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Hutson v ASIC[2022] QSC 68

SUPREME COURT OF QUEENSLAND

CITATION:

Hutson v ASIC [2022] QSC 68

PARTIES:

JENNIFER JOAN HUTSON

(applicant)

v

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

(respondent)

FILE NO/S:

BS 14915 of 2021

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2022; Further written submissions received 14 April 2022

JUDGE:

Kelly J

ORDER:

The application filed by ASIC on 9 February 2022 be dismissed

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – OTHER CASES AND MATTERS – where ASIC gave notice requiring the applicant’s appearance for examination under s 19 of the ASIC Act 2001 (Cth) – where Ms Hutson was charged by ASIC on two indictments presented before the District Court with various offences relating to the affairs of a company to which the examination related and the answers given in the examination – where Ms Hutson applied for a stay of the District Court proceedings under s 590AA of the Criminal Code (Qld) on the basis that the examinations had been conducted unlawfully – where the question of whether the examinations were conducted unlawfully involved the construction of the ASIC Act 2001 (Cth) – where the learned primary judge found that the examinations had been conducted lawfully and dismissed the stay application – where Ms Hutson requested the Crown apply under s 688A(1) of the Criminal Code (Qld) to refer the construction of the ASIC Act 2001 (Cth) to the Court of Appeal – where the Crown refused – where Ms Hutson applied to the Supreme Court for declarations that the examinations were unlawful, the primary judge erred in concluding the examinations were lawful, the ASIC Act 2001 (Cth) has a particular construction, and the primary judge erred in reaching an alternative construction – where ASIC applied to summarily dismiss the Supreme Court application as an abuse of process – whether the Supreme Court application is an abuse of process – whether the Supreme Court application should be summarily dismissed.

ASIC Act 2001 (Cth), s 19, s 49, s 64(1)(b),

Corporations Act 2001 (Cth), s 184, s 408C(1)(a), s 1309(1)(ii)

Civil Proceedings Act 2011 (Qld), s 10.

Criminal Code (Qld), s 140, s 590AA(2)(a), s 668A(1)

Uniform Civil Procedure Rules 1999 (Qld), r 16(e), r 16(g), r 16(i), r 658

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

Custodial Ltd v Greig [2005] 2 Qd R 115, cited

Cain v Glass (No 2) (1985) 3 NSWLR 230, cited

Dey v Victorian Railways Commissioners (1948) 78 CLR 62, cited

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, cited

Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, cited

Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R 649, cited

Palmer v Magistrates Court of Queensland (2020) 3 QR 546, cited

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, cited

R v Chardon [2017] 1 Qd R 148, considered

R v Long (No 1) [2002] 1 Qd R 662, considered

R v O'Halloran (2000) 159 FLR 260, cited

Sankey v Whitlam (1978) 142 CLR 1, considered

Spencer v Commonwealth (2010) 241 CLR 118, cited

State Bank of New South Wales Ltd v Stenhouse (1997) Aust Torts Reports 81-423, considered

COUNSEL:

M Brady QC with S Marsh, for the applicant

M Hodge QC with S Webster, for the respondent

SOLICITORS:

Australian Government Solicitor for the applicant

Gilshenan and Luton for the respondent

Introduction

  1. [1]
    Ms Jennifer Hutson (“Ms Hutson”) is charged on two indictments presented in January 2021 to the District Court at Brisbane. On 23 July 2021, she filed in the District Court an application pursuant to s 590AA(2)(a) of the Criminal Code (Qld) (“the Code”) seeking a direction or ruling that the criminal proceedings on the first and second indictments be permanently stayed (“the Stay Application”). On 27 September 2021, the Stay Application was heard before his Honour Judge Farr SC. On 16 November 2021, the learned judge made an order dismissing the application and his Honour delivered written reasons (“the District Court Reasons”).
  2. [2]
    On 14 December 2021, Ms Hutson filed an originating application in this Court seeking declaratory relief in relation to certain questions which were considered and answered as part of the District Court Reasons (“the Supreme Court Proceedings”). On 9 February 2022, ASIC filed the present application (“the Dismissal Application”), which is an application made in the Supreme Court Proceedings, seeking their summary dismissal on the ground that they constitute an abuse of process.
  3. [3]
    The power to summarily stay or dismiss proceedings as an abuse of process, whether based in the inherent jurisdiction or under the UCPR, is only to be exercised in clear and appropriate cases.[1] The power must always be exercised with caution.[2] For the reasons which follow, I do not consider that ASIC discharged its heavy burden of establishing that the Supreme Court Proceedings should be summarily dismissed as an abuse of process.

