Federal Court of Australia

Australian Securities and Investments Commission v Palmer [2026] FCA 573

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant to pay the First Respondent’s costs of the application, to be assessed on a lump sum basis as agreed or as fixed by a Registrar of the Court.

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

REASONS FOR JUDGMENT

ANDERSON J:

introduction

1    The applicant, the Australian Securities and Investments Commission (ASIC), seeks leave to appeal from part of the judgment in Palmer v Australian Securities and Investments Commission [2025] FCA 1025 (PJ), in which the primary judge relevantly refused orders striking out paragraphs [70]-[71] of the respondent’s proposed Second Further Amended Statement of Claim (the proposed 2FASOC, hereafter referred to as the pleading), and consequentially refused to strike out [37], [43]-[45], [50]-[51], [67]-[69] and Annexure B of the pleading.

2    ASIC contends that the primary judge erred:

(a)    in treating an allegation that a third party acted for certain purposes when instigating ASIC to procure a prosecution as an allegation that an individual (or individuals) within ASIC applied knowledge of those purposes as “additional considerations” in deciding to exercise compulsory investigative powers, for the purposes of the allegations in [70]-[71] of the pleading (proposed ground one); and

(b)    by reason of the error in failing to strike out [70]-[71] of the pleading (and for no other reason), in holding that it was unnecessary to consider whether [37], [43]-[45], [50]-[51], [67]-[69] and Annexure B of the pleading ought to be struck out (proposed ground two).

3    ASIC also seeks leave to appeal from the costs orders made on 5 September 2025, based on the outcome of the PJ.

background

4    The present application arises out of a proceeding in which the respondent (Mr Palmer) seeks to impugn the legality of an examination conducted in late 2017 under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) (primary proceeding). Mr Palmer seeks declarations that the examination was unlawful, orders restraining use of the transcripts of the examination and other related relief. He does so in the context of extant criminal proceedings against him in the Magistrates’ Court of Queensland (Proceeding MAG-44652/20(0) (Cosmo Prosecution)), of which the Commonwealth Director of Public Prosecutions (CDPP) has carriage.

5    On 22 May 2025, on an application filed by ASIC on 30 April 2025 (first strike out application), the Court struck out paragraphs [37], [43](c), [51], [70] and [71] of the earlier Amended Statement of Claim (ASOC), with leave to replead.

6    Mr Palmer repleaded in the form of a Further Amended Statement of Claim (FASOC). By application dated 14 July 2025, ASIC made a further application to strike out various paragraphs of the FASOC. Mr Palmer sought to address the issues raised by ASIC in the proposed 2FASOC prior to the hearing of ASIC’s application: at PJ [13]. ASIC accepted that the pleading addressed some (but not all) of the issues raised. As a result, the oral hearing of the interlocutory application only concerned the remaining issues (and was heard on the basis that the relevant pleading was the proposed 2FASOC). The remaining paragraphs which ASIC sought to strike out were [37], [43] – [45], [50]-[51], [67]-[69], [70]-[71], and Annexure B. It was accepted by both parties that the central paragraphs were [70]-[71] and that the disposition of the other paragraphs and Annexure B depends on the outcome regarding [70]-[71]: PJ [15]-[17].

7    ASIC contends that Mr Palmer’s case, as advanced in the pleading, involves the following broad allegations:

(a)    a background of commercial dealings since 2005 between Mr Palmer, Mineralogy Pty Ltd and entities associated with CITIC Ltd (CITIC entities) concerning magnetite ore mining operations in the Pilbara region of Western Australia: pleading [17]-[36];

(b)    that in around 2010, CITIC determined to renegotiate the terms of its existing agreements with Mineralogy in a way that was more favourable to CITIC and less favourable to Mineralogy and Mr Palmer: pleading [37]-[38];

(c)    that from August 2010, CITIC formed a group of senior executives and advisors, referred to as the “Fulcrum Group”, to pursue the “Fulcrum Purposes”, including the renegotiation of the existing agreements with Mineralogy and undermining Mineralogy’s other commercial interests: pleading [39]-[44];

(d)    that since then, CITIC has used legal proceedings and complaints to regulators and law enforcement to prosecute the “Fulcrum Purposes”: pleading [45]-[49]; and

(e)    that in pursuing that course, CITIC “instigated ASIC to procure the Cosmo Prosecution” and ASIC “was aware of the Fulcrum Purposes”: pleading [50]-[52].

