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Coeur De Lion Investments Pty Ltd v Lewis[2019] QDC 90

Coeur De Lion Investments Pty Ltd v Lewis[2019] QDC 90

DISTRICT COURT OF QUEENSLAND

CITATION:

Coeur De Lion Investments Pty Ltd v Lewis & Ors [2019] QDC 90

PARTIES:

COEUR DE LION INVESTMENTS PTY LTD (ACN 006 334 872)

(appellant)

v

IAN GEORGE LEWIS
(respondent)

COEUR DE LION INVESTMENTS PTY LTD (ACN 006 334 872)

(appellant)

v

PATRICK JOHN KELLY
(respondent)

COEUR DE LION INVESTMENTS PTY LTD (ACN 006 334 872)

(appellant)

v

BRUCE MURDOCH WALLIS
(respondent)

FILE NO/S:

4641/18

4642/18

4643/18

DIVISION:

Criminal

PROCEEDING:

Appeals pursuant to section 222 of the Justices Act 1886 (Q) 

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

7 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2019

JUDGE:

Smith DCJA

ORDER:

  1. Each appeal is dismissed.
  2. The orders made below are confirmed.
  3. I will hear the parties on the question of costs.

CATCHWORDS:

COMPANIES– OFFENCES– Whether private company or citizen can lay a complaint for a criminal offence contrary to a provision of the Corporations Act 2001 (Cth)

MAGISTRATES – PROCEDURE – INFORMATION COMPLAINT – COMMENCEMENT OF PROSECUTION – Whether complainant authorised to make complaint- whether Magistrate erred in striking out complaints

STATUTES– INTERPRETATION–Consideration of extrinsic material– Relevance to framework of a statute– whether section 1315 of the Corporations Act 2001 (Cth) permits a private citizen to initiate a prosecution

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB, 33 (2A) 

Australian Securities and Investments Commission Act 2001 (Cth) ss 1, 2, 5, 8, 9, 11, 12, 12A, 12GB, 12GBA, 12GC, 12HC, 13, 14, 16, 17, 18, 49, 102

Australian Securities and Investments Commission Act 1989 (Cth) ss 1, 49

Companies Act 1961 (Q) ss 7, 381

Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) s 36

Corporations Act 2001 (Cth)  ss 5B, 9, 181, 184, 206C, 534, 601ED, 1311, 1311B, 1311E, 1315, 1316, 1317, 1317J, 1317N, 1317P, 1041H, schedule 3 

Corporations Act 1989 (Cth)

Crimes Act 1914 (Cth) ss  4AA, 13

Director of Public Prosecutions Act 1983 (Cth)  ss 6, 9, 10

Financial Sector Reform (Consequential Amendments) Act 1998 (Cth) schedule 2

Justices Act 1886 (Q)  ss 43A, 222, 223, 225

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Armstrong v Hammond [1958] VR 479

Alcan (NT) v Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

ASIC v Neolido Holdings Pty Ltd & Ors [2006] QCA 266

ASIC v Platcher (2003) 44 ACSR 277; [2003] FCA 9

Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35

Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3

Brebner v Bruce (1950) 82 CLR 161; [1950] HCA 36

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Coco v R (1994) 179 CLR 427; [1994] HCA 15

R v Cubitt (1889) 22 QBD 622

Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49

Davis v Grocon Ltd [1992] 2 VR 661

Duckworth v Water Corporation (2012) 261 FLR 185; [2012] WASC 30

Dudzinski v Spender [2008] QSC 50

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Gouriet v Union Post Office Workers [1978] AC 435

Greenwood v Leary [1919] VLR 114

Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88; [1982] HCA 2

Lynch v Sloane [1959] VR 656

Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; [2001] HCA 14

Miller v CDPP (2005) 142 FCR 394; [2005] FCA 482.

National Australia Bank Limited v McFarlane [2005] VSC 438

New South Wales v Commonwealth (1990) 169 CLR 482; [1990] HCA 2

Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Workers Union (2008) 171 FCR 357; [2008] FCAFC 170

Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28

R v Drainer & Ors ex parte Pullen unreported Supreme Court of the ACT SC 82 of 1988; 19.2.88

Re Bolton ex parte Beane (1987) 162 CLR 514; [1987] HCA 12

Re Lock [2019] FCA 93

Re Warner (2015) 104 ACSR 633; [2015] FCA 323

Re Worrell (2009) 69 ACSR 584; [2009] FCA 70

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23

SAS Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55

Silbermann & Ors v CGU Insurance Ltd (2003) 47 ACSR 21; [2003] NSWSC 795

Sims v Jooste & Ors [2016] FCCA 1343

Sims v Thomas [2016] FCCA 1752

Smolarek v Roper (2009) 233 FLR 241; [2009] WASCA 124

Steane v Whichell [1906] VLR 704

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84

Vehicle Builders Employees Federation of Australia v General Motors Holden Pty Ltd (1977) 32 FLR 100

COUNSEL:

Dr C Ward SC and Mr E Robinson for the appellant

Mr G Handran and Mr N Boyd for the respondents

SOLICITORS:

Alexander Law for the appellant

McBride Legal for the respondents

Introduction

  1. [1]
    These are three appeals by the appellant against a decision by a magistrate to strike out three complaints brought against each of the respondents. It has been agreed by the parties that the appeals should be heard together.[1]

Nature of appeals

  1. [2]
    The appeals are brought pursuant to s 222 of the Justices Act 1886 (Q).  In order to succeed in such an appeal it is necessary for the appellant to show that the decision is the result of legal, factual or discretionary error.[2] 
  1. [3]
    The appeal is by way of rehearing.[3]

The complaints

  1. [4]
    The complaint against each of the respondents was in similar terms. It read:

“The complaint of SAMEH MORRIS ISKANDER as lawyer for COEUR DE LION INVESTMENTS PTY LTD (ACN 006 334 872) of care of Alexander Law 1/169 Given Terrace, Paddington in the State of Queensland made this 15th day of May 2018, before the undersigned, a Justice of the Peace for the State of Queensland, who says that on or about the twelfth day of June 2012 at Coolum and elsewhere in the State of Queensland, contrary to section 601ED of the Corporations Act 2001 (Cth), THE PRESIDENT’S CLUB LIMITED (ACN 010 593 263) operated a managed investment scheme that was not registered, such managed investment scheme being required to be registered under section 601EB of the Corporations Act 2001 and [the relevant respondent] did aid, abet, counsel or procure THE PRESIDENT’S CLUB LIMITED to commit that offence by virtue of section 11.2 of the Criminal Code 1899 (Cth).”

