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Heat falls on ASIC lawyer in AWB case

The credibility of a lawyer employed by ASIC has come under scrutiny in the Victorian Supreme Court.

user iconThe New Lawyer 11 January 2010 The Bar
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THE credibility of a lawyer employed by the Australian Securities and Investment Commission  has come under scrutiny in the Victorian Supreme Court after lawyers representing former AWB chief executive Andrew Lindberg accused the corporate regulator of acting with "sinister" intent, The Age reported.

As the regulator's troubled civil penalty case moved into even more complicated territory in December last year, ASIC's instructing lawyer, Martin Lockett, has reportedly been subjected to hours of cross-examination as to why ASIC was pursuing allegations against Lindberg.


Lockett was reportedly questioned for almost four hours in relation to events that took place after 2003, after Justice Ross Robson of the Supreme Court ruled in September that the fall of Saddam Hussein marked the cut-off date.

ASIC proceedings relate to illegal trucking fees paid to the Hussein regime and Lindberg's alleged knowledge of these payments.

Lockett said that ASIC had believed that the cut off date for areas of investigation was not concrete, and that the judge may be open to hearing a range of allegations throughout the trial.

At the same time, the corporate regulator announced it is appealing against a Supreme Court of Victoria decision to halt half of its proceedings against Lindberg.

ASIC applied for leave to appeal in the Court of Appeal of the Supreme Court of Victoria in relation to its second civil penalty case against Lindberg.

ASIC’s first case against Lindberg, meanwhile, is ongoing. It concerns allegations that Lindberg contravened sections of the Corporations Act arising from AWB entering into contracts for the supply of wheat to Iraq.

The second case concerned allegations that Lindberg misled the AWB board about the Tigris transaction, its internal investigation, ‘Project Rose’, and the UN’s Volcker inquiry into the Iraqi oil-for-food scandal.

In halting the case, Justice Robson said this element of ASIC’s case against Lindberg would be vexatious and oppressive. He said that to pursue it would bring the administration of justice into disrepute.

In his written decision, Justice Robson suggested Lindberg suffered “strain and stress and humiliation of sitting through the opening”, which resulted in “considerable publicity … that was especially damaging to Lindberg’s credit and reputation”.

These events take place three years after commissioner Terence Cole QC released his multi-volume report into the Australian Wheat Board’s payment of kickbacks to Iraq. 

It is expected that in its appeal, ASIC will raise what it considers to be the judge’s erroneous interpretation of its statement of claim.

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