that it will cause a duplication of both costs and the use of judicial resources.

12    In addition to these themes, which are common to the submissions of both defendants, the second defendant put a separate argument.

13    In a submission that pushed the envelope, counsel for the second defendant argued that the present proceeding had been instituted for a collateral and improper purpose. He said that ASIC’s decision to institute the present proceeding had been predominantly motivated by the publication of the final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Now I was a little unclear as to the second defendant’s causation theory on this aspect which was said to underpin or manifest this improper purpose. Was the decision to institute said to be directly linked to a particular finding or recommendation in the final report? Was the decision to institute rather said to be more indirectly linked to the press reporting of the final report and the associated atmospherics? Or was the decision to institute said to be even more indirectly fuelled by politicians’ reactions to either or both? Further, was the second defendant’s causation theory linear or non-linear? No matter. With one exception, if any one or more of these links had underpinned or manifested the motivating purpose for the institution of the present proceeding then it could justifiably have been stayed as an abuse of process. And as to any exception, I am not in the realm of discourse where the Royal Commission had undertaken for itself a detailed forensic investigation involving sufficient evidence and then made hard findings, such that it would have been both unnecessary and wasteful to undertake a separate regulatory investigation. I will return to this topic later. But I should say now that the second defendant’s inferential case on improper purpose crashes and burns on the distinction between correlation and causation.

14    For the following reasons, I reject the defendants’ applications. Let me begin with some background.

(a)    Background

15    As I have said, the present proceeding concerns events that occurred in the Murray Goulburn group of companies between 1 May 2015 and 27 April 2016 which it is said constituted misleading or deceptive conduct and a breach of market disclosure obligations. And these events have been the subject of multiple proceedings and investigations, in the context of which ASIC commenced the present proceeding. The substratum of alleged facts on which this proceeding, the earlier ASIC proceeding and the concluded ACCC proceeding all rest centres on events at MG and MGRE, the trustee of the MG Unit Trust, in the financial year ending 30 June 2016 (FY16). Now as MG is an unlisted disclosing entity whereas MGRE is a listed disclosing entity, in some instances the alleged conduct would if proved sound in contraventions of different provisions of the Corporations Act 2001 (Cth). But the underlying alleged facts are not substantially different. Let me begin with a relevant chronology.

Chronology

16    On 27 April 2016, MG and MGRE released an ASX announcement in which MG announced an “expected NPAT [net profit after tax] of between $39 million to $42 million” for FY16. This was a downgrade of more than $20 million from its previous $63 million earnings guidance given on 29 February 2016.

17    In mid May 2016, a class action was commenced by Mr John Webster on behalf of unit holders of the MG Unit Trust against MG and MGRE and their directors including Mr Helou, although not Mr Hingle, seeking compensation for alleged contraventions of the Corporations Act (Webster class action). The contraventions were alleged to arise by reason of the issue of a defective product disclosure statement (PDS) and market announcements made by MGRE and the failure to correct misleading statements contained in them. The Webster class action had originally been instituted in the Supreme Court of Victoria but was later transferred to the Federal Court of Australia.

18    On 25 August 2016, ASIC commenced an investigation under s 13 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) into the conduct of MG, MGRE and their directors and officers in relation to the circumstances disclosed in MG’s and MGRE’s ASX announcement on 27 April 2016.

19    Between September 2016 and April 2017, ASIC conducted examinations under s 19 of the ASIC Act.

20    On 16 and 17 March 2017, Mr Hingle was examined by ASIC under s 19 of the ASIC Act. On 21 and 24 March 2017, Mr Hingle was examined by the ACCC under s 155 of the Competition and Consumer Act 2010 (Cth) (CCA) in relation to matters that later became the subject of the ACCC proceeding.

21    On 20, 21 and 22 March 2017, ASIC conducted examinations of Mr Helou under s 19 of the ASIC Act. On 5 and 6 April 2017, the ACCC examined Mr Helou under s 155 of the CCA.

22    I should note that at the s 19 examinations Mr Helou and Mr Hingle were directed not to disclose to any person the nature of the questions asked during their examination, their answers to those questions or the fact that they had provided documents in the course of their examination. These directions applied until 30 June 2017, although they were later extended.

23    On 27 April 2017, the ACCC commenced a proceeding in this Court against MG, Mr Helou and Mr Hingle. The ACCC proceeding sought declarations that Mr Helou and Mr Hingle were knowingly concerned in or parties to alleged contraventions by MG of ss 18, 21 and 29 of the Australian Consumer Law (ACL) between 24 June 2015 and 27 April 2016, an order under s 248 of the ACL that Mr Helou and Mr Hingle be disqualified from managing corporations for seven years, and a pecuniary penalty under s 224 of the ACL. According to the defendants before me it is said that the ACCC proceeding relied on a common substratum of facts to the present proceeding.

24    By the end of April 2017, ASIC had concluded all of its s 19 examinations concerning the matters that it was investigating.

25    On 9 May 2017, the Webster class action was cross-vested to this Court.

26    From 15 May 2017, ASIC engaged in without prejudice negotiations with Herbert Smith Freehills (HSF), the solicitors for MG and MGRE, concerning a potential settlement of the matters that ASIC was investigating. From late July 2017, ASIC agreed to HSF disclosing to Mr Helou and Mr Hingle the nature of the settlement discussions and any draft agreed statement of facts.

27    On 23 June 2017, ASIC wrote to the defendants extending until 30 June 2018 its confidentiality directions concerning the s 19 examinations.

28    By no later than 4 August 2017 and pursuant to consent provided by ASIC, HSF provided to the solicitors for Mr Helou and Mr Hingle a draft of the agreed statement of facts prepared by ASIC, MG and MGRE which was to form the basis of any potential settlement with ASIC. I should note for completeness that throughout this time ASIC was not negotiating any settlement with Mr Helou or Mr Hingle as was well apparent to them. Apparently, as at 11 August 2017, HSF had had discussions with the legal representatives of both Mr Helou and Mr Hingle concerning the proposed settlement of MG and MGRE with ASIC.

29    On 15 September 2017, I listed the ACCC proceeding for trial before me on 17 September 2018 on an estimate of 10 days.

30    On 25 September 2017, ASIC’s Enforcement Committee met to discuss the Murray Goulburn matter and requested the Project Team to return to the Enforcement Committee in three months to report on the progress of the ACCC’s case, of which ASIC was clearly aware, and any action ASIC might wish to take in respect of Mr Helou and Mr Hingle. The relevant record of that decision stated the following:

3.1 The Enforcement Committee:

[Redacted]

3. NOTED that in the event of any agreement with Murray Goulburn, ASIC will make clear that it reserves its rights in respect of Helou and Hingle, and that ASIC would seek the agreement of Murray Goulburn to cooperate in any further action ASIC takes in respect of Helou and Hingle; and

4. REQUESTED the Project Team to return to the EC in three months to report on progress of the ACCC’s case and any action ASIC may wish to take in respect of Helou and Hingle.

31    A written action item was to similar effect.

32    On 16 November 2017, ASIC entered into a Settlement Deed with MG and MGRE. The Settlement Deed reserved ASIC’s right to later issue proceedings against Mr Helou and Mr Hingle as distinct from other what were defined as MG Related Entities. Also on that date, ASIC commenced a Federal Court proceeding (the earlier ASIC proceeding) against MGRE to give effect to the settlement between ASIC, MG and MGRE, and seeking an order that MGRE pay a $650,000 pecuniary penalty to the Commonwealth for its alleged contravention of s 674(2) of the Corporations Act in the period 22 March 2016 to 27 April 2016. No pleadings were filed. The disposition of the matter proceeded only on an agreed statement of facts and joint submissions. The agreed statement of facts covered events between 1 May 2015 and 27 April 2016. ASIC did not commence any proceeding against Mr Helou and Mr Hingle at this time although the earlier ASIC proceeding involved a common substratum of facts with the present proceeding. I note that the defendants say that at this point in time, ASIC was apprised of all of the facts it now advances in aid of the present proceeding apart from, of course, knowledge of the resolution of the ACCC proceeding that had not been resolved by this time; I will return to the ACCC proceeding later in the chronology.

33    Further, on 16 November 2017, MG and MGRE released an announcement to the ASX in which they disclosed the agreed settlement with ASIC. Further, on 17 November 2017, media articles in The Australian and Australian Financial Review reported the settlement with MG and MGRE and reported that ASIC continued to investigate breaches of the Corporations Act by Mr Helou and Mr Hingle.

34    I should note at this point that Mr Helou and Mr Hingle well knew of the outcome of the earlier ASIC proceeding, well knew that it did not directly involve them and well knew that they did not have the comfort of any “no action” letter from ASIC. Indeed, they had not sought to negotiate or negotiated any deal with ASIC at this time. Moreover, given that both were represented by experienced firms of solicitors, they can be taken to have been aware of the risk that ASIC might take later action against them.

35    Indeed, on 1 December 2017, Mr Helou’s solicitors, Corrs, wrote a letter to ASIC in the context of the earlier ASIC proceeding and the settlement between ASIC, MG and MGRE in relation to the operation of s 1317F of the Corporations Act which letter self-acknowledged that Mr Helou “may still be the subject of proceedings by ASIC”. It stated in terms:

I refer to the recent ASX announcement in which MG Responsible Entity Limited (Murray Goulburn) announced it had reached a settlement with the Australian Securities and Investments Commission (ASIC).

Although we have not been provided with any formal notice of ASIC’s application to the Federal Court, we became aware on Wednesday of this week that the application is listed for hearing on Wednesday 6 December 2017.

It follows that our need to be able to obtain, consider, and obtain counsel’s advice and instructions about the application and the relevant documents is now an urgent one.

The primary issue for our client arises in connection with sections 1317F and 1317E(2) of the Corporations Act. If declarations of contravention of the kind referred to in the ASX announcement are to be made under section 1317E(2), the section mandates that those declarations must specify, among other things, the fact of the contravention and “ .. the conduct that constituted the contravention ... ”

Section 1317F provides that a declaration of contravention is conclusive evidence of the matters referred to in subsection 1317E(2). These provisions have been the subject of judicial consideration in cases such as ASIC v Rich and Others [2003] NSWSC 186, ASIC v Rich and Others [2004] NSWSC 836, and ASIC v ACN 101 634 146 and Ors [2013] QSC 15.

Bearing in mind that Mr Helou:

1    is a respondent in Federal Court proceeding VID 430 of 2017 brought by the ACCC and orders sought against him include pecuniary penalties and lengthy banning orders;

2    is one of the individual director defendants in class action in which substantial damages and other relief is sought against him and other parties, including relief under Part 9.4B of the Corporations Act;

3    was the subject of examination by ASIC and may still be the subject of proceedings by ASIC,

you will appreciate why it is that the operation of sections 1317E(2) and 1317F result in Mr Helou and others being persons affected by ASIC and Murray Goulburn’s proposed application.

36    Further, on 1 December 2017, Corrs wrote to HSF as the solicitors for MG and MGRE, in which letter Corrs referred to having had “discussions” with HSF following the ASX announcement made by MG and MGRE on 16 November 2017. It stated in terms:

In our subsequent communications we have requested copies of the relevant documents because of the need to assess and address the impact of the announced course on our client Mr Helou, who as you know was represented by HSF in the Murray Goulburn class action (VID 508 of 2017) until recently.

Although we have not been provided with any formal notice of ASIC’s application to the Federal Court, we became aware on Wednesday of this week that the application is listed for hearing on Wednesday 6 December 2017.

It follows that our need to be able to obtain, consider, and obtain counsel’s advice and instructions about the application and the relevant documents is now an urgent one.

Bearing in mind that Mr Helou:

1    is a respondent in Federal Court proceeding VID 430 of 2017 brought by the ACCC and orders sought against him include pecuniary penalties and lengthy banning orders;

2    is one of the individual director defendants in class action in which substantial damages and other relief is sought against him and other parties, including relief under Part 9.4B of the Corporations Act;

3    was the subject of examination by ASIC and may still be the subject of proceedings by ASIC

you will appreciate why it is that the operation of sections 1317E(2) and 1317F result in Mr Helou and others being persons affected by ASIC and Murray Goulburn's proposed application.

37    On 1 December 2017, ASIC responded to the Corrs letter in the following terms:

As we understand it, you appear to be concerned that any declarations made in the proceeding between ASIC and MG Responsible Entity Limited (MGRE) may amount to “conclusive evidence” against your client of the matters referred to in the declaration by reason of section 1317F of the Corporations Act 2001 (Cth). You appear to hold this concern despite the fact that your client is not a party to this proceeding and that no declarations are sought against your client.

We have considered the cases referred to in your letter and our preliminary view, based on those cases only, is that section 1317F does not apply to third parties like your client.

ASIC does not agree to your request that Wednesday’s hearing be adjourned. We do not accept that your client's interest will be adversely affected by the making of the declaration sought, nor does it appear to have standing to intervene.

38    On 6 December 2017, the earlier ASIC proceeding was heard by Davies J as an agreed penalty hearing. On 15 December 2017, that proceeding was disposed of by her Honour declaring that MGRE had committed the contraventions alleged by ASIC and an order that it pay $650,000 to the Commonwealth, together with ASIC’s costs.

39    On 19 February 2018, the Enforcement Committee met and suspended the investigation into Mr Helou and Mr Hingle whilst the ACCC proceedings progressed. The Enforcement Committee determined to revisit the issue in October 2018. It would appear that the purpose of the suspension of the investigation was to await the outcome of the ACCC proceeding. The record of the Enforcement Committee meeting records the following:

1. APPROVED:

a)     ASIC suspending its investigation into Mr Gary Helou (former CEO of Murray Goulburn) and Mr Bradley Hingle (former CFO of Murray Goulburn) while the ACCC proceedings progress;

[Redacted]

2. REQUESTED that the team:

[Redacted]

b)    return to the Enforcement Committee in October 2018 to consider whether ASIC should recommence its investigation.

40    On or about 28 February 2018, ASIC determined not to further press any claims for confidentiality and public interest immunity over the s 19 transcripts. The defendants say that the abandonment of such claims supports an inference that ASIC considered it unlikely that proceedings would be commenced against Mr Helou and Mr Hingle. I would say now that I disagree with that as being the more likely inference. The more likely inference is rather that ASIC considered its investigation did not require the protection of such claims at that stage and that further strict confidentiality did not need to be maintained, rather than it having determined that there would be no legal proceedings against the defendants. And such an inference is also consistent with the Enforcement Committee’s approach on 19 February 2018 which I have detailed above.

