Case: Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich (2003) 21 ACLC 672
Outcome: cited
ASIC may apply for such a declaration: s 1317J. Section 1317E(2) prescribes what a declaration under s 1317E(1) must specify, namely: "(a) the Court that made the declaration; (b) the civil penalty provision that was contravened; (c) the person who contravened the provision; (d) the conduct that constituted the contravention; (e) if the contravention is of a corporation / scheme civil penalty provision the corporation or registered scheme to which the conduct related." Section 1317F provides that a declaration of contravention is conclusive evidence of the matters referred to in s 1317E(2): Re One.Tel Ltd (in liq); Australian Securities and Investments Commission v Rich (2003) 21 ACLC 672. As a result, the court must specify the conduct that constituted the contravention with sufficient particularity to enable the declaration of contravention not only to stand on its own but to meet the statutory requirements and purpose of s 1317E. 33 Other sections provide for the making of pecuniary penalty orders (s 1317G) and provide that the Court must apply the rules of evidence and procedure for civil matters (s 1317L). 34 The intersection between the civil and criminal process is addressed in ss 1317M , 1317N and 1317P . The intersection is not easy. In the present case, it is further complicated by the timing of ASIC's application for declaration of contravention. Section 1317M deals with civil proceedings after criminal proceedings and provides that: "A court must not make a declaration of contravention or a pecuniary penalty order against a person for a contravention if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct constituting the contravention ." (Emphasis Added) 35 Section 1317N deals with criminal proceedings during civil proceedings and provides: "(1) Proceedings for a declaration of contravention or pecuniary penalty order against a person are stayed if: (a) criminal proceedings are started or have already been started against the person for an offence; and (b) the offence is constituted by conduct that is substantially the same as the conduct alleged to constitute the contravention. (2) The proceedings for the declaration or order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the declaration or order are dismissed." This provision is significant. It provides that proceedings for a declaration of contravention or pecuniary penalty order are stayed if criminal proceedings are on foot at the same time in relation to conduct that is substantially the same as the conduct alleged to constitute the contravention. In this provision, no distinction is drawn between proceedings for a declaration of contravention and proceedings for a pecuniary penalty order. 36 Section 1317P then deals with criminal proceedings after civil proceedings. It provides: "(1) Subject to subsection (2), criminal proceedings may be started against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether: (a) a declaration of contravention has been made against the person; or (b) a pecuniary penalty order has been made against the person; or (c) a compensation order has been made against the person; or (d) the person has been disqualified from managing a corporation under Part 2D.6 ; or (e) an order has been made against the person by ASIC under section 920A (banning orders) or by the Court under section 921A (disqualification by Court)."