Federal Court of Australia

Australian Securities and Investments Commission v Marco (No 19) [2025] FCA 851

ORDERS

THE COURT NOTES THAT:

In these orders and the reasons for them the following persons are described as an Interested Party or Interested Parties:

A.    Robert Michael Kirman and Robert Conry Brauer, as interim receivers (in that capacity also described as the Receivers) and joint and several liquidators (in that capacity also described as the Liquidators).

B.    Cameron Shaw, Richard Albarran and Marcus Watters, the former joint and several administrators of AMS Holdings (WA) Pty Ltd (Receivers Appointed) (Administrators Appointed).

C.    Cameron Shaw, Richard Albarran and Marcus Watters, the former joint and several administrators of AMS Holdings (WA) Pty Ltd (Receivers Appointed) (Administrators Appointed) as trustee for AMS Holdings Trust.

D.    Giovanni Maurizio Carrello as the trustee in bankruptcy of Chris Marco.

E.    Patricia Maree Markopoulos.

F.    Tonpose Pty Ltd as trustee for Marks Autos Superannuation Fund ACN 008 850 057.

G.    Napoli Corporate Pty Ltd ACN 612 470 970.

H.    Jason Stone and Glenn Franklin, as

i.    special purpose receivers and managers of the Scheme Property (as described in the orders made on 2 September 2024) (in that capacity also described as the SP Receivers); and

ii.    special purpose liquidators of AMS Holdings (WA) Pty Ltd (ACN 164 700 485) (Receivers and Managers appointed) (In Liquidation) (in that capacity also described as the SP AMS Liquidators).

I.    Linda Anne Marissen.

THE COURT ORDERS THAT

1.    The time for service of the plaintiff’s interlocutory process dated 21 July 2025, the affidavit of Garth Fitzmaurice sworn 21 July 2025 and the plaintiff’s written submissions, be abridged to 7 pm on 21 July 2025.

2.    Until the later of 4:15pm on 19 September 2025 or the date on which the jury in INS 41 of 2023 The State of Western Australia v Marco & Marissen returns a verdict or a date fixed by further order, the following documents in the proceeding (and the information contained in those documents) be confidential for the purposes of rule 2.32(1)(b) and rule 2.32(3) of the Federal Court Rules 2011 (Cth) and prohibited from publication except to the persons identified in paragraph 3 of these orders and except as permitted by operation of paragraphs 5 and 6 of these orders:

(a)    the reasons for decision in Australian Securities and Investments Commission v Marco (No 13) [2023] FCA 83;

(b)    the interlocutory process, Fitzmaurice affidavit and written submissions referred to in paragraph 1 of these orders;

(c)    the transcript of the hearing on 22 July 2025; and

(d)    the reasons for these orders.

3.    The following persons may inspect the documents set out in paragraph 2 of these orders and publication of the documents to them is not prohibited:

(a)    the parties to the proceeding and their legal representatives;

(b)    the Interested Parties and their legal representatives;

(c)    any person who is the administrative or other support staff of a person referred to in the previous sub-paragraphs;

(d)    all necessary staff of the Court or the Supreme Court of Western Australia including any associate, any orderly and any court recording officer; and

(e)    a person who has made an application in accordance with paragraph 8 of these orders.

4.    The following persons may inspect Marco (No 13) and publication of Marco (No 13) to them is not prohibited:

(a)    Court House Capital, as litigation funder for the SP Receivers and SP AMS Liquidators;

(b)    any non-testifying investigative experts briefed by the SP Receivers and SP AMS Liquidators for the purpose New South Wales Supreme Court Proceeding No. 2024 / 00396645; and

(c)    from 19 September 2025, any other testifying experts briefed by the SP Receivers and SP AMS Liquidators for the purpose of New South Wales Supreme Court Proceeding No. 2024 / 00396645.

5.    The Registrar be directed:

(a)    to mark the documents set out in paragraph 2 of these orders as confidential on the Court file; and

(b)    refer any application under r 2.32(4) of the Rules to inspect a document identified in paragraph 2 of these orders to a judge of the Court together with a copy of these orders and the reasons for these orders.

