Starr v Westpac Banking Corporation
[2018] FCCA 3048
•26 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STARR v WESTPAC BANKING CORPORATION | [2018] FCCA 3048 |
| Catchwords: HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – ending proceedings early – summary disposal or stay. HIGH COURT AND FEDERAL COURT – Federal Circuit Court – procedure – parties. |
| Legislation: Federal Circuit Court of Australia Act 1999, s.17A |
| Cases cited: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499 |
| Applicant: | WAYNE MATTHEW STARR |
| Respondent: | WESTPAC BANKING CORPORATION |
| File Number: | BRG 564 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 September 2018 |
| Date of Last Submission: | 1 October 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 26 October 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Jennings |
| Solicitors for the Respondent: | Kemp Strang |
ORDERS
Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001, the application filed on 8 June, 2018 is dismissed.
Subject to any submissions from either party to be made in writing within seven (7) days of the delivery of this judgment, direct that:
(a)any application for costs be notified by one party to the other by the filing and service of written submissions specifying:
(i)the precise orders for costs sought and any alternatives;
(ii)the argument in support of each order; and
(iii)whether that party is desirous of any oral hearing of the costs issue
by the date no more than fourteen (14) days after the delivery of these orders; and
(b)the respondent to any such application shall file and serve written submissions specifying:
(i)the precise orders sought by the respondent;
(ii)the argument in support of the response; and
(iii)whether that party is desirous of any oral hearing of the costs issue
by the date no more than twenty-eight (28) days after the delivery of these orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 564 of 2018
| WAYNE MATTHEW STARR |
Applicant
And
| WESTPAC BANKING CORPORATION |
Respondent
REASONS FOR JUDGMENT
This is an application for summary dismissal of proceedings commenced by Mr Starr on 8 June, 2018. Mr Starr resists the application. In short compass, Westpac argues that Mr Starr has no standing to commence these proceedings, to seek the relief claimed in them and his case is otherwise unlikely to succeed.
For the reasons that follow, I accept Westpac’s submissions. The proceedings should be summarily dismissed.
The proceedings
In his application filed on 8 June, 2018, Mr Starr seeks the following relief:
1.That the Respondent breached Sections 227 of the National Consumer Credit Protection Act 2009 (Cth).
2. That the Respondent breached Sections 228 of the National Consumer Credit Protection Act 2009 (Cth).
3. That pursuant to Sections 178 and 179 of the National Consumer Credit Protection Act 2009 (Cth), the penalty units for breaching Section 227 of the National Consumer Credit Protection Act 2009 (Cth) be awarded to the Applicant by way of compensation.
4. That pursuant to Sections 178 and 179 of the National Consumer Credit Protection Act 2009 (Cth), the penalty units for breaching Section 228 of the National Consumer Credit Protection Act 2009 (Cth) be awarded to the Applicant by way of compensation.
5. That the respondent brings forth the full accounting to the court related to the account(s) in the Applicants name and the subject of this proceeding.
6. That an independent auditor agreed upon by both parties be appointed to conduct an audit of the accounts.
7. That upon an audit being completed all account balances are reconciled, off sett and settled accordingly.
8. Other such orders the court deems reasonable and just under the circumstances and that the Act provides.
It is uncontroversial that on 29 October, 2014, Mr Starr accepted a loan offer from Westpac which provided to Mr Starr a single draw down loan in the amount of $370,000. The loan was to enable Mr Starr to purchase an established dwelling. Repayment of the loan was secured by registered mortgages over two parcels of real property owned by Mr Starr.
The loan was fully drawn down on 21 November, 2014 and from that date, Mr Starr has made fortnightly repayments. In addition, Mr Starr operated an offset account that had a credit balance and upon which Westpac paid Mr Starr interest. The interest was offset against the interest that accrued upon Mr Starr’s loan account.