8    ASIC also relies on Annexure B to the pleading, which contains allegations concerning commercial dealings in 2016 and 2017 and resulting court proceedings in 2018 to 2023. The asserted relevance of these matters is as “retrospectant evidence” of the CITIC entities’ states of mind at the time the Fulcrum Group was allegedly formed, in no later than August 2010 — that is, states of mind formed a decade earlier than the conduct said to evidence that formation.

9    ASIC contends that based on the above matters, Mr Palmer alleges three forms of unlawful conduct:

(a)    first, that the examination of Mr Palmer conducted in 2017 was unlawful because, at that time, it appeared to ASIC that Mr Palmer had committed an offence and ought to be prosecuted, within the meaning of s 49(1) of the ASIC Act: pleading [53]-[60];

(b)    second, that the dissemination and use of Mr Palmer's examination transcripts by ASIC and the CDPP was unlawful: pleading [61]-[66]; and

(c)    third, that the examination of Mr Palmer was also unlawful because ASIC's investigation had “as an additional consideration” both the “Fulcrum Purposes” and/or “ASIC's considerations as alleged in paragraph [51(f)]” of the pleading: pleading [67]-[71].

10    On 27 August 2025, the primary judge dismissed ASIC’s interlocutory application. Leave was granted to Mr Palmer to amend in the form of the pleading (being the proposed 2FASOC).

11    On 7 November 2025, the primary judge granted Mr Palmer leave to amend the pleading in the form of the Third Further Amended Statement of Claim (3FASOC). On 14 November 2025, ASIC filed a Further Amended Defence in compliance with the primary judge’s orders of 7 November 2025.

12    On 24 February 2026, the primary judge made orders temporarily staying the primary proceeding pending the hearing and final determination (including any appeals) of the Cosmo Prosecution or until further order: Palmer v Australian Securities and Investments Commission [No 3] [2026] FCA 141.

APPELLATE REVIEW - PRINCIPLES

13    The decision of the primary judge was interlocutory, and accordingly ASIC requires leave to appeal: Federal Court of Australia Act 1976 (Cth) s 24(1A). The principles concerning a grant of leave are well-settled. ASIC must satisfy the Court of two key matters: (1) whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant reconsideration by the Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-399; [1991] FCA 655 (Sheppard, Burchett and Heerey JJ); Ashby v Slipper (2016) 241 FCR 55, 61-62 [41]; [2016] FCAFC 63 (Mansfield, Siopis and Gilmour JJ).

14    ASIC does not have to demonstrate that the proposed grounds of appeal are strongly arguable, or that the proposed appeal will or is likely to succeed; ASIC need only demonstrate there is sufficient doubt about the correctness of the decision to warrant appellate reconsideration. However, as the decision of the primary judge was discretionary, the House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (Dixon, Evatt and McTiernan JJ) standard applies. Therefore, it is not sufficient that an appellate court may exercise the discretion differently. ASIC must establish that the decision of the primary judge was infected by specific error because the judge acted upon a wrong principle, mistook the facts, took into an account an irrelevant matter or failed to take into account a relevant consideration.

15    ASIC contends that both proposed grounds of appeal one and two disclose error in the House v  The King sense, which — although concerning a matter of practice and procedure — is the sort of error that an appellate court should correct.

16    The same matters guide the determination of leave to appeal against a decision concerning a matter of practice and procedure, including a decision on a strike-out application: Roberts-Smith v Roberts [2022] FCA 524 at [13]-[17] (Wigney J); Oswal v Burrup Fertilisers Pty Ltd (2011) 85 ACSR 531, 534-535 [8]-[14]; [2011] FCAFC 117 (Mansfield and Foster JJ; Dowsett J agreeing on this point), Kent Projects Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2025] FCA 1221 at [9]-[13] (Snaden J). However, appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, and, the decision does not finally determine a party’s substantive rights, has been said to require the exercise of particular caution: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 78 [53]; [2006] HCA 46 (French CJ, Gummow, Hayne, Heydon and Kiefel JJ), Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170 at 177 (Gibbs CJ, Aikin, Wilson and Brennan JJ), Roberts-Smith, [17]; Burrup Fertiliser at [11]-[12], Kent at [32].

