Palmer v Australian Securities and Investments Commission

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from transcript)

1. Thus far in this proceeding I have determined seven interlocutory applications, two of which are published as judgments: Palmer v Australian Securities and Investments Commission [2025] FCA 1025 (a pleadings dispute) (Palmer 1) and Palmer v Australian Securities and Investments Commission (No 2) [2025] FCA 1425 (a jurisdiction dispute). Lurking beneath the multitude of case management hearings and satellite disputes is the interlocutory application of the Australian Securities and Investments Commission (ASIC) dated 28 February 2025, which seeks that the proceeding be stayed or dismissed as an abuse of process. The core point is that the relief Mr Palmer seeks will or may fragment a criminal proceeding that is pending against Mr Palmer in the Magistrates' Court of Queensland. The hearing of the interlocutory application was adjourned pending resolution of other disputes between the parties and an appeal from orders made by Button J in a related proceeding.
2. On 6 February 2020, an ASIC officer preferred a complaint against Mr Palmer, alleging four counts of dishonesty contrary to s 408C(1)(d) of the Criminal Code Act 1899 (Qld) and s 184(2)(a) of the Corporations Act 2001 (Cth). This is known as the Cosmo prosecution as it concerns Cosmo Developments Pty Ltd (and or the Palmer United Party and others) as the alleged beneficiary of the conduct. The core facts alleged are very old. They concern transactions between August and September 2013. The offences charged are indictable. To date a committal hearing has not occurred. Why is explained in very great detail in an affidavit made by Tracey Robinson who is one of Mr Palmer's solicitors in the Cosmo prosecution. For present purposes it is unnecessary to set out the chronology of (mostly) delay and satellite litigation in that matter.
3. There is a related prosecution of Mr Palmer in the Magistrates' Court of Queensland which is being managed with the Cosmo prosecution. It concerns separate allegations of misconduct by Mr Palmer concerning Palmer Leisure Coolum Pty Ltd (PLC prosecution). It too was commenced by an officer of ASIC. Each prosecution is being conducted by the Commonwealth Director of Public Prosecutions (CDPP).
4. It need hardly be said that Mr Palmer vigorously denies the conduct that is alleged in each prosecution.
5. In this Court, Mr Palmer has commenced two proceedings in which he seeks similar relief in respect of each prosecution. His central complaint is that he was unlawfully compelled to attend compulsory examinations pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) because, contrary to s 49(1) , relevant officers of ASIC had formed the view before each examination that he was a person who may have committed an offence against the Corporations Act and ought be prosecuted for the offence. Relatedly, he contends in this proceeding that ASIC deployed compulsive investigatory powers for an improper purpose. If either is correct he seeks declaratory relief that ASIC purported to exercise the compulsive power at s 19 of the ASIC Act to examine him and that, inter alia, the transcript of the examination was unlawfully obtained. He seeks consequential relief requiring ASIC by its proper officer to make and file an affidavit deposing to whom the transcripts were delivered together with delivery up orders. For some while the CDPP was named as the second respondent. The CDPP was removed as a party by orders made on 7 November 2025.
6. In the PLC prosecution, Button J made orders on 8 October 2024 that the proceeding be stayed pending the hearing and final determination, including any appeals, of the prosecutions brought against Mr Palmer (and Palmer Leisure Coolum Pty Ltd): Palmer v Australian Securities and Investments Commission [2024] FCA 1167 (Palmer PJ). The Full Court dismissed an appeal from those orders on 24 October 2025: Palmer v Australian Securities and Investments Commission [2025] FCAFC 151; (2025) 312 FCR 151, Beach, Banks-Smith and Owens JJ (Palmer FC).
7. In Palmer PJ Button J observed at [176] that it was common ground between the parties that a challenge may be made in the PLC prosecution to the admissibility of evidence based on the contention that the s 19 examination was unlawful. Accordingly, her Honour concluded at [177] that the central question in the proceeding before her was one that will or may arise in the criminal prosecution with the consequent risk of fragmenting the criminal process. As such, the proceeding was an abuse of process warranting a temporary stay: [191] - [194]. Of course, by operation of s 68(3) of the ASIC Act the transcripts themselves are not admissible in either prosecution as Mr Palmer continuously invoked his privilege against self-incrimination. But that is not the point as the transcripts are said to have informed investigative steps and the formulation of the complaint.
8. The Full Court endorsed the reasoning of Button J, proceeding sequentially as follows. Although most cases concerning fragmentation of the criminal process involve direct collateral attack, that is not a necessary element: "civil proceedings can intersect with criminal proceedings in a variety of ways. Not all involve the direct impact on criminal proceedings...": [110]. See also [117] - [119]. Fragmentation is to be considered in a practical manner. The reasoning of Gibbs ACJ in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 25 - 26, does not limit the fragmentation principle to cases of direct interference in the course of a criminal proceeding: [161]-[173]. Rather, as subsequently observed in Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [23], it is sufficient if the civil relief touches the conduct of the criminal proceeding: [174] - [175]. Where that is so, the general principle is that "the power to make declaratory orders should be exercised sparingly": [176]. It did not matter that the relief sought by the applicant's was "separate and distinct" from the matters raised in the PLC prosecution because the relief sought: "cannot be considered in a vacuum, but must be viewed in light of the pleading of the matters said to warrant that relief", which is a question of substance rather than form: [193]. It mattered not that the applicants did not seek declarations that evidence drawn from the s 19 examinations was inadmissible in the PLC prosecution. Rather, because the lawfulness of the examinations was a central issue in the civil proceeding, that question may arise as an admissibility objection in the prosecution which is a sufficient nexus: [211] - [219]. Within that part of the analysis, there is one passage of present importance at [219]:

There is little doubt that in the criminal proceedings the applicants can fully argue out the point as to the unlawfulness of the s 19 examination and to obtain any relief that is appropriate preventing further use of the fruits of the s 19 examination in the criminal proceedings, whether on any admissibility questions or otherwise. Indeed, if it is appropriate, relief could be obtained concerning preventing any derivative use more generally and the return of the transcripts.

1. From [226], the Court addressed whether exceptional circumstances must be established to agitate a related question in a civil court. Although Button J reasoned that exceptional circumstances or compelling reasons must be identified to have the related point determined in a civil proceeding, she did not err in her overall finding that the proceeding involved fragmentation, despite that the Full Court did not endorse a conclusion of exceptional circumstances as a necessary element: [243] - [246]. It is sufficient to conclude that there are no compelling reasons to justify a civil determination of the question: [227], [244] - [245]. Finally, the Full Court rejected the submission that Button J erred in either misunderstanding or misapplying the principle that a moving party has a right to have a claim determined if regularly commenced in a court of competent jurisdiction, absent exceptional circumstances: Rochfort v John Fairfax & Son Pty Ltd [1972] 1 NSWLR 16. That principle, whilst relevant to the discretion to grant a stay, is to be balanced with the principle against fragmentation: [255] - [257]. The fragmentation principle ordinarily operates as an exception to the regular determination principle: [258].
2. The reference to Gedeon by the Full Court should be emphasised where Gummow, Kirby, Heydon, Crennan and Kiefel JJ stated at [23]:

With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.

