See also Paul, Duplicity in Indictments and Informations (1935) 8 ALJ 430.
102 Concluding that the rule against duplicity does not apply when ASX brings a charge against a Participating Organisation does not mean, however, that either ASX, or the NAT, is free to ignore those factors, concerned with fairness in procedure, which provide the rationale for the ongoing application of the rule against duplicity in criminal law. Reynolds is still entitled, by virtue of ASX's obligation to accord fairness in procedure, to know precisely what is that is alleged against it. It is entitled to know not only the charges that are alleged against it, but also to have proper particulars of each charge: Etherton v Public Service Board [1983] 3 NSWLR 297 (Hunt J). There is a fundamental difference between a charge, and particulars of it. A charge is the allegation that a particular norm of conduct which binds Reynolds has, on a particular occasion or over a particular period, been broken. Particulars are a statement of the precise circumstances in which it is alleged that norm has been broken. The particulars differ from the evidence by which the charge will be proved, and a reference to the evidence proposed to be relied on is not necessarily a satisfactory providing of particulars: Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430, at 432-433 (Street CJ), 434 (Samuels and McHugh JJA). At the time of the hearing before me, the process of requesting, and providing, particulars was ongoing; it is not apparent to me that it is complete. If ASX does not provide proper particulars to the Reynolds, the NAT has both the power, and the responsibility, to order that they be provided. If NAT were not to require particulars to be provided to Reynolds, when they were needed, NAT would be in breach of its own obligations under Business Rule 14.2.3(4) (set out in paragraph 31 above). As well, ASX's obligation to accord fairness in procedure requires it to give Reynolds sufficient time to be able to prepare its case. In mentioning in this judgment particular matters which are required by ASX's obligation to accord fairness in procedure, I am not stating exhaustively what that obligation of ASX requires.
103 Charge 1 relies on both conduct of Mr Struk, for which could Reynolds is said to have a vicarious responsibility, and conduct of Reynolds itself. Reynolds alleges that this mixing together of these two types of conduct is inherently unfair. I am not persuaded that this is so. There was some argument before me about whether it was legally possible for Reynolds to be held answerable, as part of the charge of Prohibited Conduct, for conduct of Mr Struk for which it bears only a vicarious responsibility, but that argument was not sufficient to persuade me that it was legally impossible for Reynolds to be held so answerable. I should make quite clear that, by saying this, then I am not expressing any view about whether it is possible for Reynolds to have such a legal responsibility -- the matter was simply not argued in sufficient depth before me. In saying that, I am in no way critical of counsel -- that particular point was one of a very large number in a hearing brought on urgently. Further, the hearing was conducted in circumstances where ASX had not clearly articulated the basis upon which it alleged that conduct for which Reynolds had only a vicarious responsibility could be taken into account. In any event the lack of emphasis on that point is readily attributable to a recognition that the task of persuading a court to intervene in proceedings in a disciplinary tribunal, to give what amounts to a summary judgment or strike out of one aspect of the proceedings in the tribunal, is a difficult one.
104 It is likely that at the hearing before the NAT, there will be legal argument about whether conduct engaged in by Mr Struk can fall within the definition of Prohibited Conduct, as that definition existed at the time of the various items of conduct of Mr Struk which are relevant. If the NAT concludes that, on the proper construction of the definition of Prohibited Conduct, conduct which Reynolds did not engage in personally, is not within the definition of Prohibited Conduct, then the situation will be that any such conduct of Mr Struk cannot be taken into account in deciding whether Reynolds has engaged in Prohibited Conduct. It is a matter for the NAT, in regulation of its own procedure, to decide whether it is more convenient to decide a preliminary question about whether conduct of Mr Struk can be conduct for which Reynolds had a vicarious responsibility which falls within the definition of Prohibited Conduct before proceeding to consider whether Mr Struk in fact engaged in the conduct which is alleged, or whether that question of law can more conveniently be decided in the course of the hearing itself. Presumably this would depend, to some extent, on whether Reynolds intended to put in issue that Mr Struk had engaged in certain of the conduct alleged against him.
105 A finding that Prohibited Conduct has occurred is one which the NAT could make only after it had decided whether or not the various individual acts which are particularised as constituents of that Prohibited Conduct had actually occurred. It well may be that some of the allegations of ASX, about those individual acts, are not made out. In the process of deciding whether Prohibited Conduct has occurred, the NAT must, if it is to go about its task properly, first decide which of the actions alleged to be constituents of the Prohibited Conduct have occurred, and then whether the overall evaluation which should be given to those actions which the NAT finds actually occurred is that they fall within the description set out in the definition of Prohibited Conduct. If the NAT were to come to the conclusion that conduct of Mr Struk for which Reynolds has a merely vicarious responsibility falls within the definition of Prohibited Conduct, the NAT would also need to decide whether the same weight should be given, for the purpose of the overall evaluation of the conduct which was found to have occurred, to conduct of Mr Struk for which Reynolds had a vicarious liability, and conduct which Reynolds had actually engaged in itself. In the argument before me ASX accepted that when there is an omnibus charge it is incumbent upon the decision-maker to identify with precision, in the reasons, which element or aspect of that omnibus charge is found against, or in favour of, the person accused (transcript 104). That concession on the part of ASX is correct.