ASIC’s submissions

17    First, ASIC submits that the primary judge’s reasons for refusing to strike out [70]-[71] of the pleading discloses error which runs contrary to well-established principles of pleading practice for the pleading of serious allegations of subjective, improper purpose in the exercise of statutory powers: Roberts-Smith at [17] (Wigney J). ASIC submits this is a point of general principle and that, therefore the decision is attended by an error that meets the standard set down in Hogan.

18    Second, ASIC submits that if leave were refused, it would suffer substantial injustice. ASIC submits that this is so despite the fact that ASIC has now filed a defence. Supposing the decision to be wrong, the outcome for ASIC (if leave were refused) is that it may be required to complete interlocutory steps in relation to, and contest at trial, the allegations in the impugned paragraphs and Annexure B of the pleading. ASIC submits that these allegations concern complex, commercial dealings, to which ASIC was not a party, which took place over a period of more than a decade. ASIC submits that contesting those pleadings may cause ASIC to suffer substantial delay in the resolution of the proceedings brought against it and to incur additional costs. Further to this point, ASIC submits that as the CDPP has carriage of the Cosmo Proceeding, Mr Palmer’s submission that ASIC will likely undertake similar work as part of the Cosmo Proceeding is incorrect.

19    Third, ASIC submits that the substantial injustice that it will suffer is not affected by the fact that the primary proceeding has been temporarily stayed. When the stay is lifted, the primary proceeding continues and ASIC will be required to contest those paragraphs of the pleading that it sought be struck out. As a consequence, there remains utility in this appeal being determined, notwithstanding the temporary stay of the primary proceeding.

Proposed Ground One – Insufficient pleading of knowledge

20    By proposed ground of appeal one, ASIC contends that the primary judge erred in treating an allegation that a third party (the CITIC parties) acted for certain purposes when instigating ASIC to procure a prosecution, as an allegation that an individual (or individuals) within ASIC applied knowledge of those purposes as “additional considerations” in deciding to exercise compulsory investigative powers, for the purposes of the allegations in [70]-[71] of the pleading: PJ [29].

21    ASIC contends that [70]-[71] of the pleading concern Mr Palmer’s allegation that the examination conducted under s 19 of the ASIC Act was unlawful because the law recognises (or ought to recognise) a “further companion principle”, referred to as the “Sole Purpose of Investigating Principle”, limiting the scope of compulsive investigative powers such as those in ss 19 or 49 of the ASIC Act; and that ASIC’s “investigation had, as an additional consideration, the Fulcrum Purposes” and/or “ASIC’s considerations as alleged in paragraph [51(f)]” of the pleading.

22    ASIC contends that it is evident from [51(f)] and [70]-[71] of the pleading that Mr Palmer's case remains that ASIC has acted for improper purposes. Those paragraphs allege:

(a)    ASIC was aware of the Fulcrum Purposes;

(b)    the Fulcrum Purposes were “an additional consideration” in ASIC’s investigation of Mr Palmer; and

(c)    ASIC pursued “political outcomes” as “an additional consideration” in its decision to investigate Mr Palmer and in conducting that investigation.

23    ASIC contends that these are evidently pleas of knowledge, intention and purpose relating to ASIC itself. Because of this, and because ASIC is a body corporate (see s 8(1) of the ASIC Act), these pleas require Mr Palmer identify the human actors whose states of mind are to be attributed to ASIC. To that end, ASIC relies on the requirement in r 16.43(1) of the Federal Court Rules 2011 (Cth) that “[a] party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies”. “Condition of mind” is defined to include “knowledge”: FC Rules r 16.43(3)(a).

24    ASIC refer to the observations of Rangiah J in Lamont v University of Queensland [No 2] [2020] FCA 720 at [81] that “[a] mental state … can only be attributed to a corporation by attributing it to one or more of the corporation’s officers or employees”—that is, one or more human actors. Rangiah J’s statement was made in the context of considering s 793(2) of the Fair Work Act 2009 (Cth) which provides that it is necessary, to establish the state of mind of a body corporate, to show that a person specified in s 793(1) - being relevantly an officer, employee or agent (an “official”) – “had the relevant state of mind and engaged in conduct on behalf of the body corporate within the scope of his or her actual or apparent authority”: at [81]. Rangiah J went onto say at [82] that “suggests that the identity of the relevant individual or individuals should be pleaded and not merely particularised.”

