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ASIC v Sigalla (No 6)

ASIC v Sigalla (No 6)

Case [2012] NSWSC 83 28 February 2012

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Supreme Court

New South Wales

Medium Neutral Citation: ASIC v Sigalla (No. 6) [2012] NSWSC 83
Hearing dates: 5 May 2011; 1 June 2011 and written submissions on 15 and 16 June 2011
Decision date: 28 February 2012
Jurisdiction: Equity Division
Before: White J
Decision:
Refer to paragraphs [ 36 ] and [37] of judgment.

Catchwords: COSTS - power to make costs order - no power to order costs under s 76 of Civil Procedure Act 2005 in proceedings that included charges of criminal contempt - power not impliedly conferred by Pt 55 of Supreme Court Rules - s 257C of Criminal Procedure Act 1986 not applicable to summary proceedings in court's inherent jurisdiction for contempt - power conferred by s 23 of Supreme Court Act 1970 - costs order made
Legislation Cited: Evidence Act 1995
Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Supreme Court Act 1970
Criminal Procedure Act 1986
Costs in Criminal Cases Act 1967
Cases Cited: ASIC v Sigalla (No. 2) [2010] NSWSC 792
ASIC v Sigalla (No. 3) [2010] NSWSC 1076
ASIC v Sigalla (No. 4) [2011] NSWSC 62
ASIC v Sigalla (No. 5) [2012] NSWSC 82
ASIC v Sigalla [2010] NSWSC 606
Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352
Garnett v Bradley (1878) 3 App Cas 944
Corporation of Burford v Lenthall (1743) 2 Atk 551; 26 ER 731
Jones v Coxeter (1742) 2 Atk 400; 26 ER 642
Andrews v Barnes (1888) 39 Ch D 133
Rajski v Computer Manufacture and Design Pty Ltd [1982] 2 NSWLR 443
Knight v FP Special Assets Limited (1992) 174 CLR 178
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Ex parte Van Sandau (1846) 1 Ph 605 at 609-610; 41 ER 763
Texts Cited: Jacob, The Inherent Jurisdiction of the Court (1970) 23 Current Legal Problems 23
Category: Costs
Parties: Australian Securities & Investments Commission (Plaintiff)
Andrew Sigalla (Defendant)
Representation: D R Stack (Plaintiff)
S D Robb QC with C Botsman (Defendant)
Conrad Gray Solicitor (Plaintiff)

File Number(s): 2009/290316

Judgment

HIS HONOUR : This judgment concerns questions of costs.

By its further amended interlocutory process ASIC charged Mr Sigalla with 45 counts of contempt. It elected not to proceed with two charges. Following my rejection of evidence pursuant to s 138 of the Evidence Act 1995 ( ASIC v Sigalla (No. 2) [2010] NSWSC 792) ASIC accepted that there was no evidence to support six further charges in relation to alleged payments to the TAB ( ASIC v Sigalla (No. 3) [2010] NSWSC 1076 at [3]-[4]). I found that there was no case to answer in relation to a further 25 charges relating to the use of credit cards ( ASIC v Sigalla (No. 3) ). I later dismissed a further three charges ( ASIC v Sigalla (No. 4) [2011] NSWSC 62). Mr Sigalla was found guilty of contempt in relation to the remaining nine charges ( ASIC v Sigalla (No.…

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 Sigalla (No 6)

Details

AGLC: ASIC v Sigalla (No 6) [2012] NSWSC 83
Case: [2012] NSWSC 83
Decision Date: 28 February 2012

CaseChat Overview and Summary

The case of ASIC v Sigalla (No 6) was before the Supreme Court of Victoria. The Australian Securities and Investments Commission (ASIC) brought proceedings against the defendant, Mr Sigalla, relating to charges of criminal contempt. The court was tasked with determining the applicable legal principles surrounding the power to make a costs order in cases involving criminal contempt and summary proceedings.

The court considered whether the power to make a costs order in criminal contempt proceedings fell under section 76 of the Civil Procedure Act 2005 or if it was subject to a different legislative provision. The court also examined the applicability of section 257C of the Criminal Procedure Act 1986 to summary proceedings within the court's inherent jurisdiction for contempt. Additionally, the court assessed the relevance of section 23 of the Supreme Court Act 1970, which confers a separate power to order costs in contempt proceedings.

The court found that the power to make a costs order in cases of criminal contempt was not conferred by section 76 of the Civil Procedure Act 2005 or by implication under Part 55 of the Supreme Court Rules. Section 257C of the Criminal Procedure Act 1986 did not apply to summary proceedings conducted under the court's inherent jurisdiction for contempt. Instead, the court determined that the relevant power was conferred by section 23 of the Supreme Court Act 1970. Consequently, the court made a costs order in favour of ASIC.

The court's decision clarified the applicable legal framework for making costs orders in criminal contempt cases and reinforced the importance of understanding the distinct provisions of various legislative instruments. The court's ruling ensures that the appropriate legal principles are applied in proceedings involving criminal contempt and summary proceedings in the Supreme Court of Victoria.

Orders