Speaking to Crikey, Moylan says it took a “couple of days” after the press release temporarily wiped $314 million off Whitehaven Coal shares for the Australian Securities and Investment Commission to find him at his camp in the Leard State Forest near Maules Creek in New South Wales. His computer and mobile phone were confiscated but charges have yet to be laid.
Whitehaven Coal, ANZ and investors could all take civil action, according to Associate Professor John Duns of Monash University’s Law Faculty, but with the 24-year-old activist unlikely to have the resources to pay up, eyes will turn once again to the regulator.
Moylan says he’s now “well aware” of the possibility of 10 years in jail and fines of up to $495,000, but he didn’t know about the possible consequences when he sent the fake release saying ANZ had pulled $1.2 billion of investment from Whitehaven Coal’s mine at Maules Creek. Asked if he would still have acted, Moylan avoided the question.
“I’m not someone with hundreds of thousands of dollars,” Moylan said about the prospect of fines and damages. He has been in talks with lawyers but doesn’t have representation yet.
“We’ll see what happens if it comes. I’ve said all along that I’ve been prepared to accept the consequences. I just have to deal with it as it comes up.”
Whitehaven Coal’s biggest shareholder Nathan Tinkler has not commented on whether he plans to take action against the activist.
According to Duns, Moylan could declare bankruptcy to avoid paying damages: “You’d think there’s not going to be much satisfaction in suing him personally.” However, while declaring bankruptcy protects a person from having to pay out if sued, it does not protect them from fines that come as part of a sentence.
Duns believes the combination of media attention, the unlikelihood of results in a civil action and the ASX’s resistance to unravelling Monday’s transactions mean ASIC will be under pressure to make an example out of Moylan and his fake press release.
ASIC is investigating Moylan under Section 1041E of the Corporations Act, which deals with making false or misleading statements. The act states a person must not make statements that “have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction”.
According to Associate Professor Keturah Whitford at the Australian National University’s College of Business and Economics, Moylan could be charged under Section 1041E, but could also face civil action from stakeholders under Section 1041H of the Act.
There isn’t an Australian precedent to foreshadow the likelihood of conviction or possible sentences. Whitford says it’s “hard to predict sentencing, but the extent of damage including losses to investors would be taken into account and the fact that he wasn’t personally profiting”.
Moylan says he wrote the press release by himself, but declined to say if anyone else knew what he was doing.
This is the third time in seven months the Australian stock market has seen share prices and trading affected by hoaxes. In July last year, David Jones stocks fell 5.4% on the back of a fake takeover bid and in October, trading in MacMahon Holdings was halted due to a bogus takeover bid.
“Market integrity is a fundamental case,” said Duns. “There’s been a couple of them and that increases the pressure on ASIC to take action.”
Charges haven’t been laid over the David Jones or MacMahon cases, so there is no Australian precedent. Comparisons can be made to American activist Tim DeChristopher — he was sentenced to two years jail in 2011 after making false bids on an oil and gas lease sale in Utah.
Moylan says it’s unlikely he will take similar action again, but that others will try to “embarrass and shame” corporations with more hoaxes.