Queensland Judgments
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Palmer v Magistrates Court of Queensland & Ors; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland & Ors

Unreported Citation: [2020] QCA 47

In February 2018, Clive Palmer and Palmer Leisure Coolum Pty Ltd (“PLC”) were charged with an offence under s 631(1) Corporations Act 2001 (Cth). While the charges were in the pre-committal stage in the Magistrates Court, they applied to the Supreme Court for a stay of those proceedings on the ground that the proceeding was an abuse of process. The primary judge summarily dismissed that application on the ground that it amounted to a “fragmentation of or interference in” criminal proceedings. Palmer and PLC appealed. The Court of Appeal found that the primary judge’s decision to summarily dismiss the proceeding was infected by error because she had failed to address the correct issue, namely whether there were any tenable grounds for the appellants to bring the application for a stay. Although this meant the case needed to be considered afresh, the Court of Appeal ultimately concluded that the primary judge had been correct to dismiss the application for a stay.

Fraser and Morrison JJA and Boddice J

17 March 2020


In February 2018, Palmer Leisure Coolum Pty Ltd (“PLC”) and Clive Palmer were charged with an offence under s 631(1) of the Corporations Act 2001 (Cth). [3]–[4]. The alleged offence involved failing to make offers for certain shares/securities within two months of publicly proposing a takeover bid. [3]–[4]. It is alleged that Mr Palmer abetted, counselled or procured PLC to commit the offence. [4].

While the charges were at the pre-committal stage in the Magistrates Court, PLC and Mr Palmer (the “appellants”) commenced proceedings in the Supreme Court, seeking a permanent stay of the committal proceedings. They alleged that the proceedings were an abuse of process. [1].

At first instance, the Australian Securities and Investments Commission and the Commonwealth Director of Public Prosecutions were successful in their application to strike out the appellants’ statement of claim. [2]. The appellants now appeal against those orders. [2]. The Court of Appeal’s reasons were delivered by Fraser JA, with whom Morrison JA and Boddice J agreed. [95]–[96].

Error in the primary judge’s reasoning

The Court of Appeal considered that the primary judge had erred in her analysis, in that she had decided that the appellants’ claims were amenable to summary dismissal (at [31]):

“merely upon the ground that they amounted to a fragmentation of or interference in criminal proceedings without any consideration of the question whether any of those claims might nevertheless succeed after a trial.”

Although the primary judge had gone on to consider an alternative basis for dismissal – that no reasonable cause of action had been disclosed – she had not correctly framed her conclusion “in terms such as that there was no tenable ground for the appellants to invoke the supervisory jurisdiction of the Supreme Court” or to seek the relief claimed. [32]. The High Court decision of Agar v Hyde (2000) 201 CLR 552, 575–576 [57] made it clear that proceedings should not be decided in a summary way “except in the clearest of cases”. [27]. Her Honour had not used that language, or language of that kind, when considering the merits of the claims. [32].

Accordingly, it was necessary to “consider the case afresh” and determine whether the appellants’ claims had been so clearly untenable as to justify their summary termination. [33].

The Court of Appeal’s consideration of whether the appellants’ claims were properly terminated summarily

The Court of Appeal analysed the original joint statement of claim filed on behalf of the appellants. [34]. That document was divided into numerous sections, which sought relief on the alleged bases that: the elements of the offences could not be made out (Section C); there had been delay in the commencement of the criminal proceedings (Section D); the circumstances giving rise to the proceedings had already been litigated (Section E); and the proceedings were, or had the appearance of being, for an improper purpose (Section F). [35]–[89]. By reference to those sections, the Court of Appeal considered that:

  • Section C sought fragmentation of the criminal proceedings by adjudicating on the elements of the charged offences. The authorities (such as Lamb v Moss (1983) 76 FLR 296) made it clear that such fragmentation should only occur in an exceptional case, and this was not such a case. Further, the appellants could pursue a “no case” submission in the Magistrates Court. [40].
  • Section D alleged delay, but the kind of delay which enlivens the discretion to stay a criminal proceeding is delay which produces “an adverse effect which is incapable of being cured in the criminal proceedings”. [55]. The appellants had failed to allege any specific prejudice arising as a result of the delay. [51]–[52].
  • Section E contended that the circumstances giving rise to the criminal proceedings had been litigated in Takeover Panel Proceedings. [57]. However, those proceedings were in a very different context, with a focus on “the need for an efficient, competitive and informed market”. The Magistrates Court criminal proceedings served a different purpose. [59]. Further, there was no arguable case of prejudice in this regard. [58].
  • Section F alleged that the proceedings were part of a “Commonwealth Government agenda against Mr Palmer”. [62]. The Court of Appeal reviewed documents tendered at trial, and admitted new documentary evidence, all which was said to reveal this agenda (or at least raise suspicions in that regard). Examination of those documents, however, suggested “nothing other than an orthodox approach to the contemplated prosecutions”. [84].

It followed that there was “no reasonably arguable substance in any of the argued bases for the appellants’ claims that the committal proceedings should be permanently stayed”. [90]. Accordingly, although the primary judge had erred in her reasoning, she had been correct to strike out the appellants’ proceedings as an abuse of process. [90].

W Isdale


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