In these proceedings, Mr Starr alleges that:
a)Westpac is a credit provider pursuant to the National Consumer Credit Protection Act 2009;
b)he and Westpac are engaged in a credit contract;
c)Westpac falsified its credits books and concealed its credit books from the applicant in breach of ss.227 and 228 of the Act;
d)there are materially incorrect accounting descriptions in a statement provided by Westpac for Mr Starr’s loan account;
e)the errors “seriously mischaracterise the nature of the actual transactions, which occurred on 21 November, 2014” (the date upon which Mr Starr drew down his loan funds);
f)it is necessary that Westpac disclose to Mr Starr its “asset account” and “the respondent’s liability account” “at the time of settlement”;
g)despite demand Westpac has failed to “bring forth the accounting to include the respondent’s liability account associated with the accounts in the name of the applicant”;
h)without disclosure of the respondent’s “liability account” there has been no reconciliation of the balance owed by Mr Starr to Westpac asserted by Mr Starr to be the “net balance remaining after that customers asset and liability accounts (required to be kept by the entity) have been reconciled – such that any asset account balance may offset part or all of any outstanding balance in the liability account”;
i)Westpac’s “liability account” is a “credit book” as defined by the Act;
j)Westpac has generated a false balance owing by Mr Starr “by not reconciling their liability and asset accounts when calculating a balance owed by the applicant”;
k)Westpac has falsified its credit books “with intent to deceive when they sent documents to the applicant purportedly showing a balance owing that is false in addition to containing material with incorrect accounting descriptions”; and
l)such falsification of a credit book is a breach of s.228 of the Act that accrues a civil and criminal penalty.
For its part, Westpac denies the allegations made by Mr Starr and recites that the parties entered into a loan agreement, the terms and conditions of which included that Westpac would debit the loan account in the applicant’s name from time to time with:
a)any drawing of that loan;
b)interest;
c)costs, fees and charges payable under the loan; and
d)any enforcement expenses.
Westpac also agreed that it would credit that account with any repayment of the loan. Mr Starr, according to the general terms and conditions of the loan, agreed that he would pay any money that he was required to pay under the loan contract without deducting amounts he claimed were owing by the respondent or any other person to the applicant.
This application
Westpac bears the onus of persuading the Court that Mr Starr’s application has no reasonable prospect of successfully prosecuting the proceeding or a claim within those proceedings. If it does so, then pursuant to r.13.10 of the Federal Circuit Court Rules 2001 and s.17A of the Federal Circuit Court of Australia Act 1999, the Court might summarily dismiss Mr Starr’s proceedings or claim within the proceeding. To do so is discretionary and the Court must exercise the discretion with caution. What is required is a critical examination of the available materials to determine whether there is a real question of fact of law that should be decided at trial having regard to the particular circumstances of the case: Adnunat Pty Ltd v ITW Constructions Systems Australia Pty Ltd [2009] FCA 499.
In support of his response to this application, Mr Starr has filed affidavits from two witnesses, namely Stewart Jensen (filed on 21 August, 2018) and Vernon Pike (filed on 22 August, 2018). Westpac has also filed an affidavit by Esther Nelson, a solicitor in the employ of Westpac (filed on 17 September, 2018).
Mr Starr summarises his case in his outline of submissions filed on 20 September, 2018 as follows:
3. As a result of enquiry, I discovered potential defects and anomalies on my loan account statement prompting me to enquire about them to the Respondent.
4. I requested the production of the Respondent’s asset and liability accounts in addition to clearing up the question around the defects and errors I pointed out to them.
5. Instead of receiving the information and records, the bank failed to respond adequately to my enquiries and did not produce what was sought. Detail of that correspondence is contained in my Affidavit of 30 May 2018.
6. Pursuant to Sections 227 and 228 of the Act the Respondent did conceal a credit book and from the defects and errors I highlighted on the statement (Annexure WMS-1 to my Affidavit), among other things, I believe constitutes a falsification of a credit book.
7. Additionally the letter from Mr Vernon Pike – Forensic Accountant attached to this submission further supports my position that credit books have been falsified and are being concealed.
8. As a result this shows that there are genuine issues in dispute and as such the court should deny the Respondents summary judgement and allow my application to proceed.
The Statutory Framework
It is necessary to set out some of the relevant provisions in the Act.
Section 88 defines the obligation upon a licensee (I assume Westpac is a licensee for the purposes of these reasons) to keep financial records. It also defines the term financial records:
88 Obligation to keep financial records
Requirement to keep financial records
(1) A licensee must:
(a) keep financial records that correctly record and explain the transactions and financial position of any business of engaging in credit activities carried on by the licensee; and
(b) keep those records in accordance with this Division; and
(c) comply with subsection 90(2) in relation to the conversion of records into the English language; and
(d) comply with section 91 in relation to the location and production of records and particulars.
Civil penalty: 2,000 penalty units.
