Griggs v Australian Securities Commission - [1999] SASC 405

GRIGGS v AUSTRALIAN SECURITIES COMMISSION
[1999] SASC 405

Magistrates’ Appeal
Bleby J

The proceedings

These are two appeals against penalty for various breaches of the Corporations Law imposed by the Magistrates’ Court. Although there are in fact two appeals, that is mainly the product of a procedure adopted in the Magistrates’ Court which I am about to describe.
The appellant was originally charged on information with four summary offences and nine indictable offences, with one additional alternative charge for one of the indictable offences. All the alleged breaches were of various provisions of the Corporations Law, with the one alternative count being a count of forgery contrary to s 235 of the Criminal Law Consolidation Act 1935. The indictable offences were serious offences of dishonesty.
The four summary offences each alleged in respect of a different company that the appellant, being an insolvent under administration, did, without leave of the Court, manage the particular company, contrary to s 229(1) and s 1311(1) of the Corporations Law.
The appellant originally pleaded not guilty to all counts, but after the prosecution had opened, and after several further adjournments, the prosecution accepted a plea to Counts 2 and 4 in respect of a company known as Pernil Pty Ltd (“Pernil”) and Kaben Holdings Pty Ltd (“Kaben”) respectively, being two of the summary offences only, and filed an additional complaint, to which the appellant pleaded guilty, alleging that the appellant had failed to take all reasonable steps to secure compliance by Kaben with s 289(1) of the Corporations Law. That breach was constituted by s 591(1) and s 1311(1) of the Law.
In respect of Counts 2 and 4 on the first information, it became apparent that the basis of the plea was not agreed, and there followed a lengthy disputed facts hearing related to the period, in each case, during which the appellant had managed the two companies concerned. In the case of Pernil (Count 2) the prosecution alleged in the information a period from 18 June 1992 to 5 August 1994 (a period of approximately 26 months), whilst the defendant admitted managing the company between May 1993 and April 1994 (approximately 11 months). In the case of Kaben the prosecution alleged in the information that he managed the company between 22 December 1992 and 5 August 1994 (a period of approximately 19 months), whilst the defendant admitted managing the company between May 1993 and January 1994 (approximately 8 months).
The factual dispute was to some extent about what the appellant did do in the disputed periods, but more significantly was as to whether what he did do constituted “managing” the respective companies. At the hearing the respondent did not dispute the appellant’s assertion that he ceased managing the respective companies at or about the times the appellant alleged. The actual disputed periods in each case were from the date of incorporation for about 11 out of 22 months in the case of Pernil and for about 5 out of…

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.

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Details

Case: [1999] SASC 405
Decision Date: 22 September 1999

CaseChat Overview and Summary

In this case, Griggs appealed against penalties imposed by the Magistrates’ Court for breaches of the Corporations Law. The appellant was found guilty of managing two companies while insolvent, and of failing to record cheque details correctly. The court examined the appellant’s role in managing the companies and the appropriateness of the penalties imposed. The court found that the appellant’s involvement in managing Pernil Pty Ltd was significant and justified the conviction, but his role in managing Kaben Holdings Pty Ltd was not sufficient to warrant a conviction. The court also found that the penalties imposed for the offences were excessive, considering the appellant’s lack of personal gain and the minimal risk posed to the companies. The appeal against the penalties was allowed, and new penalties were imposed, including fines and a good behaviour bond. The court also reviewed the order for payment of costs, indicating a potential variation based on further submissions from the parties.

Orders