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Michael Murray’s on-going commentary on issues in corporate and personal insolvency law and related policy and law reform, in Australia and internationally. Given the scope of insolvency, this extends to business, consumer and professional conduct, and ethics, governance and regulation, criminal, tax, environmental and administrative law, and the courts and government.

 

Penalising insolvent companies – a King Charles I comparison

Regulators seeking penalties against companies in liquidation often reveal, as I have recently commented,[1] some serious signs of frustration that their quarry has escaped their claims by going into liquidation, leading to the regulators, as I have also written, “kicking the company when it is down”.[2]

Justice John Logan saw it this way in Commissioner of Taxation v International Indigenous Football Foundation[3] in introducing his judgment with a 16th century account of the exhumation in 1660 of the bodies of four regicides involved in the trial and execution of King Charles I in 1649, leading to “their” trial, conviction and beheading, all at the behest of a restored monarch. One body was that of Oliver Cromwell.

This was all ceremonially conducted as a warning to the populace against treasonous conduct, and no doubt regicide in particular.[4]

Justice Logan likened this piece of history to the Commissioner of Taxation’s application for leave to continue to pursue penalties against IIFF despite its liquidation.

The Commissioner’s motivation was partly to give a warning to the populace that tax misconduct, here, under the promoter penalty regime, would be pursued to the death, so to speak, even if any penalties imposed, against a company at least, were non-provable debts and would never be paid.

The Judge referred to ACCC v Dataline.Net.Au Pty Ltd[5] which seems to have halted a fictitious long-time practice of the Federal Court in imposing penalties on companies despite their liquidation merely as a warning to others (general deterrence). This then allowed the regulators to go off and promote their successful outcome, without quite explaining that the multi-million dollar penalty they won was irrecoverable.

But imposing a penalty can serve a purpose if there is potential for third party liability or related company payment. ACCC v ABB Power Transmission Pty Ltd [2004] FCA 819 is an example of the latter, a parent paying penalties imposed on a miscreant subsidiary that had been wound up and deregistered, a true exhumation: ACCC v ASIC [2000] NSWS 316.

Here, in granting leave, the Judge found there was a “serious question to be tried”. Also, the tax benefits of individuals involved with the company appeared to be under potential scrutiny.

In due course, we may see the full trial against IIFF (in liq), and some related parties, with ritual penalties imposed, before it is eventually allowed to “cease to exist” – (dereg’d) – under s 601AD of the Corporations Act.

Note: Justice Logan referred to Justice Perry’s judgment in ACCC v Phoenix Institute of Australia Pty Ltd (Subject to DOCA) [2016] FCA 1246. That judgment remains subject to a pending full court decision, the appeal being heard on 15 February 2017. It was also relied upon in ACCC v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521, the pending appeal decision being noted by Justice Bromwich.

 

 

[1] “The last man standing” (2017) 18 INSLB

[2] Kicking a company when it’s down (2008) 8 INSLB 69

[3] Commissioner of Taxation v International Indigenous Football Foundation Australia Pty Ltd (in liq) [2017] FCA 538

[4] Geoffrey Robertson, The Tyrannicide Brief (2005), Chatto & Windus; The Hon Justice Michael Kirby AC CMG The trial of King Charles I – defining moment for our constitutional liberties, to the Anglo-Australasian Lawyers’ Association, 22 January 1999.

[5] [2007] FCAFC 146

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