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Hutson v Australian Securities and Investments Commission & Anor[2022] QSC 243

Hutson v Australian Securities and Investments Commission & Anor[2022] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Hutson v Australian Securities and Investments Commission & Anor [2022] QSC 243

PARTIES:

JENNIFER JOAN HUTSON

(Applicant)

v

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

(First Respondent)

JUDGE FARR SC

(Second Respondent)

FILE NO/S:

BS 14915 of 2021

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2022; 23 August 2022; Further written submissions received 30 August 2022

JUDGE:

Crowley J

ORDER:

  1. The application is dismissed.
  2. The Applicant is to pay the costs of each of the First and Second Respondents.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – GENERALLY – where ASIC compulsorily examined the Applicant – where the Applicant was charged in the District Court with breaches of the corporations legislation – where the Applicant applied to the District Court pursuant to s 590AA of the Criminal Code 1899 (Qld) (‘Criminal Code’) for a permanent stay of all charges against her – where the District Court dismissed the application – where the Applicant applied to the Supreme Court for declarations that the District Court judge erred in his conclusions and that the examinations were unlawful – whether the Supreme Court’s supervisory jurisdiction over inferior courts extends to granting relief in respect of the dismissal of a s 590AA application in the District Court – whether s 590AA(4) of the Criminal Code ousts the general jurisdiction of the Supreme Court to grant declaratory relief – whether discretionary considerations weigh in favour of making the declarations sought

CORPORATIONS – SUPERVISION – AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION – EXAMINATIONS – WHO MAY BE EXAMINED – where ASIC compulsorily examined the Applicant pursuant to s 19 of the of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) – whether, as a result of an investigation, it appeared to ASIC that the Applicant may have committed an offence against the corporations legislation and ought to be prosecuted – whether s 49(1) of the ASIC Act had been engaged – whether ASIC’s power under s 19(2) of the ASIC Act is subject to the limitations in s 49(4) of the ASIC Act – whether the compulsory examinations were lawfully conducted

Acts Interpretation Act 1901 (Cth), s 15AA(1), s 34A, s 34AB

Australian Securities & Investments Commission Act 2001 (Cth) s 19, s 49, s 68, s 93, s 102

Civil Proceedings Act 2011 (Qld), s 10

Constitution of Queensland Act 2001 (Qld), s 58

Criminal Code 1899 (Qld), s 590AA(4), s 668A, 668B, 669A

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited

Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, considered

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited

Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61, applied

Gedeon v Commissioner of the New South Wales Crime Commissioner (2008) 236 CLR 120, [2008] HCA 43, cited

Heerey v Criminal Justice Commission [2001] Qd R 610; [2000] QCA 511, cited

Hutson v ASIC [2022] QSC 68, cited

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, considered

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, cited

Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255; [2009] QCA 120, cited

R v Chardon [2017] 1 Qd R 148; [2016] QCA 50, considered

R v Farr (1994) 74 A Crim R 405; [1994] QCA 266, cited

R v Hutson [2021] QDCPR 78, considered

R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered

R v Lowrie [1998] 2 Qd R 579; [1997] QCA 434, cited

R v Verall [2013] 1 Qd R 587; [2012] QCA 310, cited

R v Woodman [2010] QCA 162, cited

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43; applied

Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53, cited

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, cited

COUNSEL:

N Clelland KC, with S J Webster and P Coleridge, for the Applicant

M T Brady KC, with S Marsh and R Khalilizadeh, for the First Respondent

No appearance for the Second Respondent

SOLICITORS:

Gilshenan & Luton for the Applicant

Australian Government Solicitor for the First Respondent

No appearance for the Second Respondent

Introduction

  1. [1]
    The Applicant, Ms Jennifer Hutson, seeks declaratory orders in respect of criminal proceedings presently before the District Court of Queensland, in which she is the defendant. The proceedings arise out of an investigation conducted by the Respondent, the Australian Securities & Investments Commission (‘ASIC’).[1] The Commonwealth Director of Public Prosecutions (‘CDPP’) has carriage of the prosecutions.
  2. [2]
    In order to understand the nature of the relief sought and the issues to be considered, it is necessary to first set out the relevant background to this matter in some detail.

The charges against the Applicant

  1. [3]
    The Applicant is charged on two indictments that have been presented in the District Court at Brisbane.  On Indictment No. 156/21, she is charged with:
    1. two counts of dishonestly using her position with the intention of gaining an advantage, contrary to s 184(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’);
    2. one count of failing to exercise her powers or discharge her duties for a proper purpose, contrary to s 184(1) of the Corporations Act;
    3. one count of fraud as a director to the value of $30,000 or more, contrary to s 408C(1)(a) of the Criminal Code 1899 (Qld) (‘Criminal Code’);
    4. nine counts of permitting the giving false or misleading information to an operator of a financial market, contrary to ss 1309(1) and (11) of the Corporations Act; and
    5. one count of attempting to pervert the course of justice, contrary to s 140 of the Criminal Code.
  2. [4]
    These charges arise out of a takeover bid by G8 Ltd (‘G8’), of which the Applicant was a director and chairperson, for Affinity Education Group Ltd (‘Affinity’).  It is alleged that the Applicant:
    1. used her position as a director of G8 for an improper purpose by facilitating the purchase of shares in Affinity using G8 funds;
    2. used G8 funds to purchase shares in an unrelated company;
    3. authorised transfers of money in an attempt to conceal the purchases she had facilitated;
    4. gave false market information in relation to G8’s interest in Affinity; and
    5. created false documents in an attempt to conceal from ASIC that G8 funds had been used to purchase shares in Affinity.
  3. [5]
    The Applicant is further charged on Indictment No. 161/21 with 15 counts of giving false or misleading information in the course of an examination, contrary to s 64(1)(b) of the Australian Securities & Investments Commission Act 2001 (Cth) (‘ASIC Act’).   It is alleged that the Applicant gave the false or misleading information when being examined by ASIC pursuant to s 19 of the ASIC Act on 25 May 2016 and 22 June 2016 (‘2016 Examinations’).

The stay application in the District Court

  1. [6]
    The Applicant applied to the District Court, pursuant to s 590AA of the Criminal Code, for a permanent stay of all charges against her (‘Stay Application’). On 27 September 2021, the Application was heard by his Honour Judge Farr SC.  On 16 November 2021, his Honour delivered judgment, dismissing the application.[2]
  2. [7]
    Before Farr DCJ, the Applicant had contended that the 2016 Examinations were unlawful because, at the time they were conducted, it appeared to ASIC as a result of an investigation that she may have committed an offence against the corporations legislation and that she ought to be prosecuted for that offence.  In those circumstances, so it was argued, s 49(4) of the ASIC Act prevented ASIC from exercising the power conferred by s 19 of the ASIC Act to compulsorily examine the Applicant.[3]  The Applicant submitted that by purporting to exercise that power, ASIC had ‘fundamentally and irreparably altered’ the process that was required by law to have governed the Applicant’s trial, and the only remedy was that the proceedings be permanently stayed.[4]
  3. [8]
    Farr DCJ considered that Ms Hutson’s submissions overlooked the requirement in s 49(1)(a) that for s 49(1) to apply, ASIC must have reached its position – namely that Ms Hutson may have committed an offence against the corporations legislation and ought to be prosecuted – ‘as a result of an investigation’.[5]  His Honour concluded that this phrase ‘connotes a viewpoint being reached at or near the end of an investigation’.[6]
  4. [9]
    The learned judge ultimately found, by reference to the evidence adduced at the hearing of the s 590AA application, that the investigation was, in fact, still continuing at the time of the 2016 Examinations.[7]  As such, ASIC could not have reached the required position ‘as a result of an investigation’. Therefore, his Honour concluded, s 49(4) of the ASIC Act did not apply and the 2016 Examinations were lawful.[8]  The Stay Application was dismissed accordingly.

Subsequent correspondence between the parties

  1. [10]
    On 6 December 2021, following the delivery of his Honour’s judgment, the Applicant’s solicitors wrote to the CDPP requesting that the CDPP consider referring the following question of law to the Court of Appeal, pursuant to s 668A(1) of the Criminal Code:

Does the expression ‘as a result of an investigation’ in s 49(1) of the [ASIC Act] connote that the state of mind described in that section must be ‘reached at or near the end of an investigation’?

  1. [11]
    On 8 December 2021, the CDPP replied, stating it did not intend to make a reference to the Court of Appeal. 

The original Supreme Court application

  1. [12]
    On 14 December 2021, the Applicant filed an Originating Application in the Supreme Court (‘Original Supreme Court Application’) seeking the following orders:
  1. Declarations pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) that:
    1. The purported exercise by [ASIC] of the power contained in s 19 of the [ASIC Act] to compulsorily examine [Ms Hutson] on 25 May 2016 and 22 June 2016 was unlawful, because, at the time of the purported exercise of the power, ‘as a result of an investigation’ or ‘from a record of an examination’, ‘it appear[ed] to [ASIC] that’ [Ms Hutson] ‘may have committed an offence against the corporations legislation’ and that she ‘ought be prosecuted for that offence’, in the sense contemplated by s 49(1) of the ASIC Act.
    2. The expression ‘as a result of an investigation’ in s 49(1) of the ASIC Act does not denote that the state of mind described in that section must be ‘reached at or near the end of an investigation.’
    3. [Farr DCJ]…erred in concluding that [ASIC’s] purported exercise of the power to compulsorily examine [Ms Hutson] was lawful.
      1. (d)
        [Farr DCJ]…erred in concluding that the expression ‘as a result of an investigation’ in s 49(1) of the ASIC Act connotes that the state of mind described in that section must be ‘reached at or near the end of an investigation.’

ASIC’s dismissal application

  1. [13]
    On 9 February 2022, ASIC filed an application seeking the summary dismissal of the Original Supreme Court Application (‘Dismissal Application’).  ASIC contended that the Original Supreme Court Application constituted an abuse of process on two grounds:
    1. It was ‘an impermissible collateral attack’ on the prosecutions against Ms Hutson which would result in ‘disruption and fragmentation of the criminal proceedings’.
    2. It effectively sought to relitigate some of the exact same matters dealt with in Farr DCJ’s judgment in the Stay Application.
  2. [14]
    On 29 April 2022, Kelly J dismissed ASIC’s application.[9]  His Honour considered there was a real question as to whether, if at all, s 590AA of the Criminal Code curtails the Supreme Court’s supervisory jurisdiction to make declarations in respect of criminal proceedings in the District Court.[10]  Accordingly, it was not appropriate for the Court to attempt to answer this question on a summary application.[11]  The matter could only be properly and accurately answered by the Court having the benefit of a full argument about the nature and extent of the Court’s supervisory jurisdiction and the proper construction of s 590AA.[12]

Joinder of his Honour Judge Farr SC

  1. [15]
    In May 2022, Kelly J ordered that his Honour Judge Farr SC be included as a respondent to the proceeding but excused his Honour from further appearances (save as to the question of costs).

Amended Supreme Court Application

  1. [16]
    On 23 August 2022, the second day of the hearing, I granted leave for the Applicant to read and file an Amended Originating Application (‘Amended Supreme Court Application’).  The amendment made was to the introductory wording of the orders sought, to add the words ‘and further, or alternatively, in the inherent jurisdiction of the Supreme Court’.  
  2. [17]
    The purpose and effect of this amendment is that the Amended Supreme Court Application would not necessarily fail if I were to find that s 10 of the Civil Proceedings Act 2011 (Qld) (‘Civil Proceedings Act’) did not provide a proper basis for the declaratory relief sought by the Applicant.

ASIC’s investigation

  1. [18]
    The relevant chronology of the ASIC investigation was set out by Farr DCJ in his Honour’s reasons for refusing the s 590AA application. It is convenient to adopt and set out that part of his Honour’s judgment here:[13]
  1. [20]
    From July 2015 ASIC began to monitor, and then investigate, the circumstances of a takeover bid for Affinity by G8. The applicant was a director and chairperson of G8. Shares in Affinity were purchased in tranches between 13 and 28 July 2015 by a third company, West Bridge Holdings Pty Ltd (West Bridge).
  1. [21]
    The substantive charges, representing Counts 1 – 13 on Indictment 156/21, in substance allege that between 13 July 2015 and 2 September 2015 the applicant breached provisions of the Corporations Act and Criminal Code (Qld) when she acquired a sum of money from G8 to fund West Bridge’s purchase of Affinity shares, authorised the transfer of other funds, authorised the purchase of shares with surplus funds, and, in a number of documents lodged with the Australian Stock Exchange, failed to accurately disclose G8’s ‘relevant interest’ in Affinity. The applicant denies each of those allegations.
  1. [22]
    Although an investigation was not formally ‘commenced’ under s. 13 of the ASIC Act until 12 January 2016, ASIC began monitoring the applicant’s activities in around July 2015 as part of a Takeovers Panel investigation. Her actions were referred for criminal investigation within ASIC in November 2015.
  1. [23]
    From August 2015, ASIC issued numerous statutory notices compelling relevant persons and entities to provide information, personal and company records and to furnish written statements, and, in turn, filed this material with the Takeovers Panel in support of its submissions. By September 2015, those statutory notices referred to ASIC’s allegations of contraventions of the Corporations Act. And by 9 October 2015, ASIC set out the extensive nature of its ‘investigative effort’ in its submissions on costs to the Takeovers Panel.
  1. [24]
    The Takeovers Panel made its decision on 5 October 2015 and delivered written findings shortly thereafter. Following the release of the Takeovers Panel draft written reasons, members of ASIC’s Markets Enforcement Team referred the matter to the Corporations and Corporate Governance Enforcement Team (CCG). That referral, dated 2 November 2015, alleged that, on the basis of ‘useful and relevant evidence from relevant parties’ that ASIC had already acquired, the ‘key documents’ returned under statutory notices issued by ASIC, and the ‘key assessments of the facts relevant to this referral’ in the Takeovers Panel’s draft reasons, G8 and its directors had, respectively, contravened ss. 606 and 184(2)(a) of the Corporations Act.
  1. [25]
    On 13 November 2015, Ms Kelly Rogers, senior lawyer within the CCG, recommended the acceptance of the referral. In support of that recommendation she noted that,

ASIC has the benefit of the Panel’s decision and legal analysis and the evidence and submissions put to the Panel by the parties, which reduces the extent of the ‘fact finding’ that needs to be undertaken.

  1. [26]
    On 12 January 2016 a s. 13 file note signed by a Mr Brendan Caridi (Caridi), as delegate of ASIC, recorded the formal ‘commencement’ of an investigation ‘re trading in the securities of Affinity Education Group between 2 July and 21 October 2015’. In the days and weeks that followed, ASIC issued dozens more statutory notices. Between 26 February 2016 and 24 March 2016, ASIC compulsorily examined six different people.
  1. [27]
    By 5 April 2016, ASIC investigators noted in email correspondence that they had commenced drafting witness statements for inclusion in a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP). In affidavit evidence now filed in this Court, investigators state that these witness statements were prepared for the purpose of ‘the commencement of criminal proceedings against the defendant’ and ‘were not created for any other purpose’.
  1. [28]
    On 29 April 2016, ASIC investigators wrote to the applicant offering her a cautioned record of interview. On 5 May 2016, the applicant exercised her common law right to decline to participate in that interview.
  1. [29]
    On 6 May 2016, ASIC officers Matthew Bastianon (Bastianon), Peter Paleologos (Paleologos) and Caridi issued a notice to the applicant, pursuant to s. 19 of the ASIC Act (the s. 19 notice) requiring her to attend and participate at a compulsory examination. ASIC informed the applicant that a failure to comply with the s. 19 notice constituted a criminal offence.
  1. [30]
    On 25 May 2016, the examination took place (the May examination). At the conclusion of the May examination, the examiner adjourned the examination to a date to be fixed.
  1. [31]
    On 6 June 2016, by email, ASIC notified the applicant, via her lawyers, that ASIC sought to resume the previously adjourned examination. The examination was resumed on 22 June 2016 and concluded that day (the June examination).
  1. [32]
    Following these examinations, ASIC continued to exercise what Bastianon described as its investigative powers. Those powers included ASIC engaging in the following:
  1. interviewing three prospective witnesses pursuant to s. 19 (interviewed between 21 June 2017 and 12 March 2019);
  1. interviewing numerous other prospective witnesses voluntarily;
  1. issuing 16 notices requiring the production of documents (issued between 8 July 2016 and 27 March 2018);
  1. obtaining signed witness statements from 27 witnesses (obtained between 15 July 2016 and 12 March 2019);
  1. obtaining and executing seven s. 3A Crimes Act search warrants (executed on 18 August 2016 on the residences and vehicles of the applicant and another and on the business premises of Wellington Capital Limited);
  1. reviewing, collating, copying and considering the documents produced as a result of each of the above steps; and
  1. preparing the brief of evidence for submission to the CDPP.
  1. [33]
    ASIC referred the brief of evidence to the CDPP on 22 November 2016 to enable the Director to determine whether the applicant should be charged, and, if so, what charges should be laid.
  1. [34]
    The applicant was charged in February 2018.

Issues

  1. [19]
    According to the Applicant, the following issues arise for consideration and determination:[14]
  1. Does the Court have jurisdiction to grant the relief sought? This involves, in particular:
  1. a.
    characterising the nature of the relief sought;
  1. b.
    considering the effect of s 590AA of the Criminal Code.
  1. What is the proper construction of s 49 of the ASIC Act, and what is the relationship between it and s 19 of the ASIC Act? This involves in particular:
  1. a.
    construing the ‘trigger’ for s 49 which appears in s 49(1);
  1. b.
    construing ss 19, 49 and 93 together.
  1. Were the examinations of Ms Hutson unlawful? This involves the proper characterisation of undisputed evidence about the state of mind of ASIC delegates carrying out the investigation at the time Ms Hutson was examined.
  2. Ought the Court exercise its discretion to grant the relief sought?
  1. [20]
    Whilst the Respondent formulated the issues in a slightly different way, it is convenient to consider and determine the Amended Supreme Court Application by reference to the issues as framed by the Applicant.

Jurisdiction

  1. [21]
    The question of jurisdiction is a threshold issue. If I were not satisfied that the Court had jurisdiction to grant the relief sought, then I would dismiss the matter without further need to determine the other identified issues.

Submissions of the parties

  1. [22]
    The Applicant submits the Court has jurisdiction to grant the relief sought pursuant to a statutory source of power conferred by s 10 of the Civil Proceedings Act,[15] the more general and broad supervisory jurisdiction the Court possesses over inferior Courts,[16] or in the Court’s general inherent jurisdiction.[17] The Applicant submits the Court has the necessary jurisdiction to grant the relief sought, notwithstanding that the same arguments that she advances in this Court were the subject of an unsuccessful s 590AA application made in the District Court. 
  2. [23]
    The Respondent does not accept that s 10 of the Civil Proceedings Act confers a statutory jurisdiction on the Court to grant the relief sought. Nevertheless, the Respondent accepts that, but for the operation of s 590AA of the Criminal Code, the Court has ‘inherent, original or supervisory jurisdiction’ to make declarations of the kind sought by the Applicant.[18]
  3. [24]
    The Respondent nevertheless submits that, notwithstanding the application made to this Court is styled in the form of a civil application, I should conclude it is, in effect, a continuation of the criminal proceedings. This has significance, the Respondent argues, because of the terms of s 590AA. The Respondent draws attention to s 590AA(4), which expressly precludes an ‘interlocutory appeal’ from a ruling or decision made in respect of an application brought under s 590AA(1). The Respondent argues that the present application is in substance, if not form, an interlocutory appeal against such a ruling and, therefore, the Court is deprived of jurisdiction to grant the relief sought.