6.    The plaintiff may give any person who has published or is or may be publishing Marco (No 13) notice of these orders by sending a copy of the sealed orders to an email address of that person or an employee or agent of that person.

7.    A person who has not been given notice in accordance with paragraph 6 of these orders is not prohibited from publishing Marco (No 13).

8.    Any party to the proceeding, Interested Party or person who is or was entitled to appear and be heard by the Court on the interlocutory application referred to in paragraph 1 may apply on 48 hours written notice to set aside or vary paragraphs 2 to 7 of these orders.

9.    There be no order as to the costs of and incidental to the plaintiff’s interlocutory application.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    These reasons concern an urgent interlocutory application the plaintiff (ASIC) made on 21 July 2025 for non-publication orders under Pt VAA of the Federal Court of Australia Act 1976 (Cth). The first defendant (Mr Marco) did not appear on the application, but made an informal written submission to the effect that he supports the application. The Receivers and Liquidators appeared on the application, but neither consented to nor opposed the orders sought. Mr Marco’s trustee in bankruptcy essentially provided a submitting notice except with respect to costs. The former administrators and liquidators of AMS and the trustees of the Marks Autos Superannuation Fund took no position on the application. Otherwise, given the urgency of the application, not all potentially interested parties made submissions or were given notice of the application. As explained later in these reasons, that is a matter I have taken into account in formulating the orders made on the application.

2    ASIC seeks an order for non-publication of the reasons for my decision in Australian Securities and Investments Commission v Marco (No 13) [2023] FCA 83; 164 ACSR 638 for the duration of the criminal trial and until the jury returns a verdict in proceeding Western Australia v Chris Marco and Linda Anne Marissen INS 41 of 2023 in the Supreme Court of Western Australia that is listed to commence on 28 July 2025. In the criminal proceeding Mr Marco and Ms Marissen have been charged on indictment with 46 counts of obtaining property with intent to defraud or by fraudulent means under s 409(1)(a) of the Criminal Code 1913 (WA). The Commonwealth Director of Public Prosecutions is conducting the prosecution on the indictment. ASIC referred the complaints to the CDPP. In substance, ASIC applies for the non-publication orders for an and on behalf of the prosecution which has a positive duty as de facto ‘minster of justice’ to protect the administration of justice and take such steps as the prosecution considers reasonably necessary to ensure that Mr Marco and Ms Marissen receive a fair trial.

3    ASIC contends that the reasons in Marco (No 13) are publicly available on certain websites and can easily be found using basic internet searches. The reasons are also published in the Australian Company and Securities Reports as Australian Securities and Investments Commission v Marco (No 13) (2023) 164 ACSR 638, but I assume that publication is not readily available without a subscription or purchasing a copy of the report. ASIC contends that I made certain findings in Marco (No 13) that are prejudicial to Mr Marco and Ms Marissen and, notwithstanding that jurors will be given the usual directions that they are not to conduct their own inquiries and must only have regard to the evidence adduced in the trial, there is a residual risk that a juror will not comply with those directions. That residual risk combined with the highly prejudicial nature of the findings in Marco (No 13) render it ‘necessary to prevent the proper administration of justice’ that the Court make a non-publication order of the kind ASIC seeks in its application.

4    For the reasons that follow, I am persuaded that a limited form of non-publication order of the kind requested is necessary to prevent prejudice to the proper administration of justice.

Applicable principles

5    Section 37AF(1)(b)(i) of the Federal Court Act provides that the Court may by making a suppression or non-publication order prohibit or restrict the disclosure or publication of information that relates to a proceeding before the Court that is information that comprises evidence or information about evidence. The reasons in Marco (No 13) meet that description.

6    Section 37AG(1)(a) provides that the Court may make a suppression or non-publication order on the ground that ‘the order is necessary to prevent prejudice to the proper administration of justice’. Section 37AE provides that in deciding whether to make a suppression or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

7    The applicable principles are well settled and were summarised by a Full Court (Allsop CJ, Wigney and Abraham JJ) in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) [2020] FCAFC 44; 275 FCR 377 as follows:

8    Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311 (Rinehart v Welker) at [27]; Rinehart v Rinehart (2014) 320 ALR 195 (Rinehart v Rinehart) at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; at Rinehart v Rinehart [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

9    The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651 (Hogan) at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 (Ibrahim) at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430 at [21].

