Australian Securities and Investments Commission v ActiveSuper Pty Ltd

BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

JUDGE: GORDON J DATE: 10 April 2013 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By an interlocutory application dated 12 February 2013, Mark Gordon Adamson (the 16th Defendant) (Adamson) seeks to set aside, or in the case of paragraph 9 vary, each of paragraphs 5(f), 7, 8, 9, 14, 16 and 17 of the orders made on 3 December 2012 (the Orders). Paragraph 5 of those Orders was relevantly amended on 19 December 2012.

BACKGROUND 2 It is unnecessary to set out the background facts in any great detail for the purpose of Adamson's application. Adamson is a solicitor and was a director of MOGS Pty Ltd (the 12th Defendant) (MOGS) between May 2011 and April 2012. The history of these proceedings was summarised by Dodds-Streeton J in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 1) [2012] FCA 1519 at [5]-[31]. In its statement of claim dated 13 February 2013, the Australian Securities and Investments Commission (the Plaintiff) (ASIC) seeks relief against Adamson including: 1. declarations that he was directly or indirectly, knowingly concerned in the contraventions by some or all of the first to eleventh defendants of ss 726 (offering securities in a body that does not exist), 727(1) and 727(2) (offering securities without a current disclosure document), 911A(1) (requirement to hold an Australian Financial Services licence) and 1041H (misleading or deceptive conduct) of the Corporations Act 2001 (Cth) (the Act) and s 12DA (misleading or deceptive conduct) of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act); 2. an injunction restraining him from carrying on a business related to, concerning or directed to financial products or financial services within the meaning of s 761A of the Act, providing financial product advice within the meaning of s 761A of the Act, dealing in financial products within the meaning of s 761A of the Act and/or in any way holding himself out as doing those things; 3. an injunction restraining him from carrying on any business related to, concerning or directed to superannuation interests within the meaning of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), in any way holding himself out as doing those things and/or being in any way, directly or indirectly, knowingly concerned in or a party to the conduct by another person of any business related to, concerning or directed to superannuation interests within the meaning of the SIS Act; 4. an injunction restraining him from being in any way concerned in the distribution of promotional documents or application forms for the offer or acquisition of securities that require disclosure to investors under Pt 6D.2 of the Act unless there has been lodged with ASIC a disclosure document for the offer or acquisition as required by s 727(2) of the Act; and 5. injunctions restraining him from dealing with certain proceeds or destroying documents and requiring him to deliver up his passport and remain in Australia. 3 It is unnecessary to traverse the circumstances alleged to give rise to ASIC's entitlement to that relief, save to say that the relevant circumstances are said to include, but are not limited to, those listed in Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 2) [2013] FCA 234 at [26] and [27].

RELEVANT LAW 4 The Court's power to vary or set aside an order is contained in r 39.05 of the Federal Court Rules 2011 (Cth). Adamson relied upon sub-rr (a), (c) and (d), which provide that: The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or … (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or 5 Here, all of the relevant orders were sought and obtained ex parte: r 39.05(a). Further, the orders were interlocutory in nature: r 39.05(c). Finally, the orders were injunctive in nature, that is, they prohibited or compelled certain conduct by Adamson: r 39.05(d). 6 The power under r 39.05 is discretionary. The power is to be exercised with caution. As Young J observed in Paras v Public Service Body Head of the Department of Infrastructure (No 2) (2006) 152 IR 352 at [4], the power is "ordinarily only exercised in exceptional circumstances": see Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 549-52; Dudzinski v Centrelink [2003] FCA 308 at [11]; McDermott v Richmond Sales Pty Ltd (in liq) [2006] FCA 248 at [25] cited by Young J. 7 Exceptional circumstances may be found to exist where there has been a failure to disclose material facts to the Court when application is made for the making of the order: Connect TV Pty Ltd v All Rounder Investments Pty Ltd (No 2) [2012] FCA 92 at [8].

ANALYSIS 8 It is necessary to address each paragraph in turn. Adamson is one of the "Additional Parties" as that term is defined in the Orders.

