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Financial Markets Authority Act 2011

General information-gathering and enforcement powers - Miscellaneous provisions relating to powers - Effect of proceedings on exercise of powers

57: Effect of proceedings

You could also call this:

“What happens when you challenge the FMA's powers in court”

If you start a court case about the powers in section 25, those powers can still be used while the case is going on. You still have to do what section 25 says, even if you’ve started a court case.

The High Court can stop this from happening, but only if they think a few things are true. They need to think that you’ve shown the use of power might be against the law, that you’d be really hurt by it, and that nothing else could fix that hurt later. They also need to make sure that stopping the power won’t make it too hard for the FMA to do its job.

If the High Court does stop the power from being used, they have a few ways to help you if you end up being hurt. They could make a statement saying something was wrong, you could ask for money to make up for being hurt, or you might be able to argue that some evidence shouldn’t be used in court.

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56: Witnesses and counsel to have privileges of witnesses and counsel in court, or

"People talking to the FMA have the same rights as in court"

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58: Effect of final decision that exercise of powers under section 25 unlawful, or

"What happens if a court says the FMA used its powers wrongly"

Part 3 General information-gathering and enforcement powers
Miscellaneous provisions relating to powers: Effect of proceedings on exercise of powers

57Effect of proceedings

  1. If a person commences a proceeding in any court in respect of the exercise of any powers conferred by section 25, until a final decision in relation to the proceeding is given,—

  2. the powers may be, or may continue to be, exercised as if the proceeding had not been commenced; and
    1. no person is excused from fulfilling his or her obligations under that section by reason of the proceeding.

      1. However, an interim order may be made by the High Court overriding the effect of subsection (1), but only if the High Court is satisfied that—

      2. the applicant has established a prima facie case that the exercise of the power in question is unlawful; and
        1. the applicant would suffer substantial harm from the exercise or discharge of the power or obligation; and
          1. if the power or obligation is exercised or discharged before a final decision is made in the proceeding, none of the remedies specified in subsection (3), or any combination of those remedies, could subsequently provide an adequate remedy for that harm; and
            1. the terms of that order do not unduly hinder or restrict the FMA in performing or exercising its functions, powers, or duties under this Act or any provision of the financial markets legislation.

              1. The remedies are as follows:

              2. any remedy that the High Court may grant in making a final decision in relation to the proceeding (for example, a declaration):
                1. any damages that the applicant may be able to claim in concurrent or subsequent proceedings:
                  1. any opportunity that the applicant may have, as defendant in a proceeding, to challenge the admissibility of any evidence obtained as a result of the exercise or discharge of the power or obligation.

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