ASIC'S CONTACT WITH AGGRIEVED PERSONS
6 Throughout the course of its investigations, ASIC has kept the Court updated on its contact with potential Aggrieved Persons so as to identify any third parties who may wish to commence legal proceedings against the defendants for the recovery of funds. In addition to its own investigations into the suspected contraventions listed above, it is on the basis of preserving the defendants' assets to satisfy any potential third party claim that ASIC has sought the continued operation of the freezing orders.
7 On 17 January 2020, ASIC informed the Court that it had recently contacted each person identified as a potential Aggrieved Person and had received three responses. Those responses were from both represented and unrepresented investors who were all in the preliminary stages of taking advice and considering whether to commence proceedings against the defendants. On 28 February 2020, a further update was provided to the Court which indicated that of the three parties previously considering legal action, two had fallen away. The Court received a final update from ASIC on 19 May 2020 advising that, although one investor continued to maintain an intention to commence proceedings against the defendants, ASIC 'has been unable to solicit further information in relation to whether legal advice has been obtained and/or when the proceedings is likely to be commenced'.
8 Following receipt of this final update, the matter was listed for a case management hearing on 4 June 2020. The parties were advised of the listing on 20 May 2020.
9 On 28 May 2020, Mr Bertram filed his fifth affidavit in which he deposed to the actions that ASIC had taken to give notice of the case management hearing to the potential Aggrieved Persons. This notice took the form of an email sent to the Aggrieved Persons on 21 May 2020 (Email Notice) and a message uploaded to ASIC's public webpage on 26 May 2020 (Webpage Notice).
10 The Email Notice included the following statement:
The Federal Court in Perth has now listed this matter for a Case Management Hearing on 4 June 2020 at 10.15am at which time the Court is likely to discharge the injunctions because ASIC has been unable to locate any assets of substance that would satisfy any claim. ASIC has made banning orders against both Mark and Max Goldenberg and no aggrieved person has made a claim. If you wish to make submissions to the contrary you may wish to attend the Case Management Hearing or advise ASIC of your objection.
(Emphasis in original, underline added).
11 The Webpage Notice included the following statement:
The Federal Court in Perth has listed this matter for a case management hearing on 4 June 2020 at 10.15am, at which time the Court may discharge the freezing orders over the assets of Mark Goldenberg and Max Goldenberg. If you want the freezing orders to remain in place because you believe you may have a claim, then please attend the Case Management Hearing, which will be held via video or telephone conferencing. Please contact the Federal Court Registry on (08) 9268 7100 closer to the date for further details.
(Emphasis in original).
12 As at 28 May 2020, ASIC had not received any responses to the Email Notice or the Webpage Notice. On this basis, ASIC informed the Court that it would seek orders discharging the freezing orders and injunctions, and orders discontinuing its proceedings against the defendants provided that no Aggrieved Persons attended the case management hearing to object to that course.
13 The case management hearing on 4 June 2020 was conducted via telephone. Despite the details provided in the Webpage Notice, the Court did not receive any enquiries or requests to attend the hearing and no person physically attended the courtroom from which the telephone conference was broadcast. Mr Max Goldenberg was represented at the hearing though he did not oppose the orders sought by ASIC. Mr Mark Goldenberg did not appear.