Meaning of financial records
(2)Financial records includes:
(a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; and
(b) documents of prime entry; and
(c) any trust account statement or trust account report required under section 100.
Section 166(1) provides for who might apply for a declaration that a person has contravened a civil penalty provision of the Act. It gives that ability to the Australian Securities and Investments Commission. Section 167 deals with the recovery of pecuniary penalties from persons contravening civil penalty provisions. Those sections, relevantly, provide:
166 Declaration of contravention of civil penalty provision
Application for declaration of contravention
(1) Within 6 years of a person contravening a civil penalty provision, ASIC may apply to the court for a declaration that the person contravened the provision.
Declaration of contravention
(2) The court must make the declaration if it is satisfied that the person has contravened the provision.
167 Court may order person to pay pecuniary penalty for contravening civil penalty provision
Application for order
(1) Within 6 years of a person contravening a civil penalty provision, ASIC may apply to the court for an order that the person pay the Commonwealth a pecuniary penalty.
Court may order person to pay pecuniary penalty
(2) If a declaration has been made under section 166 that the person has contravened the provision, the court may order the person to pay to the Commonwealth a pecuniary penalty that the court considers is appropriate (but not more than the amount specified in subsection (3)).
Determining amount of pecuniary penalty
(3) The pecuniary penalty must not be more than:
(a)if the person is a natural person—the maximum number of penalty units referred to in the civil penalty provision; or
(b)if the person is a body corporate, a partnership or multiple trustees—5 times the maximum number of penalty units referred to in the civil penalty provision.
Note: This Act treats partnerships and multiple trustees as if they were persons (see sections 14 and 15).
Recovery of penalty as a debt
(4) The pecuniary penalty may be recovered as a debt due to the Commonwealth.
Section 178 provides for the making of compensation orders and upon whose application such orders might be made:
178 Compensation orders
Court may order person to pay compensation
(1) The court may order a person (the defendant) to compensate another person (the plaintiff) for loss or damage suffered by the plaintiff if:
(a) the defendant has contravened a civil penalty provision or has committed an offence against this Act (other than the National Credit Code); and
(b) the loss or damage resulted from the contravention or commission of the offence.
The order must specify the amount of compensation.
Note: An order may be made under this subsection whether or not a declaration of contravention has been made under section 166.
When order may be made
(2) The court may make the order only if:
(a) the plaintiff or ASIC (on behalf of the plaintiff) applies for an order under this section; and
(b) the application is made within 6 years of the day the cause of action that relates to the contravention or commission of the offence accrued.
Section 179 provides for the making of compensation and other orders in a similar way to s.178. It permits a person who has suffered loss or damage as a result of the contravention of a civil penalty provision or the commission of an offence to apply to a court for various orders.
By his application Mr Starr alleges contraventions of ss.227 and 228 of the Act. Subsections 227(1) and 228(1) are civil penalty provisions. Mr Starr alleges that Westpac has concealed its “liability account” and has failed to reconcile the statements of his loan account (which he characterises as an “asset account” for Westpac’s purposes) with that “liability account” such that the balance on his loan account statements is false. He further alleges that the statements of the loan account mischaracterised the loan account description and as such the respondent has “falsified credit books with intent to deceive”.
Westpac argues that Mr Starr has no standing to seek the declarations that he seeks in paragraphs 1 and 2 of his initiating application. That is so, Westpac argues, because s.166(1) of the Act which provides for the making of declarations in respect of civil penalty provisions can only be engaged by ASIC. Plainly, Mr Starr is not ASIC. On its face, Westpac’s argument has merit. The power given to the Court to make a declaration in respect of civil penalty provisions under the Act is only exercisable on the application of ASIC.
However, Mr Starr argues that he intends to rely on the “common informer principle” that he says is demonstrated in cases such as Alley v Gillespie (2018) 353 ALR 1 and Tranton v Astor (1917) 33 TLR 383. Further, Mr Starr argues that “it has been discovered through the current Royal Commission into banking that ASIC has repeatedly failed to prosecute banks in a timely manner or at all for breaches of the Act.” He says that he has little faith in ASIC or the government to enforce the Act against Westpac.
Mr Starr relies on passages from Alley & Gillespie (above) to support his proposition that he has standing to bring the application seeking declarations against Westpac. Those passages are:
19. The proceedings for which the Common Informers Act provides are in the nature of the old common informer action, by which a citizen could, for his or her own benefit, sue a person who breached a statute. When the statute allowed such an action to be brought, the citizen suing could recover the prescribed statutory penalty on proof of the breach[6].
