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Privilege Claims by Cameron over the ASIC Subpoena

To reiterate, on 9 March 2018 we issued:

  1. A motion for further documents (Second Access Motion) from the SurfStitch administrators;
  2. ASIC  subpoena – for transcripts of examinations by ASIC of the company directors and officers from its investigation commenced in around October 2016; and
  3. KPMG subpoena – for copies of all advices, audits and reports conducted by KPMG in relation to the SurfStitch announcements made to the market between August 2015 and August 2016.

On 29 March and 6 April, the Court established a regime that provided for the defendants and all affected third parties to have first access to the documents produced by the Second Access Motion and subpoenas to allow any objections/claims for privilege to be made.

Justin Cameron Privilege Claims – ASIC Subpoena

Justin Cameron maintains a claim for privilege over the entirety of the two ASIC examination transcripts produced pursuant under the ASIC Subpoena, being the answers recorded in the examinations conducted by ASIC pursuant to section 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act).

Cameron asserts that disclosure of the answers recorded in the examination transcripts are properly protected by a claim of privilege against self-incrimination and/or the privilege against self-exposure to a penalty (Privileges) under general law and sections 68 of the ASIC Act.

Given the adjournment of the 3 May directions hearing, on 5 July we challenged Cameron’s privilege claims before His Honour and made submissions for any residual confidentiality concerns to be restricted to inspection by our firm. Justice Stevenson is likely to hand down his decision on 25 July.

SurfStitch Administrators Privilege Claims – KPMG Subpoena & Second Access Motion

On 3 July the SurfStitch administrators made claims and served evidence to support their claims for whole or partial legal professional privilege over approximately 203 documents produced under the KPMG subpoena. We have reviewed the evidence provided and found it to be satisfactory, and will not be challenging those privilege claims by the SurfStitch administrators further.

The administrators also made further claims to partial privilege over 105 documents approximately, produced pursuant to the Second Access Motion. We are in the process of considering those privilege claims and whether further evidence is necessary.

We otherwise continue to review the Second Access Motion, ASIC Subpoena and KPMG Subpoena documents produced.

The proceeding is listed for return before Justice Stevenson on 25 July.

Please contact a member of our team should you have any queries.

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Lawyer

VIC-Surf-Stitch@gadens.com

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

 

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SurfStitch Settlement Approval

Since early May 2018, the settlement of the class action against SurfStich has progressed as follows:

  1. the Ezibuy DOCA involves the settlement of all claims against SurfStitch, which includes the Gadens action (known as the McConnell Proceeding) and the competing class action being run in the Supreme Court of New South Wales issued by the representative lead plaintiff Nakali Pty Ltd (Nakali Proceeding);
  2. the funders of this proceeding, and the Nakali Proceeding (SurfStitch Class Actions) and their solicitors Johnson Winter & Slattery are cooperating with Gadens to progress the settlement approval application before his Honour Justice Stevenson;
  3. given the requirements of the Court to approve the settlement under the Ezibuy DOCA and section 173 of the Civil Procedure Act 2005 (NSW) (CPA), the 3 May directions hearing was adjourned to 5 July for a special fixture before Justice Stevenson, at which time certain procedural requirements of the settlement approval were vetted by the parties.
  4. the McConnell Plaintiff’s settlement motion filed 3 July was heard in part on 5 July by his Honour, where orders were made including:
    1. the appointment of Sydney counsel Guy Donnellan as an independent contradictor to the settlement approval application (who is required to represent the interests of class action group members independent of the SurfStitch Deed Administrators);
    2. that the matter be listed for the special fixture of a 1 day hearing on 20 September commencing at 10:00 am;
    3. a timetable be set down for the filing and service of confidential and non-confidential evidence and submissions in support/opposition to the settlement approval application by the parties and contradictor; and
    4. a timetable for the filing of the proposed notice to group members regarding:
      1. the settlement approval application; and
      2. the timetable for evidence and submissions in (c).

The settlement approval application is listed for return on 25 July at 9:30 am, at which time we expect His Honour will hear arguments from the parties regarding the form of notice to group members in (d) above, and will make orders for its circulation (if approved) by the Deed Administrators.

A copy of the approved notice to group members will be posted to this website in due course.

Please contact a member of our team should you have any queries.

Glenn McGowan QC

Partner & Chief Counsel

Rebecca Di Rago

Lawyer

VIC-Surf-Stitch@gadens.com

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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