In modern times, it is rather hard to believe that a prison term
could be imposed on a person who loses a civil case and fails to
pay part of the other party's pre-litigation costs. That
possibility exists however under section 91 of the Australian
Securities and Investments Commission Act 2001.
That section would allow ASIC to make an order that a person who
loses a case and has judgment against it, to pay the whole of
ASIC's related pre-litigation investigation expenses and
costs. Those costs can include for example, ASIC's
investigative staff's wages, counsel's fees, expert's
fees and travel costs. Since 29 July 2015, ASIC will consider
making such orders in each case where the section could be applied.
Parties are heard by ASIC before orders are made and an appeal can
be brought from their decision.
