ML v Australian Securities and Investments Commission

Jurisdiction 3ML relies upon the inherent jurisdiction of the Court to protect the criminal jurisdiction of the State and, to the extent not otherwise included in the foregoing, s 23 of the Supreme Court Act 1970, which grants to the Court all jurisdiction that is "necessary for the administration of justice in New South Wales". 4The existence and functioning of the Court, as a superior court of record with supervisory and inherent jurisdiction in and for the State of New South Wales, is guaranteed or required by the Constitution: see Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531. 5The jurisdiction of this Court includes every power necessary to enable it to act effectively within the jurisdiction conferred on it and includes the supervision and protection of proceedings in inferior courts and tribunals: Herron v McGregor (1986) 6 NSWLR 246 at 250, per McHugh JA, with whom Street CJ and Priestley JA agreed. The Court, in Herron, described as "beyond controversy" the right of a civil court to stay proceedings on the ground that they are an abuse of its process. 6In these proceedings, it is uncontroversial that the Court generally has the jurisdiction to stay the proceedings of a tribunal to protect the criminal jurisdiction of the Court or of another court in the State. Nevertheless, ASIC submits that the Court does not have "jurisdiction to determine" the plaintiff's application and that, accordingly, the summons should be struck out. I take that submission to mean that the Court does not have jurisdiction to grant or issue an order of the kind sought, rather than jurisdiction to determine the application. 7The jurisdictional limitation upon which ASIC relies derives from a combination of s 1337B(3) of the Corporations Act 2001 (Cth) and s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (hereinafter, "ADJR Act"). 8ASIC's submission is that since the summons does not invoke the ADJR Act and does not fall within the exception in s 1337B(3) of the Corporations Act, the Supreme Court, by operation of s 9 of the ADJR Act, is denied jurisdiction in relation to the application. 9It is necessary to recite the terms of s 9 of the ADJR Act and s 1337B of the Corporations Act, each of which is in the following terms: ADJR Act "9. Limitation of jurisdiction of State courts (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review: (a) a decision to which this section applies that is made after the commencement of this Act; (b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies; (c) a failure to make a decision to which this section applies; or (d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power. Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001. (2) In this section: 'decision to which this section applies' means: (a) a decision that is a decision to which this Act applies; or (b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1. 'review' means review by way of: (a) the grant of an injunction; (b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order. (4) This section does not affect: (b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976 ; or (c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act." Corporations Act "1337B Jurisdiction of Federal Court and State and Territory Supreme Courts (1) Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations legislation. (2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of: (a) each State; and (b) the Capital Territory; and (c) the Northern Territory; with respect to civil matters arising under the Corporations legislation. (3) Despite section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of: (a) each State; and (b) the Capital Territory; and (c) the Northern Territory; with respect to matters arising under that Act involving or related to decisions made, or proposed or required to be made, under the Corporations legislation by a Commonwealth authority or an officer of the Commonwealth. Note 1: The Federal Court also has jurisdiction with respect to these matters under that Act. Note 2: A Supreme Court may be required to transfer a proceeding with respect to such a matter to the Federal Court: see subsection 1337H(3). (4) Subsection (3) applies to a decision made, or proposed or required to be made: (a) whether or not in the exercise of a discretion; and (b) whether before or after that subsection commences. (5) The jurisdiction conferred on a Supreme Court by subsection (2) or (3) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject. (6) This section has effect subject to section 1337D." 10ASIC's submission is that jurisdiction in respect to civil matters arising under the corporations legislations is conferred, relevantly, on the Federal Court and, because s 9 of the ADJR Act excludes the jurisdiction of, inter alia, the Supreme Court to review a decision to which the ADJR Act applies or a decision of an administrative character set out in schedule 1 of the ADJR Act, the jurisdiction of the Supreme Court to issue the stay is excluded. 