Hutson v Australian Securities and Investments Commission - [2022] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Hutson v Australian Securities and Investments Commission & Anor [2022] QSC 243

PARTIES:

JENNIFER JOAN HUTSON

(Applicant)

v

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

(First Respondent)

JUDGE FARR SC

(Second Respondent)

FILE NO/S:

BS 14915 of 2021

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2022; 23 August 2022; Further written submissions received 30 August 2022

JUDGE:

Crowley J

ORDER:

1. The application is dismissed.

2. The Applicant is to pay the costs of each of the First and Second Respondents.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – GENERALLY – where ASIC compulsorily examined the Applicant – where the Applicant was charged in the District Court with breaches of the corporations legislation – where the Applicant applied to the District Court pursuant to s 590AA of the Criminal Code 1899 (Qld) (‘Criminal Code’) for a permanent stay of all charges against her – where the District Court dismissed the application – where the Applicant applied to the Supreme Court for declarations that the District Court judge erred in his conclusions and that the examinations were unlawful – whether the Supreme Court’s supervisory jurisdiction over inferior courts extends to granting relief in respect of the dismissal of a s 590AA application in the District Court – whether s 590AA(4) of the Criminal Code ousts the general jurisdiction of the Supreme Court to grant declaratory relief – whether discretionary considerations weigh in favour of making the declarations sought

CORPORATIONS – SUPERVISION – AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION – EXAMINATIONS – WHO MAY BE EXAMINED – where ASIC compulsorily examined the Applicant pursuant to s 19 of the of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) – whether, as a result of an investigation, it appeared to ASIC that the Applicant may have committed an offence against the corporations legislation and ought to be prosecuted – whether s 49(1) of the ASIC Act had been engaged – whether ASIC’s power under s 19(2) of the ASIC Act is subject to the limitations in s 49(4) of the ASIC Act – whether the compulsory examinations were lawfully conducted

Acts Interpretation Act 1901 (Cth), s 15AA(1), s 34A, s 34AB
Australian Securities & Investments Commission Act 2001 (Cth) s 19, s 49, s 68, s 93, s 102
Civil Proceedings Act 2011 (Qld), s 10
Constitution of Queensland Act 2001 (Qld), s 58

Criminal Code 1899 (Qld), s 590AA(4), s 668A, 668B, 669A

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited
Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, considered
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited
Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61, applied
Gedeon v Commissioner of the New South Wales Crime Commissioner (2008) 236 CLR 120, [2008] HCA 43, cited
Heerey v Criminal Justice Commission [2001] Qd R 610; [2000] QCA 511, cited

Hutson v ASIC [2022] QSC 68, cited

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, considered
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, cited
Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255; [2009] QCA 120, cited
R v Chardon [2017] 1 Qd R 148; [2016] QCA 50, considered

R v Farr (1994) 74 A Crim R 405; [1994] QCA 266, cited

R v Hutson [2021] QDCPR 78, considered
R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered
R v Lowrie [1998] 2 Qd R 579; [1997] QCA 434, cited
R v Verall [2013] 1 Qd R 587; [2012] QCA 310, cited
R v Woodman[2010] QCA 162, cited
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43; applied
Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53, cited

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, cited

COUNSEL:

N Clelland KC, with S J Webster and P Coleridge, for the Applicant

M T Brady KC, with S Marsh and R Khalilizadeh, for the First Respondent

No appearance for the Second Respondent

SOLICITORS:

Gilshenan & Luton for the Applicant

Australian Government Solicitor for the First Respondent

No appearance for the Second Respondent

Introduction

The Applicant, Ms Jennifer Hutson, seeks declaratory orders in respect of criminal proceedings presently before the District Court of Queensland, in which she is the defendant. The proceedings arise out of an investigation conducted by the Respondent, the Australian Securities & Investments Commission (‘ASIC’).[1] The Commonwealth Director of Public Prosecutions (‘CDPP’) has carriage of the prosecutions.
[1]In this judgement, ‘Respondent’ refers to the First Respondent, noting that the Second Respondent has been excused from appearances (save as to the question of costs).
In order to understand the nature of the relief sought and the issues to be considered, it is necessary to first set out the relevant background to this matter in some detail.

The charges against the Applicant

The Applicant is charged on two indictments that have been presented in the District Court at Brisbane. On Indictment No. 156/21, she is charged with:
(a)two counts of dishonestly using her position with the intention of gaining an advantage, contrary to s 184(2) of the Corporations Act 2001 (Cth) (‘Corporations Act’);
(b)one count of failing to exercise her powers or discharge her duties for a proper purpose, contrary to s 184(1) of the Corporations Act;
(c)one count of fraud as a director to the value of $30,000 or more, contrary to s 408C(1)(a) of the Criminal Code 1899 (Qld) (‘Criminal Code’);
(d)nine counts of permitting the giving false or misleading information to an operator of a financial market, contrary to ss 1309(1) and (11) of the Corporations Act; and
(e)one count of attempting to pervert the course of justice, contrary to s 140 of the Criminal Code.
These charges arise out of a takeover bid by G8 Ltd (‘G8’), of which the Applicant was a director and chairperson, for Affinity Education Group Ltd (‘Affinity’). It is alleged that the Applicant:
(a)used her position as a director of G8 for an improper purpose by facilitating the purchase of shares in Affinity using G8 funds;
(b)used G8 funds to purchase shares in an unrelated company;
(c)authorised transfers of money in an attempt to conceal the purchases she had facilitated;
(d)gave false market information in relation to G8’s interest in Affinity; and
(e)created false documents in an attempt to conceal from ASIC that G8 funds had been used to purchase shares in Affinity.
The Applicant is further charged on Indictment No. 161/21 with 15 counts of giving false or misleading information in the course of an examination, contrary to s 64(1)(b) of the Australian Securities & Investments Commission Act 2001 (Cth) (‘ASIC Act’). It is alleged that the Applicant gave the false or misleading information when being examined by ASIC pursuant to s 19 of the ASIC Act on 25 May 2016 and 22 June 2016 (‘2016 Examinations’).

The stay application in the District Court

The Applicant applied to the District Court, pursuant to s 590AA of the Criminal Code, for a permanent stay of all charges against her (‘Stay Application’). On 27 September 2021, the Application was heard by his Honour Judge Farr SC. On 16 November 2021, his Honour delivered judgment, dismissing the application.[2]
[2]R v Hutson [2021] QDCPR 78.
Before Farr DCJ, the Applicant had contended that the 2016 Examinations were unlawful because, at the time they were conducted, it appeared to ASIC as a result of an investigation that she may have committed an offence against the corporations legislation and that she ought to be prosecuted for that offence. In those circumstances, so it was argued, s 49(4) of the ASIC Act prevented ASIC from exercising the power conferred by s 19 of the ASIC Act to compulsorily examine the Applicant.[3] The Applicant submitted that by purporting to exercise that power, ASIC had ‘fundamentally and irreparably altered’ the process that was required by law to have governed the Applicant’s trial, and the only remedy was that the proceedings be permanently stayed.[4]
[3]Ibid [45].
[4]Ibid [46].
Farr DCJ considered that Ms Hutson’s submissions overlooked the requirement in s 49(1)(a) that for s 49(1) to apply, ASIC must have reached its position – namely that Ms Hutson may have committed an offence against the corporations legislation and ought to be prosecuted – ‘as a result of an investigation’.[5] His Honour concluded that this phrase ‘connotes a viewpoint being reached at or near the end of an investigation’.[6]
[5]Ibid [61].
[6]Ibid [67].
The learned judge ultimately found, by reference to the evidence adduced at the hearing of the s 590AA application, that the investigation was, in fact, still continuing at the time of the 2016 Examinations.[7] As such, ASIC could not have reached the required position ‘as a result of an investigation’. Therefore, his Honour concluded, s 49(4) of the ASIC Act did not apply and the 2016 Examinations were lawful.[8] The Stay Application was dismissed accordingly.
[7]Ibid [82].
[8]Ibid [85].

Subsequent correspondence between the parties

On 6 December 2021, following the delivery of his Honour’s judgment, the Applicant’s solicitors wrote to the CDPP requesting that the CDPP consider referring the following question of law to the Court of Appeal, pursuant to s 668A(1) of the Criminal Code:
Does the expression ‘as a result of an investigation’ in s 49(1) of the [ASIC Act] connote that the state of mind described in that section must be ‘reached at or near the end of an investigation’?
On 8 December 2021, the CDPP replied, stating it did not intend to make a reference to the Court of Appeal.

The original Supreme Court application

On 14 December 2021, the Applicant filed an Originating Application in the Supreme Court (‘Original Supreme Court Application’) seeking the following orders:
1. Declarations pursuant to s 10 of the Civil Proceedings Act 2011 (Qld) that:
(a)The purported exercise by [ASIC] of the power contained in s 19 of the [ASIC Act] to compulsorily examine [Ms Hutson] on 25 May 2016 and 22 June 2016 was unlawful, because, at the time of the purported exercise of the power, ‘as a result of an investigation’ or ‘from a record of an examination’, ‘it appear[ed] to [ASIC] that’ [Ms Hutson] ‘may have committed an offence against the corporations legislation’ and that she ‘ought be prosecuted for that offence’, in the sense contemplated by s 49(1) of the ASIC Act.
(b)The expression ‘as a result of an investigation’ in s 49(1) of the ASIC Act does not denote that the state of mind described in that section must be ‘reached at or near the end of an investigation.’
(c)[Farr DCJ]…erred in concluding that [ASIC’s] purported exercise of the power to compulsorily examine [Ms Hutson] was lawful.
(d)[Farr DCJ]…erred in concluding that the expression ‘as a result of an investigation’ in s 49(1) of the ASIC Act connotes that the state of mind described in that section must be ‘reached at or near the end of an investigation.’

ASIC’s dismissal application

On 9 February 2022, ASIC filed an application seeking the summary dismissal of the Original Supreme Court Application (‘Dismissal Application’). ASIC contended that the Original Supreme Court Application constituted an abuse of process on two grounds:
(a)It was ‘an impermissible collateral attack’ on the prosecutions against Ms Hutson which would result in ‘disruption and fragmentation of the criminal proceedings’.
(b)It effectively sought to relitigate some of the exact same matters dealt with in Farr DCJ’s judgment in the Stay Application.
On 29 April 2022, Kelly J dismissed ASIC’s application.[9] His Honour considered there was a real question as to whether, if at all, s 590AA of the Criminal Code curtails the Supreme Court’s supervisory jurisdiction to make declarations in respect of criminal proceedings in the District Court.[10] Accordingly, it was not appropriate for the Court to attempt to answer this question on a summary application.[11] The matter could only be properly and accurately answered by the Court having the benefit of a full argument about the nature and extent of the Court’s supervisory jurisdiction and the proper construction of s 590AA.[12]
[9]Hutson v ASIC [2022] QSC 68.
[10]Ibid [35].
[11]Ibid.
[12]Ibid.

Joinder of his Honour Judge Farr SC

In May 2022, Kelly J ordered that his Honour Judge Farr SC be included as a respondent to the proceeding but excused his Honour from further appearances (save as to the question of costs).

Amended Supreme Court Application

On 23 August 2022, the second day of the hearing, I granted leave for the Applicant to read and file an Amended Originating Application (‘Amended Supreme Court Application’). The amendment made was to the introductory wording of the orders sought, to add the words ‘and further, or alternatively, in the inherent jurisdiction of the Supreme Court’.
The purpose and effect of this amendment is that the Amended Supreme Court Application would not necessarily fail if I were to find that s 10 of the Civil Proceedings Act 2011 (Qld) (‘Civil Proceedings Act’) did not provide a proper basis for the declaratory relief sought by the Applicant.

