6. On 16 May 2025 the Respondent then lodged its SFIC with the Tribunal and identified as issues before the Tribunal matters pertaining to the findings I have identified in paragraph ‎5 above as well a further issue that the Applicant "is likely to contravene its s912A obligations" as was foreshadowed by the summons request. Included was a high-level overview of what ASIC believed to be the relevant 'factual background' which included details of the Applicant's key officer and director appointments, its business and client profile and its existence within a broader group of related and centrally owned international companies. The Respondent's SFIC also outlined:
   • the trials and tribulations of its director and 'Responsible Manager'(RM) Mr Klimenka (including his indictment on charges in the United States of conspiring to commit money laundering and operating an unlicensed money services business) and
   • the responses of its other RM, Mr Calley to enquiries from ASIC about, amongst other matters, the Applicant's awareness of Mr Klimenka's circumstances.

1. On 29 May 2025 the Applicant lodged an objection to the summons request (the Summons Objection) for the purpose of paragraph 6.19(c) of the Administrative Review Tribunal (Common Procedures) Practice Direction 2024 on the basis that firstly, there were no reasonable grounds for the Tribunal to form the requisite view as to the material's relevance and secondly that compliance would be oppressive.
2. The Applicant in the Summons Objection explains why in its view the summons shouldn't be issued, namely that the Summons:

(i) request itself "fails to articulate, with any precision, how the documents sought are relevant to the issues in the proceeding....and merely asserts without elaboration that the documents are relevant to three broad issues ..frame[d] at a very high level, making it impossible to discern any actual relevance that the documents sought may have". > > (ii) has "no legitimate forensic purpose, is an impermissible fishing expedition and an abuse of process" > > (iii) will be oppressive if it seeks to call for the production of 'all documents' which place an excessive burden on the producing party in circumstances where "the documents appear not to be sufficiently relevant to the proceedings".

3. The Applicant was concerned that the requested documents were seeking to open a new line of claim about the Applicant in circumstances where the AFP matter was not considered or pursued by the Delegate. At paragraph [18] of the objection the Applicant explained that the evidence before the Tribunal reveals the following matters [citations removed]:

1. At the meeting between ASIC and Mr Calley on 8 February 2024, Mr Calley informed ASIC about a connection between client accounts and a matter being investigated by the Australian Federal Police. ASIC's file note of the meeting states:

Q. total client monies question > > • Avg 20k per client > > • Client accounts are pending a money laundering case with AFP. Russian traders wer [sic] with FXOpen though its [sic] an ongoing case so Jafar cannot comment on it.

1. On 26 February 2024, ASIC gave a direction to FXOpen AU under s912C(1) of the Corporations Act requiring it to give a written statement on various matters, including in response to questions about the "AFP Matter" which was defined in the s912C(1) notice as "the matter referred to by FXOpen AU Pty Ltd in its meeting with ASIC on 8 February 2024".
2. T5.15.11, the document ASIC refers to in FXOpen AU Draft Summons and the Summons Reasons, is FXOpen AU's written response to the s912C(1) notice.
3. Notwithstanding ASIC's assertion in the Summons Reasons that T5.15.11 was a document which was before the ASIC delegate who made the Cancellation Decision, the statement of reasons for the Cancellation Decision (Reasons) does not refer to the "AFP Matter". The Reasons do, however, refer four times to the meeting between ASIC and Mr Calley on 8 February 2024 in relation to other matters. From this it can be inferred that the "AFP Matter" was not a factor which the ASIC delegate considered when making the Cancellation Decision.
4. ASIC's SFIC refers once to the "AFP Matter" in the introductory section of the SFIC which comes under the subheading "Factual Background" and asserts that a large amount of FXOpen AU Client Money is connected to the "AFP Matter". Beyond this bare reference, ASIC does not develop any argument as to how evidence of the "AFP Matter" might support the contentions it raises in the proceeding.

