Australian Securities and Investments Commission v Marco (No 21)

This decision sits inside a much larger Federal Court proceeding brought by ASIC concerning an unregistered managed investment scheme. The underlying litigation had already produced winding up orders, appointments of liquidators and receivers, and later disputes about administration and distribution issues. This judgment was not about whether the scheme existed or whether anyone was liable for misconduct.

It was about a narrower but commercially important procedural question: who should be allowed to access the Court file, and on what terms.

The immediate applicants were Mr Stone and Mr Franklin of PKF Melbourne. They had been appointed in September 2024 as special purpose receivers and managers of scheme property and as special purpose liquidators of the second defendant. Their appointment was not general. It was for a defined special purpose, namely investigating and pursuing certain claims against Westpac Banking Corporation and other persons described in the earlier orders.

By the time of this application, they had already commenced proceedings in the Supreme Court of New South Wales in pursuit of that special purpose.

That practical setting explains the application. If you are appointed to investigate and pursue claims, documents already filed in a related Federal Court proceeding may be highly relevant. They may contain evidence, background, chronology, admissions, financial information or material that helps identify issues and witnesses. The applicants therefore wanted direct access to the Federal Court file and formal recognition that they could be heard on issues affecting their appointment.

The applicants sought two related orders. First, they asked for leave as interested persons to be heard on all issues relating to their appointment. That request was grounded in rule 2.13 of the Federal Court (Corporations) Rules 2000 (Cth), which allows the Court to grant leave to an interested person to be heard without making that person a party to the proceeding.

Second, they asked to be treated as a party for the purposes of rule 2.32 of the Federal Court Rules 2011 (Cth). The judgment explains the practical effect of that request. If treated as a party for that rule, they would in general be permitted to inspect documents on the Court file. That was the real operational issue.

The applicants wanted to inspect filed material that might assist them in carrying out the special purpose for which they had been appointed, including the New South Wales proceedings they had already started.

The response from the existing parties was largely supportive or neutral. ASIC, Mr Marco, AMS Holdings, the fourth defendant and the sixth defendant consented. The fifth defendant neither consented nor opposed. Even so, the Court did not treat consent from the parties as the end of the matter, because the proceeding also involved other interested persons who had participated and filed documents.

The first issue was straightforward. The Court said there was no doubt that the applicants had sufficient interest to be granted leave to be heard on any issue relating to their appointment. Their appointment itself, and the liberty to apply contained in the earlier September 2024 orders, gave them a clear and direct stake in matters affecting how they could perform their role.

The harder issue was whether they should also be given the practical rights of a party for inspection purposes, even though they were not being joined as a party generally. That required the Court to balance efficiency against fairness. On one side, there would be cost and inefficiency if the applicants had to ask the existing liquidators to provide documents that the applicants could inspect directly if given limited party status.

On the other side, some documents on the file had been filed by interested persons who were not parties and whose views had not been fully addressed in the evidence.

The Court also had to consider the distinction between access and use. The applicants wanted inspection rights because they had commenced New South Wales proceedings in pursuit of the special purpose. But the fact that documents may assist in another proceeding does not automatically remove restrictions on collateral use of documents obtained through litigation. That is where the implied undertaking discussed in Hearne v Street became important.

This is the part of the judgment that businesses and insolvency practitioners should read most carefully. The Court recognised that not all filed documents stand in the same position. To the extent affidavits had been read and received in evidence, or other documents had been read or relied upon in open court, the judge said there was no evident reason to refuse inspection merely because the applicants were not full parties. Those documents are closer to the public side of litigation.

But the Court drew a clear distinction for documents that had not been received in evidence, had not been referred to in open court, and were otherwise not generally available to a non-party. Those documents fall into a different category. The judgment refers to the implied undertaking described in Hearne v Street. In practical terms, a person who obtains documents through litigation may be restricted from using them for a collateral purpose.

So even if inspection is allowed, that does not necessarily mean the documents can be used freely in another proceeding.

The Court did not treat that as a reason to refuse inspection altogether. Instead, it said that to give effect to leave to be heard, it may be necessary to permit an interested person to inspect documents filed in the proceeding. The applicants were therefore entitled to inspect documents on the Court file as if they were a party, because that was appropriate to give effect to their right to be heard on issues relating to their appointment.

But if, and to the extent that, documents inspected were to be used for another purpose, that would be a matter for the applicants to determine. If necessary, they could apply for a release from the implied undertaking to use the documents or the information in them for another purpose.

