Background
ASIC commenced the proceeding in March 2024 and obtained orders restraining Sunny Mahendra Prakash and associated companies from dealing with their property. ASIC was investigating suspected financial-services and related misconduct. In March 2026, Prakash was charged with 11 offences concerning alleged unlicensed financial services, dishonest conduct, unauthorized share trading, falsification of an investment certificate, and misappropriation of client funds.
The defendants later sought to discharge or vary the asset-preservation orders so that debts to certain self-managed superannuation funds could be repaid. On 28 May 2026, the Court varied the orders to permit specified repayments and appointed an independent accountant to identify creditors, determine amounts owed and the defendants’ capacity to pay, classify creditors as secured or unsecured, and reconcile relevant intercompany and related-party loans. The accountant was required to file a Findings Schedule with the Court and provide it to the defendants, but not to ASIC unless the Court ordered otherwise.
The Court’s Holding
Justice Meagher held that the Findings Schedule must not be published or disclosed except as permitted by the Court’s orders. The non-publication order was necessary under ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) to prevent prejudice to the proper administration of justice.
The Court found substantial factual overlap between the accountant’s work and the criminal charges against Prakash. The schedule could incorporate information that Prakash voluntarily supplied in the civil proceeding but could not be compelled to disclose at his criminal trial, and the accountant’s conclusions would resemble professional findings rather than mere allegations. Because criminal proceedings were already underway, the risk was not remote, and an ordinary jury direction might not cure the prejudice to Prakash’s rights to silence, against self-incrimination, and to a fair trial.
The Court also upheld requirements that the accountant determine whether creditors were secured and, where necessary, reconcile intercompany and related-party loans. Those tasks would help avoid later disputes about creditor priority and which defendant was liable to make payment.
Key Takeaways
- Open justice may yield where publication is necessary to be restricted to protect the integrity of an overlapping criminal proceeding.
- A court-filed expert schedule based on potentially self-incriminating material can pose greater fair-trial risks than publicly reported allegations.
- The existence of pending charges, direct factual overlap, and prejudice unlikely to be cured by jury directions supported the non-publication order.
Why It Matters
The decision illustrates how the Federal Court approaches confidentiality when civil regulatory proceedings overlap with an active criminal prosecution. Parties cannot assume that commercial sensitivity or convenience will justify suppression; the statutory test requires necessity and a real risk to the administration of justice.
It also shows how asset-preservation orders can be adjusted to permit an orderly repayment process while protecting competing creditors and an accused person’s criminal-procedure rights.