Palmer v Shipton [2025] FCA 641

1. The Australian Securities and Investments Commission has brought complaints against Mr Clive Palmer and Palmer Leisure Coolum Pty Ltd, charging them with contravening the takeover provisions of the Corporations Act 2001 (Cth). Mr Palmer and PLC seek to maintain allegations of misfeasance in public office against the former chairperson of ASIC, Mr James Shipton. They allege that officers of the takeover target entity improperly influenced ASIC's actions concerning matters relating to the commencement of the prosecution.
2. Mr Palmer and PLC rely in particular upon a letter sent by Mr Palmer to Mr Shipton raising concerns about the alleged conduct of officers of ASIC. A response to the letter was provided to Mr Palmer, but no further action was taken by ASIC. Mr Palmer and PLC allege that Mr Shipton's role in relation to the response to the letter and in allegedly causing, supervising or directing the filing of the complaints involved invalid or unauthorised acts, and they further claim that Mr Shipton is liable for the tort of misfeasance in public office.
3. Mr Shipton applied to strike-out the claims and for an order summarily dismissing the proceeding brought by Mr Palmer and PLC. He was successful and much of the reasoning of the primary judge as to why the proceeding should be dismissed rested upon findings and conclusions that there was a lack of any pleading as to what Mr Shipton was said to have done or any material facts to support the claim of malicious intent, which was described by the primary judge as both integral to and the very gravamen of the tort of misfeasance in public office. Mr Palmer and PLC seek leave to appeal the decision.
4. The question of leave is to be decided by a single judge unless a judge directs that the application be heard and determined by a Full Court. In making a decision whether to refer an application for leave to a Full Court, the Court is guided by the interests of justice including the consequences for the parties and the efficient operations of the Court. The merits of the points that are sought to be advanced do not fall for adjudication, save to say that an obviously hopeless case would not be referred to a Full Court. As to these matters see Allphones Retail Pty Ltd v Weimann [2009] FCA 849 at [13] (McKerracher J); Australian Equity Investors, an Arizona Limited Partnership v Colliers International (NSW) Pty Ltd [2011] FCA 1198 at [2] (Robertson J); and Ensham Resources Pty Limited v AIOI Insurance Company Limited [2012] FCA 822 at [9] (Griffiths J).
5. Submissions have been made to the effect that this case concerns findings that are not based upon broad matters of principle in relation to the tort of misfeasance in public office but, rather, rest upon the conclusions to the effect that there was insufficiency in the material facts pleaded to advance the case. That may be so to an extent but, ultimately, the question whether facts alleged are sufficient is a matter that is informed by due understanding of the nature of the principles that are sought to be invoked in this case being a claim of misfeasance in public office. Therefore, the uncertainties as to the elements of the tort (see Obeid v Lockley [2018] NSWCA 71; (2018) 98 NSWLR 258 at [225] (Leeming JA)) are likely to arise for consideration.
6. In the present case, I am persuaded that there should be a direction that the application for leave should be heard and determined by a Full Court. That is principally for three reasons:

(1) the application for leave concerns the pleading of what is required in order to advance a case of misfeasance in public office. That is a matter that raises issues that are likely to be of wider significance than the proceedings themselves;

(2) the nature of the allegations that are sought to be made being allegations that seek to impugn the conduct of the most senior officer of the corporate regulator at the relevant time; and

(3) the nature of the appeal, being such that the contentions on the leave application are likely to cover the same matters as the appeal, such that there will be efficiencies in having the leave question and the appeal heard together.

1. For those reasons, I am persuaded that there should be a direction for the application for leave to appeal to be heard and determined by a Full Court and that subject to any contrary direction by the Full Court the application for leave to appeal is to be heard at the same time as any appeal. Those orders will be made.
2. The costs of today's hearing will be costs in the application for leave to appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.