ASIC’s investigation

The relevant chronology of the ASIC investigation was set out by Farr DCJ in his Honour’s reasons for refusing the s 590AA application. It is convenient to adopt and set out that part of his Honour’s judgment here:[13]
[13]R v Hutson [2021] QDCPR 78, [20]-[34].
[20]From July 2015 ASIC began to monitor, and then investigate, the circumstances of a takeover bid for Affinity by G8. The applicant was a director and chairperson of G8. Shares in Affinity were purchased in tranches between 13 and 28 July 2015 by a third company, West Bridge Holdings Pty Ltd (West Bridge).
[21]The substantive charges, representing Counts 1 – 13 on Indictment 156/21, in substance allege that between 13 July 2015 and 2 September 2015 the applicant breached provisions of the Corporations Act and Criminal Code (Qld) when she acquired a sum of money from G8 to fund West Bridge’s purchase of Affinity shares, authorised the transfer of other funds, authorised the purchase of shares with surplus funds, and, in a number of documents lodged with the Australian Stock Exchange, failed to accurately disclose G8’s ‘relevant interest’ in Affinity. The applicant denies each of those allegations.
[22] Although an investigation was not formally ‘commenced’ under s. 13 of the ASIC Act until 12 January 2016, ASIC began monitoring the applicant’s activities in around July 2015 as part of a Takeovers Panel investigation. Her actions were referred for criminal investigation within ASIC in November 2015.
[23] From August 2015, ASIC issued numerous statutory notices compelling relevant persons and entities to provide information, personal and company records and to furnish written statements, and, in turn, filed this material with the Takeovers Panel in support of its submissions. By September 2015, those statutory notices referred to ASIC’s allegations of contraventions of the Corporations Act. And by 9 October 2015, ASIC set out the extensive nature of its ‘investigative effort’ in its submissions on costs to the Takeovers Panel.
[24] The Takeovers Panel made its decision on 5 October 2015 and delivered written findings shortly thereafter. Following the release of the Takeovers Panel draft written reasons, members of ASIC’s Markets Enforcement Team referred the matter to the Corporations and Corporate Governance Enforcement Team (CCG). That referral, dated 2 November 2015, alleged that, on the basis of ‘useful and relevant evidence from relevant parties’ that ASIC had already acquired, the ‘key documents’ returned under statutory notices issued by ASIC, and the ‘key assessments of the facts relevant to this referral’ in the Takeovers Panel’s draft reasons, G8 and its directors had, respectively, contravened ss. 606 and 184(2)(a) of the Corporations Act.
[25] On 13 November 2015, Ms Kelly Rogers, senior lawyer within the CCG, recommended the acceptance of the referral. In support of that recommendation she noted that,
ASIC has the benefit of the Panel’s decision and legal analysis and the evidence and submissions put to the Panel by the parties, which reduces the extent of the ‘fact finding’ that needs to be undertaken.
[26] On 12 January 2016 a s. 13 file note signed by a Mr Brendan Caridi (Caridi), as delegate of ASIC, recorded the formal ‘commencement’ of an investigation ‘re trading in the securities of Affinity Education Group between 2 July and 21 October 2015’. In the days and weeks that followed, ASIC issued dozens more statutory notices. Between 26 February 2016 and 24 March 2016, ASIC compulsorily examined six different people.
[27] By 5 April 2016, ASIC investigators noted in email correspondence that they had commenced drafting witness statements for inclusion in a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP). In affidavit evidence now filed in this Court, investigators state that these witness statements were prepared for the purpose of ‘the commencement of criminal proceedings against the defendant’ and ‘were not created for any other purpose’.
[28] On 29 April 2016, ASIC investigators wrote to the applicant offering her a cautioned record of interview. On 5 May 2016, the applicant exercised her common law right to decline to participate in that interview.
[29]On 6 May 2016, ASIC officers Matthew Bastianon (Bastianon), Peter Paleologos (Paleologos) and Caridi issued a notice to the applicant, pursuant to s. 19 of the ASIC Act (the s. 19 notice) requiring her to attend and participate at a compulsory examination. ASIC informed the applicant that a failure to comply with the s. 19 notice constituted a criminal offence.
[30]On 25 May 2016, the examination took place (the May examination). At the conclusion of the May examination, the examiner adjourned the examination to a date to be fixed.
[31] On 6 June 2016, by email, ASIC notified the applicant, via her lawyers, that ASIC sought to resume the previously adjourned examination. The examination was resumed on 22 June 2016 and concluded that day (the June examination).
[32] Following these examinations, ASIC continued to exercise what Bastianon described as its investigative powers. Those powers included ASIC engaging in the following:
(a) interviewing three prospective witnesses pursuant to s.19 (interviewed between 21 June 2017 and 12 March 2019);
(b) interviewing numerous other prospective witnesses voluntarily;
(c) issuing 16 notices requiring the production of documents (issued between 8 July 2016 and 27 March 2018);
(d) obtaining signed witness statements from 27 witnesses (obtained between 15 July 2016 and 12 March 2019);
(e) obtaining and executing seven s.3A Crimes Act search warrants (executed on 18 August 2016 on the residences and vehicles of the applicant and another and on the business premises of Wellington Capital Limited);
(f) reviewing, collating, copying and considering the documents produced as a result of each of the above steps; and
(g) preparing the brief of evidence for submission to the CDPP.
[33]ASIC referred the brief of evidence to the CDPP on 22 November 2016 to enable the Director to determine whether the applicant should be charged, and, if so, what charges should be laid.
[34] The applicant was charged in February 2018.

Issues

According to the Applicant, the following issues arise for consideration and determination:[14]
[14]Exhibit 1, Applicant’s Outline of Key Issues.
1.   Does the Court have jurisdiction to grant the relief sought? This involves, in particular:
a.characterising the nature of the relief sought;
b.considering the effect of s 590AA of the Criminal Code.
2. What is the proper construction of s 49 of the ASIC Act, and what is the relationship between it and s 19 of the ASIC Act? This involves in particular:
a.construing the ‘trigger’ for s 49 which appears in s 49(1);
b.construing ss 19, 49 and 93 together.
3.   Were the examinations of Ms Hutson unlawful? This involves the proper characterisation of undisputed evidence about the state of mind of ASIC delegates carrying out the investigation at the time Ms Hutson was examined.
4.   Ought the Court exercise its discretion to grant the relief sought?
Whilst the Respondent formulated the issues in a slightly different way, it is convenient to consider and determine the Amended Supreme Court Application by reference to the issues as framed by the Applicant.

Jurisdiction

The question of jurisdiction is a threshold issue. If I were not satisfied that the Court had jurisdiction to grant the relief sought, then I would dismiss the matter without further need to determine the other identified issues.

Submissions of the parties

The Applicant submits the Court has jurisdiction to grant the relief sought pursuant to a statutory source of power conferred by s 10 of the Civil Proceedings Act,[15] the more general and broad supervisory jurisdiction the Court possesses over inferior Courts,[16] or in the Court’s general inherent jurisdiction.[17] The Applicant submits the Court has the necessary jurisdiction to grant the relief sought, notwithstanding that the same arguments that she advances in this Court were the subject of an unsuccessful s 590AA application made in the District Court.
[15]T1-5:35-37.
[16]T1-5:37-39.
[17]T1-35:13 – T1-36:8.
The Respondent does not accept that s 10 of the Civil Proceedings Act confers a statutory jurisdiction on the Court to grant the relief sought. Nevertheless, the Respondent accepts that, but for the operation of s 590AA of the Criminal Code, the Court has ‘inherent, original or supervisory jurisdiction’ to make declarations of the kind sought by the Applicant.[18]
[18]T2-28:16-28; T2-30:40-44.
The Respondent nevertheless submits that, notwithstanding the application made to this Court is styled in the form of a civil application, I should conclude it is, in effect, a continuation of the criminal proceedings. This has significance, the Respondent argues, because of the terms of s 590AA. The Respondent draws attention to s 590AA(4), which expressly precludes an ‘interlocutory appeal’ from a ruling or decision made in respect of an application brought under s 590AA(1). The Respondent argues that the present application is in substance, if not form, an interlocutory appeal against such a ruling and, therefore, the Court is deprived of jurisdiction to grant the relief sought.

Nature of the relief sought

The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to ‘state the rights of the parties with respect a particular matter with precision, and in a binding way’.[19] As an incident of the exercise of judicial power, the granting of declaratory relief involves ‘an inquiry concerning the law as it is and the facts as they are’.[20] A declaratory judgment does not create rights. Rather, it is a formal statement by a court pronouncing the existence or nonexistence of a legal state of affairs. It is a remedy that is available to vindicate a legal right.
[19]Warramunda Village Inc v Pryde (2001) 105 FCR 437, [8]; [2001] FCA 61.
[20]R v Trade Practices Tribunal (1970) 123 CLR 361, 374; [1970] HCA 8.
A court may make a declaration of right whenever an applicant’s interest is sufficient to justify it.[21] It is a broad remedy. The power to grant declaratory relief is a discretionary power that it is neither possible nor desirable to fetter by laying down rules as to the manner of its exercise.[22] Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions.[23] Where there is no legal right, no such relief is available.[24]
[21]Nagle v Feilden [1966] 2 QB 633, 647.
[22]Forster v Jododex (1972) 127 CLR 421, 437; [1972] HCA 61.
[23]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10.
[24]Cameron v Hogan (1934) 51 CLR 358, 378; [1934] HCA 24.
It is not necessary that other specific or ancillary relief be sought where declaratory relief is sought.[25]
[25]Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, [39] (Bond J).
The Supreme Court of Queensland is the superior court of record in Queensland and the supreme court of general jurisdiction in and for the State. It has all jurisdiction necessary for the administration of justice in Queensland. It has, subject to the Commonwealth Constitution, unlimited jurisdiction at law, in equity and otherwise.[26] In the exercise of its plenary jurisdiction, the Court may of course make declarations of right.
[26]Constitution of Queensland Act 2001 (Qld) s 58.
The jurisdiction of the Supreme Court includes a general supervisory jurisdiction over inferior courts and tribunals.[27] The Court’s supervisory jurisdiction is original jurisdiction, not appellate jurisdiction.[28] It is part of the Court’s inherent jurisdiction. The Supreme Court may grant declaratory relief in the exercise of its supervisory jurisdiction over inferior courts and tribunals.[29]
[27]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, [98]-[99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 1; Higgins v Comans (2005) 153 A Crim R 565, [5] (McPherson JA) [2005] QCA 234; Palmer v Magistrates Court of Queensland (2020) 3 QR 546, [42]; [2020] QCA 47.
[28] Harrison v President of the Industrial Court of Queensland [2016] QCA 153, [7]-[8] (Jackson J, McMurdo P and Morrison JA agreeing).
[29]Thiess Pty Ltd v President of the Industrial Court of Queensland [2011] 2 Qd R 387, [51]-[57] (Applegarth J); [2011] QSC 294; Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd [2012] 1 Qd R 525, [9] (McMurdo P); [2011] QCA 022; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67, [7] (Applegarth J); Harvey v Commissioner of State Revenue [2014] QSC 183, [104]-[108] (Jackson J); Stuart v Queensland Building and Construction Commission [2018] 1 Qd R 399, [28] (Sofronoff P, Morrison JA and Applegarth J agreeing); [2017] QCA 115.
The nature and extent of the supervisory jurisdiction of State Supreme Courts was considered by the High Court in Kirk v Industrial Court of New South Wales (‘Kirk’).[30] There, the plurality identified the power to confine inferior courts and tribunals within the limits of their authority to decide, by granting relief in the nature of prohibition, mandamus and certiorari, on grounds of jurisdictional error, as a defining characteristic of State Supreme Courts.[31]
[30](2010) 239 CLR 531; [2010] HCA 1.
[31]Ibid [55], [98]-[100].
Their Honours noted the supervisory jurisdiction exercised by State Supreme Courts had a Constitutional dimension, relevantly stating:[32]
[98] The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, ‘with such exceptions and subject to such regulations as the Parliament prescribes’, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the ‘Federal Supreme Court’ in which s 71 of the Constitution vests the judicial power of the Commonwealth.
[99] There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of ‘distorted positions’. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
[100] This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non‑jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non‑jurisdictional error of law appearing on the face of the record is not beyond power.
[32]Ibid [98]-[100].
The plurality observed that the two principal grounds for a grant of relief in the nature of certiorari were usually described as ‘error of law on the face of the record’ and ‘jurisdictional error’.[33] Although their Honours stated that it was neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error,[34] they noted, by reference to the Court’s earlier decision of Craig v South Australia (‘Craig’),[35] that the drawing of a distinction between errors ‘within jurisdiction’ and errors ‘outside jurisdiction’ required different application as between inferior courts on the one hand and administrative tribunals on the other.[36]
[33]Ibid [56].
[34]Ibid [71].
[35](1995) 184 CLR 163; 176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.
[36]Kirk, [67].
In Craig, the Court explained that where available, certiorari was a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal.[37] However, the Court there considered it necessary to distinguish between, on the one hand, the inferior courts which are amenable to certiorari and, on the other, tribunals exercising governmental powers which were also amenable to a writ of certiorari.[38] The Court stated that if an administrative tribunal falls into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law was jurisdictional error, which would invalidate any order or decision of the tribunal. In contrast, such errors by an inferior court would not ordinarily constitute jurisdictional error.[39]
[37]Craig, 175.
[38]Ibid 176.
[39]Kirk, [67]-[68], citing Craig, 179-180.
Whilst emphasising it was important to recognise that the reasoning of the Court in Craig was not to be seen a providing a rigid taxonomy of jurisdictional error, the plurality in Kirk noted the contrasting position with respect to inferior courts, stating:[40]
[71]…The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
[72]First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist' (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’…
[40]Kirk, 573-574 [71]-[73].
The plurality confirmed the continuing utility of the distinction between certiorari for error of law on the face of the record and certiorari for jurisdictional error.[41]
[41]Ibid [80].
These statements by the High Court are particularly instructive in the present case. The Supreme Court’s supervisory jurisdiction over inferior courts and tribunals is not at large. The Court is not empowered to simply pronounce upon the correctness of any decision at all made by an inferior court as if it were exercising some unconstrained power of review or an appellate role. The most obvious class of decisions made by an inferior court that will be amenable to the Court’s supervisory jurisdiction are those where the decision of the inferior court is affected by jurisdictional error in the sense discussed in Kirk and Craig. In contrast, a supposedly erroneous decision of an inferior court acting within jurisdiction will not ordinarily be amenable to the Court’s supervisory jurisdiction.
Although in Craig the Court gave as an example of jurisdictional error by an inferior court the misconstruction of a relevant statute, leading to the inferior court misconceiving the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case, an error of statutory construction of that kind committed by an inferior court will only constitute jurisdictional error where the error goes to ‘a pre-condition of the existence of… authority to make an order or decision in the circumstances of the particular case’.[42] That is, the error must be such that the inferior court has acted in excess of jurisdiction or fails to exercise its jurisdiction.
[42]Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255, [37] (Keane JA, Fraser JA and White J agreeing); [2009] QCA 120.
I accept that the Supreme Court of Queensland’s supervisory jurisdiction may be invoked to seek appropriate relief in respect of criminal proceedings before an inferior court of the State. In such a case, the Court has the power to make a declaration of right if, in the exercise of its discretion, such relief is warranted in the circumstances of the particular case.
I also accept that, aside from the Court’s supervisory jurisdiction, the Supreme Court has an inherent power to grant declaratory relief in the exercise of its general jurisdiction. In that respect, I am satisfied that it would be within the Court’s jurisdiction to make a declaration of right in relation to criminal proceedings if, in the exercise of its discretion, such relief was warranted in the circumstances of the particular case.[43]
[43]Sankey v Whitlam (1978) 142 CLR 1, 20-22 (Gibbs ACJ); [1978] HCA 43; Anderson v A-G (NSW) (1987) 10 NSWLR 198, 200 (Kirby P), 205, 213 (McHugh JA); Nichols v State of Queensland [1983] 1 Qd R 580, 589 (Andrews SPJ), citing Sankey v Whitlam; R v Chardon [2016] 1 Qd R 148, [2] (McMurdo P); [2016] QCA 50.
As Gibbs ACJ stated in Sankey v Whitlam:[44]
It is well established that the power of the court to make a declaration, under a provision such as s. 75 of the Supreme Court Act, 1970 (N.S.W.), as amended, or O. 26, r. 19 of the Rules of this Court, is a very wide one: Forster v. Jododex Aust. Pty. Ltd. It is clear enough that the power of the court is not excluded because the matter as to which a declaration is sought may fall for decision in criminal proceedings. Indeed in Dyson v. Attorney-General, which is one of the foundations of the law on this subject, it was held that the court had power to make a declaration that the plaintiff was not under any obligation to comply with the requisitions contained in a notice sent to him by the Commissioners of Inland Revenue, notwithstanding that neglect to comply with the notice was an offence—see especially per Farwell L.J. Since that time there have been many cases in which the courts have made declarations in relation to questions which could have fallen for decision in criminal proceedings.