25    ASIC also rely upon the observations of the Full Court of this Court in CFMEU v BHP Coal Pty Ltd [2017] FCAFC 50 (Greenwood, Flick and Rangiah JJ), where the Full Court, also considering the requirements of s 793 of the Fair Work Act, relevantly stated:

(a)    “A mental state such as knowledge can only be attributed to a corporation by attributing it to one or more of the corporation’s officers or employees” at [60], citing Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563at 582–583.

(b)    “[A] party pleading the imputed knowledge of a company must identify in its pleading any agent, officer, employee or other person whose relevant knowledge the pleader seeks to attribute to the company, and must identify such knowledge”: at [61] citing Lee v Westpac Banking Corporation [2015] FCA 467 at [23]–[25] (Dowsett J).

(c)    Where a pleading fails to identify the relevant individual at all, then it is immaterial whether one characterises their identity as a material fact or particulars: at [62].

26    ASIC submits that the primary judge was wrong to reject its contention that [70]-[71] of the pleading are ambiguous within the meaning of r 16.21(1)(c) of the FC Rules and fail to comply with r 16.43 of the FC Rules and settled pleading principles.

27    ASIC submits the primary judge’s reasoning at PJ [29] discloses error in that the primary judge acted on a wrong principle. ASIC’s contention proceeds as follows. First, that the primary judge held that the allegations pleaded at [70]-[71] – ASIC’s application of knowledge of the Fulcrum Purposes “as an additional consideration” – is sufficiently pleaded, because of the earlier allegation at [51]. Second, the primary judge treated an allegation that CITIC, a third party body corporate with no institutional relation to ASIC, “instigated” ASIC to procure the prosecution, as being equivalent to ASIC itself having treated the Fulcrum Purposes as an additional consideration in exercising its statutory compulsory powers in respect of Mr Palmer. Third, this is inconsistent with the above-stated principle that, where a party alleges a body corporate had a particular state of mind, the party must identify in their pleading, the agent, officer, employee or other person(s) whose relevant knowledge the party seeks to attribute to the company, and the basis for that attribution.

28    ASIC submits that the primary judge, by focusing on CITIC’s conduct as identified above, effectively exempted Mr Palmer from this well-established requirement. As a consequence, the primary judge erred in refusing to strike out a pleading that lacks any identification of who at ASIC was “instigated” to undertake the impugned investigation which, in the context of an allegation of subjective improper purpose held by a body corporate, is required to be pleaded.

29    ASIC submits that the practical consequence of that error is that there is no pleading of how any person(s) at ASIC who it is alleged took impugned steps in the investigation (including issuing the s19 Notice to Mr Palmer), held a state of mind relevant to Mr Palmer’s allegations of improper purpose; much less how a state of mind held by those persons is said to be attributed to ASIC or held by ASIC itself. ASIC submits that this error is not merely technical; it is material and prejudicial to ASIC as the deficiencies in [70]-[71] go to a core aspect of Mr Palmer’s case.

Mr Palmer’s submissions

30    Mr Palmer submits that the following matters are significant in the context of the current application:

(a)    ASIC’s leave application, and any appeal, would turn entirely on the question of whether or not two paragraphs of the 2FASOC should have been struck out, which the primary judge in his discretion declined to do. The remaining relief sought in the proposed appeal depends entirely on the answer to that question;

(b)    the 2FASOC was superseded by the filing of a new pleading (3FASOC) in accordance with leave granted on 7 November 2025; and

(c)    ASIC did not challenge the decision to grant leave to file the 3FASOC and, instead, filed a defence to that pleading on 14 November 2025.

31    Mr Palmer submits that these matters are significant because they demonstrate that the proposed appeal would essentially require the Full Court to adjudicate upon the correctness of the primary judge’s discretionary decision not to strike out two paragraphs of a previous pleading, long since superseded by a subsequently filed pleading – to which ASIC has filed a defence.