41    On 6 April 2018, ASIC notified Mr Helou that confidentiality directions concerning the transcripts ceased to have effect that day. But again, none of this supports an inference that there would be no legal proceedings. Rather it all supports the notion that the confidentiality of the investigation did not need the protection of specific confidentiality directions at that stage.

42    On 18 June 2018, the ACCC proceeding went to mediation as fixed by my order. According to the defendants this should have been known to ASIC as my order was publicly available on the Commonwealth Courts Portal. According to Mr Hingle, those settlement negotiations took place against the following background. ASIC had examined Mr Hingle in March 2017. Since that time, ASIC had commenced a proceeding against MGRE but not against Mr Hingle or Mr Helou, in contrast with the ACCC which had issued a proceeding against both those individuals. The earlier ASIC proceeding against MGRE had concluded in December 2017 and six months had passed since it had concluded. And at no point since Mr Hingle’s two days of examinations in March 2017, including at no point during the six months that had passed since the conclusion of the earlier ASIC proceeding, had ASIC indicated that it intended or was otherwise contemplating a proceeding against Mr Hingle, let alone indicated that if the outcome of the ACCC proceeding against him was unsatisfactory to ASIC it would issue a penalty proceeding against him. Mr Helou made similar points, although as I will discuss later his level of awareness was different. I will discuss the significance of these matters later.

43    On 24 July 2018, MG made a market announcement that it had attended a Court-ordered mediation in the ACCC proceeding and that the Court had vacated the existing timetable in relation to the claims against MG, Mr Helou and Mr Hingle whilst they sought to progress a resolution of the ACCC proceeding.

44    On 10 August 2018, the ACCC proceeding against Mr Hingle was dismissed by consent. There was no adjudication on the merits by me. The settlement with the ACCC was that Mr Hingle agreed to give an undertaking to the Court not to be directly or indirectly involved in the management of a corporation which carried on business in the dairy industry for a period of three years and agreed to pay $50,000 towards the ACCC’s costs. In exchange, the ACCC consented to an order dismissing the proceeding against Mr Hingle. There was no express finding of contravention against Mr Hingle. The settlement was reflected in my order of 10 August 2018, which noted the undertaking given by Mr Hingle. As far as I am aware, Mr Hingle made no admission of any wrongdoing.

45    I would note at this point that Mr Hingle says that at no time prior to or during the settlement process with the ACCC was Mr Hingle made aware that the ASIC investigation was suspended and would be reviewed in October 2018, or that a consideration for ASIC in reviewing action against Mr Hingle would be whether the outcome of the ACCC proceeding was satisfactory to ASIC.

46    I would also note at this point that ASIC was reliant on media reports for notice of the settlement with Mr Hingle. Moreover, it was not made aware of the details of the settlement terms between Mr Hingle and the ACCC. Nevertheless I am prepared to assume that on or around 10 August 2018 it became aware of the terms of my order involving Mr Hingle.

47    On 16 August 2018, a second class action was commenced against MG and MGRE (the Endeavour River class action). This class action, unlike the Webster class action, did not sue any of the directors.

48    In October 2018, the Enforcement Committee apparently did not meet to revisit the suspension of the ASIC investigation into Mr Helou and Mr Hingle as had been contemplated by the 19 February 2018 meeting. This was perhaps understandable as the ACCC proceeding had not been concluded. The likely inference is that there was nothing to meet about. Indeed, it would seem that the Enforcement Committee did not meet at any point between 20 February 2018 and 31 March 2019 to consider this matter further.

49    On 9 November 2018, MG, Mr Helou and the ACCC reached an in-principle settlement of the ACCC proceeding. MG made a market announcement about the settlement, but the announcement did not disclose whether disqualification orders had been agreed to between the parties.

50    On 13 November 2018, MG, Mr Helou and the ACCC filed a statement of agreed facts, in which Mr Helou made various admissions.

51    On 6 December 2018, I heard and disposed of the ACCC proceeding declaring that MG had contravened ss 18 and 29(1)(i) of the ACL in the period between 29 February 2016 and 27 April 2016 and that Mr Helou was knowingly concerned in that contravention (see Australian Competition and Consumer Commission v Murray Goulburn Co-Operative Co Limited [2018] FCA 1964). Mr Helou was ordered to pay the Commonwealth $200,000 in respect of his involvement in MG’s contraventions and $50,000 towards the ACCC’s costs. Mr Helou also gave an undertaking not to be involved in the management of a corporation carrying on business manufacturing or supplying animal-based dairy products or services for a period of three years. Again it would seem that ASIC was reliant on media reports for notice of the settlement with Mr Helou and was not made aware of the details of the settlement terms by the ACCC. Nevertheless I am prepared to assume that it was aware of my judgment and the orders that I made at or around the time that they were published.

52    On 7 December 2018, The Australian newspaper reported that ASIC’s investigation of Mr Helou was continuing.

53    On 4 February 2019, the final report of the Royal Commission was tabled in Federal Parliament.

54    On 11 February 2019, and one week after the Commissioner’s report was tabled in Parliament, ASIC briefed counsel to advise in relation to initiating proceedings against the defendants.

55    On 1 April 2019, the Enforcement Committee resolved that ASIC should institute proceedings against Mr Helou and Mr Hingle and seek periods of disqualification and declarations for general deterrence effect, but not pursue a pecuniary penalty. The record of the 1 April 2019 meeting stated:

1.     AGREED that ASIC should institute proceedings against Gary Helou (former managing director) and Bradley Hingle (former CFO) and seek periods of disqualification declarations, for the opportunity of a general deterrence effect, but not pursue civil penalties, … [Redacted]

(Original emphasis.)

56    On 28 May 2019, ASIC wrote to Mr Helou’s solicitors, Corrs in light of the fact that Mr Helou was participating in a mediation of the Webster class action which he, although not Mr Hingle, was a party to. ASIC informed Mr Helou of its intention to issue proceedings against him seeking declarations of contraventions of the Corporations Act and orders that he be disqualified from managing corporations for such period as I considered appropriate. ASIC had not previously given notice that it intended to commence a disqualification proceeding against Mr Helou or Mr Hingle. The letter relevantly stated:

ASIC is aware that Mr Helou will be participating in a mediation to be held this week in proceedings brought against him in relation to his conduct as managing director of MG and MGRE during the financial year ending 30 June 2016. In the interests of fairness, ASIC wishes to notify your client that it intends to shortly issue proceedings against your client in relation to his conduct as managing director of MG and MGRE during the financial year ending 30 June 2016. ASIC intends to seek the following relief:

1. …

2. Orders pursuant to s206C, alternatively 206E of the Corporations Act that your client be disqualified from managing corporations for such period at the Court considers appropriate.

3. Costs.

57    The Webster class action and the Endeavour River class action proceeded to a joint mediation on 30 May 2019 with a number of subsequent telephone mentions. The joint mediation was not successful.

58    On 20 June 2019, ASIC commenced the present proceeding against Mr Helou and Mr Hingle.

59    On 24 June 2019, the Endeavour River class action settled in principle.

60    On 24 July 2019, Mr Hingle’s solicitors wrote to ASIC’s solicitors asking various questions prompted by concerns about the new proceeding against Mr Hingle. On 30 July 2019, ASIC’s solicitors responded and said the following:

As the ACCC sought (among other things) orders to disqualify Mr Hingle from managing corporations for a period of seven years under s 248 of the Australian Consumer Law, ASIC took the view that it was preferable to avoid running two disqualification proceedings by independent regulators against the same defendants simultaneously.

61    Further, after stating that the course ASIC had taken was consistent with the Legal Services Directions and with s 37M of the FCA, ASIC’s solicitors said the following:

When the ACCC Proceeding was finalised on 6 December 2018, ASIC was required to revisit whether the outcome was satisfactory in light of its statutory functions to enforce and give effect to the law and especially its function to promote market integrity and the confident and informed participation of investors and consumers in relation to the Australian financial system.

62    It is not necessary to address further aspects of other correspondence at this time.

63    On 14 August 2019, Mr Hingle applied for orders that the present proceeding be stayed permanently or dismissed. Mr Hingle’s application was supported by an affidavit made by his solicitor, Mr Glen Ward, on 14 August 2019; a further affidavit made by him on 12 September 2019 concerning a notice to produce directed to ASIC may be put to one side for the moment.

64    On 15 August 2019, Mr Helou also applied for orders that the present proceeding be dismissed or stayed permanently. Mr Helou’s application was supported by an affidavit made by his solicitor, Ms Katrina Sleiman, on 15 August 2019.

65    I would note that in opposition to these applications, ASIC has relied upon affidavits made by its solicitor Ms Rebecca Jaffe on 29 August 2019 and 12 September 2019.

66    Finally, I would note that the Webster class action has not settled and it remains fixed for a four week trial before me commencing on 5 February 2020. I will return later to the effect of the present applications on that action and also to a separate application concerning Mr Helou that has been made by Mr Webster in that proceeding.

The overlap in the various proceedings

67    In the present proceeding, ASIC relevantly alleges against Mr Helou that by preparing and approving an announcement by MGRE on 29 February 2016 which contained various statements including statements that MG expected to maintain a forecast available weighted average southern milk region farmgate milk price (FMP) of $5.60 per kilogram of milk solids (kgms) in FY16 and that $5.60 per kgms milk price would be expected to generate in FY16 net profit after tax (NPAT) attributable to shareholders and unitholders of approximately $63 million and by failing at various points in time until 27 April 2016 to correct statements the announcement contained, he engaged in conduct in relation to a financial product or financial service that was misleading or deceptive or likely to mislead or deceive in contravention of 1041H of the Corporations Act and 12DA(1) of the ASIC Act. Further, it is alleged that Mr Helou and Mr Hingle were knowingly concerned in or party to a contravention by MGRE of s 674(2) of the Corporations Act. MGRE’s contravention is alleged to be constituted by its failure to disclose to the ASX before 27 April 2016 that there was likely to be a material decrease in MG’s forecast NPAT and FMP in the period after it published that forecast on 29 February 2016 (February Earnings Guidance) and the February Earnings Guidance was unlikely to be achieved. Further, it is said that they were also knowingly concerned in or party to a contravention by MG of s 675(2) of the Corporations Act, where MG’s contravention is alleged to be constituted by its failure to disclose to the ASX until 27 April 2016 that there was likely to be a material decrease in the February Earnings Guidance and the February Earnings Guidance was unlikely to be achieved. Further, it is said that between 26 February 2016 and 26 April 2016, Mr Helou and Mr Hingle contravened s 180(1) of the Corporations Act by failing to exercise their powers and discharge their duties as officers of MG and MGRE with reasonable care and diligence. The contraventions are alleged to be constituted by their failure to take certain steps and by causing or permitting MG and MGRE to contravene various provisions of the Corporations Act and ASIC Act. Further, it is said that between 1 February 2016 and 26 April 2016, Mr Helou and Mr Hingle contravened ss 601FD(1)(b) and 601FD(1)(f) of the Corporations Act by failing to exercise their powers and discharge their duties as officers of MGRE with reasonable care and diligence. ASIC is also seeking disqualification orders under s 206C or alternatively s 206E of the Corporations Act.

68    Now by way of comparison with the allegations made in the earlier ASIC proceeding, ASIC alleged that MGRE contravened s 674(2) of the Corporations Act and sought and obtained a declaration that:

The defendant contravened section 674(2) of the Corporations Act 2001 (Cth) (“the Act”) on and from 22 March 2016 continuing until 8:48 am on 27 April 2016 by failing to notify the Australian Securities Exchange (“the ASX”) that circumstances had arisen a consequence of which was that Murray Goulburn Co-operate Co. Limited was unlikely to achieve the forecast Available Weighted Average Southern Region Farmgate Milk Price for the financial year ending 30 June 2016 (“FY16”) of $5.60 per kilogram of milk solids and full-year net profit after tax for FY16 of appropriately $63 million as stated by MG and MGRE in their ASX announcements dated 29 February 2016 titled “Murray Goulburn – Half Year Financial Results News Release” and “Murray Goulburn – Half Year Financial Results Presentation”.

69    Let me elaborate a little on the earlier ASIC proceeding.

70    ASIC sought a declaration that MGRE contravened s 674(2) of the Corporations Act on and from 22 March 2016 continuing until 8:48 am on 27 April 2016 by failing to notify the ASX that circumstances had arisen a consequence of which was that, MG was unlikely to achieve the forecast FMP for FY16 of $5.60 per kgms and full year NPAT for FY16 of approximately $63 million as stated by MG and MGRE in their ASX announcements dated 29 February 2016 titled “Murray Goulburn - Half Year Financial Results News Release” and “Murray Goulburn - Half Year Financial Results Presentation”. It also sought a declaration that the contravention was serious within the meaning of s 1317G(1A)(c)(iii) of the Corporations Act.

71    Further, an order was sought that MGRE pay the Commonwealth a pecuniary penalty pursuant to s 1317G(1A) of the Corporations Act in respect of the declared contravention in the amount of $650,000.

72    The Court made the declarations and orders sought based upon the joint submissions of ASIC and MGRE, supported by a statement of agreed facts. The following factual foundation had been agreed to by the parties.

73    On 1 May 2015, the MG Unit Trust was established. On 29 May 2015, MGRE issued a PDS by which it offered fully paid units in the MG Unit Trust. The issue of the units was intended to raise capital for MG and give the unitholders an economic exposure to MG and its business. This was via a profit sharing mechanism. Return on the units therefore depended on the financial performance of MG. The PDS presented forecast financial information for MG for FY16 which included the following pro forma forecast results:

(a)    NPAT attributable to MG shareholders and unitholders of $86 million; and

(b)    FMP of $6.05 per kgms.

74    Between 1 July 2015 and 27 April 2016, MGRE made three further public statements in relation to the forecast NPAT and FMP for FY16. On 31 August 2015, as part of its full year financial results, MGRE made statements regarding the forecast NPAT and FMP, including that they “can be achieved, provided dairy commodity prices strengthen during the balance of FY16”.

75    On 26 October 2015, MGRE released the chief executive officer’s annual general meeting address to the ASX which stated that:

[W]e believe the FY16 PDS forecast of a $6.05 per kgms Available Southern Milk Region FMP can be achieved, provided dairy commodity prices continue to materially strengthen during the balance of FY16 ... [I]f MG’s expectations do not materialise, it is likely that:

(i)    the Available Southern Milk Region FY16 FMP would be in the range of $5.60 to $5.90 per kgms;

(ii)    the FY16 NPAT attributable to shareholders and unitholders would be in the range of $66 million to $79 million”.