8    In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 the High Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) said:

30    As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish [(1980) 43 FLR 129 at 133; 29 ALR 228 at 234], that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth “suggests Parliament was not dealing with trivialities”. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) “the administration of justice” spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

31    It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics[: A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 641].

Although these observations were made regarding the former s 50 of the Federal Court Act, they are equally applicable to the current Pt VAA of that Act.

9    Accepting that ‘necessary’ is a strong word, it can have shades of meaning and its meaning depends upon the context in which it is used: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52 at [8] (Bathurst CJ), [45] (Baston JA). In Australian Competition and Consumer Commission v BlueScope Steel Ltd [2019] FCA 1532 O’Bryan J explained that meaning of ‘necessary’ in s 37AG(1) in the following way.

32    … In the context of s 37AG(1), the test of necessity must be applied on a forward looking basis to criteria which are broadly defined (administration of justice, national security, safety of a person and undue distress and embarrassment). In the context of s 37AG(1)(a) specifically, the prejudice to the administration of justice that may be caused by the publication of information may be a possibility or a certainty; the effect of publication may be minor or serious; and the effect of a suppression or non-publication order may diminish the risk of prejudice or obviate it altogether: Ibrahim at [46] per Basten JA. The difficulties of making predictions about the effect that publication of information may have on such matters in the future was described by Basten J (as his Honour then was) in an earlier decision as engaging “an atypical aspect of the judicial function” involving “the application of ill-defined and imprecise conflicting principles, on the basis of speculation as to future consequences”: Commissioner of Police (NSW) v Nationwide News Pty Ltd (2007) 70 NSWLR 643 at [85].

10    Justice O’Bryan also observed that it is not uncommon for courts to make suppression or non-publication order in relation to material revealed in the course of one hearing which has the potential to interfere with another hearing. This circumstance arises in sequential trials of the same accused in respect of similar but different alleged offences or different accused in respect of the same alleged criminal activity. Nonetheless, juries should not be considered fragile or prone to prejudice. The mere possibility that a juror will have been exposed to prejudicial but irrelevant information prior to trial is not ordinarily sufficient to deprive an accused of a fair trial. This approach has not been affected by the internet which renders historic publications more easily searched and obtained: BlueScope at [34]-[36] (O’Bryan J), citing News Digital Media Pty Ltd v Mokbel [2010] VSCA 51; 30 VR 248, Nationwide News Pty Ltd v Qaumi [2016] NSWCCA 97; 93 NSWLR 384, R v Note Printing Australia Ltd (Ruling No 2) [2012] VSC 304, John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; 61 NSWLR 344 at [103]-[110] (Spigelman CJ), R v Glennon [1992] HCA 16; 173 CLR 592 at 603 (Mason CJ and Toohey J), Dupas v The Queen [2010] HCA 20; 241 CLR 237.

11    In an often-cited passage in John Fairfax Spigelman CJ described the modern approach to the ability of an accused to receive a fair trial in the context of substantial media publicity in the following terms.

103    There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.

104    As Mason CJ and Toohey J said in R v Glennon (1992) 173 CLR 592 at 603:

“… [T]he suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent’s prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”

105    As Toohey J observed in Hinch v Attorney General (Vic) (No 2) (1988) 164 CLR 15 at 74: “… It may be also that earlier decisions have given too little weight to the capacity of jurors to assess critically what they see and hear and their ability to reach decisions by reference to the evidence before them”.

106    The proposition was well stated by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2d) 279 at 291, in a passage subsequently cited with approval in Australia (Murphy v The Queen (at 99)):

“In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select 12 jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.”