Nature of the relief sought

  1. [25]
    The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to ‘state the rights of the parties with respect a particular matter with precision, and in a binding way’.[19] As an incident of the exercise of judicial power, the granting of declaratory relief involves ‘an inquiry concerning the law as it is and the facts as they are’.[20] A declaratory judgment does not create rights. Rather, it is a formal statement by a court pronouncing the existence or nonexistence of a legal state of affairs. It is a remedy that is available to vindicate a legal right.
  2. [26]
    A court may make a declaration of right whenever an applicant’s interest is sufficient to justify it.[21] It is a broad remedy. The power to grant declaratory relief is a discretionary power that it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise.[22] Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[23] Where there is no legal right, no such relief is available.[24]
  3. [27]
    It is not necessary that other specific or ancillary relief be sought where declaratory relief is sought.[25]
  4. [28]
    The Supreme Court of Queensland is the superior court of record in Queensland and the supreme court of general jurisdiction in and for the State. It has all jurisdiction necessary for the administration of justice in Queensland. It has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.[26] In the exercise of its plenary jurisdiction, the Court may of course make declarations of right.
  5. [29]
    The jurisdiction of the Supreme Court includes a general supervisory jurisdiction over inferior courts and tribunals.[27] The Court’s supervisory jurisdiction is original jurisdiction, not appellate jurisdiction.[28] It is part of the Court’s inherent jurisdiction. The Supreme Court may grant declaratory relief in the exercise of its supervisory jurisdiction over inferior courts and tribunals.[29]
  6. [30]
    The nature and extent of the supervisory jurisdiction of State Supreme Courts was considered by the High Court in Kirk v Industrial Court of New South Wales (‘Kirk’).[30] There, the plurality identified the power to confine inferior courts and tribunals within the limits of their authority to decide, by granting relief in the nature of prohibition, mandamus and certiorari, on grounds of jurisdictional error, as a defining characteristic of State Supreme Courts.[31]
  7. [31]
    Their Honours noted the supervisory jurisdiction exercised by State Supreme Courts had a Constitutional dimension, relevantly stating:[32]
  1. [98]
    The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, ‘with such exceptions and subject to such regulations as the Parliament prescribes’, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the ‘Federal Supreme Court’ in which s 71 of the Constitution vests the judicial power of the Commonwealth.
  1. [99]
    There is but one common law of Australia.  The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia.  That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court.  To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint.  It would permit what Jaffe described as the development of ‘distorted positions’.  And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
  1. [100]
    This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts.  It is not to say that no privative provision is valid.  Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non‑jurisdictional error in the Australian constitutional context.  The distinction marks the relevant limit on State legislative power.  Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.  Legislation which denies the availability of relief for non‑jurisdictional error of law appearing on the face of the record is not beyond power.
  1. [32]
    The plurality observed that the two principal grounds for a grant of relief in the nature of certiorari were usually described as ‘error of law on the face of the record’ and ‘jurisdictional error’.[33] Although their Honours stated that it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error,[34] they noted, by reference to the Court’s earlier decision of Craig v South Australia (‘Craig’),[35] that the drawing of a distinction between errors ‘within jurisdiction’ and errors ‘outside jurisdiction’ required different application as between inferior courts on the one hand and administrative tribunals on the other.[36]
  2. [33]
    In Craig, the Court explained that where available, certiorari was a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal.[37]  However, the Court there considered it necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, tribunals exercising governmental powers which were also amenable to a writ of certiorari.[38] The Court stated that if an administrative tribunal falls into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law was jurisdictional error, which would invalidate any order or decision of the tribunal. In contrast, such errors by an inferior court would not ordinarily constitute jurisdictional error.[39]
  3. [34]
    Whilst emphasising it was important to recognise that the reasoning of the Court in Craig was not to be seen a providing a rigid taxonomy of jurisdictional error, the plurality in Kirk noted the contrasting position with respect to inferior courts, stating:[40]
  1. [71]
    …The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
  1. [72]
    First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist' (emphasis added).  Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added).  (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body's functions and powers.  Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.)  Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’…
  1. [35]
    The plurality confirmed the continuing utility of the distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error.[41]
  2. [36]
    These statements by the High Court are particularly instructive in the present case. The Supreme Court’s supervisory jurisdiction over inferior courts and tribunals is not at large. The Court is not empowered to simply pronounce upon the correctness of any decision at all made by an inferior court as if it were exercising some unconstrained power of review or an appellate role. The most obvious class of decisions made by an inferior court that will be amenable to the Court’s supervisory jurisdiction are those where the decision of the inferior court is affected by jurisdictional error in the sense discussed in Kirk and Craig.  In contrast, a supposedly erroneous decision of an inferior court acting within jurisdiction will not ordinarily be amenable to the Court’s supervisory jurisdiction.
  3. [37]
    Although in Craig the Court gave as an example of jurisdictional error by an inferior court the misconstruction of a relevant statute, leading to the inferior court misconceiving the nature of the function which  it is performing or the extent of its powers in the circumstances of the particular case, an error of statutory construction of that kind committed by an inferior court will only constitute jurisdictional error where the error goes to ‘a pre-condition of the existence of… authority to make an order or decision in the circumstances of the particular case’.[42] That is, the error must be such that the inferior court has acted in excess of jurisdiction or fails to exercise its jurisdiction.
  4. [38]
    I accept that the Supreme Court of Queensland’s supervisory jurisdiction may be invoked to seek appropriate relief in respect of criminal proceedings before an inferior court of the State. In such a case, the Court has the power to make a declaration of right if, in the exercise of its discretion, such relief is warranted in the circumstances of the particular case.
  5. [39]
    I also accept that, aside from the Court’s supervisory jurisdiction, the Supreme Court has an inherent power to grant declaratory relief in the exercise of its general jurisdiction. In that respect, I am satisfied that it would be within the Court’s jurisdiction to make a declaration of right in relation to criminal proceedings if, in the exercise of its discretion, such relief was warranted in the circumstances of the particular case.[43]
  6. [40]
    As Gibbs ACJ stated in Sankey v Whitlam:[44]

It is well established that the power of the court to make a declaration, under a provision such as s. 75 of the Supreme Court Act, 1970 (N.S.W.), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd. It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence—see especially per Farwell L.J. Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings.

  1. [41]
    As to the ‘right’ that may be the subject of declaratory relief, Gibbs ACJ further stated:[45]

The word ‘right’, in the expression ‘declarations of right’ in s. 75 of the Supreme Court Act, 1970 (N.S.W.) and O. 26, r. 19 is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant …

  1. [42]
    It is to be noted that, in this case, the Applicant identifies the ‘privileges, powers and immunities’ in respect of which she seeks declaratory relief as being the right to silence and the right not to be subjected to an unlawful compulsory examination by ASIC in the purported exercise of its powers under s 19 of the ASIC Act.
  2. [43]
    With respect to the circumstances in which a declaration of right might be made in existing criminal proceedings, in Sankey v Whitlam, Gibbs ACJ stated:[46]

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. … Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.

  1. [44]
    Having regard to the foregoing, I have reached the following conclusions with respect to the threshold issue of jurisdiction.
  2. [45]
    Firstly, I do not consider s 10 of the Civil Proceedings Act provides a separate statutory source of jurisdiction pursuant to which the declaratory relief sought by the Applicant may be granted. That provision simply serves to make plain that the Court has power to hear an application that seeks only a declaratory order and that such an order may be made without granting any consequential relief.[47] It is not, of itself, a source of jurisdiction.
  3. [46]
    Secondly, I do not consider that the declarations sought by the Applicant are of a kind that may be made in the exercise of the Court’s supervisory jurisdiction. Orders 1(a) and 1(b) sought by the Amended Supreme Court Application do not seek declarations of right in respect of identifiable jurisdictional error arising from any act or omission on the part of Farr DCJ when his Honour was exercising (or, as the Applicant would have it, purporting to exercise) the jurisdiction of the District Court of Queensland. Rather, they seek declarations with respect to the interpretation and operation of provisions of the ASIC Act in the factual circumstances of this case.
  4. [47]
    Further, whilst orders 1(c) and 1(d) are sought in respect of conclusions reached by Farr DCJ in determining the Stay Application, those matters are not, in my view, amenable to a declaration of right by this Court in the exercise of its supervisory jurisdiction over an inferior court. Each of those proposed orders is expressed in terms that his Honour ‘erred’ in reaching a particular conclusion of law, or mixed fact and law, when construing the relevant statutory provisions in question. They are each framed in terms akin to a ground of appeal, asserting an error by the learned judge when acting within jurisdiction. There is no assertion of any jurisdictional error on the part of his Honour when hearing and determining the s 590AA application.
  5. [48]
    Moreover, I am not persuaded that proposed orders 1(c) and 1(d), in the terms in which they are expressed, identify a legal right that the Applicant is entitled to seek to vindicate by the making of a declaration.
  6. [49]
    In those circumstances, in my view, the Respondent’s concession that, subject to the operation of s 590AA of the Criminal Code, the Court has jurisdiction to grant the declarations sought by the Applicant in the exercise of its supervisory jurisdiction, was too lightly given and ought not to have been made.
  7. [50]
    Finally, subject to further consideration of the issue raised with respect to the effect of s 590AA(4) of the Criminal Code, I am satisfied that the Court has inherent power, in the exercise of the Court’s general jurisdiction, to grant declaratory relief of the kind sought by orders 1(a) and 1(b) of the Amended Supreme Court Application.
  8. [51]
    That being so, the next question to consider then is whether the Court’s general jurisdiction is restricted or limited in some way by s 590AA(4) of the Criminal Code.

The effect of Criminal Code s 590AA

Submissions of the parties

  1. [52]
    The parties each accept, in accordance with relevant authority, that the Court’s jurisdiction to grant declaratory relief in respect of criminal proceedings may be ousted by statute, but only where such jurisdiction is excluded by clear words.
  2. [53]
    The Respondent submits that this is the effect of ss 590AA(3) and (4). The Respondent contends that whilst s 590AA does not state in express terms that the Court’s power to grant declaratory relief in respect of a matter that has been the subject of a ruling under s 590AA(1) is removed, that is the implication resulting from the prohibition contained in s 590AA(4) in circumstances where an application for declaratory relief is properly characterised as an interlocutory appeal. The Respondent further submits that this is such a case.
  3. [54]
    The Respondent further argues that the present application should be characterised as an extension of the criminal proceedings and an interlocutory appeal against Farr DCJ’s determination. The Respondent submits that this is apparent from the nature and expression of the orders sought by the Applicant, which are styled in the form of grounds of appeal, and which directly challenge the conclusions reached by Farr DCJ by contending his Honour ‘erred’ in various respects.[48] The Respondent argues that the Applicant has adopted the language of an appeal, rendering her application ‘nothing more than an interlocutory appeal dressed up as a civil claim for interlocutory relief’.[49] In the Respondent’s submission, the Applicant’s choice to pursue an application under s 590AA carries the consequence that the present application falls foul of the explicit prohibition on interlocutory appeals contained in s 590AA(4) and must be dismissed.
  4. [55]
    However, the Respondent concedes that if it is incorrect in its interpretation of s 590AA(4) and its characterisation of the present application as an appeal, this Court does have the power to make the orders sought by the Applicant.
  5. [56]
    The Applicant submits that the application is properly brought within the civil jurisdiction and is not to be characterised as a continuation of the criminal proceedings. The Applicant further submits that s 590AA does not contain clear words directly curtailing the Court’s jurisdiction to grant declaratory relief and, therefore, the Court retains its jurisdiction to make the orders sought by the Applicant.
  6. [57]
    It is pertinent to note that the parties each agree that it would have been open to the Applicant to make an application to this Court for declaratory relief without first making an application in the District Court under s 590AA. The Applicant submits that this distinguishes the application from an appeal.

Relevant legislative provisions

  1. [58]
    Section s 590AA of the Criminal Code relevantly provides:

590AA Pre-trial directions and rulings

  1. If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling …  as to the conduct of the trial or any pre-trial hearing.
  1. Without limiting subsection (1) a direction or ruling may be given in relation to—
  1. the quashing or staying of the indictment; or

…

  1. A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.
  1. A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
  1. [59]
    Section 590AA(1) permits either the prosecution or the defendant to apply to the trial judge for a pre-trial direction or ruling. Subsections (3) and (4) limit the circumstances in which a party can reopen or challenge a direction or ruling made pursuant to sub-s (1).  Under sub-s (3), such a direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing gives leave to reopen the direction or ruling.  Subsection (4) further specifies that the direction or ruling must not be subject to ‘interlocutory appeal’.
  2. [60]
    The Criminal Code does not define the phrase ‘interlocutory appeal’. Indeed, ch 67 of the Criminal Code, which provides for appeals in respect of criminal proceedings on indictment, makes no provision at all for an ‘interlocutory appeal’.
  3. [61]
    The circumstances in which a pre-trial decision or ruling by a trial judge made under s 590AA may be reviewed before trial by the Court of Appeal are limited to those specifically provided within ch 67 of the Code. Section 668A(1) provides that a Crown Law Officer may refer to the Court of Appeal, for its consideration and opinion, a point of law that has arisen in relation to a direction or ruling under s 590AA given by another court as to the conduct of a trial or a pre-trial hearing.   In addition, under s 669A(1A), a Crown Law Officer may appeal to the Court of Appeal against an order staying proceedings on an indictment.
  4. [62]
    No such avenues of ‘appeal’ are available to an accused person. Rather, pursuant to s 668B(1) of the Criminal Code, where an accused person is tried on indictment in respect of an indictable offence, the accused person may apply to the trial judge to reserve a question of law which arises on the trial for the consideration of the Court of Appeal. In such a case, and where the accused person is convicted, the trial judge is required to state a case in respect of the question of law reserved,[50] and the question so reserved is to be heard and determined as an appeal by the Court of Appeal.[51]

Test for ouster of jurisdiction

  1. [63]
    In Forster v Jododex, Gibbs J stated:[52]

The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, ‘under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion’: … However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words.

  1. [64]
    This test was applied in Heerey v Criminal Justice Commission,[53] where the Court of Appeal considered whether, on its proper construction, s 101(1) of the Criminal Justice Act 1989 (Qld) ousted the Court’s jurisdiction to make declarations in respect of the use of listening devices by officers of the Criminal Justice Commission. In holding that it did not, Thomas JA stated:[54]

The point at issue is whether the court’s jurisdiction to make declarations has been ousted. Whilst it is possible for such a result to be achieved courts do not lightly infer that such jurisdiction has been excluded, and clear words are necessary. The breadth and utility of this remedy and its important role in the shaping of modern administrative law is well recognised. It has been observed that at the time of its origin, declaratory relief was about the only relief available to a subject against the Crown as the courts were unable to make coercive orders against the Crown. This supervisory jurisdiction, as it has now developed, remains one of the critical tools by which courts protect individual rights and maintain the rule of law.

  1. [65]
    In the present case, the critical issue is therefore whether the language of s 590AA(4) constitutes clear words capable of ousting the Court’s jurisdiction to grant relief of the kind sought by the Applicant.

Previous decisions

  1. [66]
    This issue has not previously been authoritatively determined. There have, however, been past cases that have considered similar issues.
  2. [67]
    In R v Long (No 1) (‘Long’),[55] the defendant sought to appeal to the Court of Appeal, pursuant to former s 69(1) of the Supreme Court of Queensland Act 1991 (Qld), against a Supreme Court judge’s refusal of his pre-trial application under s 559 of the Criminal Code for a change of venue for his trial from Bundaberg to Brisbane.  The defendant also sought a declaration to the effect that the trial should be held in Brisbane.
  3. [68]
    At the time, s 69(1) of the Supreme Court of Queensland Act provided:

69 Appeal in proceedings in the court

  1. Subject to this and any other Act, an appeal lies to the Court of Appeal from—
  1. any judgment or order of the court in the Trial Division; and
  1. without limiting paragraph (a)—
  1. a judgment or order of the court in the Trial Division made under this Act; and
  1. any opinion, decision, direction or determination of the court in the Trial Division on a stated case; and
  1. any determination of the court in the Trial Division or a District Court in a proceeding remitted under section 68.
  1. [69]
    The appeal was dismissed as incompetent. The Court concluded there was no right of appeal from an order of a trial judge refusing such an application made under s 559 of the Criminal Code. The Court also declined to grant the declaratory relief sought.
  2. [70]
    In rejecting the appellant’s argument with respect to the competency of the appeal, Williams JA, with whom Byrne J agreed, commenced by surveying the legislative history and context of s 559 and what was then more recent introduction into the Criminal Code of s 592A (the precursor to present s 590AA). His Honour noted that whilst s 559 was one of the few interlocutory applications, and perhaps the only one, specifically provided for by the Criminal Code, it was not one of the matters specified in s 592A(2) in respect of which a pre-trial direction or ruling could be sought. Nevertheless, his Honour concluded that this was immaterial and there was no good reason for concluding that such an application would be caught by the more general wording of s 592A.[56]
  3. [71]
    Williams JA then went on to state the following with respect to s 592A:[57]
  1. [33]
    Importantly for present purposes rulings made under the section are binding unless ‘special reason’ is shown and s. 592A(4) provides that a ‘direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence’. The latter was a statutory enactment of a well-recognised principle that there could not be an appeal from an interlocutory order made in the course of a criminal trial. There was no right of appeal, either on the civil side or the criminal side, at common law; an appeal is a creature of statute. The Criminal Code provided in ch. 67 for appeals in certain circumstances. Critically s. 668D, inserted into the Code by amendment in 1913, provided that a ‘person convicted on indictment may appeal’ to the Court of Criminal Appeal ‘against his conviction’. There was no significant amendment of that prior to 1991. If one looks at the position in, say 1990, there was no s. 592A and relevantly only a person convicted on indictment had a right of appeal pursuant to s. 668D. In the light of those provisions the Court of Criminal Appeal between 1899 and 1990 would not have had jurisdiction to entertain an appeal against an order made on an application for a change in the place of trial. Indeed it is not without significance that there is no recorded case between 1899 and 1990 of such a matter coming before the Court of Criminal Appeal, except as a ground of appeal taken after conviction.
  1. [34]
    The Supreme Court of Queensland Act 1991 abolished the Court of Criminal Appeal and invested the newly created Court of Appeal with jurisdiction to hear appeals against convictions on indictment; see the amendments to ss 668 and 668D of the Code. But importantly the right of appeal pursuant to s. 668D was still limited relevantly to a ‘person convicted on indictment’.
  1. [35]
    Between 1991 and 1997 (when s. 592A was inserted) there was no provision of the Code which would have entitled an accused person to appeal to the Court of Appeal against an order made pursuant to s. 559 prior to conviction (see per Davies J.A., at 580 and Pincus J.A. at 586–587 in R. v. Lowrie [1998] 2 Qd.R. 579). In the light of that, as already noted, the inclusion of subs. (4) in s. 592A was no more than an express statutory recognition of a position which already existed.
  1. [72]
    Williams JA adopted the reasoning of Davies JA in R v Lowrie (‘Lowrie’),[58] where, in respect of the question of whether the Court of Appeal had jurisdiction to entertain an appeal from an interlocutory order made by a judge of the Trial Division of the Supreme Court in a criminal matter, Davies JA had stated:[59]

It may be doubted whether, having regard to the historical context, its position in the Act and its section heading, s 69 was intended to confer on the Court of Appeal any appellate jurisdiction not formerly possessed by the Full Court or the Court of Criminal Appeal. Nor is there anything in the explanatory note to the Bill for that Act or in anything said by the Premier on its introduction into Parliament which indicates any such intention.

