Case: Medibank Private Limited v Cassidy [2002] FCAFC 290 ; (2002) 124 FCR 40
Outcome: referred to
Save for its first word s 65A(11) is in the same terms as s 1324 of the Corporations Law 1989 (Cth) (now s 1324 of the Corporations Act 2001 (Cth)). As the Full Court noted in Medibank Private Limited v Cassidy [2002] FCAFC 290 ; (2002) 124 FCR 40 at 50-51, provisions of this kind can be traced back to the Chancery Amendment Act 1858 (UK) ( Lord Cairns Act). The purpose of such provisions is expressly to empower a Court to award damages to persons who have suffered as a result of conduct which contravenes legislative requirements whether or not a curial power to grant a mandatory injunction might also support such an order. The exercise of the power is conditioned on the existence of a power to grant an injunction. That power is conferred by s 65A(1) which is a valid provision. In my opinion there is no reason, in principle, to distinguish between the power to grant injunctions and the power to require a respondent to pay damages occasioned by the same conduct which might justify the granting of an injunction. The granting of such relief does not cast the Court in the role of a "collection service" acting on behalf of third parties. It involves a judicial act in aid of a legislative purpose. Sections 65A(11) is valid law of the Commonwealth. 25 At the outset of the trial Mr Siminton sought an order that APRA's application should permanently be stayed or struck-out as an abuse of process. No notice of motion seeking such an order had been filed but Mr Siminton had, prior to trial, filed and served a notice of preliminary objections which included a summary of the submissions which he desired to make in support of the strike-out application. Counsel appearing for APRA did not object to the application being made or argued in advance of the trial proper. 26 Mr Siminton submitted that the proceeding was an abuse of process because it had been brought for the collateral purpose of seeking information and evidence to substantiate or justify allegations that Mr Siminton had committed criminal offences under ss 7 and 66 of the Act. He said that the Court should so conclude because: &#8226; APRA had failed to accept an offer by Mr Siminton to agree to certain forms of injunction; &#8226; APRA's statement of claim failed to plead any cause of action for damages; &#8226; APRA had conceded that it lacked evidence of lending by Mr Siminton and, therefore, that he had engaged in "banking"; &#8226; Of the fact that no charges had been laid against Mr Siminton; &#8226; Of the alleged paucity of evidence linking Mr Siminton to any alleged breach of s 66; &#8226; Of APRA's claim for certain interlocutory orders which Gray J had declined to make; &#8226; Of the commencement of contempt proceedings against Mr Siminton which were heard before the trial of the present proceeding; &#8226; Of APRA's attempt to use and rely on discovery, its seeking of particulars of Mr Siminton's defence and its application that directions be made requiring Mr Siminton to file witness statements in advance of trial; and &#8226; Of what was said to be the "linking of APRA's release of frozen funds for legal expenses to the provision of information." (I take this to be a reference to the terms of order 2 of the orders made by Gray J on 10 January 2006 under which Mr Siminton was given liberty to apply on notice in writing to APRA, supported by affidavit evidence of his means, for an order that he be permitted to withdraw monies for living and legal expenses).