Case: Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487
Outcome: considered
The judgment of Finkelstein J considered by Robson J was that given by his Honour in Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487. As Robson J (at [63]) noted, the following passage (164 FCR 487 at [58]) summarises the conclusion reached by Finkelstein J in relation to the making of a declaratory judgment by a civil court with respect to criminal conduct: The English and Australian authorities that warn of the dangers of a civil court becoming involved in criminal conduct continue to apply in an appropriate company case. The general rule in a company case is that a civil court will usually be the appropriate court to deal with a contravention of the Corporations Act. But the court should be wary of granting relief, including the grant of a declaration or an injunction, if the case is likely to end up before a criminal court. Ordinarily, a civil court should not intervene in those circumstances unless its failure to do so will result in irreparable injury. That strict rule need not be applied if the case involves undisputed facts and the issue raised gives rise to a question of pure law. Then a declaration can be a very useful remedy. As Barwick CJ said in Commonwealth v Sterling Nicholas Duty Free Pty Ltd that is the kind of case "which contributes enormously to the utility of the jurisdiction. (Internal footnote references omitted.) 28 I approach this matter conscious of the warning to which Finkelstein J refers. 29 In the present matter Burnett Water has in the end brought its stay application after filing its defence rather than at the first directions hearing. No criminal or even civil penalty proceedings instituted by or on behalf of the Commonwealth are presently pending against it or any "executive officer" in respect of any of the matters alleged in the statement of claim. Prosecution or civil penalty proceedings are two of the options open to the Minister to consider under the EPBC Act, as his Department's policy and correspondence with Burnett Water recognise. So, too, is the seeking of injunctive relief under s 475 of the EPBC Act by the Minister himself. None of these options has yet been abandoned by the Minister or his Department. Yet other options theoretically open to the Minister to consider are the variation of the conditions of the approval, the suspension of the approval or its revocation: ss 143, 144 and 145 respectively. 34 An "interested person" may initiate proceedings for injunctive relief in circumstances where, for one reason or another, the Minister may be unable or unwilling so to do. Further, a condition precedent to the granting of that relief is the proof of a contravention of the EPBC Act. That formal declarations to this effect have not been sought in the application may therefore in substance be a distinction without a difference. However, the present proceeding is of a quite different type to that which provoked the observation made by Finkelstein J in the passage which I have quoted from Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd . 35 The EPBC Act is not unique in providing for the granting of injunctive relief in circumstances which may attract either a civil penalty or a criminal prosecution. Section 80 of the Trade Practices Act 1974 (Cth) has, from the very commencement of that Act well over 30 years ago, permitted either an emanation of the Commonwealth in the form of what is now called the Australian Competition and Consumer Commission (ACCC) or any other person to institute proceedings for injunctive relief grounded in a finding of a contravention of Pt IV or Pt V of that Act. That there exists a theoretical contingency that a respondent's conduct may at the behest of the ACCC attract a civil penalty proceeding or a prosecution has not in the past proved to be a fertile source of precedent in relation to the staying of proceedings for injunctive relief under the Trade Practices Act initiated by a private person. An analogous conclusion is open in respect of the proceedings by private persons for injunctions grounded upon a breach of State fair trading statutes. 36 The EPBC Act does, by Subdivision B of Div 15 of Pt 17 of ch 6 (ss 486A to 486D) make some provision with respect to the relationship between criminal and civil penalty proceedings under that Act. I do not though discern in that Subdivision any implication that a proceeding for an injunction initiated by an "interested person" ought to be stayed even temporarily pending the making of a decision by the Minister as to whether civil penalty or criminal proceedings ought to be initiated in respect of the same conduct. Indeed, the absence of any reference in this Subdivision to a proceeding under s 475 of the EPBC Act is noteworthy.