Federal Court of Australia

Palmer v Australian Securities and Investments Commission (No 2) [2025] FCA 1425

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of the respondent dated 27 October 2025 is dismissed.

2.    The respondent must pay the applicant’s costs of an incidental to the application, assessed on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

MCELWAINE J:

1    Mr Clive Frederick Palmer commenced this proceeding on 6 January 2025. It has not much progressed because it has been bedevilled by interlocutory applications and disputes at case management hearings. Reduced to the essential dispute, Mr Palmer contends that Australian Securities and Investments Commission (ASIC) purported to exercise the power at s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) to conduct compulsory examinations of him on 24 and 25 October and 1 November 2017. He contends that the power was not lawfully exercised for two reasons. The first is that on a proper construction of s 49 of the ASIC Act, it was not open to require him to attend a compulsory examination under s 19, if ASIC had already formed the view that he was person who may have committed an offence against the Corporations legislation and ought be prosecuted for the offence: s 49(1).

2    Where that is so, s 49(3) provides:

(3)  If:

(a)      ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or

(b)      the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;

ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.

3    There is however, a carve out at s 49(4); the power does not apply to a person referred to in subsection (1). Mr Palmer pleads that by no later than 18 March 2016, ASIC had formed the s 49(1) view, or objectively that should have been apparent to a relevant officer of ASIC. Why that is so is complex and relates to a falling out between Mr Palmer and his related corporations and joint venture partners concerning the exploitation of mineral development rights pursuant to mining tenements in Western Australia. In more detail I summarised the background in Palmer v Australian Securities and Investments Commission [2025] FCA 1025.

4    Mr Palmer’s second contention is that the former joint venture partners and persons acting on their behalf instigated ASIC to procure the commencement of a criminal prosecution against him, not to have some bona fide wrong sanctioned or loss recovered, but to apply commercial pressure to him and his related entities to resolve in their favour commercial disputes relating to the joint venture. That leads then to the contention that the decision to use the compulsive investigative powers at ss 19 and 49 of the ASIC Act must be for the sole purpose of investigating whether an offence against the Corporations legislation has been committed and, if so, its prosecution and not for any other purpose. ASIC, Mr Palmer contends, breached that principle in that an additional consideration which led to the decision to use the compulsive powers were the commercial purposes of the former joint venture partners.

5    Until I granted leave to amend on 7 November 2025, the Commonwealth Director of Public Prosecutions (CDPP) was named as the second respondent. The relevance of the relief that was sought against the CDPP is related to a prosecution commenced by the filing of a complaint in the Magistrates’ Court of Queensland on 6 February 2020 by Sharon Concisom (an employee of ASIC). The complaint charged Mr Palmer with having committed an offence of dishonestly using his position as a director of Mineralogy Pty Ltd to gain an advantage for someone else, namely Cosmo Developments Pty Ltd and/or the Palmer United Party and others contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). This is referred to as the Cosmo Prosecution and to this day it remains unresolved in the Magistrates’ Court. There are other counts in the complaint which need not be mentioned for the present.

6    In this proceeding as now resolved in accordance with the Amended Originating Application and Third Further Amended Statement of Claim each filed on 11 November 2025, Mr Palmer seeks relief as follows:

1.    Declarations that:

(i)     the purported exercise by ASIC of the power contained in s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) to compulsorily examine Mr Palmer on 24 October 2017, 25 October 2017 and 1 November 2017 was unlawful;

(ii)    the summons issued to Mr Palmer dated 20 September 2017 compelling him, pursuant to s 19 of the ASIC Act, to be subjected to examination under oath, and to provide reasonable assistance to ASIC in relation to its investigation, was unlawful;

(iii)    the examination of Mr Palmer purportedly pursuant to s19 of the ASIC Act conducted by ASIC on 24 October 2017, 25 October 2017 and 1 November 2017, was unlawful;

(iv)    the transcripts of compulsory examination of Mr Palmer under s19 of the ASIC Act were unlawfully obtained;

2.    An order requiring ASIC to file an affidavit deposing to whom the transcripts of the compulsory examination of Mr Palmer purportedly under s 19 of the ASIC Act were disseminated.