[6] Tranton v Astor (1917) 33 TLR 383 at 385.
20. The origins of the common informer action lay in the need to provide incentives to citizens to put the processes of the law in train at a time when the State was weak and its laws not always enforced[7]. English statutes gave common informers the right to bring a case to recover penalties for breaches of a wide range of laws including, by way of example, unlawful gaming, unlicensed disorderly houses, depositing of rubbish on the streets and throwing of fireworks[8].
[7] Holdsworth, A History of English Law, 3rd ed (1923), vol 2 at 453.
[8] Radzinowicz, A History of English Criminal Law and its Administration from 1750, (1956), vol 2 at 140-150.
21. By the mid-19th century it appears that the need for common informers to bring actions had substantially diminished. In the Second Reading Speech for the Common Informers Bill 1951 (UK), it was observed that there had been no new enactment of common informer provisions in the last 100 years[9]. This decline seems to have coincided with the creation of police forces in England and the low regard in which common informers had come to be held[10].
[9] United Kingdom, House of Commons, Parliamentary Debates, vol 483 at 2085 (9 February 1951).
[10] Radzinowicz, A History of English Criminal Law and its Administration from 1750, (1956), vol 2 at 153-155.
Further, Mr Starr points to Chapter 4.20 of the Explanatory Memoranda for the National Consumer Credit Protection Bill 2009 and in particular that part of the memorandum which states:
Consumer remedies are an important element of the enforcement package as it enables consumers to take direct action against a licensee who breaches the law and causes them loss or damage. Private suits are considered a useful way of influencing and curbing market behaviour, particularly in relation to the National Credit Code (Code).
The nature of a common informer action (if not already clear from the passages from Alley v Gillespie (above)) was explained in Hawkesbury City Council v. Foster & Anor (1997) 97 LGERA 12, where the Court of Appeal held at 14 and 15:
However the right to initiate a prosecution is distinct from the right to recover any fine imposed on the convicted offender. In Bradlaugh v Clarke, the Earl of Selborne, LC, referred to the “incontestable proposition of law” that:
“where a penalty is created by statute, and nothing is said as to who may recover it, and it is not created for the benefit of a party grieved, and the offence is not against an individual, it belongs to the Crown, and the Crown alone can maintain a suit for it.’ ... It rests on a very plain and clear principle. No man can sue for that in which he has no interest; and a common informer can have no interest in a penalty of this nature unless it is expressly, or by some sufficient implication, given to him by statute. The Crown, and the Crown alone, is charged generally with the execution and enforcement of penal laws enacted by public statutes for the public good, and is interested, jure publico, in all penalties imposed by such statutes; and therefore may sue for them in due course of law, where no provision is made to the contrary. The onus is upon a common informer to shew that the statute has conferred upon him a right of action to recover the particular penalty which he claims.”
There is no magic in the expression “common informer”. It means no more than a private person suing for private benefit to recover a statutory penalty. The expression “common informer” is only used to distinguish that person from a state or official informer, such as the Attorney General or a Director of Public Prosecutions.
There have been few more detested figures in the law than the common informer. In 1589 a statute of Elizabeth deplored that common informers “daily unjustly taxed and disquieted” the Queen’s subjects. Coke described them as “viperous vermin” who under the mantle of law “did vex and pauperize the subject ... for malice or private ends”. A nineteenth century Treatise on the Police and Crimes of the Metropolis referred to them as “unprincipled pettifoggers”, whose office was a nuisance and “an instrument of individual extortion, caprice and tyranny”.
Nevertheless, in Radzinowicz’s words, “the demand for their services remained as constant as the criticism of their activities was unrelenting”. Over many centuries from about the time of Edward III statutes conferred the right to enforce and recover all or part of a penalty, especially in relation to what would today be regarded as regulatory offences. The qui tam action came to the Australian colonies. An early reported instance is Ex parte Pearce. An authority that illustrates the capacity of an official such as a police constable to assume the mantle of a common informer is Royce v O’Hehir.
