QUESTIONS ON NOTICE › Australian Securities and Investments Commission (Question No. 2230)
Senator Wong: The Treasurer has provided the following answer to the honourable senator's question: (1) The High Court has ordered ASIC to pay the costs of the matter. The issue of costs payable to Fortescue and Mr Forrest is yet to be quantified or resolved. In view of this ASIC does not consider it appropriate to comment on the cost of the action at this time. (2) See response to Question 1 above. (3) ASIC is in the course of reviewing the judgment for its implications and impact. The judgment does raise for discussion what the market would regard as a sufficient statement about the nature and content of an agreement, and what is necessary to ensure the market is properly informed for the purposes of making investment decisions. While the High Court decision might influence ASIC's approach to matters going forward it will not deter ASIC from pursuing potential wrongdoers, particularly where we see serious misconduct, supported by evidence and solid legal advice. ASIC will continue to investigate and litigate matters in accordance with its Information Sheet 151: ASIC's approach to enforcement published in February 2012. (4) There are some lessons which emerge from the High Court's reasons such as the importance of stating ASIC's case clearly and simply. ASIC will take these onboard and, where appropriate, adjust its approach accordingly. ASIC is continually striving to improve the way it undertakes its enforcement work, including how it litigates matters. ASIC is very conscious of its obligations to act as a model litigant. However, apart from taking legal advice and noting judicial commentary in judgments over time, it is not possible for ASIC to discuss its approach to litigating matters with the Courts. ASIC can only learn some of these lessons through actually litigating matters and noting the Courts' comments. (5) ASIC considers it had a reasonable basis for making the claims it did. ASIC pleaded its case in the way that it did, on advice, and out of caution depending on how the Court might interpret the statements. ASIC notes the High Court's comments and will review future matters in light of these comments. ASIC took advice from Senior Counsel and external solicitors on its prospects and the conduct of the matter. ASIC would not have pursued this matter to trial or appealed the trial judge's decision unless it considered that it had strong prospects of success.