Background

  1. [5]
    The appellant in written submissions has informed the court that the appellant is a shareholder in The President’s Club Limited (TPC) and each of the respondents is a director of TPC. The purpose of TPC as stated in the Articles of Association is to operate a time sharing scheme. It operated this scheme at the Palmer Coolum Resort (Coolum Time Sharing Scheme) until at least 16 March 2012. The Coolum Time Sharing Scheme was a “managed investment scheme” within the meaning of that term in s 9 of the Corporations Act 2001 (Cth) (CA) and was required to be registered under s 601EB of the CA. TPC had an exemption from ASIC from the requirement to register the time sharing scheme but on 16 March 2012 that exemption ceased to be in effect.  The appellant contends that since that time TPC has continued to operate the Coolum Time Sharing Scheme as an unregistered managed investment scheme and that TPC has thereby contravened s 601ED of the CA.

Proceedings in the Magistrates Court

  1. [6]
    On 20 September 2018 the respondents brought an application before the Magistrate to strike out the complaints. The respondents submitted that the complaints should be struck out as neither the Minister nor ASIC supported the complaints being made in the proceedings; the complainant did not have standing to make the complaints; the complaints were nullities and the court had no jurisdiction to hear the complaints.
  1. [7]
    It was submitted that ASIC had oversight of registered and unregistered managed investment schemes by reason of the CA. It was submitted that s 1315 of the CA provided as to who may commence proceedings and the appellant was not one of the named persons.
  1. [8]
    In the circumstances there was no standing in the complainant to bring the complaint.
  1. [9]
    The appellant on the other hand submitted that s 1315 of the CA did not in any way confine, restrict, displace or remove the fundamental right of the complainant to bring a private complaint. It was submitted by reason of the common law and s 13 of the Crimes Act 1914 (Cth) (Crimes Act) that the appellant was entitled to bring the complaint.  In those circumstances, there was no lack of standing. 

Magistrate’s decision

  1. [10]
    The magistrate delivered a reserved decision on 14 December 2018. The magistrate held that s 13 of the Crimes Act codified the common law and provided for the institution of proceedings in respect of offences.  The magistrate then referred to s 1315 of the CA and held that that section did provide a contrary intention to the general rule contained in s 13 of the Crimes Act.  In those circumstances, it was the magistrate’s intention to strike out the complaint and the order was made.

Grounds of appeal

  1. [11]
    Four grounds of appeal are relied on, namely:
  1. The learned magistrate erred in finding that s 1315 of the CA evinced a “contrary” intention to the general rule contained in s 13 of the Crimes Act.
  1. The learned magistrate erred in finding that s 1315 of the CA defines an exhaustive list of persons who may lay a complaint for an offence against the CA.
  1. The learned magistrate erred in failing to find that pursuant to s 13 of the Crimes Act and the common law, any person may lay a complaint for an offence against the Corporations Act.
  1. The learned magistrate erred in failing to find that ss 9(5) and 10(2) of the Director of Public Prosecutions Act 1983 (Cth) (DPPA), read with s 1315 of the CA, preserve the ability of any person to commence proceedings in respect of offences against the laws of the Commonwealth, including the CA.

Appellant’s submissions

  1. [12]
    It is submitted that s 13 of the Crimes Act is a statutory formulation of a fundamental and absolute common law right.  It is submitted the magistrate erred in determining that there was a contrary intention of the words of s 1315 of the CA.  It is submitted that nothing in s 1315 of the CA is expressed to exclude the operation of s 13 of the Crimes Act.  It is submitted that decisions of the Federal Circuit Court support the appellant’s contention.  In those circumstances the appeal should be upheld.
  1. [13]
    In oral submissions the appellant submits that it is very important to have regard to the common law principles. It is further submitted that the provision contained in s 1315 of the CA does not express a contrary intention to s 13 of the Crimes Act. Nothing in s 1315 of the CA abrogates the right of a private individual to bring a prosecution. It is submitted that by way of example s 12HC of the Australian Securities Investments Commission Act 2001 (Cth) (ASICA 2001) and s 1317J(4) of the CA are stronger than s 1315.  It is submitted that the Federal Circuit Court decisions are highly persuasive and should be followed.

Respondents’ submissions

  1. [14]
    The respondents on the other hand submit that s 1315 of the CA identifies precisely who may take criminal proceedings for alleged offences against the CA. It is submitted the construction advanced by the appellant renders the section meaningless. It is submitted that the section provides a contrary intention to s 13 of the Crimes Act.  It is submitted that the scheme of the CA as a whole leads one to the conclusion that it is ASIC which has responsibility for the administration of the Act.  It is submitted the rules of statutory interpretation support the contention that a private prosecution may not be brought in these circumstances.
  1. [15]
    In oral submissions the respondents submitted that the common law was irrelevant to an interpretation of s 1315 of the CA. It is submitted that the predecessor to s 1315[4] leads one to the conclusion that s 1315 of the CA should be construed narrowly.  It is submitted that the Federal Circuit Court decisions relied upon by the appellant are incorrect.  The explanatory memoranda and Hansard support the contention that only ASIC and the named individuals can bring prosecutions.  It is submitted it is wrong to import the common law when one interprets this provision.  The respondents submit that an analysis of the corporations’ legislation leads one to the conclusion that it is for the regulator to bring the prosecution.  The structure of the legislation supports a narrow construction of s 1315. 

Discussion

The sections

  1. [16]
    The issue in this case is whether s 13 of the Crimes Act has been overridden by s 1315 of the CA.
  1. [17]
    The alleged offence here is contrary to section 601 ED (5) of the CA. This section provides:

“(5) A person must not operate in this jurisdiction a managed investment scheme that this section requires to be registered under section 601EB unless the scheme is so registered.

Note: Failure to comply with this subsection is an offence: see subsection 1311(1).”

