The third and fourth issues - the primary judge erred in (a) substituting a reference to the repealed Corporations Law for the Corporations Act 2001 in the concluding qualification to Orders 8 and 12; and (b) in applying the definition of " deal " in s 9 of the Corporations Law to the word " dealing " in Charge 5
83 The primary judge dealt with this issue at [25] to [35] of the February judgment. At [25] he noted that the Corporations Law had been repealed and superseded by the Corporations Act 2001 (Cth) on 15 July 2001. At [26] he noted that ASIC had approached the matter on the footing that if conduct engaged in since 15 July 2001 was within the prohibiting words of one of the orders but was "permitted by" the Corporations Act as in force at the time that conduct was engaged in, then there was no contravention of the order. Significantly, at [27], his Honour noted that the appellant accepted that approach to the effect and construction of the concluding qualification in the relevant orders.
84 Notwithstanding the concessions of trial counsel for the appellant referred to in the preceding paragraph, which also accepted that Orders 8 and 12 were made in the context of the Corporations Law and that to the extent that the orders used expressions found in the statute, there was an intention to adopt the statutory definitions of those expressions, the appellant in this Court nevertheless challenged his Honour's approach in this regard in two respects. The first related to the meaning of the word "dealing" in Order 12. The second challenged his Honour's finding that the reference in the concluding qualification of Orders 8 and 12 to the Corporations Law should be read as a reference to the Corporations Act.
85 The effect of the common approach of the parties referred to by his Honour was stated by him as follows:
"28 The consequence, in my judgment, is that if particular conduct engaged in since 15 July 2001 is caught by the prohibiting words of the order (disregarding the concluding qualification) but is not prohibited by a provision of the Corporations Act for the time being in force, there is no breach of the order by reason of the conduct.
29 I say this because it seems to me that the words 'permitted by' must, in the context, mean 'not prohibited by', as distinct from 'positively and expressly allowed by'.
30 ASIC, on my understanding, accepts this construction; and I do not understand it to be disputed by the [appellant]."
86 The appellant then submitted that as the Corporations Law was repealed as and from 15 July 2001, it followed that, given the primary judge's approach to the concluding qualification at [28] of the February judgment, neither Orders 8 nor 12 prohibited anything.
87 The flaw in this submission, notwithstanding the concession made before the primary judge by the appellant that the reference in the concluding qualification to Orders 8 and 12 to the Corporations Law should be read as a reference to the Corporations Act, is the failure to acknowledge the effect of the provisions of s 1384B(1) of the Corporations Act which provides as follows:
"(1) For the avoidance of doubt, if:
(a) a proceeding was started in a court before the commencement; and
(b) the proceeding was a federal corporations proceeding that related to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied; and
(c) a decision was made or an order given in the proceeding before the commencement;
the decision or order continues to have effect after the commencement despite the provision of the old corporations legislation ceasing to have effect."
88 The expression "federal corporations proceeding" is defined in s 1382(1) as meaning a proceeding of one of the following kinds, namely and relevantly:
"(bb) a proceeding in relation to a matter to which a provision of the old corporations legislation of a State or Territory in this jurisdiction applied:
(i) in which the Commonwealth was seeking an injunction or a declaration; or
(ii) to which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, was a party;
(bc) any other proceeding in relation to a matter to which a provision of the old corporations legislation of a State in this jurisdiction applied that was in the exercise of federal jurisdiction."
89 The word "court" in s 1384B(1)(a) is defined by s 9 of the Corporations Act as having the meaning given to it by s 58AA which relevantly includes the Supreme Court of New South Wales: see s 58AA(1)(b). The declarations and orders made by Santow J were made in a proceeding which was started before the commencement of the Corporations Act and was a "federal corporations proceeding" within the meaning of s 1384B(1)(b) as defined in s 1382(1) as falling within sub-paragraph (bb) or (bc) of the definition of that expression. Further, the Supreme Court was exercising federal jurisdiction in any such proceedings: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 at 563 [7]; Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 at 44 [30].
90 It follows from the foregoing that notwithstanding the repeal of the Corporations Law, Orders 8 and 12 continued to have effect after 15 July 2001. However, the appellant submitted that although that was so in the sense that the orders remained in force, nevertheless they had no relevant effect in that they still had no work to do. In other words, the orders remained valid but in light of the agreed approach to the concluding qualification referred to by the primary judge at [28] of the February judgment, the prohibition otherwise contained within Orders 8 and 12 (disregarding the concluding qualification) ceased to have that effect once the Corporations Law was repealed. Thereafter, given the approach of the primary judge at [29] of his reasons, any conduct which would otherwise be in breach of the orders would be "not prohibited by" a statute which no longer existed.