[44](1978) 142 CLR 1, 20; [1978] HCA 43.

As to the ‘right’ that may be the subject of declaratory relief, Gibbs ACJ further stated:[45]
The word ‘right’, in the expression ‘declarations of right’ in s. 75 of the Supreme Court Act, 1970 (N.S.W.) and O. 26, r. 19 is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant …
[45]Ibid 23.
It is to be noted that, in this case, the Applicant identifies the ‘privileges, powers and immunities’ in respect of which she seeks declaratory relief as being the right to silence and the right not to be subjected to an unlawful compulsory examination by ASIC in the purported exercise of its powers under s 19 of the ASIC Act.
With respect to the circumstances in which a declaration of right might be made in existing criminal proceedings, in Sankey v Whitlam, Gibbs ACJ stated:[46]
In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. … Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.
[46]Ibid 25-26.

Having regard to the foregoing, I have reached the following conclusions with respect to the threshold issue of jurisdiction.
Firstly, I do not consider s 10 of the Civil Proceedings Act provides a separate statutory source of jurisdiction pursuant to which the declaratory relief sought by the Applicant may be granted. That provision simply serves to make plain that the Court has power to hear an application that seeks only a declaratory order and that such an order may be made without granting any consequential relief.[47] It is not, of itself, a source of jurisdiction.
[47]Nerang Subdivision Pty Ltd v Hutson, [39] (Bond J).
Secondly, I do not consider that the declarations sought by the Applicant are of a kind that may be made in the exercise of the Court’s supervisory jurisdiction. Orders 1(a) and 1(b) sought by the Amended Supreme Court Application do not seek declarations of right in respect of identifiable jurisdictional error arising from any act or omission on the part of Farr DCJ when his Honour was exercising (or, as the Applicant would have it, purporting to exercise) the jurisdiction of the District Court of Queensland. Rather, they seek declarations with respect to the interpretation and operation of provisions of the ASIC Act in the factual circumstances of this case.
Further, whilst orders 1(c) and 1(d) are sought in respect of conclusions reached by Farr DCJ in determining the Stay Application, those matters are not, in my view, amenable to a declaration of right by this Court in the exercise of its supervisory jurisdiction over an inferior court. Each of those proposed orders is expressed in terms that his Honour ‘erred’ in reaching a particular conclusion of law, or mixed fact and law, when construing the relevant statutory provisions in question. They are each framed in terms akin to a ground of appeal, asserting an error by the learned judge when acting within jurisdiction. There is no assertion of any jurisdictional error on the part of his Honour when hearing and determining the s 590AA application.
Moreover, I am not persuaded that proposed orders 1(c) and 1(d), in the terms in which they are expressed, identify a legal right that the Applicant is entitled to seek to vindicate by the making of a declaration.
In those circumstances, in my view, the Respondent’s concession that, subject to the operation of s 590AA of the Criminal Code, the Court has jurisdiction to grant the declarations sought by the Applicant in the exercise of its supervisory jurisdiction, was too lightly given and ought not to have been made.
Finally, subject to further consideration of the issue raised with respect to the effect of s 590AA(4) of the Criminal Code, I am satisfied that the Court has inherent power, in the exercise of the Court’s general jurisdiction, to grant declaratory relief of the kind sought by orders 1(a) and 1(b) of the Amended Supreme Court Application.
That being so, the next question to consider then is whether the Court’s general jurisdiction is restricted or limited in some way by s 590AA(4) of the Criminal Code.

The effect of Criminal Code s 590AA

Submissions of the parties

The parties each accept, in accordance with relevant authority, that the Court’s jurisdiction to grant declaratory relief in respect of criminal proceedings may be ousted by statute, but only where such jurisdiction is excluded by clear words.
The Respondent submits that this is the effect of ss 590AA(3) and (4). The Respondent contends that whilst s 590AA does not state in express terms that the Court’s power to grant declaratory relief in respect of a matter that has been the subject of a ruling under s 590AA(1) is removed, that is the implication resulting from the prohibition contained in s 590AA(4) in circumstances where an application for declaratory relief is properly characterised as an interlocutory appeal. The Respondent further submits that this is such a case.
The Respondent further argues that the present application should be characterised as an extension of the criminal proceedings and an interlocutory appeal against Farr DCJ’s determination. The Respondent submits that this is apparent from the nature and expression of the orders sought by the Applicant, which are styled in the form of grounds of appeal, and which directly challenge the conclusions reached by Farr DCJ by contending his Honour ‘erred’ in various respects.[48] The Respondent argues that the Applicant has adopted the language of an appeal, rendering her application ‘nothing more than an interlocutory appeal dressed up as a civil claim for interlocutory relief’.[49] In the Respondent’s submission, the Applicant’s choice to pursue an application under s 590AA carries the consequence that the present application falls foul of the explicit prohibition on interlocutory appeals contained in s 590AA(4) and must be dismissed.
[48]As I have concluded, that is the case in respect of orders 1(c) and 1(d), but not orders 1(a) or 1(b).
[49]Respondent’s Written Submissions, 5 [18].
However, the Respondent concedes that if it is incorrect in its interpretation of s 590AA(4) and its characterisation of the present application as an appeal, this Court does have the power to make the orders sought by the Applicant.
The Applicant submits that the application is properly brought within the civil jurisdiction and is not to be characterised as a continuation of the criminal proceedings. The Applicant further submits that s 590AA does not contain clear words directly curtailing the Court’s jurisdiction to grant declaratory relief and, therefore, the Court retains its jurisdiction to make the orders sought by the Applicant.
It is pertinent to note that the parties each agree that it would have been open to the Applicant to make an application to this Court for declaratory relief without first making an application in the District Court under s 590AA. The Applicant submits that this distinguishes the application from an appeal.

Relevant legislative provisions

Section s 590AA of the Criminal Code relevantly provides:
590AA Pre-trial directions and rulings
(1)If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling … as to the conduct of the trial or any pre-trial hearing.
(2)Without limiting subsection (1) a direction or ruling may be given in relation to—
(a) the quashing or staying of the indictment; or
…
(3)A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.
(4)A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
Section 590AA(1) permits either the prosecution or the defendant to apply to the trial judge for a pre-trial direction or ruling. Subsections (3) and (4) limit the circumstances in which a party can reopen or challenge a direction or ruling made pursuant to sub-s (1). Under sub-s (3), such a direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing gives leave to reopen the direction or ruling. Subsection (4) further specifies that the direction or ruling must not be subject to ‘interlocutory appeal’.
The Criminal Code does not define the phrase ‘interlocutory appeal’. Indeed, ch 67 of the Criminal Code, which provides for appeals in respect of criminal proceedings on indictment, makes no provision at all for an ‘interlocutory appeal’.
The circumstances in which a pre-trial decision or ruling by a trial judge made under s 590AA may be reviewed before trial by the Court of Appeal are limited to those specifically provided within ch 67 of the Code. Section 668A(1) provides that a Crown Law Officer may refer to the Court of Appeal, for its consideration and opinion, a point of law that has arisen in relation to a direction or ruling under s 590AA given by another court as to the conduct of a trial or a pre-trial hearing. In addition, under s 669A(1A), a Crown Law Officer may appeal to the Court of Appeal against an order staying proceedings on an indictment.
No such avenues of ‘appeal’ are available to an accused person. Rather, pursuant to s 668B(1) of the Criminal Code, where an accused person is tried on indictment in respect of an indictable offence, the accused person may apply to the trial judge to reserve a question of law which arises on the trial for the consideration of the Court of Appeal. In such a case, and where the accused person is convicted, the trial judge is required to state a case in respect of the question of law reserved,[50] and the question so reserved is to be heard and determined as an appeal by the Court of Appeal.[51]
[50]Criminal Code s 668B(3).
[51]Ibid s 668B(4).

