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[2026] QCA 60
mixed. The appeal was allowed in part. Order 1 made on 21 July 2025 and paragraph (a) of Order 2 made on 15 August 2025 were set aside. The appeal was otherwise dismissed. The respondents were ordered to pay...
The Court of Appeal held that a civil case can disrupt pending criminal proceedings even if it does not directly change what the criminal court does. Overlapping issues, delay, and the risk of competing decisions can justify a temporary stay. The primary judge’s stay was a discretionary decision and was not shown to be erroneous. But that did not automatically make Palmer’s civil claims an abuse of process. Because the primary judge had not separately determined that the claims for declarations were untenable, those claims should not have been dismissed summarily. They were restored, but remained stayed with the rest of the civil proceeding.
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2,645 words · generated 08/10/2026
This appeal concerned the boundary between a civil challenge to decisions connected with a criminal complaint and the criminal proceedings that followed from that complaint. The Court of Appeal did not decide whether the complaint or summons was lawful, whether any human-rights obligations had been breached, or whether the pleaded causes of action could ultimately succeed. Its task was narrower: it reviewed a stay of the civil case and the summary dismissal of Palmer’s claims for declaratory relief.
7 cited instruments linked from this judgment.
On 6 February 2020, an ASIC employee made a complaint before Heather Gibson, a Justice of the Peace. As summarised by Doyle JA, the complaint alleged that Palmer had dishonestly gained benefits and had dishonestly used his position as a director of Mineralogy Pty Ltd in 2013 ([4]). Gibson witnessed the complaint and, according to Palmer’s pleaded case, decided to issue a summons on the same day ([5]). The complaint commenced criminal proceedings in the Queensland Magistrates Court. Those proceedings remained unresolved at the time of the appeal ([6]–[7]).
Palmer started civil proceedings in the Supreme Court in November 2024. He challenged two decisions: Gibson’s decision to witness the complaint, called the Complaint Decision, and her decision to issue the summons, called the Summons Decision ([8]). His pleaded case alleged, among other things, that the decisions were incompatible with, or failed properly to consider, human rights under the Human Rights Act 2019 (Qld); that Gibson had committed misfeasance in public office; and that she had breached statutory duties ([9]–[16]). The relief sought included declarations about the decisions’ lawfulness and validity, orders concerning the complaint and summons, and damages ([17]).
The primary judge dismissed the claims for declaratory relief, struck out the Amended Statement of Claim, dismissed a claim relying on s 38 of the Justices Act 1886 (Qld), and stayed the proceeding until after the criminal proceedings concluded ([20]). Palmer appealed aspects of those orders. The Court of Appeal dismissed his challenges to the stay but held that the declarations should not have been dismissed summarily. It set aside the relevant dismissal order and the associated costs order, leaving the stay in force over the civil proceeding ([97], [102]).
The Court’s central distinction was therefore between pausing a civil claim and extinguishing it. It accepted that the civil claim should not proceed while the criminal proceedings were pending, but concluded that the primary judge had not made the separate findings needed to dismiss the declarations outright.
The Court rejected Palmer’s proposed narrow understanding of fragmentation. He argued that restraint should apply only if civil relief directly affected the process or procedure of the criminal case, or amounted to a collateral challenge of the kind that would determine whether the charge could constitute an offence ([31]). The Court did not read the authorities as establishing that limit.
Doyle JA examined the High Court’s reasoning in Sankey v Whitlam and the later formulation in Gedeon v Commissioner of NSW Crime Commission. In Sankey, Gibbs A-CJ described reluctance to make declarations that “impinges directly” on criminal proceedings. Doyle JA held that this language was not an exhaustive test. The broader concern was the likelihood that separate civil proceedings would delay or fragment the criminal process and detract from its efficiency ([43]). Clyne v Director of Public Prosecutions (Cth) was consistent with restraint applying to declarations on questions that “will or may arise” in criminal proceedings, not only declarations about a narrow category of procedural matters ([43]–[44]).
Gedeon described the principle as requiring declarations to be exercised sparingly where they “would touch the conduct of criminal proceedings” ([45]). Doyle JA read that formulation as broad enough to cover material overlap between civil and criminal issues, not just direct alteration of the criminal court’s process ([46]–[47]). The reasons in R v Rolfe and other cases were also treated as illustrating the general concern about orders that divert criminal proceedings from their ordinary course ([48]–[50]).
The Court adopted a practical, effects-based approach. Civil proceedings may fragment a criminal case if they involve the same or materially related issues and may affect timely progress, even if the civil orders would not themselves stop or quash the criminal case ([59]–[63]). Potential effects include duplicative hearings, inconsistent findings, use of judicial and party resources, additional appeals, and delay. The judgment also recognised the other side of the balance: the interests of justice may justify resolving a discrete legal issue in civil proceedings where that could be more timely, efficient and cost-effective ([62]–[63]).
On the facts, Palmer’s civil claim challenged the lawfulness of the very complaint and summons that had initiated the criminal proceedings. The pleaded human-rights allegations included matters such as fair trial, notice of the charge and ability to conduct a defence. The Court considered that the factual questions raised by those allegations could overlap with questions arising in the criminal proceedings ([76]). A finding about the decisions’ lawfulness could also affect later arguments concerning the criminal case, even if it were not formally binding there ([76]). The civil case could therefore disrupt the criminal case indirectly. The Court rejected the argument that only direct interference could count ([65], [75]–[77]).
The Court then considered the standard of appellate review. It held that the decision whether to grant a temporary stay was discretionary, rather than an evaluative question with only one correct answer ([78], [84]). Under House v The King, it was not enough that an appellate judge might have reached a different result. Palmer had to establish an error such as applying a wrong principle, relying on irrelevant matters, misunderstanding the facts, or overlooking a material consideration ([85]–[86]). Doyle JA concluded that no such error had been shown. Factors that might have favoured a different outcome did not, by themselves, prove that the primary judge’s discretion miscarried ([87]–[88]).
The Court reached a different conclusion about dismissal of the declarations. It held that the reason for staying proceedings does not automatically establish that the claim is an abuse of process. The primary judge had referred to the declarations’ “limited utility”, but had not found that they had no real prospect of being made or otherwise determined that they were untenable ([91]). Nor had the respondents established that the claims were doomed to fail ([95]). Because fragmentation was the sole basis relied on to dismiss the claims, the dismissal was an error ([96]).
The judgment did not purport to introduce a wholly new doctrine. It clarified how the restraint reflected in existing authorities applies where civil and criminal proceedings overlap.
Before this decision, the authorities discussed in the judgment already established that courts should be cautious about civil proceedings that may fragment criminal proceedings. Sankey v Whitlam recognised both the court’s power to make declarations and the need for special reasons to exercise that power while criminal proceedings are underway ([37]–[43]). Gedeon stated that declaratory power should be exercised sparingly where the declarations would touch the conduct of criminal proceedings ([45]). R v Rolfe referred to the rarity of orders that fragment the ordinary course of criminal proceedings and identified delay among the reasons for that concern ([48]).
The issue on appeal was how narrowly to understand that restraint. The Court’s answer was that “direct” impact on criminal procedure is not a necessary condition. Material overlap and a possible indirect effect on the criminal proceeding’s progress can be enough to engage restraint ([59]–[65]). Whether a stay or a declaration is nevertheless justified remains dependent on the interests of justice in the particular case, including the degree of overlap and the potential efficiency of determining an issue in the civil forum ([62]–[63]).
The decision also makes clear that restraint and abuse of process are not interchangeable concepts. A court may consider it appropriate to pause civil proceedings while criminal proceedings run their course without concluding that the civil claim should be terminated. Summary dismissal requires a separate basis. In this case, the primary judge’s conclusion that declarations had limited utility did not fill that gap ([89]–[96]).
The judgment’s treatment of the appellate standard is similarly specific. A temporary stay to allow criminal proceedings to progress is a discretionary decision reviewed under House v The King ([78]–[86]). The Court distinguished that question from the “uniquely right answer” language discussed in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore in connection with a permanent stay ([83]–[84]). The decision does not suggest that every decision about a stay has the same review standard; its holding concerns the temporary stay at issue here.