91 In my view these submissions should be rejected for the following reasons. First, the object of s 1384B(1) was that Orders 8 and 12 continued "to have effect" according to their terms. This means that the prohibition contained in the orders remained effective so that it became irrelevant that the enjoined conduct was "not prohibited by" a statute that no longer existed. In other words, on the appellant's own construction of the concluding qualification, the effect of the repeal of the Corporations Law is that the qualification has no further work to do after that repeal.
92 Second, I do not, with respect, agree with his Honour's construction of the concluding qualification insofar as he construed the words "permitted by" as meaning "not prohibited by" as distinct from "positively and expressly allowed by". Although that construction was one adopted by ASIC, this was on the agreed basis that the reference in the concluding qualification to the Corporations Law should be read as a reference to the Corporations Act. In my view the concluding qualification "except as otherwise permitted by the Corporations Law" has the meaning rejected by the primary judge, namely, except as expressly permitted or allowed by that statute. If this be so, then the repeal of the Corporations Law, even accepting that the Corporations Act was not substituted therefor, does not render ineffective the prohibiting words of Orders 8 and 12. For the foregoing reasons, the appellant's submission with respect to the true construction of the concluding qualification to Orders 8 and 12 should be rejected.
93 As I have already noted, the foregoing submission of the appellant was part of a more general contention that his Honour was in error in applying Corporations Law terminology (including relevant definitions) to the same terminology used in Orders 8 and 12. The issue so raised concerned the primary judge's approach to the construction of those orders. I have already referred at [11] above to [7] and [8] of the February judgment in which his Honour, in my view correctly, observed that Orders 8 and 12, in effect, reflected the terminology, relevantly, of Declarations 3 and 7. He then concluded:
"9 It is thus clear (and I did not understand either party to dispute) that the several restraining orders are to be construed in the light of the preceding declarations and that the references in the restraining orders to acts and activities of a kind with which provisions of the Corporations Law referred to in the declarations were relevant are to be construed in the light of those Corporations Law provisions as they existed on 4 October 2000 or at an earlier time relevant to the conduct of the [appellant]."
94 After referring (at [11]) to Order 8 being relevantly expressed in terms clearly traceable to s 77(1)(a) ("a business of advising other persons about securities") and s 77(1)(b) ("a business in the course of which the person publishes security reports") of the Corporations Law, his Honour noted that these descriptions constituted the definition of the expression "investment advice business" which was relevant to s 781(a) on which Order 8 was based. He then referred to the definition in s 9 of the term "securities report" and the definition of "securities" in s 92, concluding at [12] that when
"read in the light of the obviously envisaged statutory provisions, Order 8 enjoined the 'undertaking, directly or indirectly' of a business of 'advising other persons about securities' (as defined by s 92) or of 'publishing analyses or reports about securities' (as defined by s 92) or of engaging in both those activities".
95 At [20] his Honour found that Order 12, which restrained the appellant from "undertaking … the business of dealing in securities", was based on a combination of ss 780(1) and 93(1) of the Corporations Law and the s 9 definition of "deal" as it existed as at 4 October 2000. Section 93(1) provided that a "securities business" was a "business of dealing in securities". His Honour then set out the s 9 definition of "deal" as it related to securities and to which I have relevantly referred at [10] above.
96 Accordingly, at [23] the primary judge determined that Order 12 must be approached on the basis that it prohibited conduct of the kind that s 780(1) of the Corporations Law prohibited on 4 October 2000.
97 It was submitted that had it been intended that the word "dealing" in Order 12 should incorporate the definition of "deal" as it related to securities in s 9 of the Corporations Law, then the terms of the order should have and would have made that clear. It was submitted that the word should be given its ordinary meaning, being the buying and selling of securities, and not its extended statutory meaning.
98 His Honour's approach to the construction of the orders was, as he noted at [10], consistent with that taken by this Court in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58, where it was held (at 71 [36]) by Hodgson JA, with whom Santow JA and myself relevantly agreed, that
"[i]n considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law".
99 In so holding, the Court applied the principles adumbrated by Campbell J, as his Honour then was, in Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 at 578 [55] and, relevantly to the present case, at 579 [57] where his Honour said:
"In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account."
100 In the present case, apart from the fact that the orders made by Santow J were consent orders, there was no evidence before the primary judge as to the circumstances pursuant to which those orders were made. However, in my view it is sufficient to read the declarations and orders made by Santow J as a whole to appreciate that his Honour's orders were made in the context of the preceding declarations. The primary judge approached the construction of the orders in this manner and in my view he was correct in so doing. The appellant's submission that Order 12 should be construed as if the expression "the business of dealing in securities" was divorced from the expression "securities business" in s 780(1)(a) which is defined in s 93(1) as the business "of dealing in securities" cannot be sustained. Accordingly, the appellant's challenge to his Honour's construction of Order 12 and his adoption of the extended statutory meaning of the word "deal" should be rejected.