Privilege Claims by Cameron over the ASIC Subpoena
To reiterate, on 9 March 2018 we issued:
- A motion for further documents (Second Access Motion) from the SurfStitch administrators;
- ASIC subpoena – for transcripts of examinations by ASIC of the company directors and officers from its investigation commenced in around October 2016; and
- 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
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.