Coeur de Lion Investments Pty Ltd v Lewis & Ors [2020] QCA 111

SUPREME COURT OF QUEENSLAND

CITATION: Coeur de Lion Investments Pty Ltd v Lewis & Ors [2020] QCA 111

PARTIES: In CA No 178 of 2019: / COEUR DE LION INVESTMENTS PTY LTD / ACN 006 334 872 / (applicant) / v / LEWIS, Ian George / (respondent) / In CA No 179 of 2019: / COEUR DE LION INVESTMENTS PTY LTD / ACN 006 334 872 / (applicant) / v / KELLY, Patrick John / (respondent) / In CA No 180 of 2019: / COEUR DE LION INVESTMENTS PTY LTD / ACN 006 334 872 / (applicant) / v / WALLIS, Bruce Murdoch / (respondent)

FILE NO/S: CA No 178 of 2019 / CA No 179 of 2019 / CA No 180 of 2019 / DC No 4641 of 2018 / DC No 4642 of 2018 / DC No 4643 of 2018

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Brisbane – [2019] QDC 90 (Smith DCJA)

DELIVERED ON: 29 May 2020

DELIVERED AT: Brisbane

HEARING DATE: 4 March 2020

JUDGES: Philippides JA and Bond and Bowskill JJ

ORDERS: In each of the proceedings CA 178 of 2019, CA 179 of 2019 and CA 180 of 2019:

CATCHWORDS: CRIMINAL – APPEAL AND NEW TRIAL – OTHER MATTERS – STATUTES – INTERPRETATION – where the applicant shareholder of a company attempted to commence private prosecutions against the respondents, directors of the company, for alleged offences under s 601ED of the Corporations Act 2001 (Cth), relying upon s 13 of the Crimes Act 1914 (Cth) – where the directors successfully applied to the Magistrates Court to strike out the complaint made against each of them, on the basis the applicant had no standing to bring a private prosecution against them, having regard to s 1315 of the Corporations Act – whether there remains an enforceable right of private prosecution for offences under the Corporations Act – whether, on the proper construction of the words used in s 1315 of the Corporations Act, having regard to the context for and purpose of the provision, a contrary intention, for the purposes of s 13 of the Crimes Act, appears in s 1315 of the Corporations Act, so as to preclude the private prosecution of an offence against the Corporations Act / Acts Interpretation Act 1901 (Cth), s 15AA, s 15AB / Corporations Act 2001 (Cth), s 1315, s 601ED / Crimes Act 1914 (Cth), s 4J, s 4H, s 13 / District Court of Queensland Act 1967 (Qld), s 118 / Judiciary Act 1903 (Cth), s 69 / Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35, cited Brebner v Bruce (1950) 82 CLR 161; [1950] HCA 36, cited / Bropho v Western Australia (1990) 171 CLR 1; [1990] HCA 24, cited / Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56, cited / R v A2 (2019) 93 ALJR 1106; [2019] HCA 35, cited / Taylor v Attorney-General (Cth) (2019) 93 ALJR 1044; [2019] HCA 30, cited

COUNSEL: C S Ward SC, with E L Robinson, for the applicant in each proceeding / G J Handran, with N D Boyd, for the respondent in each proceeding

SOLICITORS: Alexander Law for the applicant in each proceeding / McBride Legal for the respondent in each proceeding

1. PHILIPPIDES JA: I agree with the orders proposed by Bowskill J for the reasons given by her Honour.

2. BOND J: I agree with the reasons for judgment of Bowskill J and with the orders proposed by her Honour.

3. BOWSKILL J: In May 2019, the applicant, a shareholder of The President’s Club Ltd (the company) filed complaints in the Magistrates Court against each of Mr Lewis, Mr Kelly and Mr Wallis, directors of the company, alleging that the company had operated a managed investment scheme that was not registered as required, contrary to s 601ED of the Corporations Act 2001 (Cth),¹ and that each of those directors had aided, abetted, counselled or procured the company to commit that offence, under s 11.2 of the Criminal Code (Cth).

4. In doing this, the applicant attempted to commence private prosecutions against the directors, relying upon s 13 of the Crimes Act 1914 (Cth). The directors applied to strike out the complaint made against each of them, on the basis that the applicant had no standing to bring a private prosecution against them, because s 1315 of the Corporations Act evinces a contrary intention, preventing any person, other than those specified in s 1315, from prosecuting offences under the Corporations Act.