  1. [18]
    Section 1311 of the CA provides:

“General penalty provisions

  1. (1)
    A person who:
  1. (a)
    does an act or thing that the person is forbidden to do by or under a provision of this Act; or
  1. (b)
    does not do an act or thing that the person is required or directed to do by or under a provision of this Act; or
  1. (c)
    otherwise contravenes a provision of this Act; is guilty of an offence by virtue of this subsection, unless that or another provision of this Act provides that the person:
  1. (d)
    is guilty of an offence; or
  1. (e)
    is not guilty of an offence.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.”

  1. [19]
    The maximum penalty for individuals is five years imprisonment[5] or 4500 penalty units ($495,000)[6]
  1. [20]
    Section 1315 of the CA provides:

1315 Proceedings: how taken

  1. (1)
    Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:
  1. (a)
    ASIC; or
  1. (b)
    a Commission delegate; or
  1. (c)
    another person authorised in writing by the Minister to institute the proceedings.
  1. (2)
    A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.
  1. (3)
    Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.”
  1. [21]
    However section 13 of the Crimes Act provides:

Institution of proceedings in respect of offences

Unless the contrary intention appears in the Act or regulation creating the offence, any person may:

  1. (a)
    institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
  1. (b)
    institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.”
  1. [22]
    Section 13 of the Crimes Act reflects the common law position that a citizen has the right to lay an information for an offence if the breach of the law charged was of a public nature,[7] although section 13 removed the distinction between breaches of a public or private nature. 
  1. [23]
    It is important to remember that unless the parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[8]
  1. [24]
    White J said in Dudzinski v Spender[9] that section 13 of the Crimes Act enshrines the common law position.
  1. [25]
    The respondent took issue with the use one can make of the common law when interpreting a statute and whether section 13 of the Crimes Act “enshrined” common law rights. The respondent relied on statements by McHugh J in Malika Holdings Pty Ltd v Stretton.[10]
  1. [26]
    In my view however, his Honour’s statements do not undermine the cases I have referred to in footnote 8 in particular Saeed at [15] and Coco at pp 436-437.  
  1. [27]
    Perhaps it might better be expressed to say that section 13 of the Crimes Act reflects the common law position.[11]  
  1. [28]
    It was common ground though that in order to consider the meaning of s 1315 of the CA, it is necessary to read this section in the context of the Act as a whole and to consider its context and purpose.[12] 
  1. [29]
    The starting point of course is the text of the statute.[13]
  1. [30]
    The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to mean.[14]
  1. [31]
    Other aids to statutory interpretation include the use of extrinsic material where the meaning is not clear[15] and a construction which promotes the statute’s objects is to be preferred.[16]
  1. [32]
    I do note that section 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) permits reference to the extrinsic material even where the statute is clear.
  1. [33]
    It may be thought that the use of the word “may” in section 1315 renders the matter a little unclear. But regardless, reference to the statutory history is of some importance here. This is particularly so when there are dangers in relying on maxims of statutory interpretation such as expressio unius est exclusio alterius.[17]

History

  1. [34]
    A power similar to section 1315 of the CA can be traced to section 381 of the Companies Act 1961 (Q).  Under that section the power to prosecute for breaches of the Company law was vested in the Registrar or with the written consent of a Crown Law Officer, by any person. The Registrar had the charge and control of the Companies office and duties and functions conferred by the Act.[18]
  1. [35]
    The uniform Companies legislation was introduced in 1988 and commenced in 1989 at which time section 1315 was introduced. Before this, under section 36(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth), proceedings for an offence could only be instituted by the Commission, a delegate or an authorised person of the Commission or another person authorised by the Minister.
  1. [36]
    Section 36 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) provided:

“(1)  Except where provision is otherwise made in the relevant Act concerned, proceedings for an offence against a provision of a relevant Act may be instituted only-

  1. (a)
    by the Commission;
  1. (b)
    by a person to whom the Commission has delegated the power to institute the proceedings;
  1. (c)
    by a person authorized by a person referred to in paragraph (b) to institute the proceedings; or
  1. (d)
    by another person authorized in writing by the Ministerial Council to institute the proceedings.”
  1. [37]
    It may be seen that section 36 was absolute in its terms as to who could prosecute.
  1. [38]
    The uniform Companies legislation was introduced as part of a suite of measures introduced in 1988 by the Commonwealth parliament. In addition to the Corporations Act 1989 (Cth), the Australian Securities and Investments Commission Act 1989 (Cth)[19] was passed.  The objects of that Act were noted in section 1 as being to provide for the Australian Securities and Investments Commission which was to administer such laws of the Commonwealth, the States and the Territories as conferred functions and powers on the commission and to take what action it could to enforce and give effect to such laws.
  1. [39]
    The explanatory memorandum to the Bills noted in volume 4 at p 953:

“Cl.1315: Proceedings – how taken

3929. This provision is based on s 36 of the C&S Interpretation Act and will provide that unless the Bill provides otherwise, any information, charge, complaint or application in relation to proceedings for an offence against the Bill will only be able to be laid or made by the Australian Securities Commission (ASC) or a delegate of the ASC, or any other person authorised by the Minister to institute proceedings. (My underlining)”

  1. [40]
    This gives a very good indication as to the parliament’s intention.
  1. [41]
    Prior to the introduction of the 1989 legislation the bills were amended a number of times.
  1. [42]
    First, section 49 of the ASIC Bill was amended to replace the word “shall” with “may”. Section 49 ultimately provided that ASIC may cause a prosecution for an offence if after an examination or investigation it appeared to ASIC that a person may have committed an offence against a national scheme law.[20]  The effect of this was to confer a discretion in ASIC not to prosecute if the Commonwealth Director of Prosecutions (CDPP) advised ASIC not to.[21]
  1. [43]
    In the House of Representatives official Hansard for 28 September 1988, the Attorney-General moved that the word “shall” be substituted with “may” in clause 49 of the ASICA Bill. The Attorney-General at p 1033 stated:

“Our amendment (4) omits the word ‘shall’ from clause 49(2) and substitutes the word ‘may’.  As I said, there is a discretion.  The ASC is not obliged to commence or carry out a prosecution, although it may do so.  Whilst it may make an initial decision to prosecute, the matter might be then handed over to the DPP.  Therefore, it would not be in the Commission’s hands…”

  1. [44]
    It may be seen then that the insertion of the word “may” was not designed so that others might prosecute, but so that a discretion was given to ASIC as to whether or not to prosecute.
  1. [45]
    Second, a subsection preserving the operation of the Director of Public Prosecutions Act 1983 (Cth) was inserted into section 49 of the ASIC Bill.  A provision like this had been in the 1980 Act.[22]
  1. [46]
    In the supplementary explanatory memorandum this noted that the amendment to the Bill included an amendment to preserve the role of the Director of Public Prosecutions. At p 5 it was noted:

“10. Clause 49 requires the ASC to have the sole duty to cause a prosecution to be begun and carried on for offences revealed by an investigation or record of examination where the ASC considers that it is necessary to do so.