76    Further, on 29 February 2016, MGRE provided to the ASX MG’s interim financial report for the half year ended 31 December 2015, a half year financial results presentation and a half year financial results news release, which stated that:

MG expects to maintain its opening Available Weighted Average Southern Milk Region FMP of $5.60 per kgms in FY16 ... However, this is subject to there being no further material deterioration in dairy commodity prices or unfavourable changes to the current AUD:USD exchange rate. This is at the bottom end of the previous guidance provided and reflects the lack of improvement in global dairy commodity prices and the continued weak outlook for those prices. Under the Profit Sharing Mechanism, a $5.60 per kgms milk price would be expected to generate for the full year FY16 NPAT attributable to shareholders and unitholders of approximately $63 million.

77    From November 2015, forecast sachet sales and revenues were to make a significant contribution to MG meeting the forecast FMP and NPAT for FY16.

78    Throughout the period 1 July 2015 to 30 April 2016, MG prepared monthly revised income forecasts which were internal management documents which provided a monthly update of the company’s forecast FMP and NPAT for FY16. The revised income forecasts were usually presented to the Board at each monthly board meeting, but the monthly revised income forecast was not presented to the Board in January or March 2016.

79    During March 2016, Mr Hingle and Mr Helou became aware of a number of facts relevant to the performance of sachet sales and the forecast FMP and NPAT for FY16. And as at 22 March 2016, MGRE was aware of facts by reason of the knowledge of Mr Hingle and Mr Helou that:

(a)    sachet sales for the month of March to date were tracking significantly below forecast sales for the month of March;

(b)    the planned and expected rebound in sachet sales in the month of March 2016, following below forecast sales in each of January and February 2016, had not occurred;

(c)    sales of the forecast sachet volumes of 56,507 tonnes for FY16 was considered to be an important contributor to MG achieving the forecast FY16 FMP of $5.60 per kgms;

(d)    sachet sales for FY16 were tracking significantly below forecast sales volumes of 56,507 tonnes;

(e)    sachet sales gross sales revenue for FY16 was tracking significantly below forecast sachet sales gross revenue for FY16;

(f)    achieving 56,507 tonnes of sachet sales in FY16 was substantially dependent upon MG concluding new distribution arrangements under which sachets would be sold and shipped to China before the end of FY16; and

(g)    notwithstanding MG’s attempts to do so, new distribution arrangements under which sufficient sachets would be sold and shipped to China before the end of FY16 to meet forecast sachet sales for FY16 had not yet been concluded by MG.

80    Some of the said facts were contained or recorded in the documents in the possession of Mr Hingle which documents were confidential and had not been disclosed to the market.

81    It was an objective consequence of the said facts, when taken collectively and in combination, that MG was unlikely to achieve the forecast FY16 FMP of $5.60 per kgms and full year FY16 NPAT attributable to shareholders and unitholders of approximately $63 million, as stated in the announcement on 29 February 2016 (material information). As at 22 March 2016, the material information was not generally available. The material information was information which a reasonable person would have expected, if it had been generally available, to have had a material effect on the price of the units in the MG Unit Trust, within the meaning of ss 674(2) and 677 of the Corporations Act. The material information was information that was required to be notified to the ASX by MGRE under ASX Listing Rule 3.1 and s 674(2)(b) of the Corporations Act.

82    On 22 April 2016, MGRE entered into a trading halt. On 27 April 2016, MGRE released an announcement in which it informed the market that MG expected the FY16 FMP to be between $4.75 and $5.00 per kgms and that MG expected to achieve an NPAT for FY16 of $39 million to $42 million.

83    Let me now say something further concerning the ACCC proceeding.

84    As to the ACCC proceeding, the defendants point out that my judgment in the ACCC proceeding was concerned with MG’s liability for contravening ss 18 and 29(1)(i) of the ACL, and Mr Helou’s liability for being knowingly concerned in those contraventions between 29 February 2016 and 27 April 2016. The contraventions arose from misrepresentations made on 29 February 2016 and continuing throughout that period in relation inter-alia to MG’s forecast final FMP for FY16.

85    Contrastingly, and as I have said concerning the present proceeding, ASIC seeks declarations concerning the contraventions described at [67] above relating to conduct in the period between 29 February 2016 to 27 April 2016. The contraventions are alleged to have occurred by reason, inter-alia, of MGRE and MG’s failure to disclose to the ASX that MG was unlikely to achieve its forecast FMP and relevant NPAT for FY16.

(b)    The defendants’ submissions

86    Both defendants contend that this proceeding should be permanently stayed or dismissed as an abuse of process as it is both unjustifiably oppressive and its continuance would bring the administration of justice into disrepute.

87    Principally, Mr Helou points to the following features.

88    First, this proceeding is the second commenced by ASIC and the third commenced by a Commonwealth regulator arising from the same conduct, with each of the regulators being an emanation of the Commonwealth.

89    Second, ASIC could have but chose not to bring its claim against the directors as part of the earlier ASIC proceeding in circumstances where this proceeding will traverse the factual substratum that was the subject of the earlier ASIC proceeding.

90    Third, ASIC chose deliberately to allow the proceeding brought by the other Commonwealth regulator, the ACCC, which arose from the same conduct, to proceed to judgment before ASIC commenced this proceeding more than six months later, and then only because it was dissatisfied with the result of the judgment in the ACCC proceeding.

91    Fourth, this proceeding will put Mr Helou to significant cost, expense and stress, all of which could have been avoided or minimised if ASIC had commenced this proceeding sooner either as part of the earlier ASIC proceeding or during the pendency of the ACCC proceeding.

92    Fifth, the timing of this proceeding puts Mr Helou at a significant forensic disadvantage relative to the position that would have prevailed had the proceeding been commenced sooner.

93    Sixth, notice of ASIC’s intention to institute this proceeding was not given to Mr Helou until well after the judgment in the ACCC proceeding, which has caused further prejudice to him. Mr Helou says that had notice been given earlier, Mr Helou would have approached negotiations with the ACCC differently concerning the settlement of the ACCC proceeding. Moreover, the late notice has put at risk the considerable time, money and energy he has been devoting to new enterprises.

94    Seventh, the present proceeding represents a collateral attack on my judgment in the ACCC proceeding.

95    Finally, he says that prosecution of the present proceeding is inconsistent with the overarching purpose expressed in s 37M of the FCA, and the obligation of parties to further that purpose.

96    Mr Hingle relies upon similar features which he says justifies the permanent stay, although he puts some aspects slightly differently.

97    First, he says that ASIC’s conduct has involved deploying the resources of the Commonwealth to vex the defendants. It is said that one Commonwealth agency, the ACCC, attempted to secure by way of a penalty proceeding a particular result, but did not succeed. Now, so he says, a second Commonwealth agency, ASIC, finding that outcome to be unsatisfactory, is attempting to secure by way of another penalty proceeding resting on the same underlying facts that same result. Indeed, he says that ASIC’s conduct has led to the perverse outcome whereby the better a defendant fares in settlement negotiations with one Commonwealth agency, the more likely they are to face a subsequent penalty proceeding by another Commonwealth agency. It is said that this wait and see approach will have a chilling effect on the early resolution of disputes if allowed to continue. Moreover, he says that there has been a breach of the standard of fair-dealing required of ASIC as an agency of the Commonwealth in ASIC’s failure to inform Mr Hingle at any point during the course of the ACCC proceeding of its keen interest in the outcome of that proceeding and the bearing its outcome would have on how ASIC would proceed.

98    Second, he says that ASIC has accrued to itself significant forensic advantages as a result of its delay, including by getting the benefit of a statutory reversal of an important common law privilege.

99    Third, he says that it was unreasonable for ASIC not to make in the earlier ASIC proceeding the claims now made in the present proceeding, given that the present claims are intimately connected with the subject-matter of the earlier ASIC proceeding, and given that ASIC was armed with all facts and matters relevant to the present proceeding before it commenced the earlier ASIC proceeding.

100    Fourth, he says that there has been significant delay in ASIC bringing this proceeding. Further, he says that there has been no proper or adequate explanation for that delay. Further, he says that such conduct is manifestly contrary to the well-recognised public interest in the timely and efficient administration of justice and to the higher duties imposed on ASIC as an agency of the Commonwealth.

101    Fifth, he says that here has been waste and inefficiency created by ASIC’s conduct. Further, ASIC’s conduct has taken and will continue to take a personal toll on Mr Hingle. Further, forensic difficulties have been created for him in seeking to defend ASIC’s claims.

102    Let me elaborate further on some of the defendants’ specific arguments.

Traversing the same ground?

103    In summary, the defendants say that the present proceeding will traverse the same ground as both the earlier ASIC proceeding and the ACCC proceeding. It is said that the present proceeding will necessarily require me to revisit the matters the subject of the declaration made in the earlier ASIC proceeding that I have set out above. So too it is said that the present proceeding will require me to revisit the matters the subject of my judgment in the ACCC proceeding insofar as it concerns the conduct of MG, Mr Helou and Mr Hingle in the period 29 February 2016 to 27 April 2016.

104    Let me make a number of points concerning this overlap.

105    First, as will be apparent, the earlier ASIC proceeding and the ACCC proceeding did not involve any adjudication on the merits of any contested questions of fact. Rather they proceeded on an agreed factual foundation by reason of the statements of agreed facts. Such agreements provided the necessary jurisdictional foundation for the orders and declarations made in the earlier ASIC proceeding and the ACCC proceeding.

106    Second, although there was and is an overlapping factual foundation between the ACCC proceeding on the one hand, and the earlier ASIC proceeding and present proceeding on the other hand, there are important differing dimensions. The ACCC proceeding focused upon ACL contraventions with the persons affected being dairy farmers. The two ASIC proceedings involve breaches inter-alia of the Corporations Act concerning disclosures to the market with the persons affected being investors; of course many farmers were also investors in the Murray Goulburn entities.

107    Third, there are some differing dates, periods and alleged conduct between the ACCC proceeding on the one hand, and the earlier ASIC proceeding and present proceeding on the other hand.

108    Fourth, there are some differences between the earlier ASIC proceeding and the present proceeding given that the latter is focused upon, inter-alia, breaches of directors’ duties. But I do accept that underpinning these alleged breaches is a factual foundation common to both proceedings.

Commonwealth cannot have second bite at the cherry

109    The defendants point out that ASIC and the ACCC are both emanations of the Commonwealth. They say that it is oppressive for the Commonwealth via different agencies to seek the same relief against the same defendants on the same or substantially the same facts. It is said that this is particularly so where the agencies can delegate their powers to each other. In this regard ASIC may delegate any or all of its functions and powers to the ACCC under ss 102(1) and 102(2)(e) of the ASIC Act. ASIC must not delegate a function or power unless the Chairperson of the ACCC has agreed to the delegation in writing (s 102(2B)). The ACCC may delegate certain of its functions and powers to ASIC under s 26(1) of the CCA. The ACCC must not delegate a function or power under s 26(1) unless the Chairperson of ASIC has agreed to the delegation in writing (s 26(2)). Further, a memorandum of understanding exists between ASIC and the ACCC which sets out a framework for co-operation between those agencies. Now I accept that there are these delegations and such a memorandum, but it cannot be denied that they were not availed of. The fact that they could have been availed of is not really to the point for present purposes. Moreover, these potential administrative cooperation arrangements do not deny the important differences between these regulators as I will discuss later.

110    The defendants say that in circumstances where the ACCC sought disqualification of Mr Helou and Mr Hingle in the ACCC proceeding, and I accepted the appropriateness of the disqualifications obtained in that proceeding by way of undertakings, the Commonwealth should not be allowed a “second bite at the cherry”.

111    As Mr Hingle put it, what has occurred here is that Commonwealth agency number one (the ACCC) attempted to secure by way of penalty proceeding a result which Commonwealth agency number two (ASIC) desired. Commonwealth agency number two held its own claims back to see whether Commonwealth agency one could secure the desired result. When Commonwealth agency number one did not secure that result, Commonwealth agency number two stepped in to try to secure, by way of penalty proceeding resting on the same substratum of facts, the result which Commonwealth agency number one did not secure.

112    It is said that one consequence of ASIC’s approach was that the better the defendants fared in settlement negotiations in the penalty proceeding brought by the ACCC, the more likely it was that they would face a subsequent penalty proceeding by ASIC. And in the event, this consequence ensued. Evidently the defendants fared too well, in ASIC’s opinion, in settlement negotiations with the ACCC.

113    Moreover, they say that permitting such a course will risk unintended wider consequences. It may produce the perverse result that the better a defendant does in a penalty proceeding brought by one regulator, the more likely they are to face a subsequent proceeding by a different regulator. It is said that such a prospect would discourage the settlement of regulatory proceedings, which would in turn reduce the likelihood of the quick, inexpensive and efficient resolution of regulatory disputes.

114    In elaboration, it is said that if the solution to regulatory overlap is going to be a practice whereby agency one waits to see whether agency two secures the desired outcome and, if it does not, agency one then attempts to secure the desired outcome, it is difficult to see any incentive for a defendant to settle a proceeding early. To do so merely increases the risk, markedly, of a second agency being dissatisfied with the outcome and initiating its own proceeding.

115    It is said that there is a public interest in early settlement. It is an important integer of the administration of justice, including because it frees up court resources to other litigants waiting in the queue. It is said that the incentive for a defendant not to entertain settlement and to drag things out is increased if the practice which ASIC has employed here is not extinguished by a stay.

No reason for ASIC not to have moved earlier

116    The defendants say that there was no impediment to ASIC joining to the earlier ASIC proceeding Mr Helou and Mr Hingle as defendants and seeking to obtain in that proceeding the relief that it now seeks to obtain.

117    As they point out, ASIC’s investigation into the events preceding MG’s and MGRE’s ASX announcement on 27 April 2016 was commenced on 25 August 2016 and concerned the conduct of MG, MGRE and their officers. As a result of that investigation, ASIC instituted the earlier ASIC proceeding on 16 November 2017.

118    Further, the defendants say that since ASIC commenced the earlier ASIC proceeding, ASIC has not come into possession of any new evidence or information and there has been no change of circumstance to which ASIC points as being relevant, save of course for the ACCC proceeding having culminated in my judgment. They say that ASIC could in the earlier ASIC proceeding or by a separate earlier proceeding have sought disqualification and other orders against Mr Helou and Mr Hingle, but it made a deliberate decision not to take that course.

119    Now ASIC has explained its position by saying that the ACCC proceeding against Mr Helou and Mr Hingle was commenced before ASIC commenced the earlier ASIC proceeding and that as the ACCC sought to disqualify Mr Hingle and Mr Helou from managing corporations for a period of seven years, ASIC took the view that it was preferable to avoid running two disqualification proceedings by independent regulators against the same defendants simultaneously. But the defendants say that this is no answer. I will discuss ASIC’s justification later.

