Australian Securities and Investments Commission v Sweeney No.3

[2001] NSWSC 616

Reported Decision: (2001) 39 ACSR 40

New South Wales

Supreme Court

CITATION:	ASIC v Sweeney No.3 [2001] NSWSC 616
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 3339/99
HEARING DATE(S):	12 July 2001
JUDGMENT DATE:	23 July 2001
PARTIES :	Australian Securities & Investments Commission (P) Charles Augustine Sweeney (D)
JUDGMENT OF:	Austin J

COUNSEL :	J Stevenson (P) M Oakes SC & M Gorrick (D)
SOLICITORS:	Jan Redfern, Solicitor for Australian Securities & Investments Commission (P) Noel F Bracks & Company (D)
CATCHWORDS:	CORPORATIONS - Commission's power to prosecute - PRACTICE & PROCEDURE - correction of previously published reasons for judgment
LEGISLATION CITED:	Australian Securities & Investments Commission Act 1989 (Cth) s 49
CASES CITED:	ASIC v Vis (2000) 35 ACSR 416
DECISION:	No amendment to previous reasons for judgment

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

MONDAY 23 JULY 2001

3339/99 - AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v CHARLES AUGUSTINE SWEENEY

JUDGMENT

1   HIS HONOUR: The defendant’s application made on 12 July 2001 was, as stated by his counsel, an application for me to ‘delete’ a sentence in my reasons for judgment dated 8 June 2001, on the grounds that it is incorrect and has caused harm to him.

2   As a general rule, a party who is unhappy with reasons for judgment has a remedy through the appeal process. It would be unacceptably inefficient for applications to be made to judges to correct their own reasons for judgment on a regular basis. Moreover, a judge ought not make subsequent statements clarifying reasons given for judgment. The published reasons should either stand or fall as delivered, subject to appeal. However, it must be the case that if a judge inadvertently makes a statement, not necessary to his decision, which is prejudicial to a party collaterally, the judge ought do whatever is practicable to address that prejudice.

3   The complaint in this case is against a sentence in paragraph 2 of my reasons for judgment dated 8 June 2001. The sentence reads:

‘The plaintiff could have chosen to assert contraventions of the specified provisions of the Corporations Law in criminal proceedings, but it chose instead to seek the civil relief specified in the statement of claim.’

That sentence was clearly not necessary to my decision on that occasion. The defendant submitted that it was not supported by any evidence. But the statement is about what the plaintiff might have done in the exercise of its legal powers, rather than about the factual history of the proceedings. It was manifestly not a statement based on a body of historical evidence.

4   It is further said that the statement is inaccurate because the decision to prosecute in criminal proceedings is one for the DPP and not for ASIC, and the DPP has refused to prosecute. As to the latter part of this submission, there was no evidence before me about DPP deciding not to prosecute. It is true that evidence of that kind was excluded by decisions which I took about the conduct of the previous applications (ASIC v Sweeney [2001] NSWSC 114), but it is not open to the defendant to seek to rely on evidence not before the Court to establish that a statement made after the hearing of all of the evidence tendered on the application was an incorrect statement.

5   The first part of that submission asserts that the decision to prosecute in criminal proceedings is one for the DDP and not for ASIC. I invited counsel to take me to the relevant statutory provisions, and it was arranged that this would be done by written submissions after the hearing of the application. I subsequently received a written submission by counsel for ASIC in the following terms:

‘ASIC is empowered by s 49 of the ASIC Act to cause a prosecution of a person for an offence to be begun and carried on where it appears to ASIC that the person may have committed an offence against a national scheme law of the jurisdiction. Section 49 does not affect the operation of the Director of Public Prosecutions Act 1983 (see s 49(5) of the ASIC Act). The DPP would have the conduct of a prosecution and has the power to withdraw that prosecution. In the past, ASIC has typically submitted material to the Commonwealth DPP in respect of suspected criminal offences, other than in respect of minor criminal offences, and has accepted the DPP’s decision as to whether a prosecution should be commenced.’

6 Counsel for the defendant also provided a written submission, which said that under s 49(2) of the ASIC Act, ASIC has power to prosecute (citing ASIC v Vis (2000) 35 ACSR 416). Counsel for the defendant said that as a matter of practice, ASIC has confined itself to prosecution of summary offences only, and drew attention to clause 27.1 of the Alice Springs Agreement (a ministerial agreement between), referred to by the High Court in R v Hughes (2000) 34 ACSR 92 at paragraph [21], according to which the DPP was to ‘have responsibility’ for the prosecution of offences under the national scheme legislation. He also submitted that it was the defendant’s understanding that a memorandum of understanding exists between ASIC and DPP whereby all indictable matters are to be referred to the DPP.

7 I cannot accept that, in light of these matters, the statement that I made in my reasons for judgment was incorrect. Section 49 of the ASIC Act deals with a case where ASIC has conducted an investigation or examination and it appears to ASIC that a person may have committed an offence and ought to be prosecuted. It authorises the Commission to cause a prosecution to be begun and carried on. The fact that, as a matter of practice or by memorandum of understanding or other arrangement, another Commonwealth agency takes up the prosecution once ASIC has completed its investigation and formed the view that an offence has been committed and the person ought to be prosecuted, does not detract from the accuracy of the proposition that ASIC could have chosen to assert the relevant contraventions in criminal proceedings.

8   In my view, therefore, it is not necessary for me to take any further steps because my statement was correct.

9   The question of prejudice to the defendant does not arise, since I have concluded that the sentence in question is correct. However, if it had been incorrect, because the decision to prosecute was the DPP's and ASIC had no role in the process of asserting contravention in the prosecution, then there might have been some arguable prejudice or risk of prejudice to the defendant.

10   Since there would be some arguable risk of prejudice if I were wrong in my principal conclusion, it seems to me the appropriate course is to publish these reasons for judgment, so that any person wishing to refer to the judgment can see that an objection was made to the sentence and that I have dealt with it in this way.

11   The application that I should delete a sentence from my earlier judgment therefore fails. I do not intend to make any order for costs.

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Last Modified: 08/06/2001