Test for ouster of jurisdiction

In Forster v Jododex, Gibbs J stated:[52]
The jurisdiction to make a declaration is a very wide one. Indeed, it has been said that, ‘under O. XXV, r. 5, the power of the Court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion’: … However, the jurisdiction may be ousted by statute, although the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words.
[52](1972) 127 CLR 421, 435-436; [1972] HCA 61.
This test was applied in Heerey v Criminal Justice Commission,[53] where the Court of Appeal considered whether, on its proper construction, s 101(1) of the Criminal Justice Act 1989 (Qld) ousted the Court’s jurisdiction to make declarations in respect of the use of listening devices by officers of the Criminal Justice Commission. In holding that it did not, Thomas JA stated:[54]
The point at issue is whether the court’s jurisdiction to make declarations has been ousted. Whilst it is possible for such a result to be achieved courts do not lightly infer that such jurisdiction has been excluded, and clear words are necessary. The breadth and utility of this remedy and its important role in the shaping of modern administrative law is well recognised. It has been observed that at the time of its origin, declaratory relief was about the only relief available to a subject against the Crown as the courts were unable to make coercive orders against the Crown. This supervisory jurisdiction, as it has now developed, remains one of the critical tools by which courts protect individual rights and maintain the rule of law.
[53][2001] Qd R 610; [2000] QCA 511.
[54]Ibid [24].
In the present case, the critical issue is therefore whether the language of s 590AA(4) constitutes clear words capable of ousting the Court’s jurisdiction to grant relief of the kind sought by the Applicant.

Previous decisions

This issue has not previously been authoritatively determined. There have, however, been past cases that have considered similar issues.
In R v Long (No 1) (‘Long’),[55] the defendant sought to appeal to the Court of Appeal, pursuant to former s 69(1) of the Supreme Court of Queensland Act 1991 (Qld), against a Supreme Court judge’s refusal of his pre-trial application under s 559 of the Criminal Code for a change of venue for his trial from Bundaberg to Brisbane. The defendant also sought a declaration to the effect that the trial should be held in Brisbane.
[55][2002] 1 Qd R 662; [2001] QCA 318.
At the time, s 69(1) of the Supreme Court of Queensland Act provided:
69 Appeal in proceedings in the court
(1) Subject to this and any other Act, an appeal lies to the Court of Appeal from—
(a) any judgment or order of the court in the Trial Division; and
(b) without limiting paragraph (a)—
(i) a judgment or order of the court in the Trial Division made under this Act; and
(ii) any opinion, decision, direction or determination of the court in the Trial Division on a stated case; and
(iii) any determination of the court in the Trial Division or a District Court in a proceeding remitted under section 68.
The appeal was dismissed as incompetent. The Court concluded there was no right of appeal from an order of a trial judge refusing such an application made under s 559 of the Criminal Code. The Court also declined to grant the declaratory relief sought.
In rejecting the appellant’s argument with respect to the competency of the appeal, Williams JA, with whom Byrne J agreed, commenced by surveying the legislative history and context of s 559 and what was then more recent introduction into the Criminal Code of s 592A (the precursor to present s 590AA). His Honour noted that whilst s 559 was one of the few interlocutory applications, and perhaps the only one, specifically provided for by the Criminal Code, it was not one of the matters specified in s 592A(2) in respect of which a pre-trial direction or ruling could be sought. Nevertheless, his Honour concluded that this was immaterial and there was no good reason for concluding that such an application would be caught by the more general wording of s 592A.[56]
[56]Ibid [32].
Williams JA then went on to state the following with respect to s 592A:[57]
[33]Importantly for present purposes rulings made under the section are binding unless ‘special reason’ is shown and s. 592A(4) provides that a ‘direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence’. The latter was a statutory enactment of a well-recognised principle that there could not be an appeal from an interlocutory order made in the course of a criminal trial. There was no right of appeal, either on the civil side or the criminal side, at common law; an appeal is a creature of statute. The Criminal Code provided in ch. 67 for appeals in certain circumstances. Critically s. 668D, inserted into the Code by amendment in 1913, provided that a ‘person convicted on indictment may appeal’ to the Court of Criminal Appeal ‘against his conviction’. There was no significant amendment of that prior to 1991. If one looks at the position in, say 1990, there was no s. 592A and relevantly only a person convicted on indictment had a right of appeal pursuant to s. 668D. In the light of those provisions the Court of Criminal Appeal between 1899 and 1990 would not have had jurisdiction to entertain an appeal against an order made on an application for a change in the place of trial. Indeed it is not without significance that there is no recorded case between 1899 and 1990 of such a matter coming before the Court of Criminal Appeal, except as a ground of appeal taken after conviction.
[34]The Supreme Court of Queensland Act1991 abolished the Court of Criminal Appeal and invested the newly created Court of Appeal with jurisdiction to hear appeals against convictions on indictment; see the amendments to ss 668 and 668D of the Code. But importantly the right of appeal pursuant to s. 668D was still limited relevantly to a ‘person convicted on indictment’.
[35]Between 1991 and 1997 (when s. 592A was inserted) there was no provision of the Code which would have entitled an accused person to appeal to the Court of Appeal against an order made pursuant to s. 559 prior to conviction (see per Davies J.A., at 580 and Pincus J.A. at 586–587 in R. v. Lowrie [1998] 2 Qd.R. 579). In the light of that, as already noted, the inclusion of subs. (4) in s. 592A was no more than an express statutory recognition of a position which already existed.
[57]Ibid [33]-[35].
Williams JA adopted the reasoning of Davies JA in R v Lowrie (‘Lowrie’),[58] where, in respect of the question of whether the Court of Appeal had jurisdiction to entertain an appeal from an interlocutory order made by a judge of the Trial Division of the Supreme Court in a criminal matter, Davies JA had stated:[59]
It may be doubted whether, having regard to the historical context, its position in the Act and its section heading, s 69 was intended to confer on the Court of Appeal any appellate jurisdiction not formerly possessed by the Full Court or the Court of Criminal Appeal. Nor is there anything in the explanatory note to the Bill for that Act or in anything said by the Premier on its introduction into Parliament which indicates any such intention.
But I think it is unnecessary here to explore that question further. The statutory context, to which I have already referred, with respect to proceedings on indictment remained unchanged by the Supreme Court of Queensland Act1991. I would therefore conclude that, whatever effect these provisions may have upon the jurisdiction of this Court in respects other than appeals against judgments or orders made in proceedings on indictment, they were not intended to enlarge the rights of appeal, conferred by Chapter 67 of the Criminal Code, from judgments or orders made in such proceedings.
[58][1998] 2 Qd R 579; [1997] QCA 434.
[59]Ibid 584.
It is to be noted that the conclusion with respect to the limited appeal rights applicable to proceedings on indictment reached by Davies JA in Lowrie and adopted by Williams JA in Long has been more recently confirmed in subsequent decisions of the Court, such as R v Woodman[60] and R v Verrall.[61]
[60][2010] QCA 162, [18] (White JA, McMurdo P and Fraser JA agreeing).
[61][2013] 1 Qd R 587; [2012] QCA 310, [14] (Holmes JA, Philippides and Douglas JJ agreeing).
Williams JA also considered that another reason for the incompetence of the appeal was the effect of s 592A, which had not existed at the time of Lowrie.[62] On that point, his Honour relevantly stated:[63]
[33]… Further, in my view the introductory words to s. 69 make it subject to the provisions of any other Act, and that includes the Criminal Code. That Code is, as its title indicates, a Code with respect to the criminal law. As by its terms appeals from criminal matters commenced by indictment are strictly limited, there is no room for a general provision such as s. 69 to enlarge the right of appeal.
[34]When s 592A was inserted recognising that a ruling thereunder could not be subject to an interlocutory appeal, s. 669A was also amended by inserting (1A) providing that the Attorney-General may appeal against an order staying proceedings or further proceedings on an indictment. It would be unusual to say the least to conclude that Parliament intended by s. 69(1) of the 1991 Act to confer a right of appeal from an order under s. 559 of the Code where no appeal existed prior thereto and when, by virtue of the 1997 amendments to the Code, no appeal would lie with respect to any other interlocutory order, except an appeal by the Attorney-General pursuant to s. 669A(1A).
[62]Section 592A came into operation on 1 July 1997.
[63]Long, [38]-[39].
With respect to the declaration sought by the appellant in Long, Williams JA referred to his Honour’s earlier judgment in R v Farr,[64] in which he had expressed ‘no doubt’ that the Court of Appeal had power to grant relief by way of declaration, but that it would only exercise its jurisdiction in ‘the most exceptional of circumstances’. His Honour then further stated:[65]
…Those remarks were made with respect to the power of this Court to grant, in exercise of a supervisory jurisdiction, declaratory relief in exceptional circumstances where an appeal would not lie pursuant to the provisions of the Code. If such statements be correct in principle they are of no avail to Long in this case.
[64](1994) 74 A Crim R 405, 411-412; [1994] QCA 266.
[65]Long, [44].
Similarly, on the question of the availability of declaratory relief, Byrne J observed:[66]
Perhaps despite Chapter 67 of the Code, this Court, in an original jurisdiction, may by declaration effectively pronounce on the correctness of interlocutory orders in proceedings upon indictment. But if that be so, the jurisdiction would not be exercised in other than most exceptional circumstances. For if interlocutory rulings could routinely be challenged by claims for declaratory relief, the expeditious conduct of criminal cases would be in serious jeopardy. And ‘the undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration’.
[66]Ibid [53], citing Yates v Wilson (1989) 168 CLR 338, 339; [1989] HCA 68, cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 339; [1990] HCA 43.

In R v Chardon (‘Chardon’),[67] the Court of Appeal considered an appeal by a defendant who had unsuccessfully applied to the District Court under s 590AA(1) of the Criminal Code for his trial to be transferred to Brisbane and for a judge alone trial. During the hearing of the appeal, the appellant conceded that an appeal against the interlocutory orders made by the trial judge was not available, as it was precluded by s 590AA(4). However, the appellant then sought leave to file an application for a declaration that he should be tried in the District Court at Southport by a judge without a jury.
[67][2017] 1 Qd R 148; [2016] QCA 50.
The Court of Appeal dismissed the application. With respect to the form of the application and the unavailability of a right to appeal, Gotterson JA stated (with Morrison JA agreeing):[68]
The Form 26 is headed ‘Notice of Appeal or Application for Leave to Appeal against Conviction or Sentence’ and states that it is for appeals other than under s 118 of the District Court of Queensland Act 1967. As its heading suggests, the Form 26 is for appeals under Chapter 67 of the Code. Chapter 67 confers statutory rights of appeal against conviction and against sentence passed on conviction. It does not confer a right to appeal before conviction or sentence against a pre-trial direction or ruling made under s 590AA(1). That it does not do so is explained by, and conformable with, the express prohibition in s 590AA(4) that such directions or rulings must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
[68]Ibid [9].
With respect to the relief sought, the appellant argued that the Court was able to grant the declaration in the exercise of its supervisory jurisdiction over the District Court. In support of that argument, the appellant referred to the observations of Byrne J in Long, which I have set out above. Gotterson JA rejected the appellant’s argument, relevantly stating:[69]
In my view, there are difficulties with this submission at several levels. Firstly, the relief sought by the application is not appropriate for the exercise of a supervisory jurisdiction. The relief would not operate in a supervisory way upon any order made by a judge of the District Court. The application therefore does not seek relief which, to use the words of Byrne J, would effectively pronounce upon the correctness of any order of the District Court. Additionally, the court or judge whom it is sought to have supervised by relief is not a party to the application.
[69]Ibid [16]. It was this last observation that no doubt led to the Applicant joining his Honour Judge Farr as a party to this proceeding.
The appellant’s alternative argument in Chardon was that the Court had jurisdiction to grant the declaratory relief sought in the exercise of its original jurisdiction. That argument was also rejected by Gotterson JA. Whilst his Honour accepted that there were cases where declarations had been made by appellate courts in respect of criminal proceedings, such as Sankey v Whitlam and Anderson v Attorney-General (NSW), his Honour also noted that each of those cases involved proceedings in which the legal validity of a step or finding concerning the Applicant for relief was in issue, and that was not the case in respect of Chardon.[70]
[70]Ibid [21].
In those circumstances, Gotterson JA observed that it was ‘far from clear’ that the Court of Appeal had jurisdiction to grant the declaratory relief sought. However, as the Court did not have the benefit of full argument on the matter, his Honour refrained from making a final determination on the issue.[71]
[71]Ibid [22].
Nevertheless, Gotterson JA was of the firm view that, even if such jurisdiction did exist, discretionary considerations would weigh conclusively against the granting of the declaratory relief sought. Those considerations included the operation of, and rationale behind, ss 590AA(3) and (4) of the Criminal Code. In respect of the significance of those provisions, his Honour stated:[72]
[26]Secondly, the foreclosure of rights of appeal at an interlocutory stage with respect to pre-trial directions and rulings is a powerful consideration against granting declaratory relief which could have a practical outcome broadly analogous with that of an appeal. This consideration is reinforced by the provisions of s 590AA(3) which provide that such directions and rulings are binding ‘unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling’.
[27]Thirdly, the policy underlying s 590AA(4) obviously is to avoid fragmentation of the criminal trial process. Strong judicial endorsement of that policy was expressed by Dawson J, sitting as a single justice of the High Court, in Re Rozenes; Ex parte Burd,[73] in which the discretion was exercised against granting an order nisi in prerogative proceedings in respect of a criminal trial. The accused had been arraigned but the jury had not been empanelled. His Honour said:
‘This Court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances. As Brennan J said in Beljajev v Director of Public Prosecutions,[74] “The jurisdiction of this Court is not fitted to the supervision of interlocutory processes of a criminal trial”.’
[72]Ibid [26]-[27].
[73](1994) 120 ALR 193, 195; [1994] HCA 11.
[74](1991) 173 CLR 28, 32; [1991] HCA 16.
In separate reasons, McMurdo P accepted that the Court had power to make declarations in criminal proceedings ‘where the primary court has exceeded jurisdiction’ and also a ‘general jurisdiction to make declarations concerning a right, duty or obligations in criminal proceedings where there are exceptional or special circumstances’.[75] Nonetheless, her Honour ultimately agreed with the order to dismiss the application for declaratory relief on the basis that the Applicant had failed to demonstrate any exceptional circumstances.[76] In reaching that conclusion, her Honour relevantly stated:[77]
…The legislature has made crystal clear in s 590AA(3) and (4) Criminal Code1899 (Qld) that it intends there be no interlocutory appeal from orders of this kind, whilst preserving an accused person’s right to raise any complaints about the interlocutory order in a subsequent appeal against conviction or sentence. These are powerful considerations weighing against the granting of the declaration. Further, as Gotterson JA explains in his reasons, there are sound policy concerns supporting this legislative intent.
[75]Chardon, [2], citing Sankey v Whitlam and Anderson v A-G (NSW) for the latter proposition.
[76]Ibid [6].
[77]Ibid [5].

