Case: Australian Securities and Investments Commission v Mauer-Swisse Securities Limited (2002) 42 ACSR 605
Outcome: discussed
As already noted, s 65A of the Act is in substantially similar terms to those of s 1324 of the Corporations Act 2001 (Cth). In Australian Securities and Investments Commission v Mauer-Swisse Securities Limited (2002) 42 ACSR 605 at 613-614 Palmer J, having reviewed a number of authorities on the construction and operation of s 1324 continued: "[36] At the risk of some repetition, I summarise the principles which I draw from the presently applicable authorities: &#8226; the jurisdiction which the court exercises under [the Corporations Act ] s 1324 is a statutory jurisdiction, not the court's traditional equity jurisdiction; &#8226; Parliament has made it increasingly clear by successive statutory enactments that the court, in exercising its statutory jurisdiction under s 1324 , is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction; &#8226; among the considerations which the court must take into account in an application for an injunction under [Corporations Act] s 1324 are the wider issues referred to by Austin J ... and by Davies AJ ...; they may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the Corporations Act ; &#8226; these considerations are to be taken into account regardless of whether the application is for a permanent injunction under s 1324(1) or for a interim application under s 1324(4) ; &#8226; where an application under s 1324(4) is made by ASIC rather than a private litigant the court is more likely to give greater weight to the broad question whether the injunction would serve a purpose within the contemplation of the Corporations Act ; &#8226; where there is an appreciable that is, not fanciful risk of particular future contraventions of the Corporations Act by a defendant, it would serve a purpose within the contemplation of the Corporations Act that the court grant not only a permanent injunction, but, in an appropriate case, an interim injunction restraining such conduct. Section 1324 evinces an intention that the possibly severe consequences and the relatively promptness of proceedings for contempt of court be added to criminal prosecutions as a deterrent to contraventions of the Corporations Act ..." In my view these principles have application to the construction of s 65A of the Act. The principle contained in the penultimate bullet point in the passage quoted in this paragraph has equal force where application is made for a permanent injunction. 65 By s 8 of the Australian Prudential Regulation Authority Act 1998 (Cth) APRA is established, inter alia, for the purpose of regulating bodies in the financial sector in accordance with other laws of the Commonwealth, such as the Banking Act , that provide for prudential regulation. Section 65A of the Act is one of many provisions in the Act which enable APRA to take action designed to protect the interests of depositors and to promote the stability of Australia's financial system. Those objectives are to be borne in mind in exercising the discretion which is conferred on the Court by s 65A. 66 Mr Siminton has deliberately embarked on a course of conduct which has involved contraventions of the Act. He has established what he calls a "bank" and, with others, has been successful in encouraging a considerable number of people to make deposits in the "bank". They were promised high interest rates. They were told that interest payments would be made in ways which would facilitate evasion of income taxation payment obligations. Some depositors received some of the promised interest payments but then the payments ceased. Others received no interest. Some, who sought repayment of their deposits, were unsuccessful.