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ASIC v Farley

ASIC v Farley

Case [2001] NSWSC 326 1 May 2001

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Reported Decision:
51 NSWLR 494

New South Wales

Supreme Court

CITATION: ASIC v Farley & Anor [2001] NSWSC 326 revised - 29/06/2001

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 10267/01

HEARING DATE(S): 23 & 24 April 2001

JUDGMENT DATE:
1 May 2001

PARTIES :

Australian Securities and Investments Commission
Gerard Andrew Farley
Lilian Horler LCM

JUDGMENT OF: Sperling J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Horler LCM

COUNSEL : Mr David Hammerschlag SC with Mr McGuire for the Plaintiff
Mr Alexander Street SC for the Defendant

SOLICITORS: Commonwealth Director of Public Prosecutions for the Plaintiff
Garland Hawthorne Brahe Solicitors & Attorneys for the First Defendant

CATCHWORDS: Certiorari - costs in criminal proceedings - whether certiorari available for any error of law or only jurisdictional error in relation to a decision of the Local Court in criminal proceedings - whether jurisdictional error - whether error of law - discretion to grant certiorari where available appeal

LEGISLATION CITED: Corporations Law s998
Justices Act s81, s104, s120, s146
Supreme Court Act s69

CASES CITED: A-G (NSW) v Dawes [1976] 1 NSWLR 242
Anderson v Judges of the District Court (1992) 27 NSWLR 701
Craig v South Australia (1995) 184 CLR 163
Fosse v DPP & Anor [1999] NSWSC 367
Hargrave v Slater [2000] NSWSC 387
Hill v King (1993) 31 NSWLR 654
Meagher v Stephenson (1993) 30 NSWLR 736
Re Hateley [1965] NSWR 1061
Yisrael v District Court of NSW (1996) 87 A Crim R 63

DECISION: 1. An order in the nature of certiorari quashing the order of the Second Defendant of 8 January 2001; 2. The matter is remitted to the Second Defendant to be determined in accordance with the law.

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Tuesday 1 May 2001

SPERLING J

10267 / 01 ASIC v Farley & Anor

JUDGMENT

Background

1 Mr Farley was charged on information, prosecuted by the Australian Securities and Investments Commission (ASIC), with market manipulation, contrary to s 998 of the Corporations Law. In particular, it was alleged that, on 23 March 1994, Mr Farley entered an offer to purchase 1000 shares in a listed company, intending to create a misleading appearance, namely, the appearance that there was buying support of the shares.

2 The proceedings were heard summarily by Ms L Horler, magistrate, sitting in the Local Court. On 23 June 2000, her Worship dismissed the information on the ground that the prosecution had failed to establish that Mr Farley’s purpose in making the bid was to create a misleading appearance.

3 On 8 January 2001, her Worship made an order that ASIC pay Mr Farley’s legal costs in the sum of $50,000.

4 It appears from her Worship’s judgment in relation to costs that there was a review in the Administrative Appeals Tribunal (AAT) of an order banning Mr Farley from carrying on business as a stock broker for 4 years,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ASIC v Farley

Details

AGLC: ASIC v Farley [2001] NSWSC 326
Case: [2001] NSWSC 326
Decision Date: 1 May 2001

CaseChat Overview and Summary

The Australian Securities and Investments Commission (ASIC) sought certiorari against the decision of a Local Court Judge to dismiss an application for leave to appeal a conviction for breaches of the Corporations Act. The Local Court Judge had dismissed the application on the basis that ASIC had not demonstrated that there was an error of law, and that the Local Court did not have jurisdiction to grant leave to appeal unless there was a jurisdictional error. ASIC argued that the Local Court Judge had erred in law by applying the wrong test and by not considering the merits of the appeal application. The Federal Court of Australia was asked to determine whether the Local Court Judge had made a jurisdictional error, and if not, whether ASIC could still obtain certiorari for an error of law. The court found that the Local Court Judge had not made a jurisdictional error, as the court did have jurisdiction to consider the merits of the appeal application. However, the court found that the Local Court Judge had made an error of law by applying the wrong test, and that ASIC was entitled to certiorari. The court noted that while certiorari was not available for every error of law, it was available where there was a significant error of law that resulted in a miscarriage of justice. The court granted certiorari and ordered the Local Court to reconsider the appeal application. The court also noted that the Local Court Judge's decision not to grant leave to appeal was unreasonable, and that the Local Court should have granted leave to appeal. The court ordered the Local Court to grant leave to appeal and to stay the conviction pending the outcome of the appeal.

Orders