Conclusion

In both Long and Chardon, the Court did not authoritatively decide the question I am confronted with in this application, namely, whether the Supreme Court has jurisdiction to grant declaratory relief in respect of criminal proceedings before the District Court in respect of a pre-trial ruling made by that Court following an application brought under s 590AA of the Criminal Code.
In each case, the Court made observations about the possible existence of the Court’s jurisdiction to grant declaratory relief in respect of interlocutory orders made in a pending criminal proceeding, but nevertheless confirmed that if such jurisdiction was available, it would only be exercised in ‘exceptional circumstances’. In each case, the Court also concluded that discretionary considerations, including in particular provisions such ss 590AA(3) and (4), and the undesirability of fragmentation of criminal proceedings, were factors that weighed heavily against granting such relief.
In each case, the Court did not consider or conclude that the Court’s jurisdiction to grant declaratory relief was ousted by operation of s 590AA(4) as the relevant application for declaratory relief amounted to an ‘interlocutory appeal’.
Nevertheless, Long and Chardon are instructive and inform the approach to be taken to the question I must decide.
In my opinion, s 590AA(4) does not oust the Court’s jurisdiction to grant declaratory relief in respect of a matter that has been the subject of a ruling or decision made pursuant to an application brought under s 590AA(1). There are four principal reasons why this is so.
Firstly, the language used in s 590AA(4) does not clearly and explicitly preclude an application for declaratory relief. I do not consider the words used in s 590AA(4), viz. ‘A direction or ruling must not be subject to interlocutory appeal…’, satisfy the requirement for clear words to be used to oust the Court’s jurisdiction.
Secondly, I do not accept the Respondent’s argument that, by implication, the words ‘interlocutory appeal’ would encompass an application such as the present on the basis that it is in reality, by its substance and effect, an interlocutory appeal. In my view, this is an unwarranted and unprincipled gloss on the test identified in Forster v Joddodex and applied in Heerey v Criminal Justice Commission. If such an approach were adopted, the Court would be required to scrutinize applications of this kind to identify and consider the factors said to give it that complexion. Such an approach would be open to differences in interpretation and would have the potential for increased uncertainty as to whether a particular application for declaratory relief was, or was not, in effect an interlocutory appeal. It would supplant a test requiring clear words within a statute, which applies equally to all cases, with one requiring an interpretation of the substance and merits of each particular case.
Thirdly, as the judgment of Williams JA in Long makes plain, the purpose of former s 592A(4), and by extension the purpose of current s 590AA(4), was to confirm the position that already existed that there was no interlocutory appeal rights available to an accused person in respect of an interlocutory order made in respect of proceedings on indictment. The provision was not intended to oust the Supreme Court’s jurisdiction to grant other relief in an appropriate case. In my view, although there is no mechanism within ch 67 of the Criminal Code for an interlocutory appeal, the words ‘interlocutory appeal’ are deliberately used in s 590AA(4) and are intended to refer to an appeal in the sense of a statutory right of appeal in respect of a proceeding on indictment. They are not intended to refer to some other process or form of relief that may otherwise be available to an accused person in proceedings on indictment.
Finally, as I have previously noted, both parties accept that it was open to the Applicant to make an application directly to the Supreme Court for declaratory relief without first bringing an application in the District Court under s 590AA. Had the Applicant done so, the parties accept this Court would have had inherent jurisdiction to make the orders. I agree. In my view, it would therefore be anomalous for s 590AA(4) to curtail the Supreme Court’s jurisdiction simply because the Applicant made an application under s 590AA(1), where it was always open to the Applicant at any time after she had been charged to make an application to this Court seeking declarations, at least in the terms of the Amended Supreme Court Application orders 1(a) and (b).
Therefore, in my view, s 590AA does not oust this Court’s jurisdiction to make declarations of the kind sought by the Applicant by order 1(a) and (b) of her Amended Supreme Court Application. Whether or not the Court should grant such relief, however, is a matter that requires that I be satisfied that, firstly, there is a proper foundation for the making of such orders, and, secondly, that discretionary considerations weigh in favour of granting the relief.
Before considering the construction issues raised by this application, it is pertinent to note the position of the parties with respect to the effect and utility of making declarations of the kind sought by the Applicant. Declarations of right in the form of orders 1(a) and (b) as sought would not, of themselves, directly compel a judge of the District Court to do anything. There is no ancillary or consequential relief sought by the Applicant.
However, the parties agree that, if I were to accept the Applicant’s argument on the construction issues and make the declarations as sought in the exercise of my discretion, then the Applicant could seek leave in accordance with s 590AA(3) to reopen the ruling made by Farr DCJ. I would expect that to be so. The judge hearing that application would be bound to apply the law in accordance with the rights so declared.

Construction issues

The relevant statutory provisions that I am concerned with are ss 19, 49 and 93 of the ASIC Act. Those provisions relevantly provide:[78]
[78]As per the version of the legislation current at the relevant time of the 2016 examinations.
19 Notice requiring appearance for examination
(1)This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.
(2)ASIC may, by written notice in the prescribed form given to the person, require the person:
(a)         to give to ASIC all reasonable assistance in connection with the investigation; and
(b)    to appear before a specified member or staff member for examination on oath and to answer questions.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
(3)A notice given under subsection (2) must:
(a)    state the general nature of the matter referred to in subsection (1); and
(b) set out the effect of subsection 23(1) and section 68.
49 ASIC may cause prosecution to be begun
(1) This section applies where:
(a)     as a result of an investigation; or
(b)     from a record of an examination;
conducted under this Part, it appears to ASIC that a person:
(c) may have committed an offence against the corporations legislation; and
(d)     ought to be prosecuted for the offence.
(2) ASIC may cause a prosecution of the person for the offence to be begun and carried on.
(3) If:
(a) ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or
(b) the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;
ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).
(3A) An offence under subsection 63(3) relating to subsection (3) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) Subsection (3) does not apply in relation to:
(a)        the person referred to in subsection (1); or
(b)         a person who is or has been that person’s lawyer.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4), see subsection 13.3(3) of the Criminal Code.
(5) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.
93 Effect of Part
(1) Except as expressly provided, nothing in this Part limits the generality of anything else in this Part.
(2) The functions and powers that this Part confers are in addition to, and do not derogate from, any other function or power conferred by a law of the Commonwealth, a State or a Territory.

Reasons of Farr DCJ

Although the present application is not to be determined as if it were an appeal in respect of an asserted error of law made by Farr DCJ, it is convenient to set out in greater detail his Honour’s analysis and conclusion with respect to the construction issues. In doing so, I keep firmly in mind that the ultimate issues that I must consider are whether the Applicant has established a proper basis for the declaratory relief sought and, if so, whether it is appropriate to grant such relief in the exercise of discretion. A proper basis would only be established if, firstly, the Applicant’s argument with respect to the proper construction of s 49 and its interaction with s 19 is correct.
The essential conclusions and reasons of Farr DCJ for dismissing the Stay Application are contained in the following paragraphs of his Honour’s judgment:[79]
[79]R v Hutson [2021] QDCPR 78, [56]-[58], [66]-[67], [72], [76], [85].
[56]There is no dispute between the parties that if s. 49 had application at the time of the examinations, then the applicant could not have been lawfully compulsorily examined pursuant to s. 19.[80]
[80]The Respondent does not maintain that position in this proceeding.
[57]The question for determination is whether, at the time of the examinations, s. 49(4) had application, that is, that ‘as a result of an investigation, it appeared to ASIC that the applicant may have committed an offence against the corporations legislation and ought to be prosecuted for the offence’.
[58] That is a question of fact, although it may also involve the determination of a question of law when deciding it.
…
[66] It is immediately apparent that that phrase does not mean that s. 19 authorises the examination of a person once ‘it appears to ASIC that [that] person may have committed an offence against the corporations legislation and that that person ought to be prosecuted for that offence. Yet, that was the applicant’s submission as to the meaning of s. 49(1). The word ‘once’, in this submission, is inconsistent with the section and suggests that s. 19 ceases to have effect at whatever point during an investigation the s. 49(1) criteria are met. That is not what the section says. If in fact, that had been the intention of Parliament, then unambiguous wording would have been both necessary and easily achievable.
[67]The term, ‘as a result of an investigation’ connotes a viewpoint being reached at or near the end of an investigation. It is difficult to discern the result of something until that thing has concluded, or has reached such a stage that the obvious conclusion is inevitable.
…
[72]Furthermore, I note that s. 19 is not stated to be subject to s. 49. The two provisions relate to two very different stages in the investigative and prosecutorial processes. Section 19 relates to ASIC’s powers at the ‘investigation’ stage, whereas s.49 relates to its more limited powers at the prosecutorial stage.
…
[76]Further, an investigation cannot be said to cease immediately upon a particular investigator forming a belief that a particular suspect had likely committed an offence. An investigator who refers a brief to the CDPP for assessment as to whether charges can be proved, is likely to have formed a belief that the particular suspect has committed the relevant offence. However, it is common and appropriate for the Commonwealth Director, having been provided a brief of evidence, to advise that further evidence should be obtained before charges are to be commenced. It could not be suggested, in those circumstances, that a determination that a brief of evidence should be sent to the Director in some way brings an investigation to an end.
[77]It follows then that the mere fact that Bastianon formed a belief that the applicant had committed offences did not bring an end to the ASIC investigation. At the time the s. 19 notice was sent, a brief to consider charges had not been referred to the CDPP and no charges had been laid. On Bastianon’s evidence, he believed that the applicant could give information relevant to the investigation of the potential offending.[81]
…
[85]Taking all matters into account, I am not persuaded that the applicant, at the time of the May and June examinations was a person to which s. 49(1) applied. It follows that such examinations were conducted lawfully, in that s. 19 had application.
[81]Ibid [76]-[77].