11Before dealing with the submission, it is necessary to recite that ML applied to the Board for it to stay the hearing of the application under s 1292(2)(d) of the Corporations Act pending the determination of criminal proceedings arising from the same facts. On 21 January 2013, the Board, constituted by the Chairperson, refused the application. 12ASIC's submission essentially rests upon the proposition that the summons, being an application for a stay of the proceedings before the Board, is a proceeding caught by the terms of s 9 of the ADJR Act, which excludes the jurisdiction of this Court. 13In well-argued and well-researched submissions, counsel for ASIC submit that the terms of paragraphs (a), (b), (c) or (d) of s 9(1) of the ADJR Act apply to the decision of the Board of 21 January 2013. As a consequence, the preamble in s 9(1) of the ADJR Act ousts the jurisdiction of this Court. 14During the course of this submission, the Court, as presently constituted, raised with counsel that a difficulty with such a submission is that it may raise the constitutional question as to whether the Commonwealth has the power to oust the jurisdiction of this Court to protect or to supervise the exercise of judicial power by the State or its courts. Neither party sought to agitate such a question. It is unnecessary for the Court to deal with it. 15The construction for which ASIC contends pays insufficient regard to the context in which s 9 appears. As is trite, the ADJR Act deals with judicial review of administrative actions of the Commonwealth and its officers and imposes on decision makers certain requirements, such as to provide reasons when requested. Section 9 should be read consistently with the harmonious goals for the legislation as a whole: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. Section 9 of the ADJR Act must be read, inter alia, with ss 5, 6, 7 and 8 of the ADJR Act. 16I shall assume that the decision of the Board Chairperson of 21 January 2013 is a decision to which the ADJR Act applies. In those circumstances s 5 prescribes a basis upon which a review of such a decision may be requested. Section 6 applies to the review of conduct related to the making of decisions. Section 7 of the ADJR Act deals with applications in respect of failures to make decisions. Lastly, s 8 of the ADJR Act grants jurisdiction to the Federal Court and the Federal Magistrates Court to hear and determine applications. 17As a consequence of the foregoing, either by virtue of ss 5, 6 or 7 of the ADJR Act (or in some cases more than one of the foregoing) a person aggrieved by a decision of the kind described in the Act has the capacity to apply to the Federal Court or Federal Magistrates Court for an order of review on one of more grounds. Those grounds are, however described, not uncommon or unusual grounds of judicial review and include: denial of natural justice; failure to comply with the proper procedures to be observed; absence of jurisdiction to make the decision; excess of jurisdiction; an improper exercise of power conferred; error of law, whether or not on the record; fraud that affected or induced the making of the decision; absence of evidence justifying the making of the decision; and that the decision is otherwise contrary to law. 18In those circumstances s 9 of the ADJR Act excludes the jurisdiction of the Court "to review" decisions that are otherwise capable of being reviewed under ss 5, 6 or 7 of the ADJR Act. In that sense, s 9 of the ADJR Act is the corollary to the operation of s 8 of that Act, making the jurisdiction of the Federal Court and Federal Magistrates Court exclusive of the jurisdiction of the courts of the States. 19ML's application to the Court is not an application to review the decision of the Board or its Chairperson. It is an application independent of the decision of the Board of 21 January 2013. It is an application for the Court to exercise its jurisdiction to protect the criminal justice system in the State by ensuring that nothing is done to prejudice a fair trial of criminal charges in the State. 20In that circumstance, the summons does not seek to review the decision of the Board. Success in the summons does not depend upon error of the Board, whether administrative error, error of law, error of procedure, error of jurisdiction, error in the exercise of discretion or, if there were any, another class of error. Nor does success in the summons depend upon the decision of the Chairperson being wrong. The jurisdiction exercised by the Court is not the jurisdiction "to review" (as described in ss 5, 6 and 7 of the ADJR Act) and s 9 of the ADJR Act does not exclude the jurisdiction that ML has invoked. 