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In Australian Securities and Investments Commission v Edwards (No 3), 327 a period
of 10 years was imposed on a director who had failed to prevent the company from
trading while insolvent in numerous occasions. The factors the court considered in
the case were the defendant‘s knowledge, lack of contrition, amount of losses caused
and conduct during the trial. 328
Likewise, in Australian Securities and Investments Commission v Vizard, 329 the
court reasoned that the period of disqualification should reflect the need to protect
society from the kind of unlawful conduct engaged in by the defendant. The court
considered that the defendant‘s general good character and his expression of remorse
can only play a minor role in fixing the punishment for white crime offences, for it is
often the good character which facilitates the breach. 330
Case law has shown that, compared to the UK courts, the courts in Australia have a
wider discretion to consider the relevant factors to be taken into account in deciding
length of period of disqualification. This is because the courts in Australia are not
confined to factors which are alleged in the affidavit, but can also include factors
such as the conduct of the defendant during trial and lack of contrition. The courts in
the UK, however, are only allowed to consider facts in respect of the alleged conduct
in the notice given to the defendant and which have been established. 331 The
327 (2006) 57 ACSR 209.
328 The same consideration was used by the court in In Re Living Images Ltd, [1996] 1 BCLC 348;
the English court considered the director‘s educational background and the importance of seeking
professional advice. It was found that the director ignored the expert‘s advice and disregarded the
interest of creditors to continue trading. The director therefore was disqualified for six years.
329 (2005) 54 ACSR 394, see also Australian Securities and Investments Commission v Sydney
Investment House Equities Pty Ltd (2009) 69 ACSR 648; Australian Securities and Investments
Commission v White (2006) 58 ACSR 261.
330 In Australian Securities and Investments Commission v Rich (2004) 50 ACSR 693: the court
considered the seriousness of the breach, magnitude of loss, the period of time the breach was
committed, the objective of deterrence, the contrition expressed and the fact that the defendant
did not make any personal gain, as relevant factors when imposing a period of disqualification.
331 Re Sevenoaks Stationers (Retails) Ltd [1991] BCLC 325 at 331.
390