Australian Securities and Investments Commission v Wooldridge

• Jurisdiction: Australia Federal only
• Judgment Date: 11 October 2019
• Neutral Citation: [2019] FCAFC 172
• Date: 11 October 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Wooldridge [2019] FCAFC 172

Appeal from:	Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) [2014] FCA 1308; (2014) 322 ALR 45
On remittal from:	High Court of Australia (Australian Securities & Investments Commission v Lewski [2018] HCA 63; (2018) 362 ALR 286)
File numbers:	VID 128 of 2019 VID 129 of 2019 VID 130 of 2019VID 131 of 2019
Judges:	GREENWOOD, MIDDLETON AND FOSTER JJ
Date of judgment:	11 October 2019
Catchwords:	CORPORATIONS – directors – officers – sentencing – determination of appropriate penalties within scope of remitter from High Court of Australia – where High Court of Australia excised only one of several contraventions – effect on sentence imposed by primary judge, if any – application of parity principle where some co-defendants settle respective proceedings and where one co-defendant does not ; CORPORATIONS – directors – officers – sentencing – orders as to penalty agreed between ASIC and defendant – relevant principles ; CORPORATIONS – directors – officers – sentencing – whether penalties imposed by primary judge manifestly inadequate – relevant principles – whether same discount applied to both pecuniary penalty and disqualification order – whether within primary judge’s discretion ; CORPORATIONS – directors – officers – sentencing – whether disqualification order imposed by primary judge to be reconsidered in light of intervening circumstances – whether appropriate to take account of director’s practical inability to obtain work although not then subject to disqualification order – distinguished Gillfillan v Australian Securities and Investments Commission [2012] NSWCA 370; (2012) 92 ACSR 460
Legislation:	Corporations Act 2001 (Cth), ss 206C, 208, 209(2), 601FC, 601FD and 1317G
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516; (2016) 118 ACSR 124 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 Australian Competition and Consumer Commission v Optus Mobile Pty Limited [2019] FCA 106 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 Australian Securities and Investments Commission v Adler (No 5) [2002] NSWSC 483; (2002) 42 ACSR 80 Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342; (2013) 31 ACLC 13-073 Australian Securities and Investments Commission v Chemeq Limited [2006] FCA 936; (2006) 234 ALR 511 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Gillfillan v Australian Securities and Investments Commission [2012] NSWCA 370; (2012) 92 ACSR 460 Hanks v The Queen [2011] VSCA 7 Lewski v Australian Securities & Investments Commission (No 2) [2017] FCAFC 171; (2017) 352 ALR 64 Lewski v Australian Securities and Investments Commission [2016] FCAFC 96; (2016) 246 FCR 200 R v Kilic [2016] HCA 48; (2016) 259 CLR 256 Zerafa v The Queen [2013] VSCA 42
Date of hearing:	12-13 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	83
Counsel for the Applicant in VID 128 of 2019, VID 129 of 2019, VID 130 of 2019 and VID 131 of 2019:	Mr I D Martindale QC, Mr R D Strong and Ms C Van Proctor
Solicitor for the Applicant in VID 128 of 2019, VID 129 of 2019, VID 130 of 2019 and VID 131 of 2019:	Australian Securities and Investments Commission
Counsel for the First Respondent in VID 128 of 2019:	Mr R G Craig
Solicitor for the First Respondent in VID 128 of 2019:	SBA Law
Counsel for the First Respondent in VID 129 of 2019 and VID 130 of 2019:	Mr A T Strahan QC and Ms C M Pierce
Solicitor for the First Respondent in VID 129 of 2019:	DLA Piper Australia
Solicitor for the First Respondent in VID 130 of 2019:	Millens
Counsel for the First Respondent in VID 131 of 2019:	Mr L Glick QC and Mr J Tomlinson
Solicitor for the First Respondent in VID 131 of 2019:	SBA Law
Solicitor for the Second Respondent in VID 128 of 2019, VID 129 of 2019, VID 130 of 2019 and VID 131 of 2019:	The Second Respondent did not appear

ORDERS

		VID 128 of 2019
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	MICHAEL RICHARD LEWIS WOOLDRIDGE First Respondent ; AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LIMITED ACN 095 474 436 (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (CONTROLLERS APPOINTED) Second Respondent

JUDGES:	GREENWOOD, MIDDLETON AND FOSTER JJ
DATE OF ORDER:	11 October 2019

THE COURT ORDERS THAT:

1. Pursuant to s 206C of the Corporations Act 2001 (Cth) (the ‘Act’), Dr Wooldridge be disqualified from managing corporations for the following periods:

   1. the period commencing on 23 December 2014 and concluding on 10 August 2016; and

   2. the period commencing on 11 October 2019 and concluding on 22 February 2022.

2. Pursuant to s 1317G of the Act, Dr Wooldridge pay to the Commonwealth a pecuniary penalty of $20,000.

3. Dr Wooldridge pay ASIC’s costs of and incidental to his appeal in proceeding VID753/2014 (excluding the costs for those proceedings the High Court ordered must be paid by ASIC).

4. ASIC’s cross-appeal in proceeding VID753/2014 be dismissed with no orders as to the costs of that cross-appeal.

5. There be no order as to the costs of this proceeding.

6. This proceeding otherwise be dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		VID 129 of 2019
BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	KIM SAMUEL JAQUES First Respondent ; AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LIMITED ACN 095 474 436 (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) (CONTROLLERS APPOINTED) Second Respondent

JUDGES:	GREENWOOD, MIDDLETON AND FOSTER JJ
DATE OF ORDER:	11 October 2019

THE COURT ORDERS THAT:

1. Pursuant to s 206C of the Corporations Act 2001 (Cth) (the ‘Act’), Mr Jaques be disqualified from managing corporations for the following periods:

   1. the period commencing on 23 December 2014 and concluding on 10 August 2016; and

   2. the period...