At [43], Doyle JA explained that the restraint is informed by the civil case’s likely “dilatory effect” and its capacity to fragment the criminal proceedings. In plain English, the court asks what the separate civil case may do to the criminal case’s progress, not merely whether the civil orders formally change the criminal court’s procedure.
At [59], the judgment said restraint may be justified where the civil case concerns issues that may also arise in the criminal case and may affect its timely progress. That means a civil case can matter even if it does not decide the criminal charge. If it addresses overlapping issues in a way that risks delay or diversion, the court may defer the civil case.
At [61], the Court described fragmentation as arising when the civil and criminal cases deal with related issues in a material way. The civil proceeding need not itself quash or halt the criminal complaint. Its practical effect on the criminal process may be enough.
At [62]–[63], the Court recognised that restraint is not absolute. A discrete legal issue might, in some circumstances, be dealt with more efficiently in civil proceedings. The assessment depends on matters such as issue overlap and whether resolving the issue in that forum would be more timely and economical.
At [78] and [85]–[86], the Court explained the appeal standard for the temporary stay. In plain English, the Court of Appeal was not deciding afresh whether it would have granted the same stay. It asked whether the primary judge made a recognised discretionary error. It found none.
At [90] and [96], the Court drew the key distinction: the risk of fragmentation may justify a stay, but it does not, without more, establish abuse of process. That is why the civil case could remain on foot while being stayed.
The judgment is most relevant to situations where a civil proceeding is commenced while criminal proceedings are pending and the civil case seeks rulings on issues that materially overlap with the criminal case. The overlap may concern facts, the legal character of the complaint, the fairness of the process, or questions likely to arise in a criminal application. The Court’s reasoning indicates that the civil case need not seek an order directly controlling the criminal court’s procedure before restraint becomes relevant ([59]–[61]).
It is also relevant where the civil proceeding may generate additional hearings, competing findings, appeals, or practical delay. The concern is not limited to a finding that is formally binding in the criminal proceeding. The possibility of a civil ruling influencing later applications or complicating the criminal process may be part of the assessment ([76]).
The judgment does not establish that any overlap automatically requires a stay. It directs attention to the degree of overlap and the interests of justice, including whether resolving a discrete issue in civil proceedings could be more timely, efficient or cost-effective ([62]–[63]). A fact pattern involving little connection between the civil claim and the criminal proceeding may present a weaker basis for characterising the civil claim as fragmenting the criminal process ([63]).
The case is also relevant where a party argues that a civil claim should be dismissed because it would interfere with criminal proceedings. The decision requires a distinction between the basis for staying the claim and the separate question whether the claim is untenable or an abuse. A court considering summary dismissal cannot treat the risk of fragmentation alone as answering that second question ([89]–[96]).
Finally, the appellate aspect matters where a temporary stay is challenged. The judgment treats that decision as discretionary and applies House v The King, so the appellate question is whether a recognised error occurred, rather than whether the appeal court would have made the same decision in the first instance ([78]–[86]).
The judgment was delivered on 10 April 2026. The supplied text does not report later judicial treatment of Palmer v Gibson after that date, so it cannot establish whether subsequent courts have followed, distinguished or developed its reasoning.
The judgment does discuss how earlier courts treated the principles it applied. It considers Sankey, Gedeon, R v Rolfe and other authorities as supporting restraint where civil proceedings may disrupt the ordinary course of pending criminal proceedings ([43]–[50]). It also discusses the Full Federal Court’s 2025 decision in Palmer v Australian Securities and Investments Commission. That court had rejected a similarly narrow argument that fragmentation requires direct impact on criminal proceedings and had recognised that civil proceedings may intersect with criminal proceedings in various ways, including through common issues ([56]–[59]).
The Queensland Court of Appeal applied that reasoning to the complaint and summons challenge before it. It also referred to Bell v The Queen as an example of restraint being relevant where declarations would address issues closely aligned with those in a criminal proceeding, even without direct interference ([54]–[55]). The judgment thus presents its approach as consistent with a line of authority, rather than as a departure from it.
The supplied judgment also records a later procedural development in related criminal proceedings: a Magistrate referred questions to the Supreme Court under s 49 of the Human Rights Act, and the resulting referral stayed the Cosmo Payments Prosecution while the questions were pending ([98]). Doyle JA expressly declined to comment further on the potential effect of those Supreme Court proceedings ([99]). The footnote reports that the referred-question judgment was later delivered as Palmer v Australian Securities and Investments Commission [2026] QSC 51, but the appeal court did not analyse that judgment’s reasoning. It therefore should not be treated as a post-judgment endorsement or rejection of Palmer v Gibson.
The appeal did not decide whether Gibson’s Complaint Decision or Summons Decision was unlawful, whether the Human Rights Act applied to those decisions, or whether any alleged failure to consider human rights could support damages or other relief. Those matters remained part of the stayed civil proceeding, rather than issues determined on the appeal ([89]–[97]).
The Court also did not set a numerical or categorical threshold for how much overlap is enough to justify restraint. It identified the degree of overlap, possible delay, efficiency, cost, and the ordinary progress of the criminal process as relevant considerations, but emphasised that the interests of justice must be assessed in each case ([62]–[63]).
Nor did the Court decide what weight should be given in every case to the possibility that a civil finding may affect a later criminal application without being binding on the criminal court. In this case, the potential relevance of the civil findings to issues such as a stay or the lawfulness of the proceedings formed part of the explanation for the stay ([76]).
Finally, the Court did not determine whether the declarations would ultimately be made or whether the civil claims would survive later procedural scrutiny. Its decision was that the claims should not have been dismissed on the basis used by the primary judge, not that Palmer had established the pleaded allegations. The stay remained in place pending the criminal proceedings ([97]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Palmer v Gibson [2026] QCA 60
PARTIES: CLIVE FREDERICK PALMER / (appellant) / v / HEATHER GIBSON / (first respondent) / AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION / (second respondent)
FILE NO/S: Appeal No 3652 of 2025 / SC No 15650 of 2024
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2025] QSC 169 (Smith J)
DELIVERED ON: 10 April 2026
DELIVERED AT: Brisbane
HEARING DATE: 9 March 2026
JUDGES: Mullins P, Doyle JA, Freeburn J
ORDERS: The appeal is allowed in part. Order 1 of the Orders of Smith J made 21 July 2025 is set aside. Paragraph (a) of Order 2 of the Orders of Smith J made 15 August 2025 is set aside. The appeal is otherwise dismissed. The respondents pay 50 per cent of the appellant’s costs of the appeal.
CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – IMPROPER OR COLLATERAL PURPOSE – where the first respondent as a justice of the peace witnessed a complaint made about the appellant – where the first respondent made a decision to issue a summons in respect of the complaint – where the issuing of the summons commenced criminal proceedings in the Magistrates Court, which remain unresolved – where the appellant commenced civil proceedings in the Supreme Court challenging the lawfulness of the complaint and summons decisions on various bases and sought relief for breaches of duty and misfeasance in public office – where the first respondent filed an application to set aside or stay the appellant’s claim and statement of claim – where the second respondent filed an application seeking to set aside or stay parts of the appellant’s claim or alternatively to have the claim dismissed – where the primary judge made an order staying the proceedings until after the conclusion of the criminal proceedings – where the appellant contends that the civil proceedings did not fragment the criminal proceedings in a direct way – where the appellant urges that the test requires the civil proceedings directly impinge on the criminal proceedings – whether the conduct and possible determination of the civil proceedings would effect any relevant ‘fragmentation’ of or amount to a collateral attack on the criminal proceedings / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – where the appeal is against a decision to stay the proceedings until further order to enable the criminal proceedings to run their usual course – where the appellant submits that the test on appeal is the correctness standard – whether the decision involves an exercise of discretion so as to be reviewable on the bases set out in House v The King / PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – where the appellant sought declaratory relief – where the appellant contended that the complaint and summons decisions were unlawful and invalid, having each been made in a way which was not compatible with human rights, that failed to give proper consideration to human rights relevant to each decision, constituted misfeasance in public office and which breached the first respondent’s statutory duty – where the primary judge considered the applications on the ground that the civil proceedings had the effect of interfering with criminal proceedings – where the primary judge dismissed the claims for declaratory relief and struck out the appellant’s Amended Statement of Claim – whether it was right to dismiss the appellant’s claim for declaratory relief / Criminal Code (Qld), s 590AA / Human Rights Act 2019 (Qld), s 8, s 31(1), s 32(2), s 49, s 58, s 59 / Justices Act 1886 (Qld), s 38 / Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) / Uniform Civil Procedure Rules 1999 (Qld), r 16(e), r 16(g), r 171(1), r 367(1) / Alqudsi v Commonwealth (2015) 90 ALJR 192; [2015] HCA 49, cited / Bell v The Queen (2020) 286 A Crim R 501; [2020] SASCFC 116, considered / Clyne v Director of Public Prosecutions (Cth) (1984) 154 CLR 640; [1984] HCA 56, applied / Cox v Journeaux [No 2] (1935) 52 CLR 713; [1935] HCA 48, considered / Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20, cited / Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; [1996] FCA 16, cited / Frugtniet v Victoria (1997) 71 ALJR 1598; [1997] HCA 44, cited / Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120; [2008] HCA 43, considered / GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32, applied / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / Hutson v Australian Securities and Investments Commission (2023) 17 QR 21; [2023] QCA 167, applied / Obeid v The Queen (2016) 90 ALJR 447; [2016] HCA 9, cited / Palmer v Australian Securities and Investments Commission (2025) 312 FCR 151; [2025] FCAFC 151, considered / Palmer v Australian Securities and Investments Commission [2024] FCA 1167, cited / Palmer v Magistrates Court of Queensland (2020) 3 QR 546; [2020] QCA 47, considered / Palmer v Magistrates Court of Queensland; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland; Palmer v Magistrates Court of Queensland [2024] QCA 8, considered / R v Elliott (1996) 185 CLR 250; [1996] HCA 21, cited / R v Geoffrey (2024) 145 SASR 12; [2024] SASCA 40, applied / R v Iorlano; Re Mullally; Ex parte A-G (Cth) (1983) 151 CLR 678; [1983] HCA 43, cited / R v Rolfe (2021) 273 CLR 413; [2021] HCA 38, considered / Re Rozenes; Ex parte Burd (1994) 68 ALJR 372; [1994] HCA 11, cited / Roberts v Gett [2026] FCAFC 3, cited / Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, considered / Rozenblit v Vainer (2018) 262 CLR 478; [2018] HCA 23, cited / Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43, explained
COUNSEL: D F Villa SC for the appellant / K A O'Gorman SC, with W G Phillips, for the first respondent / F I Gordon KC, with N A Hosking and S L Walpole, for the second respondent
SOLICITORS: GSMITH LAW Pty Ltd for the appellant / Norton Rose Fulbright for the first respondent / Johnson Winter Slattery for the second respondent
MULLINS P: I agree with Doyle JA.
DOYLE JA: This is an appeal from Orders1 made at first instance to dismiss parts of the appellant’s claim for relief, striking out the remainder of the Amended Statement of Claim and staying the action until the conclusion of certain criminal proceedings. Aspects of those Orders are the subject of the appeal.
Background
Mr Palmer is a well-known Australian businessman and politician.
On 6 February 2020 an employee of the Australian Securities and Investments Commission (ASIC) made a complaint before the first respondent, Heather Gibson, a Justice of the Peace. In summary the complaint was:That between 5 August 2013 and 5 September 2013 Mr Palmer “contrary to section 408C(1)(d) of the Criminal Code Act 1899 (Queensland), dishonestly gained a benefit or advantage, pecuniary or otherwise, namely a chose in action for… Cosmo Developments Pty Ltd and/or the Palmer United Party and others” in the amount of $10,000,000. Further, in the same period (and it seems by the same conduct) Mr Palmer “contrary to s 184(2)(a) of the Corporations Act 2001 (Commonwealth), dishonestly used his position as a director of… Mineralogy Pty Ltd, with the intention of directly or indirectly gaining an advantage for” Cosmo Developments Pty Ltd and/or the Palmer United Party and others.Between 31 August 2013 and 3 September 2013 it is contended Mr Palmer, contrary to the same section of the Code “dishonestly gained an advantage pecuniary or otherwise, namely a chose in action for” Media Circus Network Pty Ltd and/or the Palmer United Party in the amount of $2,167,065.60 and similarly contrary to s 184(2)(a) of the Corporation Act “dishonestly used his position as the director of… Mineralogy Pty Ltd, with the intention of directly or indirectly gaining an advantage for” Media Circus Network Pty Ltd and/or the Palmer United Party.
Ms Gibson witnessed the complaint and, it is contended, on the same day made a decision to issue the summons directed to Mr Palmer in respect of the complaint.
The issuing of the complaint commenced proceedings in the Magistrates Court in Queensland (the criminal proceedings).
The criminal proceedings, for a variety of reasons, remain unresolved. To date this in part may be explicable by the number of other proceedings which have been commenced in which the prosecution has been challenged: see R [6].
The Supreme Court Proceedings
On 15 November 2024 Mr Palmer filed a claim and statement of claim against Ms Gibson. Those proceedings, inter alia, challenge in various ways her having witnessed the complaint (called the Complaint Decision) and having made the decision to issue the summons (called the Summons Decision) to which I have referred.
First, in making the Complaint Decision it is contended that “Ms Gibson made a decision in a way that was not compatible with Mr Palmer’s Human Rights; and/or in making the decision, failed to give proper consideration to Mr Palmer’s Human Rights” engaged or limited by the Complaint Decision: Statement of Claim paragraph 25.
The expression Mr Palmer’s “Human Rights” refers to a number of rights he contends were afforded to him under the Human Rights Act 2019 (Qld) (HRA). Those rights included: a right to equality (manifesting itself as a right not to be singled out as it is suggested the complaint and summons do); the right to a fair trial (it is alleged that the appellant was unable to have a fair trial); a right to be informed in detail and promptly of the nature and reasons for the charge; the right to a defence (meaning to conduct one).
The consequence of having made the Complaint Decision in those ways, it is contended, is that the decision to witness the complaint was unlawful: Statement of Claim paragraph 26.
Secondly, similar complaints are made with respect to Ms Gibson’s Summons Decision. The consequence, it is alleged, is that the Summons Decision was unlawful: Statement of Claim paragraph 32.
Thirdly, it is alleged that in witnessing the complaint and in issuing the summons Ms Gibson in each case acted unlawfully by not complying with certain obligations alleged to arise under the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld) (Justices of the Peace Act), the Government issued Handbook entitled “Duties of Justices of the Peace (Qualified) and Commissioners for Declarations” (the Handbook), the Justices Act 1886 (Qld) and various other matters including acting in a way not consistent with Mr Palmer’s Human Rights. It is alleged that in both witnessing the complaint and issuing the summons Ms Gibson was acting knowingly unlawfully, or recklessly indifferent to her unlawful conduct so as to have committed the “tort of misfeasance in public office” as a result of which she is liable, it is alleged, to pay damages to Mr Palmer: Statement of Claim paragraphs 41 and 48.
Fourthly, in the alternative it is contended that Ms Gibson owed a duty to Mr Palmer pursuant to the Justices of the Peace Act to act in certain ways compatible with human rights, inter alia, and that she had breached that duty in making the Complaint Decision and the Summons Decision. It is contended that as a result of those breaches of her statutory duty and her failure to remedy those breaches when called upon, she is liable to pay damages to Mr Palmer: Statement of Claim paragraph 54.
“…
to act honestly by acknowledging to Mr Palmer that she did not comply with the JP Act, Handbook, Justices Act, HR Act, Criminal Code and the common law when issuing the Summons;
to inform a court of competent jurisdiction that she did not comply with the JP Act, Handbook, Justices Act, HR Act, Criminal Code and the common law when issuing the Summons.”
“54D In the premises… Mr Palmer is entitled to an order under s38 of the Justices Act 1886 (Qld) requiring Ms Gibson to show cause why she should not remedy her breach of duty by doing the acts in paragraph 54A above, and if such cause is not shown, to an order compelling her to remedy her breach of duty.”
“56. A declaration that pursuant to s10 of the Civil Procedure Act 2011 or, alternatively, s 58 or s 59 of the HR Act or, alternatively, the Court’s inherent jurisdiction that [Ms Gibson’s] decision to witness the Complaint was made in a way:
which was not compatible with human rights (ss 8 and 58(1)(a) of the HR Act); or
that failed to give proper consideration to human rights relevant to the decision within the meaning of s 58(1)(b) of the HR Act;
constituting a misfeasance in public office;
in breach of statutory duty.