3.    An order requiring ASIC to deliver up to Mr Palmer all copies of the transcripts of the compulsory examination of Mr Palmer purportedly under s 19 of the ASIC Act.

4.    Such further or other order or relief as this Honourable Court considers appropriate.

7    Amongst the interlocutory skirmishes to date, there is outstanding an application by ASIC filed on 28 February 2025, for orders that this proceeding be stayed as an abuse of process or summarily dismissed. That application was adjourned sine die pending determination by the Full Court on appeal from orders made by Button J on 8 October 2024 in Palmer v Australian Securities and Investments Commission [2024] FCA 1167. Her Honour ordered that a proceeding separately commenced by Mr Palmer be stayed pending the hearing and determination, including any appeals, of the criminal prosecution brought against Mr Palmer and a related corporation by complaints filed on 22 February 2018 in the Magistrates’ Court of Queensland. In that proceeding, Mr Palmer sought relief similar to that which he presently seeks, but this time related to a different prosecution described as the PLC Prosecution. Her Honour made those orders on the grounds that she was satisfied that the central question raised in the proceeding was also one that will or may arise in the related criminal proceedings: that is, whether a different s 19 examination of Mr Palmer was lawful: [177]. Her Honour further reasoned that it was open to Mr Palmer to question the lawfulness of the examinations in the criminal proceeding, and that he should do so “unless there are compelling reasons that would justify the question being determined in the civil jurisdiction”: [180]. This led her Honour to ultimately conclude at [187] that the scope of Mr Palmer’s proceeding together with “the possibility that future civil proceedings may be met with a res judicata argument, suggest that the interests of justice are best served by temporary, rather than a permanent, stay or dismissal of the proceeding”.

8    The Full Court dismissed an appeal from her Honour’s orders on 24 October 2025: Palmer v Australian Securities and Investments Commission [2025] FCAFC 151, Beach, Banks-Smith and Owens JJ. In these reasons for convenience, I simply refer to this as the Full Court decision.

9    In the Full Court, and at a late stage in the course of the appeal, the CDPP, argued that the jurisdiction of this Court to grant relief to Mr Palmer pursuant to s 39B (1A)(c) of the Judiciary Act 1903 (Cth) and/or s 1337B (1) of the Corporations Act is displaced by s 1337D of the Corporations Act and s 39B(1C) of the Judiciary Act. Although ASIC was a party to the appeal, it made no submission on the jurisdiction issue.

10    Section 1337B confers jurisdiction on this Court with respect to civil matters arising under the Corporations legislation. By subsection (6) it has effect subject to s 1337D which provides:

Jurisdiction of courts (decisions to prosecute and related criminal justice process decisions made by Commonwealth officers)

(1)     If a decision to prosecute a person for an offence against the Corporations legislation has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a State or Territory court:

(a)     neither the Federal Court nor the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and

(b)    jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced.

(2)    Subject to subsection (3), at any time when:

(a)     a prosecution for an offence against the Corporations legislation is before a State or Territory court; or

(b)     an appeal arising out of such a prosecution is before a State or Territory court;

the following apply:

(c)    neither the Federal Court nor the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d)    jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution or appeal is before a court.

(3)    Subsection (2) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

(4)    Where subsection (3) applies, the prosecutor may apply to the court for a permanent stay of the proceedings referred to in that subsection and the court may grant such a stay if the court determines that:

(a)     the matters that are the subject of the proceedings are more appropriately dealt with in the criminal justice process; and

(b)    a stay of proceedings will not substantially prejudice the person.

(5)    Subsections (1), (2), (3) and (4) have effect despite anything in this Act or in any other law. In particular:

(a)     neither this Act, nor any other law, has the effect of giving the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) jurisdiction contrary to subsection (1) or (2); and

(b)     neither section 9 of the Administrative Decisions (Judicial Review) Act 1977, nor any other law, has the effect of removing from a State or Territory Supreme Court the jurisdiction given to that Court by subsection (1) or (2).

