Clyne v Director of Public Prosecutions

These proceedings come before us by way of demurrer to the whole of the action in which the plaintiff claims a declaration that regs. 40 and 42 are void and of no effect. No question is raised by the defendants concerning the locus standi of the plaintiff to claim that relief. For the reasons which I have given I think that the demurrer should be overruled and that the plaintiff should have his declaration in relation to that part of reg. 42 which refers to penalty. No argument has been advanced which would indicate that reg. 40 is beyond power and the fact that no penalty is prescribed for breach of the prohibition which it imposes does not affect its validity, although it will preclude any prosecution for its breach. It was submitted that if reg. 42 fails to provide a penalty then the offence which is nevertheless created will be an indictable misdemeanour at common law which carries no fixed penalty: see Ex parte Gerard & Co. Pty. Ltd.; Re Craig [20] . That may ordinarily be the effect of the creation of an offence without the prescription of a penalty but it clearly cannot be so where a contrary intention is statutorily expressed. Such a contrary intention is to be found in s. 39(2)(q) of the Banking Act which provides for the prescription by the Governor-General of penalties for offences against the Regulations not exceeding the specified maximum. Quite plainly that provision is inconsistent with the creation of a common law misdemeanour with an unlimited penalty. Thus there can be no penalty imposed for any breach of the prohibition imposed by reg. 40 and the continuation of the proceedings against the plaintiff, even if possible, would be futile. The plaintiff claims an injunction against the continuation of those proceedings but having regard to the declaration which the plaintiff is, in my view, entitled to, it is unnecessary to consider that claim further.