5. The Magistrate allowed the directors’ applications, and struck out the complaints*.* The Magistrate’s decision was upheld on appeal to the District Court: Coeur de Lion Investments Pty Ltd v Lewis [2019] QDC 90.

6. The applicant now seeks leave to appeal the District Court’s decision to this Court.²

7. The issue in the case is whether, in light of s 1315 of the Corporations Act, there remains an enforceable right of private prosecution for offences under the Corporations Act.

8. For the following reasons, in each matter I would give the applicant leave to appeal, but dismiss the appeal, as the decision of the District Court was correct as a matter of law.

9. Section 13 of the Crimes Act provides:

“13 Institution of proceedings in respect of offences

Unless the contrary intention appears in the Act or regulation creating the offence, any person may:

(a)institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or

(b)institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.”³

10. The offence alleged in this case (contravention of s 601ED(5)) is an indictable offence.⁴ By operation of s 4J(1) of the Crimes Act 1914, such an offence may, unless the contrary intention appears, be heard and determined summarily, with the consent of the prosecutor and the defendant. Section 4J(2) provides that subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than the Crimes Act, that offence may be heard and determined by a court of summary jurisdiction. There does not appear to be any such provision in the Corporations Act, or any other Commonwealth law, with the result that unless the putative defendants consented, the Magistrates Court would not have jurisdiction to hear and determine the offence complained of summarily.⁵ Further submissions were requested from the parties, after the hearing, on the question whether the Magistrates Court would have jurisdiction to hear the complaints, even apart from the issue of law raised on this appeal; for if it would not, it would not be appropriate to consider the issue raised on this appeal.⁶ It is clear from those submissions that the respondents had not consented to the proceedings being dealt with summarily, nor are they to be taken, by their actions in applying to strike out the proceedings, to have so consented. But nor does the lack of consent, at this early stage, deprive the Magistrates Court of any jurisdiction. Up until an election is made by a defendant, the Magistrates Court’s jurisdiction would extend to taking an examination of witnesses in relation to the indictable offence, for the purposes of determining whether to commit the defendant for trial (a committal proceeding). It is open to a defendant to consent to the matter being dealt with summarily, at any time before the hearing of the evidence commenced.⁷ It is therefore appropriate to proceed to determine the question raised on this appeal.

11. Section 1315 of the Corporations Act provides:

“1315 Proceedings: how taken

(1)Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:

(a)ASIC; or

(b)a Commission delegate; or

(c)another person authorised in writing by the Minister to institute the proceedings.

(2)A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.

(3)Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.”

12. The question is whether a contrary intention appears in s 1315 of the Corporations Act, such that the right otherwise conferred by s 13 of the Crimes Act is abrogated, in so far as proceedings for an offence against the Corporations Act are concerned. The answer depends on the proper construction of s 1315 of the Corporations Act.

Relevant principles of statutory construction

13. The task in construing a statute is to ascertain the intended meaning of the words used, a process which must be undertaken having regard to the context for the provision.⁸ In R v A2 (2019) 93 ALJR 1106; [2019] HCA 35 Kiefel CJ and Keane J reiterated that:

“[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete.⁹ This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.¹⁰

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction.¹¹ Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy.¹² ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction….

[35] [Their Honours referred to cases, including Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], emphasising the importance of the text of the provision]…

[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, [at 408], that in a particular case, ‘if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.”¹³

14. The relevance of the purpose of a statutory provision to the task of statutory construction is also confirmed by s 15AA of the Acts Interpretation Act 1901 (Cth).¹⁴

15. Appropriate reference to extrinsic materials, and the legislative history of a provision, form part of the relevant context and may assist to elucidate the purpose of the Act (or provision).¹⁵ But as French CJ and Hayne J said in Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]:

“Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative ‘intention’ is to use a metaphor. Use of that metaphor must not mislead. ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’¹⁶ (emphasis added).

….

The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.”¹⁷

What is required for the contrary intention to appear?

16. Section 13 of the Crimes Act applies “[u]nless the contrary intention appears in the Act … creating the offence”. A preliminary matter, arising from the competing arguments of the parties, is what is required for “the contrary intention” to appear in the Act?