107    Furthermore, as Kirby A-CJ said in R v Yuill (1993) 69 A Crim R 450 at 453–454:

“… Courts will assume that jurors, properly instructed, will accept and conform to the direction of the trial judge to decide the case solely on the evidence placed before them in court: see Demirok (1977) 137 CLR 20 at 22. There is an increasing body of judicial opinion, lately expressed, to the effect that whatever pre-trial publicity exists, jurors, when they take on the solemn responsibility of the performance of their duties in the courtroom, differentiate between gossip, rumour, news and opinion which they hear before the case and the evidence which they hear in the court in the trial for which they are empanelled.”

108    As Gleeson CJ said in R v VPH (Court of Criminal Appeal, 4 March 1994, unreported) at 7: “The jury will be given appropriate directions to confine their attention to the evidence that is put before them. Our entire system of the administration of criminal justice depends upon the assumption that jurors understand and comply with directions of that character”.

109    Finally, as McHugh JA said in Gilbert v The Queen (2000) 201 CLR 414 at 425 [31]: “… Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials”.

110    The perspective that jurors properly perform their task, are true to their oath and comply with a trial judge’s directions has repeatedly been applied in appellate courts over recent years. (See R v Milat; R v Bell; R v Long; R v Bijkerk [1999] NSWCCA 114; R v Dudko; R v D’Arcy; R v Burrell.)

12    Relevantly, ASIC contends that publication of the reasons in Marco (No 13) may prejudice Mr Marco’s defence in the criminal proceedings because there is a risk that a juror will read the reasons and be influenced by them and, thereby, there is a risk that Mr Marco will not receive a fair trial. The criminal proceedings are before the Supreme Court of Western Australia. The indictment contains charges for offences solely against a law of the State of Western Australia. When hearing the criminal proceeding, the Supreme Court will not be exercising the judicial power of the Commonwealth although the prosecutor will be an officer of the Commonwealth. The absence of a fair trial would plainly prejudice the administration of justice in Western Australia. However, the Supreme Court, and not the Federal Court, has general supervisory jurisdiction over the administration of justice in Western Australia: see, e.g., Cassaniti v Tax Agents' Board (NSW) [2009] FCA 619; 179 FCR 1 at [30]-[32] (Perram J). Therefore, a question may arise as to whether prejudice to the administration of justice in another jurisdiction falls within the concept of the administration of justice to which Pt VAA of the Federal Court Act is directed: see, e.g., Leigh v National Disability Insurance Agency [2025] FCA 623 at [33], [36]. Moreover, it might be thought that the logical and, perhaps more appropriate, forum for consideration of prejudice to the proper administration of justice in Western Australia is the Supreme Court of that State which is the court exercising jurisdiction in the criminal proceeding in question.

13    On the application before this Court, no party disputed the power of the Court to entertain an application for a suppression or non-publication order founded on prevention of prejudice to the administration of justice in criminal proceedings in a State court involving alleged offences against a law of the State arising from the conduct of proceedings in this Court; namely, prejudice to the administration of justice in a State arising from steps taken in this Court in proceedings involving the exercise of judicial power of the Commonwealth. As a consequence, I have not had the benefit of any submissions on this issue. Further, the urgency of the application does not permit it to be fully or completely explored before a decision is made on the application. Having regard to these matters, for the reasons that follow, I am prepared to accept that the Court has power to make an order of the kind sought on the ground that it is necessary to prevent prejudice to the proper administration of justice and that concept extends to preventing prejudice to criminal proceedings in a State court against a party to a proceeding in this Court for alleged offences against a State law where that prejudice arises from the exercise of the judicial power of the Commonwealth by this Court.