A declaration that the Complaint made on 6 February 2020 is unlawful, invalid and that it be quashed or set aside.
A declaration that pursuant to s 10 of the Civil Procedure Act 2011 or, alternatively, s 58 or s 59 of the HRA or, alternatively, the Court’s inherent jurisdiction that [Ms Gibson’s] decision to issue the summons was made in a way:
which was not compatible with human rights (ss 8 and 58(1)(a) of the HRA); or
that failed to give proper consideration to human rights relevant to the decision within the meaning of s 58(1)(b) of the HRA; or
constituting a misfeasance in public office;
in breach of statutory duty.3
A declaration that the Summons made on 6 February 2020 is unlawful, invalid and that it be quashed or set aside.
59A An order pursuant to s38 of the Justices Act 1886 (Old) requiring Ms Gibson to show cause why she should not remedy her breach of duty in paragraph 54C above and if such cause is not shown, to an order compelling her to remedy her breach of duty.
Damages for misfeasance in public office, and/or breach of statutory duty by the defendant.”
The Defendants’ Applications
“1. Pursuant to r 16(e) of the UCPR, the claim filed on 15 November 2024 be set aside, or, alternatively, be stayed pursuant to r 16(g) of the UCPR, on the basis that the proceeding:
a. discloses no reasonable cause of action; and/or
b. is an abuse of the process of the court.
Further or alternatively, pursuant to r 171(1) of the UCPR, the whole of the statement of claim filed on 15 November 2024 be struck out on the basis that it:
a. discloses no reasonable cause of action; and/or
b. is an abuse of the process of the court.
Pursuant to rule 367(1) of the UCPR, the defendant be relieved of the obligation to file a defence in this proceeding until further order of this Court.
…”
“1. Pursuant to r 16(e) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), paragraphs 1 to 4 of the Plaintiff’s Claim filed 15 November 2024 (Plaintiff’s Claim) be set aside.4
In the alternative to paragraph 1 above, pursuant to r 16(g) of the UCPR, paragraphs 1 to 4 of the Plaintiff’s Claim be permanently, or alternatively temporarily, stayed.
In the alternative to paragraphs 1 and 2 above, pursuant to r 658 of the UCPR, or alternatively pursuant to the inherent jurisdiction of the Court, paragraphs 1 to 4 of the Plaintiff’s Claim be dismissed.
Pursuant to r 16(g) of the UCPR, the remainder of the proceeding be stayed pending the hearing and final determination, including any appeals, of the criminal prosecution (MAG-00044652/20(0)) brought against the Plaintiff by complaint and summons dated 6 February 2020.
…”
Primary Judgment
Those applications were heard together and as mentioned, the primary judge made Orders:Dismissing the claims for declaratory relief;Striking out the Amended Statement of Claim (but with an indication that leave would be granted to replead once the stay of the proceedings was lifted);Dismissing the claim which relied upon s 38 of the Justices Act; andStaying the proceedings “until after the conclusion of the criminal proceedings”.
Subsequently the primary judge made an order of costs against Mr Palmer.
The Appeal
“a.The primary judge erred in finding that the primary proceeding has the effect of fragmenting the criminal proceeding (Ground 1).
b.The primary judge erred by dismissing the appellant’s claim for declaratory relief for breach of s 58 of the Humans Rights Act 2019 (Qld) having found, incorrectly and contrary to the relevant principles, that the granting of declaratory relief:
i.would fragment the criminal proceeding; and
ii.was of limited utility to the appellant (Ground 2).
c.The primary judge erred by staying the primary proceeding until after the conclusion of the criminal proceeding on premises that the primary proceeding has the effect of fragmenting the criminal proceeding (Ground 3).”
The Issues
Reasons of Primary Judge
“[99] There is a general principle that, absent exceptional circumstances, a civil court will not proceed to hear and determine the substance of a matter which impinges on the course of a criminal proceeding, either directly or indirectly.”
Ground 1: The Fragmentation of or Collateral Attack on Criminal Proceedings
Mr Palmer contends that the civil proceedings did not fragment the criminal proceedings in a direct way required by the authorities.
It cannot be doubted that the Court has power to make declarations even if the subject matter of them might involve issues in pending criminal proceedings.
However, courts have repeatedly determined that the power to make a declaration should be exercised with caution and sparingly where such orders would have the effect of interfering with criminal proceedings.
Accordingly, civil courts will be cautious (language of differing intensity has been employed to describe how cautious) not to fragment criminal proceedings by proceeding to deal with civil matters which ‘touch upon’ the conduct of the criminal proceedings or which matters impinge ‘directly’ on, or amount to a collateral attack on, those proceedings (and the content of this test is the subject of argument in the appeal), save where the interests of justice require them to do so. That caution manifests itself (as necessary) in declining to make declarations and staying the civil proceedings pending the determination of the criminal proceedings.
Nature of Test
The primary controversy in this appeal concerns the nature of the interference which must be shown in order to enliven the court’s reluctance not to consider civil proceedings which are said to fragment or amount to a collateral attack on the criminal proceedings and then whether the primary judge erred in adopting some different test.
For Mr Palmer it was urged that:The test requires that the civil proceedings directly impinge on the criminal proceedings.It is not enough that issues which will or may arise in the criminal proceedings will or may arise in the civil proceedings.Civil proceedings would only directly impinge on the conduct of the criminal proceedings if: (i) in the civil proceedings relief was sought which affected the procedure or process in the criminal proceedings (such as declarations as to the admissibility of evidence, or entitlement to privilege as to possible evidence); or (ii) relief sought in civil proceeding amounts to a collateral challenge to the criminal proceedings (such as a determination that the charge was incapable of being an offence; or the like).5This is not the case here. In support of this it was submitted that the effect here of the civil proceedings being determined will not be to directly impinge on the criminal proceedings. In particular this is because the relief urged (it was submitted) was that the Committal and Summons Decisions were liable to be quashed as distinct from relief quashing them. The criminal proceedings, it is urged, are not affected.
Justice Dixon (as his Honour then was) in Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720 referred to the “principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed.”6 To like effect, in Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, Sugerman A-CJ at 19 (Holmes and Mason JJA agreeing) identified as a “fundamental principle that a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court, subject only to an exercise of judicial discretion on proper grounds…”. The test urged on Mr Palmer’s behalf was said to be required in order to provide the correct balance with that fundamental principle: Appellant’s written submissions at [14].
In addition it is said that this Court is bound by decisions of the High Court which limit the occasion for the exercise of judicial restraint in considering civil proceedings seeking declarations concerning (to use a neutral expression) criminal proceedings to those which directly impinge on or are a collateral attack on the criminal proceedings in the way submitted by Mr Palmer.
“There is no reason in principle why a declaration should not be made that committal proceedings have been invalidly instituted or wrongly continued against the person seeking the declaration.”
“The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process… The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v. Dunn,7 that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.”
It is to this passage that Mr Palmer principally points as establishing that the Court’s concern, and reluctance to make declarations which fragment criminal proceedings is limited to declarations as to the procedure or process of the criminal proceedings directly (in that case the admissibility of evidence). Some further support for this can be found in Gibbs A-CJ’s reasons at 26 where his Honour said there was “no reason to doubt that we should dispose of the cross-claim” without explicit discussion of the court’s restraint in affecting the criminal proceedings.
The reasons of the other members of the Court in Sankey v Whitlam do not support the submission urged here on behalf of the appellant. Justice Stephen (Aickin J agreeing), on the issue of the interference with extant criminal proceedings, put it as a matter of discretion for the Court to determine. After expressing the view that in the “particular circumstances” of that case the Court should exercise its discretion to make the declaration sought on the cross-claim, his Honour stated at 80 (emphasis added):
“In many like cases an exercise of discretion in the contrary sense may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings.”
“The absence of authority is doubtless to be explained by a variety of circumstances – the recognition that the function of a magistrate in hearing committal proceedings is to decide whether there is a prima facie case against a defendant which warrants his being put upon trial; that a committal for trial is a preliminary examination which involves no final determination of the defendant’s guilt of the offence charged; the absence of any appeal from the magistrate’s decision; and the existence of the Attorney-General’s discretion to commit for trial. All these factors tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course.”