A criminal proceeding in the District Court

  1. [4]
    The first indictment presented to the District Court charges Ms Hutson with the following offences:
    1. (a)
      two counts of dishonest use of position with the intention of gaining an advantage contrary to s 184(2) of the Corporations Act (2001) (“the Corporations Act”);
    2. (b)
      one count of failing to exercise powers or discharge duties for a proper purpose contrary to s 184(1) of the Corporations Act;
    3. (c)
      one count of fraud as a director to the value of $30,000 or more contrary to s 408C(1)(a) of the Code;
    4. (d)
      nine counts of giving false or misleading information to an operator of a financial market contrary to s 1309(1) of the Corporations Act; and
    5. (e)
      one count of attempting to pervert justice contrary to s 140 of the Code.
  2. [5]
    The counts on the first indictment arise out of circumstances involving a takeover bid by G8 Ltd (“G8”) for Affinity Education Group Ltd (“Affinity”). Ms Hutson was a director and chairperson of G8. These counts essentially involve allegations that Ms Hutson relevantly:
    1. (a)
      used her position as a Director of G8 for an improper purpose by facilitating a purchase of shares in Affinity using G8 funds;
    2. (b)
      used G8 funds to purchase shares in an unrelated company;
    3. (c)
      authorised transfers of money in an attempt to conceal the purchases she had facilitated;
    4. (d)
      gave false market information in relation to G8’s interest in Affinity; and
    5. (e)
      created false documents in an attempt to conceal from ASIC that G8 funds had been used to purchase shares in Affinity.
  3. [6]
    The second indictment charges Ms Hutson with fifteen counts of giving false or misleading information in the course of an examination contrary to s 64(1)(b) of the Australian Securities and Investments Act 2001 (Cth) (“the ASIC Act”). These counts involve allegations that Ms Hutson gave false or misleading information when being examined by ASIC on 25 May 2016 and 22 June 2016 pursuant to s 19 of the ASIC Act.
  4. [7]
    The Stay Application was made pursuant to s 590AA(2)(a) of the Code which materially provides:

590AA Pre-trial directions and rulings

  1. (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.
  2. (2)
    Without limiting subsection(1) a direction or ruling may be given in relation to—
  1. (a)
    the quashing or staying of the indictment; or

  1. (3)
    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.
  2. (4)
    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. [8]
    Section 668A(1) of the Code, which appears in Chapter 67 of the Code, is also relevant and provides:

A Crown Law Officer may refer to the Court for its consideration and opinion a point of law that has arisen in relation to a direction or ruling under section 590AA given by another court as to the conduct of a trial or pre-trial hearing.”

  1. [9]
    Section 668(1) of the Code defines “the Court” for the purpose of Chapter 67 to mean the Court of Appeal.
  2. [10]
    The Stay Application called into issue the proper construction of ss. 19 and 49 of the ASIC Act. Section 19 of the ASIC Act relevantly provides:

“19 Notice requiring appearance for examination

  1. (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 …
  2. (2)
    ASIC may, by written notice in the prescribed form given to the person, require the 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”
  1. [11]
    Section 49 of the ASIC Act relevantly provides:

ASIC may cause prosecution to be begun

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

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

  1. (c)
    may have committed an offence against the corporations legislation; and
  2. (d)
    oughtto be prosecuted for the offence.
  1. (2)
    ASICmay cause a prosecution of thepersonfor the offenceto bebegun and carried on.
  1. (3)
    If:
  1. (a)
    ASIC, on reasonable grounds, suspects or believes that  person can give information relevant to a prosecution for the offence; or
  2. (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.

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

  1. (4)
    Subsection (3) does not apply in relation to:
  1. (a)
    the person referred to in subsection (1); or
  2. (b)
    a person who is or has been that person's lawyer.”
  1. [12]
    On the Stay Application, Ms Hutson argued that ASIC had unlawfully compulsorily examined her on 25 May 2016 and 22 June 2016. She argued that the examinations were unlawful because, at the time of the exercise of the power, “as a result of an investigation”, “it appeared to ASIC that” she “may have committed an offence against the corporations legislation” and that she “ought be prosecuted for that offence”. In those circumstances, so it was argued, s 49(4) of the ASIC Act provided that the power of compulsory examination could not be exercised against Ms Hutson.
  2. [13]
    Ms Hutson’s counsel submitted that because the compulsory examinations were unlawful, “the process that was required by law to have governed [her] trial has been fundamentally and irreparably altered and that the only remedy is that the proceedings should be permanently stayed.”[3]  
  3. [14]
    The learned judge noted that there was no dispute between the parties that if s 49 of the ASIC Act applied at the time of the examinations, then Ms Hutson could not have been lawfully compulsorily examined pursuant to s 19 of the ASIC Act.[4] His Honour elsewhere noted that there could be no doubt that s 19 authorised a fundamental alteration to the accusatorial process, being a suspect’s right to silence[5] and that, in relation to ss 19 and 49, the Parliament had abrogated the accusatorial principle.[6]
  4. [15]
    His Honour identified the question for determination on the Stay Application as being “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 [Ms Hutson] may have committed an offence against the corporations legislation and ought to be prosecuted for the offence’”.[7] Ms Hutson contended that s 49(1) had application when it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence. His Honour considered that this contention overlooked the requirement that, for s 49(1) to apply, that position had to be reached “as a result of an investigation”.[8]  
  5. [16]
    The learned judge relevantly concluded:[9]

“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 is concluded, or has reached such a stage that the obvious conclusion is inevitable.”

  1. [17]
    The learned judge ultimately found by reference to the evidence that the investigation was, in fact, still continuing at the time of the May and June ASIC examinations.[10] His Honour found that the examinations had been conducted lawfully[11] and dismissed the Stay Application.

The Supreme Court Proceedings

  1. [18]
    By a letter dated 6 December 2021, Ms Hutson’s solicitors wrote to the Commonwealth DPP relevantly in the following terms:

“We refer to Judge Farr’s decision of 16 November 2021, in which his Honour refused Ms Hutson’s application for a permanent stay of proceedings… under section 590AA(2) of [the Code].

We are instructed to apply to the Supreme Court of Queensland for a declaration that Ms Hutson’s compulsory examinations under s 19 of [the ASIC Act] on 25 May 2016 and 22 June 2016 were unlawful.

Judge Farr concluded that the examinations were lawful. Specifically, his Honour concluded that the expression ‘as a result of an investigation’ in s 49(1) of the ASIC Act ‘connotes a viewpoint being reached at or near the end of an investigation’… and that, as a matter of fact, ‘the investigation was … still continuing at the time of the examinations’.

The lawfulness of Ms Hutson’s s 19 examinations is critical to the question of whether Ms Hutson can receive a fair trial. The existence of a valid s 19 examination is, moreover, an essential element of all charges on indictment 161 of 2021 and will be of broader relevance to the admissibility and exclusion of evidence on both indictments. Accordingly, if the issue is not resolved and the trial proceeds, there will, inevitably, be an appeal from any conviction under s 668E of the Code.

Chapter 67 of the Code does not confer on an accused a right of interlocutory appeal. However, the Supreme Court of Queensland possesses a broad, discretionary, power to grant declarations of right. Although declarations in criminal matters are exceptional, intermediate appellate courts, and the High Court, have recognised that in the case of very lengthy and expensive criminal trials it is ‘highly desirable to avoid the risk that [such a trial] might prove wholly abortive because it was conducted according to an erroneous view of the law’: Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 204; Sankey v Whitlam (1978) 142 CLR 1 at 21-24.

Unlike an accused, under s 668A(1) of the Code, a Crown Law Officer may refer to the Court of Appeal a point of law that has arisen in relation to a direction or ruling under s 590AA given by the District Court. We write to request that you consider referring the significant question of law that has arisen in these proceedings, namely:

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’?

It is preferable that the question be resolved in the Court of Appeal and by way of a reference under Chapter 67 of the Code. Nevertheless, should you determine not to refer the question we confirm our intention to apply to the Supreme Court for declaratory relief.

We would be grateful for your response by close of business Friday 10 December 2021.”

  1. [19]
    By a letter dated 8 December 2021, the Commonwealth DPP wrote to Ms Hutson’s solicitors in the following material terms:

“I refer to your letter of 6 December 2021 requesting that the Commonwealth Director of Public Prosecutions refer a point of law arising from his Honour Judge Farr SC’s ruling to the Court of Appeal pursuant to section 668A(1) of [the Code].

This office does not intend to make a reference.

Any proceedings commenced by your client seeking declaratory relief in the Supreme Court will be opposed.”

  1. [20]
    The Supreme Court Proceedings were then commenced by Ms Hutson against ASIC. The Commonwealth DPP was served with the Supreme Court Proceedings. Separately, Ms Hutson has since filed and served an application to join the District Court as a defendant to the Supreme Court Proceedings.
  2. [21]
    In the Supreme Court Proceedings, Ms Hutson seeks by way of final relief the following declarations, namely that:
    1. (a)
      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. (b)
      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. (c)
      [the learned judge] erred in concluding that the purported exercise of the power to compulsorily examine Ms Hutson was lawful; and
    4. (d)
      [the learned judge] 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”.
  3. [22]
    On 3 February 2022 there was a directions hearing in the Supreme Court Proceedings. On that occasion, directions were made providing for the hearing of the Dismissal Application.
  4. [23]
    Some preliminary observations can be made about the Dismissal Application.
  5. [24]
    First, the Dismissal Application seeks orders pursuant to rules 16(e), (a) and (i) and 658 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR) and, alternatively, in the inherent jurisdiction of this Court. Whilst the Dismissal Application adopted the language of “setting aside”, ASIC’s written submissions in support of the Dismissal Application sought orders setting aside or permanently staying the Supreme Court Proceedings.  The position which emerged from ASIC’s written and oral submissions was that, by the Dismissal Application, ASIC sought to summarily dismiss the Supreme Court Proceedings, either by orders setting aside or permanently staying those proceedings, on the basis that they were an abuse of process.
  6. [25]
    Secondly, the question raised by the Dismissal Application is not whether the declarations the subject of the Supreme Court Proceedings ought be granted but rather whether the Supreme Court Proceedings should be summarily dismissed on the ground that they constitute an abuse of process. At this point it is relevant to bear in mind the following observations of Dixon J in Dey v Victorian Railways Commissioners:[12]

“The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

In Burton v Shire of Bairnsdale,[13] O'Connor J said: ‘Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed’. Higgins J made some observations which may be applied to the present case. ‘It is my opinion’ he said ‘that the Full Court were led, by a very natural process I admit, to take a wrong attitude. They dealt with the matter as if they were deciding it on the merits whereas they had merely to decide whether there was anything in fact or in law that was fairly triable or arguable’. … ‘It cannot be doubted’, said Lord Herschel in Lawrance v Norreys[14] ‘that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases.’”