But I think it is unnecessary here to explore that question further.  The statutory context, to which I have already referred, with respect to proceedings on indictment remained unchanged by the Supreme Court of Queensland Act 1991. I would therefore conclude that, whatever effect these provisions may have upon the jurisdiction of this Court in respects other than appeals against judgments or orders made in proceedings on indictment, they were not intended to enlarge the rights of appeal, conferred by Chapter 67 of the Criminal Code, from judgments or orders made in such proceedings.

  1. [73]
    It is to be noted that the conclusion with respect to the limited appeal rights applicable to proceedings on indictment reached by Davies JA in Lowrie and adopted by Williams JA in Long has been more recently confirmed in subsequent decisions of the Court, such as R v Woodman[60] and R v Verrall.[61]
  2. [74]
    Williams JA also considered that another reason for the incompetence of the appeal was the effect of s 592A, which had not existed at the time of Lowrie.[62] On that point, his Honour relevantly stated:[63]
  1. [33]
    … Further, in my view the introductory words to s. 69 make it subject to the provisions of any other Act, and that includes the Criminal Code. That Code is, as its title indicates, a Code with respect to the criminal law. As by its terms appeals from criminal matters commenced by indictment are strictly limited, there is no room for a general provision such as s. 69 to enlarge the right of appeal.
  1. [34]
    When s 592A was inserted recognising that a ruling thereunder could not be subject to an interlocutory appeal, s. 669A was also amended by inserting (1A) providing that the Attorney-General may appeal against an order staying proceedings or further proceedings on an indictment. It would be unusual to say the least to conclude that Parliament intended by s. 69(1) of the 1991 Act to confer a right of appeal from an order under s. 559 of the Code where no appeal existed prior thereto and when, by virtue of the 1997 amendments to the Code, no appeal would lie with respect to any other interlocutory order, except an appeal by the Attorney-General pursuant to s. 669A(1A).
  1. [75]
    With respect to the declaration sought by the appellant in Long, Williams JA referred to his Honour’s earlier judgment in R v Farr,[64] in which he had expressed ‘no doubt’ that the Court of Appeal had power to grant relief by way of declaration, but that it would only exercise its jurisdiction in ‘the most exceptional of circumstances’.  His Honour then further stated:[65]

…Those remarks were made with respect to the power of this Court to grant, in exercise of a supervisory jurisdiction, declaratory relief in exceptional circumstances where an appeal would not lie pursuant to the provisions of the Code. If such statements be correct in principle they are of no avail to Long in this case.

  1. [76]
    Similarly, on the question of the availability of declaratory relief, Byrne J observed:[66]

Perhaps despite Chapter 67 of the Code, this Court, in an original jurisdiction, may by declaration effectively pronounce on the correctness of interlocutory orders in proceedings upon indictment. But if that be so, the jurisdiction would not be exercised in other than most exceptional circumstances. For if interlocutory rulings could routinely be challenged by claims for declaratory relief, the expeditious conduct of criminal cases would be in serious jeopardy.  And ‘the undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration’.

  1. [77]
    In R v Chardon (‘Chardon’),[67] the Court of Appeal considered an appeal by a defendant who had unsuccessfully applied to the District Court under s 590AA(1) of the Criminal Code for his trial to be transferred to Brisbane and for a judge alone trial. During the hearing of the appeal, the appellant conceded that an appeal against the interlocutory orders made by the trial judge was not available, as it was precluded by s 590AA(4). However, the appellant then sought leave to file an application for a declaration that he should be tried in the District Court at Southport by a judge without a jury. 
  2. [78]
    The Court of Appeal dismissed the application.  With respect to the form of the application and the unavailability of a right to appeal, Gotterson JA stated (with Morrison JA agreeing):[68]

The Form 26 is headed ‘Notice of Appeal or Application for Leave to Appeal against Conviction or Sentence’ and states that it is for appeals other than under s 118 of the District Court of Queensland Act 1967. As its heading suggests, the Form 26 is for appeals under Chapter 67 of the Code. Chapter 67 confers statutory rights of appeal against conviction and against sentence passed on conviction. It does not confer a right to appeal before conviction or sentence against a pre-trial direction or ruling made under s 590AA(1). That it does not do so is explained by, and conformable with, the express prohibition in s 590AA(4) that such directions or rulings must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.

  1. [79]
    With respect to the relief sought, the appellant argued that the Court was able to grant the declaration in the exercise of its supervisory jurisdiction over the District Court. In support of that argument, the appellant referred to the observations of Byrne J in Long, which I have set out above. Gotterson JA rejected the appellant’s argument, relevantly stating:[69]

In my view, there are difficulties with this submission at several levels.  Firstly, the relief sought by the application is not appropriate for the exercise of a supervisory jurisdiction.  The relief would not operate in a supervisory way upon any order made by a judge of the District Court. The application therefore does not seek relief which, to use the words of Byrne J, would effectively pronounce upon the correctness of any order of the District Court.  Additionally, the court or judge whom it is sought to have supervised by relief is not a party to the application.

  1. [80]
    The appellant’s alternative argument in Chardon was that the Court had jurisdiction to grant the declaratory relief sought in the exercise of its original jurisdiction. That argument was also rejected by Gotterson JA. Whilst his Honour accepted that there were cases where declarations had been made by appellate courts in respect of criminal proceedings, such as Sankey v Whitlam and Anderson v Attorney-General (NSW), his Honour also noted that each of those cases involved proceedings in which the legal validity of a step or finding concerning the Applicant for relief was in issue, and that was not the case in respect of Chardon.[70]
  2. [81]
    In those circumstances, Gotterson JA observed that it was ‘far from clear’ that the Court of Appeal had jurisdiction to grant the declaratory relief sought. However, as the Court did not have the benefit of full argument on the matter, his Honour refrained from making a final determination on the issue.[71]
  3. [82]
    Nevertheless, Gotterson JA was of the firm view that, even if such jurisdiction did exist, discretionary considerations would weigh conclusively against the granting of the declaratory relief sought. Those considerations included the operation of, and rationale behind, ss 590AA(3) and (4) of the Criminal Code. In respect of the significance of those provisions, his Honour stated:[72]
  1. [26]
    Secondly, the foreclosure of rights of appeal at an interlocutory stage with respect to pre-trial directions and rulings is a powerful consideration against granting declaratory relief which could have a practical outcome broadly analogous with that of an appeal. This consideration is reinforced by the provisions of s 590AA(3) which provide that such directions and rulings are binding ‘unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling’.
  1. [27]
    Thirdly, the policy underlying s 590AA(4) obviously is to avoid fragmentation of the criminal trial process. Strong judicial endorsement of that policy was expressed by Dawson J, sitting as a single justice of the High Court, in Re Rozenes; Ex parte Burd,[73] in which the discretion was exercised against granting an order nisi in prerogative proceedings in respect of a criminal trial. The accused had been arraigned but the jury had not been empanelled.  His Honour said:

‘This Court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances. As Brennan J said in Beljajev v Director of Public Prosecutions,[74] “The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial”.’

  1. [83]
    In separate reasons, McMurdo P accepted that the Court had power to make declarations in criminal proceedings ‘where the primary court has exceeded jurisdiction’ and also a ‘general jurisdiction to make declarations concerning a right, duty or obligations in criminal proceedings where there are exceptional or special circumstances’.[75] Nonetheless, her Honour ultimately agreed with the order to dismiss the application for declaratory relief on the basis that the Applicant had failed to demonstrate any exceptional circumstances.[76] In reaching that conclusion, her Honour relevantly stated:[77]

…The legislature has made crystal clear in s 590AA(3) and (4) Criminal Code 1899 (Qld) that it intends there be no interlocutory appeal from orders of this kind, whilst preserving an accused person’s right to raise any complaints about the interlocutory order in a subsequent appeal against conviction or sentence. These are powerful considerations weighing against the granting of the declaration. Further, as Gotterson JA explains in his reasons, there are sound policy concerns supporting this legislative intent.

Conclusion

  1. [84]
    In both Long and Chardon, the Court did not authoritatively decide the question I am confronted with in this application, namely, whether the Supreme Court has jurisdiction to grant declaratory relief in respect of criminal proceedings before the District Court in respect of a pre-trial ruling made by that Court following an application brought under s 590AA of the Criminal Code.
  2. [85]
    In each case, the Court made observations about the possible existence of the Court’s jurisdiction to grant declaratory relief in respect of interlocutory orders made in a pending criminal proceeding, but nevertheless confirmed that if such jurisdiction was available, it would only be exercised in ‘exceptional circumstances’. In each case, the Court also concluded that discretionary considerations, including in particular provisions such ss 590AA(3) and (4), and the undesirability of fragmentation of criminal proceedings, were factors that weighed heavily against granting such relief.
  3. [86]
    In each case, the Court did not consider or conclude that the Court’s jurisdiction to grant declaratory relief was ousted by operation of s 590AA(4) as the relevant application for declaratory relief amounted to an ‘interlocutory appeal’.
  4. [87]
    Nevertheless, Long and Chardon are instructive and inform the approach to be taken to the question I must decide.
  5. [88]
    In my opinion, s 590AA(4) does not oust the Court’s jurisdiction to grant declaratory relief in respect of a matter that has been the subject of a ruling or decision made pursuant to an application brought under s 590AA(1). There are four principal reasons why this is so.
  6. [89]
    Firstly, the language used in s 590AA(4) does not clearly and explicitly preclude an application for declaratory relief. I do not consider the words used in s 590AA(4), viz. ‘A direction or ruling must not be subject to interlocutory appeal…’, satisfy the requirement for clear words to be used to oust the Court’s jurisdiction.
  7. [90]
    Secondly, I do not accept the Respondent’s argument that, by implication, the words ‘interlocutory appeal’ would encompass an application such as the present on the basis that it is in reality, by its substance and effect, an interlocutory appeal. In my view, this is an unwarranted and unprincipled gloss on the test identified in Forster v Joddodex and applied in Heerey v Criminal Justice Commission. If such an approach were adopted, the Court would be required to scrutinize applications of this kind to identify and consider the factors said to give it that complexion. Such an approach would be open to differences in interpretation and would have the potential for increased uncertainty as to whether a particular application for declaratory relief was, or was not, in effect an interlocutory appeal. It would supplant a test requiring clear words within a statute, which applies equally to all cases, with one requiring an interpretation of the substance and merits of each particular case.
  8. [91]
    Thirdly, as the judgment of Williams JA in Long makes plain, the purpose of former s 592A(4), and by extension the purpose of current s 590AA(4), was to confirm the position that already existed that there was no interlocutory appeal rights available to an accused person in respect of an interlocutory order made in respect of proceedings on indictment. The provision was not intended to oust the Supreme Court’s jurisdiction to grant other relief in an appropriate case. In my view, although there is no mechanism within ch 67 of the Criminal Code for an interlocutory appeal, the words ‘interlocutory appeal’ are deliberately used in s 590AA(4) and are intended to refer to an appeal in the sense of a statutory right of appeal in respect of a proceeding on indictment. They are not intended to refer to some other process or form of relief that may otherwise be available to an accused person in proceedings on indictment.
  9. [92]
    Finally, as I have previously noted, both parties accept that it was open to the Applicant to make an application directly to the Supreme Court for declaratory relief without first bringing an application in the District Court under s 590AA. Had the Applicant done so, the parties accept this Court would have had inherent jurisdiction to make the orders. I agree. In my view, it would therefore be anomalous for s 590AA(4) to curtail the Supreme Court’s jurisdiction simply because the Applicant made an application under s 590AA(1), where it was always open to the Applicant at any time after she had been charged to make an application to this Court seeking declarations, at least in the terms of the Amended Supreme Court Application orders 1(a) and (b).
  10. [93]
    Therefore, in my view, s 590AA does not oust this Court’s jurisdiction to make declarations of the kind sought by the Applicant by order 1(a) and (b) of her Amended Supreme Court Application.  Whether or not the Court should grant such relief, however, is a matter that requires that I be satisfied that, firstly, there is a proper foundation for the making of such orders, and, secondly, that discretionary considerations weigh in favour of granting the relief.
  11. [94]
    Before considering the construction issues raised by this application, it is pertinent to note the position of the parties with respect to the effect and utility of making declarations of the kind sought by the Applicant. Declarations of right in the form of orders 1(a) and (b) as sought would not, of themselves, directly compel a judge of the District Court to do anything. There is no ancillary or consequential relief sought by the Applicant.
  12. [95]
    However, the parties agree that, if I were to accept the Applicant’s argument on the construction issues and make the declarations as sought in the exercise of my discretion, then the Applicant could seek leave in accordance with s 590AA(3) to reopen the ruling made by Farr DCJ.  I would expect that to be so. The judge hearing that application would be bound to apply the law in accordance with the rights so declared.

Construction issues

  1. [96]
    The relevant statutory provisions that I am concerned with are ss 19, 49 and 93 of the ASIC Act. Those provisions relevantly provide:[78]

19  Notice requiring appearance for examination

  1. This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.
  1. ASIC may, by written notice in the prescribed form given to the person, require the person:
  1. (a)
    to give to ASIC all reasonable assistance in connection with the investigation; and
  1. (b)
    to appear before a specified member or staff member for examination on oath and to answer questions.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).

  1. A notice given under subsection (2) must:
  1. state the general nature of the matter referred to in subsection (1); and
  1. set out the effect of subsection 23(1) and section 68.

49  ASIC may cause prosecution to be begun

  1. (1)
    This section applies where:
  1. as a result of an investigation; or
  1. (b)
    from a record of an examination;

conducted under this Part, it appears to ASIC that a person:

  1. (c)
    may have committed an offence against the corporations legislation; and
  1. (d)
    ought to be prosecuted for the offence.
  1. (2)
    ASIC may cause a prosecution of the person for the offence to be begun and carried on.
  1. If:
  1. ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or
  1. (b)
    the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;

ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).

  1. (3A)
    An offence under subsection 63(3) relating to subsection (3) of this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

  1. Subsection (3) does not apply in relation to:
  1. the person referred to in subsection (1); or
  1. a person who is or has been that person’s lawyer.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.

  1. Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.

93  Effect of Part

  1. Except as expressly provided, nothing in this Part limits the generality of anything else in this Part.
  1. The functions and powers that this Part confers are in addition to, and do not derogate from, any other function or power conferred by a law of the Commonwealth, a State or a Territory.

Reasons of Farr DCJ

  1. [97]
    Although the present application is not to be determined as if it were an appeal in respect of an asserted error of law made by Farr DCJ, it is convenient to set out in greater detail his Honour’s analysis and conclusion with respect to the construction issues. In doing so, I keep firmly in mind that the ultimate issues that I must consider are whether the Applicant has established a proper basis for the declaratory relief sought and, if so, whether it is appropriate to grant such relief in the exercise of discretion. A proper basis would only be established if, firstly, the Applicant’s argument with respect to the proper construction of s 49 and its interaction with s 19 is correct.
  2. [98]
    The essential conclusions and reasons of Farr DCJ for dismissing the Stay Application are contained in the following paragraphs of his Honour’s judgment:[79]
  1. [56]
    There is no dispute between the parties that if s. 49 had application at the time of the examinations, then the applicant could not have been lawfully compulsorily examined pursuant to s. 19.[80]
  1. [57]
    The question for determination is whether, at the time of the examinations, s. 49(4) had application, that is, that ‘as a result of an investigation, it appeared to ASIC that the applicant may have committed an offence against the corporations legislation and ought to be prosecuted for the offence’.
  1. [58]
    That is a question of fact, although it may also involve the determination of a question of law when deciding it.

…

  1. [66]
    It is immediately apparent that that phrase does not mean that s. 19 authorises the examination of a person once ‘it appears to ASIC that [that] person may have committed an offence against the corporations legislation and that that person ought to be prosecuted for that offence. Yet, that was the applicant’s submission as to the meaning of s. 49(1). The word ‘once’, in this submission, is inconsistent with the section and suggests that s. 19 ceases to have effect at whatever point during an investigation the s. 49(1) criteria are met. That is not what the section says. If in fact, that had been the intention of Parliament, then unambiguous wording would have been both necessary and easily achievable.
  1. [67]
    The term, ‘as a result of an investigation’ connotes a viewpoint being reached at or near the end of an investigation. It is difficult to discern the result of something until that thing has concluded, or has reached such a stage that the obvious conclusion is inevitable.

…

  1. [72]
    Furthermore, I note that s. 19 is not stated to be subject to s. 49. The two provisions relate to two very different stages in the investigative and prosecutorial processes. Section 19 relates to ASIC’s powers at the ‘investigation’ stage, whereas s. 49 relates to its more limited powers at the prosecutorial stage.

…

  1. [76]
    Further, an investigation cannot be said to cease immediately upon a particular investigator forming a belief that a particular suspect had likely committed an offence. An investigator who refers a brief to the CDPP for assessment as to whether charges can be proved, is likely to have formed a belief that the particular suspect has committed the relevant offence. However, it is common and appropriate for the Commonwealth Director, having been provided a brief of evidence, to advise that further evidence should be obtained before charges are to be commenced. It could not be suggested, in those circumstances, that a determination that a brief of evidence should be sent to the Director in some way brings an investigation to an end.
  1. [77]
    It follows then that the mere fact that Bastianon formed a belief that the applicant had committed offences did not bring an end to the ASIC investigation. At the time the s. 19 notice was sent, a brief to consider charges had not been referred to the CDPP and no charges had been laid. On Bastianon’s evidence, he believed that the applicant could give information relevant to the investigation of the potential offending.[81]

…

  1. [85]
    Taking all matters into account, I am not persuaded that the applicant, at the time of the May and June examinations was a person to which s. 49(1) applied. It follows that such examinations were conducted lawfully, in that s. 19 had application.
  1. [99]
    With respect to those conclusions and reasons, the Applicant contends that his Honour:
    1. correctly accepted that, as a matter of construction, s 19 of the ASIC Act cannot lawfully be exercised where s 49(1) of the Act applied; and
    2. correctly found that ASIC delegates had, prior to conducting the 2016 Examinations, ‘formed the belief that the applicant had committed offences’ and that further investigations were not going to result in ASIC deciding to take no further action (rather than sending a brief to the CDPP); but
    3. erred in concluding that, as a matter of construction, the words ‘as a result of an investigation’ in s 49(1) meant that the only state of mind that mattered was one ‘reached at or near the end of an investigation’; and
    4. further erred in concluding, on the basis of the uncontroversial fact that the investigation was still continuing at the time ASIC conducted the 2016 Examinations, that s 49(1) did not apply and s 49(4) was therefore not engaged.