As to the identity of the person who must hold the requisite state of mind, I do not accept the Applicant’s submission that the person is any one of the ASIC investigators in this case, nor do I necessarily accept the Respondent’s submission that the decision must be made by ASIC ‘institutionally’.
In my view, for the reasons I have already set out above, the relevant state of mind is that of the person who will have the responsibility for deciding whether a person ought to be prosecuted for an offence. That person must necessarily be the person who exercises the relevant power conferred by s 49(2). Section 49(1) is not to be considered in isolation. It has no free-standing operation. It prescribes the requirements that must exist before s 49 will apply. It provides the preconditions or ‘trigger’ for ASIC (or an ASIC delegate) to exercise its powers under ss 49(2) or (3). The person who exercises the power must therefore first hold the requite state of mind upon which the exercise of power is conditioned. Consequently, the delegate who exercises the power in sub-s (2) must be the same person who has formed the state of mind required by sub-s (1). Therefore, it is the person who will decide whether ASIC will cause a prosecution to be begun that must hold the requisite state of mind under s 49(1). It is in that sense perhaps that it is apt to say there is an ‘institutional’ determination.
Simply because one or more ASIC delegates has a particular belief, opinion or state of mind does not mean that their view is taken to be satisfaction of the requisite state of mind of ASIC for the purposes of s 49. There may be numerous investigators who are also ASIC delegates, working on any given investigation. As an investigation unfolds, they will invariably have formed their own views about what an investigation reveals about whether a person may have committed an offence and ought to be prosecuted. Ultimately, however, it is not their views or opinions that are determinative. In organisations like ASIC, officers are given ordinary authorities and responsibilities in addition to formal delegations. Within the lines of authority established by ASIC, a particular matter will be committed to the responsibility of an appropriate officer. In my view, that will be the case with respect to the forming of an opinion under s 49(1). It will therefore be the opinion of the authorised, responsible ASIC delegate who exercises the power in s 49(2) that must be considered.[131]
[131]Little River Goldfields NL v Moulds (1991) 32 FCR 456, 462-463 (Davis J).
The position is different in the case of the exercise of the s 49(3) power. In that situation, the ASIC delegate may be another investigator other than the responsible ASIC delegate who held the requisite state of mind under s 49(1). That is because the occasion to consider the use of the s 49(3) power will only arise where the s 49(1) opinion has already been formed and the decision made by ASIC that the person ought to be prosecuted for the purpose of exercising the power in s 49(2). In that case, the state of mind of the responsible ASIC delegate is taken to be the state of mind held by ASIC. Therefore, when ASIC (the body corporate) comes to exercise the powers in s 49(3) through another ASIC delegate, ASIC (the body corporate) already holds the requisite s 49(1) state of mind.
I do not consider any anomalous or incongruent consequences arise from my conclusions about the proper construction of s 49 and its interaction with s 19. The ‘carve out’ in s 49(4) will only operate to exempt a person from being subjected to a requirement made under s 49(3) where ASIC has decided they should be prosecuted for an offence. An investigation may still be continuing, notwithstanding ASIC has formed that opinion and made that decision. However, that does not preclude the operation of s 19(2).
The conclusions I have reached concerning the proper construction of s 49 mean that the Applicant’s contention that the 2016 Examinations were unlawful will turn upon whether the relevant evidence shows that ASIC had made a decision to prosecute the Applicant at the time she was compulsorily examined.

Were the 2016 examinations unlawful?

Submissions

The Applicant submits that the relevant evidence clearly establishes that ASIC had formed the composite state of mind required by s 49(1) before the Applicant was compulsorily examined pursuant to a requirement made of her under s 19(2).
The Applicant contends that in those circumstances, the 2016 Examinations were unlawful because s 49(4) would exempt her from being subjected to the use by ASIC of its coercive powers to give ‘all reasonable assistance’ under both ss 49(3) and 19(2).
The Respondent submits that, even if the Applicant’s interpretation of s 49 is accepted, s 49(1) was not engaged as the evidence does not demonstrate ASIC had formed the composite state of mind required by s 49(1) as no decision or determination had been made by ASIC to prosecute the Applicant at that time.
To resolve this issue, it is necessary to consider the relevant evidence in some detail.

Evidence

I have already extracted the investigation chronology summarised by Farr DCJ at the commencement of these reasons. To that, it is necessary to add the following.
Between 30 September and 11 October 2019, a committal hearing was held in the Brisbane Magistrates Court in respect of the charges. The relevant transcripts of the evidence given in those proceedings are in evidence before me.[132] Other relevant documents concerning the ASIC investigation are also in evidence.
[132]Affidavit of Patrick Quinn, sworn 14 December 2021, [28]-[29], Exhibit ‘PMQ-23’.
The investigation was formally commenced following a decision made by the relevant ASIC delegate, Brendan Caridi, a Senior Manager within ASIC’s Corporations and Corporate Governance Enforcement Team. The decision was recorded in a document titled ‘Section 13 File Note’ dated 12 January 2016.[133] Within that file note, Mr Caridi noted his determination:
As a result of my review, I have reason to suspect that there may have been contraventions of sections 184, 606 and 671B of the Corporations Act 2001 in relation to the trading and the securities of Affinity between the period 2 July 2015 and 21 October 2015.
I am also of the view that it is expedient for the due administration of the Corporations legislation that ASIC investigate the matters set out above, and that it is appropriate that ASIC investigate the suspected contraventions of the Corporations Act set out above.
[133]Ibid [13], Exhibit ‘PMQ-9’.
Between 12 January and 5 April 2016, ASIC investigators Mathew Bastianon and Peter Paleologos took various steps to advance the investigation, including by issuing of statutory notices to produce documents and conducting compulsory examinations in respect of a number of persons. They also commenced drafting witness statements for a proposed prosecution of the Applicant.
On 31 March 2016, Mr Caridi sent an email to each of Messrs Bastianon and Paleologos seeking an update about the progress of the investigation.[134] The email read:
When will a brief be ready to present to the CDPP (or NFA memo ready for George if the evidence doesn’t stack up)?
I’d like you to crunch the numbers and give me the best estimate (beware: I will probably ask to see the underlying assumptions!!). If you could let me know by mid next week that would be good.
[134]Ibid [14], Exhibit ‘PMQ-10’.
In response to that email, Mr Bastianon sent a reply email on 5 April 2016 in which he relevantly stated:[135]
Peter and my best estimate for when a brief to the CDPP (or, alternatively, a NFA recommendation) will be ready is by 15 July.
Our estimate is based on the following practical realities:
(1) We are in the process of issuing notices to a number of persons to produce documents directly relevant to the proposed charge under s1309 based on the revised scope (which have not previously been obtained), for example, to the ASX, brokers and Affinity. We will require time to review these documents once they are produced to see if there is anything else we need to obtain. Further documents from G8 may also need to be obtained under notice.
(2) We have commenced drafting with the statements,; however, a large number will incorporate the documents currently being sought under notice. These statements will not be able to finalised until we have reviewed what is produced.
(3) We will, of course, need to examine Hutson and then review her evidence to see what ‘holes’ need to be covered as a result of what we are told and to assess any possible defences. We may also take the opportunity to examine a couple of other minor witnesses to close off a couple of issues…
Once all this is done, and before preparing a final brief, as discussed, it may be useful to seek advice from CLO about the CDPP’s appetite in relation to the proposed charges (which may take a little time to obtain). After that, a brief (or NFA memo) will be prepared.
[135]Ibid [14], Exhibit ‘PMQ-10’.
In his evidence at the committal hearing, Mr Bastianon confirmed that he was employed by ASIC and assigned to the Corporations and Corporate Governance Enforcement Team. He confirmed this was the team responsible for the investigation into the matter involving the Applicant. His position in the team at the time was project manager and senior lawyer and his role was ‘…effectively to fulfill administrative tasks associated with the investigation and report upwards…to my senior manager and beyond.’[136]
[136]Committal Hearing, T6-3:45 – T6-4:15.
Mr Bastianon was cross-examined about the emails between Mr Caridi and himself and his state of mind concerning the Applicant.[137] The relevant evidence given by Mr Bastianon was as follows:[138]
[137]It is to be noted that, at that time, the full email from 31 March 2016 written by Mr Caridi had not been disclosed.
[138]Committal Hearing, T7-5:6 – T7-6:23.
You will now acknowledge, I expect, that as at the 5th of April, it was proposed, at least by ASIC, that charges be brought against Ms Hutson?---Yes.
And you had reached a view, had you not, therefore, that Ms Hutson may have committed a criminal offence?---Yes.
And - - -?---We – sorry - - -
Yeah, that Ms - - -?--- - - - I’ll rephrase that. We suspected that she committed a criminal offence, yes.
Yeah. Well, you’d reached the view that she had. You wouldn’t be proposing charges if your view was that she only may have, or that there was a possibility. Your view was that she had committed criminal offences?---My view was that we suspected that she had, and that a brief would be prepared for the DPP for them to decide whether or not charges should be laid.
So if you’d been asked on the 5th of April, when discussing the proposed charges, ‘Do you think that she has committed those offences?’ Your answer would have been, ‘Yes, I do’?---As I just said, we suspected that she had.
Yep, and also your view was that she ought to be prosecuted?---Our view was that we were preparing a brief of evidence, that we thought supported our suspicions that she had committed criminal offences, to provide to the DPP so that they could evaluate that brief of evidence and make a decision as to whether or not it was appropriate that charges should be laid.
Mr Bastianon, you were, at the 5th of April, intending to recommend charges against Ms Hutson, correct?---Yes.
Therefore, it follows that it was your view that she ought to be prosecuted?---It was my view that we had sufficient - - -
Would you – I’m sorry, you’ve given an earlier answer – now attend to that, please. It was your view that she ought to be prosecuted, yes or no?---Well, I’m sorry, Mr Clelland, it’s not – I can’t answer that as a yes or no. My view, as I stated, was that – our position was that we had sufficient evidence to support our suspicion that criminal offences had been committed by Ms Hutson, and that a brief was being prepared to supply to the DPP for them to make that decision.
Recommending charges?---Of course.
Right. You wouldn’t recommend charges if you didn’t think someone should be prosecuted, would you?---We wouldn’t recommend charges if we didn’t suspect that somebody had committed - - -
No?--- - - - criminal offences.
No, the question was, you would not recommend charges if you did not think that somebody should be prosecuted?---Yes, that’s correct.
Do you understand the question?---Yes, I understand the question. That’s correct.
And you agree with the proposition?---I do.
In the memorandum of the 5th of April 2016 there are references to witnesses, or potential witnesses; you agree with that?---Yes. Paragraph 2?
Yeah?---Yes.
And Ms Hutson was in no way, shape or form being considered as a witness or potential witness, was she?---Obviously not.
You are not viewing her at that point in time in any sense as a potential witness?---Of course not.
In re-examination, Mr Bastianon gave the following evidence:[139]
[139]Ibid T7-24:12 – T7-25-3, 23-36.
And just a couple of questions about the email of the 5th of April 2016. Do you still have that in front of you? That’s your email to Mr Caridi?---Yes. Fifth of April?
Yes?---Yes, I have that.
If you look at the first sentence of that?---Yes.
You’ve commenced by saying:
Peter and my best estimate [indistinct] a brief to the CDPP.
And then you’ve put some further words in parenthesis?---Yes.
Can you tell us what an ‘NFA recommendation’ is?---No further action.
Well, the first – you appear to have posed two options in that sentence. One is that a brief would be sent to the DPP and then you pose an alternative?---Yes.
Why did you include the NFA recommendation as an alternative in this memo?---We were considering at that stage, your Honour, a number of possible offences that had been committed, but we had not concluded our investigation. There was still additional steps that we had to undertake, additional documentation that we had to consider. And, of course, at that stage we had been yet to speak to Ms Hutson.
Well, was the NFA recommendation a genuine option at that time?---No, at that time our – our view was that a few offences may have been committed. Maybe not the totality of – we were considering at the time, but certainly that some offences had been committed.
You set out in the memo a range of things that needed to be done?---Yes.
Would the outcome of the things that needed to be done have had any bearing on the two options that you posed in the first sentence of that memorandum?---Yes, they would.
In what way? Can you just explain?---Well, they would either confirm or suspicions or – or – or – or not – and would provide us with further evidence that we could consider as to what offences may have been committed.
…
The memorandum in the second last paragraph reads:
After that a brief (or NFA memo) will be prepared.
?---Yes.
That, likewise, seems to pose the same two alternatives as in the first sentence; is that the way you - - -?---Yes.
- - - intended it?---Yes. I mean, we’re – we’re going through a process, your Honour, of evaluating the evidence. We’re still in the process of gathering evidence. We have our suspicion, of course, as to what offences may have been committed and by whom, but we’re still in the course of that process and we are yet to examine Ms – Ms Hutson.
Earlier in the cross-examination, Mr Bastianon had also been asked questions about his understanding of ss 49 and 19 of the ASIC Act and the circumstances in which a s 19 examination of a person could be conducted. The relevant evidence he gave was:[140]
[140]Ibid T6-72:31 – T6-74:15.
Right. Let’s take it in stages. My understanding of your answers today is that even if it is the view of ASIC investigators that they are going to recommend that a person should be charged, it is, nonetheless, open to them and appropriate to conduct a section 19 examination. Do you accept - - -?---Before a prosecution has commenced, yes.
And by that you mean before formal charges are laid?---Yes.
And is the position this, that when the notices were issued to Ms Hutson back in 2016, there was no consideration given as to whether it was appropriate, because she was a person against whom charges were going to be recommended by ASIC – there as no consideration as to whether, nonetheless, it was appropriate to conduct a section 19 examination with her?---It was still appropriate to conduct a section 19 examination.
You - - -?---We were still investigating at that stage.
Right. Is it your view that you can use a section 19 examination to plug any evidentiary gaps ASIC might think exist in their case?--- I wouldn’t – your Honour, I wouldn’t characterise it as plugging any evidentiary gaps. We use the section 19 examination power to elicit evidence and information. And there’s limited use that can be made of evidence given in a section 19 examination, in any event.
Quite, but if somebody gives a version on oath in a section 19 examination - - -?---Yes.
- - - you understand that, even if it can’t be used against them, it has the effect of constraining the way in which they may conduct their defence. You know that, don’t you?---No, I don’t understand that.
That’s not something you gave consideration to when you issued the notices under section 19 in 2016?---Our focus is on conducting a full investigation and a complete investigation. And issuing notices, whether they be for documents or to attend for examination to do that.
What was the purpose of conducting the section 19 examination with Ms Hutson on the 25th of May 2016?---To ask her about matters that we had received evidence and information in relation to.
For what purpose?---To find out what she had to say about it.
Why? If it couldn’t be used against her, why would you do that?---Well, we have certain – we had certain information, your Honour, certain evidence. Ms Hutson was a party to conversations, to meetings. It appeared in document trails. And we wanted her version of events to find out what explanation she had for those various matters.
You were totally committed at that time to a recommendation to the Commonwealth DPP that Ms Hutson be charged, weren’t you?---As at?
As at May of 2016?---No. No, we didn’t deliver a brief to the DPP until the end of the year.
I’m saying you were totally committed at that time to recommending charges against her?---No, that’s not right.
So if somebody had said to you what criminal charges do you allege Ms Hutson has committed as at May of 2016, your answer would have been, well, we don’t allege she’s committed any criminal charges – any criminal offences?---No, of course not. We had suspicion that certain offences had been committed and had been committed by Ms Hutson at that stage, based on evidence that we had gathered to that stage. We hadn’t formed a final view. And it’s absolutely the correct thing to do to ask Ms Hutson to provide her version of events and give her the opportunity to explain to us. And if by some chance, there are flaws in the evidence that we had received or she has an alternative explanation, then we were wanting to hear it.
So it wasn’t, you say, for the sake of simply making sure that you could address anything that she might say by way of a defence so that that could be covered off in the prosecution case?---As I say - - -
Is that the case or not?---No, I don’t agree with it’s to cover off and close off a defence. At that stage when we talked to Ms Hutson we had no idea what any defence might be that she had. We hadn’t spoken to her.
All right. But is that why you conducted the section 19 - - -?---No.
- - - so you could find out?---No. As I said, we wanted to find out if she had an explanation for certain matters and certain events. We didn’t know anything.
In his evidence, Mr Paleologos confirmed he was employed by the ASIC as an investigator and a lawyer in the Corporations and Corporate Governance Enforcement Team. He further confirmed that he was part of that team during the course of the investigation in respect of the Applicant during 2015 and 2016.[141] With respect to the duties he carried out, Mr Paleologos gave the following evidence:[142]
We’ve heard from Mr Bastianon that he carried out duties as what he called the project manager for this investigation. Does any such title apply to you?---I would call myself a project officer, investigating lawyer assisting in the investigation. Obviously, I undertook a lot of the tasks, but I would call myself a project officer in that hierarchy.
Is there some hierarchy as between you and, say, Mr Bastianon?---There’s a hierarchy in the sense that you’ve got the project sponsor, who sponsors – who’s in charge of the whole team and they sponsor the – all the investigations all under their team. There’s project manager, who’s in – who would be Mr Bastianon. He runs the investigation in the sense of all the tasks, investigative tasks, and there’s obviously support people, investigators and lawyers, which you’ll probably call project officer.
Were there any other project officers, apart from you, assisting with the investigation for which Mr Bastianon was a project officer?---Pretty much myself and Mr Bastianon. Obviously, there was other officers assisting with the search warrants in those – there was a couple of search warrants and there was three locations, but other than that, it was basically me and Mr Bastianon.
[141]Ibid T7-26:29-36.
[142]Ibid T7-27:45 – T7-28:15.