Paragraph 5(f) 9 Paragraph 5(f) of the Orders (as amended on 19 December 2012) was that: 5. Until further order, each of the Additional Parties, whether by themselves, their servants, agents and employees, or any of them or otherwise howsoever be restrained from dealing in any way, whether directly or indirectly, with any funds or monies standing to the credit of, held on behalf of, or held under the control of: … (f) any self managed superannuation fund (SMSF). 10 Adamson sought an order that the words "save for the Sixteenth Defendant dealing with any funds or monies standing to the credit of, held on behalf of, or held under the control of the MG ADAMSON SUPERANNUATION FUND" be inserted into paragraph 5(f). 11 At the hearing of Adamson's interlocutory application, ASIC did not oppose that amendment. Accordingly, the Court made an order on 28 February 2013 amending paragraph 5(f) of the Orders so that it read: … any self managed superannuation fund (SMSF) save for the Sixteenth Defendant dealing with any funds or monies standing to the credit of, held on behalf of, or held under the control of the MG ADAMSON SUPERANNUATION FUND.

Paragraph 7 12 Paragraph 7 of the Orders was that: 7. Until further order, each of the Additional Parties be restrained whether by themselves, their servants, agents and employees or otherwise howsoever from disposing of, destroying, amending, altering, parting with possession of, or causing, procuring, assisting or permitting the destruction, amendment, alteration or parting with possession of, all and any books, papers, records, books of account, ledgers, journals, banking records, computer records or other documents of any type whatsoever recording or evidencing any dealings of the Additional Parties with the first to eighth defendants and/or in relation to clients of the first and second defendants or clients' SMSF and any moneys paid or received from them. 13 Adamson's submissions took two forms. First, at the return of the application, his Counsel sought to rely upon written submissions dated 25 February 2013, described as an "outline of argument", which stated simply that "[t]he reasons for the relief sought in Prayer 2 of the Interlocutory Process are articulated at paragraphs 28-31 of the Affidavit of [Adamson]." In that affidavit, Adamson deposed that he had previously offered to provide ASIC with whatever books and records he had in his possession. Further, he deposed that, as a lawyer in practice for more than 12 years, he was aware of the obligation of a party not to destroy documents or records in anticipation of, or in the face of, actual litigation. Neither of those matters gives rise to exceptional circumstances sufficient to justify the exercise of the power under r 39.05. 14 Second, after the hearing, Adamson filed (with leave) further written submissions dated 3 March 2013 which took a more substantive approach. By those later submissions, Adamson contended that the injunction granted in paragraph 7 was in excess of the Court's jurisdiction in ss 1323 and 1324 of the Act and, alternatively, that there was no or insufficient evidence to found any basis for the making of the injunction in paragraph 7. 15 In relation to the first submission, Adamson faces difficulties. Adamson's contention that the Court lacked jurisdiction is effectively an argument that the Orders are affected by an error of law. An application under r 39.05 is not an appeal: Paras at [5] and Dudzinski at [11]. It is not the appropriate means by which to contend that orders of this Court were made in excess of statutory jurisdiction. Even if it were, however, Adamson's submission would fail. 16 Paragraph 7 of the Orders does not state that it was made pursuant to ss 1323 or 1324 of the Act. Rather, it simply restrains certain conduct. In the present case, ASIC contends that Adamson was knowingly concerned in several breaches of the Act and the ASIC Act by some or all of the first to eleventh defendants: see [2] above. The Court possesses a broad injunctive power in matters in which it has jurisdiction pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth). There is no reason to suggest that paragraph 7 does not invoke that broader power. 17 Further, as ASIC submitted, paragraph 7 plainly falls within the Court's power to require a person who has been restrained pursuant to s 1324(1) to do "any act or thing". Adamson's submission that s 1324(1) is not directed at negative covenants or prohibitions is rejected. 18 Finally, Adamson submitted that paragraph 7 of the Orders was obtained in circumstances where ASIC had failed to disclose to the Court that Adamson had already travelled overseas to procure further books and records for ASIC and had invited ASIC to either formally or informally request further books and records which would be provided. Adamson complained that ASIC did not bring that matter to the attention of the Court but, instead, told the Court that "Adamson last travelled to the [British Virgin Islands] four to six weeks ago, and had discussions about Cayco and MOGS", omitting any reference to further matters from Adamson's s 19 examination. Document provision and document destruction are two separate, but related, matters in which ASIC has a concern. Adamson's submissions related to the first. Paragraph 7 of the Orders related to the second. Again, Adamson has failed to demonstrate exceptional circumstances of the kind justifying the exercise of the power under r 39.05.