The parties’ contentions and arguments

  1. [26]
    Ms Hutson characterised the Supreme Court Proceedings as involving her invocation of the supervisory jurisdiction of this Court over criminal trials in the District Court. Her counsel submitted that this Court retained a general jurisdiction to make declarations concerning a right, duty or obligation in such criminal proceedings where there were exceptional or special circumstances. It was submitted that this Court’s jurisdiction extended to making declarations concerning such criminal proceedings where the legal validity of a step was in issue. Ms Hutson characterised the relief she sought in the Supreme Court Proceedings as declaratory relief concerning the legal validity of a compulsory examination of her which underpinned the second indictment.[15]
  2. [27]
    ASIC referred to the nature and extent of this Court’s supervisory jurisdiction in the particular circumstances of this case as involving a “complex issue”.[16] ASIC’s counsel candidly submitted that the issue of this Court’s jurisdiction was “not a straightforward issue that can really be determined in a summary way”.[17]  ASIC was content for this Court to decide the Dismissal Application “on the assumption (for the purposes of [the Dismissal Application] only) that the Supreme Court would have jurisdiction to grant relief in the manner contended for by Ms Hutson.”[18] In this vein, ASIC submitted that “for the purposes of [the Dismissal Application], ASIC does not contend that section 590AA of the Code removes the Supreme Court’s jurisdiction to grant declaratory relief in its so-called ‘supervisory jurisdiction’.”[19] There was another relevant concession made by ASIC, namely that, for the purposes of the Dismissal Application, ASIC accepted that Ms Hutson had an arguable case to make on her substantive legal point concerning the proper construction of the relevant provisions of the ASIC Act. Ms Hutson’s written submissions had described the point as being an important legal point in respect of which there was limited authority.[20] 
  3. [28]
    Against the background of those two concessions, ASIC identified two substantive grounds for its contention that the Supreme Court Proceedings involved an abuse of process.
  4. [29]
    The first ground was that the Supreme Court Proceedings were said to constitute “an impermissible collateral attack on the prosecutions which would result in disruption and fragmentation of the criminal proceedings”.[21]  This collateral attack on the criminal proceedings was argued to be “in breach of the statutory scheme”, [22] a reference I took as being to ss 590AA and 668A of the Code. ASIC ultimately submitted in respect of this ground that this Court could be satisfied that no exceptional or special circumstances were involved as could possibly warrant the making of a declaration. Secondly, the Supreme Court Proceedings were contended to involve a “subset of the very same issues as were dealt with in the [District Court Reasons]” and give rise to the prospective scandal of conflicting decisions.[23]
  5. [30]
    ASIC submitted that the two substantive grounds upon which it relied to contend for an abuse of process fell within well recognised categories of abuse of process. The first category of abuse was where the Court’s procedures were being invoked for an illegitimate purpose. It was submitted that the Supreme Court Proceedings represented an illegitimate attempt “to cloak an appeal as some sort of civil proceedings, in a way to interfere with the interlocutory process of [criminal proceedings].”[24] ASIC sought to characterise s 590AA of the Code as being “a significant statutory indication” that the Supreme Court Proceedings were vexatious.[25] Further, it was submitted that the Supreme Court Proceedings involved the use of the Court’s procedures in a way that would bring the administration of justice into disrepute. In this regard, it was submitted that Ms Hutson was seeking two decisions of different courts on precisely the same question which was said to involve the scandalous possibility of conflicting judgments.[26]
  6. [31]
    Ms Hutson’s counsel submitted to the effect that the Supreme Court proceedings were not vexatious as the supervisory jurisdiction existed and was being availed of for a proper purpose. It was submitted that, given the concessions that were made for the purposes of the Dismissal Application, ASIC’s complaints substantively went to matters of discretion, which fell to be exercised at the substantive hearing. Ms Hutson’s counsel submitted that the spectre of conflicting judgments did not operate in the circumstances of this case so as to make the Supreme Court Proceedings an abuse of process.   In terms of the prospective utility of the declaratory relief, Ms Hutson’s counsel submitted that the intention behind the declarations was that, if they were obtained, they would bind “everybody concerned with the inferior court criminal proceeding”.[27] It was submitted that the declarations might lead to the withdrawal of the second indictment, constitute a special reason for a grant of leave to re-open the interlocutory ruling and, alternatively, might be relevant to future rulings concerning admissibility of evidence.
  7. [32]
    At the end of the oral hearing, I made directions providing for further written submissions in relation to, amongst other matters, the issue of the Court’s supervisory jurisdiction. In its further written submissions, ASIC maintained its position that this Court was not being called upon to resolve the complex issue of jurisdiction for the purposes of the Dismissal Application. ASIC’s supplementary written submissions did not address the question of jurisdiction because, according to ASIC, that question was separate from any consideration of abuse of process as raised by the Dismissal Application.

Should the Supreme Court proceedings be summarily dismissed?

