ASIC DETERRENCE AND ITS APPROACH TO SECURITIES LITIGATION
 
Justin Brereton, Barrister
 
CONTENTS

INTRODUCTION .............................................................................................................. 2

PART 1 – BEFORE THE CASE BEGINS......................................................................... 3

INVESTIGATION PROCESS AND ASIC’S LITIGATION OBJECTIVES ............... 3
Notices to produce books ............................................................................................ 3
Compulsory Examinations .......................................................................................... 9
The types of search warrant available to ASIC ........................................................ 13

COMPETING CONSIDERATIONS WHEN COMMENCING LITIGATION .......... 16
The commencement of proceedings and the use of compulsory powers .................. 17

PART 2 – ONCE THE CASE HAS STARTED .............................................................. 20

ASIC’S APPROACH TO LITIGATION GENERALLY ............................................ 20
The obligation to act as a model litigant ................................................................... 20

CONSIDERATIONS RELEVANT TO SPECIFIC JURISDICTIONS ....................... 22
Civil, criminal and civil penalty proceedings – when jurisdictions collide .............. 23
Civil proceedings ...................................................................................................... 28
Administrative Hearings ........................................................................................... 30

ASIC AS ADVOCATE FOR THE INVESTOR .......................................................... 34

ASIC’S GROWING SPHERE OF INFLUENCE ........................................................ 35
 

INTRODUCTION

Justin Brereton, Victorian Bar
1. This paper accompanies a presentation given by Justin Brereton of the Victorian
Bar on 23 July 2009. Both the presentation and the paper consider some current
and common issues that arise in the context of Australian Securities and
Investments Commission (“ASIC”) investigations and litigation. In dealing with
such a large subject area, it is not intended to be an exhaustive consideration of all
matters which may arise.

2. Justin Brereton is a Victorian Barrister who specialises in both commercial and
regulatory matters. He regularly appears for ASIC and has done so in some of the
largest investigations and litigation of recent times. This has included appearing
as counsel for ASIC in its investigation into the directors and officers of the
Australian Wheat Board; the committal of property spruiker Henry Kaye and
numerous other pieces of civil, administrative and criminal litigation. 

3. Justin also appears regularly against ASIC. Examples include investigations and  
litigation arising from the Westpoint collapse; litigation relating to the giving of
allegedly unlicensed financial product advice and investigations into alleged stock
market manipulation.

4. Prior to joining the Bar, Justin was a senior lawyer in the enforcement directorate
of ASIC. In that role, he was responsible for numerous high profile matters
including ASIC’s action against the NAB following the rogue traders scandal.
Whilst at ASIC, Justin also worked in the United States during joint investigations
with the Securities and Exchange Commission.
                                                

 An excellent source of further information in this area is Middleton T, “ASIC Corporate Investigations
and Hearings” Lawbook Co, Sydney 1999 (ISBN 0 455 21686 X). 

Further reading: http://www.listgbarristers.com.au/site_media/uploads/justin_brereton/asic_deterrence.pdf