Submissions of the parties

  1. [100]
    The Applicant submits that each of ss 19, 49 and 68 of the ASIC Act form part of an integrated statutory scheme, in which the coercive powers provided by ss 19(2) and 49(3) of the ASIC Act overlap. The Applicant posits that the statutory language for the circumstances in which the powers in ss 19(2) and 49(3) may be exercised is expressed in exactly the same, or substantially similar, terms.  The Applicant argues that it is immaterial that s 19(2)(a) refers to ‘all reasonable assistance in connection with the investigation’ whereas s 49(3) refers to ‘all reasonable assistance in connection with such a prosecution’, as the power provided by s 49(3) may be exercised whether before or after a prosecution is begun. In each case, ASIC has the power to compel ‘all reasonable assistance’ from a person and s 68(1) abrogates the privilege against self-incrimination in respect of a person compelled to provide such assistance.
  2. [101]
    The Applicant submits that, within the context of this integrated statutory scheme, ASIC’s power to conduct examinations pursuant to s 19 should be construed as a general power that is subject to the specific limitations provided by s 49. The Applicant contends that this follows from consideration of the Act as a whole, and by application of the so-called Anthony Hordern principle[82] and the principle of legality.[83] The Applicant further submits such a conclusion is not affected by s 93 of the ASIC Act.
  3. [102]
    With respect to the specific limitations provided by s 49, the Applicant contends that the general power in s 19(2) can no longer be exercised where s 49(4) has been engaged.  The Applicant submits the ‘trigger’ that engages s 49(4) is relevantly when, as a result of an investigation, ASIC (or, more aptly, an ASIC delegate) forms the state of mind provided by ss 49(1)(c) and (d), namely that they believe a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence.
  4. [103]
    The Applicant further submits that the phrase ‘a result of an investigation’ provides for a causal connection and not a temporal connection. Therefore, the Applicant argues, the ‘factual condition precedent’ belief prescribed by ss 49(1)(c) and (d) is not dependent on the point at which an investigation has reached. Such a belief may be reached notwithstanding that an investigation is continuing.
  5. [104]
    The Applicant further contends that satisfaction of this factual condition precedent does not require any formal decision or determination to prosecute being made by ASIC as an institution. Rather, all that is required is that ASIC (by its delegate) has formed the relevant belief in respect of a person. Once that point is reached, the person is protected by s 49(4) from the use of ASIC’s coercive powers under both ss 19(2) and 49(3).
  6. [105]
    The Applicant contends the relevant evidence unequivocally demonstrates that the investigators involved in this matter, who were each ASIC delegates, formed such a belief in respect of the Applicant before she was subjected to the 2016 Examinations. Accordingly, the Applicant argues, because she was compulsorily examined contrary to the operation of s 49(4), the 2016 Examinations were unlawful, and I should so declare so by making orders in the terms brought by the Amended Supreme Court Application.
  7. [106]
    The Respondent submits the 2016 Examinations were lawfully conducted and there is no basis to grant the declaratory relief sought by the Applicant. The Respondent principally contends that s 49 of the ASIC Act does not operate to restrict or limit the powers of compulsory examination under s 19. The Respondent submits this is so because:
    1. of the operation of s 93 of the ASIC Act;
    2. the language, history and structure of pt 3 of the ASIC Act support a conclusion that the ‘investigative power’ in s 19 is not restricted by the operation of the ‘prosecutorial power’ in s 49;
    3. the limits on the operation of s 19 are to be found in the terms of s 19 itself, relevantly that there is a matter that ASIC is investigating or is to investigate (which was the case here); and
    4. the language and statutory scheme support a conclusion that s 49 is only engaged when ASIC has determined, as a result of an investigation, that the relevant person ought to be prosecuted
  8. [107]
    The Respondent further submits that, even if the Applicant’s construction argument is correct, the facts established by the evidence in this case do not demonstrate that ASIC had decided to prosecute the Applicant at the time of the 2016 Examinations or that s 49 was otherwise engaged.
  9. [108]
    The key questions to be resolved, therefore, are when and how is s 49 engaged, and whether, where it is engaged, s 49 precludes ASIC from exercising powers under s 19. In order to answer these questions, it is necessary to consider the relevant principles of statutory construction and their application in this case.

Principles of construction

  1. [109]
    Statutory construction involves attributing meaning to statutory text.[84] The Court’s task commences with a consideration of the text of the statutory provision itself, but it does not end there.[85] The Court does not simply adopt a literal construction of the words of the provision. The duty of the Court is to give the words of the relevant provision the meaning which the legislature is taken to have intended them to have. Ordinarily, that meaning will correspond with the grammatical meaning of the provision, but not always.
  2. [110]
    Whilst the language which has been actually used in the text of the legislation is the surest guide to legislative intention, determining the meaning of the text may require consideration of context.[86] Context includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[87] Context is to be understood its widest sense. It will include surrounding statutory provisions and consideration of the statute as a whole.[88] Context also includes legislative history and extrinsic materials.[89] The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[90]
  3. [111]
    Consideration of the context of the relevant statutory provision is undertaken at the first stage of the process of construction.[91] A statutory provision must be construed in a way that it is consistent with the language and purpose of all provisions of the statute. The meaning of the provision must be determined by reference to the language of the statute viewed as a whole. The process of construction must always begin by examining the context of the relevant provision.[92]
  4. [112]
    A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[93] The Court must strive to give meaning to every word of the provision.[94]
  5. [113]
    In construing a relevant provision of an Act, a construction that would promote the purpose or object of the Act is to be preferred to a construction that would not promote that purpose or object.[95]

Text, context and purpose

  1. [114]
    The long title of the ASIC Act describes it as an Act to provide for the Australian Securities and Investments Commission, a Corporations and Markets Advisory Committee and certain other bodies, and for other purposes. The objects of the ASIC Act are set out in s 1, which provides:

1  Objects

  1. The objects of this Act are:
  1. (a)
    to provide for the Australian Securities and Investments Commission (ASIC) which will administer such laws of the Commonwealth, a State or a Territory as confer functions and powers under those laws on ASIC; and
  1. (b)
    to provide for ASIC’s functions, powers and business; and
  1. (c)
    to establish a Takeovers Panel, a Companies Auditors Disciplinary Board, a Financial Reporting Council, an Australian Accounting Standards Board, an Auditing and Assurance Standards Board and a Parliamentary Joint Committee on Corporations and Financial Services.
  1. In performing its functions and exercising its powers, ASIC must strive to:
  1. (a)
    maintain, facilitate and improve the performance of the financial system and the entities within that system in the interests of commercial certainty, reducing business costs, and the efficiency and development of the economy; and
  1. (b)
    promote the confident and informed participation of investors and consumers in the financial system; and
  1. (d)
    administer the laws that confer functions and powers on it effectively and with a minimum of procedural requirements; and
  1. (e)
    receive, process and store, efficiently and quickly, the information given to ASIC under the laws that confer functions and powers on it; and
  1. (f)
    ensure that information is available as soon as practicable for access by the public; and
  1. (g)
    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.
  1. (2A)
    Without limiting subsection (2), ASIC must consider the effects that the performance of its functions and the exercise of its powers will have on competition in the financial system.
  1. (3)
    This Act has effect, and is to be interpreted, accordingly..
  1. [115]
    Section 5(1) of the ASIC Act defines ‘investigate’, in relation to ASIC, to mean ‘investigate in the course of performing or exercising any of ASIC’s functions and powers’.
  2. [116]
    Section 8(1)(a) establishes ‘ASIC’ as a body corporate.[96]
  3. [117]
    Part 4 of the ASIC Act provides for ASIC’s business and includes provisions for the establishment of offices and Divisions of ASIC. ASIC employs staff to conduct its business, perform its functions and exercise its powers.
  4. [118]
    Section 102(1) of the ASIC Act provides that ASIC may, by writing under its common seal, delegate to a person all or any of its functions and powers. Section 102(5) provides that a delegate is subject to ASIC’s directions when performing a function, or exercising a power, delegated under s 102.
  5. [119]
    The ASIC Act confers upon ASIC the statutory functions of investigating and prosecuting offences against the corporations legislation.[97]  In this case, ASIC had delegated all of the powers and functions conferred or expressed to be conferred on ASIC by or under pt 3 of the ASIC Act to each of the relevant ASIC investigators, Messrs Caridi, Bastianon and Paleologos.[98]
  6. [120]
    The present version of pt 3 of the ASIC Act,[99] which comprises 11 divisions, deals with investigations and information-gathering by ASIC. Division 1 deals with ASIC's powers of investigation; the circumstances in which ASIC may, and those in which it must, prepare a report on such an investigation; and the extent of distribution of such a report. Division 2 deals with ASIC's powers of examination of persons and the manner in which such examinations are to be conducted. Division 3 deals with ASIC's powers to inspect books required to be kept under the corporations legislation (as defined); its power to require auditors and other persons to produce books or to provide information; and its power to seize books. Division 4 deals with ASIC's powers to require the disclosure of information concerning financial products. Division 5 deals with proceedings that may be commenced by ASIC after it has conducted an investigation under pt 3. Division 5A deals with the notification and reporting of audit deficiencies identified by ASIC.  Division 6 deals with ASIC's power to hold hearings and the conduct of those hearings. Division 7 deals with offences under pt 3. Division 8 deals with ASIC's powers where information cannot be obtained because a person has failed to comply with a requirement under pt 3. Division 9 deals with the evidentiary use that may be made of statements made at an examination and certain other documents. Division 10 deals with various miscellaneous matters.[100]
  7. [121]
    Within div 1 of pt 3, s 13(1) provides ASIC with general powers of investigation in these terms:

13  General powers of investigation

  1. ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions) where it has reason to suspect that there may have been committed:
  1. a contravention of the corporations legislation (other than the excluded provisions); or
  1. a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that:
  1. concerns the management or affairs of a body corporate or managed investment scheme; or
  1. involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to financial products.
  1. [122]
    Sections 16 and 17 deal respectively with the preparation of interim and final reports by ASIC after an investigation. Pursuant to s 18, where such a report relates to a serious contravention of a law of the Commonwealth, or a law of a State or Territory, ASIC may give a copy of the whole or a part of the report to, inter alia, the Australian Federal Police or the Director of Public Prosecutions.
  2. [123]
    Section 19 is the first section of div 2. Section 19(1) provides that the section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under div 1. Where ASIC holds that suspicion or belief, pursuant to s 19(2), ASIC may, by written notice, require such a person:
    1. to give to ASIC all reasonable assistance in connection with the investigation; and
    2. to appear before a specified member or staff member for examination on oath and to answer questions.
  3. [124]
    Before considering ss 19 and 49 in detail, it is first necessary to examine the operation and effect of certain provisions within div 7 of pt 3, which is headed ‘Offences'. The two pertinent sections to be noted are ss 63 and 68.
  4. [125]
    Section 63 is an important provision within pt 3. It creates various offences for failing to comply with a requirement made by ASIC of a person pursuant to a provision of pt 3. The creation of such offences enables ASIC to compel a person, on pain of punishment, to comply with a requirement made of them. It relevantly provides:

63  Non‑compliance with requirements made under this Part

  1. A person must not intentionally or recklessly fail to comply with a requirement made under:
  1. (a)
    section 19; or
  1. (b)
    subsection 21(3); or
  1. (c)
    section 30, 30A, 30B, 31, 32A, 33 or 34; or
  1. (d)
    subsection 37(9); or
  1. (e)
    section 38; or
  1. (f)
    section 39.

Penalty:  2 years imprisonment.

…

  1. A person must not fail to comply with a requirement made under subsection 21(1) or 29(2), paragraph 24(2)(a) or subsection 49(3) or 58(1), (2) or (4).

Penalty:  3 months imprisonment.

  1. [126]
    Section 68 is another important provision within div 10. It provides:

68 Self‑incrimination

  1. For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, it is not a reasonable excuse for a person to refuse or fail:
  1. to give information; or
  1. to sign a record; or
  1. to produce a book;

in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty.

  1. Subsection (3) applies where:
  1. (a)
    before:
  1. (i)
    making an oral statement giving information; or
  1. (ii)
    signing a record;

pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and

  1. (b)
    the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
  1. The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:
  1. a criminal proceeding; or
  1. a proceeding for the imposition of a penalty;

other than a proceeding in respect of:

  1. in the case of the making of a statement—the falsity of the statement; or
  1. in the case of the signing of a record—the falsity of any statement contained in the record.
  1. [127]
    Section 68(1) abrogates the common law privilege against self-incrimination in certain circumstances relating to investigations and information gathering by ASIC acting under pt 3 of the ASIC Act.[101] Amongst other things, it will apply to a requirement made by ASIC under ss 19(2)(a) or 49(3) for a person to provide ‘all reasonable assistance’ and to a requirement made by ASIC acting under s 19(2)(b) for a person to appear before a specified ASIC member or staff member for examination in respect of a matter ASIC is investigating.
  2. [128]
    The legislative compensation for this incursion upon a fundamental common law right is the direct use immunity conferred by ss 68(2) and (3). Provided a person has claimed privilege before making an oral statement giving information or before signing a record as required, the statement or the fact that the person has signed the record are not admissible in evidence against the person in a criminal proceeding, save for a criminal proceeding in respect of the alleged falsity of any such statement made or contained within the signed record.[102]
  3. [129]
    Pursuant to s 76, if a claim of privilege is not made by a person who makes a statement at an examination, such a statement is prima facie admissible in evidence against the person in a proceeding. If a prosecution is caused to be commenced or carried out by ASIC, prosecutors may be given access to the transcript of a s 19 examination in order to formulate charges and to prosecute them, subject only to the prohibition against direct use of self-incriminating statements where a claim of privilege has been made.[103]
  4. [130]
    I now turn to consider s 49 in detail. Section 49 is found within div 5 of pt 3 of the ASIC Act, which is titled ‘Proceedings after an investigation’. It is to be noted that the various headings to parts, divisions and subdivisions within the ASIC Act are part of the Act;[104] the section headings are not.  The heading to div 5 suggests that the matters dealt with in that division are events that will, or may, occur after an investigation had been conducted.
  5. [131]
    There only two sections in div 5, ss 49 and 50. The matters dealt with by those sections are the types of things that may be done by ASIC where further action is to be taken in relation to a matter following a pt 3 investigation. Section 49 is headed ‘ASIC may cause prosecution to be begun’. It contemplates the initiation by ASIC of a criminal proceeding against a person. Section 50 is headed ‘ASIC may cause civil proceeding to be begun’. It contemplates ASIC commencing a civil proceeding in the name of another.
  6. [132]
    The various subsections in s 49 are related to each other. Subsection (1) stipulates when the section applies. Subsection (2) gives ASIC the power to cause a prosecution for an offence to be begun and carried on. Subsection (3) empowers ASIC to require certain persons to give all reasonable assistance in connection with a prosecution. Subsection (3A) confirms it is an offence of strict liability, under subsection (3), for a person to fail to comply with a requirement made of them pursuant to subsection (3). Subsection (4) provides a ‘carve out’ from the application of subsection (3). Subsection (5) confirms that nothing within s 49 affects the operation of the Director of Public Prosecutions Act 1983 (Cth).
  7. [133]
    As a starting point to discerning meaning, the words and phrases used in s 49(1) may be considered separately and in isolation, but I bear in mind that ultimately the meaning of the words and phrases in question is to be derived, inter alia, from considering the words within the context of the language and structure of the entire section and the Act as a whole.
  8. [134]
    Subsection (1) is divided into two parts. The first part, comprising sub-ss (1)(a) and (b), is expressed alternatively. The second part, comprising sub-ss (1)(c) and (d), is expressed conjunctively. The first part identifies two sources of information, namely ‘as a result of an investigation’ or ‘from a record of an examination’, from which ASIC may form the state of mind specified in the second part. The second part provides for a composite state of mind that must be held by ASIC before it may exercise the powers in ss 49(2) or 49(3), namely that it ‘appears’ to ASIC that ‘a person may have committed an offence against the corporations legislation’ and ‘ought to be prosecuted for the offence’.
  9. [135]
    The first critical portion of the text to consider within the section is the phrase in s 49(1)(a), ‘as a result of an investigation’.[105] The use of the indefinite article ‘a’ suggests there may be more than one result of an investigation. That is to be contrasted with an expression such as ‘the result’, which, had it been used, would tend to indicate there is, or can only be, one single result of an investigation. The ordinary meaning of the word ‘result’ may be considered to be synonymous with ‘outcome’ or ‘conclusion’, in the sense of something that is the product of a process that has been undertaken.
  10. [136]
    Section 49(1)(a) must, of course, be read together with the rest of the words used in sub-s (1) and, in particular, the words at the start of the second part of sub-s (1), viz. ‘…it appears to ASIC…’ When that is done, it is apparent that the words ‘as a result of an investigation’ are used in a sense corresponding with ‘following an investigation’ or ‘because of an investigation’. In combination, the language of sub-s (1) suggests a causal connection between ASIC’s consideration of the sources of information in sub-ss (1)(a) or (b) and the composite state of mind that may be formed by ASIC, specified by sub-ss (1)(c) and (d).[106] That is, the composite state of mind may be formed by ASIC because of, or following, its consideration of either of the things specified in ss 49(1)(a) or (b). I consider the words used are intended to refer to a conclusion about an investigation, not the conclusion of an investigation. An investigator may hold a suspicion or belief, or may have formed an opinion or conclusion, as a result of an investigation into a matter, notwithstanding that the investigation is continuing and is yet to conclude.
  11. [137]
    However, when each of sub-ss (1)(a) to (d) are read and considered together, in my opinion, there will necessarily be a temporal aspect required for the formation of the state of mind expressed in sub-s (1)(d). That is due to the nature of the conclusion that must be reached by ASIC. I will return to that matter in due course.
  12. [138]
    The words that appear at the commencement of the second part of sub-s (1), ‘it appears to ASIC’, are not defined. They should be given their ordinary English meaning, albeit construed in the full context of the section, part and Act as a whole. When that is done, I consider that those words are synonymous with ‘it seems to ASIC’, ‘it is apparent to ASIC’ or ‘ASIC considers’. The language used suggests a conclusion or opinion formed by ASIC after considering one or the other of the sources of information specified in the first part of sub-s (1).
  13. [139]
    Given that ASIC is a body corporate, it must necessarily act through a human actor or actors.  Similarly, where a state of mind is required to be held by ASIC, it must necessarily be one attributed to the body corporate from the state of mind held by a natural person, or persons, acting for or on behalf of ASIC in some capacity. When ASIC performs a function or exercises a power through a person who has been delegated such functions and powers under s 102 of the ASIC Act, the actions of the ‘ASIC delegate’[107] are taken to be the actions of ASIC.[108]
  14. [140]
    Pursuant to s 34A of the Acts Interpretation Act 1901 (Cth) (‘Acts Interpretation Act’), where the performance of a function or exercise of a power under an Act is dependent upon a particular opinion, belief or state of mind in relation to a matter, and the function or power has been delegated, the delegate may exercise the power or may perform that function upon the delegate forming the necessary opinion, belief or state of mind in relation to the matter. In this case, that means the relevant composite state of mind within ss 49(1)(c) and (d) may be formed by an ‘ASIC delegate’ and must be formed by such a person as a precondition to the exercise of a power under sub-ss (2) or (3). If so, the ASIC delegate’s state of mind will be attributed as ASIC’s state of mind.[109]
  15. [141]
    The composite state of mind in the second part of sub-s (1) requires ASIC to have formed two conclusions or opinions. The first is that a person ‘may have committed an offence against the corporations legislation’. The second is that the person ‘ought to be prosecuted for the offence’.
  16. [142]
    The use of the word ‘may’ in sub-s (1)(c) indicates a conditional, preliminary or tentative conclusion or opinion.  It does not require ASIC to hold a reasonable suspicion or reasonable belief, let alone achieve certainty that a person has committed an offence. The required state of mind is something less. In my view, the word ‘may’ is synonymous in this context with ‘might’ or ‘could’. It indicates no more than the possibility of the existence of the fact.
  17. [143]
    In contrast, sub-s (1)(d) employs the phrase ‘ought to be’. In my view the word ‘ought’ in this context is synonymous with ‘should’ or ‘must’. The phrase ‘ought to be’ therefore suggests that ASIC is required to reach a more definitive, conclusive opinion. It suggests ASIC has concluded, or formed an opinion, that a prosecution is necessary. In my opinion, the phrase ‘ought to be’ therefore requires ASIC to have decided that a person should be prosecuted. This is necessarily anterior to, and is to be contrasted with, the performance of the function and exercise of the power in s 49(2) to cause a prosecution to be begun; before sub-s (2) may be engaged, sub-s (1)(d) requires ASIC to make a decision that a person should be prosecuted for an offence.
  18. [144]
    I consider such an interpretation would promote the purpose of s 49 and further the objects of the ASIC Act.
  19. [145]
    ASIC has both investigatory and prosecutorial functions.[110] Section 49(2) is one statutory source granting ASIC a prosecutorial function and confers powers that may be exercised in the performance of that function. In particular, ASIC may ‘cause a prosecution’ to be commenced. The exercise of that power, and the concomitant performance of the prosecutorial function, are serious steps that necessarily require ASIC to consider all matters known to it that may be relevant when deciding whether a person ought to be prosecuted for an offence.
  20. [146]
    In my opinion, ASIC would be required to consider matters such as the nature, extent and seriousness of the suspected offence, the results or consequences of the commission of the suspected offence, the apparent motivations or reasons for the commission of the offence, the nature of the admissible evidence that is, or will be available, the strength of that evidence, any possible defences or innocent explanations, and the availability and effect of any potentially exculpatory material. ASIC would also be expected to consider matters such as the prevalence of the suspected offence; the need for general and specific deterrence; the identity, role, position and personal circumstances of the person suspected of having committed the offence; and other public interest considerations.
  21. [147]
    Consideration of these matters as part of ASIC’s decision-making process is consistent with the ‘Memorandum of Understanding’ (‘MOU’) between ASIC and the CDPP on  ‘principles to facilitate the working relationship between the two agencies for the investigation and prosecution of corporate and financial services crime in a timely and effective manner’.[111]  It is also consistent with the matters to be considered when deciding whether a matter should be prosecuted set out in the ‘Prosecution Policy of the Commonwealth’.[112]
  22. [148]
    If ASIC were not required to consider such matters to determine whether a person should be prosecuted, there would seem to be no need for sub-s (1)(d) at all. It would only be necessary to consider whether the information in sub-s (1)(a) or (b) caused it to appear to ASIC that a person may have committed an offence against the corporations legislation.
  23. [149]
    I return now to the temporal aspect that I consider is implicit within s 49(1)(d). Given the nature and extent of the matters that must necessarily be considered as part of the process of ASIC forming the opinion that a person ‘ought to be’ prosecuted for an offence, it seems to me that such a view could only be reached at a point where ASIC was able to satisfy itself that a prosecution was warranted and should occur. Generally, that could only occur when an investigation was complete or nearing completion. I do not see how ASIC could otherwise properly form a view about whether a person ‘ought to be prosecuted’.
  24. [150]
    It would be highly improbable that the legislature would have intended that s 49(1) would be satisfied, and the s 49 powers therefore able to be used, where ASIC was yet to obtain and consider all relevant information to be yielded by an investigation to enable it to decide whether a person should be prosecuted for an offence. That would be the case if, in the course of an ongoing investigation, a preliminary or provisional view had been reached by investigators with respect to the matters in sub-ss (1)(c) and (d) but where further relevant investigations were still to be carried out. Even if investigators believed at that stage that a person should, and would, be prosecuted for an offence, that would not be sufficient in my view to satisfy the requirements of s 49(1). Further investigations could unearth contradictory or exculpatory material or provide explanations for conduct that might change a provisional or preliminary view. Whether an investigation has reached the point at which ASIC may form the opinion and hold the composite state of mind required by s 49(1) will be a question of fact in any particular case.
  25. [151]
    Pursuant to s 49(2), ASIC ‘may cause a prosecution of the person for the offence to be begun and carried on’. The subsection confers a discretionary prosecutorial power upon ASIC. The occasion for the exercise of such a power naturally and logically follows a decision made by ASIC under s 49(1) that the person ‘ought to be prosecuted’. The words ‘may cause a prosecution to be begun’ suggest that the power is wider than simply commencing a prosecution. To ‘cause’ something is to ‘bring it about’ or ‘make it happen’. In my view, ASIC may cause a prosecution to be commenced by instituting a criminal proceeding in its own name or by referring a matter to the Commonwealth Director of Public Prosecutions for consideration and subsequent prosecution by the Director.
  26. [152]
    Similarly, the powers in sub-s (3) may only be exercised when sub-s (1) is satisfied. If so, sub-s (3) empowers ASIC to make a written requirement of certain persons to ‘give all reasonable assistance in connection with such a prosecution’.  A person who fails to comply with such a requirement commits an offence.[113] As the terms of the subsection expressly provide, the powers in sub-s (3) may be exercised regardless of whether any such prosecution has yet been begun. Accordingly, whilst ASIC must have formed the opinion required under sub-s (1), ASIC need not yet have exercised the power in sub-s (2) to cause a prosecution to be begun.
  27. [153]
    The circumstances in which the power conferred by sub-s (3) may be exercised are set out in sub-ss (3)(a) and (b). They are expressed in the alternative. The circumstance in sub-s (3)(a) requires that ASIC, on reasonable grounds, suspects or believes that a person can give ‘information relevant to a prosecution’ for the offence. The circumstance in sub-s (3)(b) requires that ‘the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters’. In each case, the circumstances described implicitly acknowledge that a decision has already been made by ASIC that a person ought to be prosecuted for an offence. So much is apparent from: the structure of s 49 itself, with sub-s (3) following sub-ss (1) and (2); the words ‘relevant to a prosecution’ in sub-s (3)(a) and ‘the offence’ in sub-s (3)(b); and the further references to ‘a prosecution’ and ‘such a prosecution’ in the balance of sub-s (3).
  28. [154]
    Although the power to compel all reasonable assistance from a person under sub-s (3) may be exercised before a prosecution has commenced, it is clear from the language of the subsection, within the context of s 49, that the occasion for the exercise of the power is only enlivened when ASIC has decided a prosecution should be commenced. The power is to be exercised to assist ASIC to further its prosecutorial function of causing a prosecution to be begun or carried on. The power may be used to require persons to provide information, records, documents or witness statements for the purpose of obtaining evidence for a prosecution. It is not a general investigatory power.
  29. [155]
    Section 49(4) exempts the person referred to in sub-s (1) and their lawyer from the application of sub-s (3). Accordingly, the person whom ASIC considers may have committed an offence and ought to be prosecuted may not be the subject of a written requirement to give all reasonable assistance in connection with a prosecution for such an offence.
  30. [156]
    Section 49(5) confirms that the role, function and powers of the CDPP in respect of the commencement and carriage of prosecutions for Commonwealth and related offences are preserved and unaffected by s 49.