1. The Applicant then argues that in light of this evidence:

it appears ASIC seeks to use the FXOpen AU Draft Summons to open another line of investigation into FXOpen AU to ascertain whether it has a basis for making fresh allegations against it. ASIC does so in circumstances where it has been aware of the "AFP Matter" since 8 February 2024 and could have long ago exercised its coercive powers under the Australian Securities and Investments Commission

2. The Respondent says that the documents are related to enquiries before the Tribunal so far as they relate to s912(a)(1)(d) and (e).
3. In its outline of submissions dated 16 June 2025 in response to the Applicant's summons objection ASIC have argued that:

(i) The summons has been issued so that the Tribunal standing in the shoes of the original decision-maker has before it all relevant material as it reviews the decision to cancel the AFSL; > > (ii) Part of its contention "that Mr Calley does not have the capacity, knowledge or skills to act as the Applicant's responsible manager or key person includes" involve consideration of the extent to which his communications to ASIC about the circumstances of Mr Klimenka's resignation were made to mislead or hinder ASIC or otherwise conceal "from ASIC the true position in relation to Mr Klimenka's role with the Applicant or gave or omitted material information"; and > > (iii) To the extent the Applicant claims the request would be oppressive it fails to identify what breadth of material it might hold saying only that the number of documents might "potentially be large".

4. At a high level the Respondent views the conduct of the Applicant as being inextricably linked to the conduct of Mr Calley because (at least) after the period in which Mr Klimenka formally resigned Mr Calley acted as the sole director and sole RM of the Applicant.
5. The Applicant points out that the Respondent in its submissions now points to a wholly new basis for the summons to issue which is different to the 3 matters raised in the request and is as put at [16] of its written submissions in the following terms:

ASIC has requested that the FXOpen AU Summons be issued because ASIC is of the view that the documents produced in response to it are likely to assist the Tribunal in considering whether Mr Calley has the capacity, knowledge and skills to act as the Applicant's responsible manager or key person.

6. The Applicant says that ASIC is now seeking to draw a line between these accounts and the AFP proceedings and that would amount to the opening of a new enquiry.

1. Section 74 of the ART Act (relevantly) provides:

(1) If the Tribunal has reasonable grounds to believe that a person has information... relevant to a proceeding in the Tribunal, the Tribunal may, in writing, summon the person to do either or both of the following on the day, and at the time and place, specified in the summons:

(a) appear before the Tribunal to give evidence;

(b) produce any document or thing specified in the summons.

(2)....

.....

(4)The Tribunal may refuse a request for a person to be summoned.

1. Section 74(1) in the ART Act is drafted in substantially similar terms to s40A(1) of the Administrative Appeals Tribunal Act 1975 save for the inclusion of the words "the Tribunal has reasonable grounds to believe". As DP Thomson SC explained in World Brand Importers Pty Ltd and Commissioner of Taxation (Practice and procedure) [2025] ARTA 95 (World Brand) at [12], when opining that there was limited, if any, practical difference between the operation of the old and the new provision in saying "There is no reason to suggest that the move from the Administrative Appeals Tribunal to the Administrative Review Tribunal impacts that proposition, other than to the extent that there are any relevant textual differences between the legislation".
2. It is not clear to me what material difference the imposition in s74(1) of the phrase "the Tribunal has reasonable grounds to believe" makes to the interpretation of the former s40A(1) other than to make express that which was implicit in the former provision. The Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 (Cth) confirmed that s 74(1) of the ART Act was expected to be equivalent to s 40A(1) and only included "minor updates to reflect modern drafting practices" that "do not affect the operation or effect of the provision".
3. Irrespective of those additions in my view there remains sufficient alignment between the old and the new provision such that the issue of summons in the Tribunal can continue to be considered in light of the "principles enunciated by Courts as applicable to subpoenas. There is no reason to suggest that the move from the Administrative Appeals Tribunal to the Administrative Review Tribunal impacts that proposition, other than to the extent that there are any relevant textual differences between the legislation"[1].
4. As is well established amongst the leading authorities a party that seeks the issue of a summons must identify that the material is being sought for a "legitimate forensic purpose"[2] and that it is relevant, as least so far as it "could possibly throw light on the issues in the main case"[3]. As the Federal Court explained in Wong v Sklavos [2014] FCAFC 120 at [52]:

52. A subpoena may be set aside if it requires the production of documents which do not have apparent relevance to the issues arising on the pleadings: Trade Practice Commission v Arnotts Ltd (No 2) [1989] FCA 248; (1989) 88 ALR 90; Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) [2010] FCA 398; (2010) 269 ALR 76 at [39]- [40]; McHugh v Australian Jockey Club Limited [No 2] [2011] FCA 724 at [13]; McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233; (2005) 221 ALR 785 at [35]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 558 at [17]. Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative (R v Barton (1981) 2 NSWLR 414 at 420), or that the material sought is reasonably likely to add in some way to the relevant evidence in the case (Spencer Motors Pty Ltd v LNC Industries Ltd (1982) 2 NSWLR 921 at 927), or that it be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued: Allister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414; Tamawood Ltd v Habitare Developments Pty Ltd [2009] FCA 364 at [13], [35]-[38].

1. Turning firstly to the question of whether the documents being sought under the summons "could possibly throw light on the issues in the main case".
2. The Respondent says that the documents are relevant because:
   • Firstly, there are 2 accounts held with the Applicant which contain significant funds frozen in respect of money-laundering allegations in circumstances where one former director (and the overall beneficial owner of the Applicant) is charged as a co-accused to a conspiracy to commit money laundering; and
   • Secondly, those documents are likely to disclose the identity of the account holders and whether they be Mr Klimenka's co-accused or persons associated with him.
3. In its SFIC the Respondent states at paragraph [9] that at a final hearing:

The Tribunal will be required to make subsidiary findings in relation to Mr Klimenka's role and involvement with the Applicant, including findings about:

(a) whether Klimenka acted as Responsible Manager for the Applicant at any time after the grant of its AFSL on 12 December 2011 up to and including the date he ceased to be a director on 9 January 2024, and if so, during what time periods; and

(b) whether the Applicant's director and Responsible Manager, Mr Travis Calley (Calley) misled or hindered ASIC and/or provided information to ASIC in the course of his communications with ASIC about Klimenka's role that was false in a material particular or materially misleading, or omitted material information.

1. The summons itself seeks "documents relating to the two accounts referred to in the Applicant's response" to ASIC's notice of 26 February 2024. Details of the two accounts are expressly identified by way of reference to documents before the Tribunal and one might imagine a response to the summons would produce, at least, 'documents' that were created when the accounts were opened, documents produced in support of such applications as well as documents created in the course of administering those accounts. Those documents may reveal connections to people related to the issues before the Tribunal including whether the holder might have been the previous director's co-accused.
2. It is important to remember that the Tribunal's task on review is to:
   • re-exercise the functions of the original decision maker subject to the same general constraints as the relevant statutory regime imposes upon the original decision-maker;[4]
   • consider the material before it rather than simply what was before the original decision-maker[5]; and
   • determine what is the correct or preferable decision[6].
3. Whilst I accept, as was put by counsel for the Applicant, that the Tribunal does not have remit to undertake a roving enquiry and is confined by the issues as directed by the parties, I am, however, of the view that where the Tribunal is required to stand in the shoes of the original decision maker and consider the review on a de novo basis it would be assisted by knowing the identity of 2 account holders whose accounts have been frozen in the context of a money laundering investigation.
4. This is particularly so in circumstances where the Applicant's former director and continuing ultimate beneficial owner has been charged in relation to those matters and the current RM and sole director has responded to the regulator's enquiries seemingly inconsistently and somewhat incompletely.
5. As the Applicant concedes, ASIC have served a significant amount of material relating to the criminal money laundering proceedings being prosecuted in the US against the former director of the Applicant (Mr Klimenca) and a Russian national however, as I understood the Applicant's counsel to have explained, much of this material will be subject to formal objections prior to or at the commencement of the final hearing. Whilst I necessarily have only superficially considered the relevance of this material and the determinative capability of the issues that it purportedly relates to, I am at this point in time, and only to a very provisional degree, inclined to the view that the matters raised at paragraph ‎27 above are likely to require consideration at a final hearing.
6. There is, I acknowledge, at least some chance that as the issues play out before the Tribunal the relevance of what will be produced under the summons will become more and more remote to the issues the Tribunal must decide. This may be particularly so if the links between the accounts and the US proceedings remain limited to inferential associations attempted to be borne by the nationality of the holders and the documents disclose only limited detail of any other matters. Whilst that may be so I am nonetheless of the view that the Tribunal will be better placed to test the degree to which such documents ultimately become relevant once a hearing has commenced if those documents are before it.
7. For now, it is enough that I consider that the material is being sought for a legitimate forensic purpose, is to a satisfactory level relevant to the issues and does not amount to any sort of fishing expedition. I am satisfied that the documents "could reasonably be expected to throw light on some of the issues in the principal proceedings"[7].