(6)    In this section:

"appeal" includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

"related criminal justice process decision", in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(a)     a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(b)     a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(c)     a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(d)     a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(e)     a decision in connection with an appeal arising out of the prosecution.

11    Section 39B(1C) of the Judiciary Act is in similar form.

12    The Full Court did not dismiss the appeal by upholding the jurisdiction decision. The Court concluded that none of the grounds of appeal concerning the legal principles identified and applied by Button J were made out. The ratio of the decision lies in how the Court resolved each of the six grounds of appeal which contended error, as summarised at [6]-[11]:

First, it is said that her Honour, in finding that it would be an abuse of process for this Court to deal with the alleged unlawfulness of the s 19 examination when that question might arise in the course of a subsequent evidentiary ruling in the criminal proceedings, misapprehended the concept of fragmentation (ground 1). The applicants have said that this ground gives rise to a significant issue concerning the application of the proper test of fragmentation of criminal proceedings as described in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 25 and 26 per Gibbs ACJ.

Second, it is said that her Honour erroneously found that the proceeding before her and the criminal proceedings involved the same central issue, when the alleged unlawfulness of the s 19 examination arose in the context of distinct issues (ground 2).

Third, it is said that her Honour erred in finding that merely because the lawfulness of the s 19 examination could be challenged in the context of an evidentiary ruling in the criminal proceedings, it could not be pursued in the proceeding before her absent compelling reasons (ground 3).

Fourth, it is said that her Honour departed from the fundamental principle that parties are entitled to have their claims heard absent exceptional circumstances (ground 4). The applicants have said that this ground gives rise to a significant issue concerning the principle which permits the circumscribed occasion for departure from what was said to be the fundamental principle stated in Rochfort v John Fairfax and Sons Ltd [1972] 1 NSWLR 16 at 19 per Sugerman ACJ.

Fifth, it is said that her Honour erred in taking into account the perceived wealth and power of Mr Palmer in dealing with the stay applications brought by the respondents (ground 6).

Sixth, it is said that there was no rational basis for her Honour to order a temporary stay in the circumstances (ground 5). The applicants have said that this ground gives rise to a significant issue concerning the distinction in principle between considerations relevant to the grant of a temporary stay and considerations relevant to the grant of a permanent stay.

13    Towards the end of the reasons, the Court addressed the jurisdiction submission, which is clearly obiter as the Court acknowledged at [359]: “Fortunately, we do not need to decide the point.”

14    ASIC now agitates the point for decision before me in this proceeding. By an interlocutory application filed on 27 October 2025, ASIC seeks an order that the proceeding be dismissed for want of jurisdiction or alternatively under r 13.01 of the Federal Court Rules 2011 (Cth), that the originating application be set aside for want of jurisdiction. Mr Palmer resists the orders.

15    ASIC in summary submits as follows. It commences with setting out how the issue arose in the PLC Prosecution, which is uncontroversial. Jurisdiction once raised is a threshold issue which must be first determined: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216 at [21]-[23]. Properly construed, s 1337D ousts the general civil jurisdiction of this Court in relation to matters arising under the Corporations legislation because there is a prosecution against Mr Palmer for an offence contrary to s 184 of the Corporations Act that is currently in the Magistrates’ Court of Queensland and, therefore by, s 1337D(2)(c) this Court does not have jurisdiction “with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision”. That is so in this case, because the gravamen of Mr Palmer’s complaints concern a decision or decisions “in connection with the investigation, committal for trial or prosecution of the defendant” within the meaning of subsection (6).

16    The statutory purpose is revealed when one has regard to the similar, though not identical, wording of s 39B(1C) of the Judiciary Act and where the Outline to the Revised Explanatory Memorandum to the Jurisdiction of Courts Legislation Amendment Bill 2000 stated that the purpose of the relevant amendments was to “restrict the access of defendants in criminal matters to administrative law remedies”. Further, so the argument runs, that is confirmed by the Minister’s Second Reading Speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, on 8 March 2000.