32    Mr Palmer submits that ASIC has failed to make out the ground that the decision of the primary judge is attended by sufficient doubt to warrant potential reconsideration by a Full Court. That is so, in Mr Palmer’s submission, because the primary judge heard detailed submissions which persuaded him that, once the structure of the 2FASOC was understood, there was no merit in the contention that paragraph [70]-[71] of that pleading should be struck out. Mr Palmer submits that ASIC’s attempt to cavil with the decision of the primary judge, on the basis that the relevant paragraphs of the 2FASOC involved “insufficient pleading of knowledge”, does not withstand scrutiny because, as the primary judgment makes plain, the pleading read as a whole did in fact identify the human actors whose states of mind are to be attributed to ASIC (namely, Ms Forbes and Mr Stogdale).

Consideration

Proposed Ground One – Insufficient pleading of knowledge

33    I am not persuaded that the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered by a Full Court. Nor am I satisfied that ASIC will suffer substantial injustice if leave were refused. My reasons are as follows.

34    First, the requirement of leave reflects a desire to minimise the number of appeals from interlocutory decisions on matters of practice and procedure to ensure that the substantive issues in a proceeding are determined expeditiously and to ensure that interlocutory appeals are not used to delay proceedings: Thomas Borthwick & Sons (Pacific Holdings) Ltd and Others v Trade Practices Commission (1988) 18 FCR 424 at 431 (Bowen CJ, Lockhart and Sheppard JJ). These considerations are relevant in the circumstances of this case, where the Full Court is being asked to adjudicate upon the correctness or otherwise of a discretionary decision not to strike out two paragraphs, being [70]-[71] of the 2FASOC, which has since been superseded by the 3FASOC and to which ASIC has filed a defence.

35    Second, the primary judge’s decision is not attended by sufficient doubt to warrant reconsideration by the Full Court.

36    Rule 16.02 of the FC Rules governs the content of pleadings, and relevantly states in (d) that it must “state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved”. Further, a pleading must not be, relevantly: evasive or ambiguous; be likely to cause prejudice, embarrassment or delay in the proceeding; or fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading: r 16.02(2)(c)-(e). This provides the basis for r 16.21, which set outs grounds on which a party can apply for a pleading to be struck out. ASIC contended before the primary judge that the 2FASOC was ambiguous, embarrassing and/or fails to disclose a reasonable cause of action, because it failed to identify the subjective purposes of unnamed individuals at defined time points, contrary to r 16.43 of the Federal Court Rules 2011 (Cth). The gravamen of ASIC’s submission before the primary judge and on this appeal is that there is no causal link in the pleading between what was known by the two-named ASIC officers (Mr Stogdale and Ms Forbes) and the decision by ASIC to initiate its compulsive investigative powers. Rather, ASIC contends the pleading merely pleads awareness of a contended fact (being the Fulcrum Purposes) by these officers: PJ at [18].

37    The primary judge at PJ [27] correctly identified that the pleading must be read as a whole and that there were many interdependent components to the pleading. The primary judge reasoned as follows. First, that the reference to “the investigation” at [70] was to the investigation of Mr Palmer pleaded at [2] where, it is noted, that at all material times, ASIC employed Mr Stogdale with responsibility to supervise the investigation. Second, that the representations made by the CITIC entities relevant to the commencement of the investigation are pleaded in considerable detail at [49]. Third, within that component of the pleading there is reference to steps taken by Ms Forbes and Mr Stogdale, both employees of ASIC. Fourth, that the commencement of the investigation on or about 7 April 2016 is unambiguously pleaded at [53]. Fifth, there is a clear pleading that by no later than 18 March 2016, ASIC had obtained the evidence and formed the view that Mr Palmer was a person within s 49(1) of the ASIC Act and therefore could not lawfully be examined by reason of s 49(4) of the ASIC Act.

38    The primary judge then at PJ [28] explained that the contention that the investigation had, as an additional consideration, the Fulcrum Purposes is cross-referenced to sections C and D of the pleading which, the primary judge noted, comprehensively pleads, respectively, the conduct of the CITIC entities to prosecute the Fulcrum Purposes and the commencement of criminal proceedings against Mr Palmer.