120    Further, the defendants say that the present proceeding was commenced because ASIC was not satisfied with the outcome of the ACCC proceeding. But in all the circumstances, the defendants say that it is unjustifiably oppressive for ASIC deliberately to subject Mr Helou and Mr Hingle to sequential disqualification proceedings when all such proceedings even by different regulators could and should have been run together.

121    Further, it is said that the manner in which ASIC has deliberately chosen to proceed will occasion significant additional cost and delay to Mr Helou and Mr Hingle including additional difficulties because neither MG nor MGRE are parties to the present proceeding, such that relevant documents in their possession will not be the subject of discovery; that last point may be true in form, but there are easy remedies to it including non-party discovery and cost orders against ASIC to cover any unnecessary additional expense.

122    It is said that those costs will be material and could have been avoided or minimised had ASIC proceeded against Mr Helou and Mr Hingle in the earlier ASIC proceeding, or otherwise by way of a separate proceeding case-managed concurrently with the other proceedings.

123    Further, another disadvantage is pointed to by Mr Helou. Three of the five “core solicitors” at Corrs acting for Mr Helou in the ACCC proceeding and the Webster class action have since left that firm, will shortly leave, or have otherwise commenced working only part-time and in a different capacity at the firm. It is said that ASIC’s choice has exposed Mr Helou to detriment flowing from the change of personnel.

124    Further, it is also said that ASIC’s deliberate approach will also prolong the stress of litigation and the associated media attention for Mr Helou and Mr Hingle and their respective families. It is said that such media attention has been ongoing since the events of 27 April 2016 and is a source of distress to them and their families.

125    Moreover, it is said that ASIC’s approach has put Mr Helou and Mr Hingle at a material forensic disadvantage. Mr Helou has since made admissions in the ACCC proceeding. Further, ASIC contends that neither can rely on the privilege against self-exposure to a penalty available to them during the pendency of the present proceeding. Further, the Murray Goulburn entities are not parties to the present proceeding, such that Mr Helou and Mr Hingle will not have the benefit of any witnesses those parties might call in answer to the allegations of primary liability against them.

Unfairness to Mr Helou by late notice of intention to institute this proceeding

126    Further, Mr Helou says that further unfairness and prejudice has been occasioned by ASIC not having given him earlier notice of its intention to institute the present proceeding.

127    He says that ASIC was alive to the prospect of unfairness, which is said to be demonstrated by its letter to Mr Helou dated 28 May 2019 sent “[i]n the interests of fairness” in the context of the mediation of the Webster class action notifying Mr Helou that it intended to proceed against him. It is said that why ASIC did not give such notice before the mediation of the ACCC proceeding is not explained. And if anything, it is said that the “interests of fairness” were even greater in the regulatory context than in relation to the Webster class action because whether ASIC would bring proceedings depended on the outcome of the ACCC proceeding. It is submitted that had Mr Helou known that the outcome of the ACCC proceedings would inform ASIC’s decision to commence proceedings against him, he would have taken that factor into consideration in deciding whether to settle the ACCC proceeding and if so on what terms.

128    In that context he says that there is nothing to suggest that ASIC was unaware of the fact that Mr Helou and the ACCC were engaged in negotiations to settle the ACCC proceeding in the latter half of 2018. Indeed, such negotiations were the subject of ASX announcements on 24 July 2018 and 24 September 2018. Further, the settlement in principle was the subject of a further ASX announcement on 9 November 2018.

129    Further, Mr Helou says that on any view ASIC has delayed in giving notice of its intention to institute the present proceeding until even well after the conclusion of the ACCC proceeding. My judgment in the ACCC proceeding was handed down on 6 December 2018, yet notice of the intention to institute the present proceeding was given to Mr Helou almost six months later on 28 May 2019. It is said that throughout this period Mr Helou devoted time, money and energy to new enterprises in the reasonable expectation that ASIC was not going to issue further proceedings against him.

Unfairness to Mr Hingle by late notice of intention to institute this proceeding

130    Mr Hingle also says that there is unfairness in ASIC’s failure to inform Mr Hingle of its designs on him, or at the very least that it reserved its position in relation to him, in circumstances where any reasonable person in Mr Hingle’s position would have understood that ASIC had decided not to institute a proceeding against him, and in circumstances where ASIC was keenly interested in the outcome of the ACCC proceeding pending against Mr Hingle and must have known that Mr Hingle would, as a serious possibility, enter into settlement negotiations with the ACCC.

131    Mr Hingle has also pointed to the letter from ASIC to Mr Helou on 28 May 2019 and says that it is apparent from this letter that ASIC regarded fairness as requiring that a person against whom it was intending to issue a penalty proceeding, and who was then the subject of a proceeding resting on a common or substantially similar substratum of fact or alleged fact, be notified of ASIC’s intention to do so.

132    Mr Hingle submits that when entering into the mediation with the ACCC, he stood in relevantly no different position from that of Mr Helou entering into the mediation in the Webster class action. As he put it, ASIC had formed the view that there were claims to be made against Mr Hingle warranting a penalty proceeding and that it would make these claims against him unless the outcome of the ACCC proceeding was satisfactory to ASIC. So, this is not a case where ASIC was uncertain about whether there were claims to be made and about the sort of relief it thought those claims warranted. On ASIC’s own narrative, the only contingency was the outcome of the ACCC proceeding.

133    Moreover, he says that ASIC does not deny that it was aware that there was a mediation in the ACCC proceeding or that it contemplated that Mr Hingle and the ACCC might settle the proceeding. All that the evidence establishes at most is that ASIC was not consulted on the terms of the settlement or the proposed undertakings prior to the ACCC settling with Mr Helou or Mr Hingle. But there is no evidence that ASIC was not aware that Mr Hingle would as a realistic possibility enter into settlement discussions with the ACCC.

134    Further, he says that at the heart of ASIC’s own narrative is the outcome of the ACCC proceeding. Whether ASIC issued a proceeding against Mr Hingle was to be and was contingent on that outcome.

135    Further, because there was a memorandum of understanding between ASIC and the ACCC, because ASIC has said that it was appropriate for the two Commonwealth agencies to cooperate and exchange information, and because the ACCC provided ASIC with the originating application and pleadings in the ACCC proceeding the day after each document was filed, Mr Hingle says that ASIC cannot be heard to say that the settlement between Mr Hingle and the ACCC came as a surprise to it or that it never contemplated that such a settlement would occur.

136    Despite all of this, so it is said, ASIC gave Mr Hingle no indication of its designs on him in circumstances where according to Mr Hingle all indications were that it had none.

137    Now ASIC has attempted to show that it somehow ought to have been apparent to Mr Hingle that ASIC would as a realistic possibility proceed against him.

138    He says that ASIC’s first step is to show that Mr Damian Grave, partner of HSF and MGRE’s solicitor, had provided a copy of the proposed agreed statement of facts to be used in the earlier ASIC proceeding to Mr Hingle’s solicitors. Mr Hingle does not deny that the proposed statement was passed on by MGRE’s solicitor to his solicitors. But Mr Hingle says that that fact, which showed that ASIC was close to commencing a proceeding not against him but against MGRE, merely reinforces rather than diminishes the perception that ASIC had decided not to proceed against him.

139    He says that ASIC’s second step is to point to a settlement deed between MGRE and ASIC executed on or around 16 November 2017, where the definition of “MG Related Entity” excluded Mr Hingle from its ambit. On that basis ASIC appears to suggest that Mr Hingle should have known that ASIC reserved its rights to proceed against him. But Mr Hingle says that the settlement deed was never provided to him. Further, if the settlement involved MGRE agreeing to leave action against Mr Hingle open as part of its settlement with ASIC, this feature made it more incumbent upon ASIC as a matter of fairness to communicate with Mr Hingle as to its intentions concerning possible action against Mr Hingle.

140    He says that ASIC’s third step is to show that Mr Hingle somehow ought to have been aware of ASIC’s intentions through newspaper articles. But that search produced a total of two relevant newspaper articles both published on 17 November 2017. That date is the day after the commencement of the earlier ASIC proceeding. But Mr Hingle says that this evidence fails to deal with the eight months which elapsed between the finalisation of the earlier ASIC proceeding and Mr Hingle’s settlement with the ACCC. Further, the investigation to which the articles referred had been going on so far as Mr Hingle was aware of it for 1½ years and had in fact begun 2 years earlier. Mr Hingle says that given that the proceeding which had prompted the articles had been finalised, given that by the time of the mediation with the ACCC six months had passed since that event, and given that the ASIC investigation into Mr Hingle had begun a significant time earlier, any reasonable person in his position would have gone into the mediation with the ACCC on the understanding that ASIC had decided not to proceed against him.

141    Further, Mr Hingle says that it was reasonable to order his affairs on the understanding that settling with the ACCC would mean that penalty litigation by agencies of the Commonwealth was at an end. He says that the reasonableness of that position is borne out by the eight months that had elapsed since the finalisation of the earlier ASIC proceeding against MGRE.

142    Generally, Mr Hingle says that he was deprived of a material piece of information when going into settlement negotiations with the ACCC. And more generally he says that there has been a breach of the standard of fair dealing expected of ASIC as an emanation of the Commonwealth.

Collateral attack on judgment in ACCC proceeding

143    Further, the defendants say that insofar as the present proceeding contains or traverses factual allegations traversed in other proceedings, this proceeding will require me to revisit those allegations and has the potential to result in inconsistent findings. I have set out what is said to be the relevant overlap earlier.

144    Moreover, the defendants say that in the ACCC proceeding, I considered the appropriateness of the total “package” of relief sought against Mr Helou and Mr Hingle for their role in what was disclosed or not to the market in the relevant period. It is said that the constituent parts of that package were interdependent.

145    Accordingly, they say that the Commonwealth by its emanation, ASIC, ought not now be permitted to seek to substitute an important component in the package obtained against Mr Helou and Mr Hingle by another emanation, the ACCC, in the ACCC proceeding. It is said that in circumstances where the ACCC sought disqualification of Mr Helou and Mr Hingle, and I accepted the appropriateness of a disqualification obtained by way of undertakings, the present proceeding constitutes a collateral attack on my judgment in the ACCC proceeding and that I should not be required to rule upon a claim for similar relief on no new facts in the present proceeding.

Anshun estoppel by reason of the earlier ASIC proceeding

146    A further point has been made by Mr Hingle concerned Anshun estoppel which can be put equally by both defendants. The test to be applied, which is not in doubt, was stated in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22] per French CJ, Bell, Gageler and Keane JJ in the following terms:

[Anshun estoppel] operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.

(Citations omitted.)

147    Mr Hingle says that there is no doubt that the claims now made in the present proceeding against him are intimately connected with the subject matter of the earlier ASIC proceeding.

148    Now ASIC says that its failure in the earlier ASIC proceeding to make the claims now made against Mr Hingle and Mr Helou was not unreasonable by virtue of the agreed manner in which the earlier ASIC proceeding was commenced and concluded. ASIC says that for that reason it was not reasonably open to ASIC to include the disqualification relief. But Mr Hingle says that the scope of the negotiations preceding the earlier ASIC proceeding and the agreed manner in which it was commenced was entirely of ASIC’s creation. Having by deliberate choice set up a narrow foundation for that proceeding, ASIC now says it was not reasonably open to ASIC to include the disqualification relief in that proceeding. But Mr Hingle says that it was not unreasonable for ASIC to have made the agreed foundation for the earlier ASIC proceeding wider than it was. There was nothing preventing ASIC from seeking to include claims against Mr Hingle and Mr Helou as part of the agreed foundation for the earlier proceeding. And ASIC never made any such attempt.

149    Mr Hingle says that ASIC’s argument as to why it was not unreasonable for it to fail to include the claims now made against Mr Hingle and Mr Helou in the earlier ASIC proceeding does not withstand scrutiny. ASIC does not appear to dispute that the present claims were intimately connected with the subject matter of that earlier proceeding. Accordingly Mr Hingle says that ASIC is Anshun estopped from bringing this proceeding.

150    More generally the defendants say that the claims made in the present proceeding are so connected with the subject-matter of the earlier ASIC proceeding as to make it unreasonable for those claims not to have been made in that proceeding.

151    They say that ASIC has not attempted to deny that it has been armed with all facts and matters relevant to this proceeding since at least the commencement of the earlier ASIC proceeding, if not substantially earlier.

152    Now I agree that ASIC could have brought proceedings against all, settled with MGRE and proceeded against the others. Indeed it was desirable that ASIC should have done so. But even if that be so that does not in and of itself establish an Anshun estoppel. I will discuss this later.

The significant delay

153    The defendants say that there has been significant delay in ASIC bringing this proceeding. And the significance of this delay has been intensified when regard is had to the public interest in the timely and efficient administration of justice.

154    Significant delay and the inevitability of increased costs which it brings can be weighty contributors both to a conclusion of unjustifiable oppression and to a conclusion that the administration of justice has been brought into disrepute thereby.

155    As to this latter aspect, any significant delay is “apt to occasion an increase in the cost of justice and a decrease in the quality of justice”, because “integral to a ‘just resolution’ is the minimisation of delay and expense”, not least because the “timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute” (UBS AG v Tyne (2018) 92 ALJR 968; 360 ALR 184 at [38] and [45]). So, delay is not merely a matter of private interest to the parties in suit. There is a public interest in the timely and efficient administration of justice.

156    Further, the defendants say that when considering the length of the delay in the present context, it should also be remembered that the moving litigant is an emanation of the Commonwealth, with all of the advantages which that brings. In this regard it is said that the Commonwealth and its emanations owe higher duties than those cast upon ordinary litigants.

157    In this regard they say that statutory model litigant obligations apply to ASIC as an agency of the Commonwealth. In this context, the Legal Services Directions contain, inter-alia, the obligation of “dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation”. I would note that this adds little to s 37M of the FCA.

158    Now as the defendants note, an obligation which ASIC claims its conduct furthered was the following (Legal Services Directions 2017, Appendix B, paragraph 2(d)):

endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate.

159    But the defendants say that this obligation is principally directed to seeking to resolve disputes through non-litigious means. It has no application to a situation where ASIC has formed a view that it has claims to make against a person warranting relief which can only be granted by a court, but then holds them in abeyance with the intention of commencing litigation if they are not achieved by another emanation of the Commonwealth. I tend to agree with that interpretation although I note that strictly the phraseology is “…including by giving consideration to…”.

