ASIC’s Role as Intervener : When Should the Regulator Intervene in Private Litigation?

In recent years, the Australian Securities and Investments Commission (ASIC) has increasingly intervened in private litigation. It is interesting to consider why ASIC expends its resources intervening in this private litigation, given that – at least from its point of view – one of the principal benefits of this private litigation is that it enables enforcement of the of the corporate, securities and financial services regulatory regime without expenditure of its resources. ASIC intervention in private litigation can be grouped into three categories: commencement of proceedings under s 50 of the Australian Securities and Investments Commission Act 2001 (Cth); intervention under s 1330 of the Corporations Act 2001 (Cth); and, intervention with leave of the court. This article examines when ASIC has exercised its power to intervene in each of these three categories and when it should exercise its powers in each of these three categories. The article concludes with some general observations on the need to clarify and better articulate ASIC's policy on intervention