39    Critically, the primary judge identified that the link to establish that the Fulcrum Purposes informed, affected or was considered by ASIC as a component of the investigation is pleaded at [49(1) and (m)] of the pleading: at PJ [28]. The primary judge observed that these pleas, contained in section 3.C are concerned with the representations by the CITIC entities to ASIC in furtherance of the Fulcrum Purposes. The primary judge referred to the contact, written, oral, and in meetings, between ASIC officers and representatives of the CITIC entities pleaded at [49]. The pleading at [49](l) and (m)] identifies Ms Forbes and Mr Stogdale as the two named ASIC officers which the primary judge finds are readily identifiable from a consideration of the entirety of the pleading as concerned with the investigation who had knowledge of the Fulcrum Purposes. The pleading in the particulars subjoined to [51] expressly pleads that Ms Forbes and Mr Stockdale had such an awareness of the Fulcrum Purposes.

40    The primary judge identifies the improper consideration (use of knowledge of the Fulcrum Purposes) is pleaded at [51], where the contention is that the CITIC entities “instigated” ASIC to procure the prosecution against Mr Palmer not to have some bonafide wrong sanctioned or loss recovered, but to apply commercial pressure in furtherance of the Fulcrum Purposes and ASIC was aware of that fact: at PJ [29]. The primary judge was correct to find that there is no ambiguity in what is meant by “instigate” in this context. The primary judge observed that “whether such a serious allegation of misconduct by public officers is ultimately established on the evidence is entirely another matter but is not relevant to the present strike-out application”: PJ at [29]. In this regard, counsel for Mr Palmer accepted that if the matter proceeds to trial, he will be bound by his case as advanced in the pleading.

41    There is no error disclosed in the path of reasoning of the primary judge in explaining that the pleading must be read as a whole to provide the relevant context to the pleading such that the pleading was neither evasive or ambiguous; was not likely to cause any prejudice, embarrassment or delay in the proceeding; did not fail to disclose a reasonable cause of action; and was not otherwise objectionable within the meaning of rule 16.21 of the FC Rules: PJ [26].

42    Third, contrary to the contention advanced by ASIC, the pleading, read as a whole identified the human actors whose states of mind are to be attributed to ASIC, namely, Ms Forbes and Mr Stogdale: PJ [26] to [30].

43    For these reasons, the first proposed ground has not established that the decision of the primary judge is attended by sufficient doubt to warrant reconsideration by a Full Court.

44    That should be sufficient to dispose of the application. However, I am also of the view that ASIC has also failed to demonstrate that “substantial injustice” would result if leave to appeal were to be refused for the further following reasons.

45    First, the affidavit evidence of Gareth Andrew James Kerr dated 10 September 2025 does not depose to any specific injustice that ASIC would suffer if leave was not granted. At best, the evidence amounts to no more than a general claim of alleged injustice.

46    Second, it is not apparent how a decision not to grant leave to appeal against a discretionary decision not to strike out two paragraphs of the 2FASOC, which has been subsequently superseded by the 3FASOC to which ASIC has filed a defence could cause substantial injustice to ASIC. ASIC’s argument, at its highest, is that if leave is refused, it “may be required to complete interlocutory steps in relation to, and contest at trial” various allegations. But that is the position of every respondent or defendant in a civil proceeding. This may sometimes involve delay and expense, but it does not involve any “substantial injustice”.

47    Third, in the circumstances of this case, I am not persuaded of ASIC’s claim that its application for leave “raises issues of general importance” which warrant a grant of leave to appeal.

48    The decision of the primary judge is not attended by sufficient doubt to warrant reconsideration by the Full Court and there is no “substantial injustice” to ASIC in refusing leave to appeal. It follows that proposed ground one must be rejected.

Proposed Ground Two

49    ASIC accepts that proposed ground two is entirely consequential upon the Court’s decision in relation to proposed ground one. The Court has refused to grant leave to appeal and has rejected proposed ground one. It follows that proposed ground two should also be rejected.

DISPOSITION

50    The application for leave to appeal is dismissed. ASIC will pay Mr Palmer’s costs of the application, to be assessed on a lump sum basis as agreed or as fixed by a Registrar of the Court.

Associate:

Dated:    11 May 2026