The judgment of Rowlatt J in Orpen v Haymarket Capitol Ltd reflects the traditional attitude to the common informer, as well as demonstrating the perceived ‘usefulness’ of that figure. He described the proceedings before him as:
“... a penal action, a form of proceeding invented by Parliament for ensuring that laws should not be a dead letter. In order to provide that laws should not become a dead letter by reason of the circumstance that no prosecutor, official or private, comes forward, Parliament has in these cases enlisted the motive of private greed to ensure that the offender shall be made to smart for his offence, by enabling any person to come forward and claim certain sums of money which, in many cases, as in this case, may be large. Such persons are called ‘common informers’.”
In Commonwealth Bank of Australia v Gargan (2004) 140 FCR 1 Hely J explained:
[26] The 94th Report of the Law Reform Committee of South Australia to the Attorney-General (1985) describes “Qui Tam” as an abbreviation of “qui tam pro domino rege quam pro se ipso sequitur” which means “who as well for our lord the King, as for himself sues”. Qui tam actions are sometimes called “popular actions” and the bringer is called a “common informer”. A common informer has been described as:
…a private person suing for his own benefit to recover a statutory penalty … the expression “common informer” is only used to distinguish him from a state or official informer such as His Majesty’s Attorney-General. [Tranton v Aster (1917) 33 TLR 383 at 385 per Low J]
…
[28] Only offences created by statutes which expressly or by necessary implication provide for qui tam action may be prosecuted by a common informer: 94th Report of the Law Reform Committee of South Australia to the Attorney-General (1985) at 3. The onus of showing the statute so provides lies on the common informer. …
[29] In Hawkesbury City Council v Foster (1997) 97 LGERA 12 Mason P cited Ex parte Pierce (1844) 1 Legge 189 as authority for the proposition that the qui tam action came to the Australian colonies. In Ex parte Pierce Dowling CJ referred to Fleming q t v Bailey (1804) 5 East 313 which he characterised as a case where a common informer had brought a qui tam action. In Fleming q t v Bailey, Lawrence J had said:
A common informer cannot sue at common law; therefore he must show some clause in the Act giving him power to sue in this particular case. (Emphasis in original)
[30] These authorities support the conclusion drawn by the Law Reform Committee of South Australia referred to above that only offences created by statutes which expressly or by necessary implication provide for a qui tam action may be prosecuted by a common informer. The common informer must be able to point to a statutory provision which either “gives” the penalty to the common informer, or creates a right to demand payment of the penalty.
[31] The 1670 statute upon which the respondent relies was a statute of that character. However, on my reading of the statute, it creates no offence upon which the respondent could rely in these proceedings. Given that the respondent did not particularise the manner in which the CBA’s behaviour might have constituted an offence under that statute, I conclude that the statute provides for no relevant offence. Since the statute does not create any right of recovery independent from the offences it prescribes, it follows that even if the 1670 statute had not effectively been repealed in NSW by s 8(1) of the Imperial Acts Application Act 1969 (NSW), it would not have provided the respondent with a right of recovery.
In my view, Westpac’s argument that Mr Starr does not have standing to seek declaratory relief as he claims is well founded. I reach that conclusion because:
a)the basis of Mr Starr’s claim for relief are contraventions of ss.227 and 228 of the Act. Those provisions are civil penalty provisions and only ASIC has statutory authority to apply for a declaration that a person has contravened a civil penalty provision: s.166(1) of the Act; and
b)his claims to declarations are not saved by characterising them as claims by a common informer, because the right of a common informer was to seek payment of a penalty for the contraventions, not mere declarations of contravention.
Orders 3 and 4 sought by Mr Starr seek that the penalty units that might be imposed upon Westpac for the alleged contraventions of s.227 and 228 be paid to him “by way of compensation”. To the extent that this represents a claim by Mr Starr for the statutory penalty prescribed for contraventions of ss.227 or 228, his claim cannot succeed because the right to recover such penalties is vested in ASIC by s.167(1) of the Act. Any penalties ordered upon application by ASIC must be paid to the Commonwealth: s.167(1). Moreover, a penalty can only be ordered if a declaration has been made under s.166 of the Act, something for which only ASIC can apply.
There is no room for an application by a common informer. The Act which creates the penalty also provides for its recovery in the particular ways set out above. There is no right of recovery given to a common informer, either expressly or by any necessary implication.