14    There are many examples of the Federal Court or High Court entertaining applications for injunctive relief in their original jurisdiction or applications for suppression or non-publication orders in pending proceedings on grounds relating to the administration of justice in criminal proceedings pending in a State court. For example, in Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188, Deputy Commissioner of Taxation (Cth) v De Vonk [1995] FCA 994; 61 FCR 564 and Watson v Commissioner of Taxation [1999] FCA 1796; 96 FCR 48 injunctive relief was entertained for interferences with criminal proceedings (alleged contempt of a State court) involving alleged offences against laws of the Commonwealth. In Cassaniti Perram J went a step further and entertained an application for an injunction to restrain an administrative inquiry by an officer of the Commonwealth on the ground of alleged interference with criminal proceedings in a State court involving alleged offences against laws of a State. Likewise, in Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 4) [2018] FCA 1243 (Forster J) and Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union (No 3) [2017] FCA 1279 (Middleton J) applications for suppression or non-publication orders were entertained for prejudice to criminal proceedings in a State court involving alleged offences against laws of a State. In none of the authorities involving criminal proceeding for alleged offences against laws of a State was any question raised that the Court lacked power to make an order founded on interference with the administration of justice in the relevant State. Similarly, in BlueScope (O’Bryan J) and Australian Securities and Investments Commission v Dunjey (No 2) [2023] FCA 610 (Feutrill J) applications for suppression and non-publication orders were entertained with respect to prospective criminal proceedings in an unknown jurisdiction and, although orders were not made, the Court’s power to make them was not called into question.

15    In Australian Competition & Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2011] FCA 938; 283 ALR 137 Lander J expressed the view that the ‘administration of justice’ referred to in the former s 50 of the Federal Court Act was the exercise of the judicial power of the Commonwealth by the Federal Court itself. Further, a party applying for a suppression or non-publication order was required to satisfy the Court that the order was necessary, in the sense described in Hogan, for the administration of justice by the Federal Court itself: Prysmian at [237]-[238]. Earlier, Lander J had expressed the view that it was not the role of the Court, or the informer rule in the context of public interest immunity, to protect a witness from lawful prosecution in other jurisdictions. The adverse consequences of prosecution in those other jurisdictions was not a matter of public interest in this jurisdiction: Prysmian at [189]-[191]. However, in Cantor v Audi Australia Pty Ltd (No 4) [2019] FCA 1633 Forster J doubted that Lander J intended to depart from what the High Court had said in Hogan to the effect that the administration of justice to which the former s 50 referred was that ‘involved in’ the exercise by the Federal Court of the judicial power of the Commonwealth. Justice Forster said that the choice of language in Hogan may describe a wider set of circumstances than a strict reading of Prysmian (at [238]) might suggest. Justice Forster was of the view that the ‘proper administration of justice’ encompasses circumstances arising outside proceedings commenced in this Court but affected or impacted by the conduct of proceedings in this Court: Audi (No 4) at [36]-[37]. Justice Goodman subsequently adopted and applied the reasoning of Forster J in Cantor v Audi Australia Pty Ltd (No 8) [2025] FCA 134.

16    I take the view that the reasoning of Forster J in Audi (No 4) is consistent with the reasons of the High Court in Hogan and is also consistent with the approach taken in the weight of the authorities to which reference has been made. I also accept the explanation of Forster J of the manner in which the reasons of Lander J in Prysmian (at [237]-[238]) should be understood. I consider the reasons of Forster J in Audi (No 4) are not manifestly incorrect and, in the absence of a Full Court authority to the contrary, should be followed. Therefore, I consider this Court has power to make a suppression or non-publication order to prevent prejudice to the proper administration of justice in criminal proceedings in a State court involving offences against a law of a State where the prejudice or risk of prejudice arises from conduct in proceedings in this Court involving the exercise of the judicial power of the Commonwealth.

Relevant facts

17    The background to this proceeding has been set out and explained in a number of previous reasons for decisions of McKerracher J and me and it is unnecessary to repeat them at any length. In short, Mr Marco and the second and third defendant (AMS and AMS as Trustee for the AMS Holdings Trust) were found to have operated an unregistered managed investment scheme contrary to s 601ED of the Corporations Act 2001 (Cth). The Scheme is described in the preamble to orders of the Court made on 7 December 2020 in the following terms:

For the purposes of these orders, 'the Scheme' means the managed investment scheme operated by the each of the defendants, whereby between 1 January 2014 and 31 October 2018:

(a)    the first defendant obtained moneys from investors;

(b)    the first defendant pooled the moneys in bank accounts, including the following accounts:

(i)    Westpac Banking Corporation – BSB 036406, Account number 239817;

(ii)    Westpac Banking Corporation – BSB 037131 Account number 684106;