11. The amendments to c1.49 seek to preserve the statutory functions and powers of the Director of Public Prosecutions and, in particular, the DPP’s general functions which are to institute and carry on proceedings for commitment for trial, and to institute and carry on proceedings for summary conviction, in relation to Commonwealth offences.

12. The amendments will empower the ASC to commence and carry on prosecutions but without prejudice to the DPP’s statutory powers and functions. In particular, the DPP’s powers to take over, to carry on or to terminate a proceeding for commitment for trial or summary conviction and to give directions or furnish guidelines with respect to the prosecution of offences will not be prejudiced.

13. In accordance with Commonwealth prosecution policy the ASC will have to send the DPP a brief of evidence if as a result of an investigation an offence appears to have been committed. Although the ASC will be able to make an initial decision to prosecute, the DPP has the responsibility to determine whether a prosecution should proceed.

14. Similar amendments are proposed to the corresponding provisions in the Corporations Bill (c1.1315)… (My underlining)”

  1. [47]
    Third, the word “only” was removed from section 1315 of the Corporations Bill. The Attorney-General explained that although the Commission or a person authorised by the Minister “has the sole duty to cause proceedings to be commenced for offences against the Bill” the amendments preserved the statutory functions and powers of the CDPP to take over, carry on or terminate criminal prosecutions, and to give directions to the Commission about prosecutions.[23] 
  1. [48]
    In the supplementary explanatory memorandum at p 60 it was noted:

“282. Clause 1315 requires the ASC, an ASC delegate or a person authorised by the Minister to have the sole duty to cause proceedings to be begun for offences against the Bill.

283. The amendments to cl.1315 seek to preserve the statutory functions and powers of the Director of Public Prosecutions and, in particular, the DPP’s general functions which are to institute and carry on proceedings for commitment for trial, and to institute and carry on proceedings for summary conviction, in relation to Commonwealth offences.

284. The amendments will empower the ASC, an ASC delegate or a person authorised by the Minister to commence and carry on prosecutions, but without prejudice to the DPP’s statutory functions and powers. In particular, the DPP’s powers to take over, to carry on or to terminate a proceeding for commitment for trial or summary conviction and to give directions or furnish guidelines with respect to the prosecution of offences will not be prejudiced.

285. In accordance with Commonwealth prosecution policy the ASC will have to send the DPP a brief of evidence if, as a result of an investigation, an offence appears to have been committed. Although the ASC will be able to make an initial decision to prosecute, the DPP has the responsibility to determine whether a prosecution should proceed.

286. Similar amendments are proposed to the corresponding provisions in the Australian Securities Commission Bill (cl.49) and the Close Corporations Bill (cl.142). (My underlining)”  

  1. [49]
    The Attorney-General said in Hansard dated 28 September 1988 at p 1146:

“Under clause 1315 an Australian Securities Commission delegate or a person authorised by the Minister has the sole duty to cause proceedings to be commenced for offences against the Bill.  The proposed amendments will preserve the statutory functions and powers of the Director of Public Prosecutions in relation to offences against Commonwealth laws.  In particular, the amendments clarify that the powers of the DPP to take over, carry on or terminate a proceeding for commitment for trial or summary conviction and to give directions with respect to the prosecution of offences will not be prejudiced. (My underlining)” 

  1. [50]
    When one considers this history, it points one to the conclusion that it was only specified persons who were entitled to bring criminal prosecutions for breaches of the Corporations law. One may reach this conclusion as this was clear under the 1980 Act and further it was the Federal Parliament’s intention that only those named persons had the “sole duty” to prosecute.
  1. [51]
    The appellant in its submissions attempted to distinguish the concept of “duty” from “right”. However in my respectful view, this did not satisfactorily explain why the word “sole” was used.
  1. [52]
    But leaving aside the historical background one must turn to the present scheme.

