The Law Council of Australia (LCA) has fired a shot across the bows of the Australian Securities and Investments Commission (ASIC) suggesting comments attributed to its deputy chairman and Queens Counsel, Daniel Crennan exceed the regulator’s brief.
As the regulator seeks to pursue a tougher approach to litigation, the LCA warned that the statements attributed to Crennan in a newspaper article regarding client legal privilege and the conduct of litigation were “extremely concerning, particularly in the light of ASIC’s status as a model litigant”
Crennan had been quoted in the newspaper article as suggesting that financial services should not be in the business of pursuing prolonged legal defences only to settle at the last minute.
The LCA statement said the potential consequences for a person faced with criminal or civil proceedings brought by ASIC were extremely serious, including loss of their liberty or their livelihood.
“There is a presumption of innocence,” it said. “It is entirely appropriate for any defendant to rely on the rights and protections developed over centuries to ensure the proceedings ASIC is bringing against them are conducted fairly.”
The Law Council statement said it was concerning that ASIC as the regulator would make such statements “as there is a real risk these may put undue pressure on parties not to contest proceedings or raise legitimate issues for determination by a Court”
“Our Courts have led the way in case management and are well equipped to deal with time- wasting tactics and unreasonable rejections of settlements. They have, and use, mechanisms to ensure that matters are resolved as justly, quickly and cheaply as possible consistent with respecting the parties’ legal rights,” it said.
“If ASIC believes there are concerns in a particular case about the conduct of the litigation, the appropriate person for ASIC to raise these concerns with is the judicial officer conducting the matter, not by making broad statements to the media which may be read as veiled threats to litigants and business.”