17    Accordingly, ASIC submits that it is apparent from the text, context and purpose of Division 1 of Part 9.6A of the Corporations Act that the provision was intended to and does operate “to provide clarity as to the civil jurisdiction of courts where criminal and civil proceedings are on foot in parallel, and to allocate jurisdiction to State courts in specified circumstances”. Accordingly, the effect is to restrict the access of “criminal defendants to collateral administrative law remedies” and to prevent the fragmentation of criminal proceedings. Particular reliance is placed on Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395 at [14] – [15] where O’Loughlin, North and Weinberg JJ observed:

Schedule 2 of the Jurisdiction of Courts Act was plainly intended, as the minister made clear in his Second Reading Speech, to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim of the Act is to remove collateral access to federal administrative law procedures and remedies in this Court, at least in those cases where a prosecution for an offence against a law of the Commonwealth has been commenced.

The new provisions contained in Sch 2 reflect a belief on the part of the legislature that it is no longer sufficient to rely upon the exercise by the civil courts of a discretion to deny judicial review in such cases to avoid the dangers of fragmentation of the criminal justice process. For so long as there exists jurisdiction to review decisions taken in the course of that process, there will be scope for those affected by those decisions to challenge them in this Court. The risk that an unsuccessful applicant may be required to pay the costs of such proceedings seems to have done little to dissuade their being brought.

18    Turning to the relief that Mr Palmer seeks, ASIC characterises it as “in the form of an injunction”, being orders to compel ASIC, “or in reality, officers of ASIC” to act in a particular way by the grant of relief analogous to a mandatory injunction, the delivery up of material. Further, the practical result is to restrain ASIC from using the transcripts, or the material contained therein.

19    Of course, all of this depends on ASIC being an officer of the Commonwealth. Perplexingly, ASIC does not seek a determination that it is an officer of the Commonwealth. Rather, by analogous reasoning, it submits that “in substance” Mr Palmer seeks relief against officers of the Commonwealth on the basis that “ASIC staff or officers would be required to give effect to such relief (either themselves, or by instructing agents of ASIC to do so)”.

20    ASIC must confront as the primary difficulty the obiter reasoning of the Full Court in the related matter. The relief sought by Mr Palmer in that case is similar to the revised relief sought in this proceeding. I reject ASIC’s submission that the Full Court’s reasons do not amount to considered dicta and as such the issue is “ripe” for determination by a single judge. When one reads paragraphs [24]-[25] and [322]-[359] it seems to me that it is inescapable that the Full Court gave detailed consideration to the issue though their Honours refrained from deciding the point.

21    The Full Court gave four reasons to reject the jurisdiction submission, which I return to. ASIC addresses the problem by submitting that the Full Court did not hear argument on the officer point, that no narrow construction of who is an officer of the Commonwealth is warranted, the reasoning is obiter and I should follow the reasoning path of Bromwich J in Huynh v Commonwealth of Australia [2025] FCA 531 at [24] – [29] in preference to the reasoning of Robertson J in McCarthy v Commissioner of Taxation [2013] FCA 715; (2013) 249 FCR 140 at [62] – [66]. Justice Bromwich construed the statutory analogue at s 39B(1C) of the Judiciary Act broadly and in doing so distinguished the decision of Robertson J. The gist of the reasoning of Bromwich J is captured at [28]-[29]:

The carve out provisions in the Judiciary Act and the ADJR Act are broad in their expression, and in particular are overtly wider in scope than the specific object sought to be achieved, as identified in the extrinsic material, of avoiding fracturing of the criminal process and delay. The definition of “related criminal justice process decision” captures a wide range of decisions made in the criminal justice process. That cannot be regarded as other than deliberate. As such, although the Legislature’s decision to insert the carve out provisions was evidently informed by concerns about fragmentation and delay in the criminal justice process, the final form of the legislation went much further than solely addressing that concern. Extrinsic material cannot be used to change the meaning of the legislation by creating an additional requirement that does not arise from the words used.

