Australian Securities and Investments Commission v Investment Intelligence Corporation

[2014] QSC 211

SUPREME COURT OF QUEENSLAND

CITATION:

Australian Securities & Investments Commission v Investment Intelligence Corporation & another [2014] QSC 211

PARTIES:

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

(applicant)

v

INVESTMENT INTELLIGENCE CORPORATION PTY LTD (in liquidation)
(ACN 101 616 371)

(first respondent)

and

SENEN POUSA

(second respondent)

FILE NO/S:

SC No 6474 of 2012

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

18 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2014

JUDGE:

Atkinson J

ORDERS:

1.   The hearing of the amended originating application is adjourned for mention to 22 September 2014.

2.   The Office of the Commonwealth Director of Public Prosecutions, by a duly authorised officer, is directed to appear at the mention on 22 September 2014 for the purpose of informing the Court as to whether a decision has been made to bring charges against the second respondent in relation to the matters the subject of this proceeding, and if no decision has been made, to inform the Court as to when a decision is expected to be made.

3.   The applicant is to serve the Office of the Director of Public Prosecutions with a copy of this order.

4.   Orders 5, 6 and 8 of the order of Applegarth J dated 26 July 2014 are vacated.

5.   Order 3 of the order of Applegarth J dated 19 June 2013 is vacated.

6.   No order as to costs.

CATCHWORDS:

CORPORATIONS – FINANCIAL SERVICES AND MARKETS – FINANCIAL SERVICES PROVIDERS – LICENSING AND REGULATION – GENERAL OBLIGATIONS – where the applicant sought declarations and an injunction in relation to the second respondent’s conduct of carrying on a financial service business without a licence – where the second respondent submitted that the court should not exercise its discretion to grant the orders as the DPP is currently considering the matter for prosecution – whether the court should grant the declarations and injunction

COUNSEL:

M Hindman for the applicant
No appearance for the first respondent

J Andrews for the second respondent

SOLICITORS:

Australian Securities & Investments Commission for the applicant
No appearance for the first respondent
Lynch Andrew Lawyers for the second respondent

HER HONOUR:   This matter came on for hearing before me today with the applicant seeking declarations and an injunction.  The factual basis for the making of the declarations and injunction was not disputed by the second respondent,  however, the second respondent submitted that the court should not exercise its discretion in favour of making those declarations and the injunction at this time, because the matters on which the court would be required to rule are currently the subject of a brief by the applicant to the Commonwealth DPP for consideration for prosecution. 

In those circumstances, the court is obliged to weigh up two competing public interests.  One is the public interest in making a declaration that certain activities are unlawful, and prevent, by injunctive relief, the second respondent from engaging in them, although he has not indicated any present intention to do so. 

The second public interest is the public interest in the defendant having a fair trial.  A court ought be reluctant in circumstances where a matter is under active consideration for prosecution to make orders in civil proceedings that may impact upon the prosecution.  The court’s invidious position is underlined by the length of time the brief of evidence has been before the Commonwealth DPP, and yet it is has not yet made a decision as to whether or not to prosecute. 

I have taken the view that the court needs to be fully informed on that matter before proceeding to exercise, or deciding whether or not to exercise, its discretion to grant the orders sought by the applicant.  In those circumstances, I intend to give an adjournment of some short period to enable the position with regard to any proposed prosecution to be crystallised so that the court can make a fully informed decision as to the appropriate course to take. 

In the circumstances, I will make the following orders:

1. The hearing of the amended originating application is adjourned for mention to 22 September 2014.
2. The Office of the Commonwealth Director of Public Prosecutions, by a duly authorised officer, is directed to appear at the mention on 22 September 2014 for the purpose of informing the Court as to whether a decision has been made to bring charges against the second respondent in relation to the matters the subject of this proceeding, and if no decision has been made, to inform the Court as to when a decision is expected to be made.
3. The applicant is to serve the Office of the Director of Public Prosecutions with a copy of this order.
4. Orders 5, 6 and 8 of the order of Applegarth J dated 26 July 2014 are vacated.
5. Order 3 of the order of Applegarth J dated 19 June 2013 is vacated.
6. No order as to costs.

______________________

ADJOURNED  [2.40 pm]