(iii)    Westpac Banking Corporation – BSB 037 131 Account number 693360;

(iv)    Westpac Banking Corporation – BSB 037 165 Account number 857175; and (v) Westpac Banking Corporation – BSB 736 053 Account number 654708;

(c)    the first defendant represented and/or agreed with investors that the moneys were to be used as a proof of funds for investments and/or to fund investments;

(d)    the first defendant represented and/or agreed with investors that in return for advancing funds, investors would receive a right to interest payments;

(e)    the first defendant was to use the moneys as proof of funds for investments and/or to fund investments, with a view to generating a profit out of which interest payments were to be paid to investors;

(f)    the first defendant transferred moneys to the second and/or third defendants with a view to purchasing real and/or personal property;

(g)    the real and/or personal property of the second and/or third defendants purchased with the moneys that were transferred was to be available to meet liabilities to investors;

(h)    the first defendant, second defendant and/or third defendant transferred, or expended moneys obtained from investors for private gain and/or for the private gain of related parties or associates; and

(i)    the investors did not have day to day control over the use of the moneys.

18    Marco (No 13) concerned an application that the Receivers and Liquidators made seeking directions relating to the winding up of AMS and the Scheme and the distribution of the assets and property of Mr Marco, AMS and the Scheme considered to be property of the Scheme. As was explained in Marco (No 13) (at [31]), the application did not proceed on formal proof of facts in the ordinary sense. The Court made its decision on the basis of the facts as put forward (in whatever form) by the Receivers and Liquidators. On an application of that nature the Court must be satisfied that there is a reasonable and proper basis for making the directions sought. On the basis of the evidence before the Court on that application I was satisfied that the Liquidators would be justified in treating the Scheme as a ‘Ponzi scheme’: Marco (No 13) at [3], [91].

19    In the course of summarising the evidence upon which the Receivers and Liquidators had relied, I explained the meaning of a Ponzi scheme in the following terms.

84    In the Liquidators' Report, Mr Brauer expresses the opinion that the Scheme was operated as a Ponzi scheme. That epithet derives its name from the fraudster Charles Ponzi, who operated an elaborate and deceitful investment scheme involving promised returns for investment in international mail coupons in the 1920s: see Ponzi v Fessenden (1922) 258 US 254. The principal feature of a Ponzi scheme is that 'returns' to 'investors' of the scheme are paid out of the contributions of capital of other 'investors'. Therefore, to maintain the scheme the operator must continually obtain additional funds from existing or new 'investors'.

20    After summarising the evidence, I concluded:

91    On the basis of Mr Brauer's evidence, I am satisfied that it is reasonable for the Liquidators to believe that the Scheme, as operated by Mr Marco, had the following additional features to those described in the preamble to the orders of 7 December 2020.

(a)    The vast majority of returns (or interest) paid to Scheme members was paid out of deposits (capital) of other Scheme members.

(b)    No returns (or interest) were paid to Scheme members from revenue derived from currency trading or private placement projects.

(c)    No Scheme member funds were applied in private placement projects that could be characterised as an asset or investment under Australian Accounting Standards. That is, no funds were applied towards a genuine investment in a private placement project.

(d)    The Scheme as operated by Mr Marco had no prospects of success or generating sufficient revenue to meet the putative contractual obligations to Scheme members in the Scheme.

(e)    That some Scheme members withdrew capital or received returns exceeding the capital contributed is due to 'dumb luck'.

These additional features of the Scheme render it a 'Ponzi scheme'.

21    I also expressed the view that there is little doubt that funds acquired by the operator of a Ponzi scheme from an ‘investor’ are obtained by fraud and that such funds would be held on trust by the operator for the benefit of the innocent investor. Therefore, the Liquidators would be justified in treating all funds Mr Marco and (or) AMS received from ‘investors’ as sums held on trust for those investors: Marco (No 13) at [111].