This broad view of the operation of the carve out provisions, despite the more limited ambit of the objectives and concerns expressed in the extrinsic material, is consistent with the observations of the Full Court in Jiang at [14]-[15], reproduced above.

22    ASIC further submits that the reasoning of Robertson J in McCarthy is in part supportive of its arguments in that his Honour determined that the Court lacked jurisdiction to determine aspects of the relief sought in that proceeding, which concerned declaratory relief relating to the validity of search warrants and orders for mandamus directed to the Chief Executive Officer of the Australian Crime Commission. ASIC emphasises [39], where his Honour considered that a “straightforward application” of Jiang:

[S]hows that the Federal Court has no jurisdiction in respect of at least the parts of the present applications which impugn the validity of the search warrants and seek the return to the applicant of material seized under those warrants or the destruction of that material. On the evidence, that material forms part of the criminal proceedings and there will be a question of its admissibility in those proceedings. I conclude that in relation to paragraphs 9, 10 and 11 the Federal Court does not at present have jurisdiction.

23    However, his Honour reasoned that jurisdiction to grant other forms of relief (a writ of mandamus addressed to the Commissioner of Taxation, together with a writ of prohibition restraining reliance upon amended notices of assessment) were not removed by the Judiciary Act carve out: [41] – [44] and [62] – [66]. I emphasise only the concluding paragraph ([66]) where Robertson J said:

In my opinion, although it is unnecessary for me to decide the point in light of the conclusions I have come to above, bearing in mind the mischief to which the provision is directed, the inconvenient and apparently unintended consequences of the broader construction and the principle referred to in the immediately preceding paragraph, the better construction is that s 39B(1C) operates to take away jurisdiction from this Court only in respect to the part or parts of the matter in which the defendant seeks the prescribed relief in relation to the criminal justice process decision and that this is to be tested by the effect of the relief claimed, if it were granted, on the criminal proceedings.

24    Mr Dunning KC for Mr Palmer submits that the jurisdiction question was answered by the Full Court which decision is binding and dispositive of the interlocutory application, or if obiter should nonetheless be followed by a primary judge: Re Tyler; Ex parte Foley [1994] HCA 25; (1994) 181 CLR 18 at 37, McHugh J. I must say, however, that McHugh J was there concerned with a different type of case, one where there is no discernible ratio. More appropriate to this case is the line of reasoning that a judge at first instance should follow seriously considered dicta of an appellate court in the same hierarchy, absent a conclusion that the reasoning is plainly wrong: BHP Billiton Nickel West Pty Ltd v KN (Decd) [2018] FCAFC 8; (2017) 258 FCR 521 at [41]-[43], North, Dowsett and Jagot JJ.

25    Mr Dunning relies on secondary submissions as well. It is not consistent with the overarching purpose of the civil practice and procedure of this Court, for ASIC to apply to a single judge to determine the question before trial when the Full Court gave the parties, including ASIC, the opportunity to fully argue the jurisdiction issue. ASIC’s submission that in substance Mr Palmer seeks relief against an officer of the Commonwealth should be rejected as inconsistent with principle and overly broad. If that point is to be taken, then ASIC is obliged to, but has not, given notice pursuant to s 78B of the Judiciary Act.

26    The submissions continue to the effect that Mr Palmer does not seek relief analogous to an injunction or mandamus. There is no real argument which prohibits this Court from granting the primary declaratory relief that Mr Palmer seeks. The ouster of jurisdiction effected by s 1337D should be narrowly construed, conformably with the general approach to construing limitations upon the exercise of conferred jurisdiction: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [72]. ASIC belatedly raises the jurisdiction point and is criticised in various ways for acting inconsistently by not taking the point in several related proceedings, in this Court and in the Supreme Court of Queensland. One of the examples relied on is a submission made by ASIC to the Court of Appeal of Queensland on 19 September 2025 in Palmer v Magistrate McKenzie (2775/25) where, in substance, ASIC submitted that this Court, amongst others, has jurisdiction to review a decision made by the Magistrate in the criminal proceeding by operation of s 1337B of the Corporations Act.