1. Drawing on this analysis, which ASIC submits is materially indistinguishable, the submission is to the effect that the issues which arise for determination in this proceeding will inevitably undermine, touch upon and/or fragment the Cosmo prosecution as "foreseeable and indeed inevitable consequences of this proceeding being heard and determined". It need not be shown that the relief sought in this proceeding seeks to impugn the Cosmo prosecution. The central point is that Mr Palmer seeks to have examined and determined the lawfulness of the s 19 examinations conducted in the course of investigations that ultimately resulted in the commencement of the prosecution. Mr Palmer was examined on various dates in October and November 2017 and in January 2018. The examinations concerned the conduct of Mr Palmer that is alleged to have been dishonest in the Cosmo prosecution. Thus, the submission concludes that there is an overlap of factual and legal questions.
2. That overlap with the PLC prosecution is helpfully summarised by Gareth Kerr in tabular form in his affidavit of 23 January 2026, which I accept as accurate. In summary, that ASIC caused each prosecution to be commenced, following from a purported exercise of statutory power to commence an investigation, acted ultra vires in requiring Mr Palmer to attend a compulsory examination and thereby unlawfully obtained evidence that has informed the prosecution (including misuse of the transcripts to formulate the complaints) and that the compulsory examinations breached a companion principle of criminal law this being that the compulsive powers may only be used for the sole purpose of investigating whether relevant offences have been committed and not for any other purpose.
3. Dealing next with the overlap of issues in this proceeding with the Cosmo prosecution requires an understanding of some of the pleaded facts, which I summarised in Palmer 1 and from which the following is taken. Mr Palmer contends in this proceeding that Mineralogy Pty Ltd (a corporation he controls) in 2006 entered into agreements with a number of corporations (pleaded as the CITIC parties) to exploit certain mining tenements in Western Australia. His case is that by 31 March 2006 agreement was reached with CITIC for the acquisition by it of limited forms of interest in the mining tenements. Many other related agreements were entered into. The intended commercial enterprise was not financially successful. Disputes arose between the parties.
4. Mr Palmer pleads that by no later than May 2010, CITIC unilaterally determined that it was dissatisfied with certain of the agreements and resolved to alter them. Later, CITIC determined that the entire venture with Mr Palmer's interests was unprofitable and it then put in place a strategy pleaded to be devised and implemented by members of the Fulcrum Group for the purpose of achieving a favourable alteration of the contractual terms. This included a strategy devised to seek to sterilise the value of the mining tenements so that CITIC and related parties could ultimately acquire the tenement rights from Mineralogy. This is pleaded as the Fulcrum Purposes.
5. A component of the strategy involved the making of serious allegations of misconduct by Mr Palmer and Mineralogy amounting to fraud, theft, breach of director duties and taxation fraud. The allegations were made to officers of ASIC, amongst others. The conduct relied on is pleaded in considerable detail and is asserted over a prolonged period, to the end point that it may be inferred that the CITIC parties instigated or procured a criminal prosecution against Mr Palmer not to have some bona fide wrong sanctioned or loss recovered, but to apply commercial pressure to Mineralogy and Mr Palmer in furtherance of the Fulcrum Purposes, of which ASIC was aware. This, on Mr Palmer's case, resulted in commencement of the Cosmo prosecution.
6. This background founds Mr Palmer's two central contentions in this proceeding. First, that by no later than 18 March 2016, ASIC had obtained the evidence and had formed the view that Mr Palmer was a person within the purview of s 49(1) of the ASIC Act, with the consequence that by operation of s 49(4) he could not be compulsorily examined about the matters the subject of the CITIC complaints. Accordingly, the s 19 examinations were unlawful.
7. Secondly, the compulsory examinations breached a companion principle of criminal law. This contention commences with the fundamental principle that in the accusatorial system of criminal justice, the onus of proof beyond reasonable doubt rests on the prosecution. The companion principle is that an accused person cannot be required to testify as to the commission of the offence charged. There is then identified in the pleading a further companion principle that it:

[I]s, or ought to be held to be, that the decision to use compulsive investigative powers in relation to whether an offence has been committed, such as those in s 19 or s 49, of the ASIC Act, must be for the sole purpose of investigating whether such offence has been committed (and if it appears that it has, its prosecution) and not for any other or additional purpose or consideration (the sole purpose of investigating an offence principle).

1. On these bases Mr Palmer seeks relief flowing from acceptance of his case that the summons issued to him compelling him to attend his compulsory examination was unlawful, as was the examination itself and that the transcripts of the examination were unlawfully obtained.
2. What is clear from the evidence relied on by each party on the interlocutory application is the overlap of questions of fact and law for determination in this proceeding and the issues in the Cosmo prosecution. They at least include whether ASIC was instigated to procure the prosecution by the CITIC parties, whether officers of ASIC were aware of the Fulcrum Purposes and whether those purposes were taken into account in determining whether to investigate Mr Palmer and to initiate the prosecution. Further, the allegation that it may be inferred that ASIC used the transcripts of the examination to interview other witnesses, to gather evidence and to formulate the complaint. There is also evidence in the affidavit of Gareth Kerr, an associate of the legal firm representing ASIC in this proceeding, that in the committal proceeding, Mr Palmer has required the attendance of a number of witnesses for cross-examination in support of a foreshadowed argument that the investigation which led to the commencement of the prosecution was either improper or unlawful by reason of the contentions made in this proceeding. The detail of that strategy is set out in correspondence from Mr Palmer's criminal solicitors, Robinson Nielsen Legal, to the CDPP dated 14 July 2023.
3. Inter alia, it was stated that Mr Palmer will seek to establish an evidentiary basis to contend that the Cosmo prosecution should be permanently stayed as an abuse of process. The reasoning in support of that contention includes:

Mr Palmer will contend the prosecution is an abuse of process in that:

(a) there is an absence of any victim;

(b) there is an absence of any person who has suffered a financial detriment as a result of the conduct alleged;

(c) the "advantage" allegedly obtained by the conduct alleged was illusory, in that it was one that was enjoyed by one entity, which must have been accrued at the expense of another such entity, in circumstances where each of those entities is under the control of the one identity (ie, Mr Palmer);

(d) the plaintiff is being singled out for special treatment by the ASIC and the CDPP

1. The considerable overlap with the factual and legal issues in this proceeding cannot be doubted. Returning to Palmer FC the reasoning at [194] is directly relevant_:_

It is clear from the extracts of the statement of claim that we have set out earlier that the current proceedings emerge from the investigation and prosecution of the applicants. As we have set out, Part F focuses entirely on allegations regarding the use and disclosure of the transcript of the s 19 examination for the purpose of commencing the prosecutions, including formulating the charges and preparing a summary of facts. And those pleaded facts are the foundation for the relief sought, which has a close nexus with the criminal proceedings, which relief includes a declaration that the s 19 examination was unlawful, a matter which, it was common ground, may be raised by the applicants in objecting to the admissibility of evidence in the criminal proceedings.

1. I accept the submissions of Mr Holdenson KC for ASIC that the factual differences between the PLC prosecution and the present do not lead to a different outcome at the level of legal principle. The CDPP is no longer a party to this proceeding, but that does not alter the fact that Mr Palmer seeks relief that a basis for the investigation, the formulation of the charges and the prosecution stems from an anterior abuse of power. There is a distinct risk that finding facts in support of the declaratory relief sought by Mr Palmer will significantly overlap with matters that will, or will likely, be in issue in the Cosmo prosecution. More so, if the declaratory relief is granted.
2. Mr Palmer submits that there is a proper basis to distinguish the reasoning of the Full Court in Palmer FC. The Cosmo prosecution is a hypothetical, infected by substantial delay, multiple failures by the CDPP to provide required disclosure and is a breach of his human rights specified at s 32 of the Human Rights Act 2019 (Qld) (primarily to be properly informed and in detail of the nature of and reasons for the charges and to be tried without unreasonable delay). He further submits that the prosecution is stayed by reason of a referral that he requested, andsucceeded in obtaining, of certain questions of law to the Supreme Court of Queensland pursuant to s 49 of the Rights Act. Mr Palmer in various ways has submitted that the delay has caused him prejudice (he further submits that he has been subject to unlawful conduct by ASIC and is being prosecuted for an improper purpose) and in combination each of these matters amounts to exceptional circumstances with the result that he should be permitted to maintain his challenges in this proceeding despite the overlap of issues in the Cosmo prosecution.
3. It cannot be gainsaid that the Cosmo prosecution has been bedevilled by delay and satellite litigation. However, as recently observed by Magistrate Mckenzie, who has responsibility for the committal proceeding, in brief reasons delivered on 12 September 2025, the cause of the delay cannot be attributed entirely to the prosecution. In part, his Honour observed:

...I must say I have some sympathy with prosecution and delays in progressing this matter through to the committal process, and it does not simply rest with prosecution. It does rest heavily at the feet of Mr Palmer. The prosecution has been taken on a number of sidesteps or tangents with these proceedings, as been - has been well-documented on many occasions in superior courts. Mr Palmer has unsuccessfully taken issue with nearly every decision made in this court and, indeed, in numerous - numerous occasions in other courts. Those other proceedings would most likely have taken prosecution's focus away from their disclosure obligations in this court. That noted, those obligations remains.

