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The Chief Officers' Network - your business advantage / Management / Biz Law Central / Regulatory and Enforcement / BizLawCentral: Does judge's comments in Aus case mean changing burdens of proof?

The case, brought by the Australian Securities and Investment Commission (ASIC) (which regulates the Australian markets and listed companies) against a US registered company that operated in and raised funds in Queensland's Gold Coast, was a long and complex case that ultimately depended on scientific and engineering evidence.

The case was brought against the company, its CEO and two officers who had recently joined the company.

Those officers were found to have breached the Corporations Act and the ASIC Act, but because they had arrived so recently prior to the action being commenced, no penalty was applied to them.

They sought their costs.

The Judge ordered that they should not be entitled to their costs because, according to the ASIC case report, "The conduct of these gentlemen prior to trial in requiring strict proof of matters which should not have, in modern litigation, been pursued was a sign of the manner in which they conducted their response to the claims by ASIC."

Thus the question arises: is the practice of putting a party who makes allegations to strict proof of those allegations to be regarded as out of date and placing a party requiring strict proof to now be at risk as to costs?

Case: ASIC v Cycclone Magnetic Engines Inc, Nugent, McClelland and Foster

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