ML v Australian Securities and Investments Commission [2013] NSWSC 283

ML v Australian Securities and Investments Commission [2013] NSWSC 283

The Supreme Court had jurisdiction because ML's summons was not an ADJR Act review of the Board Chairperson's refusal to grant a stay, but an independent application invoking the Court's power to protect the fairness of possible criminal proceedings. However, a stay was refused because ML was not compelled to give evidence before the Board, part of his account had already been disclosed, the asserted prejudice was not shown to create a real risk of injustice that could not be managed by other means, and the public interest in disciplinary regulation of liquidators outweighed the asserted prejudice.

Jurisdiction
Australia
Judgment Date
03 April 2013
Procedural Posture
Application for Stay of Disciplinary Proceedings Pending Possible Criminal Proceedings / Summons Before the Supreme Court of New South Wales
Outcome
Summons and proceedings dismissed.
Legal Topics
['inherent Jurisdiction of the Supreme Court' 'stay of Disciplinary Proceedings' 'potential Criminal Proceedings' 'administrative Decisions (judicial Review) Act 1977 (cth) S 9' 'corporations Act 2001 (cth) S 1337 B' 'privilege Against Self Incrimination' 'right to Silence' 'public Interest in Regulation of Liquidators']
['practice and Procedure' 'administrative Law' 'corporations' 'disciplinary Proceedings' 'criminal Procedure'] ['inherent Jurisdiction of the Supreme Court' 'stay of Disciplinary Proceedings' 'potential Criminal Proceedings' 'administrative Decisions (judicial Review) Act 1977 (cth) S 9' 'corporations Act 2001 (cth) S 1337 B' 'privilege Against Self Incrimination' 'right to Silence' 'public Interest in Regulation of Liquidators']

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Procedural Posture

Application for Stay of Disciplinary Proceedings Pending Possible Criminal Proceedings / Summons Before the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), read with s 1337B of the Corporations Act 2001 (Cth), ousted the Supreme Court's jurisdiction to entertain ML's application for a stay of proceedings before the Companies Auditors and Liquidators Disciplinary Board." 'Whether the Court should exercise its inherent or statutory jurisdiction to stay disciplinary proceedings before the Board until further order or until determination of any criminal charges against ML.' 'Whether continuation of the Board proceedings would create a real risk of unfair prejudice to ML in possible criminal proceedings, including by affecting his right to silence or enabling disclosure of his defence.']

Ratio Decidendi

The Supreme Court had jurisdiction because ML's summons was not an ADJR Act review of the Board Chairperson's refusal to grant a stay, but an independent application invoking the Court's power to protect the fairness of possible criminal proceedings. However, a stay was refused because ML was not compelled to give evidence before the Board, part of his account had already been disclosed, the asserted prejudice was not shown to create a real risk of injustice that could not be managed by other means, and the public interest in disciplinary regulation of liquidators outweighed the asserted prejudice.

Court Disposition

Summons and proceedings dismissed.

Orders

  • ['Summons and proceedings dismissed.' "The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed."]