Present Scheme

  1. [53]
    The Australian Securities and Commission Act 2001 (Cth) (ASICA 2001) provides that ASIC is a body corporate[24] constituted by members appointed by[25] and reporting to the minister[26]
  1. [54]
    ASIC is charged with the administration[27] and enforcement[28] of the CA and the ASICA 2001 (excluding Part 2, Division 2)  and more recently the Australian financial system.[29] 
  1. [55]
    Another one of its objects is consumer protection.[30]
  1. [56]
    ASIC is duty bound to “take whatever action it can take and is necessary, in order to enforce and give effect to the laws of the Commonwealth that confer functions and powers on it.”[31] 
  1. [57]
    It is important to note that ASIC specifically has the power to investigate a suspected contravention of the law relating to the management of a managed investment scheme.[32]
  1. [58]
    ASIC acts independently with the Minister only being able to give written directions about its policy and priority matters[33] (but not about any particular case[34]) and to investigate serious contraventions and certain other matters.[35] Where ASIC investigates the minister’s direction it must report to the minister.[36]
  1. [59]
    Otherwise ASIC may report to the minister on an investigation it conducts[37] and it may also give a copy of any such report to the CDPP amongst other law enforcement agencies if it related to a serious contravention.[38] 
  1. [60]
    It is of note that ASIC may contract.[39] Relevant to this is the Memorandum of Understanding between ASIC and the CDPP regarding the prosecution of offences against the Corporations legislation.[40]  
  1. [61]
    ASIC has coercive investigative and information gathering powers.[41] Also ASIC may apply to the court for orders under the Civil Penalty provisions.[42] Also criminal proceedings may be brought after civil proceedings on substantially the same grounds.[43] However the civil proceedings are stayed if criminal proceedings over the same subject matter have already commenced.[44]
  1. [62]
    ASIC’s coercive powers extend to compelling a person to assist it in any prosecution instituted, or which it is of the opinion ought to be instituted for a criminal offence.[45]  For less serious contraventions, ASIC may issue a penalty notice.  It may also hold public hearings.[46]  Only ASIC has standing to apply for the disqualification of a person from managing a corporation.[47] 
  1. [63]
    ASIC may delegate any function or power conferred upon it.[48]  The Minister must approve before a delegation can be made to a person other than a staff member of ASIC, a person prescribed in the regulations, a person appointed by the Chair of the Australian Prudential Regulation Authority or a person nominated by the ACCC.[49] 
  1. [64]
    As to contraventions, a failure to observe a provision of the CA is a “contravention”. For some provisions a contravention is an offence.[50]  An offence is punishable by imprisonment or fine.  In other provisions a contravention is not in itself an offence unless an additional ingredient is proved.[51]  In the case of other provisions a contravention has only civil consequences.[52] 
  1. [65]
    It is of note that a private citizen cannot apply for a declaration of a contravention of a civil penalty provision.[53]
  1. [66]
    The ASICA 2001 has a similar structure to the CA. Part 2, Division 2 was inserted when consumer protection responsibilities were transferred from the ACCC to ASIC in 1998.[54] Subdivision G of Division 2 deals with enforcement and remedies including the creation of offences, pecuniary penalties and the enforcement and recovery of fines.[55] 
  1. [67]
    There are four separate powers in the Corporations legislation permitting criminal proceedings. The first power is in s 49 of the ASICA 2001. It applies where ASIC first conducts an investigation or examination and is satisfied of certain matters. Crucially this section applies where it appears to ASIC that “a person … may have committed an offence against the corporations legislation.”[56]  
  1. [68]
    The second is under section 12HC of the ASICA 2001. This section relates to prosecutions for offences against Part 2, Division 2 of the ASICA 2001 namely the consumer protection provisions. These were placed in the ASICA 1989 when those powers were transferred from the ACCC to ASIC in 1998. One should also bear in mind section 12HC reflects that which was in section 163 of the Trade Practices Act 1974 (Cth).
  1. [69]
    The third is in section 534 of the CA. This enables a liquidator to prosecute delinquent officers and members after a report has been lodged under section 533 of the CA and ASIC does not prosecute.
  1. [70]
    The fourth is section 1315 of the CA. It is expressed not to affect the operation of the DPPA.
  1. [71]
    Sections 6 and 9 of the DPPA permits the CDPP to take over, carry on or terminate proceedings for committal, trial or summary convictions for offences against laws of the Commonwealth. Those powers are preserved by sub sections 49(5) of the ASICA 2001 and s 1315(3) of the CA.
  1. [72]
    It is clear the Corporations legislation maintains separate streams for criminal and civil proceedings. Part 9.4 of the CA relates to criminal proceedings and refers to “offences generally” in the heading. Part 9.4B of the CA relates to “civil consequences of contravening the civil penalty provisions”. Part 9.4B of the CA also provides for certain private litigation remedies aside from those arising in proceedings brought by ASIC.
  1. [73]
    Part 9.4 Division 1 of the CA creates specific offences. Division 2 deals with offences generally and includes section 1311 of the CA quoted above.
  1. [74]
    Turning to section 1315 of the CA, the section defines who may bring a criminal proceeding - one is ASIC either alone or by its delegate. The other is a person authorised by the Minister.
  1. [75]
    The parties referred to section 1330 of the CA. This permits ASIC to intervene in any proceedings relating to a matter arising under the CA. This in my view does not imply that ASIC would intervene in private criminal prosecutions. Examples of the sorts of proceedings contemplated are bankruptcy annulment proceedings,[57] an application to extend the time to hold a meeting of creditors,[58] an application by a liquidator for the fixing of remuneration[59] and an application for declarations by a liquidator that certain moneys are held in trust[60].  

Cases on prosecution provisions

  1. [76]
    The parties relied on a number of cases which each said supported their position on whether a contrary intention appeared in a statute.
  1. [77]
    Brebner v Bruce[61] was relied on by both parties. In Brebner the High Court was concerned with a case where Brebner (a police constable) brought a complaint against Bruce for using a telephone in an offensive manner contrary to regulation 63 of the Post and Telegraph Act 1901 - 1949. The High Court held that the complaint was lawfully made.
  1. [78]
    On my reading of the case there was no specific section which purported to authorise any particular individual to prosecute with the exception of section 156 which was in limited circumstances - i.e. where an admission was made. For this reason the majority held that section 13 of the Crimes Act applied and supported the complaint.
  1. [79]
    Latham CJ noted at p 167 that the “necessary contrary intention” did not appear either expressly or impliedly.
  1. [80]
    Fullagar J agreed and said at p 175 “the ‘contrary intention’ need not, of course, be stated in express words, but it must “appear”, and I think it can appear only by express words or by necessary implication.”
  1. [81]
    The appellant relied on Victorian Full Court decision of Armstrong v Hammond.[62]  In that decision Mr Armstrong charged Mr Hammond with wilful damage of public property.  The information was struck out by a Court of Petty Sessions and an order nisi obtained from the Supreme Court.  The order nisi was made absolute.  The Full Court noted that the general rule is that a member of the public may lay an information for an offence if the breach of law charged is of a public nature.  It was ultimately held that Mr Armstrong was entitled to bring the information.  In that case, the magistrate incorrectly thought that there was a statutory prohibition under s 190 of the Police Offences Act.  This provided:

“(1)  Unless otherwise specially provided any inspector or other officer of the Department of Health or of the council of any city town borough or shire or any member of the police force may lay an information for any breach of or offence under any of the preceding provisions of this Act.”