  1. [33]
    By applying for the summary dismissal of the Supreme Court Proceedings on the ground that they constitute an abuse of process, ASIC assumed a heavy burden. Indeed, as I have already noted, in Dey v Victorian Railways Commissioners,[28] Dixon J observed that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, it is not competent for the court to dismiss (a proceeding) as frivolous and vexatious and an abuse of process”.
  2. [34]
    As will be apparent, ASIC’s submissions in support of its application relied heavily on the terms of s 590AA of the Code. That section was said by ASIC to provide “a significant statutory indication that the Supreme Court Proceedings were vexatious”. ASIC went so far as to contend that the Supreme Court Proceedings were in breach of the statutory scheme evidenced by ss 590AA and 668A(1) of the Code. ASIC accepted that this Court was being invited to summarily decide whether s 590AA of the Code “facilitated or curtailed the supervisory jurisdiction [of this Court]”.[29] 
  3. [35]
    I have formed the view that there is a real question as to whether, if at all, ss 590AA  and 668A(1) of the Code curtail the supervisory jurisdiction of this Court to make declarations in respect of criminal proceedings in the District Court. Put another way, there is a real question as to whether the Supreme Court Proceedings involve a so called “breach of the statutory scheme”. It is inappropriate for me to embark upon, or attempt, an answer to this question on a summary application. The question is one which I consider is properly described as substantial and involves a consideration of the nature and extent of the Court’s supervisory jurisdiction over criminal trials in inferior courts and the proper construction of ss 590AA and 668A(1) of the Code. It is not a question which can be answered in the abstract, on the basis of an assumption or concession about jurisdiction from which ASIC reserved the right to later resile. The answer can only be properly and accurately answered by this Court having the benefit of full argument about the nature and extent of the Court’s supervisory jurisdiction and the proper construction of ss 590AA and 668A(1) of the Code.
  4. [36]
    A decision considering the operation of ss 590AA and 668A(1) of the Code and their implications, if any, for the supervisory jurisdiction of this Court, should be based upon an understanding of the nature and extent of the supervisory jurisdiction. ASIC has resisted providing submissions on this issue and submitted that the question of jurisdiction is separate from the question of an abuse of process on the grounds contended for by ASIC.[30] However, a difficulty with that suggested bright line demarcation is that one ground of abuse contended for by ASIC is that the proceedings in the supervisory jurisdiction are vexatious by reason of an application pursuant to s 590AA of the Code having been heard and determined in the District Court. The essential premise of that argument is that the supervisory jurisdiction is not meant to be available to Ms Hutson in the present circumstances. The validity of that premise must depend, at least in part, on a correct understanding of the true nature and extent of the supervisory jurisdiction. ASIC conceded that the question as to the nature and extent of the supervisory jurisdiction was a complex one which is not amenable to summary determination. That this concession was properly made is confirmed by a brief descent into the relevant authorities.
  5. [37]
    In R v Chardon,[31] McMurdo P made the following observations about the supervisory jurisdiction of the Court of Appeal:

“This Court has the power to make declarations in criminal proceedings, for example where the primary court has exceeded jurisdiction: … This Court also has a more general jurisdiction to make declarations concerning a right, duty or obligation in criminal proceedings where there are exceptional or special circumstances”

  1. [38]
    As to the existence of “a more general jurisdiction”, her Honour cited Anderson v Attorney-General (NSW)[32] and Sankey v Whitlam.[33]
  2. [39]
    In Sankey v Whitlam,[34] Gibbs ACJ had relevantly stated:

“It is well established that the power of the court to make a declaration, … is a very wide one … 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 … 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 … In Munnich v Godstone Rural District Council[35] it was held that the fact that the question of law which was in issue in that case had already arisen in criminal proceedings and had been decided adversely to the plaintiff was no bar to the making of the declaration which the plaintiff sought. …There is no reason in principle why a declaration should not be made that committal proceedings have being invalidly instituted or wrongly continued against the person seeking the declaration. … Bacon v Rose and Willesee v Willesee present little difficulty. In the former case it was claimed that the plaintiff was exposed to proceedings that had been wrongly brought, and in the latter, that the proceedings were being conducted in a manner contrary to that provided by statute. There was in these cases clear power to grant a declaration. In both cases the question involved was principally one of law and the decision of that question was determinative, in the first case, of whether the proceedings should continue and in the second case, of whether they should be conducted in public or in private. In these circumstances there were good reasons for exercising the discretionary power of the court by granting a declaration. Similar considerations apply to the cross-claim brought by Mr Whitlam for the declarations as to the Financial Agreement 1927. If the provisions of that Agreement are not a ‘law of the commonwealth’ within s 86(1)(c) of the Crimes Act, the charges against the defendants under that section cannot be sustained. In my opinion the court has power to declare that a charge brought against an accused person is one not known to the law, since the accused has a right not to be exposed to proceedings that have no legal substance. … 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. …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 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. [40]
    In Anderson v Attorney General (NSW),[36] the New South Wales Court of Appeal confirmed that that Court had a supervisory jurisdiction to make declarations concerning a right, duty or obligation in criminal proceedings. In that case, a criminal trial had commenced before a District Court judge. The claimants sought a declaration from the New South Wales Court of Appeal to the effect that the indictment was bad in law. The learned judge in that case had already considered the issue and delivered “a very thorough judgment”.[37] The learned judge had rejected the argument that the indictment was bad in law. The New South Wales Court of Appeal in those circumstances nevertheless was prepared to provide declaratory relief.
  2. [41]
    Section 590AA(2) of the Code was enacted in 1997. Whether and how the Court of Appeal’s supervisory jurisdiction can be reconciled with that section and Chapter 67 of the Code has been touched upon, but not resolved, by appellate authority.[38]
  3. [42]
    In R v Long (No 1),[39] Byrne J said:

“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’.

