Walker v Members Equity Bank Ltd

Case [2022] FCAFC 184

FEDERAL COURT OF AUSTRALIA

Walker v Members Equity Bank Ltd [2022] FCAFC 184

Appeal from: Walker v Members Equity Bank Ltd [2021] FCA 1554
File number: VID 42 of 2022
Judgment of: WIGNEY, LEE AND ABRAHAM JJ
Date of judgment: 28 November 2022
Catchwords: STATUTORY INTERPRETATION – proper construction of s 12GB(6) of the Australian Securities and Investments Commission Act 2001 (Cth) – s 12GB(6) provides prosecution of relevant offences “may be commenced within 3 years after the commission of the offence” – whether s 12GB(6) imposes “hard” three-year limitation period or is intended to be “facultative or permissive” – consideration of text, context and legislative history of s 12GB(6) – textual significance of “may” in s 12GB(6) – legislative basis for s 12GB(6) in s 79(6) of the Trade Practices Act 1974 (Cth) – consideration of relevant authorities, including Attorney-General (Cth) v Oates (1999) 198 CLR 162 – preferable construction supports “hard” three-year limitation period in s 12GB(6) – no error by primary judge established – appeal dismissed
Legislation:

Australian Securities and Investments Commission Act 1989 (Cth) ss 1(1)(a), 1(1)(b), 12DB(1)(g), 12GB(1), 12GB(1)(c), 12GB(1)(d), 12GB(6), 12GBB(1), 12GBB(2), 12GBC(2)

Competition and Consumer Act 2010 (Cth) sch 2 (The Australian Consumer Law) ss 151, 212

Crimes Legislation Amendment Act 1992 (Cth)

Companies (Western Australia) Code

Financial Sector Reform (Consequential Amendments) Act 1998 (Cth)

Trade Practices Act 1974 (Cth) ss 53, 79 (repealed)

Federal Court Rules 2011 (Cth) r 30.01

Crimes Act 1914 (Cth) ss 4H, 15B, 15B(1)(b), 15B(1A)(a), 15B(1B), 15B(2), 21, 21(1)(c)

Corporations Act 1989 (Cth) sch (The Corporations Law) ss 82, 1316

Acts Interpretation Act 1901 (Cth) ss 15AA, 33(2A)

Customs Act 1901 (Cth) s 249

National Consumer Credit Protection Act 2009 (Cth) sch 1 (National Credit Code) ss 64, 65

Judiciary Act 1903 (Cth) s 79

Trade Practices Revision Bill 1986 (Cth), Explanatory Memorandum

Justices Act 1902 (WA) s 20

Justices Act 1902 (NSW) s 56

Police Act 1990 (NSW) ss 200(1), 200(3), 200(4)
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41

Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173

Attorney-General (Cth) v Oates (1999) 198 CLR 162

Beckwith v The Queen (1976) 135 CLR 569

Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28

Carr v Western Australia (2007) 232 CLR 138

Comptroller-General of Customs v Parker (2006) 200 FLR 44; [2006] NSWSC 390

Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd (As Trustee for Sadie Ville Superannuation Fund) [2020] FCAFC 23

Hollis v ABE Copiers Pty Ltd (1979) 41 FLR 141

Legal Services Board v Gillespie-Jones (2013) 249 CLR 493

Quikfund (Australia) Pty Ltd v Airmark Consolidators Pty Ltd (2014) 222 FCR 13; [2014] FCAFC 70

Refrigerated Express Lines (Asia) Pty Ltd v Australian Meat and Livestock Corporation (1980) 44 FLR 455

Sadie Ville Pty Limited v Deloitte…

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AGLC
Walker v Members Equity Bank Ltd [2022] FCAFC 184
Case
[2022] FCAFC 184
Decision Date

CaseChat Overview and Summary

In the case of Walker v Members Equity Bank Ltd, the dispute centred on the interpretation of s 12GB(6) of the Australian Securities and Investments Commission Act 2001 (Cth). This section sets out the time limit within which prosecution of relevant offences can be commenced. The court had to determine whether s 12GB(6) imposes a strict three-year limitation period or whether it is intended to be facultative or permissive. The case arose from an appeal against the decision of the primary judge, who held that s 12GB(6) imposes a fixed outer time limit for bringing criminal prosecutions for contraventions of certain consumer protection provisions in the ASIC Act. The central legal issues involved interpreting the text, context, and legislative history of s 12GB(6), particularly the significance of the word "may" and how it interacts with s 15B(1A)(a) of the Crimes Act.

The court examined the legislative history of s 12GB(6) and found that it supported the view that the section imposes a hard three-year limitation period. The court reasoned that if Parliament had intended to preserve the application of s 15B(1A)(a) of the Crimes Act, it would have explicitly stated so in s 12GB(6), which it did not. Additionally, the text of s 12GB(6) was interpreted to mean that the period within which prosecution must be commenced is an outer and restrictive time limit, and the use of "may" in the section did not suggest that the time limit is optional. The self-contained nature of s 12GB, which includes the offence-creating terms, the punishments, and the time limits, further supported the view that the limitation period is fixed and not dependent on other provisions.