Paragraph 8 19 Paragraph 8 of the Orders was that: Offering securities 8. Until further order, each of the Additional Parties be restrained, whether by themselves, their servants, agents and employees or otherwise, from making an offer of securities, or distributing an application form for an offer of securities without a current disclosure document as required by sub-sections 727(1) and 727(2) of the Corporations Act 2001 (the Act). 20 Again, Adamson's submissions took two approaches. The first was simply to submit that he had no intention of undertaking the conduct sought to be restrained. That, in and of itself, is not an exceptional circumstances sufficient to justify the exercise of the power under r 39.05. 21 The second was to submit that the Court ought only make an order under ss 1101B or 1324 of the Act where it is satisfied that Adamson has or will contravene s 727 of the Act. In relation to s 1101B of the Act, Adamson submitted that where, as is the case here, it is alleged that he was knowingly concerned in a contravention of s 727 of the Act, no direct contravention of s 727 of the Act has or will occur. That submission suffers from the same difficulty as the submission referred to in [14] and [15] above. That is, it is effectively an argument that the Orders are affected by an error of law. Further, and in any event, it is plainly wrong. Section 1101B(5) of the Act empowers the Court to make an interim order of the kind obtained, pending the determination of the application, if in the opinion of the Court it is desirable to do so. The Orders were interim orders, pending the final hearing of ASIC's case for the relief sought by its Further Amended Originating Process dated 3 December 2012. Paragraph 8 of the Orders was within power and properly made. 22 The submission in relation to s 1324 of the Act was that the Court could not be satisfied to the requisite standard at this stage of the proceeding that Adamson has or will contravene s 727 of the Act and/or has been, is and/or is proposing to be knowingly concerned in a contravention of s 727 of the Act. There was no dispute that s 1324 empowered the Court to make such an order. ASIC submitted that there was overwhelming evidence that Adamson was "heavily involved" in establishing the relevant schemes, knew that those schemes would be promoted to Australian investors and knew that those schemes would be used to transfer Australian self-managed superannuation fund (SMSF) investors' money to associates of Craig Gore (the 17th Defendant) (Gore), including MOGS Pty Ltd (the 12th Defendant) (MOGS). However, that evidence is beside the point. The question on Adamson's application is whether there are exceptional circumstances sufficient to justify the exercise of the power under r 39.05. It is insufficient, in seeking to establish exceptional circumstances, for Adamson to submit that he is "without admission … content to leave the determination of this matter to the Court". Adamson must point to some positive matter which demonstrates exceptional circumstances. He has not done so.

