Special leave dismissed with costs by the High Court, 17 August 2009 s183/2009
New South Wales
Court of Appeal
CITATION:
Matthews v ASIC [2009] NSWCA 155
HEARING DATE(S):
27 May 2009
JUDGMENT DATE:
22 June 2009
JUDGMENT OF:
Tobias JA at 1; Basten JA at 151; Campbell JA at 194
DECISION:
Appeal dismissed with costs
CATCHWORDS:
PROCEDURE – Contempt, attachment and sequestration – Contempt – What constitutes –Disobedience of orders of court – Procedure – Difference between civil and criminal contempt – Statement of charge – Facts required to be proved to establish charge – Elements of charge – Whether information in charge comprised elements or particulars of charge – Whether all particulars of charge required to be made out for each element of charge to be proven – Evidence – Burden and standard of proof – Whether each element of charge proved beyond reasonable doubt – Interpretation – Construction of court orders – Whether primary judge erred in construing orders in accordance with definitions and terminology in Corporations Law – Whether primary judge erred in substituting a reference in orders to repealed Corporations Law for Corporations Act – Construction of phrase “undertaking a business” – Whether sending letter to 1,650 recipients containing investment advice amounted to undertaking a business of advising about and dealing in securities - APPEAL – Appeal against sentence – Grounds for interference – Whether primary judge attributed suitable weight to various matters – Bail – Application for bail – Power of Court of Appeal to grant bail in respect of committal for contempt pending determination of appeal and effect of any such grant of bail
Stephen Lewis Matthews Australian Securities and Investments Commission
FILE NUMBER(S):
CA 40130/09
COUNSEL:
A: P Taylor SC / Richard Killalea R:…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Matthews v Australian Securities and Investments Commission [2009] NSWCA 155
Case
[2009] NSWCA 155
Decision Date
CaseChat Overview and Summary
Matthews appealed to the Court of Appeal of New South Wales against findings of contempt made by a primary judge. The contempt charges arose from alleged breaches of court orders, specifically concerning the undertaking of a business of advising about and dealing in securities. The core of the dispute involved the interpretation of the court orders and whether the appellant's conduct, including sending investment advice to numerous recipients, constituted a breach of those orders.
The Court of Appeal was required to determine several key legal issues. These included whether the primary judge erred in construing the court orders, particularly in relation to definitions and terminology within the Corporations Law and the substitution of references to a repealed Act. The court also had to consider the proper construction of the phrase "undertaking a business" in the context of the appellant's actions. Furthermore, the appeal raised questions about the elements of the contempt charge, the distinction between civil and criminal contempt, the sufficiency of the statement of charge, and the burden and standard of proof required to establish each element of the charge beyond reasonable doubt. Finally, the court considered whether the primary judge had attributed suitable weight to various matters in sentencing and the power of the Court of Appeal to grant bail pending the determination of the appeal.
The Court of Appeal dismissed the appeal. The judges applied principles of statutory interpretation to the court orders and the relevant legislation, concluding that the primary judge's construction was correct. The court reasoned that the appellant's conduct, in sending investment advice to a large number of recipients, did amount to undertaking a business of advising about and dealing in securities as contemplated by the orders. The court also found that the elements of contempt were established beyond reasonable doubt, and that the primary judge had properly considered all relevant factors in sentencing. The appeal against sentence was therefore unsuccessful. The appeal was dismissed with costs.