  1. [82]
    It was held at p 481 that the right of persons to lay an information could not be denied in the absence of clear and express language. The court held at p 482 that it was of the opinion that s 190 did not operate to take away the right of any member of the public to an lay information charging a defendant with an offence created by the Act which is of a public nature.
  1. [83]
    I consider that Armstrong’s case differs from the instant case.  In the instant case one must have regard of course to the scheme of the Act and the extrinsic material to which I have had reference.  Additionally, I think it is crucial to note that the heading of s 1315 (which is an aid to interpretation here) states clearly as to how proceedings are to be taken unlike the provision in Armstrong
  1. [84]
    The next decision relied upon by the appellant was the case of Greenwood v Leary.[63]  In that case an information was laid under s 36 of the Police Offences Act 1915 by John Leary against Mr Greenwood charging him with assault.  An objection was taken to the informant prosecuting the matter because he was an infant.  The magistrate overruled the objection and fined the defendant.  An order nisi to review the decision was obtained.  It was discharged.  Hood J noted at p 116 that unless it appeared plain that the legislation expressed a contrary intention, any person may be an informant for an offence of a public nature.  Hood J rejected the argument by the defendant that s 187 expressed such an intention.  It was held that s 187 enabled any member of the police force to lay an information for any breach of or offence under any of the proceeding sections.
  1. [85]
    Equally it seems to me as far as I can see from the report that s 187 is not as clear as s 1315. This is bearing in mind the history and statutory context of s 1315.
  1. [86]
    Next, the appellant relied on Steane v Whitchell.[64]  In that case Steane, the building surveyor for the town of Northcote, laid an information against Whitchell alleging he commenced a building without first paying the town clerk the fees provided for by regulations.  The defendant objected to the information alleging the informant was not entitled to lay it.  Hood J at p 705 noted that generally any person may be the informer, but sometimes the Statute only allows certain persons to be informers.  Hood J noted at p 707 that all sections of the Act should be considered together and “if this be done it seems clear that the Legislature contemplated that an officer or other person authorised for that purpose may prosecute, and we think this includes laying the information in his own name.”  Importantly, the regulations held that it was the duty of the surveyor to see that all the rules and directions of the regulations were well and truly observed and he was authorised and instructed to prosecute in the name of the Council all persons committing a breach of the regulations.  In the circumstances the order nisi was discharged. 
  1. [87]
    I do not think this case greatly assists my determination in this matter bearing in mind these specific regulations to which I have referred.
  1. [88]
    Finally the appellant relied on Lynch v Sloane.[65] In this case Lynch, an assistant to the Inspector of Fisheries, charged the defendant Sloane with using an automatic shotgun to kill native game contrary to section 24 of the Game Act 1928. A court of petty sessions dismissed the complaint on the grounds that authority to lay the complaint had not been proved. The order nisi was made absolute.
  1. [89]
    Herring CJ, following Greenwood v Leary, noted at p 658 that any person could be an informant for an offence of a public nature unless the legislation expressed a contrary intention. His Honour at p 659 analysed the history of the legislation and noted that “[t]he Legislature therefore had very much in mind the right of the citizen to lay informations under the Act, when it introduced section 24.” This was because one half of the penalties recovered were to go to the informant.
  1. [90]
    In my respectful view this case differs from the instant one bearing in mind the history of section 1315 of the CA and the context of the statute.
  1. [91]
    On the other hand, the respondents relied on the decision of R v Cubitt.[66]  In this case an information was issued alleging that Hill, the master of a sea fishing boat, Violet, did within the fishery limits of the British Isles unlawfully lift certain gear not belonging to him namely a crab pot and lines, the property of Coaker.  Mr Coaker had issued a complaint.  Section 11 of the Sea Fisheries Act 1883 stated “[t]he provisions of this Act…shall be enforced by sea fishery officers.”  Lord Coleridge CJ held at p 624 that only sea fishery officers could enforce the provisions of the Act.
  1. [92]
    The respondents also relied on Davis v Grocon Ltd.[67] In this matter the respondent company was charged with a number of breaches of the Occupational Health and Safety Act 1985. The charges were laid by an inspector appointed under that Act. The appeal against a Magistrate’s decision striking out the complaint was allowed. Hayne J at p 669- 670 formed the opinion that a combination of section 48 and 49 of the Act showed that the intention of the legislature was that only the Minister or an inspector could lay the complaint. 
  1. [93]
    The cases relied on by the parties assisted their respective positions but at the end of the day each of the cases relied on by the parties are of limited assistance because each depends upon the particular statutes with which they were concerned.
  1. [94]
    The fact is, I am concerned with a completely different statute which must be interpreted according to its own terms, contextually and historically.