On the facts of Sankey v Whitlam, having regard to the delay to date and the Court being the ultimate appellate court, Gibbs A-CJ determined that exceptional circumstances had been made out for the Court to consider the declarations: at 26. The other members of the Court also considered it appropriate to do so.
The language of “impinges directly” adopted by Gibbs A-CJ does not purport to state an exhaustive test. It is stated as “another regrettable example”, rather than the sole criterion against which to measure the occasion for judicial restraint. What informs the adopted judicial restraint in civil proceedings is their likely dilatory effect in fragmenting the criminal proceedings and detracting from the efficiency of the criminal process. That criminal process once engaged should be allowed to run its “ordinary course” except in special circumstances. So much is made clear, in my view, in the last sentence of the passage of Gibbs A-CJ’s reasons in the quoted extract above. In Clyne v Director of Public Prosecutions (1984) 154 CLR 640 at 643 Gibbs CJ cited his own judgment in Sankey v Whitlam for the proposition that:
“This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings…”.
This does not support the narrow approach urged by Mr Palmer (and it is to be noted in that case the declaration sought was that the regulations which Clyne was alleged to have breached were void). It was stated to be enough if the civil proceedings may interrupt criminal proceedings by seeking declarations on issues (not confined to issues of any limited kind) which will or indeed may arise in the criminal proceedings.
The second of the authorities relied on by Mr Palmer is Gedeon v Commissioner of NSW Crime Commission (2008) 236 CLR 120. Civil proceedings for declarations were sought to the effect that authorisations granted for an informant to make supplies of cocaine (which, if the authorisations were valid, would not amount to unlawful conduct leading to the exclusion of the evidence against the purchasers in extant criminal proceedings) were invalid. As to the seeking and making of that declaration, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ stated at [23]-[25]:
“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.
In Sankey v Whitlam Gibbs A-CJ remarked:
‘I would respectfully endorse the observations of Jacobs P (as he then was) in Shapowloff v Dunn, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.’
However, as the outcome in this Court in Sankey v Whitlam itself indicates, in particular circumstances the interests of justice may militate in favour of the making of a declaratory order. In the present litigation none of the respondents has at any stage suggested that the proceedings for declaratory relief were inappropriate. Indeed, the applicants moved in the Supreme Court in apparent response to the stance taken by the Commissioner during the committal proceedings. That stance reflected an appreciation that what was at stake was more than a question of the admissibility of evidence in the ordinary sense mentioned by Stephen J in Sankey v Whitlam…” (emphasis added; citations omitted).
For the proposition that the “power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings” the Court cited Sankey v Whitlam (not limited to the reasons of any particular member of that Court). Mr Palmer submits that read as a whole the reasons support and adopt the more limited test expressed by Gibbs A-CJ and in particular that the expression “touching the conduct of criminal proceedings” should be understood as limited to relief in the civil proceedings which affects directly the conduct of those proceedings (or amounts to a collateral attack on them) in the way urged by Mr Palmer.
For the reasons already given I do not believe the reasons of Gibbs A-CJ in fact establish a narrow test. But in any event the criterion identified by the plurality in Gedeon for the restraint in exercising the power to make declarations is expressed at a level of generality which extends to declarations which touch the conduct of the proceedings.
The third High Court decision relied on by Mr Palmer is R v Rolfe (2021) 273 CLR 413. A member of the Northern Territory police force was charged with alternative counts of murder, manslaughter and other charges arising from the fatal shooting of person who had stabbed a police officer in the course of that officer attempting to effect an arrest. An issue arose as to the applicability of a provision of the Police Administration Act 1978 (NT) which excluded from criminal liability acts done in “good faith in exercise of a power or performance of a function under” that Act. In the course of their reasons (which answered the issue of construction which arose), the Court cited the reasons of Gibbs A-CJ in Sankey v Whitlam, amongst others, and stated at [32] (citations omitted):
“… This Court has emphasised on many occasions how rare it is to make orders which would have the effect of fragmenting the ordinary course of criminal proceedings. The reasons why it is highly undesirable to do so are obvious. They include delay and its effects…”
While the Court referred to the reasons of Gibbs A-CJ that serves in my view as merely an illustration of the application of the general proposition to which the Court had referred. The concern is with the effect of the civil proceedings on the criminal proceedings and diversion of them from their ordinary course. The precise form that takes has not been the focus in these decisions and in particular not in a way that limits the occasion for judicial restraint to the circumstances urged on behalf of Mr Palmer.
In numerous other cases courts have expressed the need for restraint to be exercised where the civil proceedings might have the effect of fragmenting the criminal proceedings. Often they involve issues such as the admissibility of evidence: R v Iorlano; Re Mullally; Ex parte A-G (Cth) (1983) 151 CLR 678 at 680 (Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ); R v Elliott (1996) 185 CLR 250 at 257 (Brennan CJ, Gummow and Kirby JJ). But the statements of principle are not, nor has their application been, limited in that way (but have extended to other more substantive challenges which might operate to disrupt the normal progress of the criminal proceedings): Alqudsi v Commonwealth (2015) 90 ALJR 192 at [22] (French CJ); Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373 (Dawson J); Obeid v The Queen (2016) 90 ALJR 447 at [15] (Gageler J).
It has been said such interference should only occur “in the clearest of cases where the need for such interference is absolutely plain and manifestly required”: Frugtniet v Victoria (1997) 71 ALJR 1598 at 1602 (Kirby J).
The onus is on the appellant to establish “why the delay and fragmentation of the criminal proceeding can, in the circumstances of any particular case, be justified”: R v Geoffrey [2024] SASCA 40 at [25].
The Federal Court has framed this principle as a “rule of restraint”: Roberts v Gett [2026] FCAFC 3 at [48] citing Palmer v Australian Securities and Investments Commission (2025) 312 FCR 151 at [71]-[78].
In Bell v The Queen (2020) 286 A Crim R 501. Kourakis CJ, Peek and Blue JJ noted:
“[407] … civil courts exercise great caution before hearing and determining civil proceedings that raise common issues that are to be determined in criminal proceedings. One manifestation of this is the grant of a stay of a civil proceeding pending the final determination of a criminal proceeding when there is or will be a common issue in both sets of proceedings and the hearing or determination of the civil proceeding might cause detriment to the defendant in the criminal proceeding. Another manifestation is the reluctance of civil courts to grant declaratory (or prerogative) relief in relation to issues that are to be determined in criminal proceedings.
…
[416] In the present case, the Commissioner does not seek to interfere in the criminal proceeding and granting the declarations sought (to the extent otherwise appropriate) would not directly interfere in the criminal proceeding. However, the declarations sought would address issues that are very closely aligned (if not identical) to those arising for decision in the criminal proceeding. Although the declarations would not be directly binding on the parties to the criminal proceeding (in the sense that an issue estoppel would arise), insofar as they decided issues of law, they would represent an authoritative decision of this Court binding on the District Court under the doctrine of binding precedent.
…
[419] In all of the circumstances, it is in the interests of justice for this Court to exercise caution to avoid the risk of unforeseen consequences of the making of declarations and defer making any declarations until after the final determination of the criminal proceeding against Mr Bell.”
Despite there being no direct interference in that case the closeness of alignment of the issues being addressed was a reason to exercise the required judicial restraint in the civil proceedings.
In Palmer v Australian Securities and Investments Commission (2025) 312 FCR 151 the Full Federal Court had to consider a submission very like the one made in the current appeal. The criminal complaint relevant to that case concerned an allegation that contrary to s 631(1) of the Corporations Act 2001 a company controlled by Mr Palmer did not make an offer for securities in The President’s Club Ltd (the owner of rights at the Coolum Resort) within the prescribed time after publicly proposing to make a takeover bid. Mr Palmer was alleged to have aided, abetted, counselled or procured the company to commit the offence. The complaint was (it was said) in part attributable to ASIC conducting and then providing the Commonwealth DPP with the transcripts of what Mr Palmer contended was an unlawful compulsory examination of Mr Palmer.