160    Further, the defendants say that the prosecution of the present proceeding, being the third regulatory proceeding and the fifth overall when one takes into account the class actions, addressing the same or similar facts and contentions is inconsistent with the overarching purpose. It is said that ASIC has not sought to minimise delay and expense, nor to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.

161    It is said that the present proceeding duplicates the use of scarce judicial resources, which would otherwise be allocated elsewhere. I accept of course that I should be concerned not only with justice between the parties but also with the public interest in the proper and efficient use of public resources. In UBS AG, Gageler J stated (at [70]) that the question of whether a claim sought to be brought in later proceedings should have been brought in earlier proceedings cannot be determined solely by reference to the interests of the parties to the action, recognising the further and important dimension that there is a public interest in the timely and efficient administration of civil justice. On this point it is to be noted that the external legal costs of the ACCC proceeding excluding investigation costs were approximately $1.68 million. The costs of the earlier ASIC proceeding, including investigation costs, were $573,000.

The lack of a proper or adequate explanation for the delay

162    The defendants say that there is a lack of an adequate explanation for the delay. Moreover it is said that ASIC has made no attempt to deny that it was armed with knowledge of all relevant facts and matters by at least the time it commenced the earlier ASIC proceeding.

163    Now ASIC’s explanation is that it made a conscious choice to sit back and wait to see what the result was in the ACCC proceeding, this being the preferable approach because it avoided running two proceedings seeking disqualification orders against the same individual.

164    But the defendants say that there is no bar in statute or principle to the existence of two proceedings seeking disqualification orders against the same defendant. Section 1317N of the Corporations Act provides for an automatic stay of civil penalty proceedings where, and only where, a pecuniary penalty or relinquishment order is sought and there are criminal proceedings on foot for substantially the same alleged conduct. But there is no such legislative bar in the case of two civil penalty proceedings, whatever the relief sought in each.

165    Further, they say that the commencement of a proceeding is a separate issue from how the Court manages the running of that proceeding.

166    Had ASIC issued a disqualification proceeding at the time the earlier ACCC proceeding was running, if a defendant wanted the earlier proceeding stayed, he would have had to apply for a stay on the basis that the stay was in the interests of justice. But the defendants say that there are various reasons to doubt that a defendant would want a second penalty proceeding deferred until the first had concluded, including because this would merely prolong the course of penalty litigation. But they say that in the unlikely event that a defendant applied for a stay, it is difficult to see how in the circumstances of this case the defendant could establish that allowing the two regulatory proceedings arising from the same underlying facts to run at the same time would be contrary to the interests of justice.

167    Further, they say that the running as distinct from the issuing of the two proceedings would be within the control of the Court. Modern case-management techniques could be deployed, including deferring one proceeding until the conclusion of the other without a formal stay if that were thought to be in the interests of justice. And any concerns about double punishment could readily be dealt with at the relief stage, if that stage was reached. In fact, so they say, the Court is in a better position to apply the principles called into play when determining relief, such as the totality principle, when it has before it at the one time all claims arising out of a common substratum of fact.

168    Further, it is said that ASIC’s approach does not make things any less oppressive for a defendant. Either the defendant is to fight the ACCC proceeding to the end, lose and be the subject of a disqualification order, or the defendant is to settle with the ACCC on less severe terms, only to then be subject to a subsequent ASIC penalty proceeding. In fact, so it is said, such an approach can properly be seen as vexing the defendant.

169    Further, they say that it is not obvious that ASIC’s approach is apt to conserve Commonwealth resources. Early resolution of the ACCC proceeding on terms unsatisfactory to ASIC simply means another proceeding by another Commonwealth agency.

170    Contrastingly, it is said that having all regulatory proceedings on foot at the one time would increase efficiency and reduce cost for all parties, both Commonwealth and private, including because legal practitioners can work across the same matters at the same time. And such a course would also hold out the prospect of negotiating a resolution which all interested parties were happy with. And on this approach, the Court’s resources would be conserved as well.

The significant forensic advantages obtained through delaying

171    Mr Hingle says that ASIC has accrued to itself significant forensic advantages from its delay. In response to the invocation of penalty privilege by Mr Hingle, ASIC has said that this privilege has been abrogated by operation of s 1349 of the Corporations Act in circumstances where ASIC seeks only disqualification orders. But Mr Hingle says that having regard to the terms of s 1349, this assertion would not have been open to have been made had ASIC commenced this proceeding whilst the ACCC proceeding was on foot. So, if the present proceeding had not been delayed for so long, it would not have been open to ASIC to contend that Mr Hingle had been stripped of a “fundamental common law immunity”. But the answer to this is that it would have been once the ACCC proceeding had been finalised.

172    Mr Hingle says that the record of the 1 April 2019 meeting of ASIC’s Enforcement Committee is relevant. That record says that “ASIC should institute proceedings against Gary Helou (former managing director) and Bradley Hingle (former CFO) and seek periods of disqualification [and] declarations, for the opportunity of a general deterrence effect, but not pursue civil penalties, [Redacted]” (original emphasis). There is a statement as to the rationale for seeking a disqualification order but, in relation to civil penalties, a redaction begins after a comma. Mr Hingle says that it may be inferred that what follows is an explanation for why ASIC was not pursuing pecuniary penalties. All true. But I would say now that this point goes nowhere.

173    Mr Helou makes similar points, but he also says that ASIC has not disavowed the possibility of amending its originating process in this proceeding to seek a pecuniary penalty. Further, a number of the provisions Mr Helou is alleged to have contravened are criminal offence provisions, and ASIC has not disavowed the possibility of referring allegations against Mr Helou to the Commonwealth Director of Public Prosecutions. Accordingly, Mr Helou says that there remains a prospect that he may be entitled to rely on the penalty privilege and/or the privilege against self-incrimination. That being so, if this proceeding were not permanently stayed or dismissed, it would need to be heard and determined before the Webster class action, which at this late stage would cause further inefficiency and inconvenience including to all of the group members in the Webster class action. I will deal with the consequences for the Webster class action of what has occurred later in my reasons. It suffices to say for the moment that I reject Mr Helou’s privilege point.

174    Mr Hingle also says that ASIC has also indicated that it intends to use the declaration against MGRE made in the earlier ASIC proceeding in aid of its contention that Mr Hingle caused or permitted MGRE to contravene the Corporations Act, which is an integer of its s 180 claim. It has indicated that it will use that same declaration together with the declaration made against MG in the ACCC proceeding in aid of its contention concerning s 1317G(1)(c)(iii). But Mr Hingle says that ASIC’s ability to do this only arises by reason of the deferral of the present proceeding until after both of the two earlier regulatory proceedings had been finalised. I will return to this later and give the short answer to this point.

Summary

175    On the basis of the foregoing it is said that the proceeding against the defendants are an abuse of process.

176    On the first limb it is said that the unjustifiable oppression lies in the following circumstances.

177    First, there is vexation where one agency of the Commonwealth, having deliberately made the choice to stand back and allow another agency of the Commonwealth to seek the desired penalty, has commenced its own proceeding when it is unhappy with the result.

178    Second, ASIC has accrued to itself significant forensic advantages as a result of the delay.

179    Third, there has been an unreasonable failure by ASIC to make in the earlier ASIC proceeding the claims it now makes in this proceeding.

180    Fourth, there has been a serious breach of the standard of fair dealing required of a Commonwealth agency in ASIC’s failure to inform the defendants, during the course of the ACCC proceeding, of its keen interest in the outcome of that proceeding and the bearing it would have on its own action.

181    Fifth, there has been great delay, which has taken and will take on the defendants a financial and personal toll.

182    Further, on the second limb it is said that the administration of justice has been brought into disrepute by the absence of a proper or adequate explanation for the serious delay, by the perception and reality of waste and inefficiency thereby created, by the perverse outcome whereby the better a defendant fares in settlement negotiations with one Commonwealth agency the more likely they are to face a subsequent penalty proceeding by another Commonwealth agency, and by the chilling effect that such an approach will have on the early resolution of disputes.

183    Finally, as to Mr Hingle’s alternative argument based upon improper purpose, I will deal with this later in my reasons.

(c)    Analysis

184    It is convenient to address the defendants’ specific arguments under various topics before dealing with my principal conclusions. But first I should say something about the relevant principles.

Relevant principles

185    It is uncontroversial that I have the power to stay these proceedings to prevent an abuse of the process of this Court. But as Gummow ACJ et al explained, “the term ‘abuse of the process of the court’ may be used in different senses” (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [88]).

186    Resonating harmoniously with that theme, McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286 said that although the categories of abuse of process are not closed, cases usually fall into one of three categories:

(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

187    I will discuss the illegitimate purpose category later. But for the moment let me deal with the other two categories which in one sense can be described as conditions.

188    In UBS AG, Kiefel CJ, Bell and Keane JJ said (at [1]) that either of two conditions enliven a court’s power to stay proceedings for an abuse of process, namely where the use of the court’s procedures occasions unjustifiable oppression to a party or where such use serves to bring the administration of justice into disrepute. I do not need to linger on extraneous questions as to the different historical sources of jurisdiction for each condition.

189    In determining whether either condition is satisfied, a consideration of all the relevant circumstances is required, which necessitates “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case” (see Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 per Lord Bingham of Cornhill).

190    Further, in determining whether the bringing or continuance of a proceeding is an abuse of process, relevant civil procedure statutory provisions such as s 37M of the FCA must also be considered. As Kiefel CJ, Bell and Keane JJ said in UBS AG (at [38]):

The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the FCA. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the “just resolution” of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the FCA. Integral to a “just resolution” is the minimisation of delay and expense.

(Citations omitted.)

191    Moreover, “the just resolution of a controversy may be the permanent stay of the proceeding notwithstanding that the plaintiff is not at fault and that the merits of his or her claim have not been decided” (UBS AG at [40], citing Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [63]).

192    Further, it is relevant to consider whether permitting the continuance of proceedings may “give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys” (UBS AG at [59]). Moreover, in UBS AG Gageler J reinforced the elevated contemporary significance of the public interest when he said the following (at [70] and [72]):

Finally, and for present purposes no less importantly, Lord Bingham’s reference to the need for the requisite normative judgment to take account of “the public and private interests involved” underscores that the question of whether the claim sought to be brought in the later proceedings “should” have been brought in the earlier proceedings cannot be determined solely by reference to interests of the parties to the action. There is a public interest in the timely and efficient administration of civil justice. The importance of that public interest has only increased in the years since Lord Bingham spoke.

Although undoubtedly capable of application in circumstances in which use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute, the doctrine of abuse of process has repeatedly been recognised to be insusceptible of a formulation which would confine it to closed categories. In the context of the application of the doctrine to the bringing of successive proceedings, consistently with the analysis of Lord Bingham, I think it better in weighing the private and public interests involved to eschew the extremes of private “oppression” and of public “disrepute”. The relevant public interest is ordinarily appropriately identified in more general and less emotive terms as the timely and efficient administration of civil justice.

(Citations omitted.)

193    Further and as I have said, the categories of abuse of process are not closed. And cases such as UBS AG and even more recently Strickland v Commonwealth Director of Public Prosecutions (2018) 93 ALJR 1; 361 ALR 23 albeit in a different context make plain the broad scope of the circumstances that may constitute such abuse. In Batistatos, the plurality observed that “what amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues” (at [9]). Batistatos endorsed (at [14]) a passage from Ridgeway v The Queen (1995) 184 CLR 19 at 74 to 75 which emphasised that no “hard and fast definitions” of abuse of process could be laid down as “notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case” (per Gaudron J).

194    Let me make five other points before I analyse the defendants’ arguments in some detail.

195    First, putting to one side the private interests of the parties for the moment, I should note that broader public interests need to be balanced, some of which travel beyond s 37M questions or more broadly those of the type discussed in UBS AG.

196    The relevant public interests to be balanced in the present case include the following.

197    ASIC has statutory duties, powers and functions conferred on it by ss 1(2) and 12A of the ASIC Act which include, relevantly, that in performing its functions and exercising its powers, it must strive to promote the confident and informed participation of investors and consumers in the financial system (s 1(2)) and to take whatever action it can take, and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it (s 1(2)) and to monitor and promote market integrity and consumer protection in relation to the Australian financial system (s 12A(2)). Further, ASIC has responsibility for the general administration of the Corporations Act.

198    Further, ASIC has the discretion conferred on it by ss 206C, 206E and 1317J of the Corporations Act to commence proceedings for disqualification orders and declarations of contraventions respectively.

199    Further, there is a public interest in the adjudication of allegations of significant wrongdoing concerning the conduct of Australian companies involving their directors and officers.

200    Before proceeding further I should make another point. Both defendants treated ASIC and the ACCC each to be emanations of the Commonwealth and then on that foundation sought to collapse important distinctions between them. But ASIC’s statutory functions and duties relevant to the context I am considering relate, inter-alia, to monitoring, promoting, regulating and enforcing market integrity and consumer protection in relation to financial products including securities and services. Contrastingly, the ACCC’s statutory functions and duties relevant to the context I am considering relate, inter-alia, to monitoring, promoting, regulating and enforcing generic consumer protection, but not including financial products and services. I draw these distinctions to make several points. Whatever the public purpose that was served by the ACCC proceeding and its resolution is not the same public purpose served by ASIC in the discharge of its powers, duties and functions in bringing the present proceeding. And even if a Venn diagram were to portray the relevant overlap and non-overlap, what is being pursued by ASIC in the present proceeding is within its area of non-overlap. I should say that I am not here dealing with the separate question as to whether I should, and if so to what extent, tailor any relief against the defendants to reflect the period of disqualification the subject of the enforceable undertakings in the ACCC proceeding or more broadly. Further, the contraventions ASIC is pursuing are not of course the contraventions that the ACCC pursued. Different questions of general deterrence and specific deterrence arise, as do different protective jurisdiction questions when considering the period and scope of any disqualification orders. These are all public interest considerations that, ceteris paribus, weigh in ASIC’s favour against any stay.

201    Second, in dealing with one condition justifying a stay being unjustifiable oppression or vexation, and posing the question as to whether there is no other fair and practical way of ensuring justice other than a stay, it is not irrelevant to consider whether I can ultimately address any oppression, vexation or injustice in determining the relief that I might ultimately grant (Rozenblit v Vainer (2018) 262 CLR 478 at [34] per Kiefel CJ and Bell J, at [47] and [48] per Keane J and at [66], [100] and [111] per Gordon and Edelman JJ). But I can ask and answer that question now. I cannot now say whether and to what extent I could take all of this into account on the question of relief. And if the defendants would now be vexed in terms of expense, reputation and anguish, that would not be fully ameliorated by any relief I might ultimately grant in any event. Further, why should the defendants be now placed in jeopardy if there is presently vexation and oppression? Why should they now be left at risk? Moreover, even if I can give the defendants a fair trial, that “cannot be determinative of whether the proceeding is unjustifiably oppressive to [the defendants] or whether its continuance would bring the administration of justice into disrepute” (UBS AG at [44]). Now I accept that on the question of relief concerning the period and scope of any disqualification order, I can take into account the period and scope of the disqualification imposed by the acceptance of undertakings in the ACCC proceeding. But none of that answers the present question as to whether the present proceeding should now be stayed as an abuse of process under either or both of the two traditional conditions or for some other reason.