The court concluded that the primary judge's interpretation of s 12GB(6) was correct and that there was no error in her Honour's reasoning. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

If ME Bank’s contention is correct, the prosecution of the offences allegedly committed more than 3 years before 25 May 2021 was statute barred by reason of s 12GB(6) of the ASIC Act. If the prosecutor’s contention is correct, the prosecution of those offences was not statute barred because s 15B(1A)(a) of the Crimes Act applied to those offences, with the result that there was effectively no limitation period and s 12GB(6) did not operate to impose any shorter limitation period. THE JUDGMENT OF THE PRIMARY JUDGE The primary judge held that s 12GB(6) of the ASIC Act applied in respect of the offences allegedly committed by ME Bank and that s 12GB(6), properly construed, “imposes a fixed outer time limit within which any criminal prosecution for contraventions of the relevant part of Subdivision D of Division 2 of Part 2 of the ASIC Act (ss 12DB to 12DN) must be brought”: J [25]. The key considerations which led her Honour to that conclusion may be summarised as follows. First, the primary judge considered the legislative history of s 12GB(6) of the ASIC Act (J [26]-[47]) and found that it confirmed the construction her Honour considered to be correct “having regard to the text and context of s 12GB(6), and the purpose or objective sought to be achieved in the imposition of criminal liability for contraventions of the consumer protection provisions of the ASIC Act in relation to financial services”: J [50]. The legislative history is discussed later in these reasons. It suffices to note at this point that her Honour considered it significant that s 15B of the Crimes Act predated s 12GB(6): J [67]. Her Honour reasoned that if “there had been an intention to preserve the application of s 15B(1A)(a) … Parliament would have said so in s 12GB(6), but it did not”: J [67]; see also J [59]. Second, the primary judge considered the text of s 12GB(6) and held that “the use of [the] word ‘within’, meaning up until or inside a period of three years, is consistent with a three-year period from the contravention being an outer and restrictive time limit”: J [55]. As for the use of the word “may”, her Honour considered that, when read in context, the word “may” in s 12GB(6) “does not suggest the time limit is optional”: J [56]. The relevant context included the similar use of the word “may” in s 12GBC(2), which provided the limitation period for the commencement of civil penalty proceedings. The word “may” in s 12GBC(2) was, her Honour reasoned, used “in a way which meant six years was the outer time limit” because, if that were not the case, s 12GBC(2) “would be nothing more than a legislative suggestion, and that cannot be the correct meaning in the context of civil penalty prosecution, where clarity and certainty are important features”: J [56]. Third, another relevant textual consideration was said by the primary judge to be that s 12GB is “self-contained in its operation” because it “contains the offence-creating terms, the punishments and the time limits”: J [57]. The self-contained nature of the provision was seen to be significant because “[c]onsiderable justification would be required to see such a self-contained provision as hinging on the terms of s 15B of the Crimes Act, which is a general provision extending to all laws of the Commonwealth”: J [57]

Ratio Decidendi

Legal Principle Established

Three points may be made in respect of that submission. First, given the terms of s 15B of the Crimes Act, it is impossible to see how there was any scope for any state limitation law applying to prosecutions for offences against s 12GB(1) of the ASIC Act by reason of s 79 of the Judiciary Act. That is because s 79 of the Judiciary Act only applies state laws in circumstances where, relevantly, Commonwealth laws do not otherwise apply. Second, the prosecutor was unable to give any example of any state limitation law which could possibly have applied in the case of prosecutions for offences against s 12GB(1) of the ASIC Act. Third, the prosecutor was unable to point to anything in the text, context or legislative history of s 12GB(1) which was suggestive of any such legislative intention. Other contextual considerations There are some other potentially relevant contextual considerations. A number of them have already been adverted to. First, as the primary judge noted (at J [57]), s 12GB is effectively “self-contained” in the sense that it creates an offence, provides for the penalties for that offence and provides in sub-s (6) for the time period within which a prosecution for the offence may be commenced. It is, in those circumstances, unlikely that the legislature intended that the operation or effect of the limitation provision in sub-s (6) would depend on whether or not a provision in another Act, such as s 15B of the Crimes Act, may otherwise impose a lesser time limit. It is true, as the prosecutor pointed out, that the general principles of criminal responsibility in ch 2 of the Criminal Code apply to offences against s 12GB(1), as they do in respect of every Commonwealth offence. It is also true that ss 12GB(1A) and (1B) expressly provide for the operation of specific provisions of the Criminal Code in certain limited respects. The application of the Criminal Code to the elements of the offences, however, does not materially detract from the relevance of the fact that, for the most part, s 12GB(1) is self-contained. There is nothing to suggest that the application of the limitation period specified in s 12GB(6) hinged on, or was intended to hinge on, whether or not a longer limitation period would otherwise apply by reason of s 15B of the Crimes Act or any other statutory provision. Second, s 12GBC(2) of the ASIC Act, which was in the same sub-div of the ASIC Act as s 12GB(6), was in effectively identical terms to s 12GB(6), other than that it provided for the commencement of proceedings within six years after the contravention rather than three years. As has already been noted, s 12GBC(2) has been construed as providing a “hard” limitation period in respect of the commencement of proceedings for the recovery of pecuniary penalties for contraventions of a provision in, relevantly, sub-div D: see Deloitte Touche Tohmatsu at [71], [246]-[248]. If it did not provide for a “hard” limitation, s 12GBC(2) would have no work to do. There could be no suggestion that the operation of s 12GBC(2) was dependent on, or subject to, the potential operation of a limitation period in some other Act. It is improbable that the legislature intended that s 12GB(6) would have any different meaning or operation to s 12GBC(2) given their almost identical wording.