21As earlier stated, neither party sought to agitate any constitutional question. To the extent that the foregoing argument raised whether the Commonwealth had power to qualify or restrict the right of a court of the State to take steps to ensure the conduct of a fair trial before it (or in the case of the Supreme Court before an inferior court), each party eschewed any such proposition and each submitted that it was unnecessary for the Court to deal with the issue. Because of the conclusion reached as to the construction of the ADJR Act and its effect on the jurisdiction of the Court in these proceedings, it is, as submitted, unnecessary to deal with the issue. 22Further, neither party submitted, nor sought to rely upon a proposition, that a State court could not restrain an exercise of power required by a Commonwealth statute. As a consequence, I do not deal with the issue. No notices under s 78B of the Judiciary Act have been served and, as will become clear when dealing with the exercise of discretion, it is unnecessary to reach a conclusion on any such issue and, in the absence of submissions, inappropriate so to do.

Exercise of discretion 23Three of the more common occasions on which the Court is requested to exercise jurisdiction in relation to the interchange between civil and criminal proceedings concerning the same or similar subject matter are: when the Court is seized of a civil proceeding involving criminal allegations that are, or may shortly be, before the Court in criminal proceedings and the Court is asked to stay its hand in the civil proceedings; when, as in the present situation, the Court is asked to stay civil proceedings in another court or tribunal in order to safeguard the fairness of criminal proceedings that are, or may shortly be, before the courts; and where the Court is requested to stay criminal proceedings because of an unfair prejudice to an accused arising from the conduct of prior (or current) civil proceedings. 24The underlying rationale for each such exercise is the same, but the discretion involves different criteria and different weight being given to the various criteria. In each case the underlying principle must be that criminal proceedings should be conducted fairly and the accused not subject to unfair prejudice associated with collateral proceedings. 25The jurisdiction to grant a stay of civil proceedings, including disciplinary proceedings, is undoubted (leaving aside the submissions with which the Court has already dealt) and provides the Court with jurisdiction to stay disciplinary proceedings, relevantly, where criminal charges are before the Court or are pending, namely, "on the cards". As already indicated, I am satisfied that criminal charges are on the cards. 26The jurisdiction to grant a stay of the kind here sought was, as earlier stated, discussed by the Court of Appeal in Herron. In Herron, McHugh JA (with whom Street CJ and Priestley JA agreed) referred, as earlier stated, to the power of a civil court to stay proceedings that are an abuse and went on to cite, with approval, Connelly v Director of Public Prosecutions [1964] AC 1254 to the effect that the powers of a criminal court included "a power to safeguard an accused person from oppression or prejudice". His Honour McHugh JA expressed the view that the power of a superior court under its supervisory jurisdiction to stay criminal as well as civil proceedings in an inferior court on the ground that they are an abuse of process was recognised in a number of cases and, in his Honour's view, was clear on the authorities. 27The rule arguably derives from the "felonious tort rule", a misnamed principle arising from the proposition summarised in Smith v Selwyn [1914] 3 KB 98 to the effect that: "A plaintiff against whom a felony has been committed by the defendant cannot make the felony the foundation of a cause of action unless the defendant has been prosecuted or a reasonable excuse has been shewn for his not having been prosecuted." 28In Ceasar v Sommer [1980] 2 NSWLR 929, Roden J said of the rule in Smith v Selwyn: "The origin of the rule in Smith v Selwyn has been the subject of a deal of consideration by learned writers, and much of this was canvassed by Pape J in the Wonder Heat case. Whether the rule was based upon 'the public policy of a bygone age when no police existed', or whether the origin of the rule lay in the fact that the property of a convicted felon was forfeited to the Crown, its foundation has clearly disappeared, if indeed it ever existed, in New South Wales, despite our retention, for no discernible reason, of a totally artificial version of the archaic distinction between felonies and misdemeanours. What remains is the immutable principle that the common law will have regard to the requirements of public policy." 