27    I have concluded that the interlocutory application must be dismissed for the reasons given, albeit obiter, by the Full Court. The Court summarised the essence of the CDPP submissions at [331] – [336], which submissions closely align with those of ASIC in this matter:

And it is said that s 1337D(2)(c) is satisfied because the proceeding before the primary judge involves a matter in which the applicants, who are the defendants in the prosecution, seek an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision. As to the different aspects of this requirement, the following points were made.

It is said that the relief sought in at least paragraphs B, C and D of the prayer for relief are, in substance and effect, injunctive. And it is said that that relief is sought against an officer or officers of the Commonwealth, being officers of the first and second respondent.

Further, it is said that on the case pleaded by the applicants, such relief against those officers is “in relation to” a related criminal justice process decision. So, it is alleged that ASIC issued a summons to Mr Palmer under s 19 of the ASIC Act, ASIC purported to exercise that power by compulsorily examining him, ASIC provided the transcripts of that examination to the CDPP, the transcripts were used in formulating the charges, the transcripts were used by ASIC to draft a summary of facts for the prosecution, and the transcripts were used to prepare evidence for the prosecution.

The CDPP says that such pleaded decisions come within at least paragraphs (a) and (d) of the definition of “related criminal justice process decision” as they are alleged to have been made in the criminal justice process in relation to the offences for which the applicants are now being prosecuted.

Further, it is said that in this context the phrase “in relation to” is one of wide import. As such, it requires no more than a relationship between the two subject-matters which it connects, being the nature of the relief sought by the applicants and the related criminal justice process decisions which the applicants plead. In this regard it is said that the phrase “in relation to” can encompass direct and indirect connections. And it is said that one subject matter can “relate to” another one even though the first subject matter also relates to other things.

Further, it is said that the better view on the plain language of the provisions is that this Court did not have jurisdiction in the “matter” in that it did not have jurisdiction with respect to the whole of the justiciable controversy regarding the lawfulness of the s 19 examination.

28    Next the Court at [337] noted a question that appears to be unresolved being whether the provision “operates to take away jurisdiction with respect to only those parts of the matter in which the applicants seek relief of the kind identified in the provision”. In addressing that issue, the Court summarised the relevant passages from Robertson J in McCarthy and Bromwich J in Huynh at [338] – [339]. The Court next noted the applicant’s primary submission that there is jurisdiction because declaratory relief is sought pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth) (FCA Act): [341] – [343]. The Court rejected that submission on the basis that the provision is not one that confers jurisdiction but rather is to make binding declarations where the Court otherwise has jurisdiction in a civil proceeding: [344].

29    Moving to the conferral of jurisdiction pursuant to s 1337B of the Corporations Act and s 39B(1A)(c) of the Judiciary Act, the Court reasoned at [348] that ASIC is of course not an ‘officer of the Commonwealth’.”. The Court did not refer to any authority for that proposition. On first analysis none is required: “An ‘officer’ connotes an ‘office’ of some conceivable tenure, and connotes an appointment, and usually a salary”: The King v Murray and Cormie; Ex parte The Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452, Griffith CJ. ASIC is a body corporate with perpetual succession and a common seal: s 8 ASIC Act. That said, there may be some scope to argue that a body corporate established by statute may in some circumstances be an officer of the Commonwealth. See the discussion by James Stellios (as his Honour then was) in The Federal Judicature: Chapter III of the Constitution (2nd ed LexisNexis) at [7.59] – [7.61]. However, ASIC did not on the present application seek a determination that it is an officer of the Commonwealth. That is not in any event the determinative premise of the Full Court’s reasoning.