Conclusion

  1. [95]
    When one reads section 1315 of the CA in the context of its history and in the context of the statutory scheme as a whole, it is my view that section 1315 of the CA by necessary implication excludes section 13 of the Crimes Act.
  1. [96]
    As I have said, section 1315 of the CA defines who may bring a criminal proceeding.  One is the regulator either alone or by its delegate.  The other is a person upon the authority of the minister.  It is my opinion that reference to “another person” tells strongly against the argument that parliament intended to give a private citizen or a company an unqualified right to prosecute for criminal offences created under the CA. 
  1. [97]
    It may be thought that by limiting the class of persons in section 1315 this provides a safeguard against a floodgate of private civil prosecutions for breaches of the Corporations legislation. It preserves ASIC’s rights as the regulator charged with the enforcement of the Corporations laws.
  1. [98]
    As was noted by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd,[68] inconvenience or improbability of result may assist the court in statutory construction.
  1. [99]
    As was said in Vehicle Builders Employees Federation of Australia v General Motors Holden Pty Ltd[69] each of the persons mentioned was selected by the legislature to “police” the legislation.
  1. [100]
    It is my view that section 1315(2) of the CA reinforces the fact that only authorised persons may prosecute.
  1. [101]
    The use of the word “may” simply provides for a discretion in one of the named persons to prosecute.[70]  
  1. [102]
    I agree with the respondent’s submissions there is no reason to interpret s 1315(1) in the manner which departs from the text. If the appellant’s contention was correct then s 1315(1) serves no real purpose.[71]
  1. [103]
    The confinement of the prosecuting powers to only those with investigative functions and responsibilities supports a narrow construction of section 1315. Also the heading which states how proceedings are to be taken confirms a narrow view of the provision.[72]
  1. [104]
    I agree with the respondent’s submission that the scheme of the Corporations legislation provides an important context of the statutory basis of section 1315.[73] The statutory scheme supports the contention that only a member of the defined class can prosecute offences under the CA.   
  1. [105]
    I also agree with the respondent that it would be a strange result if only ASIC could bring civil contravention proceedings under section 1317J of the CA and yet others could bring criminal proceedings for contraventions of the same provisions with far more serious consequences. I again refer to CIC Insurance Ltd v Bankstown Football Club Ltd[74]in this regard.
  1. [106]
    The appellant has relied on Attorney-General v Oates[75] and two decisions of the Federal Circuit Court which it says supports its position.
  1. [107]
    In Oates the respondent was charged with offences against sections 229 and 570 of the WA Corporations Act on 12 January 1995 relating to acts or omissions in the period 26 August 1988 and 29 May 1989. There was also a charge of conspiracy to defraud contrary to the WA Criminal Code. The Minister consented to the prosecution of the 229 and 570 charges on 5 January 1995. Section 1316 of the Corporations Law provided that despite any other law, proceedings against the law may be instituted within 5 years after the act or omission or at any later time with the Minister’s consent.
  1. [108]
    The Full Court of the Federal Court declared that the Minister’s consent was void. It held that for prosecutions against the Corporations Law, even those on indictment where there is otherwise no time limit, must be commenced within 5 years and if that period has elapsed the consent of the Minister is always necessary.
  1. [109]
    The appeal was allowed by the High Court. The High Court held that the section was facultative and not restrictive. There is no immunity if after five years there is no prosecution or consent.
  1. [110]
    In my view the decision in Oates does not support the appellant’s position. It considered a different section to the present. An analysis of the scheme supported the High Court’s interpretation of the section.
  1. [111]
    As I have said, an analysis of the scheme leads one to a narrow construction of section 1315.
  1. [112]
    In Sims v Jooste & Ors[76] the respondents sought to dismiss the application of the applicant. The application sought damages and compensation under various Commonwealth statutes. Judge Lucev considered section 1315 of the CA. His Honour found at [59] that the Court was not prepared to find that the applicant could not privately prosecute an offence under the CA.
  1. [113]
    With due respect to His Honour the decision appears contrary to the authorities His Honour cited.
  1. [114]
    Firstly in Silbermann & Ors v CGU Insurance Ltd[77] Bergin J at [31] specifically stated that he considered that “… the manner in which proceedings of this nature may be commenced are, it seems, limited to them being brought by ASIC, a Commission delegate or another person authorised in writing by the Minister to institute the proceedings (s 1315).
  1. [115]
    Secondly in ASIC v Neolido Holdings Pty Ltd & Ors[78] Keane JA held at [43] that in general it is ASIC itself which brings proceedings for offences against the CA. Indeed  subject to one exception the liquidator has no ability to bring proceedings for an offence against the CA and in particular could not seek a declaration for contravention of the CA or a pecuniary penalty order.
  1. [116]
    The two authorities support the contention that only the named persons may prosecute.
  1. [117]
    His Honour then referred to Miller v CDPP[79] and R v Drainer & Ors ex parte Pullen[80] and noted that under the DPP Act a private prosecution could be brought by a person other than the Commonwealth DPP. As the respondents’ submit, these cases are not concerned with section 1315 of the CA.
  1. [118]
    Turning to Sims v Thomas,[81] the same Federal Circuit Court Judge decided at [32]- [36] decided exactly the same way.
  1. [119]
    I agree that the ordinary course would be for this court to follow decisions of the Federal Circuit Court, however with due respect to His Honour I do not think his conclusions were correct and I decline to follow them.[82]
  1. [120]
    It is my respectful opinion that having regard to the context and purpose of the Act s 1315 of the CA does provide a contrary intention to s 13 of the Crimes Act and only those persons mentioned in s 1315 may bring a prosecution. 
  1. [121]
    Indeed in Smolarek v Roper[83]the Court of Appeal of Western Australia took the view that section 1315 provided for ASIC’s general power to prosecute for an offence against the CA.  
  1. [122]
    The magistrate was correct in reaching the view that she did. The grounds of appeal are not established.
  1. [123]
    My orders are

1. The appeals are dismissed.

2. The orders made below are confirmed.

3. I will hear the parties on the question of costs.

Footnotes

[1]Sections 43A and 225(3) of the Justices Act 1886 (Q).

[2]Teelow v Commissioner of Police [2009] 2 Qd R 489; [2009] QCA 84 at [4] applying Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [33].

[3]Section 223 of the Justices Act 1886 (Q).

[4]Section 36 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth).

[5]Section 1311E of the CA and schedule 3.

[6]Section 1311B of the CA. At the time a penalty unit under section 4AA of the Crimes Act was $110.

[7]Gouriet v Union of Post Office Workers [1978] AC 435 at p 477; Armstrong v Hammond [1958] VR 479 at p 480; National Australia Bank Limited v McFarlane [2005] VSC 438 at [34].

[8]Re Bolton ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 at p 523; Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; [2002] HCA 49 at [11]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [14]; Coco v R (1994) 179 CLR 427; [1994] HCA 15 at pp 436-437.

[9][2008] QSC 50 at [37].

[10](2001) 204 CLR 290; [2001] HCA 14 at [29]-[30].

[11]Brebner v Bruce (1950) 82 CLR 161; [1950] HCA 36 at p 169 per McTiernan J and p 175 per Fullagar J.

[12]Australian Building and Construction Commissioner v Construction Forestry Mining and Energy Union (2018] 262 CLR 157; [2018] HCA 3 at [103]; Alcan (NT) v Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47]; Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [69].

[13]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]; SAS Corporation v Miles (2018) 92 ALJR 1064; [2018] HCA 55 at [20]  

[14]Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 at [78].

[15]Section 15AB of the Acts Interpretation Act 1901 (Cth). Although the clear meaning of the text cannot be displaced see Alcan (NT) v Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].

[16]Section 15AA of the Acts Interpretation Act 1901 (Cth).

