Hamilton v Whitehead [1988] HCA 65

Hamilton v Whitehead [1988] HCA 65

Because the respondent, as managing director, placed the advertisement and dealt with respondents to it as the company's directing mind and will, the company was directly liable as principal for breaches of s. 169 of the Companies (Western Australia) Code. The respondent, having performed the conduct and known all material circumstances, was knowingly concerned in the company's offences within s. 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code. Mallan v. Lee did not apply because the company's liability was direct, not vicarious, and there was no warrant to read down s. 38.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave to Appeal and Appeal Arising From Orders to Review in Summary Criminal Proceedings / High Court of Australia Special Leave Application and Appeal From a Decision of a Single Judge of the Supreme Court of Western Australia
Outcome
Special leave to appeal granted; appeal allowed; orders of the Supreme Court of Western Australia set aside; matter remitted to the Supreme Court for necessary orders in accordance with the High Court's judgment.
Legal Topics
['prescribed Interests Offered or Issued to the Public' 'corporate Criminal Liability' 'accessorial Liability of Company Officer' 'directing Mind and Will of Company' 'direct Liability Distinguished From Vicarious Liability']
['corporations Law' 'criminal Law' 'statutory Interpretation'] ['prescribed Interests Offered or Issued to the Public' 'corporate Criminal Liability' 'accessorial Liability of Company Officer' 'directing Mind and Will of Company' 'direct Liability Distinguished From Vicarious Liability']

Case Brief

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Procedural Posture

Application for Special Leave to Appeal and Appeal Arising From Orders to Review in Summary Criminal Proceedings / High Court of Australia Special Leave Application and Appeal From a Decision of a Single Judge of the Supreme Court of Western Australia

Legal Issues

  1. 1 ["Whether a managing director whose acts and mind were the acts and mind of the company could be personally liable under s. 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code for being knowingly concerned in the company's offences under s. 169 of the Companies (Western Australia) Code." "Whether the principle discussed in Mallan v. Lee prevented prosecution of the respondent as an accessory where the company's liability was direct rather than vicarious." 'Whether s. 38 of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code should be read down to exclude persons whose actions were themselves the actions of the company.']

Ratio Decidendi

Because the respondent, as managing director, placed the advertisement and dealt with respondents to it as the company's directing mind and will, the company was directly liable as principal for breaches of s. 169 of the Companies (Western Australia) Code. The respondent, having performed the conduct and known all material circumstances, was knowingly concerned in the company's offences within s. 38(1) of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Western Australia) Code. Mallan v. Lee did not apply because the company's liability was direct, not vicarious, and there was no warrant to read down s. 38.

Court Disposition

Special leave to appeal granted; appeal allowed; orders of the Supreme Court of Western Australia set aside; matter remitted to the Supreme Court for necessary orders in accordance with the High Court's judgment.

Orders

  • ['Application for special leave to appeal granted.' 'Appeal allowed.' 'Set aside the orders of the Supreme Court of Western Australia dated 19 July 1988 in Matters Nos. 1275, 1276, 1277 and 1279, all of 1987.' 'Remit the matter to the Supreme Court for the necessary orders to be made in accordance with the judgment...