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Clyne, Peter Leopold v Scott, Eardley Murray

Clyne, Peter Leopold v Scott, Eardley Murray

Case [1983] FCA 361 12 December 1983

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Re: PETER LEOPOLD CLYNE
And: EARDLEY MURRAY SCOTT (S.M.) and PAUL JAMES HOLDING (1983) 74 FLR 64
No. G193 of 1983 and G317 of 1983
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.(1)

CATCHWORDS

Administrative Law - Judicial Review - Decisions made in committal proceedings for alleged breach of Banking (Foreign Exchange) Regulations - Claim that proceedings could not be maintained or continued since not properly instituted - Claim that regulation 42 of Banking (Foreign Exchange) Regulations invalid since it does not "prescribe" a penalty for breach of regulation 40 as required by Banking Act, 1959 - No consent of Treasurer as required by Act prior to institution of proceedings - Informant not a proper informant - Decision to admit certain admissions made by applicant in other proceedings - Admissibility of the confessional material considered - Discretion - Consideration of power of review in respect of committal proceedings.

Administrative Decisions (Judicial Review) Act, 1977 s.5

Banking Act, 1959 s.39(2)(q), 70(1), 70(3), 70(4)

Banking (Foreign Exchange) Regulations, regulation 40, 42

Crimes Act, 1914 s.13

Administrative Law - Judicial review - Alleged breach of regulations made under Banking Act 1959 (Cth) - Whether regulation was invalid - Whether consent of Treasurer was required before proceedings were instituted - Whether contrary intention appeared in Banking Act or regulations - Applicant sought review of decisions of a stipendiary magistrate in committal proceedings - Admissibility of evidence - Whether Federal Court of Australia should intervene in committal proceedings - Discretion to refuse relief - Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 - Banking Act 1959 (Cth), ss 39, 70 - Banking (Foreign Exchange) Regulations, regs 40, 42 - Crimes Act 1914 (Cth), s. 13.

HEADNOTE

Committal proceedings were brought against the applicant by the second respondent who alleged that the applicant had breached s. 40 of the Banking (Foreign Exchange) Regulations made under the Banking Act 1959 (Cth). A number of preliminary objections were made on behalf of the applicant, namely: (i) reg. 42 of the Banking (Foreign Exchange) Regulations was invalid; (ii) the proceedings were bad because the consent of the Treasurer, as required by s. 70 of the Banking Act 1959 (Cth), was not obtained for some days after the information was exhibited on 10 December 1982; (iii) the information was bad because the informant was not an officer of the Reserve Bank, the proceedings having been brought under regulations administered by that bank.

On 20 July 1983, the first respondent, a stipendiary magistrate before whom the committal proceedings were heard, rejected the objections taken and held in a reserved decision that he had jurisdiction to proceed in the matter.

On 7 October 1983, the first respondent in a reserved decision decided to admit into evidence certain material which had been tendered in the course of the applicant's cross-examination in other proceedings.

The applicant applied to the Federal Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review…

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 Clyne, Peter Leopold v Scott, Eardley Murray

Details

AGLC: Clyne, Peter Leopold v Scott, Eardley Murray & anor [1983] FCA 361 ((1983) 74 FLR 64)
Case: [1983] FCA 361
Decision Date: 12 DECEMBER 1983

CaseChat Overview and Summary

The case of Clyne, Peter Leopold v Scott, Eardley Murray involved a judicial review application challenging decisions made during committal proceedings for an alleged breach of the Banking (Foreign Exchange) Regulations. The applicant argued that the proceedings could not be maintained or continued because they were not properly instituted. The primary contention was that regulation 42 of the Banking (Foreign Exchange) Regulations was invalid as it did not prescribe a penalty for breach of regulation 40, as required by the Banking Act, 1959. The applicant also argued that the proceedings lacked the necessary consent of the Treasurer and that the informant was not a proper informant. The admissibility of certain admissions made by the applicant in other proceedings was also considered, along with the court's discretion in reviewing committal proceedings.

The court was required to decide whether the committal proceedings were properly instituted and whether the applicant's claims regarding the invalidity of regulation 42, the lack of consent of the Treasurer, and the propriety of the informant had merit. Additionally, the court needed to determine whether the admissions made by the applicant in other proceedings were properly admitted and whether the court had the power to review the committal proceedings.