Legislative history

  1. [157]
    So far, I have undertaken a textual analysis of s 49 having regard to its context within the ASIC Act and in light of the statutory objectives of that section and the Act. It is convenient to now consider the relevant legislative history.
  2. [158]
    The precursor to the present s 49 of the ASIC Act was ss 306(8) and (9) of the Companies Act 1981 (Cth) (‘Companies Act’). The Companies Act was the product of a co-operative Commonwealth-State scheme for uniform laws and administration in respect of company law, predating the advent of the Corporations Act 2001 (Cth). The former Companies Act was, in turn, administered by ASIC’s predecessor, the National Companies and Securities Commission.
  3. [159]
    Sections 306(8) and (9) of the Companies Act provided:

306 Provisions relating to reports

…

  1. If from a report under this Part or from the record of an examination under this Part, it appears to the Commission that an offence may have been committed by a person and that a prosecution ought to be instituted, the Commission shall cause a prosecution to be instituted and prosecuted.
  1. Where it appears to the Commission that a prosecution ought to be instituted, it may, by notice in writing given before or after the institution of a prosecution in accordance with sub-section (8), require a person whom it suspects or believes on reasonable grounds to be capable of giving information concerning any matter to which the prosecution relates (not being a person who is or, in the opinion of the Commission, is likely to be a defendant in the proceedings or is or has been a duly qualified legal practitioner acting for such a person) to give all assistance in connection with the prosecution or proposed prosecution that he is reasonably able to give.
  1. [160]
    Three things are to be noted about former s 306(8).
  2. [161]
    First, the wording of s 306(8) largely corresponds with the wording of ss 49(1) and 49(2) of the ASIC Act.  However, there are material differences and the former provision is drafted in a compendious way, whereas s 49(1) is segregated into subsections.
  3. [162]
    Second, whereas s 49(1) refers to ‘as a result of an investigation’, s 306(1) required the Commission to form its relevant opinion or conclusion ‘from a report under this Part’ or ‘from the record of an examination under this Part’. The reference to a ‘report under this Part’ was to an interim or final report of an investigation carried out under pt VII of the Companies Act, which was headed ‘Special Investigations’. Section 305 within pt VII dealt with reports of investigations. Former s 305 of the Companies Act corresponds with ss 16 and 17 of the current ASIC Act. Section 305 provided:

305 Reports of investigations

  1. Where an investigation is being carried out by an inspector appointed pursuant to a direction other than a prescribed direction, the inspector may, and if so directed by the Commission shall, make interim reports to the Commission, and, on the completion or termination of the investigation, the inspector shall report to the Commission his opinion on or in relation to the affairs of the corporation or corporations that he has investigated, together with the facts on which his opinion is based.
  1. Where an investigation is being carried out by an inspector appointed pursuant to a prescribed direction, the inspector may, and if so directed by the relevant authority shall, make interim reports to the relevant authority and, on the completion or termination of the investigation, the inspector shall report to the relevant authority his opinion on or in relation to the affairs of the corporation or corporations that he has investigated, together with the facts on which his opinion is based.
  1. Where an investigation is being carried out by the Commission, the Commission may, and if so directed by the relevant authority shall, make interim reports to the relevant authority and, on the completion or termination of the investigation, the Commission shall report to the relevant authority its opinion on or in relation to the affairs of the corporation or corporations that it has investigated, together with the facts upon which its opinion is based.
  1. [163]
    The Respondent places particular emphasis on the use of the phrase in former s 305, ‘on the completion or termination of an investigation’.
  2. [164]
    Third, former s 306(8) stated the Commission ‘shall cause a prosecution to be instituted and prosecuted’, whereas s 49(2) states ASIC ‘may cause a prosecution of the person for the offence to be begun and carried on.’ The earlier use of the word ‘shall’ was more definitive than the present ‘may’. It suggested the Commission was required to prosecute if it formed the relevant opinion or conclusion.
  3. [165]
    With respect to former s 306(9), it is also pertinent to observe three matters.
  4. [166]
    First, the former subsection corresponds with present ss 49(3) and (4).
  5. [167]
    Second, as with current s 49(3), former s 306(9) provided that the power to require a person to provide all reasonable assistance could be exercised notwithstanding that a prosecution had not yet been commenced, but where it appeared to the Commission that a prosecution ‘ought to be instituted’. 
  6. [168]
    Third, the language used in the earlier provision to designate the category of persons exempt from the application of the requirement to provide all reasonable assistance with the prosecution or proposed prosecution was expressed in terms which included ‘a person who is or, in the opinion of the Commission, is likely to be a defendant in the proceedings…’. The language of the former subsection was consistent with a decision having been made by the Commission to prosecute the person whether or not such prosecution had yet commenced.
  7. [169]
    These relevant former provisions of the Companies Act were re-worded and inserted as s 49 into the Australian Securities Commission Act 1989 (Cth), an earlier incarnation of the current ASIC Act, as part of the uniform corporations legislation enacted by Commonwealth Parliament in 1989.
  1. [170]
    Before its enactment as s 49, the Australian Securities Commission Bill 1988 (Cth) contained cl 49, which initially provided:

49 Commission to cause prosecution to be begun

  1. (1)
    This section applies where, as a result of an investigation or from a record of an examination, it appears to the Commission that a person:
  1. may have committed an offence against a law of the Commonwealth or a Territory; and
  1. ought to be prosecuted for the offence.
  1. The Commission shall cause a prosecution of the person for the offence to be begun and carried on.
  1. If:
  1. the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence;

or

  1. the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;

the Commission may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.

  1. Subsection (3) does not apply in relation to:
  1. the person referred to in subsection (1); or
  1. a person who is or has been that person's lawyer.
  1. [171]
    The Explanatory Memorandum to the Bill noted cl 49 was substantially the same as Corporations Act ss 306(8) and (9).[114] It further noted:[115]

The ASC will be obliged to prosecute a person where it appears as a result of an investigation or from a record of an examination that a person ought to be prosecuted for an offence against the Commonwealth law (sub—cls. 49(l) and (2)).

The ASC will be able to require the assistance of any person other than the prosecuted person for the purposes of such a prosecution (sub—cls. 49(3) and (4)).

  1. [172]
    After its first reading, certain amendments to the Bill and the addition of new clauses were proposed by the Government, including the following in respect of cl 49:[116]
  1. (4)
    Clause 49, page 24, line 36, omit ‘shall’, substitute ‘may’.
  1. (5)
    Clause 49, page 25, at the end of the clause add the following subclause:
  1. '(5)
    Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.’
  1. [173]
    A Supplementary Explanatory Memorandum was issued in respect of the amendments and additions made to the Bill. In respect of cl 49, the Supplementary Memorandum stated:[117]
  1. 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.
  1. 11.
    The amendments to Cl.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.
  1. 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.
  1. 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. (my emphasis)
  1. [174]
    In moving the proposed amendments and additions on behalf of the Government upon the Second Reading of the Bill in the House of Representatives, the Attorney-General stated:[118]

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. The DPP could then use discretion whether to go ahead with or terminate the prosecution. In other words, the amendment gives the Director of Public Prosecutions the opportunity to say that the ASC need not go ahead with a prosecution, and it would not go ahead. (my emphasis)

  1. [175]
    The amendments to cl 49 were agreed. Clause 49 subsequently became s 49 of the Australian Securities Commission Act 1989 (Cth), and later s 49 of the ASIC Act when that Act commenced operation on 15 July 2001.[119] Aside from amendments to change the references in s 49(1) to the type of offence described to read ‘an offence against the corporations legislation’ and the later insertion of s 49(3A), s 49 has remained in the same form as when first enacted as s 49 of the Australian Securities Commission Act 1989 (Cth).
  2. [176]
    In my opinion, the legislative history is consistent with my textual analysis of s 49 and how I consider it interacts with s 19.

Canons of construction

  1. [177]
    As noted above, the Applicant relies upon the principle of legality and the so-called Anthony Hordern principle in aid of her construction argument. It is therefore necessary to consider those principles and what, if any, application they may have to the proper construction of s 49 and its interaction with s 19 of the ASIC Act.
  2. [178]
    The principle of legality requires that clear language be used in legislation if a person is to be deprived of a valuable right.[120] The High Court has said that the principle of legality favours a construction, if one be available, which avoids or minimises a statute’s encroachment upon fundamental principles, rights and freedoms at common law.[121] Courts do not impute to the legislature an intention to abrogate or curtail such fundamental rights or freedoms, unless such an intention is clearly manifested by unmistakable and unambiguous language.[122] The legislature must express, by clear words or by necessary implication or intendment, a statutory intention to abrogate or restrict a fundamental freedom or principle.[123]
  3. [179]
    The High Court has also said that the principle of legality ought not, however, be extended beyond its rationale. It exists to protect against inadvertent and collateral alteration of rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature. The principle of construction is fulfilled in accordance with its rationale where the objects, terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed.[124] 
  4. [180]
    In my opinion, that is clearly the case here.
  5. [181]
    Through the language used in s 49, read together with s 68, the legislature has expressed, by clear words, a statutory intention to abrogate or restrict the common law right to silence and the privilege against self-incrimination. The same may be said of s 19. The balance struck by the legislature between individual rights and the public interest has been clearly expressed in a way that seeks to enable ASIC to perform its related, but distinct, investigatory and prosecutorial functions in pursuit of the objects of the ASIC Act, whilst retaining a limited use immunity where privilege against self-incrimination is claimed by an individual.
  6. [182]
    In those circumstances, there is no basis to construe s 19 in a way that its operation is limited or restricted by s 49. The legislation is clear. The principle of legality does not require an interpretation that departs from the obvious and logical construction derived from the text of the relevant provisions considered in their full context.
  7. [183]
    Neither does the Applicant’s reliance upon the so-called Anthony Hordern principle.
  8. [184]
    That principle refers to the following statement by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia:[125]

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

  1. [185]
    The principle was considered in Leon Fink Holdings Pty Ltd v Australian Film Commission (‘Leon Fink’), where Mason J concluded that a clause in the statute there in question, which stated ‘without limiting the generality of the foregoing’, evinced an intention that a general power conferred by the statute was to be given a broad construction and not one restricted by the terms of a more specific power that followed in the same section.[126] Nevertheless, his Honour made plain that it would not be in every case that a clause of that kind would always be effective to prevent the making of a restrictive implication from the presence of a specific power which is expressed to be subject to limitations, qualifications, restrictions or conditions. Rather, each case will depend on the precise character of the relevant provisions and on the context in which they are found.[127]
  2. [186]
    In my opinion, the Anthony Hordern principle has no application in this case.
  3. [187]
    The main reason is that the powers given by ss 19 and 49 are not the same. Section 19 confers investigatory powers, including a power to require a person to submit to compulsory examination in support of an investigation. Section 49 confers prosecutorial powers, to cause a prosecution to begin, to carry on a prosecution and to obtain assistance for those purposes. The legislative provisions in question here are not two provisions in the same Act under which the same power may be exercised. The power in s 19(2) is an investigation power to be used to assist ASIC to perform its investigation functions.  In contrast, the power in s 49(3) is ancillary to a current or prospective prosecution. It is to be used to assist ASIC to perform its prosecutorial function.
  4. [188]
    An investigation is an administrative inquiry or process undertaken by a person or body with investigative functions to ascertain whether or not an offence may have been committed and whether a criminal proceeding should be instituted.[128] A prosecution is different. It is a curial proceeding commenced and carried on by a person or body with the authority or function and the power to prosecute a criminal offence. A prosecution invariably follows an investigation.
  5. [189]
    In my view, the character of ss 19 and 49 and the context in which they are found do not evince an intention that the power in s 19(2) may not be exercised where s 49(4) is engaged. This is not a case where the legislature has explicitly given a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, thereby necessarily excluding the operation of general expressions within the same statute that might otherwise be relied upon to exercise the same power. The Anthony Hordern principle only applies in a case where the ambit of a restricted power is wholly within the ambit of a power which itself is not expressly subject to restrictions.[129]
  6. [190]
    In addition, s 93 makes the position plain, in my view. Section 93 provides that, except where expressly provided, nothing in pt 3 limits the generality of anything else in that part. Although the Applicant referred to various cases said to support a submission that s 93 did not operate according to its express terms,[130] each of those cases was decided according to its own specific statutory context and none of them established any binding point of principle that would apply to limit the plainly stated ambit of s 93. Accordingly, in my view, s 93 means precisely what it says.
  7. [191]
    Neither s 19 nor s 49 make any express provision that they are subject to, or limited by, the other section in their application or operation. By virtue of s 93, there is no basis to infer otherwise. Upon its proper construction, s 49 simply does not operate, by reason of the ‘carve out’ in sub-s (4), in a way that restricts the exercise of the power in s 19(2).

Conclusion

  1. [192]
    The critical issues with respect to s 49 raised by the Applicant in this case concern when and how s 49(1) is engaged. That, in turn, involves consideration of the nature of the composite state of mind that must be held and the identity of the person who must hold that state of mind.
  2. [193]
    As I have already noted above, in my opinion, the composite state of mind ultimately requires ASIC to form a conclusion or opinion and ultimately decide that a person ought to be prosecuted. Such a decision can only logically be made when an investigation has concluded, or close to concluding.
  3. [194]
    As to the identity of the person who must hold the requisite state of mind, I do not accept the Applicant’s submission that the person is any one of the ASIC investigators in this case, nor do I necessarily accept the Respondent’s submission that the decision must be made by ASIC ‘institutionally’.
  4. [195]
    In my view, for the reasons I have already set out above, the relevant state of mind is that of the person who will have the responsibility for deciding whether a person ought to be prosecuted for an offence.  That person must necessarily be the person who exercises the relevant power conferred by s 49(2). Section 49(1) is not to be considered in isolation. It has no free-standing operation. It prescribes the requirements that must exist before s 49 will apply. It provides the preconditions or ‘trigger’ for ASIC (or an ASIC delegate) to exercise its powers under ss 49(2) or (3). The person who exercises the power must therefore first hold the requite state of mind upon which the exercise of power is conditioned. Consequently, the delegate who exercises the power in sub-s (2) must be the same person who has formed the state of mind required by sub-s (1). Therefore, it is the person who will decide whether ASIC will cause a prosecution to be begun that must hold the requisite state of mind under s 49(1). It is in that sense perhaps that it is apt to say there is an ‘institutional’ determination. 
  5. [196]
    Simply because one or more ASIC delegates has a particular belief, opinion or state of mind does not mean that their view is taken to be satisfaction of the requisite state of mind of ASIC for the purposes of s 49. There may be numerous investigators who are also ASIC delegates, working on any given investigation. As an investigation unfolds, they will invariably have formed their own views about what an investigation reveals about whether a person may have committed an offence and ought to be prosecuted. Ultimately, however, it is not their views or opinions that are determinative. In organisations like ASIC, officers are given ordinary authorities and responsibilities in addition to formal delegations. Within the lines of authority established by ASIC, a particular matter will be committed to the responsibility of an appropriate officer. In my view, that will be the case with respect to the forming of an opinion under s 49(1). It will therefore be the opinion of the authorised, responsible ASIC delegate who exercises the power in s 49(2) that must be considered.[131]
  6. [197]
    The position is different in the case of the exercise of the s 49(3) power. In that situation, the ASIC delegate may be another investigator other than the responsible ASIC delegate who held the requisite state of mind under s 49(1). That is because the occasion to consider the use of the s 49(3) power will only arise where the s 49(1) opinion has already been formed and the decision made by ASIC that the person ought to be prosecuted for the purpose of exercising the power in s 49(2). In that case, the state of mind of the responsible ASIC delegate is taken to be the state of mind held by ASIC. Therefore, when ASIC (the body corporate) comes to exercise the powers in s 49(3) through another ASIC delegate, ASIC (the body corporate) already holds the requisite s 49(1) state of mind.
  7. [198]
    I do not consider any anomalous or incongruent consequences arise from my conclusions about the proper construction of s 49 and its interaction with s 19. The ‘carve out’ in s 49(4) will only operate to exempt a person from being subjected to a requirement made under s 49(3) where ASIC has decided they should be prosecuted for an offence. An investigation may still be continuing, notwithstanding ASIC has formed that opinion and made that decision. However, that does not preclude the operation of s 19(2).
  8. [199]
    The conclusions I have reached concerning the proper construction of s 49 mean that the Applicant’s contention that the 2016 Examinations were unlawful will turn upon whether the relevant evidence shows that ASIC had made a decision to prosecute the Applicant at the time she was compulsorily examined.

Were the 2016 examinations unlawful?

Submissions

  1. [200]
    The Applicant submits that the relevant evidence clearly establishes that ASIC had formed the composite state of mind required by s 49(1) before the Applicant was compulsorily examined pursuant to a requirement made of her under s 19(2).
  2. [201]
    The Applicant contends that in those circumstances, the 2016 Examinations were unlawful because s 49(4) would exempt her from being subjected to the use by ASIC of its coercive powers to give ‘all reasonable assistance’ under both ss 49(3) and 19(2).
  3. [202]
    The Respondent submits that, even if the Applicant’s interpretation of s 49 is accepted, s 49(1) was not engaged as the evidence does not demonstrate ASIC had formed the composite state of mind required by s 49(1) as no decision or determination had been made by ASIC to prosecute the Applicant at that time.
  4. [203]
    To resolve this issue, it is necessary to consider the relevant evidence in some detail.

Evidence

  1. [204]
    I have already extracted the investigation chronology summarised by Farr DCJ at the commencement of these reasons. To that, it is necessary to add the following.
  2. [205]
    Between 30 September and 11 October 2019, a committal hearing was held in the Brisbane Magistrates Court in respect of the charges. The relevant transcripts of the evidence given in those proceedings are in evidence before me.[132] Other relevant documents concerning the ASIC investigation are also in evidence.
  3. [206]
    The investigation was formally commenced following a decision made by the relevant ASIC delegate, Brendan Caridi, a Senior Manager within ASIC’s Corporations and Corporate Governance Enforcement Team. The decision was recorded in a document titled ‘Section 13 File Note’ dated 12 January 2016.[133] Within that file note, Mr Caridi noted his determination:

As a result of my review, I have reason to suspect that there may have been contraventions of sections 184, 606 and 671B of the Corporations Act 2001 in relation to the trading and the securities of Affinity between the period 2 July 2015 and 21 October 2015.

I am also of the view that it is expedient for the due administration of the Corporations legislation that ASIC investigate the matters set out above, and that it is appropriate that ASIC investigate the suspected contraventions of the Corporations Act set out above.

  1. [207]
    Between 12 January and 5 April 2016, ASIC investigators Mathew Bastianon and Peter Paleologos took various steps to advance the investigation, including by issuing of statutory notices to produce documents and conducting compulsory examinations in respect of a number of persons. They also commenced drafting witness statements for a proposed prosecution of the Applicant.
  2. [208]
    On 31 March 2016, Mr Caridi sent an email to each of Messrs Bastianon and Paleologos seeking an update about the progress of the investigation.[134] The email read:

When will a brief be ready to present to the CDPP (or NFA memo ready for George if the evidence doesn’t stack up)?

I’d like you to crunch the numbers and give me the best estimate (beware: I will probably ask to see the underlying assumptions!!). If you could let me know by mid next week that would be good.

  1. [209]
    In response to that email, Mr Bastianon sent a reply email on 5 April 2016 in which he relevantly stated:[135]

Peter and my best estimate for when a brief to the CDPP (or, alternatively, a NFA recommendation) will be ready is by 15 July.

Our estimate is based on the following practical realities:

  1. (1)
    We are in the process of issuing notices to a number of persons to produce documents directly relevant to the proposed charge under s 1309 based on the revised scope (which have not previously been obtained), for example, to the ASX, brokers and Affinity. We will require time to review these documents once they are produced to see if there is anything else we need to obtain. Further documents from G8 may also need to be obtained under notice.
  1. (2)
    We have commenced drafting with the statements,; however, a large number will incorporate the documents currently being sought under notice. These statements will not be able to finalised until we have reviewed what is produced.
  1. (3)
    We will, of course, need to examine Hutson and then review her evidence to see what ‘holes’ need to be covered as a result of what we are told and to assess any possible defences. We may also take the opportunity to examine a couple of other minor witnesses to close off a couple of issues…

Once all this is done, and before preparing a final brief, as discussed, it may be useful to seek advice from CLO about the CDPP’s appetite in relation to the proposed charges (which may take a little time to obtain). After that, a brief (or NFA memo) will be prepared.

  1. [210]
    In his evidence at the committal hearing, Mr Bastianon confirmed that he was employed by ASIC and assigned to the Corporations and Corporate Governance Enforcement Team. He confirmed this was the team responsible for the investigation into the matter involving the Applicant. His position in the team at the time was project manager and senior lawyer and his role was ‘…effectively to fulfill administrative tasks associated with the investigation and report upwards…to my senior manager and beyond.’[136]
  2. [211]
    Mr Bastianon was cross-examined about the emails between Mr Caridi and himself and his state of mind concerning the Applicant.[137] The relevant evidence given by Mr Bastianon was as follows:[138]

You will now acknowledge, I expect, that as at the 5th of April, it was proposed, at least by ASIC, that charges be brought against Ms Hutson?---Yes.

And you had reached a view, had you not, therefore, that Ms Hutson may have committed a criminal offence?---Yes.

And - - -?---We – sorry - - -

Yeah, that Ms - - -?--- - - - I’ll rephrase that. We suspected that she committed a criminal offence, yes.

Yeah. Well, you’d reached the view that she had. You wouldn’t be proposing charges if your view was that she only may have, or that there was a possibility. Your view was that she had committed criminal offences?---My view was that we suspected that she had, and that a brief would be prepared for the DPP for them to decide whether or not charges should be laid.

So if you’d been asked on the 5th of April, when discussing the proposed charges, ‘Do you think that she has committed those offences?’ Your answer would have been, ‘Yes, I do’?---As I just said, we suspected that she had.

Yep, and also your view was that she ought to be prosecuted?---Our view was that we were preparing a brief of evidence, that we thought supported our suspicions that she had committed criminal offences, to provide to the DPP so that they could evaluate that brief of evidence and make a decision as to whether or not it was appropriate that charges should be laid.

Mr Bastianon, you were, at the 5th of April, intending to recommend charges against Ms Hutson, correct?---Yes.

Therefore, it follows that it was your view that she ought to be prosecuted?---It was my view that we had sufficient - - -

Would you – I’m sorry, you’ve given an earlier answer – now attend to that, please.  It was your view that she ought to be prosecuted, yes or no?---Well, I’m sorry, Mr Clelland, it’s not – I can’t answer that as a yes or no. My view, as I stated, was that – our position was that we had sufficient evidence to support our suspicion that criminal offences had been committed by Ms Hutson, and that a brief was being prepared to supply to the DPP for them to make that decision.

Recommending charges?---Of course.

Right. You wouldn’t recommend charges if you didn’t think someone should be prosecuted, would you?---We wouldn’t recommend charges if we didn’t suspect that somebody had committed - - -

No?--- - - - criminal offences.

No, the question was, you would not recommend charges if you did not think that somebody should be prosecuted?---Yes, that’s correct.

Do you understand the question?---Yes, I understand the question. That’s correct.

And you agree with the proposition?---I do.

In the memorandum of the 5th of April 2016 there are references to witnesses, or potential witnesses; you agree with that?---Yes. Paragraph 2?

Yeah?---Yes.

And Ms Hutson was in no way, shape or form being considered as a witness or potential witness, was she?---Obviously not.

You are not viewing her at that point in time in any sense as a potential witness?---Of course not.

  1. [212]
    In re-examination, Mr Bastianon gave the following evidence:[139]

And just a couple of questions about the email of the 5th of April 2016. Do you still have that in front of you? That’s your email to Mr Caridi?---Yes. Fifth of April?

Yes?---Yes, I have that.

If you look at the first sentence of that?---Yes.

You’ve commenced by saying:

Peter and my best estimate [indistinct] a brief to the CDPP.

And then you’ve put some further words in parenthesis?---Yes.

Can you tell us what an ‘NFA recommendation’ is?---No further action.

Well, the first – you appear to have posed two options in that sentence. One is that a brief would be sent to the DPP and then you pose an alternative?---Yes.

Why did you include the NFA recommendation as an alternative in this memo?---We were considering at that stage, your Honour, a number of possible offences that had been committed, but we had not concluded our investigation. There was still additional steps that we had to undertake, additional documentation that we had to consider. And, of course, at that stage we had been yet to speak to Ms Hutson.

Well, was the NFA recommendation a genuine option at that time?---No, at that time our – our view was that a few offences may have been committed. Maybe not the totality of – we were considering at the time, but certainly that some offences had been committed.

You set out in the memo a range of things that needed to be done?---Yes.

Would the outcome of the things that needed to be done have had any bearing on the two options that you posed in the first sentence of that memorandum?---Yes, they would.

In what way? Can you just explain?---Well, they would either confirm or suspicions or – or – or – or not – and would provide us with further evidence that we could consider as to what offences may have been committed.

…

The memorandum in the second last paragraph reads:

After that a brief (or NFA memo) will be prepared.

?---Yes.

That, likewise, seems to pose the same two alternatives as in the first sentence; is that the way you - - -?---Yes.

- - - intended it?---Yes. I mean, we’re – we’re going through a process, your Honour, of evaluating the evidence. We’re still in the process of gathering evidence. We have our suspicion, of course, as to what offences may have been committed and by whom, but we’re still in the course of that process and we are yet to examine Ms – Ms Hutson.

  1. [213]
    Earlier in the cross-examination, Mr Bastianon had also been asked questions about his understanding of ss 49 and 19 of the ASIC Act and the circumstances in which a s 19 examination of a person could be conducted. The relevant evidence he gave was:[140]

Right. Let’s take it in stages. My understanding of your answers today is that even if it is the view of ASIC investigators that they are going to recommend that a person should be charged, it is, nonetheless, open to them and appropriate to conduct a section 19 examination. Do you accept - - -?---Before a prosecution has commenced, yes.

And by that you mean before formal charges are laid?---Yes.

And is the position this, that when the notices were issued to Ms Hutson back in 2016, there was no consideration given as to whether it was appropriate, because she was a person against whom charges were going to be recommended by ASIC – there as no consideration as to whether, nonetheless, it was appropriate to conduct a section 19 examination with her?---It was still appropriate to conduct a section 19 examination.

You - - -?---We were still investigating at that stage.

Right. Is it your view that you can use a section 19 examination to plug any evidentiary gaps ASIC might think exist in their case?--- I wouldn’t – your Honour, I wouldn’t characterise it as plugging any evidentiary gaps. We use the section 19 examination power to elicit evidence and information. And there’s limited use that can be made of evidence given in a section 19 examination, in any event.

Quite, but if somebody gives a version on oath in a section 19 examination - - -?---Yes.

- - - you understand that, even if it can’t be used against them, it has the effect of constraining the way in which they may conduct their defence. You know that, don’t you?---No, I don’t understand that.

That’s not something you gave consideration to when you issued the notices under section 19 in 2016?---Our focus is on conducting a full investigation and a complete investigation. And issuing notices, whether they be for documents or to attend for examination to do that.

What was the purpose of conducting the section 19 examination with Ms Hutson on the 25th of May 2016?---To ask her about matters that we had received evidence and information in relation to.

For what purpose?---To find out what she had to say about it.

Why? If it couldn’t be used against her, why would you do that?---Well, we have certain – we had certain information, your Honour, certain evidence. Ms Hutson was a party to conversations, to meetings. It appeared in document trails. And we wanted her version of events to find out what explanation she had for those various matters.

You were totally committed at that time to a recommendation to the Commonwealth DPP that Ms Hutson be charged, weren’t you?---As at?

As at May of 2016?---No. No, we didn’t deliver a brief to the DPP until the end of the year.

I’m saying you were totally committed at that time to recommending charges against her?---No, that’s not right.

So if somebody had said to you what criminal charges do you allege Ms Hutson has committed as at May of 2016, your answer would have been, well, we don’t allege she’s committed any criminal charges – any criminal offences?---No, of course not. We had suspicion that certain offences had been committed and had been committed by Ms Hutson at that stage, based on evidence that we had gathered to that stage.  We hadn’t formed a final view. And it’s absolutely the correct thing to do to ask Ms Hutson to provide her version of events and give her the opportunity to explain to us. And if by some chance, there are flaws in the evidence that we had received or she has an alternative explanation, then we were wanting to hear it.

So it wasn’t, you say, for the sake of simply making sure that you could address anything that she might say by way of a defence so that that could be covered off in the prosecution case?---As I say - - -

Is that the case or not?---No, I don’t agree with it’s to cover off and close off a defence. At that stage when we talked to Ms Hutson we had no idea what any defence might be that she had. We hadn’t spoken to her.

All right. But is that why you conducted the section 19 - - -?---No.

- - - so you could find out?---No. As I said, we wanted to find out if she had an explanation for certain matters and certain events. We didn’t know anything.

  1. [214]
    In his evidence, Mr Paleologos confirmed he was employed by the ASIC as an investigator and a lawyer in the Corporations and Corporate Governance Enforcement Team. He further confirmed that he was part of that team during the course of the investigation in respect of the Applicant during 2015 and 2016.[141] With respect to the duties he carried out, Mr Paleologos gave the following evidence:[142]

We’ve heard from Mr Bastianon that he carried out duties as what he called the project manager for this investigation. Does any such title apply to you?---I would call myself a project officer, investigating lawyer assisting in the investigation. Obviously, I undertook a lot of the tasks, but I would call myself a project officer in that hierarchy.

Is there some hierarchy as between you and, say, Mr Bastianon?---There’s a hierarchy in the sense that you’ve got the project sponsor, who sponsors – who’s in charge of the whole team and they sponsor the – all the investigations all under their team. There’s project manager, who’s in – who would be Mr Bastianon. He runs the investigation in the sense of all the tasks, investigative tasks, and there’s obviously support people, investigators and lawyers, which you’ll probably call project officer.

Were there any other project officers, apart from you, assisting with the investigation for which Mr Bastianon was a project officer?---Pretty much myself and Mr Bastianon. Obviously, there was other officers assisting with the search warrants in those – there was a couple of search warrants and there was three locations, but other than that, it was basically me and Mr Bastianon.

  1. [215]
    With respect to his understanding of the purpose of the investigation, including the investigation into the Applicant, Mr Paleologos gave the following evidence in cross-examination:[143]

Can I take you now to a topic which is the status of Ms Jennifer Hutson during the course of this investigation. When you are involved in an investigation, you would regard it as being a search for the truth as far as possible, would you not?---Correct. Yes.

You would not think it proper at all to simply conduct an investigation by seeking to support a case theory that ASIC had developed?---Can you elaborate or - - -

Yes, indeed?--- - - - explain that question a little bit better, please.

An investigation, as I think you’ve already agreed, is something – or is a process that is designed, as far as possible, to get to as much of the truth as you can?---Yes.

It is not an exercise in simply gathering supporting evidence for what ASIC thinks might’ve occurred?---No. No.

No. So that even if a witness seems to be saying something that supports ASIC’s case, or is helpful to the case, that evidence should, nonetheless, be rigorously tested?---Of course. I mean, as – as you can tell from this exam – this investigation, there was a lot of notices, a lot of inquiries, a lot of witnesses, so quite a thorough investigation.

Yeah. And in that regard, was an open mind kept in relation to, for example, the status of Ms Hutson throughout the investigation?---Yes.

Was she always regarded, up until the time of the brief being submitted to the Commonwealth DPP, as somebody who might even be potentially a witness?---Initially, the investigation started with all – all were examined, and that shifted because of evidence that was coming on board, and therefore Ms Hutson was then recognised as someone who – a suspect, in essence, or a – a subject of the investigation.[144]

…

I just want to understand your answer. Are you saying that prior to Ms Hutson’s investigation, she was a suspect?---No, no.

So prior to Ms Hutson’s examination, section 19 examination, was she a suspect or not?---Basically, it was – prior to that, we were looking at the transactions that – sorry, the Takeover Panel decision.

Was she a suspect before - - -?---She would’ve – there would’ve been concerns about her conduct from the Takeover – Takeover Panel’s decision, yes. 

Was she a suspect before her section 19 examination or not?---I would say so, yes.

  1. [216]
    Mr Paleologos was asked about the point in time at which ASIC recommended charges against the Applicant to the CDPP. The evidence he gave on that issue was:[145]

At some point in time, was there a decision made to recommend charges against Ms Hutson to the Commonwealth DPP?---It was, after - - -

Against Ms Hutson?---Against Ms Hutson, amongst others, yes.

Was that before or after her section 19 examination?---She had two section 19 examinations and there’s also search warrants.

Let’s say the first of them?---I think after – after the search warrant and the examinations, because we had the search warrant later as well. Don’t forget. We – we had a search warrant on her - - -

Yes, I know that?---Okay. Yeah.

That was in August - - -?---Sorry. I just wanted to clarify that.

Yeah. Okay. I’m just asking you this. When were charges identified, or potential charges identified, that might be brought against Ms Hutson by ASIC?---I would say after the search warrants.

After search warrants, so some time in August 2016?---Around about that time.

  1. [217]
    Mr Paleologos was then asked questions about the 5 April 2016 email written by Mr Bastianon in response to the earlier 31 March 2016 email from Mr Caridi. In respect of that matter, Mr Paleologos gave the following evidence:[146]

Indeed, weren’t you copied into an email from Mr Bastianon to Mr Caridi on the 5th of April – so this is now getting towards two months prior to the first section 19 examination of Ms Hutson which took place on the 25th of May, and in that memorandum some advice was being given to Mr Caridi about a best estimate for when a brief to the CDPP would be forwarded. Do you remember that?---I recall that, yes.

And it might’ve been some optimism in the proposed date of the 15th of July, but what was referred to in that memorandum were proposed charges at that time?---With the evidence we had at that time, based on that evidence.

And the proposed charges would’ve been charges against Ms Jennifer Hutson; agreed?---Yeah. Recommended charges, yes, because the DPP ultimately makes the decision on charges. We just put the brief of evidence forward - - -

I understand?--- - - - about our concerns.

And recommend charges?---Recommendation, yes.

Yeah?---Yes.

As at the 5th of April 2016, are you able to tell her Honour what the recommended charges against Ms Hutson were in your mind?---At that stage, the charges that came out of the Takeover Panel, the Affinity, G8’s bid, basically, and maybe there would’ve been some director duty charges as well – one eight – at that time – 184 being - - -

Yep?--- - - - the criminal director duty provision.

  1. [218]
    Mr Paleologos was then cross-examined about what his understanding was of the purpose of the s 19 examination to be conducted of the Applicant, having regard to the matters expressed in the 5 April 2016 email chain. The relevant evidence he gave was as follows:[147]

The memorandum - - -?---Yes.

- - - you’ve agreed, was referring to proposed charges that ASIC were going to recommend to the DPP; agree?---Yes.

That’s the 5th of April. Almost two months later, Ms Hutson is subjected to a section 19 examination?---Yes.

Correct? It must follow that you knew at that time that she was a person who ASIC had, or intended to recommend, charges against when that section 19 examination was conducted; agree?---Yes, I agree with that.

  1. [219]
    Mr Paleologos was asked about his understanding of the effect of s 49 of the ASIC Act. He gave the following relevant evidence:[148]

Mr Paleologos, are you familiar with the provisions of section 49 of the ASIC Act?---Yes.

You would accept that that section applies where, as a result of an investigation or from a record of an examination, it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence? Now, as at the 25th of May, you would accept that it was ASIC’s view in relation to Ms Hutson that she may have committed an offence against the Corporations legislation?---Yes.

You agree? And that it was ASIC’s view at that time that she ought to be prosecuted for that offence or those offences?---Maybe that offence, yes. Yes. Yep.

You agree?---I agree with that, yes.

…

And was it considered by you or anybody else in your team as to whether section 49 meant that it was therefore improper to coercively examine Ms Hutson?---Would’ve been considered by the project manager, Mr Bastianon, in conjunction with Mr Caridi and myself. I mean, I was involved in preparing the examination, but in terms of the – the decision made to continue into the examination phase [indistinct] would’ve been Mr Bastianon.[149]

Consideration

  1. [220]
    In my opinion, the 2016 Examinations were lawful.
  2. [221]
    The Applicant’s contention to the contrary relies upon acceptance of the Applicant’s construction argument as well as acceptance of the Applicant’s submissions about what the relevant evidence establishes concerning the states of mind and conclusions reached by ASIC investigators involved in this matter.
  3. [222]
    As I have already explained above, I do not accept the construction argument. That being so, in my view the Applicant’s argument as to what the evidence establishes about the states of mind held by the Messrs Bastianon and Paleologos proceeds on an erroneous basis. On its proper construction, s 49(1) is not triggered simply because ASIC investigators have formed the opinion that a person may have committed an offence and ought to be prosecuted. That is so irrespective of whether those persons have been delegated pt 3 functions and powers under s 102 of the ASIC Act.
  4. [223]
    As I have explained already, the relevant state of mind will be that of the ASIC delegate who is responsible for performing the function and exercising the power in s 49(2). On the evidence adduced, that person is neither Mr Bastianon nor Mr Paleologos. Whilst the evidence shows they had formed their own opinions about the Applicant and whether she ought to be prosecuted, they were nevertheless still investigating the matter as at the time that the 2016 Examinations were conducted, and they were yet to finalise the brief of evidence and their recommendation.
  5. [224]
    Further, their evidence clearly establishes that another more senior person, or persons, within the team would consider their recommendation and would be responsible for deciding whether the brief of evidence and ASIC’s recommendation of charges was to be referred to the CDPP for consideration of commencement of a prosecution. In my view, it would be that person, or persons, in the capacity of an ASIC delegate, who would be responsible for performing the function and exercising the power under s 49(2) to ‘cause a prosecution to be begun’, by deciding to refer the matter to the CDPP. Hence, it would be that person who would be required to hold the relevant state of mind and to have formed the opinion required by s 49(1).
  6. [225]
    On the evidence adduced, that point had not yet been reached by the time the Applicant was compulsorily examined. Therefore, s 49(1) was not triggered at the time of the 2016 Examinations.

Discretionary considerations

  1. [226]
    Even if I were wrong in my conclusions with respect to the proper construction of s 49 and the facts established by the relevant evidence, I would decline to grant the declaratory relief sought by the Applicant on discretionary grounds.
  2. [227]
    Whilst it may be accepted that declaratory relief may be granted in respect of a pending criminal proceeding, the circumstances of the case must be ‘exceptional’ or ‘special’ and there is a well-established reluctance to intervene.
  3. [228]
    As Gibbs ACJ said in Sankey v Whiltam:[150]

Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.

  1. [229]
    In Gedeon v Commissioner of the New South Wales Crime Commissioner (‘Gedeon’), the High Court granted declaratory relief in respect of a pending criminal proceeding, but nevertheless stated:[151]

With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle.  This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged…

  1. [230]
    In my view, there are several compelling factors present in this case that would cause me to decline to grant to declaratory relief sought by the Applicant.
  2. [231]
    Firstly, there is the powerful consideration that the Applicant has already unsuccessfully made a pre-trial application under s 590AA of the Criminal Code in respect of the same matters and premised on the same arguments now advanced on this application. As ss 590AA(3) and (4) make plain, the decision of Farr DCJ is binding unless special circumstances are demonstrated to justify reopening the decision, and the Applicant may not bring an interlocutory appeal against the decision. Nevertheless, in the event that the Applicant is convicted of any of the charges she faces in the District Court, she retains a right of appeal under s 668D of the Criminal Code. It would be open to the Applicant to challenge any conviction on the basis that the 2016 Examinations were unlawful. The effect of these provisions and the availability of an avenue of appeal militate strongly against this Court intervening in the pending criminal proceedings. There is an alternative remedy available to the Applicant in the event she is ultimately convicted of any offence with which she is charged.[152]
  3. [232]
    Secondly, there is the question of delay in the finalisation of the criminal proceedings. While the Applicant submits that there is no prospect of any undue delay of her criminal proceedings brought about by the application to this Court, there has already been delay occasioned by that very fact. The District Court has not listed a trial of the charges faced by the Applicant on either indictment presented in that court because the Applicant has pursued the present application.[153] The trial of the Applicant’s co-accused has also not yet been listed by the District Court as it has been accepted by the prosecution and the co-accused’s legal representatives that his trial should follow the Applicant’s trials.[154]
  4. [233]
    There are numerous persons who have provided witness statements for the purposes of the Applicant’s prosecutions.[155] Until her criminal proceedings are finalised, they must continue to wait in anticipation of being required to give evidence at a trial.  Aside from the uncertainty and potential inconvenience to those persons, delay of any kind has the potential to adversely affect the integrity of the evidence the witnesses may give at trial due to the effects that the effluxion of time may have on memory.
  5. [234]
    It is no answer to the issue of delay to argue that any delay brought about by the making of this application is unlikely to be material in the scheme of things.[156] The rationales for the reluctance on the part of Court to entertain applications that fragment pending criminal proceedings do not dissipate simply because the net result of such interlocutory processes may mean that no significant delay of the criminal proceedings occurs. As was made plain by the High Court in Gedeon, the fragmentation of criminal proceedings is to be actively discouraged.
  6. [235]
    Thirdly, granting the declaratory relief sought has the potential to undermine public confidence in the administration of justice. A criminal proceeding has been regularly commenced and is pending in the District Court. There is a strong public interest in those criminal charges being determined through the ordinary processes in that court. There is to my mind a real risk that public confidence in the administration of justice may be diminished if the criminal trial process is circumvented by granting the relief sought by the application made to this Court, rather than simply permitting the criminal proceedings to run their course in the ordinary way.
  7. [236]
    Fourthly, I do not consider that there are ‘exceptional circumstances’ or ‘special reasons’ which justify this Court intervening at an interlocutory stage in the criminal proceedings before the District Court. The Applicant’s central challenge to the lawfulness of the 2016 Examinations concerns a question of statutory interpretation.   The Applicant challenged the lawfulness of the 2016 Examinations on the same basis in the District Court through the ordinary pre-trial processes available under s 590AA. She was unsuccessful in that court. I have likewise rejected the same construction arguments advanced here on the present application. She does not assert, nor has she demonstrated, jurisdictional error by Farr DCJ.
  8. [237]
    This is neither a case where there is a clear need to grant the relief sought in order to avoid a ‘wholly abortive’[157] trial nor a clear case where ‘the need for such interference is absolutely plain and manifestly required’.[158] Further, and in any event, I do not consider the issues raised by the Applicant are of such considerable public importance that discretionary considerations would favour intervention by this Court.
  9. [238]
    Finally, even if I accepted the Applicant’s arguments and considered it appropriate to make the declarations sought, it is pertinent to bear in mind those orders would not determine the pending criminal proceedings. At best, the Applicant would then be armed with a basis (albeit a compelling one) to seek to reopen the decision made by Farr DCJ, in accordance with s 590AA(3) on the basis that there were special circumstances justifying the revisiting of that decision. The Applicant would then need to demonstrate those circumstances justified a permanent stay or perhaps the exclusion of evidence to be adduced in the prosecution case. On either scenario, the District Court would inevitably be required to consider other factors and the exercise of further discretion in order to determine the revisited application.

Conclusion

  1. [239]
    I have concluded that the Court’s supervisory jurisdiction over inferior courts does not extend to granting relief of the kind sought by the Applicant in respect of the dismissal of her s 590AA application in the District Court. Nevertheless, I have considered whether the declaratory relief might be granted in the exercise of the Court’s general jurisdiction, as that jurisdiction is not ousted by s 590AA(4).
  2. [240]
    I have not accepted the Applicant’s construction argument concerning s 49 of the ASIC Act and its interaction with s 19. Further, and in any event, I have rejected the Applicant’s argument that the evidence relevant to the investigation conducted by ASIC demonstrates that s 49(1) was engaged.
  3. [241]
    Accordingly, in my view, the 2016 Examinations were lawfully conducted. Therefore, the basis for the relief sought by the Applicant has not been made out.
  4. [242]
    Further, even if I had found in the Applicant’s favour on the construction argument and had found that on the state of the evidence that s 49(1) was engaged, I am firmly of the view that discretionary considerations weigh heavily against making declarations of the kind sought by the Applicant in respect of her pending criminal proceedings in the District Court. For that reason alone, I would refuse to grant the relief sought.

Orders

  1. [243]
    Accordingly, the orders I make are:
  1. The application is dismissed.
  1. The Applicant is to pay the costs of each of the First and Second Respondents.

Footnotes

[1]  In this judgement, ‘Respondent’ refers to the First Respondent, noting that the Second Respondent has been excused from appearances (save as to the question of costs).

[2] R v Hutson [2021] QDCPR 78.

[3]  Ibid [45].

[4]  Ibid [46].

[5]  Ibid [61].

[6]  Ibid [67].

[7]  Ibid [82].

[8]  Ibid [85].

[9] Hutson v ASIC [2022] QSC 68.

[10]  Ibid [35].

[11]  Ibid.

[12]  Ibid.

[13] R v Hutson [2021] QDCPR 78, [20]-[34].

[14]  Exhibit 1, Applicant’s Outline of Key Issues.

[15]  T1-5:35-37.

[16]  T1-5:37-39.

[17]  T1-35:13 – T1-36:8.

[18]  T2-28:16-28; T2-30:40-44.

[19] Warramunda Village Inc v Pryde (2001) 105 FCR 437, [8]; [2001] FCA 61.

[20] R v Trade Practices Tribunal (1970) 123 CLR 361, 374; [1970] HCA 8.

[21] Nagle v Feilden [1966] 2 QB 633, 647.

[22] Forster v Jododex (1972) 127 CLR 421, 437; [1972] HCA 61.

[23] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10.

[24] Cameron v Hogan (1934) 51 CLR 358, 378; [1934] HCA 24.

[25] Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [39] (Bond J).

[26] Constitution of Queensland Act 2001 (Qld) s 58.

[27] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, [98]-[99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1; Higgins v Comans (2005) 153 A Crim R 565, [5] (McPherson JA) [2005] QCA 234; Palmer v Magistrates Court of Queensland (2020) 3 QR 546, [42]; [2020] QCA 47.

[28] Harrison v President of the Industrial Court of Queensland [2016] QCA 153, [7]-[8] (Jackson J, McMurdo P and Morrison JA agreeing).

[29] Thiess Pty Ltd v President of the Industrial Court of Queensland [2011] 2 Qd R 387, [51]-[57] (Applegarth J); [2011] QSC 294; Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, [9] (McMurdo P); [2011] QCA 022; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67, [7] (Applegarth J); Harvey v Commissioner of State Revenue [2014] QSC 183, [104]-[108] (Jackson J); Stuart v Queensland Building and Construction Commission [2018] 1 Qd R 399, [28] (Sofronoff P, Morrison JA and Applegarth J agreeing); [2017] QCA 115.

[30]  (2010) 239 CLR 531; [2010] HCA 1.

[31]  Ibid [55], [98]-[100].

[32]  Ibid [98]-[100].

[33]  Ibid [56].

[34]  Ibid [71].

[35]  (1995) 184 CLR 163; 176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.

[36] Kirk, [67].

[37] Craig, 175.

[38]  Ibid 176.

[39] Kirk, [67]-[68], citing Craig, 179-180.

[40] Kirk, 573-574 [71]-[73].

[41]  Ibid [80].

[42] Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255, [37] (Keane JA, Fraser JA and White J agreeing); [2009] QCA 120.

[43] Sankey v Whitlam (1978) 142 CLR 1, 20-22 (Gibbs ACJ); [1978] HCA 43; Anderson v A-G (NSW) (1987) 10 NSWLR 198, 200 (Kirby P), 205, 213 (McHugh JA); Nichols v State of Queensland [1983] 1 Qd R 580, 589 (Andrews SPJ), citing Sankey v Whitlam; R v Chardon [2016] 1 Qd R 148, [2] (McMurdo P); [2016] QCA 50.

[44]  (1978) 142 CLR 1, 20; [1978] HCA 43.

[45]  Ibid 23.

[46]  Ibid 25-26.

[47] Nerang Subdivision Pty Ltd v Hutson, [39] (Bond J).

[48]  As I have concluded, that is the case in respect of orders 1(c) and 1(d), but not orders 1(a) or 1(b).

[49]  Respondent’s Written Submissions, 5 [18].

[50] Criminal Code s 668B(3).

[51]  Ibid s 668B(4).

[52]  (1972) 127 CLR 421, 435-436; [1972] HCA 61.

[53]  [2001] Qd R 610; [2000] QCA 511.

[54]  Ibid [24].

[55]  [2002] 1 Qd R 662; [2001] QCA 318.

[56]  Ibid [32].

[57]  Ibid [33]-[35].

[58]  [1998] 2 Qd R 579; [1997] QCA 434.

[59]  Ibid 584.

[60]  [2010] QCA 162, [18] (White JA, McMurdo P and Fraser JA agreeing).

[61]  [2013] 1 Qd R 587; [2012] QCA 310, [14] (Holmes JA, Philippides and Douglas JJ agreeing).

[62]  Section 592A came into operation on 1 July 1997.

[63] Long, [38]-[39].

[64]  (1994) 74 A Crim R 405, 411-412; [1994] QCA 266.

[65] Long, [44].

[66]  Ibid [53], citing Yates v Wilson (1989) 168 CLR 338, 339; [1989] HCA 68, cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 339; [1990] HCA 43.

[67]  [2017] 1 Qd R 148; [2016] QCA 50.

[68]  Ibid [9].

[69]  Ibid [16]. It was this last observation that no doubt led to the Applicant joining his Honour Judge Farr as a party to this proceeding.

[70]  Ibid [21].

[71]  Ibid [22].

[72]  Ibid [26]-[27].

[73]  (1994) 120 ALR 193, 195; [1994] HCA 11.

[74]  (1991) 173 CLR 28, 32; [1991] HCA 16.

[75] Chardon, [2], citing Sankey v Whitlam and Anderson v A-G (NSW) for the latter proposition.

[76]  Ibid [6].

[77]  Ibid [5].

[78]  As per the version of the legislation current at the relevant time of the 2016 examinations.

[79] R v Hutson [2021] QDCPR 78, [56]-[58], [66]-[67], [72], [76], [85].

[80]  The Respondent does not maintain that position in this proceeding.

[81]  Ibid [76]-[77].

[82] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26 (‘Leon Fink’).

[83] Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325, [101]; [2018] HCA 53; X7 v Australian Crime Commission (2013) 248 CLR 92, [71];[86]-[87]; [2013] HCA 29.

[84] Thiess v Collector of Customs (2014) 250 CLR 664 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ); [2014] HCA 12.

[85]  Ibid, quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gaegler JJ); [2012] HCA 55; R v A2 (2019) 269 CLR 507, [32] (Kiefel CJ and Keane J); [2019] HCA 35; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41.

[86] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue, [47].

[87]  Ibid.

[88] R v A2, [33].

[89] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, [39].

[90] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [78] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

[91] R v A2, [33].

[92] Project Blue Sky Inc v Australian Broadcasting Authority, [69].

[93]  Ibid [70].

[94]  Ibid [71].

[95] Acts Interpretation Act 1901 (Cth) s 15AA(1) (‘Acts Interpretation Act’); R v A2, [37].

[96]  Section 5(1) defines ‘ASIC’ to mean the Australian Securities and Investments Commission.

[97] Bazzo v Kirman [2020] WASCA 43, [29].

[98]  Affidavit of Erin Lewis, affirmed 13 July 2022, Exhibits ‘EML-17’, ‘EML-18’ and ‘EML-19’.