29His Honour Wootten J in McMahon v Gould (1982) 7 ACLR 202 at 205, after reciting the foregoing passage, expressed his great sympathy with the view and expressed his "trust that the rule will stay buried, so that its ghost does not again rise to rattle medieval chains (albeit refurbished in Victorian times) in modern litigation". Nevertheless Wootten J in McMahon made clear that there was a distinction between the "felonious tort rule" and the jurisdiction of a court to stay proceedings in the interests of justice, which was a rule that existed "beside and independently of" the rule in Smith v Selwyn. 30In McMahon v Gould at 206-7, Wootten J expressed the view that the decision in that matter would be approached along the following guidelines: "(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court (Rochfort v John Fairfax & Sons Ltd at 19); (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds (ibid); (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson v Bhetcha at 905); (d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding; (e) The court's task is one of 'the balancing of justice between the parties' (Jefferson Ltd v Bhetcha at 904), taking account of all relevant factors (ibid at 905); (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid at 905); (g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding (ibid at 904). I return to this subject below; (h) However, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid at 904-5); (i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings (ibid at 905); (j) In this regard factors which may be relevant include: (i) the possibility of publicity that might reach and influence jurors in the civil proceedings (ibid at 905); (ii) the proximity of the criminal hearing (ibid at 905); (iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid at 905); (iv) the burden on the defendant of preparing for both sets of proceedings concurrently (Beecee Group v Barton); (v) whether the defendant has already disclosed his defence to the allegations (Caesar v Sommer at 932; Re Saltergate Insurance Co Ltd at 736); (vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at 735-6); (k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff; (l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed Beecee Group v Barton)." 31The considerations to which Wootten J referred in McMahon v Gould, above, were not intended to be either prescriptive or exhaustive. Nevertheless, they form a convenient commencement point for the exercise of the discretion. It is, in those circumstances, essential to emphasise that Wootten J stressed that each case must be judged on its own merits. 32Nevertheless those guidelines are applicable by analogy to proceedings of a disciplinary nature, even though addressed to ordinary civil proceedings: see Bannister v Director-General Department of Corrective Services [2002] QSC 469; (2002) A Crim R 453; Elliot v Australian Prudential Regulation Authority [2004] FCA 586; Legal Services Commissioner v Brereton (Legal Practice) [2008] VCAT 1341; Sage v Australian Securities Investments Commission [2005] FCA 1043. 33As earlier stated, the criteria set out by Wootten J in McMahon v Gould are neither prescriptive nor exhaustive. Further, it is important that, in considering the exercise of discretion that is available to a court, sufficient weight be given to the practical legal prejudice to an accused. That practical legal prejudice relates to the privilege against self-incrimination and the cost of multiple legal proceedings on the same or similar issue: see Re AWB Ltd (No 1) [2008] VSC 473; (2008) 21 VR 252 at 262-263. 34In Baker v Commissioner of the Australian Federal Police [2000] FCA 1339; (2000) 104 FCR 359, Gyles J, at [32] said: "[32] The applicants rely upon the decision of the High Court in Reid v Howard [1995] HCA 40; (1995) 184 CLR 1 to suggest that the line of authority commencing with McMahon v Gould (supra) has given insufficient weight to, and has not fully appreciated the extent of, the privilege against self-incrimination. There is no doubt that Reid v Howard does re-affirm the importance of the privilege against self-incrimination, and does not give any encouragement to think that any devaluation of the principle which may apply in the United Kingdom will be applied in Australia." (See also Re AWB Ltd (No 1) at [30]; Elliot v Australian Prudential Regulation Authority at [16]-[19].) 35In the current proceedings, the prejudice to be suffered by ML, if the Board proceedings were to continue, centres on the conflict in accounts of ML and Mr Louttit. ML, which is a matter already disclosed, has defended the allegations on the basis that there was agreement between him and Mr Louttit in which Mr Louttit authorised the payments of the amounts that are at the centre of the allegations. Mr Louttit denies any such agreement and this conflict is at the centre of the issues to be agitated before the Board and, to the extent that proceedings are instituted, in criminal proceedings. 