Paragraph 9 23 Paragraph 9 of the Orders was that: Conduct relating to financial services and products without an AFSL 9. Until further order, each of the Additional Parties be restrained, whether by themselves, their servants, agents and employees or otherwise, from: (a) making recommendations intended to influence persons in making a decision in relation to superannuation interests (or that could reasonably be regarded as being intended to have such an influence) to acquire, vary or dispose of superannuation interests within the meaning of the Superannuation Industry (Supervision) Act 1993 (SIS Act); (b) arranging for persons to acquire, vary or dispose of superannuation interests within the meaning of the SIS Act; (c) otherwise: (i) providing financial product advice within the meaning of section 761A of the Act; (ii) dealing in financial products within the meaning of section 761A of the Act; and (iii) conducting a financial services business within the meaning of section 761A of the Act, (iv) receiving or soliciting of funds from or on behalf of person for the purposes of investing in shares or interests in any entity unless they are the holder of, or are the authorised representative of the holder of, an Australian financial services licence. 24 Adamson sought an order setting aside paragraph 9 or, alternatively, inserting a further paragraph 9A as follows: Order 9 does not limit or restrain the Sixteenth Defendant, in his capacity as legal practitioner admitted to practice in the Supreme Court of Queensland, from acting on behalf of clients of the legal practice of Clamenz Evans Ellis Lawyers whom are Trustees of Self-Managed Superannuation Funds in transactions for the sale and purchase of land. 25 Again, there were two sets of submissions. First, Adamson submitted that, on his interpretation, paragraph 9(b) restricted his ability to act for clients (which included the trustees of SMSFs) who were purchasers or vendors in respect of the conveyance of real property (Conveyancing Work). As a result, paragraph 9(b) restricted his ability to perform his job as a solicitor and earn income. Adamson's submissions were silent as to what the significance of that conclusion ought to be. Presumably, the submission was that paragraph 9 was made by the Court without the benefit of that evidence and that, had it been so informed, the Court would not have made orders in terms of paragraph 9. However, I do not accept that paragraph 9 can be so construed. That is, I do not accept that paragraph 9 actually prevents Adamson from engaging in Conveyancing Work. 26 Adamson gave evidence that he does not advise his clients in respect of the financial decisions relating to Conveyancing Work. His submissions drew attention to the fact that he has not undertaken Conveyancing Work for any trustees of SMSFs the subject of this proceeding. Paragraphs 9(a) and (b) are concerned with "superannuation interests". A superannuation interest is defined in s 10 of the SIS Act as "a beneficial interest in a superannuation entity". A superannuation entity is defined as "a regulated superannuation fund … an approved deposit fund; or … a pooled superannuation trust". As Conveyancing Work involves the acquisition or disposal of real property by an SMSF, as opposed to the acquisition or disposal of interests in an SMSF, there is no risk that by doing Conveyancing Work Adamson will breach paragraphs 9(a) or (b). Paragraph 9(c) is concerned with "financial product advice", "financial products" and a "financial services business", as defined in the Act, and the receipt or solicitation of funds for the purpose of investing in shares or interests in a third party. Again, Conveyancing Work is none of those things. In those circumstances, Adamson's first submission does not demonstrate exceptional circumstances sufficient to justify the exercise of the power under r 39.05. 27 Adamson's second submission contained two parts. First, as for paragraph 8 of the Orders (see [21] and [22] above), Adamson submitted that the conditions for the Court's exercise of the power under ss 1101B or 1324 of the Act were not met. For the reasons set out above, that submission is rejected. Second, in the alternative to setting aside paragraph 9, Adamson submitted that a new paragraph 9A should be inserted in the form set out at [24] above. The basis for that submission was that: 1. to the extent paragraph 9 relied upon s 1101B of the Act, the current form of the order was "unfairly prejudicial"; and 2. to the extent paragraph 9 relied upon s 1324 of the Act, the current form of the order was disproportionate and oppressive in its operation and not necessary in the circumstances. 28 ASIC submitted that the continued restraint on Adamson in dealing with superannuation products was desirable (for the purpose of s 1101B(5) of the Act) and was not disproportionate or oppressive (for the purpose of s 1324 of the Act). ASIC submitted that Adamson's conduct was "at the heart" of the allegations made by it. ASIC further submitted that there was evidence that Adamson had other sources of income (as a non-executive director of Sliepner Financial and from areas of his legal practice that do not involve Conveyancing Work). In light of my conclusion regarding the construction of paragraph 9, I do not accept that the operation of paragraph 9 will cause Adamson any unfair prejudice or that it is disproportionate, oppressive and/or unnecessary. It follows that Adamson has not demonstrated the exceptional circumstances necessary to justify the insertion of paragraph 9A.