If a change of trial venue for this potentially lengthy, very expensive and, for many witnesses, inconvenient case probably would make the difference between a fair and an unfair trial, or if the case seemed doomed to be retried in Brisbane if the trial takes place in Bundaberg, there could well be cause to intervene by declaration, if this court may. But this case does not bear that complexion.”

  1. [43]
    R v Chardon[40] concerned a case where the applicant had unsuccessfully applied for two pre-trial directions under s 590AA(1) of the Code concerning the venue for trial and whether the trial might be before a judge sitting without a jury. The applicant appealed to the Court of Appeal. That appeal was dismissed because of the prohibition on such appeals contained in s 590AA of the Code. Once the appeal was dismissed, leave was sought on behalf of the applicant to file an application for a declaration from the Court of Appeal that the applicant should be tried in the District Court at Southport by a judge without a jury. Leave was granted to file the application and the application was dismissed. Gotterson JA relevantly reasoned as follows in relation to the separate issues of jurisdiction and discretion:

Jurisdiction

  1. [13]
    I preface my reasons with the observation that the application was filed upon the premise that this Court possesses a jurisdiction to make a declaration of the type sought.   The respondent did not concede jurisdiction but made submissions on the footing that such a jurisdiction existed.   Those submissions centred upon discretionary factors which would tell against the making of the declaration sought.
  2. [14]
    It need be said at once that this Court does not have original jurisdiction under s 590AA(1)  to  hear  and  determine  an  application  for  a  judge  only  trial.    The jurisdiction under that section to make pre-trial directions and rulings is conferred upon a judge of the court in which the indictment in question has been presented.  Here, that court is the District Court and not this Court.
  3. [15]
    During the hearing of the application, senior counsel for the applicant was asked to clarify the jurisdictional basis for the declaratory relief sought.     On several occasions, he said that it was in exercise of a supervisory jurisdiction over the District Court. In support of the existence of such a jurisdiction, he referred to the following observation of Byrne J, sitting as a member of this Court, in R v Long (No 1):

‘Perhaps despite ch.  67 of the Code, this Court, in an original jurisdiction, made by declaration effectively pronounce on the correctness of interlocutory orders in proceedings upon indictment.’ His Honour cited s 29(3) and the now-repealed s 68(2) of the Supreme Court of Queensland Act 1991.

  1. [16]
    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.
  2. [17]
    Next, the observation by his Honour does no more than canvass a possibility.   It is not an expression of opinion that such a jurisdiction does exist.   Further, s 29(3) to which his Honour referred, states that this Court may, in proceedings before it, exercise every jurisdiction or power of the Supreme Court wherever lawfully sourced.   The section itself is therefore not an additional source of jurisdiction not otherwise conferred on the Supreme Court.
  3. [18]
    It was alternatively submitted that this Court possesses an original jurisdiction to make the declaration sought.   In oral argument, the Court was taken to a number of instances where declarations had been made concerning criminal proceedings, including Bacon v Rose and Bourke v Hamilton.
  4. [19]
    The nature and extent of the jurisdiction to make declarations concerning criminal proceedings was considered by the High Court in Sankey v Whitlam. Speaking of the jurisdiction to make “declarations of right”, Gibbs ACJ observed that that expression is used in a sense that is ‘wide and loose’.   His Honour said that it ‘includes   what   might   more   precisely   be   described   as   privileges, powers   and immunities’.
  5. [20]
    This observation was subsequently regarded by the Court of Appeal of New South Wales in Anderson v Attorney-General for New South Wales, as a confirmation of jurisdiction on its part to declare that an indictment presented in the District Court was bad in law.  The existence of the jurisdiction was not disputed by the Attorney-General.  That proceeding necessarily required determination of the legal validity of the indictment that had been presented against the applicants for declaratory relief.
  6. [21]
    That, and the other instances of declarations into which the applicant referred here, were of proceedings in which the legal validity of a step or finding concerning the applicant for relief was in issue.   Those respective proceedings are significantly different from the present.    Here, the appellant has not asserted, and could not assert, an underlying right to a trial by a judge without a jury which the decision made on 19 March 2015 denied him.   Nor has he sought to impugn the decision to refuse such a trial as one that could not lawfully have been made by the pre-trial judge.
  7. [22]
    I have made these observations to illustrate that it is far from clear that this Court has jurisdiction to grant the declaratory relief sought.   Whether there is jurisdiction is problematic at the least, in my view.  On this occasion, the Court did not have the benefit of full argument on the issue. In these circumstances, I would refrain from making a determination of it.
  8. [23]
    I am, however, of the firm view that, if such a jurisdiction exists, discretionary considerations would weigh conclusively against the granting of the declaratory relief sought.