106 When there is an omnibus charge, like the Prohibited Conduct charge, particular difficulties are presented to the tribunal concerning the way in which it should proceed concerning penalty. In McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759 I said, at [125]; 792:
"Fair procedures, when applied by a process of construction and implication to these rules, would require that Mr McClelland have the opportunity of making submissions on both guilt, and penalty ( Stone v Law Society (NT) (1992) 108 FLR 332 at 344; Malone v Marr [1981] 2 NSWLR 894; Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378). However, there is no rule of law to the effect that it is not possible for there to be a single hearing which addresses both questions of guilt, and on a contingent basis, questions of penalty ( Barnes v Australian Telecommunications Commission (1989) 25 FCR 283 at 290-291.) Most civil litigation involving claims for damages accord the plaintiff a single hearing, where the quantum of damages is argued about on the contingent basis that the court ultimately decides that liability is established, but the court's procedures are not thereby shown to be unfair ones."
107 Even though there is no rule of law that is not possible for there to be a single hearing which addresses both questions of guilt and, on a contingent basis, questions of penalty, the circumstances of a particular hearing can sometimes be such that procedural fairness requires the hearings on liability and penalty to be split. In deciding whether the present case was one which required a split hearing, the NAT would need to ask itself whether the permutations of possibilities, (about findings which might be made on elements of the case on liability) are so complex that it would not be fair to expect Reynolds to contemplate all permutations, on a contingent basis, and deal with penalty at the same time as a hearing on liability. Another factor which the NAT would need to take into account is whether the undoubted need to give Reynolds the opportunity to put forward evidence concerning penalty would, in the circumstances of these charges, be fairly available to Reynolds, at a time when the findings on liability were not known.
108 There is yet another factor which the NAT will need to take into account, in ensuring that it acts fairly concerning the charge of Prohibited Conduct. It arises from the fact that the penalty regime for prohibited conduct has changed over the years. It has gone from a $25,000 fine or censuring, suspension or prohibition for a period not exceeding three months in 1990 (paragraph 11 above) to a more elaborate penalty regime, including a fine of $100,000, in 1993 (paragraph 19 above), to the present penalty regime which includes a fine of $250,000 and various other alternative penalties (paragraph 31 above).
109 Those changes in the penalty regime have coincided with changes in the definition of "prohibited conduct". Over the period from 1990 to 25 October 1993, the definition of "prohibited conduct" was conduct,
"... which is not efficient, honest or fair or is otherwise conduct prejudicial to the Exchange or its Members (whether such prohibited conduct constitute or involves a breach of any of the Articles or Rules or not) is."
110 From 25 October 1993 to 13 October 1998 the definition was:
"(a) conduct which amounts to impropriety affecting professional character and which is indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to clients or the public;
(b) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence;
(c) conduct which is or could reasonably be considered as likely to be prejudicial to the interests of the Exchange or its Members,
and need not involve a breach of any of the Articles or the Rules or a contravention of any law."
111 After 25 October 1998, that definition was altered only by substituting, for the words "or its Members" in paragraph (c) the words "or its Participating Organisations or Affiliates".
112 Reynolds has foreshadowed that it proposes arguing that, if it were to be found guilty of prohibited conduct, the penalty should be limited by reference to the time when the acts which given rise to that finding occurred. One basis upon which Reynolds will so argue is clause 9 of the Interpretation provisions of the present ASX Business Rules (set out in paragraph 29 above). Another basis on which Reynolds proposes to put this argument is by arguing by analogy with the statutory provisions whereby if an Act increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act increasing the penalty (section 55 Interpretation Act 1987 prior to 1999, Crimes (Sentencing Procedure) Act 1999 since 1999. The rather messy common-law position concerning this topic is summarised in Pearce and Geddes, Statutory Interpretation in Australia 5th edition paragraph [9.19].) To enable such an argument to be put, it will be necessary not only for the NAT to identify the times at which various facts which it has relied upon to arrive at a finding of prohibited conduct occurred, but also to apply the correct legal conclusion about whether in truth Charge 1 alleges one offence, or more than one.
113 Even though there has been an offence against the Articles or Rules of ASX called "prohibited conduct" continually since 1990, looking at the definitions of "prohibited conduct" over that period shows that the substance of the legal norm referred to by that expression has changed over that period. In my view, Charge 1 of the charges brought against Reynolds involves in substance two charges. The definition of "prohibited conduct" over the period from 1990 to 25 October 1993 contains significant differences from the definition which applied thereafter. However, the minute difference to the definition of "Prohibited Conduct" which was made in 1998 does not alter the substance of that norm. Thus, there is one charge involving the allegations set out in the first subparagraph of Charge 1, and a different, but a single, charge involved in the allegation set out in the second subparagraph of Charge 1.
