ASIC files new defence in defamation case from Mayfair 101 boss James Mawhinney

The corporate regulator claims its allegations against Mayfair 101 boss James Mawhinney in a press release were ‘substantially true’ in a shift to its defence in a defamation case.

Mayfair 101 managing director James Mawhinney. Picture: David Ross

The corporate regulator has ramped up its defence against Mayfair 101 boss James Mawhinney, who filed defamation actions against ASIC’s deputy chair in the Federal Court, alleging a media release damaged his reputation.

In a late application last week the Australian Securities and Investments Commission moved to amend its defence in the case against Mr Mawhinney.

Mr Mawhinney is suing ASIC deputy chair Sarah Court, claiming she allowed the regulator to publish a media release which, allegedly, wrongly claimed he “knowingly misled the public by marketing high-risk products as low risk” and caused 500 investors to lose circa $211m.

The Mayfair 101 boss claimed ASIC suggested he caused investors harm “by reason of his serious misconduct in advertising investments, receiving or soliciting funds and misleading marketing”.

ASIC had attempted to bat away Mr Mawhinney’s case, but doubled down late last week filing an amended defence claiming its assertions were true.

The defence, filed by Minter Ellison solicitors Kieran Smark and Nicholas Olson, claims “substantial truth” in the media release.

ASIC had initially sought to fight Mr Mawhinney’s claims, by alleging Mr Mawhinney had not disclosed a cause of action for defamation, noting the media release was a fair report or summary of facts.

“The Respondents had a duty to publish, or alternatively an interest in publishing, the

Media Release in order to inform members of the public of the issues of public interest,” ASIC claims.

ASIC notes it had taken action against Mr Mawhinney and the Federal Court had previously made findings that four companies he controlled “had engaged in misleading advertising and had imposed penalties totalling $30m”.

Mr Mawhinney has appealed this case.

ASIC claims Mr Mawhinney’s reputation was “not further harmed” by its claims in the media release.

The defence notes although Ms Court allowed the media release to be published, she did not draft it.

Mr Mawhinney had claimed Ms Court assisted in the preparation of the media release, including providing quotes.

However, ASIC notes Ms Court did not draft the media release, only allowing it to be published and ordering a change be made after Mr Mawhinney sent a letter to the regulator.

ASIC amended the media release to note Mr Mawhinney denied any wrongdoing concerning his direction of the Mayfair 101 group.

ASIC notes its media release was seen by at least 2263 people.

“The recipients of the Media Release had an interest or apparent interest in having

information about those subjects,” ASIC claims.

On Friday Justice Craig Colvin ordered Mr Mawhinney file and serve any requests for further and better particulars from ASIC or apply to strike out any part of its defence.