17. The applicant emphasised the importance of the common law right of any individual to bring a private prosecution for an offence,¹⁸ and the consequent requirement for very clear and unambiguous language in order for a statutory intention to abrogate or restrict that right to be found. In this way, the applicant essentially invokes the principle of legality, as a canon of construction applying to the interpretation of s 1315 of the Corporations Act.¹⁹

18. The respondents submit that the determination which s 13 of the Crimes Act requires is not fettered by cases which consider or apply the common law, including the principle of legality, because s 13 has been held to operate to the exclusion of the common law. Accordingly, the question whether the contrary intention appears is to be answered by application of the well accepted principles of statutory construction: construing the words used in s 1315, having regard to the purpose and context of the provision, to ascertain whether a contrary intention appears.

19. The respondents’ submission should be accepted.

20. In Taylor v Attorney-General (Cth) (2019) 93 ALJR 1044 the majority (Kiefel CJ, Bell, Gageler and Keane JJ) (at [3]) confirmed that s 13 of the Crimes Act “operates to the exclusion of the common law in relation to prosecutions for Commonwealth offences”. They did so by reference to Brebner v Bruce (1950) 82 CLR 161 at 169-170 (McTiernan J) and 174-5 (Fullagar J).²⁰

21. As to the qualification in s 13 of the Crimes Act (“unless the contrary intention appears”), in Brebner v Bruce the approach adopted by Latham CJ (with whom Webb and Kitto JJ agreed) was to consider whether the necessary contrary intention appeared, either expressly or impliedly (see at 167); McTiernan J said that the qualification would apply if the contrary intention were expressly declared and “if an intention to depart from the general rule introduced by s 13 could be inferred from [the Act or regulation creating the offence]” (at 170); and Fullagar J held that a contrary intention may appear “from express words or necessary implication” (at 174 and 175).

Textual considerations

24. On its face, the text of s 1315 appears to make exhaustive provision for how proceedings for an offence against the Corporations Act may be taken. It applies “in any proceedings for an offence against this Act…”, and provides that “any information, charge, complaint or application may be laid or made by”:(a)ASIC; or(b)a Commission delegate; or(c)another person authorised in writing by the Minister to institute proceedings.

25. The reference to “any proceedings”, and “any information [etc]”, together with an exhaustive list of persons or entities which/who can bring such proceedings, culminating in the catch-all in (c), tends to suggest that the purpose of the section was to define how any [in the sense of all] proceedings for an offence against the Corporations Act may [in the sense of capacity²⁶] be taken.

26. The applicant submits the word “may” in the chapeau of sub-s 1315(1) indicates the section is “facultative in its intended operation”, relying upon Attorney-General (Cth) v Oates (1999) 198 CLR 162, which held that s 1316 (which provides that, “[d]espite anything in any other law, proceedings for an offence against this Act may be instituted within the period of 5 years … or, with the Minister’s consent, at any later time.”) was facultative, not restrictive. In Oates the point was that s 1316 facilitated proceedings being commenced despite something in another law providing for a shorter time limitation (for example, in the case of offences dealt with summarily); but did not restrict proceedings to being commenced within five years, where there was otherwise no such time limitation (for example, in the case of offences prosecuted on indictment). The analysis in Oates does not assist in resolving the construction of s 1315. Section 1316 is concerned with an entirely different “mischief”, namely, to prevent persons escaping prosecution due to the shorter time limit applicable to summary prosecutions.²⁷

27. In the context of s 1315, the word “may” conveys two things: firstly, as already noted, in the sense of identifying the person or body with capacity to bring the proceedings; and, secondly, that the initiation of proceedings may be done at the discretion of the person or body concerned.²⁸

28. The applicant’s submission that the use of the word “may” supports a construction that s 1315 simply facilitates the persons or bodies referred to in s 1315(1) bringing proceedings, leaving the right of any other person to do so unaffected, is rejected, as a matter of textual analysis, and also having regard to broader contextual considerations, including the legislative history of s 1315, discussed below.

Other relevant provisions

35. Further provisions relating to the criminal jurisdiction of courts to deal with criminal matters arising under the Corporations legislation are contained in part 9.6A, division 2 (ss 1338A to 1338C). Section 1338A(1) provides that “[t]his Division provides in relation to the jurisdiction of courts in respect of criminal matters arising under the Corporations legislation and so provides to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.”³⁷

36. Section 69(1) of the Judiciary Act provides that:

“Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf.”