That complaint had been commenced in February 2018 and had been mentioned at least 36 times in the Magistrates Court: at [56]. It remained at the pre-committal stage when the appeal in the Full Federal Court was argued (in August 2025). At first instance the primary judge granted a temporary stay of the civil proceedings. On appeal one contention advanced on behalf of Mr Palmer was summarised in the Full Federal Court in these terms (emphasis added):
“[145] The applicants say that her Honour misapprehended the core concept of ‘fragmentation’, which is that fragmentation involves civil proceedings challenging discrete evidentiary and/or procedural rulings by a criminal court, which challenge fragments the criminal proceedings.
[146] They say that this central error was disclosed in her Honour’s reasoning (at [164]) that:
‘What the cases expose, however, is that civil proceedings can intersect with criminal proceedings in a variety of ways. Not all involve the direct impact on criminal proceedings that the Palmer parties contended must be present in order for a civil case to give rise to concerns about fragmentation.’”
“In our view the primary judge correctly observed (at [164]) that the authorities demonstrate that civil proceedings can intersect with criminal proceedings in a variety of ways, including where they raise common issues.”
The grant of declaratory relief is discretionary. A proper basis for employing judicial restraint in the exercise of that discretion would arise if the civil proceedings concerned the same issues as those which might arise in the criminal proceedings and accordingly might possibly affect the progress of the criminal proceedings to a timely hearing including by disposing in those criminal proceedings, as necessary, of all issues that may arise. The effect can be either direct or indirect, as discussed by Button J in Palmer v Australian Securities and Investments Commission [2024] FCA 1167 at [66]-[72].
It is difficult to see why in principle civil courts should exercise restraint where the civil proceedings might lead to declarations as to what evidence is privileged or admissible (or some other matter affecting the conduct of the trial in the criminal proceedings) but hold off with exercising restraint if the declaration was one which might affect a more substantive question of the fairness of the trial, or the notice given of the details of the charge, or indeed whether there should be a stay of the committal. Both species of declaration (if in truth they are of a different kind) interfere with the criminal proceedings being conducted in the normal course to their conclusions, dealing with all issues along the way that will or may affect their progress, conduct or content.
The courts favour, save where the interests of justice lead otherwise, that the civil courts show restraint and allow the criminal proceedings to run their course first, and without being impacted by delay, diversion of a litigant’s resources, competing courts dealing with overlapping issues, or divergent and multiple appeals along the way. It is that effect which impinges on the criminal proceedings and it does so because the issues in the civil proceedings touch upon those in the criminal proceedings in a material manner. That effect is fragmenting, or can be described as a collateral attack on the criminal proceedings, even if the relief sought would not itself restrain or quash the complaint the foundation of the criminal proceedings.
The converse is also true. Even if the civil proceedings directly impinge on the criminal proceedings the interests of justice might nonetheless favour not staying those proceedings or not declining to make declarations in those civil proceedings. That is to be assessed in each case on the facts. Where there are discrete issues of law which do not turn on any factual issues it may be more readily determined that disposal of them in civil proceedings by a superior court might be more timely, efficient and cost effective: Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 188, 204; Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20. In such cases a special reason would have been made out to do so.
The Circumstances of This Case – The Stay
The primary judge determined to dismiss the claims for declarations and to stay the action until further order. I shall return later to consider separately whether the dismissal of the claims was justified, but for the moment I will deal with his Honour’s reasons for the stay of the action.
The primary judge noted:8The complaint had been issued at that time five years earlier;The criminal matter was listed for directions on 22 September 2025 with a tentative committal hearing starting in November 2025;There had been significant delays in the criminal process to that time and that it “would inappropriately further fragment the criminal proceedings if [the] Court was to embark on a trial concerning the complaint and summons”;The civil action also amounted to a collateral attack on the criminal proceedings directly in that the declarations sought were that the complaint and summons were unlawful;The lawfulness of the complaint and summons could be agitated and determined in the course of the criminal proceedings; andSuch a civil trial would be complex and would have the potential to “significantly delay” the criminal matter.
His Honour concluded that the case was not one where an exceptional or special case was made out that the interests of justice weighted in favour of the court proceedings to deal with the civil proceedings.9
The asserted error to which Mr Palmer points is that the primary judge adopted a test which was not in terms confined to civil relief which impinged in a direct way on the conduct of the criminal proceedings.
As to the test employed by the primary judge, while his Honour identified Sankey v Whitlam as one of the leading cases and referred specifically to the passage of Gibbs A-CJ now relied on by Mr Palmer,10 he went on to state (citations omitted):
“[106] In Palmer v ASIC it was said the application of the principle is not limited to a case where the orders sought from the civil court will have an immediate or direct impact on the criminal proceedings. It could apply where there is a direct or an indirect collateral attack on the criminal proceedings.”
Modification of Relief Sought
The relief in fact sought in the Claim, Statement of Claim and Amended Statement of Claim has been set out above. On its face, that relief sought can be said to directly impinge on or be a collateral attack on the criminal proceedings. If pursued and granted, the Court would declare that both the Complaint and the Summons were unlawful and that they be quashed or set aside. By submission made at the hearing of the matter before the primary judge, the case advanced was different, in that it was urged the relief sought was a declaration in each case that the complaint and summons was unlawful and liable to be quashed or set aside.
Even if it is approached on the basis that the formulation of relief in the submissions, rather than the Claim, reflects what was being sought by Mr Palmer, it does not in my view alter the position. The civil proceedings remain a collateral challenge to the criminal proceedings.
The primary judge did not decide the application before him on the basis that the relief sought was that in the Claim rather than merely that identified in the submissions. His Honour (at R [123]) referred to the civil proceedings amounting to a collateral attack on the criminal proceedings by reason of the declarations being sought that each of the summons and complaint “was unlawful”. Whether or not there was also sought a declaration that they be quashed or set aside, or merely liable to be so, did not form any part of his Honour’s reasoning process.
Further the impacts to which the primary judge had regard (further delaying these criminal proceedings for a civil process on issues which could be raised and decided in the criminal process) are impacts which sufficiently impinge upon the progress of the criminal proceedings along their ordinary course, as to be fairly described as fragmenting them.
The fragmentation or delay and disruption of the criminal proceedings which might follow can arise in a number of ways.At a practical level unless one proceeding was stayed, there would be two proceedings working their way to hearing which would or might involve findings (possibly not consistently) as to issues. That at least is likely to be a waste of the courts’ resources as well as the parties’ time and resources through primary and appellate levels of hearings. This would indirectly delay the criminal proceedings and may do so more directly if they were sought to be stayed pending the hearing in a superior court of the civil claim. There is force in the submission made for ASIC that the “suggestion that the [civil] proceedings can be run to trial and judgment with no impact on the [criminal] prosecution has an air of unreality about it.”11At any hearing to stay the criminal proceedings (including under s 590AA of the Criminal Code) a finding that the complaint and summons were liable to be set aside would be relevant and likely at least to be one factor in the determination of the stay even if not directly binding or conclusive in the criminal proceedings. It was submitted for ASIC that if the Supreme Court made declarations of the kind sought, and if that was something that went to the Magistrate’s jurisdiction that was something the Magistrate’s Court would “have a duty to determine”. On appeal it was not submitted that it would in fact go to jurisdiction (that being left open) but the submission seems to be that the mere possibility of such a contention and the subsequent dispute as to its consequences, would further disrupt the criminal proceedings.The pleaded foundation for the unlawful conduct of Ms Gibson is said to be her failure to have regard to and act compatibly with the nominated Human Rights of the appellant. The materiality of any identified failure or non-conformity would bear upon whether it leads to unlawfulness and susceptibility to being quashed or set aside. Yet the facts involved in any such enquiry would directly overlap with factual issues which will or may arise in the criminal proceedings (especially on any application for directions or for a stay). That would include any issue which might arise as to whether the appellant:was unable to have a fair trial; had been properly informed in detail and promptly of the nature of (and perhaps the reasons for) the charge; andhad a proper right to conduct his defence.
Ground 3: The Standard of Review on Appeal and the Present Facts
In my view the decision whether or not to stay the proceeding until further order to enable the criminal proceedings to run their usual course, is one in the exercise of a discretion and is reviewable, accordingly, on the bases set out in House v The King.
A different submission was made for Mr Palmer to the effect that:the test on appeal is the correctness standard; andon the facts in this case, this Court should conclude that no such stay ought to have been granted.
