The statements attributed in Wednesday’s Australian Financial Review to the Deputy Chair of ASIC regarding client legal privilege and the conduct of litigation are extremely concerning, particularly in the light of ASIC’s status as a model litigant.
The potential consequences for a person faced with criminal or civil proceedings brought by ASIC are extremely serious, including loss of their liberty or their livelihood. There is a presumption of innocence. It is entirely appropriate for any defendant to rely on the rights and protections developed over centuries to ensure the proceedings ASIC is bringing against them are conducted fairly.
It is concerning that ASIC as the regulator would make such statements as there is a real risk these may put undue pressure on parties not to contest proceedings or raise legitimate issues for determination by a Court.
Our Courts have led the way in case management and are well equipped to deal with time-wasting tactics and unreasonable rejections of settlements. They have, and use, mechanisms to ensure that matters are resolved as justly, quickly and cheaply as possible consistent with respecting the parties’ legal rights.
If ASIC believes there are concerns in a particular case about the conduct of the litigation, the appropriate person for ASIC to raise these concerns with is the judicial officer conducting the matter, not by making broad statements to the media which may be read as veiled threats to litigants and business.
Such conduct may have a tendency to influence parties not to contest legitimate claims and undermine confidence in the judicial system and litigation process.
I am also concerned that implicit in the