37. Section 69(2A) provides:

“Nothing in subsection (1):

(a)affects the power of the Director of Public Prosecutions to prosecute by indictment in his or her official name; or

(b)affects, or shall be taken to have affected, the power of a Special Prosecutor to prosecute by indictment in his or her own name;

indictable offences against the laws of the Commonwealth.”

38. As explained by the plurality in Taylor v Attorney-General (Cth) the general procedure for the prosecution of offences under Commonwealth law for which provision is made in ss 68 and 69 of the Judiciary Act forms the background to s 13 of the Crimes Act.

39. In Taylor at [18] the plurality addressed the distinction between the procedure typically applicable to offences heard and determined summarily and to offences tried on indictment, saying:

“‘There is’, as Dixon J said in Munday v Gill [(1930) 44 CLR 38 at 86] in words which remain as true today as they did at the time of enactment of the Judiciary Act, ‘a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment’. Trials on indictment are in traditional parlance ‘pleas of the Crown’: proceedings in form and in substance between an individual and the State. A prosecution for an offence punishable summarily is in contrast ‘a proceeding between subject and subject”.”

40. Their Honours go on (at [19]) to address the distinction between two distinct stages of the procedure typically applicable to offences tried on indictment: examination and commitment for trial on indictment, and trial and conviction on indictment, saying:

“In R v Murphy [(1985) 158 CLR 596] it was held that these two distinct stages form part of the one curial process that results in the resolution of the ‘matter’ in respect of which federal jurisdiction is conferred by s 68(2). In the language of that case ‘[e]ven though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury’ such that ‘[t]hey have the closest, if not an essential, connexion with an actual exercise of judicial power’.

41. Section 69(1) speaks to the second of these two distinct stages of the procedure (Taylor at [20]), vesting the right and duty to prosecute indictments exclusively in the Commonwealth Attorney-General or in appointed officers, subject to the carve out from its operation by s 69(2A) (Taylor at [22]).

42. As further explained by the plurality in Taylor at [23]:

“The exclusive nature of the right and duty vested in the Attorney-General or in an appointed officer by s 69(1) of the Judiciary Act is also recognised in s 13 of the Crimes Act. Where it is applicable, s 13(a) goes no further than to allow a person other than the Attorney-General or an appointed officer to institute proceedings for the commitment for trial of a person in respect of an indictable offence against a law of the Commonwealth. Where a person is committed for trial, filing or refusing to file any subsequent indictment is outside the scope of the capacity to prosecute conferred by s 13(a) of the Crimes Act and solely within the province of the Attorney-General or appointed officer under s 69(1) of the Judiciary Act subject only to the carve-out in s 69(2A) of the Judiciary Act. …”

43. Section 69(1) does not speak to the alternative procedure provided for by s 13(b) of the Crimes Act, of instituting proceedings for the summary conviction of a person in respect of an offence against a law of the Commonwealth punishable on summary conviction.

44. Section 69(1) of the Judiciary Act has been in the form set out above since enacted in 1903. Subsection 69(2A) was inserted by amendment in 1983 (coincident with the enactment of the Director of Public Prosecutions Act 1983 (Cth)). It can be seen that, at the time of enactment of s 1315 (and indeed the earlier version of it, in 1961), the legislation then existing allowed any person to institute summary proceedings for an offence against a law of the Commonwealth (s 13 of the Crimes Act) and for prosecutions on indictment, required that the indictment be in the name of the Attorney-General, or some other person appointed by the Governor-General (s 69 of the Judiciary Act). The enactment of s 1315 (and its predecessors, s 381 of the Companies Act 1961 (Qld) and later s 36 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth)) altered that pre-existing law in two respects: first, as in the case of the provision considered in Taylor, s 1315 makes no distinction between summary proceedings and proceedings on indictment, and refers to the totality of the prosecutorial process, whatever form that may take in a particular case;³⁸ and, second, by defining the person(s) or entity(ies) capable of initiating any proceedings for an offence against the Corporations Act (whether summarily or on indictment).³⁹

45. In that context, vesting the responsibility for the bringing of proceedings for offences against the Corporations Act in ASIC, the statutory body charged with the administration and enforcement of the Corporations Act, to the exclusion of any entitlement of another person to bring such proceedings, makes obvious sense.⁴⁰

46. The construction supported by the textual considerations discussed above is confirmed when one has regard to the legislative history of s 1315.