[17]Houssein v Under Secretary Department of Industrial Relations (1982) 148 CLR 88; [1982] HCA 2 at p 94.

[18]Section 7 of the Companies Act 1961 (Q).

[19]It is to be noted the later 2001 legislation was introduced in response to the High Court decision of New South Wales v Commonwealth (1990) 169 CLR 482; [1990] HCA 2. 

[20] “National Scheme Law” was defined in section 5 of the ASICA 1989 as inter alia the Corporations Act 1989.

[21]Supplementary Explanatory Memorandum Australian Securities Commission Bill 1988  cl 10-13; Official Hansard No 162 28 September 1988 p 1033.

[22]Supplementary Explanatory Memorandum Australian Securities Commission Bill 1988  cl 10-13; Official Hansard No 162 28 September 1988 p 1033 and 1146.

[23]Official Hansard No 162 28 September 1988 p 1033 and 1146.

[24]Section 8 of the ASICA 2001.

[25]Section 9 of the ASICA 2001.

[26]E.g. Section 11(2)(b) of the ASICA 2001.

[27]Section 5B of the CA and section 1(2)(d) of the ASICA 2001.

[28]Section 1(2)(g) of the ASICA 2001.

[29]The Financial Sector Reform (Consequential Amendments) Act 1998 (Cth) and s 11 and 12A of the ASICA 2001.

[30]Section 12A of the ASICA 2001.

[31]Section 1(2)(g) of the ASICA 2001.

[32]Section 13 of the ASICA 2001.

[33]Section 14 of the ASICA 2001.

[34]Section 12(3) of the ASICA 2001.

[35]Section 12 of the ASICA 2001.

[36]Sections 17(2) and 18(1) of the ASICA 2001.

[37]Section 16 of the ASICA 2001.

[38]Section 18 of the ASICA 2001.

[39]Section 8(1) of the ASICA 2001.

[40]Memorandum of Understanding dated 1 March 2006.

[41]Part 3 of the ASICA 2001.

[42]Section 1317J of the CA.

[43]Section 1317P of the CA.

[44]Section 1317N of the CA.

[45]Section 1317 of the CA.

[46]Part 3 Division 6 of the ASICA 2001.

[47]Section 206C of the CA.

[48]Section 102 of the ASICA 2001.

[49]Section 102(2) of the ASICA 2001.

[50]Section 1311 of the CA.

[51]See for example sections 181 and 184 of the CA. 

[52]See for example section 1041H of the CA.

[53]Section 1317J of the ASICA 2001.

[54]Schedule 2 Financial Sector Reform (Consequential Amendments) Act 1998 (Cth).

[55]Sections 12GB, 12GBA and 12GC of the ASICA 2001.

[56]  “Corporations legislation” is defined in section 5 of the ASICA 2001 to mean the ASICA 2001 and the CA. 

[57]ASIC v Platcher (2003) 44 ACSR 277; [2003] FCA 9.

[58]Re Worrell (2009) 69 ACSR 584; [2009] FCA 70.

[59]Re Lock [2019] FCA 93.

[60]Re Warner (2015) 104 ACSR 633; [2015] FCA 323.

[61](1950) 82 CLR 161; [1950] HCA 36 at p 174.

[62][1958] VR 479. 

[63][1919] VLR 114.

[64][1906] VLR 704.

[65][1959] VR 656.

[66](1889) 22 QBD 622.

[67][1992] 2 VR 661.

[68](1997) 187 CLR 384; [1997] HCA 2 at p 408.  

[69](1977) 32 FLR 100 at p 113. Applied in Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Workers Union (2008) 171 FCR 357; [2008] FCAFC 170 at [38].

[70]Section 33(2A) of the Acts Interpretation Act 1901 (Cth).

[71]Paragraph 29 of the Respondent’s submissions.

[72]Section 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).

[73]Paragraph 31 of the Respondent’s submissions. Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [11].

[74](1997) 187 CLR 384; [1997] HCA 2 at p 408.  

[75](1999) 198 CLR 162; [1999] HCA 35.

[76][2016] FCCA 1343 at [59].

[77](2003) 47 ACSR 21; [2003] NSWSC 795 at [31].

[78][2006] QCA 266 at [43].

[79](2005) 142 FCR 394; [2005] FCA 482.

[80]Unreported ACT Supreme Court SC 82 of 1988 19.2.88.

[81][2016] FCCA 1752 at [32]-[36].

[82]Duckworth v Water Corporation (2012) 261 FLR 185; [2012] WASC 30 at [27] and [31] applying Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135].

[83](2009) 233 FLR 241; [2009] WASCA 124  at [50], [55] , [56] and [63].

Close

Editorial Notes

  • Published Case Name:

    Coeur De Lion Investments Pty Ltd v Ian George Lewis; Coeur De Lion Investments Pty Ltd, Patrick John Kelly; Coeur De Lion Investments Pty Ltd v Bruce Murdoch Wallis

  • Shortened Case Name:

    Coeur De Lion Investments Pty Ltd v Lewis

  • MNC:

    [2019] QDC 90

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    07 Jun 2019

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)14 Dec 2018Respondents' application to strike out the complaints of the Appellant (that the Respondents operated an unregistered managed investment scheme and in contravention of s 601ED of the Corporations Act 2001 (Cth); application granted as Appellant lacked standing: complaints struck out: Smith DCJA.
Primary Judgment[2019] QDC 9007 Jun 2019Appeals pursuant to s 222 of the Justices Act 1886 (Qld) dismissed: Smith DCJA.
Notice of Appeal FiledFile Number: CA178/19; CA179/19; CA180/1928 Jun 2019-
Appeal Determined (QCA)[2020] QCA 11129 May 2020Applications for leave to appeal granted; appeals dismissed: Philippides JA and Bond and Bowskill JJ.
Special Leave Refused (HCA)[2020] HCASL 22114 Oct 2020Special leave (against respondent Lewis) refused: Gageler and Keane JJ.
Special Leave Refused (HCA)[2020] HCASL 22214 Oct 2020Special leave (against respondent Kelly) refused: Gageler and Keane JJ.
Special Leave Refused (HCA)[2020] HCASL 22314 Oct 2020Special leave (against respondent Wallis) refused: Gageler and Keane JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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