30    At [352] the Full Court noted that the focus of the CDPP submission was whether the Court has jurisdiction in a matter and not whether the discrete claims for relief as falling within the scope of the matter would be within jurisdiction. That submission rested on the single matter character of the entire proceeding. The Court rejected the submission at [354] – [359]:

But in our view, and notwithstanding the usual width given to the concept of “matter” and also the phrase “in relation to” as pointed out by the CDPP, we are inclined to prefer the approach of Robertson J in McCarthy, if we had to decide the point, for the following reasons.

First, his analysis is consistent with the principle that laws excluding jurisdiction should be construed narrowly.

Second, the breadth of the relief sought goes beyond the criminal proceedings and applies to any use of the fruits of the s 19 examination in any context including future civil proceedings or any other possible use of the s 19 transcripts.

Third, relief is sought against ASIC itself which is not an officer of the Commonwealth.

Fourth, as the applicants have pointed out, declaratory relief is also sought, although in our view this is not such a strong point in the applicants’ favour on the jurisdictional point save as against ASIC itself.

For these reasons there is force in Robertson J’s analysis, but there is much to be said on either side. Fortunately, we do not need to decide the point. But if we had to we would prefer Robertson J’s analysis to the extent of saying that the primary judge had jurisdiction to grant some of the relief claimed by the applicants against ASIC itself such as a declaration tailored to the s 19 unlawfulness question only or to orders precluding the use of the transcripts outside the extant or other criminal proceedings, say, use in future civil proceedings.

31    I agree with that reasoning, quite independently of arguments that I am bound to follow it as obiter unless convinced that it is plainly wrong. The exclusion of jurisdiction that is worked by s 1337D of the Corporations Act is limited to proceedings where the defendant in the relevant criminal prosecution seeks relief in this Court by way of a writ of mandamus or prohibition or an injunction in relation to a related criminal justice process decision. What is presently in issue in this proceeding is whether ASIC lawfully embarked upon and conducted compulsory examinations of Mr Palmer pursuant to s 19, despite s 49(4) of the ASIC Act and whether the compulsive powers may only be exercised for the sole purpose of investigating and prosecuting offences. Mr Palmer does not now seek relief against the CDPP as an officer of the Commonwealth in relation to a decision made in the criminal justice process concerning the offences with which he has been charged, including any of the decisions of the type listed at subsection (6)(a) – (e) of s 1337D. The same reasoning applies to s 39B(1C) of the Judiciary Act.

32    I do not consider that the reasoning of Robertson J in McCarthy at [39] assists ASIC’s arguments. It is distinguishable for two reasons. The relief in this proceeding does not seek to impugn the Cosmo Prosecution. When I invited Ms Foley to identify how that may be the case when the transcripts in issue cannot be admitted in evidence in the criminal proceeding by operation of s 68(3) of the ASIC Act, she did not. And as pointed out by Mr Dunning, it is not in issue on the pleadings that Mr Palmer relevantly claimed privilege when he involuntarily attended the examinations conformably with s 68(2). The other point of distinction is, for the same reasons, that the transcripts do not form part of the material in the prosecution where questions of admissibility are likely to arise.

33    I also reject the ASIC submission that in substance the delivery up and affidavit relief is addressed to an officer of the Commonwealth in that ASIC staff or officers will be required to give effect to such relief. Those persons are not parties to this proceeding and are not bound by the relief sought. How ASIC chooses in the future to comply with any order made by this Court is a matter for it to determine. In any event, the relief sought at (2) and (3) is not for an injunction simply because they require ASIC to file a disclosing affidavit or to deliver up copies of documents: “All court orders forbid or command one person to whom they are directed to refrain from doing something or to do something, but not all court orders are injunctions”: Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, by Heydon, Leeming and Turner (5th ed LexisNexis) at [21-005]. As an example, an order for restitution of chattels at common law or in equity is “not a form of injunction, mandatory or otherwise”: Doulton Potteries Ltd v Bronotte [1971] 1 NSWLR 591 at 596, Hope J.