Legislative history and purpose

47. The original companies legislation in Australia was enacted based on the Companies Act 1862 (England), with the first Queensland statute being the Companies Act of 1863. However, for present purposes, it suffices to begin with the 1931 Act.

48. Under the Companies Act 1931 (Qld),⁴¹ s 146 provided that if it should appear to a Crown Law Officer, from a report into the investigation of the affairs of a company (under s 145) that an offence has been committed, that a prosecution ought to be instituted and, further, “that it is desirable in the public interest that the proceedings in the prosecution should be conducted by him or by the Crown Prosecutor”, the Crown Law Officer “shall institute proceedings accordingly”. Power to institute a prosecution was also conferred on a liquidator (under s 201). In addition, under s 286(1), if it appeared to the court in the course of a winding up by, or subject to the supervision of, the court that any past or present director, manager or other officer or any member of the company is guilty of any offence in relation to the company, the court may, either on the application of any person interested in the winding up or of its own motion, direct the liquidator to prosecute the offender, or refer the matter to the Crown Law Officer, who may decide to institute proceedings (s 286(6)).

49. Section 370 of the Companies Act 1931 provided that:

“All offences under this Act made punishable by any penalty may be prosecuted in a summary way under and subject to ‘The Justices Acts, 1886 to 1929”.⁴²

50. Section 375 of the Companies Act 1931 expressly saved the right of private prosecution, providing as follows:

“Nothing in this Act relating to the institution of criminal proceedings by the Crown Law Officer shall be taken to preclude any person from instituting or carrying on any such proceedings.”⁴³

51. There was no provision in the 1931 Act about how or when proceedings for an offence may be taken, but one was added, by s 56 of the Companies Act Amendment Act of 1942, under which a new subsection (2) was added to s 370, providing that “[p]roceedings for offences under this Act may be instituted at any time within six months after the commission of the offence or within four months after the commission of the offence came to the knowledge of the complainant, whichever is the later period”.⁴⁴

52. Between 1961 and 1962 each state and territory enacted uniform companies legislation, in an effort to remove difficulties caused by differing legislation between the states. In Queensland, the Companies Act 1961 (Qld) was enacted as part of this uniform legislation.

53. Similarly to the 1931 Act, the Companies Act 1961 provided, in s 169, for the Governor in Council to refer a matter to the Crown Law Officer, where it appears from a report of an investigation into the affairs of a company that any person has been guilty of any offence in relation to the company, and enabling the Crown Law to cause a prosecution to be instituted; and, in s 306, for the Court, to whom it appears, in the course of a winding up, an offence has been committed, of its own motion or on the application of a person interested in the winding up of a company, to direct the liquidator to prosecute the offender, or refer the matter to the Crown Law Officer.

54. The general provision dealing with proceedings for an offence, s 381 of the Companies Act 1961 provided as follows:

“381 (1) Except where provision is otherwise made in this Act proceedings for any offence against this Act may be taken by the Registrar or, with the written consent of the Crown Law Officer, by any person.

(2)Notwithstanding anything in any Act proceedings for any offence against this Act may be brought within the period of three years after the commission of the alleged offence or, with the consent of the Crown Law Officer, at any later time.

(3)Unless otherwise provided, all offences against this Act may be prosecuted in a summary way under ‘The Justices Acts, 1886 to 1960’.

(4)Penalties under this Act when recovered shall, notwithstanding anything in any other Act, be paid into the Consolidated Revenue Fund.”⁴⁵

55. This represented a marked difference from the 1931 Act, because of the inclusion of sub-s (1) and the omission of any equivalent of s 375 (protecting the right of private prosecution).

56. The parties did not identify any extrinsic material which shed any light on the reasons for this change.

57. However, the combination of providing in sub-s 381(1) for proceedings for an offence to be taken by the Registrar or, with the written consent of the Crown Law Officer, any person; and omitting the express provision saving a private right of prosecution, strongly supports the conclusion that it was the objective intention of the legislature to exhaustively define, in s 381, the person(s) with capacity to bring such proceedings. That is, to provide a clear contrary intention to the operation of the general provision in s 13 of the Crimes Act.

