The revelation emerged in the Victorian Supreme Court on Friday during an urgently convened hearing as ASIC prepares to square off in court against AWB’s former chief executive, Andrew Lindberg.

ASIC was due to give Mr Lindberg’s legal team numerous witness statements and transcripts of compulsory interviews it conducted over the past two years with former employees of the wheat exporter and some of its former lawyers.

But AWB has objected. Its lawyers told Justice Ross Robson yesterday that the company’s lawyers should be allowed to view the transcripts first to determine if AWB has a claim for legal professional privilege.

In turn, ASIC’s counsel, Norman O’Bryan, SC, said the regulator might have its own objection to AWB seeing the documents; it might be against the public interest.

"The investigation is ongoing and so ASIC also has some public interest immunity issues, because AWB is also the subject of the investigation," Mr O’Bryan said.

Justice Robson then asked if ASIC meant "there’s possibly the same proceeding against the company". Mr O’Bryan said he did not want to say too much "in this forum" but conceded, "Well, possibly".

If ASIC is considering a civil penalty case against AWB, it could only focus on events after July 2003. Anything earlier would be barred according to the six-year statute of limitations.

Events after July 2003 might include, for example, non-disclosure of material information to shareholders or the company’s conduct during Project Rose, AWB’s internal investigation into the fees that has been widely interpreted as no more than an elaborate ruse to cover up the kickbacks.

Justice Robson will hear submissions early next week about AWB’s possible claim for legal privilege as well as ASIC’s argument that AWB should not be entitled to intervene in the Lindberg case and that some of the documents may be relevant to continuing investigations.

Mr O’Bryan told Justice Robson ASIC had not yet handed any transcripts to Mr Lindberg’s lawyers.