36There are two fundamental aspects to this conflict upon which ML relies. Firstly there is a conflict between the two people as to the content of a meeting on 28 October 2010. Secondly, there is, what is described as, an "oath on oath" conflict between the two. 37As a consequence of the foregoing, ML submits that the conflict in the accounts as evidenced in the Board proceedings will therefore likely become relevant in the criminal trial. Secondly, ML, in those Board proceedings, will have to disclose not only matters affecting his own defence but matters affecting the credibility of Mr Louttit in advance of any criminal proceedings. 38ML submits that the foregoing circumstances involve an abrogation of the right to silence that is central to the criminal process and also gives rise to a real risk that Mr Louttit will have an opportunity to modify or to falsify his evidence on matters of central importance in the criminal proceedings. As is evident from the foregoing, at least in part, ML has disclosed his defence. 39As was expounded by Goldberg J in Sage v Australian Securities Investments Commission, supra, and is presently relevant, proceedings of a disciplinary kind are not ordinarily proceedings where an applicant can be compelled to give evidence or to participate in the proceedings. The giving of evidence and the level of his participation in the proceedings are matters wholly for ML. 40In the proceedings before Goldberg J, there were to be concurrent criminal and civil proceedings. In the issue that is before the Court presently, no indictment has been presented and there are no current criminal proceedings on foot. Nevertheless, as earlier stated, I accept that criminal proceedings are "on the cards". 41Other than expense, which is an inevitable result in circumstances where there is a licensing system for the registration of liquidators and disciplinary proceedings are required in order to remove a person from the approved list, there is no oppression in the preparation of two sets of proceedings. I do not understand that the criminal proceedings will be conducted in such a way that they will overlap with the preparation that would be necessary for the disciplinary proceedings. 42Further, as already stated, ML is not compelled or obliged to answer questions before the Board and his participation, and the level of participation, are wholly matters for him: compare Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188. 43As Gibbs CJ (with whom Mason and Murphy JJ agreed) said in Hammond: "To succeed in obtaining an injunction on that ground [being contempt], the plaintiff must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough." 44As to the abrogation of the right to silence, both the Court of Criminal Appeal and the Court of Appeal have recently dealt with such issues, albeit in a slightly different context. In SD v New South Wales Crime Commission [2013] NSWCA 48, the Court of Appeal dealt with the capacity of the New South Wales Crime Commission to require answers to questions the effect of which would be to abrogate an accused's right to silence. The judgment of the Court of Appeal referred to the judgment of the Court of Criminal Appeal in R v Seller; R v McCarthy [2013] NSWCCA 42, delivered 1 March 2013. In each judgment (and in R v CB; MP v R [2011] NSWCCA 264), as explained in Seller, the compulsory abrogation of the right to silence was discussed at length. 45In Seller, Bathurst CJ (with whom McClellan CJ at CL and I relevantly agreed) stated that the fact, if it be the fact, that the right to silence is to be abrogated is not, of itself, a basis upon which a stay will be granted. The question must always be whether the process being employed will be "inconsistent with the recognised purpose of the administration of criminal justice and so [constitute] an abuse of process": Seller at [110]. 46The Chief Justice in Seller further commented that: "... a stay will only be granted in an extreme case and the fundamental defect which warrants a stay must be such that there is nothing a trial judge can do to relieve against its unfair consequences..." (Ibid) 47The foregoing quotation related to a stay of criminal proceedings, not a stay of civil proceedings. Nevertheless the statement of principle remains the same. 48I draw no distinction between the approach to be taken if proceedings were on foot or were on the cards, although I adopt, with respect, the comment of Weinberg J, when dealing with a similar application relating to a domestic tribunal, in which his Honour said: "It is now trite law that even where criminal charges have been brought, and there are concurrent civil proceedings on foot, there is no automatic right on the part of a defendant to have civil proceedings stayed pending the resolution of those charges: McMahon v Gould (1982) 1 ACLC 98; Cameron's Unit Services Pty Ltd v Whelpton & Associates Pty Ltd (1984) 59 ALR 754 and Philippine Airlines v Goldair (Aust) Pty Ltd [1990] VR 385. The position of a defendant who has not yet been charged with any criminal offence cannot be stronger than that of a defendant who has been so charged." Johnston v Cameron [2002] FCA 948 at [140]. 