Alleged ‘shadow director’ of failing accounting firms to fight ban

He was accused of the alleged improper use of his position as a director, failure to act in good faith and in the company’s best interests, and failure to exercise care and respect regarding A&S, DNV and Armstrong.

ASIC was also concerned that Whiteman allegedly failed to meet statutory lodgment requirements to the ATO and failed to keep financial records for A&S, B&S, DNV and Armstrong.

At the time of ASIC’s decision, the companies owed a combined total of $17 million, including about $15.2 million to the ATO.

According to submissions with the Administrative Review Tribunal, Whiteman is contesting the allegation that he had a “sustained, hands-on, operational” position within the companies over a prolonged period.

Whiteman is also contesting whether he applied funds of the companies for his personal benefit, whether his conduct alone caused the companies to incur “significant debts”, and whether AHW’s operational restructuring was legitimate or intended to avoid the payment of liabilities.

As part of this, Whiteman has issued summons to various entities, including law firms and Pitcher Partners, to demonstrate there has been a significant “evidentiary imbalance” in ASIC’s favour.

Whiteman said the summons would also assist his attack on the credibility of evidence given by witnesses, which were relied on by the liquidators in making their report and by ASIC in coming to its decision.

The tribunal granted summons to be issued to Evans Ellis Law, Belleli King Lawyers, Craig Findlayson Lawyers, Clarendon Lawyers, Rothwell Lawyers, and solicitor Jonathan Kenny to produce diary entries, calendar appointments and file notes documenting meetings with Whiteman.

The firms will also have to hand over time sheets or time records showing the nature and frequency of the legal work performed.

Whiteman said this material would show he was “constantly occupied with contentious legal matters requiring lawyer meetings often requiring half days per week with lawyers”, and so could not have been shadow director.

“ASIC alleges the applicant exercised operational control across several businesses simultaneously; the summonsed material is capable of demonstrating the extent, intensity and timing of the applicant’s professional legal engagements during the same periods; this bears directly on the applicant’s capacity to exercise the degree of control alleged,” Whiteman set out in his summons submissions.

Whiteman also sought trust account records, file indexes, billing records and invoices, and court and tribunal documents, but the tribunal said this would impose a “significant burden on the law firms and go well beyond the legitimate forensic purpose of having apparent relevance”.

The tribunal granted summons for the Legal Services Commissioner to hand over a 2011 audit report into B&S, which Whiteman said would “demonstrate the applicant was not involved in the day-to-day management or conduct of the relevant legal firm during the audited period”.

This would give the tribunal a “useful point of comparison with the 2015 audit report for Bolton and Shaw which is already in evidence”.

The tribunal refused to allow a summons to be issued to Victoria Police for the purpose of scrounging up any criminal convictions for witnesses.

It also refused to issue summons to a partner at Pitcher Partners, finding the material Whiteman was after was not relevant to the issues of determination and was so extensive in its scope that it would have likely required “significant resources to be deployed”.

Nine separate requests for documents said to be in ASIC’s possession were also refused.

The case: Whiteman and Australian Securities & Investments Commission (Practice and procedure) [2026] ARTA 68.