202    Third, it may be accepted as was said in Tomlinson v Ramsey Food Processing Pty Ltd at [25] by the plurality that abuse of process is “inherently broader and more flexible than estoppel” and that (at [26]):

Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

(Citations omitted.)

203    Fourth, I am concerned with the question of whether ASIC should have, rather than could have, brought proceedings at an earlier time against the defendants. Much of the defendants’ argument focused on the could have perspective or glibly glided from the could have to the should have. None of this worked for the reasons explained by Gageler J in UBS AG (at [67] and [68]) by reference to Lord Bingham’s analysis in Johnson. Now it was not in issue before me that ASIC could have brought proceedings against the defendants at an earlier time. But that was only the starting point for the analysis of abuse of process.

204    Fifth, if it matters, the context of UBS AG is not my context. As ASIC points out, that case is principally authority for the proposition that the pursuit of substantially the same claim by serial proceedings conducted by different entities under common control can amount to an abuse of process. But the present proceeding is different. In contrast to Tyne’s proceedings, which were both directed against UBS, ASIC has not conducted serial proceedings against Mr Helou or Mr Hingle. This is the first proceeding issued by ASIC against them. And as I say, I reject the notion that ASIC should be equated with the ACCC because they can both be characterised as emanations of the Commonwealth or Commonwealth agencies. ASIC is an independent statutory authority with separate statutory powers under different legislation. There is no common control of any relevant kind. Further, the claims brought by ASIC in the present proceeding have their differences from the claims brought against MGRE. They are brought against different defendants, and in some important respects are different contraventions. The claims against Mr Helou and Mr Hingle are for accessorial liability and raise additional questions about the discharge of their duties as directors and officers of MGRE and MG, and their failure to keep the Boards of those two companies appropriately informed. Further, different relief is being sought. Further, UBS AG involved the holding back of a claim against a defendant in circumstances where Tyne was continuing proceedings through a corporate entity he controlled against that very same defendant. But there is no commonality of defendants between the earlier ASIC proceeding and the present proceeding.

The timing of the proceedings

205    Should ASIC have brought the proceedings against the defendants earlier? As I say, it is not in doubt that ASIC could have done so. As ASIC points out, there are two possibilities. The first possibility is that ASIC should have done so at the time that it issued the earlier ASIC proceedings. But ASIC says that those proceedings were issued to give effect to a settlement reached with MGRE. And they did not involve pleadings. Moreover they were heard within three weeks of issue being on 6 December 2017. The second possibility is that ASIC should have done so by a separate proceeding which was case-managed together with the ACCC proceeding.

206    Now in relation to the first possibility of bringing proceedings against Mr Helou and Mr Hingle as part of the earlier ASIC proceeding, ASIC points out the following matters. First, ASIC had successfully completed more than six months of negotiations with MGRE. Second, at the time of the earlier ASIC proceeding, Mr Helou and Mr Hingle had both filed defences in the ACCC proceeding denying the substance of the contraventions alleged against them and had reserved the right to advance a case that they ought fairly to be excused from liability. According to ASIC, this suggested to it that at the time Mr Helou and Mr Hingle were not amenable to resolving any proceeding by admissions of contravention. Third, as correctly pointed out by ASIC, Mr Helou and Mr Hingle were likely aware that ASIC was negotiating with MGRE on the basis of an agreed statement of facts, of which they received a copy. Fourth, although ASIC had not approached Mr Helou and Mr Hingle in relation to any settlement, neither had Mr Helou nor Mr Hingle approached ASIC to discuss a settlement despite their awareness of the impending settlement with MGRE. Accordingly, ASIC says that proceeding against MGRE only at that time by way of an agreed statement of facts and relief and without pleadings or any pre-trial steps was an expedient and efficient use of the Court’s resources in all of the circumstances.

207    In relation to the second possibility, ASIC says that it is difficult to comprehend why it should have brought a proceeding against Mr Helou or Mr Hingle after the start of the ACCC proceeding being on 27 April 2017 but before the issue of the earlier ASIC proceeding being on 16 November 2017. It says that issuing contested proceedings against Mr Helou and Mr Hingle whilst negotiations were occurring with MGRE and before a settlement had been achieved with MGRE would have risked disruption to the disposition of the claims against MGRE and been inconsistent with the overarching purpose of s 37M of the FCA for the just and efficient resolution of disputes. And if the suggestion is that ASIC could and should have issued this proceeding against Mr Helou and Mr Hingle after the earlier ASIC proceeding had concluded, such a proceeding is likely to have been stayed to preserve the defendants’ penalty privilege pending the outcome of the ACCC proceeding. The ACCC proceeding had sought the imposition of a penalty against each of Mr Helou and Mr Hingle.

208    Let me say now that I reject ASIC’s arguments justifying its delay. ASIC could have and desirably should have instituted proceedings against Mr Helou and Mr Hingle at the same time that it issued proceedings against MGRE or soon thereafter, although I would not go so far as to characterise its failure to do so as being wholly unreasonable. There was no additional investigation or evidence that was necessary at that time. It should have got on with it so to speak. ASIC could still have settled with MGRE on agreed terms, leaving the proceedings in place against the directors. If necessary, their disposition could have been postponed until after the determination of the ACCC proceeding or they could have been heard concurrently if there were no differences in penalty privilege questions. But on that latter aspect it would appear that there could have been such difficulties. Further, there may have been other possibilities if a different timetabling was required because of the Webster class action and Mr Helou’s position therein.

209    It was not the preferable course for ASIC not to have commenced the present proceeding until after the result of the ACCC proceeding had become known.

210    A statutory function relied upon by ASIC is taking action “in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it” (ASIC Act, s 1(2)). But if what was actuating the present proceeding was a concern to enforce the Corporations Act, the present proceeding should have been brought sooner. The ACCC was not by the ACCC proceeding enforcing the Corporations Act. As the defendants pointed out, no declaration of breach of directors’ or officers’ duties could have been made in the ACCC proceeding. No declaration of knowing participation in continuous disclosure breaches could have been made in the ACCC proceeding. No press release speaking of the enforcement of the Corporations Act concerning directors’ and officers’ duties for which it provides could have been obtained in the ACCC proceeding. And all of this would have been true even if the ACCC had secured a disqualification order of a kind satisfactory to ASIC.

211    The present proceedings could have and desirably should have been issued by ASIC much sooner, and certainly before the resolution of the ACCC proceeding. But to so find does not in and of itself justify the permanent stay sought by each defendant on any of the bases contended for.

The forensic disadvantage question

212    The defendants say that ASIC has accrued to itself a significant forensic advantage and thereby has put Mr Helou and Mr Hingle in a position of material disadvantage by reason of ASIC’s ability to rely on s 1349 of the Corporations Act, which has the effect of abrogating the penalty privilege in proceedings in which ASIC seeks declarations and a disqualification order only. Now I would note for completeness that the defendants do not expressly concede the effect of s 1349, but it seems to me that the position is clear and I will proceed on that basis.

213    Moreover, ASIC has now said unequivocally that it will not amend to seek any pecuniary penalty. And the defendants’ suggestion that the Commonwealth DPP might take criminal action against them is not shown to now be a real risk in the events which have occurred.

214    Now s 1349 was available to ASIC irrespective of the status or nature of any other proceedings. If ASIC had issued a proceeding against Mr Helou and Mr Hingle only for declarations and disqualification orders at an earlier point in time, in order to preserve the defendants’ right to rely on the penalty privilege in the ACCC proceeding ASIC’s proceeding would likely have been temporarily stayed pending the outcome of the ACCC proceeding or ordered to be heard immediately after the close of the ACCC’s case. But neither of those results would have rendered s 1349 otiose.

215    In my view there is no substance in the defendants’ complaints that in the events that have occurred the defendants are now unfairly prejudiced by the invocation of s 1349.

216    Further, the defendants say that they are under another disadvantage to the extent that ASIC relies on declarations made against MGRE in the earlier ASIC proceeding and against MG in the ACCC proceeding. It is said that ASIC is only able to rely on such declarations by reason of the deferral of the present proceeding until after both of the abovementioned proceedings had been finalised. But I agree with ASIC that such arguments overstate its reliance on the declarations. ASIC relies on the fact of the declarations to show that the interests of MGRE and MG were put into jeopardy. It does not rely on the matters declared by them. In substance it is the exposure of MGRE and MG to the risk of legal proceedings for contraventions, penalties and costs which can give rise to the liability of a director or officer under s 180 of the Corporations Act. It is on this basis that ASIC alleges in the present proceeding that the defendants exposed MGRE and MG to the risk of proceedings for various statutory contraventions, legal costs and penalties. In my view ASIC’s reliance on the fact of the declarations in a limited way has not given it any significant forensic advantage. The underlying risk of exposure was always there on ASIC’s case before the declarations were ever made. In any event, if this point had real substance, at trial I could preclude ASIC from relying upon the fact of these declarations having been made.

217    Finally and to complete this point concerning declarations, it hardly need be said that s 1317F of the Corporations Act does not operate to confer conclusive evidence status on the facts stated in the declaration in the earlier ASIC proceeding for the purposes of the present proceeding against persons who were non-parties to the earlier ASIC proceeding.

Mr Helou’s knowledge of the risk of future legal proceedings by ASIC

218    There is a distinguishing feature between the position of Mr Helou and the position of Mr Hingle concerning relative differences in their level of awareness, although this may not ultimately matter. It concerns their different knowledge as to the risk of ASIC instituting proceedings against them. On 1 December 2017 and after the earlier ASIC proceeding was issued but before it was resolved, Mr Helou’s solicitors, Corrs, wrote to ASIC expressing concern about the future effect on Mr Helou of any declarations made under s 1317F of the Corporations Act and self-acknowledging the concern that ASIC may still issue proceedings against Mr Helou. In ASIC’s letter in response it addressed the operation of s 1317F, but the concerns of Mr Helou that ASIC may issue proceedings against him in the future remained. Nothing in ASIC’s response indicated that Mr Helou was not correct to have those concerns.

219    In the affidavit of Ms Sleiman, the solicitor for Mr Helou, it is said (at [25]):

I am informed by Mr Helou and believe that:

(a)    He believed that, given the time that had elapsed since his examinations by ASIC, the expiration of the confidentiality direction imposed by ASIC (following its extension by ASIC) and the conclusion of the 2017 ASIC Proceeding, all outstanding issues with both ASIC and ACCC were concluded by the settlement of the ACCC Proceeding, and that ASIC was not going to proceed against him.

(b)    If he had known, prior to the settlement of the ACCC Proceeding, that its outcome might affect whether ASIC commenced its own proceeding against him, that would be a factor he would have taken into consideration in deciding whether to settle the ACCC Proceeding, and if so on what terms.

(c)    He is aggrieved that, whereas “in the interests of fairness” ASIC gave notice – prior to the mediation of the Webster Proceeding – of its intention to commence this proceeding, it gave no such notice prior the mediation of the ACCC Proceeding. Again, had such notice been given he would have taken it into consideration in deciding whether to settle the ACCC Proceeding, and if so on what terms.

(d)    He is aggrieved that, following lengthy negotiations with the ACCC, he agreed to undertake not to be involved for three years in the management of a corporation which carries on business in the dairy industry, he is the subject of another proceeding in which a regulator seeks a further disqualification. In the meantime, he has spent considerable time, effort and money developing new ventures in plant-based foods, including through private companies in which he is a director.

(e)    As a result of the delay in the commencement of this proceeding (and the lack of any notice, prior to settlement of the ACCC Proceeding, that ASIC was contemplating it), he has lost the opportunity to negotiate a single undertaking relating to his involvement in the affairs of MG and MGRE acceptable to both ASIC and the ACCC and, by so doing, resolving all claims against him by the Commonwealth at the same time.

(f)    As a result of the ACCC Proceeding and the 2017 ASIC Proceeding (and now this proceeding), he has for several years been the subject of ongoing adverse media attention …, which has caused distress to him and his family.

220    She also stated (at [11]) that:

I am informed by Mr Helou and believe that, prior to ASIC’s letter dated 28 May 2019…he had no notice that ASIC intended to commence or was contemplating the commencement of a proceeding against him.

221    Now counsel for Mr Helou said that the affidavit evidence of Ms Sleiman was definitive on the question of Mr Helou’s awareness.

222    I must say that the weight of this hearsay evidence was underwhelming. Moreover, Mr Helou was not available to be cross-examined on it. But in any event it was carefully expressed. The phraseology of “intended to commence or was contemplating the commencement…” is stronger than what I am talking about, which is whether he knew that there was a real risk. Moreover, and surprisingly, Ms Sleiman’s affidavit made no reference to Corrs’ letter of 1 December 2017, which in some sense is inconsistent with the suggestion that Mr Helou was not aware that there was at the least a real risk. I have given her hearsay assertions little weight.

223    Moreover there is other evidence that supports the proposition that he was aware of a real risk.

224    There were various media reports in The Australian and the Australian Financial Review which support the proposition that Mr Helou was likely to have known that he was the subject of ongoing investigation by ASIC and possible future proceedings whatever the resolution of the earlier ASIC proceeding.

225    Further, the agreed statement of facts annexed to the judgment in the earlier ASIC proceeding contained a number of facts which showed that the conduct which gave rise to the contravention by MGRE significantly included the conduct of Mr Helou and Mr Hingle. The agreed statement also showed that documents which gave rise to the contravention(s) and which had been received by Mr Hingle and/or Mr Helou were not provided to the Boards of MG and MGRE. According to ASIC, at the least this was some indication to Mr Helou and Mr Hingle, particularly because they were both legally represented at the time that judgment was delivered in the earlier ASIC proceeding, that they remained exposed to a real risk of future legal proceedings against them by ASIC. This submission has some force.

226    In my view it is likely that Mr Helou knew that there was a real risk at and after the time of the resolution of the earlier ASIC proceeding that he may be the subject of further proceedings by ASIC.

227    Let me now deal with other aspects of what has been deposed to in terms of Mr Helou’s belief that are also problematic.

228    First, the fact that he “believed that…all outstanding issues with both ASIC and ACCC were concluded by the settlement of the ACCC proceeding, and that ASIC was not going to proceed against him” ([25(a)]) was, if such a statement is to be believed given the chronology and circumstances that I have set out, overly optimistic and not reasonable. Certainly, ASIC did not say or do anything to induce such a belief. In my view the likely position is that he always knew of the risk but chose to stay silent in the hope that ASIC might not separately pursue him. And that would not have been an unreasonable commercial stance for him to have taken. And if that be so, the carefully crafted consequences set out in [25(b) to (f)] of his solicitor’s affidavit are to be debited to his own account and not that of ASIC.

229    Second, his assertions as to the possible counterfactual of what he would have done in the ACCC proceeding if he had known are also quite unconvincing. On any view his settlement with the ACCC was very favourable as compared with what it had sought in its originating process. Is it seriously suggested that he would not have settled the ACCC proceeding, encouraged ASIC to sue him at the same time, and front-loaded significant risk and expense by fighting two regulators? I very much doubt it. Further, his assertion of a lost opportunity to negotiate a single undertaking has an air of unreality to it. Both the regulators and the conduct are different. But let it be assumed that he lost the opportunity contended for. In my view the real value thereof is highly questionable. But in any event such a lost opportunity proceeds from a face value acceptance of what is said in Ms Sleiman’s affidavit at [25(a)] and perhaps [11] (although that can be read more narrowly as I say), at the least at the time the ACCC proceeding was resolved, which is dubious to say the least. In my view, at the time of the settlement of the ACCC proceeding, on all the evidence before me and assessing the likelihoods, Mr Helou can be taken to have been aware that there was a risk that ASIC might still proceed against him. And it was his choice not to crystallise that risk at that time one way or the other.

Mr Hingle’s knowledge of the risk of future legal proceedings by ASIC

230    Mr Hingle’s solicitor has deposed to the following (at [17]):

I know, based on having acted for Mr Hingle throughout the ACCC Proceeding, including having been closely involved in settlement negotiations, that:

(a)    ASIC never communicated to me, or to my knowledge Mr Hingle, at any point prior to the resolution of the ACCC Proceeding, that the outcome of the ACCC Proceeding would determine or was relevant to whether ASIC would commence a proceeding against him;

(b)    having regard to:

(i)    the length of time that had passed since ASIC’s examination of Mr Hingle;

(ii)    the existence and finalisation of the 2017 ASIC Proceeding;

(iii)    the length of time that had passed since the conclusion of the 2017 ASIC Proceeding;

(iv)    the fact that ASIC did not contact either me, or to my knowledge Mr Hingle, as part of the settlement process which preceded the 2017 ASIC Proceeding, despite having examined him at length;

it was understood that settlement with the ACCC meant the end of enforcement action against Mr Hingle in relation to events at MG/MGRE in FY15-16;

(c)    the fact that the outcome of the ACCC Proceeding would determine whether ASIC would commence a proceeding against Mr Hingle would have been material information to be taken into account in deciding whether to agree to terms of settlement with the ACCC or whether to continue to defend the ACCC Proceeding; and

(d)    Mr Hingle never conceded any liability for the contraventions alleged against him in the ACCC Proceeding.

231    Again, hearsay evidence of this type in sub-paragraph (b) “…it was understood that…” on an application such as the present may be strictly admissible, but it is hardly satisfactory. I am assuming that Mr Hingle’s solicitor is referring both to his understanding and Mr Hingle’s understanding. If it is not a reference to Mr Hingle’s understanding then the second defendant has an evidentiary gap. But let me in any event observe the following on the basis that it was Mr Hingle’s belief or understanding.

232    First, if Mr Hingle’s so called belief or understanding “that settlement with the ACCC meant the end of enforcement action against Mr Hingle in relation to events at MG/MGRE in FY15-16” is for the moment accepted at face value, it was overly optimistic and not reasonable. He seems to have converted and strengthened wishful thinking into some perceived reality. Moreover, it was not induced by any words or conduct by ASIC.

233    Second, Mr Hingle’s assertion that something could be gleaned from ASIC not pressing its public interest immunity claims or persisting with its confidentiality directions in early 2018 to the effect that ASIC would not sue Mr Hingle is flimsy. The dropping of such matters is more consistent with the investigation being over, rather than that ASIC would not sue Mr Hingle.

234    Third, I think it likely that at the time Mr Hingle settled with the ACCC he was aware that there was still open a risk that ASIC might sue him.

235    Fourth, and in any event, what was the value of the lost opportunity? Mr Hingle walked away from the ACCC proceeding with no penalty and a limited disqualification. I pressed this point with counsel for Mr Hingle who ultimately came up with nothing of substance and merely repeated the mantra of a lost opportunity to negotiate a combined deal. I think that that lost opportunity, if it be one, had little real value. If ASIC had told him prior to his deal with the ACCC that the more favourable the deal with the ACCC, the more likely ASIC was going to be dissatisfied with it and was likely to sue him, is it seriously suggested that he would have rejected the good deal with the ACCC and had a fight with both regulators including front-loading significant costs? I very much doubt it. As to the assertion that he could have negotiated the one deal with both, maybe. But it is very speculative for the reasons I indicated earlier in discussing Mr Helou’s position.

236    Fifth, I consider that Mr Hingle, like Mr Helou, chose to let the matter lie. If he had chosen to do so, in my view he could have easily crystallised what should have been a self-apparent risk. No doubt he chose not to do so in his own interests.

The defendants’ knowledge that the cheaper the price paid to the ACCC, the more likely ASIC would take action

237    I accept that ASIC did not inform the defendants that the cheaper the price they paid to the ACCC, the more likely ASIC might take action against them.

238    I am also prepared to accept that they might not have turned their minds to such a possibility. But they ought to have done so, particularly as in my view they should be taken to have been aware after the settlement of the earlier ASIC proceeding that there was still a real risk that ASIC had them in its sights. It hardly required innovative thinking to draw the threads together.

239    Moreover, and as I have said, I do not consider that by not being expressly informed they lost an opportunity of real value, let alone one such as to justify a stay of the present proceeding as an abuse of process.

240    But let me say now that even though no stay is justified, I do not endorse ASIC’s strategy of waiting. And I do accept that there is some force in the defendants’ “chilling effect” argument that to otherwise condone ASIC’s approach is to condone a practice that could potentially provide a disincentive to an early settlement of a regulatory action. At the end of my reasons I have set out a protocol which for cases in my docket at least will ensure that the present circumstances are not repeated.

Is there any unfairness in not informing defendants of potential proceedings?

241    As I have said, the defendants assert that it was unfair for ASIC not to have informed them of its intention to institute this proceeding earlier, or at least that it reserved its position. In my view strictly there was no substantial unfairness such as to justify a stay, although it would have been desirable for ASIC to have been more explicit. Let me deal with another aspect.

242    Mr Hingle has complained about not having been informed of ASIC’s intention by comparing Mr Hingle’s position at the time of the ACCC mediation to Mr Helou’s position at the time of the class action mediation in late May 2019. But as ASIC rightly contends, there is an important difference between the two moments in time. ASIC did not inform Mr Helou that it reserved its position against him, but rather informed him that it intended to shortly issue proceedings against him. And at the time of the class action mediation in May 2019, the outcome of the ACCC proceeding was known to ASIC.

243    I also agree with ASIC that there can be no duty as such on a regulator to inform all persons under investigation that it reserves its position. Nor is there any duty as such on a regulator to inform a person that it intends to issue proceedings against him shortly. Further, I reject the defendants’ submission concerning some amorphous “duty of fairness”. I was quite unclear as to its boundaries and content. Moreover, it seemed to be infused with subjectivity asymmetrically weighted to the interests of the defendants only.

244    I cannot leave this aspect of the matter without noting that both Mr Helou and Mr Hingle were represented by experienced commercial law firms at all relevant times. One can speculate that in the absence of a “no action” letter from ASIC, and none was sought by the defendants, their lawyers would likely have been aware of and likely advised their clients that there was a risk that ASIC might sue them after the earlier ASIC proceeding’s resolution, but that the preferable strategy was not to crystallise that risk by bringing matters to a head at any time.

New information: outcome of ACCC proceeding

245    It is said by the defendants that since ASIC commenced the earlier ASIC proceeding, ASIC has not come into possession of any new information relevant to its decision to issue proceedings against Mr Helou and Mr Hingle. That proposition is partly true. But the ACCC proceeding sought orders disqualifying Mr Helou and Mr Hingle from managing all corporations for a period of seven years, but then the ACCC settled its claims against Mr Helou and Mr Hingle on the basis of voluntary undertakings not to participate in the dairy industry for three years. Accordingly, the relief obtained by the ACCC in its proceeding was a material change from the relief that the ACCC had sought at the outset. This new information, as recorded in my final orders made on 6 December 2018, did not come into ASIC’s possession until 6 December 2018.

246    I am not sure where this point really goes in any event. Assuming in the defendants’ favour that ASIC preferably should not have waited but sued them at an earlier time before the resolution of the ACCC proceeding, this does not establish that the present proceeding is an abuse of process. Conduct that was less desirable than it should have been on ASIC’s part does not establish any entitlement to a stay.

247    I will return later to a different problem that I have which concerns the failure to disclose to the Court at the time of the resolution of the ACCC proceeding any reservation that ASIC was keeping to itself which depended upon the outcome of my judgment. I would have liked to have known of it at the time.

No second bite of the cherry

248    The defendants suggest that ASIC is seeking to have a second bite at the cherry. But this proceeding is the first proceeding issued by ASIC against the defendants, with the proceeding brought by the ACCC being outside of the control of ASIC. As ASIC points out, its statutory mandate is different and in some respects broader than the ACCC’s. ASIC’s focus in this proceeding is on the protection of market integrity by pursuing the continuous disclosure contraventions which caused the market to trade on an uninformed basis and promoting confidence in corporate governance by pursuing the contraventions in respect of officers duties. And these are aspects of Mr Helou’s and Mr Hingle’s conduct which the ACCC could not deal with, and are broader than the earlier ASIC proceeding against MGRE.

249    Further, in my view there is no Anshun estoppel if only for the reason that the defendants are different. Contrary to other authority, I see no good reason to extend Anshun estoppel to favour defendants in a second proceeding when they were not sued in the first proceeding. If they have a legitimate complaint, this can be dealt with under broader abuse of process principles rather than inflating Anshun estoppel. But in any event, ASIC’s approach not to sue the defendants in the earlier ASIC proceeding does not rise to the necessary level of unreasonableness to invoke Anshun estoppel.

250    Further, Australian Competition and Consumer Commission v Swishette Pty Ltd [2018] FCA 55 has been referred to by the parties so I should say something about it. In Swishette, the ACCC commenced proceedings against Clinica Internationale Pty Ltd (in liquidation) (Clinica) and a director, Mr Laski alleging that Clinica contravened the ACL and Mr Laski was a person involved in the contraventions. Declarations were made in that proceeding in March 2016. On 30 March 2017, the ACCC commenced a second proceeding against Swishette Pty Ltd and Letore Pty Ltd, alleging that they were knowingly concerned in or a party to Clinica’s contraventions. The respondents contended that the ACCC was precluded from bringing the claims in the second proceeding on the basis of issue estoppel, Anshun estoppel and abuse of process. In summary, the respondents contended that the ACCC was estopped or the proceeding was an abuse of process, relevantly, on the basis that it was unreasonable for the ACCC not to have claimed in the first proceeding that Swishette Pty Ltd and Letore Pty Ltd were involved in the contraventions. Moshinsky J accepted that the ACCC had sufficient information to plead a case of involvement against Swishette Pty Ltd and Letore Pty Ltd earlier, but he said that that was not the same as saying that it was unreasonable of the ACCC not to do so. This is of course an application of the distinction in Johnson between whether a proceeding could have been issued earlier and whether it should have been issued earlier. Of course I have to apply that distinction to the circumstances before me so that little more is to be gained by further analysing Swishette.

Effluxion of time and prejudice

251    Mr Helou and Mr Hingle both seek to allege prejudice by relying on the passage of time between the earlier ASIC proceeding heard on 6 December 2017 and the institution of the current proceeding on 20 June 2019.

252    But the evidence of Mr Helou and Mr Hingle does not show that the effluxion of time has undermined the fairness of the conduct of the trial. Nor have they shown any forensic disadvantage. The evidence of Mr Helou only goes so far as to say that he has experienced personal distress, that he has spent time and money on developing new ventures, and that there may be a cost burden on Mr Helou in having to defend the current proceeding. The evidence filed by Mr Hingle does not identify any prejudice, beyond his personal sense of surprise, grievance and distress at having to defend the current proceeding.

253    Further, to the extent the defendants complain about an additional cost burden, this can be ameliorated by other orders. Moreover, I would note that in any event if ASIC had joined Mr Helou and Mr Hingle to the earlier ASIC proceeding as they appear to suggest should have been done, Mr Helou and Mr Hingle would have faced increased costs although I accept that some of them could have been spread across the other actions at the time.

254    I have taken into account what Mr Ward said in his affidavit (at [27]) that:

I consider that, had the ASIC 2019 Proceeding been brought in 2017 (when both the ACCC and 2017 ASIC Proceedings were commenced), the overall burden of the litigation on Mr Hingle would have been reduced, including because the preparatory work required in respect of each proceeding could have been done concurrently.

255    I have also taken into account what Ms Sleiman said in her affidavit (at [27]) that:

Based on my experience, it is my opinion that the time, cost and effort to be incurred by and on behalf of Mr Helou in defending this proceeding are likely to be significantly greater than if ASIC had sought a disqualification order against him as part of the 2017 ASIC Proceeding because:

(a)    The ACCC Proceeding and both ASIC proceedings (i.e. this proceeding and the 2017 ASIC Proceeding) are premised on the same underlying facts and would likely have been case managed together and efficiencies achieved (including, for instance, joint case management conferences and directions hearings, joint conferences and preparation with Mr Helou and counsel, and potentially a joint trial).

(b)    The same legal team would have been involved in Mr Helou’s defence of the ACCC Proceeding as the 2017 ASIC Proceeding. … [T]he team involved in the defence of the ACCC Proceeding is different to the legal team which will be involved in the defence of this proceeding, if it is not stayed.

(c)    As the claims against Mr Helou in the Webster Proceeding are limited to claims concerning the product disclosure statement issued by MGRE on 29 May 2015, Mr Helou and his legal team will need to undertake considerable additional work to reacquaint themselves with the time period at issue in this proceeding, including re-reviewing thousands of documents relevant to that time period.

(d)    As MGRE is not a party to this proceeding, the burden will fall onto Mr Helou to defend not only the claims against him, but also the primary claims against MGRE. That is because a number of the claims against Mr Helou are derivative of claims against MGRE.

256    But none of this is so compelling as would warrant a stay.

257    Likewise, although I accept that the defendants and their families will suffer additional disruption to their lives, distress and media attention, that does not rise to such a level, and ASIC’s conduct is not so egregious, as would warrant a stay.

ASIC’s conduct was not wholly unreasonable

258    Where it is alleged that successive proceedings amount to an abuse of process, a consideration of whether ASIC’s conduct is unreasonable is also relevant. ASIC has explained the reason for the delay between the earlier ASIC proceeding and the present proceeding, namely, that it was awaiting the outcome of the ACCC proceeding because it took the view that it was preferable to avoid running two disqualification proceedings by independent regulators against the same defendants simultaneously. In this respect let me say something further about the evidence.

259    The evidence shows that after the ACCC issued proceedings on 27 April 2017, the following occurred concerning ASIC’s Enforcement Committee.

260    On 25 September 2017, the Enforcement Committee requested the Project Team to return to the Committee in three months to report on the progress of the ACCC’s case and any action ASIC may wish to take in respect of Mr Helou and Mr Hingle.

261    On 19 February 2018, the Enforcement Committee suspended its investigation into Mr Helou and Mr Hingle whilst the ACCC proceedings progressed. The concept of suspension implicitly recognised that the investigation and the possibility of taking proceedings could be revived at a future date. The Project Team were requested to return to the Committee in October 2018 to consider whether ASIC should recommence its investigation.

262    The Enforcement Committee did not have the matter returned to it by the Project Team between 20 February 2018 and 31 March 2019 for the reasons described in the supplementary affidavit of Ms Jaffe affirmed on 12 September 2019.

263    It was accepted that the matter was not returned to the Enforcement Committee for consideration in October 2018.

264    Apparently, it was first considered for a return to the Enforcement Committee in anticipation of a standing meeting of the Enforcement Committee scheduled to take place on 26 November 2018. But this did not occur because ASIC had become aware through media reports published on or about 9 November 2018 which indicated that a settlement between the ACCC and Mr Helou was likely. As a consequence and as the Enforcement Committee’s directive on 19 February 2018 was that the matter be suspended “while the ACCC proceedings progress”, it was considered premature to bring the matters before the Enforcement Committee at the meeting on 26 November 2018.

265    According to Ms Jaffe, the matter was then considered for a return to the Enforcement Committee on 18 February 2019. But this did not occur because on 11 February 2019, Ms Iles briefed counsel to provide advice.

266    On 1 April 2019, the Enforcement Committee agreed that ASIC should institute proceedings against Mr Helou and Mr Hingle to seek periods of disqualification and declarations.

267    I cannot say that ASIC’s strategy was wholly unreasonable, but I can say that it was undesirable.

General observations concerning the usual conditions

268    Let me deal with the administration of justice aspect first and add some more general observations.

269    In terms of whether the administration of justice has been brought into disrepute, ASIC’s conduct has sailed close to the line. Nevertheless in all the circumstances this aspect has not been made out.

270    First, the earlier ASIC proceeding did not involve an adjudication on the merits. If it had there may have been greater force in some of the defendants’ points.

271    Second, the ACCC proceeding did not involve any adjudication on the merits. Again, if it had there may have been greater force in some of the defendants’ points. Moreover, and contrary to the defendants’ contention, I do not see that strictly speaking the present proceeding can be a “collateral attack” on my judgment in the ACCC proceeding.

272    Third, desirably ASIC should have brought the present proceeding a lot sooner notwithstanding the practical reasons that it advanced as to why it did not do so. But that does not establish that the administration of justice has been brought into disrepute by its failure to do so, even accepting that the overarching purpose of s 37M of the FCA was hardly seen by ASIC as the guiding light for its strategy.

273    Fourth, although I have been troubled about the failure to draw to my attention during the disposition of the ACCC proceeding what ASIC had reserved to itself, it is not so egregious as to justify staying the proceeding on this aspect of abuse of process.

274    In terms of whether ASIC’s conduct has been unjustifiably oppressive to the defendants, I have already written sufficient to indicate that there is no unjustifiable oppression or vexation. Moreover, and although it is not a complete answer, there are steps that I can take to visit upon ASIC any unnecessary additional costs incurred by the defendants. Further, in the events that have occurred and given the delay caused by ASIC, I may very well take the view that with the delay, additional stress and the disqualification already undertaken as part of the resolution of the ACCC proceeding, general and specific deterrence in the present context, assuming that ASIC’s case succeeds on establishing the relevant contraventions, may not justify the length and scope of the disqualification orders now sought by ASIC.

275    Let me now deal with two other matters.

276    First, the above analysis has largely been set in the framework of the two traditional conditions identified in UBS AG. But even if I were to travel beyond this, none of the defendants’ arguments whether separately or cumulatively would establish any other or broader basis to substantiate an abuse of process.

277    Second and relatedly, I still need to deal with the second defendant’s improper purpose case. And it is to that issue that I now turn.

Second defendant’s improper purpose case

278    Counsel for Mr Hingle advanced his improper purpose argument relying upon an inferential case based upon the following circumstances.

279    On 19 February 2018 the investigation into Mr Helou and Mr Hingle was suspended by the Enforcement Committee and it was determined that the Committee would reconvene in October 2018 to consider whether to recommence the investigation. But as Mr Hingle points out, there was a lacuna in the documentary evidence until 1 April 2019 when the Enforcement Committee decided to issue proceedings against Mr Helou and Mr Hingle. Mr Hingle’s counsel contended that no documentary evidence had been produced as to the October 2018 meeting at which recommencing the investigation was supposed to be discussed or of any other meeting prior to 1 April 2019 at which it was resolved to recommence the investigation. That is so, but what was going on has now been explained by Ms Jaffe as I have set out earlier.

280    Putting to one side some of this evidence, counsel for Mr Hingle contended that one well-known event that occurred during this lacuna was that on 1 February 2019 the final report of the Royal Commission was presented by the Commissioner to the Governor-General, with the report being tabled in Federal Parliament on 4 February 2019. In that report, according to counsel’s indelicate characterisation, ASIC was chastised for not taking enough cases to court. Let me be a little more precise. The report noted the Commissioner’s view that ASIC’s starting point in relation to enforcement appears to have been: “How can this be resolved by agreement?” The Commissioner noted what appeared to be a “deeply entrenched culture of negotiating outcomes rather than insisting upon public denunciation of, and punishment for, wrongdoing”. And the Commissioner recommended, in the context of his coercive investigation carried out on behalf of the Executive branch, that ASIC adopt as its starting point (and noted that ASIC said it now accepts its starting question should be): “Why not litigate?” So, in fairness to the Commissioner he was referring to the starting point and not the finishing point for considering what was to be the strategy in a particular case. It was hardly a clarion call heralding the dawn of yet another golden age for commercial litigators.

281    Now counsel went on to say that on 2 September 2019, Mr Hingle’s solicitors wrote to ASIC’s solicitors noting the lacuna in ASIC’s evidence, referring to the Royal Commission’s final report, and asking for an explanation for the lacuna. It is said that ASIC provided no response. Counsel then prayed in aid the popular statement of Lord Mansfield in Blatch v Archer (1774) 98 ER 969 at 970.

282    Counsel for Mr Hingle then submitted that having regard to the timeline and the lack of any adequate evidentiary response from ASIC, it is open for me to infer that the purpose actuating the initiation of this proceeding against Mr Hingle and Mr Helou was either to respond to the criticisms made by the Royal Commission or to respond to the public criticism thereafter. And if that inference is drawn, it is said that the Court’s processes are being used by ASIC for a collateral and improper purpose. Accordingly it is said that this proceeding is an abuse of process.

283    In my view there is not much to be said for the second defendant’s argument.

284    First, it seems to leave out of the equation Ms Jaffe’s explanation set out in her supplementary affidavit.

285    Second, there are other problems with the timeline. Mr James Peters QC for ASIC mined the minutiae of a “Responsive Documents Log” that detailed ASIC’s claims to legal professional privilege and struck on document 15 which identified legal advice being given internally on 30 January 2019 concerning anticipated legal proceedings against Mr Helou and Mr Hingle. This was of course before the final report had been presented and published.

286    Third, and putting to one side these not inconsiderable difficulties, ultimately all that counsel for Mr Hingle could advance was a superficial case on correlation rather than a convincing case on causation. And even if causation had been established, purpose is a different question although the former can be used to infer the latter.

287    In summary, the improper purpose case fails.

Other matters

288    I should note that in the Webster class action, Mr Webster has applied to stay that action against Mr Helou until the determination of the claims made against him by ASIC in the present proceeding. That position has its difficulties as it would fragment the disposition of the class action and lead to further inefficiency, delay and potentially inconsistent findings. After all, the class action is to be tried on 5 February 2020 and it is not feasible in the Webster class action to split any trial of a claim against one director from the trial of the claims against the other directors, let alone the trial of the claims against the corporate entities.

289    Further, as I propose to rule against the defendants’ stay applications, there is no good reason why there cannot be a joint trial of ASIC’s claims with the claims in the Webster class action. Now this would not work if Mr Helou, who is a common defendant to both, had the benefit of any penalty privilege. But he does not given the terms of s 1349 of the Corporations Act. I will hear further from the parties in this proceeding and the Webster class action concerning the steps that need to be taken for a joint trial to proceed on 5 February 2020.

290    Further, I considered whether ASIC’s belated pursuit of its case against the directors, in the knowledge of the existence of the Webster class action and the fact that it had been set down for trial on 5 February 2020, had such a capacity to disrupt the trial of the class action that I should stay ASIC’s action against the directors on broader administration of justice questions focusing more on the parties to and group members in the Webster class action than the parties to the present proceeding against the directors. The assumption here is that it is in the interests of all to have a joint trial as there is no penalty privilege question. I would not countenance separate trials given the expense, inconvenience and potential for inconsistent findings. But if a joint trial could not be accommodated on 5 February 2020 and had to be substantially postponed, then the lesser evil may have been to stay the present proceeding so that the Webster class action could proceed unencumbered. But in all the circumstances I do not think this is necessary. I can accommodate a joint trial of both proceedings without any or any significant delay.

291    But this all highlights a broader problem that needs to be addressed concerning the coordination and disposition of multiple regulatory actions and class actions concerning the same events, circumstances and parties.

292    In future circumstances of the present type I intend to adopt the following protocol in my docket. I say nothing about the procedures that other judges might adopt, which is a matter for them.

293    First, whoever is the first mover in any regulatory action, whether it be the ACCC or ASIC, I expect them to inform the Court at the first case management hearing of whether they have sued all targets and, if not, the timing for completion of that course but without necessarily identifying the additional targets. That procedure should also apply to any second regulatory mover.

294    Second, I expect such information to be updated by any moving regulator at both the pre-trial case management hearing and at trial or the hearing of any penalty phase of the particular regulatory action.

295    Third, if a defendant is common to two or more regulatory proceedings or perceives that they are likely to be so, that defendant should draw that circumstance to the Court’s attention in the first regulatory action. The stance of the potential second mover regulator can then be ascertained by the defendant or by the Court of its own motion by inviting the potential second mover to explain any likely timing for issue, the general nature of what might be issued and the potential for overlapping relief against one or more defendants across the actual and contemplated regulatory actions. And even if the potential second mover is recalcitrant about disclosing its intentions or can justify not being forthcoming with its intentions, the Court can slow down the first regulatory action until circumstances crystallise concerning the potential second regulatory action.

296    Fourth, if any one or more class actions have been instituted involving the same set of circumstances and this becomes known to a regulator, whether an actual or potential mover, that regulator should proceed efficiently and expeditiously to crystallise its position in terms of whether it is to institute, inter-alia, civil penalty proceedings, and if so against whom.

297    Fifth, no class action should be set down for trial without the Court being satisfied that it has obtained from the parties or any regulator(s) sufficient information concerning the four points just discussed.

298    Sixth, no regulatory proceeding should be set down for trial let alone any penalty phase heard without the Court being satisfied that it has obtained from the parties or any regulator(s) sufficient information concerning the first three points just discussed.

299    If these protocols had been followed in the present circumstances, two unsatisfactory aspects that have occurred would have been avoided.

300    First, when I dealt with the penalty phase in the ACCC proceeding I should have been made aware that ASIC was potentially intending to take disqualification proceedings against the same directors. I was not so made aware, although it seems to me that the directors were aware of or ought to have been aware of this potential risk. If I had known, I would not have dealt with the ACCC penalty phase at that time absent full information or the acquiescence of the parties. But none of this unsatisfactory state of affairs rises to the level of now justifying a permanent stay of the present proceeding.

301    Second, ASIC’s substantial delay in commencing the present proceeding had the tendency to disrupt the trial and disposition of the Webster class action. As I say, in the context where there are class actions on foot, it is incumbent on a regulator to move with due expedition absent good reason not to do so, so that if necessary the regulatory action can be disposed of first where natural persons are involved across both the regulatory action and the class action and penalty privilege questions come into play. It should go without saying that in such a circumstance the regulatory action must go first. Let me demonstrate this with a reductio ad absurdum technique. If the class action went first, the natural person defendant would be irreparably prejudiced under either of the apparent logic pathways. To properly defend the class action he would need to waive the penalty privilege, which would cause prejudice to him in the later regulatory proceeding. But if he maintained the privilege in the class action to avoid later prejudice in the regulatory proceeding, he would be prejudicing the proper conduct of his defence in the class action. So, under either logic pathway the logic of the class action going first is negated. QED: the regulatory action must go first. But if there is no penalty privilege question, a joint trial can be entertained. But to preserve that realistic option, the regulator should proceed in a timely fashion so that the necessary coordination can occur. In sum, whether or not there is a penalty privilege question, the regulator should proceed expeditiously where there are one or more class actions on foot. In the present context ASIC failed to do so. It has sought to justify its delay by the perceived pragmatism of a “wait and see” approach concerning the outcome of the ACCC proceeding in terms of saving expense or minimising the use of resources. But there were broader interests and issues involved, including the desirability of avoiding the two unsatisfactory aspects that I have just discussed.

(d)    Conclusion

302    For the above reasons, the defendants’ applications will be dismissed.

303    Now normally costs would follow the event, but in the circumstances I propose to modify that position. ASIC’s less than desirable approach has predictably generated the defendants’ applications. I consider it just that ASIC should not have its costs but that the defendants’ costs position be protected to some extent by treating their costs as costs in the cause.

I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.

Associate:

Dated:    4 October 2019