Consideration
37 Although: (a) knowing since 21 June 2024 that the penalty hearing was listed to commence on 24 February 2025; (b) knowing that it was likely that their appeal on liability could be listing in the November sitting period; and (c) knowing that a stay application could be brought by them at any time, including before the primary judge, the appellants have delayed in seeking that relief. They have not provided a reasonable excuse for that delay.
38 In the meantime, and despite delays by the appellants in completing discovery, ASIC's preparation for the penalty hearing has progressed to the stage where it expects that, by 28 August 2024, it will have completed filing the evidence on which it proposes to rely at the penalty hearing and have informed the appellants of the pecuniary penalty orders it will seek and the basis for those orders. Therefore, significant costs have already been incurred in relation to the penalty hearing. The appellants' submission that costs can be avoided or minimised by granting the stay they seek must be seen in this light.
39 Further, I have no doubt that conducting two appeals - one on liability and, potentially, one on penalties - will result in significant extra costs being incurred which could be avoided by conducting one appeal on all issues.
40 These matters tell against granting the stay that the appellants seek. However, I have concluded that a stay should be granted. My reasons are as follows.
41 There is a real prospect that the appeal on liability can be listed for hearing in the November sitting period. But that prospect is not likely while a hearing on penalty remains listed to commence on 24 February 2025. If the appeal on liability is not listed for hearing in the November sitting period, it is not likely that an appeal (on liability and, potentially, penalty) will be listed for hearing until the August 2025 Full Court and Appellate sitting period. Given those considerations, it is clearly desirable that the appeal on liability be listed for hearing in the earlier, rather than in the considerably later, sitting period.
42 This is particularly so in circumstances where leave to appeal on liability - a limited appeal - was granted on the basis of ASIC's statement to the Court that it did not oppose leave being granted to bring such an appeal. That notification was given by ASIC on 27 June 2024, after the primary judge had listed the penalty hearing. That was a significant change in circumstances. Moreover, at that time, ASIC knew that the Court was contemplating listing an appeal on liability in the November sitting period.
43 In the present application, ASIC sought to explain the basis for its non-opposition. It says that it did not oppose the application for leave to appeal because the appellants would have had a right of appeal "after the final disposition of the proceeding at the conclusion of the penalty hearing" in any event. It contends that it did not concede that the appellants' intended appeal was arguable.
44 This explanation is difficult to follow. It is axiomatic that, once all the rights of the parties have been finally determined in the trial proceeding, the appellants will have a right to appeal. However, the question which ASIC should have addressed was whether, in circumstances where all the rights of the parties have not been finally determined in the trial proceeding, the appellants should, nevertheless, be granted leave to appeal on the limited question of liability.
45 In any event, ASIC did not proffer this explanation at the time it informed the Court that it did not oppose leave to appeal being granted. As I have said, the National Appeals Coordinating Judge was entitled to take ASIC's non-opposition as containing the concessions to which I have referred.
46 Perhaps more importantly, ASIC's explanation does not address the significance of its non-opposition or the consequences of leave to appeal having been granted. Many of the reasons now advanced by ASIC as to why the Court should refuse a stay are, in fact, reasons why, in a given case, leave to appeal should not be granted. However, paradoxically, rather than expressing its opposition to leave to appeal being granted, ASIC expressed its non-opposition when corresponding with the Court on 27 June 2024.
47 It can be accepted as a general proposition that efficiencies (including as to costs) are likely to be achieved by having one appeal addressing all issues arising from a trial. It can be accepted as a general proposition that, by having an appeal on limited issues, there may be delay in determining the remaining issues for trial, which may also add to the costs of the trial and create practical difficulties in adducing evidence, such as those referred to in ASIC's evidence. But these are the incidents of leave to appeal on limited issues being granted. They must have been - or should have been - in ASIC's contemplation when it expressed its non-opposition to leave to appeal being granted.
48 As matters now stand, an appeal on liability will have the benefit of providing an appellate judgment on which the primary judge can rely in determining the question of the appropriate penalties to be imposed, and may shape that question. The availability of an appellate judgment on liability may also limit the grounds of any future appeal that might be brought from the remaining final orders to be made by the primary judge.
49 If it happens that the appellants' appeal on liability is wholly successful, the costs which ASIC has incurred to date in preparing for the penalty hearing will be wasted. This consequence can be addressed, however, by appropriate orders for costs by the primary judge or by the Full Court.
50 With regard to the form of the stay order, the appellants seek a stay until the hearing and determination of the appeal. In my view, it would be better to provide for the stay to be granted until further order. If for some unforeseen (and presently unexpected) reason the hearing of the appeal is significantly delayed - such as to allow a penalty hearing to proceed - then there would be good reason to lift the stay.
51 With regard to the costs of the stay application, ASIC has been unsuccessful in its opposition. However, the appellants have delayed in bringing the application, with no satisfactory explanation for that delay. Costs should lie where they fall. There will be no order for costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.