22    In the criminal proceedings in the Supreme Court, amongst other things, the prosecution alleges that, at the time he received the complaint investors’ funds, Mr Marco had no intention of investing those funds in the way he had represented to the investors he would invest those funds. Accordingly, the funds were obtained by deceit and fraudulent means. ASIC submits that, although the prosecution will not call the same witnesses as those upon which the findings in Marco (No 13) were based, the prosecution will adduce forensic accounting evidence of a similar nature to a similar effect. Therefore, there will be a significant overlap in terms of the kind of evidence and the nature of the issues between the criminal proceedings and those that were under consideration in Marco (No 13).

23    Notwithstanding that, in point of law, I made no findings to the civil standard to the effect that Mr Marco operated the Scheme as a Ponzi scheme or that he had engaged in fraudulent conduct and that would be apparent to a careful reader of the reasons in Marco (No 13), I accept that a person reading the reasons without legal training or expertise may not appreciate the subtle difference between finding that, on the evidence, the Receiver and Liquidator was justified in treating the Scheme as a Ponzi scheme and finding that that the Scheme was, in fact, a Ponzi scheme. Even taking into account the true nature of the findings in Marco (No 13), it is a decision of a judge of this Court to the effect that there was sufficient evidence to justify an accounting professional’s opinion that the Scheme was a Ponzi scheme and to treat the funds acquired as held on trust because the funds were acquired fraudulently.

Consideration

24    The nature of the evidence, the discussion of the evidence, the findings and conclusions in Marco (No 13) would be highly prejudicial if these matters came to the attention of a juror in the criminal proceeding. Unlike media reporting of ‘allegations’ or ‘assertions’, the material in the reasons in Marco (No 13) are findings made by a judge based on evidence. Notwithstanding standard directions given to a jury and that juries should not be considered fragile or prone to prejudice, it is difficult to accept that a juror would not be influenced by the views of another judge expressed in reasons dealing with similar evidence and issues to those in a criminal trial. The inevitability of influence on the mind of a juror arises notwithstanding that it can be assumed that the jury will listen to directions and faithfully attempt to reach a decision by reference to the evidence before them.

25    The potential for certain kinds of information to influence a jury notwithstanding the usual directions may be a basis for considering that suppression and non-publication orders are necessary: e.g., Qaumi. In Country Care Group it was accepted that there may be circumstances in which a non-publication order is necessary to prevent prejudice to the proper administration of justice because the publication of a judgment may give rise to a risk of prejudice to an accused person in a forthcoming criminal trial: Country Care Group at [15]. See, also, Mokbel at [68]-[73]. Taking into account that the question of necessity to prevent prejudice is a forward-looking enquiry it involves an assessment of the risk of prejudice to the administration of justice, that assessment may range from speculative possibility to virtual certainty and the gravity of the prejudice may range from minor to substantial. Consequently, a non-publication may be necessary where the probability of the information coming to the attention of a juror is relatively low but the consequence if it were to come to do so is significant or substantial. Conversely, a non-publication order it may not be necessary even if the probability is relatively high where the consequence is minor and may be assumed to be mitigated through the usual directions to a jury.

26    In Country Care Group the Court was not satisfied that a non-publication order was necessary because it was not considered likely that a juror would search for and read the judgment before the commencement of the trial or that a juror would disobey the direction once empanelled taking into account it would be an offence to do so under the applicable State law. However, a third and more fundamental reason was that, unlike the reasons in Marco (No 13), there was no sound basis for the assertion that a juror might be improperly influenced by prejudicial material: Country Care Group at [16]-[24]. A similar approach and analysis was undertaken to the risk of prejudice to the administration of justice in Mokbel to conclude it was not necessary to make an order directing the removal of certain historical articles from newspaper websites: Mokbel at [80]-[94]. The absence of any real or appreciable risk of prejudice to a fair trial was also a significant factor against the necessity of an order in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 2 – Application for non-publication orders) [2021] FCA 787 (Wigney J). However, the potential for findings of a judge of this Court to come to the attention of a jury and have a greater impact than information about evidence, submissions and media comment was a decisive factor in favour of the necessity of a non-publication order in ACCC v CFMEU (No 3) at [34]-[36] (Middleton J).

27    I have concluded that a non-publication order with respect to the reasons in Marco (No 13) is necessary for four main reasons.