1. The issues raised by Mr Palmer in this proceeding are ones for determination by the criminal courts of Queensland, be it the Magistrates Court at present, or the District Court or the Supreme Court of Queensland. Notably, Mr Palmer sought but failed in collateral review proceedings in the Supreme Court of Queensland launched in the PLC prosecution. In 2018, Mr Palmer and Leisure Coolum commenced a proceeding in the Supreme Court of Queensland and sought declaratory relief that the PLC prosecution was an abuse of process or alternatively that continuation of the prosecution would tend to bring the administration of justice into disrepute. They sought a permanent stay. Justice Ryan dismissed the application: Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2019] QSC 8 and the Court of Appeal dismissed an appeal from that order: Palmer v Magistrates Court of Queensland [2020] QCA 47; (2020) 3 QR 546. One of the reasons given by Ryan J (at [180]) concerned fragmentation of the proceeding in the Magistrates' Court with which the Court of Appeal agreed. Fraser JA at [36] stated the effect of the reasoning of Ryan J:

Interference by the Supreme Court would fragment and detract from the efficient conduct of the criminal proceedings. The appellants did not identify anything exceptional in the arguments about the prospects of success of the prosecutions and nothing else warranted the Court's interference with the proper exercise of the magistrate's functions in the committal proceedings.

1. Despite Mr Palmer's considered and succinct submissions (he appeared for himself on this occasion), I am not persuaded that the matters relied on rise to the level of exceptional circumstances or compelling reasons justifying determination of the overlapping issues by this Court, at least at this stage. I am satisfied that continuation of this proceeding on the facts presently known will give rise to fragmentation of the Cosmo prosecution as the issues to be determined will or may arise in the prosecution: Palmer FC at [ 197].
2. Dealing seriatim with Mr Palmer's submissions, the history of delay in the conduct of the Cosmo prosecution is regrettable and with it the inevitable prejudice, but the history as set out in the affidavit of Tracey Robinson bespeaks delay that is attributable to Mr Palmer and the prosecution, which Magistrate McKenzie correctly characterised in his ex tempore reasons of 12 September 2025. Moreover, and more to the point, complaints of delay are open to be made by Mr Palmer in the prosecution with the objective of establishing that a fair prosecution is no longer possible.
3. As to the Rights Act submission, it is not correct that the prosecution is stayed to the point that it is now hypothetical. On 12 September 2025, on Mr Palmer's application in each prosecution, Magistrate McKenzie made a referral of questions of law to the Supreme Court of Queensland pursuant to s 49 of the Rights Act. Stripped of unnecessary detail the questions concern whether the manner of the conduct of each of the prosecutions is compatible with certain human rights of Mr Palmer's as set out at s 32 which concern the rights of a person charged with a criminal offence. The making of the referrals then engaged s 49(3), which is to the effect that the Magistrates' Court must not make a decision to which the question is relevant whilst the referral is pending. In submissions, Mr Palmer characterises this as a stay with the consequence that there cannot be any fragmentation by continuing this proceeding. I reject the submission. No permanent stay applies and more to the point the referrals illustrate why the continuation of this proceeding is likely to result in fragmentation of the criminal process with the risk of inconsistent findings about the lawfulness of the conduct of ASIC.
4. As to Mr Palmer's complaints about inadequate prosecution disclosure, these are matters quintessentially to be resolved by application to the Magistrates' Court. They do not support the exceptional circumstances submission.
5. On the evidence it is not open to make a finding that the prosecution is an abuse of process. If Mr Palmer has a basis for that submission, the proper place to agitate it is before the Queensland criminal courts.
6. Another reason that favours a stay of this proceeding finds expression in Mr Palmer's written submissions. He contends that the Cosmo prosecution is "not strong", the prosecution has failed to complete disclosure and therefore the case is not genuinely brought by ASIC. Putting aside that ASIC is not the prosecutor, these arguments are open to be put to a Magistrate upon the committal in support of a no case submission: Justices Act 1886 (Qld), s 108.
7. There is no principled basis for this Court to proceed to determine matters that will or are likely to be traversed in the criminal courts in Queensland. The potential to undermine the criminal process is real. There is no compelling reason why the criminal process should be allowed to be fragmented by the findings of fact urged and the arguments sought to be made by Mr Palmer in this proceeding. There is no reason to depart from the general principle stated in Gedeon. The continuation of this proceeding whilst the criminal proceedings remain unresolved is an abuse of process.
8. It follows that the interlocutory application succeeds to the extent now confined by ASIC in submissions. I order that this proceeding be stayed pending the hearing and final determination, including any appeals, of the criminal prosecution brought against the applicant by complaint dated 6 February 2020 in the Magistrates' Court of Queensland, matter 44652/20, or until further order.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine.