ASIC has issued a media release announcing that the Federal Court has agreed to further consider whether it is necessary to prove fault according to Chapter 2 of the Criminal Code in civil proceedings relating to certain breaches of the Corporations Act 2001 (Cth) (Act). In ASIC v Whitebox Trading Pty Limited & Anor (NSD383/2016) (in which ASIC is alleging a contravention of the market manipulation provisions of the Act), ASIC has asked the Federal Court to clarify the law following its decision in Gore v ASIC [2017] FCAFC 13 in February this year. 

Before Gore, ASIC had acted on the basis that it was only necessary to prove Criminal Code fault elements in criminal proceedings. However, in Gore, the Court considered that ASIC had to prove Criminal Code fault elements to obtain civil remedies in relation to breaches of the Act (ie, the offering of securities without a current prospectus). 

The issue is to be considered by a Full Court of the Federal Court as a preliminary issue on a date to be fixed during 6 to 9 June 2017.