49These proceedings are not strictly "civil proceedings". They are disciplinary proceedings conducted under statutory or regulatory scheme. 50There is a public interest in ensuring that liquidators are not available to the public if they do not meet the requirements of probity and proper conduct that are required. ASIC is charged with the prosecution of such disciplinary proceedings. 51ASIC (as the plaintiff in those disciplinary proceedings) is entitled to have its action tried in the ordinary course of the procedure and business of the Board: Australian Securities Commission v Kavanagh (1993) 12 ACSR 69, per Hayne J, and the cases cited therein. As Hayne J stated, the task is one of balancing justice between the parties, taking account of all relevant factors. 52The balancing exercise must take into account the public interest to which reference has already been made. It must also take into account the right of an accused to silence. 53The abrogation of the right to silence is qualified, in these proceedings, by the fact that the disciplinary proceedings do not require ML to give evidence or to state his defence. Further, at least in part, his evidence (or his version of the facts) has already been given. 54The fact, if it be the fact, that the evidence in a criminal prosecution, if one were to be commenced, and in the disciplinary proceedings, will depend on the reliability of ML on the one hand and Mr Louttit on the other, does not seem to take the matter much further. 55I doubt that, if Mr Louttit were found to be incredible before the Tribunal or gives evidence before the Board, he could, at trial, significantly alter the effect of that evidence in a way which would not show him to be totally unreliable or mendacious. On one view, if the issues are, as is stated, "oath on oath", then ML is in the commendable position that he will have a full dress rehearsal for the cross-examination of Mr Louttit, if criminal proceedings eventuate. There was a time when such a dress rehearsal occurred during committal proceedings, although nowadays committals generally are done on the paper. 56ML complains about the effect on a jury of a finding of the Board. A jury would be directed in relation to material that was not before the Court in any criminal proceeding. Further, such a prejudice, if it were a prejudice, can be overcome by non-publication orders or orders relating to the publication of material that would identify ML. No such order has been sought of the Board. No such order is sought from this Court to protect any subsequent criminal proceedings. 57Further, and as a last resort, if, notwithstanding all other steps being taken, ML's criminal proceedings were to be unfairly prejudiced by the conduct of the disciplinary proceedings, a trial judge will always have the capacity to stay the criminal trial, either temporarily or permanently, as discretion would dictate. 58Moreover, any evidence that is obtained during the course of the disciplinary proceedings will be the subject of tests in a criminal trial, the effect of which would be to preclude any evidence that is unfairly prejudicial to the accused (see s 137 of the Evidence Act 1995). 59Lastly, I should comment on some judgments to which reference has been made relating to the attitude of courts to declarations as to criminal conduct: see Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd [2007] FCA 1868; (2007) 164 FCR 487; and more recently Australian Securities & Investments Commission in the matter of Northwest Resources Limited v Craigside Company Limited BVI company number 74124 named in the Schedule [2013] FCA 201. In each case the issue is fundamentally different from that which is before the Court in these proceedings. Those cases related to declarations of criminal conduct sought in civil proceedings about which there are significantly different discretionary issues. 60For all of the above reasons, I do not consider that, as an exercise of discretion, a stay ought issue to prevent the Board from proceeding with the disciplinary matter. 61While it has not been relevant to the consideration earlier mentioned, it should be borne in mind that the Board may determine that, even if there were agreement between Mr Louttit and ML as to the payment of these amounts into ML's accounts, that fact would be sufficient for it to take disciplinary steps in relation to ML. It is unnecessary and inappropriate for the Court to discuss such an issue further. 62The Court makes the following orders: (1)Summons and proceedings dismissed; (2)The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2013