The court dismissed the application in each case. It held that the committal proceedings were properly instituted and that regulation 42 was valid. The court found that the consent of the Treasurer was not required prior to the institution of proceedings, and that the informant was proper. Regarding the admissions made by the applicant in other proceedings, the court considered the discretion in admitting confessional material and found that the decision to admit such material was within the court's discretion. The court concluded that it did not have the power to review the committal proceedings.

The court dismissed the application and ordered the applicant to pay the costs of the second respondent, including reserved costs.

Orders

Orders of the court

1. The application be dismissed in each case.

2. The applicant pay the costs of the second respondent, including reserved costs.

Orders accordingly.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Clyne, Peter Leopold v Scott, Eardley Murray & anor [1983] FCA 361 ((1983) 74 FLR 64)

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Cases cited in this decision · 13 of 13 shown

Green v Jones
[2025] NSWSC 293

…The applicant argues that a contrary intention does "appear" in the Banking Act, 1959 or regulations. In this connection, he submits that a distinction should be drawn between a requirement that a contrary intention be expressed and a requirement that such an intention merely "appear". However, even…
R v West
[2023] NSWDC 614

…At the hearing of the committal proceedings, the prosecution sought to tender evidence of certain admissions said to have been made by the applicant as to the offence charged in the course of his cross-examination in bankruptcy proceedings heard by McGregor, J. on 7 December, 1982. The applicant obj…
Lamb v Moss
[1983] FCA 254

…Lamb v. Moss (1983) 49 ALR 533, applied.…
Cleland v The Queen
[1982] HCA 67

…At the hearing of the committal proceedings, the prosecution sought to tender evidence of certain admissions said to have been made by the applicant as to the offence charged in the course of his cross-examination in bankruptcy proceedings heard by McGregor, J. on 7 December, 1982. The applicant obj…
Barton v the Queen
[1980] HCA 48

…In my view, none of these matters can bear upon the validity of the regulation. No doubt, an important discretion is vested in the prosecution in these matters, but the courts are not powerless to deal with the situation, if an abuse occurs, by the exercise of appropriate controls (see Regina v. Can…
Watson v Lee
[1979] HCA 53

…The applicant argues that a contrary intention does "appear" in the Banking Act, 1959 or regulations. In this connection, he submits that a distinction should be drawn between a requirement that a contrary intention be expressed and a requirement that such an intention merely "appear". However, even…
Hall v Braybrook
[1956] HCA 30

…In my view, none of these matters can bear upon the validity of the regulation. No doubt, an important discretion is vested in the prosecution in these matters, but the courts are not powerless to deal with the situation, if an abuse occurs, by the exercise of appropriate controls (see Regina v. Can…
May v O'Sullivan
[1955] HCA 38

…In the present case, the committal proceedings have reached the point where the first respondent has found that a prima facie case has been established but it is not yet known whether the applicant will call evidence in those proceedings (cf. May v. O'Sullivan (1955) 92 C.L.R. 654).…
Ward v Williams
[1955] HCA 4

…In my view, the factual complexity of this issue and the sheer volume of the evidence relied on are such that there are real difficulties in the Court's intervening at this stage even if the applicant were right on his substantive argument. For one thing, although questions of credit and even motive…
King Gee Clothing Co Pty Ltd v The Commonwealth
[1945] HCA 23

…In my opinion, this reasoning does not assist in the present case. What was decided in Borowski was that, as a matter of construction of the statute and regulations, one regulation should be interpretated as an exhaustive code exclusively governing the relevant subject matter. No such question arise…
McDonnell v Smith
[1918] HCA 26

…The preliminary points taken by the applicant and rejected by the first respondent were as follows: 1. Regulation 42 of the Banking (Foreign Exchange) Regulations is invalid. The source of power to make this regulation is s.39(2)(q) and regulation 42 does not "prescribe" a penalty for that purpose (…
Sankey v Whitlam
[1978] HCA 43

…Bacon v. Rose (1972) 2 NSWLR 793; Sankey v. Whitlam (1977) 29 FLR 346, referred to.…
Connelly v Director of Public Prosecutions
(1904) AC 1254

…In my view, none of these matters can bear upon the validity of the regulation. No doubt, an important discretion is vested in the prosecution in these matters, but the courts are not powerless to deal with the situation, if an abuse occurs, by the exercise of appropriate controls (see Regina v. Can…

Legislation cited in this decision · 3

Banking Act 1959 (Cth)
39, 70 3 mentions
Administrative Decisions (Judicial Review) Act 1977 (Cth)
5 2 mentions
Crimes Act 1914 (Cth)
13 2 mentions