As to the standard, the appellant relied on the Full Federal Court decision in Palmer v Australian Securities and Investments Commission (2025) 312 FCR 151 at [318]-[320]. There the Court said:
“[318] It has not been necessary for us to dwell on the nature of the task before her Honour. It may be accepted that in considering whether to grant a permanent stay her Honour was engaged in an evaluative exercise for which there was only one correct answer (GLJ). But as to her Honour’s decision to grant a temporary stay, there are three ways to look at it. Given that the grant of the temporary stay implicitly involved the refusal of a permanent stay, the first way to look at it is the same way as just discussed. The second way to look at it is to consider it as a discretionary judgment to be assessed as a House v The King type situation. The third way to look at it involves a bifurcation. That part of the decision to refuse a permanent stay could be seen as an evaluative task with only one correct answer. The latter part of the decision to grant a temporary stay could be seen as a discretionary judgment. But such a bifurcation is not a clean split where the decision to refuse a permanent stay is informed and influenced by the fact that a temporary stay is the preferable solution. Where that is so, it would seem preferable to treat all aspects of the decision as involving the one evaluative task refusing the permanent stay. Indeed, the parties before us treated her Honour’s decision in that fashion…
[319] In the circumstances of this case, we are content to treat all aspects of her Honour’s reasons in the same fashion as the parties have done, that is, as involving the one overall evaluative task for which there was only one correct answer. Moreover, there was no separate attack on the grant of the temporary stay outside the argument that it should not have been used as a circumstance relevant to justifying the refusal of the permanent stay.
[320] But in any event, nothing may turn on any of this given that we have found no operative error on the part of the primary judge under any of the grounds of appeal.”
There are two things to note as to this aspect of the reasons. First, given the conclusion in [320], what preceded it is plainly obiter dicta. Second, the obiter remarks do not represent their Honours’ conclusion on a point agitated between the parties, but rather, as expressed, it is a statement of preparedness to proceed on the basis which was common between the parties and not argued.
Whether or not the particular circumstances in that case warranted such an approach, it is not one I believe is applicable here to the decision to grant the stay.
The decision to permanently stay an action is one described in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at [17] as such an extreme step as demands recognition that the question (in that case as whether the proceedings would if continued be an abuse) “admit[s] of but one uniquely right answer”. To determine (if that is done in any case) that the uniquely correct answer is ‘no permanent stay is to be granted because abuse has not been established’ does not, at least, in every situation necessarily involve a positive answer to whether a temporary stay should be given.
In the various authorities referred to above, the decision as to how to give effect to the required judicial restraint is referred to as a matter of discretion. In my view that is the correct description of the decision whether or not to grant a temporary stay.
Accordingly, for the appellant to have succeeded it must establish an error of the kind acknowledged as warranting judicial intervention in the decision of House v The King (1936) 55 CLR 499. At pages 504-505 the plurality stated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The appellant has failed to make out that the primary judge acted on a wrong principle. There was no mistake of the facts or other departure such as to infer the discretion has miscarried.
I accept immediately that there were matters which might be thought to suggest the discretion ought to have been exercised so as to not order a temporary stay of the civil proceedings. Those features include:the history of delay to date in this case (though that works both ways);13the circumstance that at least prima facie it seems not to be controversial that Ms Gibson did not bring to mind Mr Palmer’s Human Rights or the impacts on them when witnessing the complaint and causing the summons to issue;14that the proceedings include other relief including claims for damages;15that by these proceedings Mr Palmer seeks to vindicate his position that the criminal proceedings should not have been commenced;16the questions involved include relatively new issues concerning the role the HRA has to play in decisions made to witness complaints and cause a summons to issue and could benefit from a superior court’s consideration of them.17
But these were things the primary judge had before him. It does not demonstrate error merely because on appeal an appellate judge might have considered exercising the discretion differently. That is made plain in the passage just extracted from House v The King.
Ground 2: Striking Out Declarations
Mr Palmer submits that in any event there was no basis to dismiss the declarations rather than allow them to remain in the civil claim but subject to the same temporary stay. I agree.
There is a difference between a court determining to exercise judicial restraint on the one hand while criminal proceedings are pending, and the striking out of the claims for relief in those civil proceedings in a summary way on the other hand. The fact that the civil proceedings, if progressed ahead of the criminal proceedings, may fragment the criminal process or amount to a collateral attack on it, and that accordingly restraint is shown against doing so, does not mean that the civil proceedings are an abuse.
The primary judge did not separately address the issue of whether that was the case here. The primary judge remarked that the issue of unlawfulness was more (most) relevant to the claims for misfeasance and breach of statutory duty or to a stay under s 590AA of the Criminal Code and accordingly the declarations “would be of limited utility”: R [125]. It is unnecessary to dwell on whether this is correct. It is not sufficient in order to strike out a claim for a declaration in a summary way that it was perceived to have “limited” utility. The primary judge did not go so far as to conclude that there was not real prospect of any such declarations being made by the civil court in due course so as to justify their being struck out.
Fraser JA (Morrison JA and Boddice J agreeing) traversed this issue in Palmer v Magistrates Court of Queensland (2020) 3 QR 546 at [29]-[31] and [39]-[40]. For present purposes it is unnecessary to recite the facts of that case. The Court found that the primary judge in that case correctly determined that relief should only be granted in exceptional cases: at [29].
Nonetheless, in circumstances where the respondents’ application also required consideration of the further question of whether the claims for relief were so obviously untenable as to justify their summary dismissal as an abuse of process, the primary judge erred in failing to consider whether the claims may nevertheless succeed at trial: at [30]-[31].
In Palmer v Magistrates Court of Queensland; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland; Palmer v Magistrates Court of Queensland [2024] QCA 8, Dalton JA (with whom Boddice JA and Burns J agreed) concluded on the facts in that case that the civil proceedings were an abuse. This was because, as her Honour concluded at [5] (citations omitted):
“… my view is that the primary judge’s decision to characterise both the Cosmo and Coolum Resort proceedings as abuses of process which should be permanently stayed was correct. In broad outline, that was because the proceedings sought the exercise of the supervisory jurisdiction of this Court to interfere in the course of pending criminal proceedings (a ‘most exceptional’ jurisdiction) in circumstances where it was not, and could not, be demonstrated that there was any compelling reason to do so. It was not demonstrated that either the Cosmo prosecution or the Coolum Resort prosecution was doomed to fail. There was no reason demonstrated why such points of legal argument or defence as the appellants wished to raise could not be determined in the criminal courts in the ordinary way. In those circumstances, the delay and disruption to the prosecutions which the Cosmo proceeding and the Coolum Resort proceeding were causing, and would continue to cause, meant that they were an abuse of the process of this Court because they interfered with the proper administration of criminal justice according to law.”
There was no attempt before the primary judge in the present case, or on appeal in this Court, to demonstrate that the claims for declarations were doomed (or some similar conclusion to justify a conclusion that they should be struck out).18
The fragmentation of criminal proceedings does not without more establish that the proceeding is an abuse of process. It was thus an error to solely consider the applications on the ground that the civil proceedings had the effect of interfering with criminal proceedings.
The Order dismissing the claims for the declarations should be set aside. Apart from the issues raised in grounds 1 and 3, the appellant makes no submission as to why a temporary stay should not be ordered with respect to the claims for the declarations. The stay of the civil proceedings will accordingly apply to those proceedings as a whole.
New Evidence
ASIC applied to adduce new evidence at the hearing of the appeal, namely an affidavit of Mr Jarvis, a partner of the firm acting for ASIC, concerning the then current status of the committal proceedings in the Magistrates Court.19 The need to deal with this has been overtaken by an agreed statement by the parties of the updated position. That material reveals:That on 12 September 2025, a Magistrate made an order referring certain questions to the Supreme Court of Queensland under s 49 of the HRA.The referral relates to a number of matters that were before the Brisbane Magistrates Court involving the appellant including one concerning a complaint the subject of this appeal (identified in the statement of facts as the Cosmo Payments Prosecution).The questions in the Cosmo Payments Prosecution were:Does s 58 of the HRA allow a court acting in an administrative capacity as a Public Entity under section 58 of the HRA to make a decision not to further progress a proceeding where such progression is not compatible with a defendant’s human rights under s 31(1), s 32(2)(a) and s 32(2)(c) of the HRA? andCan a Magistrate acting as a Public Authority under s 9 and s 58 of the HRA dismiss a criminal proceeding when the prosecution has breached the Court’s order for disclosure and has not articulated a charge and such conduct has denied a defendant his human rights under s 31(1), s 32(2)(a) and s 32(2)(c) of the HRA?The application was heard by Justice Hindman on 20 February 2026. That judgment at the time of hearing this appeal was reserved.20As a result of the operation of s 49(3) of the HRA, the Cosmo Payments Prosecution has been stayed until the Supreme Court determines the referred questions.