That distinction matters in practice. Inspection answers the question, can this person see the filed material? The implied undertaking answers a different question, can this person use that material outside the proceeding for another purpose? Businesses often blur those two issues, but the Court kept them separate.

Although the parties to the proceeding either consented or did not oppose the application, the Court identified a procedural fairness problem. A number of interested persons had participated in the proceeding and had filed affidavits or other documents. The evidence did not completely address whether those people had been given notice of the application or whether they wanted to be heard on the question of inspection rights.

The judgment specifically discusses several categories of interested persons. These included the existing liquidators and receivers, former administrators and liquidators, the trustee in bankruptcy of Mr Marco, and Napoli Corporate Pty Ltd. Some of these people had filed affidavits and other documents in the proceeding. The Court considered that they might want to be heard on whether the applicants should be able to inspect those documents.

The Court therefore granted the substantive relief, but built in a safeguard. It ordered the applicants to serve a copy of the orders by 4.30 pm AWST on 24 February 2026 on specified interested persons using the last known email address of the person or their legal representative. Those notified persons were then given until 4.30 pm AWST on 3 March 2026 to apply to vary or set aside the inspection order.

Importantly, the operation of the inspection order was suspended unless and until the notice process had been completed and any challenge had either not been made in time or had been dealt with by the Court.

This is a practical roadmap for anyone seeking similar relief. If your request may affect people who filed documents, do not assume party consent is enough. Identify the affected interested persons, notify them properly, and expect the Court to preserve a right to challenge before inspection rights become operative.

The judgment also dealt with a separate issue raised through communications from the fourth, fifth and sixth defendants. They wanted to be excused from further active involvement in the proceeding until further order. The Court refused to make that kind of direction on an informal basis.

The judge explained that these defendants had been joined as parties for a reason. They had been joined to represent the interests of different classes of scheme members in earlier distribution issues. They had filed notices of appearance and had addresses for service. Unlike interested persons who may be heard without becoming parties, these defendants were actual parties to the proceeding.

The rules therefore required service of documents filed in the proceeding on them, and it was appropriate that they receive notice of case management and other hearings.

The Court said it is for each party to decide whether to participate in future applications or hearings after receiving notice. Alternatively, if a party wants a more formal arrangement, such as being excused from further active participation or only being required to participate in clearly defined circumstances, that party should apply to the Court for appropriate orders. The Court rejected the idea that others could decide on a case-by-case basis whether a party should be served or should participate.

For businesses, this is a useful procedural warning. If you are a party to litigation, you remain a party until the Court orders otherwise. Informal emails, silence or a request passed on by someone else will not usually change your status or the service obligations of others.

Most businesses will never be involved in a managed investment scheme winding up of this kind, but the procedural lessons are broader. First, litigation status can be tailored. A person may be allowed to be heard on a narrow issue without becoming a full party, or may be treated as a party for one limited purpose only. If your business needs access to documents or a right to be heard, frame the request precisely rather than asking for broader status than necessary.

Second, document categories matter. Businesses often assume that once something is filed in court it is effectively public and can be used however needed. This case shows that is too simplistic. Material read in open court is different from material filed but not received in evidence or otherwise not public. If your business files sensitive affidavits or exhibits, think ahead about who may later seek access and whether confidentiality or use restrictions may become relevant.

Third, notice matters. If another person seeks access to documents that your business filed, watch for service of orders or applications and respond within the time allowed. Delay may mean the order takes effect without your objection being heard. Fourth, if your business is a party but wants to reduce future involvement, make a formal application. Do not assume that non-participation by default will change your obligations or remove the need for service.

Finally, if your business or its officeholders want to use court-obtained documents in another proceeding, check whether the implied undertaking applies. The safest approach is to separate the questions of access and use, and seek further orders if broader use is needed.

The judgment was delivered by Feutrill J on 17 February 2026 and was determined on the papers under section 20A of the Federal Court of Australia Act 1976 (Cth). The Court made no order as to costs. The inspection order was not immediately operative. It was suspended pending service on specified interested persons and the expiry or resolution of any application to vary or set it aside.

The judgment also refers to earlier decisions in the same litigation, including the 2020 winding up and appointment orders, the 2024 special purpose appointment decision, and earlier and later decisions concerning remuneration, distribution and related procedural matters. This ruling should therefore be read as one procedural step in a continuing litigation sequence rather than a final resolution of the broader dispute.