With respect to his understanding of the purpose of the investigation, including the investigation into the Applicant, Mr Paleologos gave the following evidence in cross-examination:[143]
[143]Ibid T7-58:31-41.
Can I take you now to a topic which is the status of Ms Jennifer Hutson during the course of this investigation. When you are involved in an investigation, you would regard it as being a search for the truth as far as possible, would you not?---Correct. Yes.
You would not think it proper at all to simply conduct an investigation by seeking to support a case theory that ASIC had developed?---Can you elaborate or - - -
Yes, indeed?--- - - - explain that question a little bit better, please.
An investigation, as I think you’ve already agreed, is something – or is a process that is designed, as far as possible, to get to as much of the truth as you can?---Yes.
It is not an exercise in simply gathering supporting evidence for what ASIC thinks might’ve occurred?---No. No.
No. So that even if a witness seems to be saying something that supports ASIC’s case, or is helpful to the case, that evidence should, nonetheless, be rigorously tested?---Of course. I mean, as – as you can tell from this exam – this investigation, there was a lot of notices, a lot of inquiries, a lot of witnesses, so quite a thorough investigation.
Yeah. And in that regard, was an open mind kept in relation to, for example, the status of Ms Hutson throughout the investigation?---Yes.
Was she always regarded, up until the time of the brief being submitted to the Commonwealth DPP, as somebody who might even be potentially a witness?---Initially, the investigation started with all – all were examined, and that shifted because of evidence that was coming on board, and therefore Ms Hutson was then recognised as someone who – a suspect, in essence, or a – a subject of the investigation.[144]
…
I just want to understand your answer. Are you saying that prior to Ms Hutson’s investigation, she was a suspect?---No, no.
So prior to Ms Hutson’s examination, section 19 examination, was she a suspect or not?---Basically, it was – prior to that, we were looking at the transactions that – sorry, the Takeover Panel decision.
Was she a suspect before - - -?---She would’ve – there would’ve been concerns about her conduct from the Takeover – Takeover Panel’s decision, yes.
Was she a suspect before her section 19 examination or not?---I would say so, yes.
[144]Ibid T7-57:32 – T7-58:15.
Mr Paleologos was asked about the point in time at which ASIC recommended charges against the Applicant to the CDPP. The evidence he gave on that issue was:[145]
At some point in time, was there a decision made to recommend charges against Ms Hutson to the Commonwealth DPP?---It was, after - - -
Against Ms Hutson?---Against Ms Hutson, amongst others, yes.
Was that before or after her section 19 examination?---She had two section 19 examinations and there’s also search warrants.
Let’s say the first of them?---I think after – after the search warrant and the examinations, because we had the search warrant later as well. Don’t forget. We – we had a search warrant on her - - -
Yes, I know that?---Okay. Yeah.
That was in August - - -?---Sorry. I just wanted to clarify that.
Yeah. Okay. I’m just asking you this. When were charges identified, or potential charges identified, that might be brought against Ms Hutson by ASIC?---I would say after the search warrants.
After search warrants, so some time in August 2016?---Around about that time.
[145]Ibid T7-58:43 – T7-59:16.
Mr Paleologos was then asked questions about the 5 April 2016 email written by Mr Bastianon in response to the earlier 31 March 2016 email from Mr Caridi. In respect of that matter, Mr Paleologos gave the following evidence:[146]
Indeed, weren’t you copied into an email from Mr Bastianon to Mr Caridi on the 5^th of April – so this is now getting towards two months prior to the first section 19 examination of Ms Hutson which took place on the 25th of May, and in that memorandum some advice was being given to Mr Caridi about a best estimate for when a brief to the CDPP would be forwarded. Do you remember that?---I recall that, yes.
And it might’ve been some optimism in the proposed date of the 15th of July, but what was referred to in that memorandum were proposed charges at that time?---With the evidence we had at that time, based on that evidence.
And the proposed charges would’ve been charges against Ms Jennifer Hutson; agreed?---Yeah. Recommended charges, yes, because the DPP ultimately makes the decision on charges. We just put the brief of evidence forward - - -
I understand?--- - - - about our concerns.
And recommend charges?---Recommendation, yes.
Yeah?---Yes.
As at the 5th of April 2016, are you able to tell her Honour what the recommended charges against Ms Hutson were in your mind?---At that stage, the charges that came out of the Takeover Panel, the Affinity, G8’s bid, basically, and maybe there would’ve been some director duty charges as well – one eight – at that time – 184 being - - -
Yep?--- - - - the criminal director duty provision.
[146]Ibid T7-60:27 – T7-61:7.
Mr Paleologos was then cross-examined about what his understanding was of the purpose of the s 19 examination to be conducted of the Applicant, having regard to the matters expressed in the 5 April 2016 email chain. The relevant evidence he gave was as follows:[147]
The memorandum - - -?---Yes.
- - - you’ve agreed, was referring to proposed charges that ASIC were going to recommend to the DPP; agree?---Yes.
That’s the 5th of April. Almost two months later, Ms Hutson is subjected to a section 19 examination?---Yes.
Correct? It must follow that you knew at that time that she was a person who ASIC had, or intended to recommend, charges against when that section 19 examination was conducted; agree?---Yes, I agree with that.
[147]Ibid T7-62:1-11
Mr Paleologos was asked about his understanding of the effect of s 49 of the ASIC Act. He gave the following relevant evidence:[148]
Mr Paleologos, are you familiar with the provisions of section 49 of the ASIC Act?---Yes.
You would accept that that section applies where, as a result of an investigation or from a record of an examination, it appears to ASIC that a person may have committed an offence against the corporations legislation and ought to be prosecuted for the offence? Now, as at the 25th of May, you would accept that it was ASIC’s view in relation to Ms Hutson that she may have committed an offence against the Corporations legislation?---Yes.
You agree? And that it was ASIC’s view at that time that she ought to be prosecuted for that offence or those offences?---Maybe that offence, yes. Yes. Yep.
You agree?---I agree with that, yes.
…
And was it considered by you or anybody else in your team as to whether section 49 meant that it was therefore improper to coercively examine Ms Hutson?---Would’ve been considered by the project manager, Mr Bastianon, in conjunction with Mr Caridi and myself. I mean, I was involved in preparing the examination, but in terms of the – the decision made to continue into the examination phase [indistinct] would’ve been Mr Bastianon.[149]
[148]Ibid T7-62:46 – T7-63:11, 26-31.
[149]Ibid T7-63:26 – T7:63:31

Consideration

In my opinion, the 2016 Examinations were lawful.
The Applicant’s contention to the contrary relies upon acceptance of the Applicant’s construction argument as well as acceptance of the Applicant’s submissions about what the relevant evidence establishes concerning the states of mind and conclusions reached by ASIC investigators involved in this matter.
As I have already explained above, I do not accept the construction argument. That being so, in my view the Applicant’s argument as to what the evidence establishes about the states of mind held by the Messrs Bastianon and Paleologos proceeds on an erroneous basis. On its proper construction, s 49(1) is not triggered simply because ASIC investigators have formed the opinion that a person may have committed an offence and ought to be prosecuted. That is so irrespective of whether those persons have been delegated pt 3 functions and powers under s 102 of the ASIC Act.
As I have explained already, the relevant state of mind will be that of the ASIC delegate who is responsible for performing the function and exercising the power in s 49(2). On the evidence adduced, that person is neither Mr Bastianon nor Mr Paleologos. Whilst the evidence shows they had formed their own opinions about the Applicant and whether she ought to be prosecuted, they were nevertheless still investigating the matter as at the time that the 2016 Examinations were conducted, and they were yet to finalise the brief of evidence and their recommendation.
Further, their evidence clearly establishes that another more senior person, or persons, within the team would consider their recommendation and would be responsible for deciding whether the brief of evidence and ASIC’s recommendation of charges was to be referred to the CDPP for consideration of commencement of a prosecution. In my view, it would be that person, or persons, in the capacity of an ASIC delegate, who would be responsible for performing the function and exercising the power under s 49(2) to ‘cause a prosecution to be begun’, by deciding to refer the matter to the CDPP. Hence, it would be that person who would be required to hold the relevant state of mind and to have formed the opinion required by s 49(1).
On the evidence adduced, that point had not yet been reached by the time the Applicant was compulsorily examined. Therefore, s 49(1) was not triggered at the time of the 2016 Examinations.