Discretionary considerations

  1. [24]
    In Long (No 1), Byrne J further observed that if a declaratory jurisdiction existed, it would not be exercised ‘in other than most exceptional circumstances.’   Similar observations had been made by Gibbs ACJ in Sankey and by Kirby P in Anderson. No circumstances of that order have been shown to exist here.
  2. [25]
    Other considerations against the making of the declaration sought are as follows.  First, as I have noted, the declaration does not seek to have vindicated any legal right, privilege or immunity that the applicant claims to enjoy.    Nor has the applicant attempted to establish, much less established, that the only way that the discretion here can be lawfully exercised is by directing that he be tried by a judge only.
  3. [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’.
  4. [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, 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, “The  jurisdiction  of  this  Court  is  not  fitted  to  the  supervision  of interlocutory processes of a criminal trial”.’

  1. [28]
    Whilst the trial has not begun in the applicant’s case, the observations of Brennan J make it clear that this policy is not confined to the circumstance where the trial is actually underway.”
  1. [44]
    The cases I have referred to were all concerned with the supervisory jurisdiction of appellate courts. Ms Hutson has referred to s 10(1) of the Civil Proceedings Act 2011 (Qld) as a relevant source of this Court’s power to hear an application for a declaratory order. The jurisdiction to make a declaration is a very wide one.[41]  In my consideration, whether this Court in its original jurisdiction may, despite s 590AA and 668A(1) of the Code, effectively pronounce on the correctness of interlocutory decisions in proceedings upon indictment in the District Court remains an open and reasonably arguable question. 
  2. [45]
    Even if jurisdiction is to be presently assumed in accordance with ASIC’s qualified concession, then the first ground of alleged abuse was concerned with the fragmentation of the criminal proceedings. The mere fragmentation of, or interference with criminal proceedings, does not of itself establish that a proceeding in this Court is an abuse of process.[42] There is a traditional restraint against any fragmentation of or disruption of criminal proceedings. This restraint is reflected in the observation of Gibbs ACJ in Sankey to the effect that “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.[43]
  3. [46]
    It is significant in my view that the declarations sought by Ms Hutson involve a contention on her part that she has been unlawfully examined by ASIC and that the unlawful process has been relied upon to form the counts the subject of the second indictment. The declarations which are sought are concerned with the legal validity of steps taken in or leading to the criminal prosecution. Ms Hutson is effectively contending that the proceedings the subject of the second indictment have been wrongly brought or are being conducted in a manner that is contrary to law. In my view, her claims for declaratory relief are concerned to protect her rights in the sense of her privileges or immunities. The collective circumstances that Ms Hutson’s rights are involved, the District Court trial is yet to commence and ASIC, for the purposes of the Dismissal Application, accepts that the substantive legal question concerning the proper construction of the ASIC Act is arguable, sufficiently demonstrate that there is a real question to be determined as to whether the present case is the type of exceptional or special case where the Court might be persuaded to give declaratory relief despite the prospect of fragmentation or disruption of the District Court criminal proceedings. As is revealed by the outcome in Cain v Glass (No 2)[44] (which is referred to by Kirby P in Anderson[45]) the question whether special or exceptional circumstances exist in any given case requires careful attention to the facts and can be an issue in respect of which experienced legal minds can differ. I am satisfied for the purposes of this summary dismissal application that Ms Hutson has reasonably arguable grounds for contending that it is necessary and in the interests of justice that this Court should make the declarations sought in the Supreme Court Proceedings.
  4. [47]
    ASIC also contended for an abuse of process because the Supreme Court Proceedings involved some of the same issues as were dealt with in the District Court Reasons and gave rise to the prospect of conflicting decisions. This was styled as “the re-litigation ground”.
  5. [48]
    In Haines v Australian Broadcasting Corporation,[46] Hunt CJ outlined the following statement of principle (which has been approved of by the New South Wales Court of Appeal in Rippon v Chilcotin Pty Ltd):[47]

“There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath … The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued – by which I mean that … the tribunal has decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance… In normal circumstances, the decision disposing of the issue must have been a final one …”

  1. [49]
    In State Bank of New South Wales Ltd v Stenhouse,[48]Giles CJ said:

“It is apparent from this brief review of the decisions that whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are –