The Supreme Court is therefore seized of matters the determination of which may impact on the continuation of the criminal proceedings. It is plainly undesirable that this Court make any further comment on the nature or potential impact of those proceedings in the Supreme Court. The fact of those Supreme Court proceedings, the fact of the stay referred to and the outcome of the proceedings may well constitute sound bases for seeking to vary or discharge the stay ordered by the primary judge here. No party submitted that the fact of the Magistrate’s referral of those questions to the Supreme Court, or the stage that referral has now reached was relevant to any aspect of the disposition of this appeal. That said, these factors may well have taken on relevance if this Court was called upon to re-exercise the discretion whether or not to grant the stay had a different view been taken to the one I have reached as to there being no error shown in the primary judge’s exercise of his discretion.
Costs
The appellant seeks an order for costs of the appeal. Given that the appeal has succeeded in a significant respect (setting aside the dismissal of the claims for declaratory relief) in my view the appellant is entitled to at least part of his costs of the appeal. The appellant has failed on grounds 1 and 3 and as a result in my view it is appropriate that he receive a part only of his costs of the appeal. In the end in my view the respondents should pay 50 per cent of the appellant’s costs of the appeal.
The appellant also seeks orders setting aside the costs Order made against him below, and to substitute an order in his favour for those costs. The order made that the appellant pay the costs thrown away by reason of the dismissal of the claims for declaratory relief should be set aside consistently with the outcome of the appeal in that regard. Otherwise, I see no proper basis to disturb the costs orders made below. Both respondents were substantially successful in their applications at first instance.
Conclusion
The appeal is allowed in part;
Order 1 of the Orders of Smith J made 21 July 2025 is set aside;
Paragraph (a) of Order 2 of the Orders of Smith J made 15 August 2025 is set aside;
The appeal is otherwise dismissed;
The respondents pay 50 per cent of the appellant’s costs of the appeal.
See Palmer v Gibson [2025] QSC 169 (the Reasons or R) and the orders made 21 July 2025 and the costs orders made on 15 August 2025: see Palmer v Gibson (No 2) [2025] QSC 187. ↩
Amended Statement of Claim paragraph 54A. ↩
The erroneous subparagraph identification is copied from the statement of claim. ↩
These paragraphs of the Claim sought the declarations which now appear in paragraphs 56 to 59 of the Amended Statement of Claim set out above. ↩
Appeal transcript at T1-10 line 28 to T1-11 line 22 and T1-11 lines 39 to 46. ↩
See also Rozenblit v Vainer (2018) 262 CLR 478 at [10] (Kiefel CJ and Bell J). ↩
[1973] 2 NSWLR 468. Jacobs P also noted at 470 that “in the very special circumstances of the case, [the court] will exercise its recognized jurisdiction” to consider and grant declaratory relief despite the pending criminal proceedings. ↩
R [121]-[123]. ↩
R [123]-[124]. ↩
R [100]. ↩
Appeal T1-27 lines 26 to 27. ↩
Appeal T1-24 lines 40 to 48.
Palmer
Gibson [2026] QCA 60
(1984) 154 CLR 640
(1935) 52 CLR 713
(1997) 71 ALJR 1598
(2008) 236 CLR 120
(2023) 280 CLR 442
(1936) 55 CLR 499
(2016) 90 ALJR 447
(2025) 312 FCR 151
(2024) 145 SASR 12
(2021) 273 CLR 413
(1994) 68 ALJR 372
(2018) 262 CLR 478
(1978) 142 CLR 1
(2015) 90 ALJR 192
(1996) 60 FCR 149
(1996) 185 CLR 250
(1983) 151 CLR 678
The appeal was allowed in part. Order 1 made on 21 July 2025 and paragraph (a) of Order 2 made on 15 August 2025 were set aside. The appeal was otherwise dismissed. The respondents were ordered to pay 50 per cent of the appellant’s costs of the appeal.
Finally, it is contended2 that Ms Gibson was obliged:
The appellant relies first on the reasons of Gibbs A-CJ in Sankey v Whitlam (1978) 142 CLR 1 at 26.
In Sankey v Whitlam, a private citizen had laid certain complaints (called informations) under the NSW Justices Act against, inter alia, the former Prime Minister and others, and summons were then issued. It alleged an unlawful conspiracy said to be connected with raising (then) a large sum by borrowing overseas, in contravention of certain statutory provisions and a further conspiracy to deceive the Governor-General as to the loan being temporary when that was not the case. The progress to a hearing was far from smooth. There arose a dispute about whether certain documents were privileged from production and in the end the magistrate ordered production of all documents other than those the subject of a claim of privilege by the Commonwealth.
At that point Mr Sankey commenced civil proceedings seeking declarations that documents which the magistrate had identified as privileged “should be produced and could be used if otherwise admissible in the committal proceedings”. Mr Whitlam cross-claimed for declarations including that the Financial Agreement (the subject of the Financial Agreement Validation Act 1929) was not itself a law of the Commonwealth within s 86(1)(c) of the Crimes Act 1914 and so the non-compliance with it was not capable of constituting an offence.
One of the defendants contended that the court had no power to make declarations on the application of the complainant or alternatively should not do so in this case in exercise of the court’s discretion. Gibbs A-CJ first discussed the utility of declaratory relief and the court’s power to make declarations of the kind sought. In the course of expressing his reasons on the existence of the court’s power his Honour said, at 23:
No doubt whether in any case the interests of justice justify the court overcoming that required restraint is likely to turn on a number of factors, including the degree of the overlap of issues, and whether in the circumstances disposal of some issue in civil proceedings might be more timely, efficient and cost effective. The more remote the subject matter of the relief sought in the civil proceedings is from the issues in the criminal proceedings, the less likely those proceedings can be described as giving rise to fragmentation and leading to a departure from the normal course of the criminal proceedings running their course. But it is wrong, in my view, to treat the language employed by Gibbs A-CJ as stating a test requiring that the relief sought in the civil proceedings have an impact on the criminal proceedings as being “direct” in the limited sense urged by the appellant.
Returning then to the reliance placed on Cox v Journeaux [No 2], the statement of principle which is said to be generally paramount*,* does not wholly displace the exercise of judicial restraint in making declarations in civil proceedings which fragment or amount to a collateral attack on criminal proceedings. As noted by Kiefel CJ and Bell J in Rozenblit v Vainer (2018) 262 CLR 478 at [12], that statement of principle is not to be understood “to state a presumptive rule against the making of a stay order”; and at [64]-[65] per Gordon and Edelman JJ to similar effect. The proper grounds for granting a stay include the well-recognised restraint of courts to entertain civil claims which fragment extant criminal proceedings. The factors bearing on the interests of justice include broader considerations “involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally”: Hutson v Australian Securities and Investments Commission (2023) 17 QR 21 at [47]. Delays to or other fragmentation of the criminal processes are matters affecting the assessment of the interests of the administration of justice.
Accordingly, I do not accept the submission for Mr Palmer that the fragmentation must arise from the civil proceedings in a way which can be described as ‘direct’ if that is to be understood as not occurring in this case.
No error is revealed in relation to Ground 1.
R [121]-[122]. ↩
R [78], [150]. ↩
R [60]-[66]. ↩
R [108]. ↩
R [114], [116]-[117]. ↩
It should however be noted that the HRA was introduced after the Complaint Decision and the Summons Decision and accordingly may not be relevant to them. ↩
Affidavit of T L Jarvis (sworn 14 November 2025). ↩
That judgment has since been delivered, but her Honour determined it was inappropriate to answer the questions referred from the Magistrates Court: Palmer v Australian Securities and Investments Commission [2026] QSC 51. ↩