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ASIC reinforces power to obtain documents

ASIC has pointed to two recent court judgements, including one in its battle with RI Advice, as cementing the regulator's ability to obtain documents.

In a media release, ASIC grouped together its successful challenging to RI Advice's claims for legal professional privilege and an order for Maxi EFX to produce documents.

The regulator said both Federal Court decisions support its position on obligations to comply with ASIC Act notices and to clearly substantiate any claims of legal or professional privilege.

RI Advice sought to have a file review deemed inadmissible as evidence due to professional privilege, as Financial Standard previously reported the judge decided RI Advice had no good reasons for keeping the documents out of court.

Separately, ASIC successfully obtained an order from the Federal Court compelling Maxi EFX to product documents in response to an ASIC notice issued to it.

Maxi EFX is a forex/derivatives trader subject to an ongoing investigation into suspected contraventions of the ASIC Act 2001 and the Corporations Act 2001.

Maxi EFX failed to produce certain documents required under the notice, arguing that the notice was unclear and that ASIC was not entitled to seek such a broad range of documents.

But Maxi EFX was unsuccessful in its argument, with a Federal Court judge finding in ASIC's favour.

The judge noted that the notice from ASIC sought Maxi EFX to produce a large number of documents but that this did not mean that the notice was too broad.

That's because a notice issued under section 33 of the ASIC Act is not like a subpoena or discovery in normal litigation and cannot be objected to on the grounds that it involves a "fishing expedition" - rather, the regulator is allowed to do a bit of fishing.

Read more: Maxi EFXRI AdviceASIC ActFederal Court
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