  1. (a)
    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
  2. (b)
    the opportunity available and taken to fully litigate the issue;
  3. (c)
    the terms and finality of the finding as to the issue;
  4. (d)
    the identity between the relevant issues in the two proceedings;
  5. (e)
  6. (f)
    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
  7. (g)
    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.”
  1. [50]
    In R v O'Halloran,[49] Heydon JA observed that the resolution of the first four of the considerations identified by Giles CJ in Stenhouse “turns on precise identification of the issues”.
  2. [51]
    In the present case, the decision of the learned Judge was interlocutory and not final. By the terms of s 590AA of the Code, the decision is expressed to be binding, subject to its being reopened with leave for special reason by the learned judge or another judge of the District Court. However, the implications of that statutory language and the language of s 668A (1) of the Code for the supervisory jurisdiction of this Court, if any, fall to be determined as part of the resolution of the complex jurisdictional question which I have already discussed. The existence of that serious question, of itself, means that this ground of abuse is not established to the required level of precision for this type of application.
  3. [52]
    Further, it was not contended by ASIC that the language of ss 590AA and 668A (1) of the Code was sufficient to oust the supervisory jurisdiction of this Court. One might expect that Ms Hutson will have substantial arguments to make to refute any such contention, if such a contention is ultimately made.[50] In Sankey, Gibbs ACJ noted that superior courts have been prepared to make supervisory declarations even where a question of law has already been adversely decided by a criminal court against the party seeking the declarations. An example can be seen in Anderson, where the fact that a District Court judge had delivered full reasons for a decision was considered to facilitate, rather than restrain or impede, the exercise of the supervisory jurisdiction.[51]  In the present case, the decision of the learned judge was an interlocutory decision of an inferior court which Ms Hutson seeks to review in the supervisory jurisdiction of this Court. For the purposes of this application, ASIC was content to concede that the Court possessed jurisdiction to make the declarations sought by Ms Hutson. In my view, ASIC has not discharged its burden of establishing that an abuse of process arises out of the re-litigation ground.
  4. [53]
    This application for summary dismissal was brought by ASIC on a very narrow basis, namely abuse of process. Nothing I have said in these reasons should be taken as pre-empting the ultimate answer to any question of jurisdiction or any discretionary matters that may be relevant at the final hearing of the Supreme Court Proceedings. 
  5. [54]
    I order the application filed by ASIC on 9 February 2022 be dismissed.

Footnotes

[1] Custodial Ltd v Greig [2005] 2 Qd R 115, 127 [55]; Madden v Kirkegard Ellwood and Partners [1983] 1 Qd R 649, 652.

[2] Spencer v Commonwealth (2010) 241 CLR 118, 131 [24].

[3] R v Hutson [2021] QDCPR 78 [46].

[4]  Ibid [56].

[5]  Ibid [62].

[6]  Ibid [63].

[7]  Ibid [57].

[8]  Ibid [61].

[9]  Ibid [67].

[10]  Ibid [82].

[11]  Ibid [85]–[86].

[12]  (1948) 78 CLR 62, 91-92.

[13]  (1908) 7 CLR 76, 92.

[14]  (1888) 39 Ch.D 213; 15 App.Cas. 210, 219.

[15]  Ms Hutson’s supplementary written submissions on the Court’s jurisdiction [14]-[18].

[16]  ASIC’s supplementary submissions [2].

[17]  T 1-22 ll 1-11.

[18]  ASIC’s supplementary submissions [3].

[19]  ASIC’s supplementary submissions [7].

[20]  Ms Hutson’s written submissions [5(d)].

[21]  ASIC’s written submissions [16].

[22]  T 1-42 ll 25-30; T 1-33 ll 22-26.

[23]  ASIC’s written submissions [30]-[32]; T 1-33 l 24.

[24]  T 1-29 ll 15-18.

[25]  T 1-28 l 40 - T1-29 l 5.

[26]  T 1-29 ll 35-40.

[27]  T 1-51 ll 40-41.

[28]  (1948) 78 CLR 62, 91-92.

[29]  T 1-37 ll 20-25.

[30]  ASIC’s supplementary submissions [4].

[31]  [2017] 1 Qd R 148, 151 [2].

[32]  (1987) 10 NSWLR 198

[33]  (1978) 142 CLR 1, 20-27 (Gibbs ACJ), 78-81 (Stephen J), 81-92 (Mason J).

[34]  (1978) 142 CLR 1, 20-26.

[35]  [1966] 1 WLR 427, 435, 437-438.

[36]  (1987) 10 NSWLR 198, 200 (Kirby P), 206 (McHugh JA).

[37] Anderson v Attorney- General (NSW) (1987) 10 NSWLR 198, 207.

[38] R v Long (No 1) [2002] 1 Qd R 662, 679 [53]-[54]; R v Chardon [2017] 1 Qd R 148, 153 [15]-[22].

[39]  [2002] 1 Qd R 662, 679.

[40]  [2017] 1 Qd R 148, 153 [13] – 155 [28].

[41] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 435-6.

[42] Palmer v Magistrates Court of Queensland (2020) 3 QR 546, 560 [29].

[43] Sankey v Whitlam (1978) 142 CLR 1, 26.

[44]  (1985) 3 NSWLR 230.

[45] Anderson v Attorney General (NSW) (1987) 10 NSWLR 198, 200.

[46]  (1995) 43 NSWLR 404, 414.

[47]  (2001) 53 NSWLR 198, 204.

[48]  (1997) Aust Torts Reports 81-423, 64,089.

[49]  (2000) 159 FLR 260, 293.

[50]  See by eg Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, 435-6; Sankey v Whitlam (1978) 142 CLR 1, 79; Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292, 300.

[51] Anderson v Attorney General (NSW) (1987) 10 NSLR 198, 201

Close

Editorial Notes

  • Published Case Name:

    Hutson v ASIC

  • Shortened Case Name:

    Hutson v ASIC

  • MNC:

    [2022] QSC 68

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    29 Apr 2022

  • White Star Case:

    Yes

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