Bond v The Queen - [1992] HCATrans 303

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P20 of 1992
B e t w e e n -
ALAN BOND

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J
TOOHEY J

GAUDRON J

Bond

15/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 15 OCTOBER 1992, AT 3.00 PM

MR I.D.F. CALLINAN, OC:

May it please the Court, I appear

with my learned friend, MR C.D. STEYTLER, OC, for
the applicant. (instructed by Parker & Parker)

MR J.R. McKECHNIE, OC: If Your Honours please, with my

learned friend, MR M. MISCHIN, I appear for the

respondent. (instructed by the Director of Public
Prosecutions)

BRENNAN J: Mr Callinan.

MR CALLINAN:

Your Honours, in our submission, this is an

appropriate case for special leave for three
reasons: the first is that it raises a very
important point of law - that is, important to the
financial and business community of Australia - the
interpretation and application of section 126 of

the Securities Industry Code. Now, Your Honours,
of that section three general statements can be

made. The first is that hitherto the section has
not been directly construed by any supreme court of
any State in Australia in any reported case and we
believe that indeed it has not been construed in
any case.
Secondly, the surrounding and related

sections, those being the sections in part 10 of
the Act, have been construed by the Supreme Court
of New South Wales, the Court of Appeal of New
South Wales and the Full Court of South Australia.
Leaving this, Bond's case, aside, the weight of
authority, to the extent that it bears upon this

particular section, inclines our way. However, now
that the Court of Criminal Appeal in Western
Australia has unanimously construed the section in the way in which it has, there is obviously further
room for division of judicial opinion. Indeed,
His Honour Mr Justice Murray, with whom the other
two judges agreed on this point, expressly

preferred the reasoning of a dissenting judgment of
His Honour Mr Justice Cox in a decision in South
Australia to which I will give Your Honours brief
reference shortly.
Your Honours, the third matter to which we

would refer in relation to the construction of
section 126 is this: that the court took a very
far-reaching and wide view indeed of the operation
of the section; a view which, if applied, could
give rise, we would suggest, to all sorts of
inconveniences and would attach to many, many
transactions, indeed for practically all share trading transactions, notwithstanding any real culpability or not.

Bond

15/10/92

Your Honours, could I give you one brief

reference to the passage to which I would refer in
that connection, and it is a passage in the
applications book which begins at page 228 after,
in effect, either distinguishing or refusing to
follow the body of judicial opinion…

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 Bond v The Queen

Details

AGLC: Bond v The Queen [1992] HCATrans 303
Case: [1992] HCATrans 303
Decision Date

CaseChat Overview and Summary

The parties before the High Court of Australia were the applicant, Bond, and the respondent, The Queen. The matter concerned an application for special leave to appeal against a decision of the Court of Criminal Appeal of Western Australia. The core of the dispute revolved around the interpretation and application of section 126 of the Securities Industry Code.

The legal issues before the High Court included whether section 126 of the Securities Industry Code had been correctly interpreted by the Court of Criminal Appeal of Western Australia. Specifically, the applicant argued that the Court of Criminal Appeal had adopted a "far-reaching and wide view" of the section's operation, which could lead to unintended consequences and apply to a broad range of share trading transactions regardless of actual culpability. The applicant also contended that this interpretation conflicted with a body of judicial opinion from other Australian jurisdictions that favoured a narrower construction of the provision.

The applicant's counsel submitted that section 126 had not been directly construed by any State Supreme Court in a reported decision prior to this case. They highlighted that while related sections had been interpreted by other courts, the weight of authority inclined in their favour. However, the unanimous decision of the Court of Criminal Appeal of Western Australia, which expressly preferred the reasoning of a dissenting judgment from South Australia, had created a division of judicial opinion. The applicant argued that the broad interpretation adopted by the Western Australian court, which aimed to ensure fairness and honesty in securities dealings by preventing secret profits, was too wide and potentially inconvenient in its application.

Orders