34    I do not consider that Smethurst v Commissioner of Police (2020) 272 CLR 177; [2020] HCA 14 272 CLR 177 assists. The passages relied on at [95]-[96] in the joint reasons of Kiefel CJ, Bell and Keane JJ in my view confirm that the ancillary relief sought by Mr Palmer cannot be equated with the injunctive relief referenced in s 1337D of the Corporations Act. Their Honours were concerned with s 75(v) of the Australian Constitution. As explained at [96]:

At Federation, the injunction was used in England and the United States to restrain injury to the rights of a person by administrative decisions tainted by abuse of power. In this context an injunction may be understood as directed to an unlawful exercise of power. It lies to prevent the implementation of invalid exercises of power. But this says nothing about conduct in excess of power which is not continued. The fact that an officer of the Commonwealth has acted in excess of power may bring s 75(v) into focus but is not itself sufficient for the grant of an injunction. A critical question regarding the grant of that remedy relates to the effect that that conduct has had on the plaintiff and then whether there are discretionary considerations to be weighed. The distinction to be borne in mind is as between the jurisdiction to grant a remedy and the matters which inform the grant.

35    In my view Mr Dunning is correct to submit that in that passage their Honours were concerned with the grant of injunctive relief as ancillary to the Constitutional writs of mandamus or prohibition to better secure compliance. The reasoning of Gordon J in Smethurst at [170]-[171] is to the same effect. The case does not blur or obliterate the distinction between injunctions and other forms of coercive relief and does not address the difference between executory and declaratory judgments. An applicant having secured declaratory relief is at liberty to apply for consequential coercive relief: Royal Insurance Co Ltd v Mylius (1926) 38 CLR 477 at 497, Isaacs J; EB 9 and 10 Pty Ltd v The Owners Strata Plan 934 [2018] NSWCA 288; (2018) 98 NSWLR 889 at [39], Barrett AJA. Isaacs J in Royal did not reference injunctive relief as the coercive measure. Nor did Barrett AJA in EB 9 at [39]:

The making of the declaration therefore causes the right of the plaintiff that the declaration has exposed to be “enforced” not merely according to the ordinary parlance already noticed but also because the declaration carries within it an entitlement of the plaintiff to obtain specific and coercive relief in further vindication of the right should the need to do so arise.

36    This is not to overlook the subsequent decision of the High Court in Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [48] and [53], where Gageler and Gleeson JJ stated that a binding declaration of right conclusively determines the rights of the parties, and its efficacy does not depend on ancillary coercive relief. That says nothing about the character of ancillary coercive relief which may in some cases be by way of an injunction, but need not be.

37    The declaratory relief seeks to vindicate Mr Palmer’s contentions that ASIC did not act lawfully in implementing the compulsory examination procedures. That relief goes to the central and important issue of public power and the limits of lawful coercion. Similarly with the Full Court, I also agree with Robertson J in McCarthy for the reason that provisions that seek to limit or oust the jurisdiction of this Court should not, absent clear words, be construed as doing so: Magrath v Goldsbrough Mort & Co Ltd (1932) 47 CLR 121 at 134, Dixon J; Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34], Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ. Section 1337D does not expressly or by necessary implication oust the jurisdiction of this Court to determine whether ASIC lawfully implemented the compulsory examination procedures in issue and to grant appropriate declaratory relief (at the very least) if the conclusion is that ASIC did not proceed lawfully. The ouster is confined to relief by writ of mandamus or prohibition or an injunction against an officer of the Commonwealth.

38    Here too, the coercive relief sought by Mr Palmer stands apart from the criminal proceeding. He seeks identification as to the extent of distribution of the impugned transcripts and delivery up. This relief does not go to a related criminal justice process decision. The Full Court at [359] did not regard “orders precluding the use of the transcripts” as or akin to injunctive relief.

39    Having reached that firm conclusion, it is not necessary to address the secondary arguments of Mr Dunning that are concerned with the past conduct of ASIC in this and other proceedings, nor the issues of delay and possible fragmentation of this proceeding.

40    However, whether this proceeding should be stayed is another issue that falls for separate determination assuming ASIC now presses the application of 28 February 2025.

41    For these reasons, I dismiss interlocutory application.

Associate:

Dated:    20 November 2025