(1)    As already mentioned, the findings and conclusions expressed in Marco (No 13) have the potential to have a greater impact on a jury than other forms of information that are in the public domain. The information in Marco (No 13) is highly prejudicial.

(2)    Accepting that it can be assumed that the jury will follow the usual directions given to it and that deliberate failure to follow directions or other misconduct would expose that juror to prosecution for contempt of court: see, e.g., Attorney General for Western Australia v Marijanich [2024] WASC 312, it should be acknowledged that there remains a real and appreciable risk that a juror will not follow the trial judge’s directions. There are many examples of cases in which a trial judge has had to discharge a juror or a jury due to misconduct of a kind that was not able to be cured by further or other directions to the jury. This proceeding and the criminal proceeding have been the subject of a high degree of public and media interest and reporting. Heightened publicity and interest in criminal proceedings naturally increases the temptation for jurors to undertake their own enquiries. Having regard to well-publicised examples of misconduct: e.g., Director of Public Prosecutions (ACT) v Lehrmann (No 5) [2022] ACTSC 296; 373 FLR 253, I regard the risk that a juror will ignore directions and undertake internet searches is real and not far-fetched, fanciful or speculative.

(3)    The reasons in Marco (No 13) were published in March 2023. There has been historical media coverage and reporting of that decision and those reasons. The evidence before the Court does not include any of those reports and, therefore, it is not possible to form a view on the extent to which they have reproduced the findings made in Marco (No 13), but it is evident that historical articles are readily available. This may be seen as a factor that could render any non-publication order inutile if the same or substantially the same information is available from another different source, but the evidence does not permit that conclusion to be made. In general, media reporting is information of a character that is less likely to influence a jury than findings of a judge. Otherwise, the circumstance that there has been publication and dissemination of the reasons in Marco (No 13) for more than two years militates against any significant interference with the principle of open justice.

(4)    Another factor that I consider to be of significance is that the application is made, in substance, by the prosecution in the criminal proceeding. Plainly, by making the application, the prosecution has formed the view that a non-publication order is ‘necessary’ to ensure that Mr Marco and Ms Marissen receive a fair trial. It is appropriate to give due consideration and weight to the view of the prosecution given the special duties and responsibilities of the prosecution in criminal proceedings.

28    Taking into account there is an appreciable risk of discovery of the reasons and that significant degree of prejudice would result from that discovery, I am of the view that it is necessary for the proper administration of justice to restrict public access to the reasons in Marco (No 13) for the duration of the criminal trial and until the jury has returned a verdict. For the same reasons, it is necessary for the proper administration of justice that publication of the interlocutory application, affidavit in support, written submissions, transcript of the hearing on 22 July 2025 and these reasons be prohibited from publication until a verdict is returned.

29    ASIC has proposed a form of orders that take into account that there has already been publication of the reasons in Marco (No 13) and the historical articles. Due to the time that has passed since the reasons were published in March 2023, the reasons may be publicly available in numerous locations and (or) wholly or partly reproduced in newspaper or other media reports. The affidavit in support of the application sets out the results of internet searches using search terms relating to the subject matter of the criminal proceeding. These results suggest that there are at least two websites at which the reasons in Marco (No 13) are readily available. The orders will be made in a form that does not prohibit publication unless the person publishing the reasons has been given notice of the orders. That form of order mitigates against the potential for inadvertent contravention of the order and exposure to prosecution for an offence under s 37AL of the Federal Court Act or for contempt of court.

30    The orders also take into account that there are interested parties which require continuing access the reasons in Marco (No 13) and to be able to publish or disclose the reasons to others for purposes unconnected to the criminal proceeding. Further, due to urgency there was not an opportunity to provide notice of the application to all potentially interested parties. Therefore, there will be liberty for any party, interested party or any person who would have had a right to appear and be heard on the application under s 37AH(2) of the Federal Court Act to apply to vary or set aside the orders.

31    No orders for costs were sought on the application and it is appropriate that there be no orders as to those costs.

Associate:

Dated:    23 July 2025

SCHEDULE OF PARTIES