58. The scheme of national companies legislation which is now in force began with the National Companies and Securities Commission Act 1979 (Cth), the Companies (Acquisition of Shares) Act 1980 (Cth) and the Companies Act 1981 (Cth).⁴⁶

59. There was no equivalent of s 381 of the 1961 Queensland Act in the 1981 Commonwealth Act. There was, however, separate Commonwealth legislation enacted, which contained an equivalent provision: the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth).⁴⁷ Section 36 of that Act provided:

“Proceedings how and when taken

36. (1) Except where provision is otherwise made in the relevant Act⁴⁸ concerned, proceedings for an offence against a provision of a relevant Act may be instituted only –

(a)by the Commission;

(b)by a person to whom the Commission has delegated the power to institute the proceedings;

(c)by a person authorized by a person referred to in paragraph (b) to institute the proceedings; or

(d)by another person authorized in writing by the Ministerial Council to institute the proceedings.

(2) A delegation for the purposes of paragraph (1)(b) or an authorization for the purposes of paragraph (1)(c) or (d) may relate to all offences against relevant Acts, to all offences against a particular relevant Act or particular relevant Acts, to a particular offence or particular offences against a relevant Act, to any offences against, or constituted by any contravention of, or failure to comply with, a particular provision or particular provisions of a relevant Act or to a class of offences against a relevant Act.”

60. Section 36(1) was amended, in 1981,⁴⁹ so that the opening words read “Except where provision is otherwise made in the relevant Act concerned, in any proceedings for an offence against a provision of a relevant Act, any information, charge, complaint or application may be laid or made only” by a person mentioned in (a), (b), (c) or (d).

61. As amended in 1981, s 35 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) provided:(a)by s 35(1) that an offence against a relevant Act that is not punishable by imprisonment, or is punishable by imprisonment for a period not exceeding 6 months, is, unless the contrary intention appears, punishable summarily; and(b)by s 35(2) that an offence against a relevant Act that is punishable by imprisonment for a period exceeding 6 months is, subject to sub-section (3), punishable on indictment. Sub-section 35(3) provided:

“(3) Where –

(a)proceedings for an offence against a relevant Act that is punishable by imprisonment for a period exceeding 6 months are brought in a court of summary jurisdiction; and

(b)the prosecutor requests the court to hear and determine the proceedings,

the offence is punishable summarily and the court shall hear and determine the proceedings.”

62. The amendments to the Crimes Act 1914, by which ss 4G (indictable offences), 4H (summary offices) and s 4J (indictable offences which may be dealt with summarily) were enacted, were made in 1987.⁵⁰

63. In 1988 the Bill which became the Corporations Act 1989, was presented in Parliament. Clause 1315 of the Corporations Bill 1988 provided as follows:

“Proceedings: how taken

1315. (1) Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made only by:

(a)the Commission;

(b)a Commission delegate; or

(c)another person authorised in writing by the Minister to institute the proceedings.

(2) A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.”⁵¹

64. The explanatory memorandum to the 1988 Bill said, in relation to clause 1315 (at [3929]):

“This provision is based on s 36 of the C&S Interpretation Act and will provide that unless the Bill provides otherwise, any information, charge, complaint or application in relation to proceedings for an offence against the Bill will only be able to be laid or made by the ASC or a delegate of the ASC, or any other person authorised by the Minister to institute proceedings.”⁵²

65. Amendments to clause 1315 were proposed. A supplementary explanatory memorandum said the following, about the amendments proposed to clause 1315:

“282. Clause 1315 requires the ASC, an ASC delegate or a person authorised by the Minister to have the sole duty to cause proceedings to be begun for offences against the Bill.

The amendments to cl. 1315 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.

The amendments will empower the ASC, an ASC delegate or a person authorised by the Minister to commence and carry on prosecutions, but without prejudice to the DPP’s statutory functions and powers. 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.”⁵³

66. Although the supplementary explanatory memorandum is not dated, the parties are agreed that the Court can act on the basis that it was in existence, and before Parliament,⁵⁴ prior to the following statement recorded in the Official Hansard on 28 September 1988:

“Clause 1315 (Proceedings: how taken).

Mr LIONEL BOWEN (Kingsford-Smith – Attorney-General) (11.49) – by leave – I move:

(230)Clause 1315, page 904, line 40, omit ‘only’.

(231)Clause 1315, page 905, at the end of the clause add the following subclause:

‘(3) Nothing in this section affects the operation of the Director or Public Prosecutions Act 1983.’.