Paragraphs 14, 16 and 17 29 Paragraphs 14, 16 and 17 of the Orders were that: Passport orders 14. Stonehouse, M Gore, Adamson and C Gore deliver to any registry of this Court, or alternatively to the plaintiff, all passports in their possession, custody or control pending the hearing and determination of the said interlocutory process within 3 days of the service of a copy of this Order upon them. … 16. Until the hearing and determination of the said interlocutory process or further order, Stonehouse, M Gore, Adamson and C Gore not apply for the issue of any passport. 17. Until the hearing and determination of the said interlocutory process or further order, Stonehouse, M Gore, Adamson and C Gore are prohibited from leaving Australia without the consent of the Court. 30 Each of paragraphs 14, 16 and 17 is expressed to operate "pending the hearing and determination of the said interlocutory process" or "[u]ntil the hearing and determination of the said interlocutory process or further order". The only interlocutory process referred to in the Orders was ASIC's interlocutory dated 30 November 2012. Paragraph 25 of the Orders stated that "[t]he further hearing of the interlocutory process be adjourned to 10.00am on 19 December 2012." At the hearing on 19 December 2012, the transcript reveals that it was the understanding of ASIC and the Court that paragraphs 14, 16 and 17 would continue in force and effect until the hearing and determination of the proceeding, not of the interlocutory process. Adamson's application was put on the footing that paragraphs 14, 16 and 17 were still on foot. Accordingly, while they are expressed to operate until the determination of ASIC's interlocutory process dated 30 November 2012, I have approached them on the basis that they in fact operate until the hearing and determination of the proceeding as a whole. 31 Adamson sought an order setting aside paragraphs 14, 16 and 17. He gave evidence that he had no plans to travel overseas or leave Australia but that, in the event his plans changed, he was prepared to undertake to give notice to ASIC 14 days before any planned departure. Adamson submitted that there was and is no basis for the Court to conclude that he is an "imminent flight risk" and/or that he has or will disrupted the investigations being undertaken by ASIC. That submission may be put to one side. It suffers from the same difficulty as the submission referred to in [14] and [15] above. 32 Further, and in any event, the relevant test for the making of an order under sub-ss 1323(1)(j) and (k) is whether such an order is "necessary or desirable": s 1323(1) of the Act. In deciding whether to grant or extend an order, the Court is required to perform a "balancing exercise, weighing the benefit and detriment to the particular defendant against those of the aggrieved persons": Australian Securities and Investments Commission v Xiao (2011) 86 ACSR 560 at [24]. Factors relevant to the balancing exercise include: 1. the importance of protecting investors' interests: Australian Securities and Investments Commission v Hawley (2008) 250 ALR 57 at [19]; 2. the length of time that the respondent has been subject to the order: Hawley at [24] and Australian Securities and Investments Commission; Re Richstar Enterprises Pty Ltd v Carey (No 19) (2008) 65 ACSR 421 at [33]; 3. the risk that the respondent might leave the jurisdiction and not return: Hawley at [26]; Australian Securities and Investments Commission v Money for Living (Aust) Pty Ltd [2005] FCA 1621 at [10] and Xiao at [27]; 4. the respondent's "legitimate interests in being allowed to travel": Hawley at [32] and Australian Securities and Investments Commission v Secured Bond Ltd [2009] NSWSC 1261 at [30]; and 5. the length of time for which the matter has been ongoing: Hawley at [33]. 33 In this case, paragraphs 14, 16 and 17 are necessary and desirable. The balancing exercise weighs in favour of protecting the investors in the relevant schemes. As ASIC submitted, although Adamson denies that he has acknowledged playing a role in serious contraventions of the Act, serious allegations have been made against him. Adamson was a director of MOGS and its solicitor during the relevant period. In his capacity as a director of MOGS, and as its solicitor, it is alleged that he participated in, and had knowledge of, the various transactions which comprise MOGS' involvement in the relevant schemes. ASIC submitted that Adamson is required to assist the investigation. His presence in the jurisdiction is necessary to ensure that assistance is forthcoming: Secured Bond Ltd at [7]. Although there is no specific risk that Adamson might leave the jurisdiction and not return, the importance of protecting investors' interests outweighs the length of time that Adamson has been subject to the order and his legitimate interest in being allowed to travel. 34 Adamson's proffering of the undertaking referred to above does not alter the result of the balancing exercise. As ASIC submitted, that undertaking only adds the prospect of further litigation and expense should ASIC seek to prevent Adamson from making an overseas trip. 35 For those reasons, Adamson has not demonstrated the exceptional circumstances necessary to justify the setting aside of paragraphs 14, 16 and 17. Of course, if circumstances change, that would not preclude a further application by Adamson on proper material.

DISPOSITION AND COSTS 36 Save for the alteration of paragraph 5(f) made on 28 February 2013, Adamson's interlocutory application dated 12 February 2013 is dismissed. Costs should be reserved and follow the event in the final disposition of the proceeding. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.