Australian Securities and Investments Commission v Vocation Limited (In Liquidation)

• Jurisdiction: Australia Federal only
• Judge: NICHOLAS J
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] FCA 807
• Court: Federal Court
• Date: 31 May 2019

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Vocation Limited

(In Liquidation) [2019] FCA 807

File number:	NSD 1679 of 2016
Judge:	NICHOLAS J
Date of judgment:	31 May 2019
Catchwords:	Corporations – continuous disclosure obligations – ASX Listing Rule 3.1 – s 674(2) of the Corporations Act 2001 (Cth) (Act) – listed public company with wholly owned subsidiaries each of which was a registered training organisation (RTO) providing vocational education and training in Victoria in accordance with funding contracts entered into with the Victorian Department of Education and Early Childhood Development (DEECD) – where DEECD reasonably suspected RTOs had breached their funding contract – where DEECD imposed contractual measures pursuant to provisions of funding contracts withholding payment of moneys claimed and suspending new enrolments by RTOs – whether existence of such measures was information that company was required to disclose pursuant to ASX Listing Rule 3.1 – whether a reasonable person would expect such information to have a material effect if it were generally available on the price or value of the company’s shares – whether company contravened s 674(2) of the Act by failing to disclose such information ; CORPORATIONS – whether ASX announcement made by company relating to funding contracts and withholding of payments was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H by making such announcement ; CORPORATIONS – whether completed due diligence questionnaire (DDQ) provided by company to proposed underwriter of proposed equity capital raising was misleading or deceptive or likely to mislead or deceive – whether company contravened s 1041H of the Act by providing DDQ to proposed underwriter ; CORPORATIONS – whether directors of company contravened s 674(2A) by causing or permitting company to contravene s 674(2) of the Act by abetting or being knowingly concerned in such contravention ; CORPORATIONS – whether directors and officer of company contravened s 180(1) by failing to exercise care and diligence in causing or permitting company to contravene s 674(2) or s 1041H of the Act
Legislation:	Acts Interpretation Act 1901 (Cth) s 2(2), 36 Australian Consumer Law 2010 (Cth) s 18 Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth) Corporations Act 2001 (Cth) ss 180, 674, 676, 677, 708, 708A, 1041H, 1317S, 1318 Trade Practices Act 1974 (Cth) ss 52, 75
Cases cited:	Australian Competition & Consumer Commission v TF Woollam & Son Pty Ltd (2011) 196 FCR 212 Australian Securities and Investments Commission v Adler (2002) 41 ACSR 72 Australian Securities and Investments Commission v Avestra Asset Management Limited (In Liquidation) (2017) 348 ALR 525 Australian Securities and Investments Commission v Cassimatis (No 8) (2016) 226 ALR 209 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 Australian Securities and Investments Commission v Maxwell (No 2) (2006) 59 ACSR 373 Australian Securities and Investments Commission v Sino Australia Oil and Gas Limited (in liq) (2016) 115 ACSR 437 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Campomar Sociedad, Limitada v Nike International Limited (2000) 202 CLR 45 Daniels v Anderson (1995) 37 NSWLR 438 Domain Names Australia Pty Ltd v .au Domain Administration Ltd (2004) 139 FCR 215 Forge v Australian Securities Investments Commissions (2004) 52 ACSR 1 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 Giorgianni v The Queen (1985) 156 CLR 473 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Grant-Taylor v Babcock & Brown Limited (in liq) (2016) 245 FCR 402 Hamilton v Whitehead (1988) 166 CLR 121 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) (1988) 39 FCR 546 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 James Hardie Industries NV v ASIC (2010) 81 ACSR 1 Jubilee Mines NL v Riley (2009) 253 ALR 673 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 McGrath v HNSW Pty Limited (2014) 219 FCR 489 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98 Propell National Valuers (WA) Pty Ltd v Australian Executor Trustees Ltd (2012) 202 FCR 158 Quinlivan v Australian Competition & Consumer Commission (2004) 160 FCR 1 Re Austpac Resources NL [2010] NSWSC 1438 Re Golden Gate Petroleum Ltd (2010) 77 ACSR 17 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Westpac Banking Corporation v Bell Group Ltd (in liq) (No 3) (2012) 44 WAR 1 Yorke v Lucas (1985) 158 CLR 661
Date of hearing:	9-13, 16-19, 23, 25-27 October, 4-8 December 2017, 5-9 February 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	873
Counsel for the Plaintiff:	Mr J Halley SC with Ms A Mitchelmore, Ms J Davidson and Ms C Winnett
Counsel for the Second Defendant:	Mr DB Studdy SC with Mr SA Lawrance
Solicitor for the Second Defendant:	Allens
Counsel for the Third Defendant:	Mr M Pesman SC with Mr JM Wheeldon
Solicitor for the Third Defendant:	Baker & McKenzie
Counsel for the Fourth Defendant:	Mr A Leopold SC with Ms E Holmes
Solicitor for the Fourth Defendant:	Clyde & Co

Table of Corrections
18 June 2019	Para [372] seventh sentence “3 January 2014” be amended to read “3 September 2014”

...