114 Even though the rule against duplicity does not apply to these proceedings, it is still necessary to identify how many charges are laid, because the number of charges laid has an effect on what penalty can be imposed. Also, identification of the time period over which a single charge of an omnibus nature runs will be relevant to whether conduct which occurred in, for instance, 1990 can properly be taken into account in deciding whether Reynolds is guilty of the charge made under the second subparagraph of Charge 1. In Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513, at 547-548 Cooke P said:
"In Daly v General Medical Council [1952] 2 All ER 666 the Privy Council, in a judgment delivered by Lord Porter, indicated that before making a finding as to whether conduct charged amounted to infamous conduct the Medical Disciplinary Committee were entitled to take into account, not only evidence bearing on the particular charge (adultery with a patient), but also evidence as to other matters which may or may not have been associated with similar conduct and which occurred some years earlier. We respectfully agree with Jefferies J that in the light of the later judgment of their lordships, delivered by Lord Jenkins in Felix v General Dental Council [1960] AC 704, 721 it would be unsafe to treat conduct not referred to in any charge currently before the Council as relevant in determining whether conduct charged is so serious as to be disgraceful.".
115 While I respectfully agree with those observations, they are not sufficient to dispose of the point with which I am at present concerned. In my view, if the charge which is considered is one that, in substance, over the period from 30 July 1990 to 26 October 1993 Reynolds engaged in conduct which was not efficient, honest or fair or was otherwise conduct prejudicial to the interests of ASX or its members, it is not possible for the NAT to look to conduct which occurred outside that period, in deciding whether that charge is made out. Similarly, for the purpose of the charge contained in the second subparagraph of Charge 1, is not possible for the NAT to take into account conduct which occurred outside the period 26 October 1993 to 3 August 2001.
116 Given that the penalty regime has changed during the period covered by the charge in the second subparagraph of Charge 1, it will also, it seems to me, be a part of according procedural fairness to the parties that there be findings about whether those events which occurred prior to the change in tariff regime are, in themselves, sufficient to amount to Prohibited Conduct, and also whether those events which occurred after the change in the tariff regime are, in themselves, sufficient to amount to Prohibited Conduct.
117 Another way in which Reynolds submits that Charge 1 is unfair to it is that, because of its omnibus nature, it would not be possible for Reynolds to plead guilty to the charge. While one can readily accept that Reynolds would have considerable difficulty in deciding it was appropriate to simply plead guilty to Charge 1, there is nothing to stop Reynolds from making such admissions as it sees fit of factual elements which are relevant to the charge.
118 In summary, I am not persuaded that the proffering of the charges in the form in which they have been made has involved ASX in breach of any legal obligation which it owes to Reynolds. The only way in which Reynolds alleged that ASX had not acted in good faith in charging the plaintiff with those charges is that ASX was in breach of its obligations to Reynolds, by making charges in that form. It follows that Reynolds has not succeeded in establishing that ASX had not acted in good faith in charging Reynolds with those charges. In these circumstances, there is no utility in making a declaration about whether there is, or is not, an implied term of the Business Rules of ASX that ASX would act in good faith in performing its obligations and exercising rights under the Business Rules.
Abuse of Process
119 The charges brought against Reynolds extend back to July 1990 -- a period of a little over 12 years before the charges were laid. Reynolds submits that it should not be required to answer charges which are based in part on facts which are so old. It points to the limitation periods that the legislature has considered reasonable to impose in relation to some similar matters. Section 1316 of the Corporations Law and of the Corporations Act 2001 (Cth) each provided for a limitation period of five years for proceedings for a criminal offence against that Act (or, with the Minister's consent, at any later time). The usual limitation period for an action for breach of contract under the Limitation Act 1969 is six years.
120 Reynolds points out, in aid of its submission, that in relation to litigation concerning events long past, prejudice frequently occurs which is incapable of proof. In Herron v McGregor (1986) 6 NSWLR 246, at 254-255 McHugh JA (as he then was) said, in the context of a disciplinary inquiry against a medical practitioner:
"The public interest requires that complaints be lodged and dealt with as expeditiously as possible... A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) "what has been forgotten can rarely be shown". In some cases delay makes it simply impossible for justice to be done..."
121 McHugh J returned to this theme in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 551:
"The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates" ( R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witnesses is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532 "what has been forgotten can rarely be shown" . So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
122 The particulars which have been provided of the charges show that most of the incidents which are relied upon by ASX are ones which have occurred on or after 24 September 1996 -- that is, within the six-year period before laying of the charges which Reynolds implicitly concedes would not involve any abuse of process. However the number of incidents which are relied upon by ASX, and which occurred prior to 24 September 1996, is by no means so small that they can be ignored. Particularly is this so when the nature of the two omnibus charges contained in Charge 1 is such that the total significance of those particular incidents which are found proved needs to be evaluated -- there is at least a theoretical possibility that taking into account incidents prior to 24 September 1996 might tip the balance from activities which, considered as a whole, do not amount to Prohibited Conduct, to activities which, considered as a whole, do amount to Prohibited Conduct.
123 There are some factual matters which Reynolds relies upon in connection with its contention that for the charges to proceed concerning the older matters alleged would be an abuse of process.