1. The Applicant further argues that the summons shouldn't issue because it is either oppressive or an abuse of process as it amounts to what, in effect, is discovery.
2. The Applicant says that the summons is oppressive on its face because it would require the Applicant to consider a large range of documents in circumstances where, at best, only a small number of documents would be required for the forensic purpose that underpins the request.
3. The Applicant also argues that the summons is oppressive because it would be forced to consider what a 'document' is before secondarily considering whether each document then touches upon the issues in dispute that it is claimed to speak to. This they say amounts to a de facto discovery process and equates to an abuse of process of the type described in National Employers' Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372. In that case the NSW Court of Appeal at page 382 explained that:

The essential feature of discovery in this connection....is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.

4. In my view, this summons does not amount to 'discovery by other means'. The summons does not represent a broad licence deployed by ASIC to seek a wide range of documents from the Applicant going to a range of issues. Nor, in my view, can it be said to be seeking to open up a fresh line of wrong-doing on the part of the Applicant or Mr Calley.
5. There is no doubt, however, that the summons could have been drafted in a manner that would more effectively limit the number of documents to be produced and reduce the compliance impact upon the Applicant whilst still achieving its legitimate forensic objectives. As much was conceded by the Respondent's counsel at the interlocutory hearing when he confirmed in oral submissions that the summons could be significantly narrowed in scope whilst still achieving its purpose.
6. As it did in s40A(1) of the AAT Act the inclusion of the term 'may' in s74 of the ART Act imports a discretion to decide when a summons should be issued[8] and this discretion is to be exercised in the context of the Tribunal's overriding objectives which are contained at s9 of the ART Act. Relevantly here, those objectives require the proceedings to be conducted in a way that is "fair and just" and resolve the application "as quickly and with as little formality and expense, as a proper consideration of the matters...permits".
7. It follows that where a similar output might be produced by a more confined request such a request should be preferred to one that is unnecessarily broad. Counsel for the Respondent, when asked whether the scope of the proposed summons could be so narrowed explained, with a general disclaimer that he was being required to 'think on his feet', that a summons might suffice that was directed to:

Documents which relate to the opening of the account, which will include documents that have been provided by way of identity to support the opening of the account, and documents which will set out the name under which the account is operated and any other identifiers

8. Having regard to the open-ended expansive nature of the summons as presently drafted I am inclined to reject its issue. However, as is apparent from the preceding paragraphs I would obviously be prepared to reconsider the issue of an alternative summons that was drafted in a fashion that effectively limited its capture to a small number of documents across a limited period of time which were in a class resembling that explained by the Respondent in the previous paragraph.
9. Lastly, I note the Applicant's concerns about the use of the term 'documents' in the current drafting as I have described at paragraph ‎37 above. I imagine this concern is put in a context where electronic records are pre-eminent and the potential for ambiguity exists should that term remain undefined. Obviously, this concern can be readily addressed in any future drafting.

[2] Pratten v Commissioner of Taxation (Practice and Procedure) [2025] ARTA 161 (Pratten) at 47

[3] Cosco Holdings Pty Ltd v Commissioner of Taxation [1997] FCA 1504;

[4] See Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 (Frugniet) citing Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461).

[6] See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286).

[7] Re Marnotta Pty Ltd v Secretary of the Department of Health and Ageing [2004] AATA 800 at [42]