The Full Court of the Federal Court of Australia has ordered the Australian Securities and Investments Commission to pay James Mawhinney fifty percent of his costs on an indemnity basis for bringing a case which denied him procedural fairness, resulting in a 20-year financial product ban being overturned.
In September this year the Full Court upheld Mr Mawhinney’s appeal against fundraising injunctions imposed last year by Justice Anderson of the Federal Court. In doing so the court remitted the case to a new Federal Court judge to be re-heard in circumstances the Full Court considered to be “very exceptional”.
The Honourable Chief Justice Allsop delivered judgment today on behalf of Justice O’Bryan and Justice Cheeseman, with the Chief Justice stating “[t]he price of having the proceedings remitted for a full re-pleading and the running of a new case should be that Mr Mawhinney, within reason, be held harmless and made whole from the consequences of the first failed attempt by ASIC.”
The decision is expected to cost Australian taxpayers over a million dollars in costs incurred by Mr Mawhinney to defend ASIC’s case which the Full Court found was “a fundamental denial of procedural fairness to Mr Mawhinney”.