By ss.178 and 179 of the Act, Mr Starr has the ability to sue for compensation in respect of the alleged breaches of ss.227 and 228. Orders 3 and 4 sought in the initiating application might be construed as orders for compensation pursuant to ss.178 and 179 of the Act. Westpac argues that the complaints made by Mr Starr that Westpac has failed to reconcile the statements of the loan account with the respondent’s “liability account” such that each balance in his account statements is false conflate and confuse general principles of company accounting with the purpose of a statement of an account. In support of his arguments Mr Starr annexes to his affidavit filed on 8 June, 2018 a document headed “Rocket Statement” (annexure WMS-1) in which there is an account summary together with some other information followed by a section entitled “Rocket investment loan account transaction details” which appears to have a chronological list of transactions on the account. Mr Starr’s affidavit and his submissions treat, or seek to treat the transaction statements as some form of prime accounting record maintained by Westpac. Mr Starr’s argument proceeds as follows (emphasis in original):
14. References to accounting rules in this affidavit are based on those mandated by the Australian Accounting Standards Board.
15. On 10 October 2014 (date of loan settlement) I gave the Respondent valuable consideration in the form of a negotiable instrument worth more than $370,000.00, which upon acceptance was deposited as a debit entry into the Respondents asset account resulting in an increase in the debit balance to that account in my name.
16. Because the Respondent was relying implicitly on debit and credit entries in statements of their asset account only as their record of my complete financial position with them, it became apparent they had not reconciled the asset and liability accounts when calculating net balance owed.
17. It is a fundamental principle of accounting that the balance owed by a person to any corporate entity is the net balance remaining after that person’s asset and liability accounts (required to be kept by the entity) have been reconciled such that any asset balance may offset part or all of any outstanding balance in the liability account.
18. The Respondents implicit claim cannot be conclusive in the absence of their liability account statement (being the my asset account).
19. I therefore needed to inspect the Respondents liability account to confirm if the credits recorded in that account had been reconciled with the Respondents asset account so an accurate net position (balance owing) could be calculated, as per normal bank accounting procedures when recording a loan.
Westpac points out that the statement of account or transaction statement to which Mr Starr refers is nothing more than the bank’s version of the state of its current indebtedness to the customer or alternatively its customer’s indebtedness to it. In particular, Westpac refers to the description given by McPherson J A in Re Bank of Queensland Ltd [1997] 2 Qd R 129 at [136] where his Honour says:
The question for determination can scarcely be left to depend on the designation which the bank chooses or chose to apply to a particular entry in the statement of account. Such a statement is, after all, nothing more than the bank’s version of the state of its current indebtedness to the customer on that account, which consists of a record in chronological sequence of debit and credit entries that are used to give effect to the banking transactions from which a balance results. As such, it operates as an admission, even if only provisionally so, by the bank, and so constitutes prima facie evidence of the balance due from the bank to the customer.
Indeed, it is part of Mr Starr’s loan contract with Westpac that the statements of account operate as prima facie evidence of the loan balance “unless you [the applicant] prove it is wrong”.
The point of all of this is that nothing in the material relied upon by Mr Starr, including the affidavits of Mr Jensen and Mr Pike demonstrates that he has reasonable prospects of successfully prosecuting an application for compensation against Westpac. In any event, his claim nonetheless appears to be for the recovery of the penalties prescribed for contravention of ss.227 and 228 rather than a legitimate claim for compensation.
Further, arguably Mr Starr might be prosecuting a claim for the criminal penalties that are prescribed by ss.227(2) and 228(2) but, by s.205 of the Act, the authority to commence proceedings for an offence against the Act is vested in ASIC, or a delegate of ASIC, or another person authorised in writing by the Minister to bring the proceedings. Mr Starr does not fall into any of those categories.
Conclusion
In my view, Mr Starr has no reasonable prospects of successfully prosecuting his claim for the relief that he seeks in paragraphs 1, 2, 3 and 4 of his initiating application. To the extent that orders 1, 2, 3 and 4 sought by Mr Starr in his initiating application could be read to be confined to declarations and orders for the imposition of criminal sanctions pursuant to s.227(2) and 228(2) his application must also fail.
Even if the Court has power to grant the other relief Mr Starr seeks in paragraphs 5 – 7 of his application, those orders are dependent upon the primary relief that he seeks in paragraphs 1 – 4 of his application. In my view he has no reasonable prospects of successfully prosecuting his proceeding for those orders either.
The proceedings should be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 26 October 2018
Key Legal Topics
Areas of Law
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Commercial Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Limitation Periods
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Standing
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Statutory Construction
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