Under clause 1315 an Australian Securities Commission (ASC) delegate or a person authorised by the Minister has the sole duty to cause proceedings to be commenced for offences against the Bill. The proposed amendments will preserve the statutory functions and powers of the Director of Public Prosecutions in relation to offences against Commonwealth laws. In particular, the amendments clarify that the powers of the Director of Public Prosecutions to take over, carry on or terminate a proceeding for commitment for trial or summary conviction and to give directions with respect to the prosecution of offences will not be prejudiced.

Amendments agreed to.

Clause, as amended, agreed to.”⁵⁵

67. Accordingly, as enacted in the Corporations Act 1989, s 1315 provided:

“Proceedings: how taken

1315. (1) Subject to this Act, in any proceedings for an offence against this Act, any information, charge, complaint or application may be laid or made by:

(a)the Commission;

(b)a Commission delegate; or

(c)another person authorised in writing by the Minister to institute the proceedings.

(2) A delegation for the purposes of paragraph (1)(b), or an authorisation for the purposes of paragraph (1)(c), may relate to all offences, or to specified offences, against this Act.

(3) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.”

68. There was no equivalent provision to s 35 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980, in the Corporations Act 1989, dealing with whether or when an offence could be dealt with on indictment or summarily.

69. Section 1315 was re-enacted, in almost identical terms (save for the reference to “ASIC” rather that “the Commission” in s 1315(1)(a)) when the Corporations Act 2001 (Cth) was enacted, and remains in that form today.

70. Having regard to the legislative history set out above it is clear that the purpose of s 1315, and its predecessors, was to confine the persons having capacity to cause proceedings for offences against the Corporations Act (and its earlier equivalents) to be commenced. That was patently the intention of the legislature when s 36 of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 was enacted, and remained the case when clause 1315 of the 1988 Bill was drafted. The only purpose of the amendments made to clause 1315 of the 1988 Bill – to remove the word “only” from clause 1315(1) and to add sub-clause 1315(3) – was to preserve the statutory functions and powers of the Director of Public Prosecutions. It nevertheless remained Parliament’s intention that the ASC (or its delegate or a person authorised by the Minister) have the sole duty to cause proceedings to be commenced for offences against what would become the Act (without prejudice to the powers of the Director of Public Prosecutions). It is clear that the omission of the word “only” from clause 1315(1) was in aid of the amendment to preserve the functions and powers of the Director of Public Prosecutions, and not for any other purpose.

Conclusion and orders

71. In my view, on the proper construction of the words used in s 1315*,* having regard to the context for and purpose of the provision, s 1315 clearly exhibits a contrary intention for the purpose of s 13 of the Crimes Act so as to preclude the private prosecution of an offence against the Corporations Act.

72. The conclusion reached by the learned District Court judge was correct.

73. In each matter, I would give the applicant leave to appeal, but dismiss the appeal, with costs.

Footnotes

1. See s 601ED(5), which provides that “[a] person must not operate in this jurisdiction a managed investment scheme that this section requires to be registered … unless the scheme is so registered”. Failure to comply with this subsection is an offence, by operation of s 1311(1) of the Corporations Act 2001. ↩

2. Section 118(3) of the District Court of Queensland Act 1967 (Qld) and McDonald v Queensland Police Service [2018] 2 Qd R 612. ↩

3. Underlining added. ↩

4. As the maximum penalty at the time the complaint was issued (May 2018) was 200 penalty units or imprisonment for 5 years or both (see s 1311 and schedule 3 to the Corporations Act, as in force at 12 April 2018 (compilation no. 87) and s 4G of the Crimes Act). Cf [19] and footnotes 5 and 6 of the reasons for judgment below, which appear to refer to the version of the Corporations Act in force in May 2019, when the District Court’s decision was made (which provided for a maximum penalty of 5years imprisonment (see ss 1311A, 1311E and schedule 3 to the Corporations Act in force in May 2019 (compilation no. 94)) or a fine of 600 penalty units (see s 1311B(1), (2) and (3) of the same version of the Corporations Act). That is the same position under the Act in force now. ↩

5. See, for example, Morgan v District Court of New South Wales (2017) 94 NSWLR 463 at [1], [8] and [23]. ↩

6. In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-266. ↩

7. Perry v Nash (1980) 32 ALR 177 at 179; see also Smart v Clarke (2014) 283 FLR 456 at [31]-[43]. ↩