“I think your submissions smack of humbug and reek of insincerity,” Justice Beach said.
Because ASIC is a government entity, it is required to conduct court cases as a “model litigant”, meaning it is held to a higher standard of acting transparently and fairly than private companies in the conduct of its cases.
“We are now halfway though the trial. I consider what you have done to have a lack of transparency designed to interfere with proper process to issue subpoenas and in all circumstances you are fishing for material based on some unsatisfactory confidential source,” Justice Beach said.
Mr Pearce explained: “If this material is to be deployed at all, it will not be deployed until December when Mr Mitchell gives evidence. This may be an argument about nothing if Mr Mitchell doesn’t give evidence.”
Dr Collins told Justice Beach that ASIC”s strategy was “scandalous” and “with respect, quite disingenuous”.
Dr Collins said the requested documents were irrelevant to ASIC’s case because Mr Mitchell sold his stake in the business before the deal with Seven was signed in May 2013.
“This has got a smell about it, Mr Pearce,” Justice Beach said.
Justice Beach ordered ASIC’s solicitor to swear an affidavit by the end of the day explaining why they sought the business documents at the last minute and without giving proper notice to Mr Mitchell’s legal team or the court.
The trial continues.