[99]  The ‘present’ version of the ASIC Act herein refers to the Act in force as at the time of the 2016 Examinations and contained in Compilation No. 58.

[100]  Adapted from the convenient brief summary of pt 3 provided by Newnes J in Smolarek v Roper [2009] (2009) 233 FLR 241, [52]; WASCA 124.

[101] Smith v The Queen (2007) 35 WAR 201, [57] (Buss JA), [184] (Miller JA); [2007] WASCA 163; R v OC (2015) 90 NSWLR 134, [110] (Bathurst CJ, RA Hulme and Bellew JJ agreeing); [2015] NSWCCA 212.

[102] Smith v The Queen, [58]-[61]; [70]-[71].

[103] R v OC, [106], [119]-[120] (Bathurst C J, RA Hulme and Bellew JJ agreeing).

[104] Acts Interpretation Act, s 13(2)(d). Pursuant to s 5A of the ASIC Act, the Acts Interpretation Act as in force on 1 November 2000 applies to the ASIC Act.

[105]  Although the construction exercise must also have regard to s 49(1)(b), for present purposes I will focus upon s 49(1)(a) as that is the relevant source of information in this case.

[106]  This is consistent with the approach to the interpretation of s 50 in Somerville v Australia Securities Commission (1995) 60 FCR 319, 324-325 (Lockhart J), approved in Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93, 117-118 (Beaumont, Drummond and Sundberg JJ).

[107]  ‘ASIC delegate’ is defined in s 5(1).

[108] ASIC Act, s 102(6). See also Acts Interpretation Act, s 34AB(1)(c).

[109]  The effect of s 34A of the Acts Interpretation Act was considered and explained in Northern Land Council v Quall (2020) 271 CLR 394, [70], [72] (Kiefel CJ, Gageler and Keane JJ); [2020] HCA 33.

[110] R v OC, [105] (Bathurst CJ, RA Hulme and Bellew JJ agreeing).

[111]  Affidavit of Erin Lewis, affirmed 13 July 2022, Exhibit ‘EML-15’.

[112]  Ibid [30]-[31], Exhibit ‘EML-16’.

[113] ASIC Act, s 63(3).

[114]  Explanatory Memorandum, Australian Securities Commission Bill 1988 (Cth), 62 [148].

[115]  Ibid 62 [149]-[150].

[116]  Amendments and New Clauses to be Moved on the Government’s Behalf, Australian Securities Commission Bill 1988 (Cth), 1.

[117]  Supplementary Explanatory Memorandum, Australia Securities Commission Bill 1988 (Cth), 5 [10]-[13]. 

[118]  Commonwealth, Parliamentary Debates, House of Representatives, 28 September 1998, 1033 (Lionel Bowen, Attorney-General).

[119]  Pursuant to amendments brought about by the Financial Sector Reform (Amendments and Transitional Provisions) Act 1998 (Cth), the Australian Securities Commission (‘ASC’) had earlier changed its name to ‘ASIC’.

[120] Tabcorp Holdings Limited v Victoria (2016) 328 ALR 375, [68] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 4.

[121] North Australian Aboriginal Justice Agency Ltd & v Northern Territory of Australia (2016) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ); [2015] HCA 41.

[122] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [19]-[21] (Gleeson CJ), [118] (McHugh J); [2004] HCA 40; X7 v Australian Crime Commission, [86]-[87] (Hayne and Bell JJ).

[123]  Ibid [24] (French CJ and Crennan J), [119], [125], [142] (Hayne and Bell JJ), [157]-[158] (Kiefel J).

[124] Lee v New South Wales Crime Commission (2013) 251 CLR 196, [313]-[314] (Gageler and Keane JJ); [2013] HCA 39, citing Australian Securities & Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321, [43] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); [2000] HCA 7; Kassam v Hazzard (2021) 106 NSWLR 520, [85] (Bell P, Meagher and Leeming JJA agreeing); [2021] NSWCA 299.

[125] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia, 356.

[126] Leon Fink, [11]-[14].

[127]  Ibid [15].

[128] Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, [15] (Brennan J); [1993] HCA 74.

[129] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, [59] (Gummow and Hayne JJ); [2006] HCA 50.

[130] Leon Fink; Dainford Ltd v Smith (1985) 155 CLR 342; [1985] HCA 23; Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd R 278; Kassam v Hazzard.

[131] Little River Goldfields NL v Moulds (1991) 32 FCR 456, 462-463 (Davis J).

[132]  Affidavit of Patrick Quinn, sworn 14 December 2021, [28]-[29], Exhibit ‘PMQ-23’.

[133]  Ibid [13], Exhibit ‘PMQ-9’.

[134]  Ibid [14], Exhibit ‘PMQ-10’.

[135]  Ibid [14], Exhibit ‘PMQ-10’.

[136]  Committal Hearing, T6-3:45 – T6-4:15.

[137]  It is to be noted that, at that time, the full email from 31 March 2016 written by Mr Caridi had not been disclosed.

[138]  Committal Hearing, T7-5:6 – T7-6:23.

[139]  Ibid T7-24:12 – T7-25-3, 23-36.

[140]  Ibid T6-72:31 – T6-74:15.

[141]  Ibid T7-26:29-36.

[142]  Ibid T7-27:45 – T7-28:15.

[143]  Ibid T7-58:31-41.

[144]  Ibid T7-57:32 – T7-58:15.

[145]  Ibid T7-58:43 – T7-59:16.

[146]  Ibid T7-60:27 – T7-61:7.

[147]  Ibid T7-62:1-11

[148]  Ibid T7-62:46 – T7-63:11, 26-31.

[149]  Ibid T7-63:26 – T7:63:31

[150] Sankey v Whitlam, 26.

[151]  (2008) 236 CLR 120, [23] (Gummow, Kirby, Heydon, Crennan and Kiefel JJ); [2008] HCA 43.

[152] Sibelco Australia Ltd v Magistrate Graham Lee [2014] QCA 113, 4 (Fraser JA, Gotterson JA and Atkinson J agreeing).

[153]  Affidavit of Erin Lewis, affirmed 13 July 2022, [8].

[154]  Ibid [11]-[15].

[155]  Ibid [10].

[156]  cf. Affidavit of Patrick Quinn, sworn 15 June 2022, [6]-[11].

[157]  cf. Anderson v A-G (NSW), 204 (Samuels JA).

[158] Palmer v Magistrates Court of Queensland, [12] (Fraser JA, Morrison JA and Boddice J agreeing), quoting Fruginet v Victoria (1997) 96 A Crim R 189, 195 (Kirby J); [1997] HCA 44.

Close

Editorial Notes

  • Published Case Name:

    Hutson v Australian Securities and Investments Commission & Anor

  • Shortened Case Name:

    Hutson v Australian Securities and Investments Commission & Anor

  • MNC:

    [2022] QSC 243

  • Court:

    QSC

  • Judge(s):

    Crowley J

  • Date:

    11 Nov 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Accident Compensation Commission v Odco Pty Ltd [1990] HCA 43
1 citation
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Cite 1 - [1990] HCA 43
Ainsworth & Anor v Criminal Justice Commission [1992] HCA 10
2 citations
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Cite 1 - [1992] HCA 10
Cite 2 - [1992] HCA 10
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
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Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
1 citation
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Cite 1 - [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
1 citation
Jump To
Cite 1 - (2009) 239 CLR 27
Anderson & Ors v Attorney General for NSW & Ors (1987) 10 NSW LR 198
2 citations
Jump To
Cite 1 - (1987) 10 NSW LR 198
Cite 2 - (1987) 10 NSW LR 198
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
2 citations
Jump To
Cite 1 - (1932) 47 CLR 1
Cite 2 - (1932) 47 CLR 1
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9
2 citations
Jump To
Cite 1 - [1932] HCA 9
Cite 2 - [1932] HCA 9
ASC v Deloitte Touche Tohmatsu (1996) 70 FCR 93
1 citation
Jump To
Cite 1 - (1996) 70 FCR 93
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
1 citation
Jump To
Cite 1 - (1990) 170 CLR 321
Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321
1 citation
Jump To
Cite 1 - (2000) 199 CLR 321
Beljajev v Director of Public Prosecutions (1991) 173 CLR 28
1 citation
Jump To
Cite 1 - (1991) 173 CLR 28
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67
1 citation
Jump To
Cite 1 - [2013] QSC 67
Cameron v Hogan (1934) 51 CLR 358
1 citation
Jump To
Cite 1 - (1934) 51 CLR 358
Cameron v Hogan [1934] HCA 24
1 citation
Jump To
Cite 1 - [1934] HCA 24
Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 7
1 citation
Jump To
Cite 1 - [2000] HCA 7
Craig v South Australia (1995) 184 CLR 163
2 citations
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Cite 1 - (1995) 184 CLR 163
Cite 2 - (1995) 184 CLR 163
Craig v The State of South Australia [1995] HCA 58
2 citations
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Cite 1 - [1995] HCA 58
Cite 2 - [1995] HCA 58
Dainford Ltd v Smith (1985) 155 CLR 342
1 citation
Jump To
Cite 1 - (1985) 155 CLR 342
Dainford Ltd v Smith [1985] HCA 23
1 citation
Jump To
Cite 1 - [1985] HCA 23
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309
1 citation
Jump To
Cite 1 - (2004) 221 CLR 309
Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40
1 citation
Jump To
Cite 1 - [2004] HCA 40
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
1 citation
Jump To
Cite 1 - (1993) 178 CLR 477
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74
1 citation
Jump To
Cite 1 - [1993] HCA 74
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
1 citation
Jump To
Cite 1 - [2012] HCA 55
Forster v Jododex Aust. Pty. Ltd [1972] HCA 61
3 citations
Jump To
Cite 1 - [1972] HCA 61
Cite 2 - [1972] HCA 61
Cite 3 - [1972] HCA 61
Forster v Jododex Australia Pty Ltd & Anor (1972) 127 CLR 421
3 citations
Jump To
Cite 1 - (1972) 127 CLR 421
Cite 2 - (1972) 127 CLR 421
Cite 3 - (1972) 127 CLR 421
Frugtniet v Victoria (1997) 96 A Crim R 189
1 citation
Jump To
Cite 1 - (1997) 96 A Crim R 189
Frugtniet v Victoria [1997] HCA 44
1 citation
Jump To
Cite 1 - [1997] HCA 44
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43
2 citations
Jump To
Cite 1 - [2008] HCA 43
Cite 2 - [2008] HCA 43
Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120
2 citations
Jump To
Cite 1 - (2008) 236 CLR 120
Cite 2 - (2008) 236 CLR 120
Harrison v President of the Industrial Court of Queensland [2016] QCA 153
1 citation
Jump To
Cite 1 - [2016] QCA 153
Harvey v Commissioner of State Revenue [2014] QSC 183
1 citation
Jump To
Cite 1 - [2014] QSC 183
Heery v Criminal Justice Commission[2001] 2 Qd R 610; [2000] QCA 511
2 citations
Jump To
Cite 1 - [2000] QCA 511
Cite 2 - [2000] QCA 511
Higgins v Comans [2005] QCA 234
1 citation
Jump To
Cite 1 - [2005] QCA 234
Higgins v Comans (2005) 153 A Crim R 565
1 citation
Jump To
Cite 1 - (2005) 153 A Crim R 565
Hutson v Australian Securities and Investments Commission [2022] QSC 68
2 citations
Jump To
Cite 1 - [2022] QSC 68
Cite 2 - [2022] QSC 68
Kassam v Hazzard [2021] NSWCA 299
1 citation
Jump To
Cite 1 - [2021] NSWCA 299
Kassam v Hazzard (2021) 106 NSWLR 520
1 citation
Jump To
Cite 1 - (2021) 106 NSWLR 520
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
3 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Cite 3 - (2010) 239 CLR 531
Kirk v Industrial Relations Commission of NSW (2010) HCA 1
3 citations
Jump To
Cite 1 - (2010) HCA 1
Cite 2 - (2010) HCA 1
Cite 3 - (2010) HCA 1
Lee v New South Wales Crime Commission [2013] HCA 39
1 citation
Jump To
Cite 1 - [2013] HCA 39
Lee v New South Wales Crime Commission (2013) 251 CLR 196
1 citation
Jump To
Cite 1 - (2013) 251 CLR 196
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
2 citations
Jump To
Cite 1 - (1979) 141 CLR 672
Cite 2 - (1979) 141 CLR 672
Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26
2 citations
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Cite 1 - [1979] HCA 26
Cite 2 - [1979] HCA 26
Mekpine Pty Ltd v Moreton Bay Regional Council[2016] 1 Qd R 148; [2014] QCA 317
1 citation
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Cite 1 - [2016] 1 Qd R 148
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
1 citation
Jump To
Cite 1 - (2006) 228 CLR 566
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) [2006] HCA 50
1 citation
Jump To
Cite 1 - [2006] HCA 50
Nagle v Feilden [1966] 2 QB 633
1 citation
Jump To
Cite 1 - [1966] 2 QB 633
Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225
1 citation
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Cite 1 - [2020] QSC 225
Nichols v State of Queensland [1983] 1 Qd R 580
1 citation
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Cite 1 - [1983] 1 Qd R 580
North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41
1 citation
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Cite 1 - [2015] HCA 41
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd[2012] 1 Qd R 525; [2011] QCA 22
2 citations
Jump To
Cite 1 - [2011] QCA 22
Cite 2 - [2012] 1 Qd R 525
Palmer v Magistrates Court(2020) 3 QR 546; [2020] QCA 47
2 citations
Jump To
Cite 1 - [2020] QCA 47
Cite 2 - (2020) 3 QR 546
Parker v The President of the Industrial Court of Queensland[2010] 1 Qd R 255; [2009] QCA 120
4 citations
Jump To
Cite 1 - [2009] QCA 120
Cite 2 - [2009] QCA 120
Cite 3 - [2010] 1 Qd R 255
Cite 4 - [2010] 1 Qd R 255
Price v JF Thomson (Qld) Pty Ltd [1990] 1 Qd R 278
1 citation
Jump To
Cite 1 - [1990] 1 Qd R 278
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
1 citation
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Cite 1 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355
R v A2 [2019] HCA 35
1 citation
Jump To
Cite 1 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
1 citation
Jump To
Cite 1 - (2019) 269 CLR 507
R v Chardon[2017] 1 Qd R 148; [2016] QCA 50
5 citations
Jump To
Cite 1 - [2016] QCA 50
Cite 2 - [2016] QCA 50
Cite 3 - [2016] QCA 50
Cite 4 - [2017] 1 Qd R 148
Cite 5 - [2017] 1 Qd R 148
R v Farr (1994) 74 A Crim R 405
2 citations
Jump To
Cite 1 - (1994) 74 A Crim R 405
Cite 2 - (1994) 74 A Crim R 405
R v Hutson [2021] QDCPR 78
4 citations
Jump To
Cite 1 - [2021] QDCPR 78
Cite 2 - [2021] QDCPR 78
Cite 3 - [2021] QDCPR 78
Cite 4 - [2021] QDCPR 78
R v Long (No 1)[2002] 1 Qd R 662; [2001] QCA 318
4 citations
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Cite 1 - [2001] QCA 318
Cite 2 - [2001] QCA 318
Cite 3 - [2002] 1 Qd R 662
Cite 4 - [2002] 1 Qd R 662
R v OC (2015) 90 NSWLR 134
1 citation
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Cite 1 - (2015) 90 NSWLR 134
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
1 citation
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Cite 1 - (1970) 123 CLR 361
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8
1 citation
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Cite 1 - [1970] HCA 8
R v Verrall[2013] 1 Qd R 587; [2012] QCA 310
4 citations
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Cite 1 - [2012] QCA 310
Cite 2 - [2012] QCA 310
Cite 3 - [2013] 1 Qd R 587
Cite 4 - [2013] 1 Qd R 587
R v Woodman [2010] QCA 162
2 citations
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Cite 1 - [2010] QCA 162
Cite 2 - [2010] QCA 162
Re Rozenes; Ex parte Burd [1994] HCA 11
1 citation
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Cite 1 - [1994] HCA 11
Rozenes, Re; Ex parte Burd (1994) 120 ALR 193
1 citation
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Cite 1 - (1994) 120 ALR 193
Sankey v Whitlam [1978] HCA 43
3 citations
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Cite 1 - [1978] HCA 43
Cite 2 - [1978] HCA 43
Cite 3 - [1978] HCA 43
Sankey v Whitlam (1978) 142 C.L.R. 1
3 citations
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Cite 1 - (1978) 142 C.L.R. 1
Cite 2 - (1978) 142 C.L.R. 1
Cite 3 - (1978) 142 C.L.R. 1
Sibelco Australia Ltd v Lee [2014] QCA 113
1 citation
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Cite 1 - [2014] QCA 113
Smolarek v Roper (2009) 233 FLR 241
1 citation
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Cite 1 - (2009) 233 FLR 241
Somerville v ASC (1995) 60 FCR 319
1 citation
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Cite 1 - (1995) 60 FCR 319
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
2 citations
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Cite 1 - [2018] HCA 53
Cite 2 - [2018] HCA 53
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325
1 citation
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Stuart v Queensland Building and Construction Commission[2018] 1 Qd R 399; [2017] QCA 115
2 citations
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Cite 1 - [2017] QCA 115
Cite 2 - [2018] 1 Qd R 399
Tabcorp Holdings Limited v Victoria [2016] HCA 4
1 citation
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Cite 1 - [2016] HCA 4
Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375
1 citation
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Cite 1 - (2016) 328 ALR 375
The Queen v Farr [1994] QCA 266
2 citations
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Cite 1 - [1994] QCA 266
Cite 2 - [1994] QCA 266
The Queen v Lowrie[1998] 2 Qd R 579; [1997] QCA 434
5 citations
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Cite 1 - [1997] QCA 434
Cite 2 - [1997] QCA 434
Cite 3 - [1998] 2 Qd R 579
Cite 4 - [1998] 2 Qd R 579
Cite 5 - [1998] 2 Qd R 579
Thiess Pty Ltd v President of the Industrial Court of Queensland[2012] 2 Qd R 387; [2011] QSC 294
1 citation
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Cite 1 - [2011] QSC 294
Thiess Pty Ltd v President of the Industrial Court of Queensland [2011] 2 Qd R 387
1 citation
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Thiess v Collector of Customs (2014) 250 CLR 664
1 citation
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Cite 1 - (2014) 250 CLR 664
Thiess v Collector of Customs & Ors [2014] HCA 12
1 citation
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Cite 1 - [2014] HCA 12
Warramunda Village Inc v Pryde [2001] FCA 61
1 citation
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Cite 1 - [2001] FCA 61
Warramunda Village Inc v Pryde (Warramunda No 1) (2001) 105 FCR 437
1 citation
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Cite 1 - (2001) 105 FCR 437
X7 v Australian Crime Commission [2013] HCA 29
2 citations
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Cite 1 - [2013] HCA 29
Cite 2 - [2013] HCA 29
X7 v Australian Crime Commission (2013) 248 CLR 92
2 citations
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Cite 1 - (2013) 248 CLR 92
Cite 2 - (2013) 248 CLR 92
Yates v Wilson (1989) 168 CLR 338
1 citation
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Cite 1 - (1989) 168 CLR 338
Yates v Wilson [1989] HCA 68
1 citation
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Cite 1 - [1989] HCA 68

Cases Citing

Case NameFull CitationFrequency
Hutson v Australian Securities and Investments Commission(2023) 17 QR 21; [2023] QCA 1674 citations
R v Hutson (Ruling No 8) [2025] QDCPR 82 citations
1

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