Discretionary considerations

Even if I were wrong in my conclusions with respect to the proper construction of s 49 and the facts established by the relevant evidence, I would decline to grant the declaratory relief sought by the Applicant on discretionary grounds.
Whilst it may be accepted that declaratory relief may be granted in respect of a pending criminal proceeding, the circumstances of the case must be ‘exceptional’ or ‘special’ and there is a well-established reluctance to intervene.
As Gibbs ACJ said in Sankey v Whiltam:[150]
Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.
[150]Sankey v Whitlam, 26.
In Gedeon v Commissioner of the New South Wales Crime Commissioner (‘Gedeon’), the High Court granted declaratory relief in respect of a pending criminal proceeding, but nevertheless stated:[151]
With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged…
[151](2008) 236 CLR 120, [23] (Gummow, Kirby, Heydon, Crennan and Kiefel JJ); [2008] HCA 43.
In my view, there are several compelling factors present in this case that would cause me to decline to grant to declaratory relief sought by the Applicant.
Firstly, there is the powerful consideration that the Applicant has already unsuccessfully made a pre-trial application under s 590AA of the Criminal Code in respect of the same matters and premised on the same arguments now advanced on this application. As ss 590AA(3) and (4) make plain, the decision of Farr DCJ is binding unless special circumstances are demonstrated to justify reopening the decision, and the Applicant may not bring an interlocutory appeal against the decision. Nevertheless, in the event that the Applicant is convicted of any of the charges she faces in the District Court, she retains a right of appeal under s 668D of the Criminal Code. It would be open to the Applicant to challenge any conviction on the basis that the 2016 Examinations were unlawful. The effect of these provisions and the availability of an avenue of appeal militate strongly against this Court intervening in the pending criminal proceedings. There is an alternative remedy available to the Applicant in the event she is ultimately convicted of any offence with which she is charged.[152]
[152]Sibelco Australia Ltd v Magistrate Graham Lee [2014] QCA 113, 4 (Fraser JA, Gotterson JA and Atkinson J agreeing).
Secondly, there is the question of delay in the finalisation of the criminal proceedings. While the Applicant submits that there is no prospect of any undue delay of her criminal proceedings brought about by the application to this Court, there has already been delay occasioned by that very fact. The District Court has not listed a trial of the charges faced by the Applicant on either indictment presented in that court because the Applicant has pursued the present application.[153] The trial of the Applicant’s co-accused has also not yet been listed by the District Court as it has been accepted by the prosecution and the co-accused’s legal representatives that his trial should follow the Applicant’s trials.[154]
[153]Affidavit of Erin Lewis, affirmed 13 July 2022, [8].
[154]Ibid [11]-[15].
There are numerous persons who have provided witness statements for the purposes of the Applicant’s prosecutions.[155] Until her criminal proceedings are finalised, they must continue to wait in anticipation of being required to give evidence at a trial. Aside from the uncertainty and potential inconvenience to those persons, delay of any kind has the potential to adversely affect the integrity of the evidence the witnesses may give at trial due to the effects that the effluxion of time may have on memory.
[155]Ibid [10].
It is no answer to the issue of delay to argue that any delay brought about by the making of this application is unlikely to be material in the scheme of things.[156] The rationales for the reluctance on the part of Court to entertain applications that fragment pending criminal proceedings do not dissipate simply because the net result of such interlocutory processes may mean that no significant delay of the criminal proceedings occurs. As was made plain by the High Court in Gedeon, the fragmentation of criminal proceedings is to be actively discouraged.
[156]cf. Affidavit of Patrick Quinn, sworn 15 June 2022, [6]-[11].
Thirdly, granting the declaratory relief sought has the potential to undermine public confidence in the administration of justice. A criminal proceeding has been regularly commenced and is pending in the District Court. There is a strong public interest in those criminal charges being determined through the ordinary processes in that court. There is to my mind a real risk that public confidence in the administration of justice may be diminished if the criminal trial process is circumvented by granting the relief sought by the application made to this Court, rather than simply permitting the criminal proceedings to run their course in the ordinary way.
Fourthly, I do not consider that there are ‘exceptional circumstances’ or ‘special reasons’ which justify this Court intervening at an interlocutory stage in the criminal proceedings before the District Court. The Applicant’s central challenge to the lawfulness of the 2016 Examinations concerns a question of statutory interpretation. The Applicant challenged the lawfulness of the 2016 Examinations on the same basis in the District Court through the ordinary pre-trial processes available under s 590AA. She was unsuccessful in that court. I have likewise rejected the same construction arguments advanced here on the present application. She does not assert, nor has she demonstrated, jurisdictional error by Farr DCJ.
This is neither a case where there is a clear need to grant the relief sought in order to avoid a ‘wholly abortive’[157] trial nor a clear case where ‘the need for such interference is absolutely plain and manifestly required’.[158] Further, and in any event, I do not consider the issues raised by the Applicant are of such considerable public importance that discretionary considerations would favour intervention by this Court.
[157]cf. Anderson v A-G (NSW), 204 (Samuels JA).
[158]Palmer v Magistrates Court of Queensland, [12] (Fraser JA, Morrison JA and Boddice J agreeing), quoting Fruginet v Victoria (1997) 96 A Crim R 189, 195 (Kirby J); [1997] HCA 44.
Finally, even if I accepted the Applicant’s arguments and considered it appropriate to make the declarations sought, it is pertinent to bear in mind those orders would not determine the pending criminal proceedings. At best, the Applicant would then be armed with a basis (albeit a compelling one) to seek to reopen the decision made by Farr DCJ, in accordance with s 590AA(3) on the basis that there were special circumstances justifying the revisiting of that decision. The Applicant would then need to demonstrate those circumstances justified a permanent stay or perhaps the exclusion of evidence to be adduced in the prosecution case. On either scenario, the District Court would inevitably be required to consider other factors and the exercise of further discretion in order to determine the revisited application.

Conclusion

I have concluded that the Court’s supervisory jurisdiction over inferior courts does not extend to granting relief of the kind sought by the Applicant in respect of the dismissal of her s 590AA application in the District Court. Nevertheless, I have considered whether the declaratory relief might be granted in the exercise of the Court’s general jurisdiction, as that jurisdiction is not ousted by s 590AA(4).
I have not accepted the Applicant’s construction argument concerning s 49 of the ASIC Act and its interaction with s 19. Further, and in any event, I have rejected the Applicant’s argument that the evidence relevant to the investigation conducted by ASIC demonstrates that s 49(1) was engaged.
Accordingly, in my view, the 2016 Examinations were lawfully conducted. Therefore, the basis for the relief sought by the Applicant has not been made out.
Further, even if I had found in the Applicant’s favour on the construction argument and had found that on the state of the evidence that s 49(1) was engaged, I am firmly of the view that discretionary considerations weigh heavily against making declarations of the kind sought by the Applicant in respect of her pending criminal proceedings in the District Court. For that reason alone, I would refuse to grant the relief sought.

Orders

Accordingly, the orders I make are:
1.The application is dismissed.
2.The Applicant is to pay the costs of each of the First and Second Respondents.

CITATION:	Hutson v Australian Securities and Investments Commission & Anor [2022] QSC 243
PARTIES:	JENNIFER JOAN HUTSON (Applicant) v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (First Respondent) JUDGE FARR SC (Second Respondent)
FILE NO/S:	BS 14915 of 2021
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2022; 23 August 2022; Further written submissions received 30 August 2022
JUDGE:	Crowley J
ORDER:	1. The application is dismissed. 2. The Applicant is to pay the costs of each of the First and Second Respondents.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – JURISDICTION – GENERALLY – where ASIC compulsorily examined the Applicant – where the Applicant was charged in the District Court with breaches of the corporations legislation – where the Applicant applied to the District Court pursuant to s 590AA of the Criminal Code 1899 (Qld) (‘Criminal Code’) for a permanent stay of all charges against her – where the District Court dismissed the application – where the Applicant applied to the Supreme Court for declarations that the District Court judge erred in his conclusions and that the examinations were unlawful – whether the Supreme Court’s supervisory jurisdiction over inferior courts extends to granting relief in respect of the dismissal of a s 590AA application in the District Court – whether s 590AA(4) of the Criminal Code ousts the general jurisdiction of the Supreme Court to grant declaratory relief – whether discretionary considerations weigh in favour of making the declarations sought CORPORATIONS – SUPERVISION – AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION – EXAMINATIONS – WHO MAY BE EXAMINED – where ASIC compulsorily examined the Applicant pursuant to s 19 of the of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’) – whether, as a result of an investigation, it appeared to ASIC that the Applicant may have committed an offence against the corporations legislation and ought to be prosecuted – whether s 49(1) of the ASIC Act had been engaged – whether ASIC’s power under s 19(2) of the ASIC Act is subject to the limitations in s 49(4) of the ASIC Act – whether the compulsory examinations were lawfully conducted Acts Interpretation Act 1901 (Cth), s 15AA(1), s 34A, s 34AB Australian Securities & Investments Commission Act 2001 (Cth) s 19, s 49, s 68, s 93, s 102 Civil Proceedings Act 2011 (Qld), s 10 Constitution of Queensland Act 2001 (Qld), s 58 Criminal Code 1899 (Qld), s 590AA(4), s 668A, 668B, 669A Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198, cited Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, considered Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9, cited Forster v Jododex (1972) 127 CLR 421; [1972] HCA 61, applied Gedeon v Commissioner of the New South Wales Crime Commissioner (2008) 236 CLR 120, [2008] HCA 43, cited Heerey v Criminal Justice Commission [2001] Qd R 610; [2000] QCA 511, cited Hutson v ASIC [2022] QSC 68, cited Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, considered Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, cited Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255; [2009] QCA 120, cited R v Chardon [2017] 1 Qd R 148; [2016] QCA 50, considered R v Farr (1994) 74 A Crim R 405; [1994] QCA 266, cited R v Hutson [2021] QDCPR 78, considered R v Long (No 1) [2002] 1 Qd R 662; [2001] QCA 318, considered R v Lowrie [1998] 2 Qd R 579; [1997] QCA 434, cited R v Verall [2013] 1 Qd R 587; [2012] QCA 310, cited R v Woodman[2010] QCA 162, cited Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43; applied Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53, cited X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, cited
COUNSEL:	N Clelland KC, with S J Webster and P Coleridge, for the Applicant M T Brady KC, with S Marsh and R Khalilizadeh, for the First Respondent No appearance for the Second Respondent
SOLICITORS:	Gilshenan & Luton for the Applicant Australian Government Solicitor for the First Respondent No appearance for the Second Respondent