Federal Court of Australia

Palmer v Magistrate McKenzie [2026] FCA 1080

ORDERS

THE COURT ORDERS THAT:

1.    The second and third respondents are granted leave to amend the interlocutory application filed on 30 September 2025 in terms of the amended interlocutory application filed on 18 December 2025.

2.    Pursuant to order 2B in the amended interlocutory application referred to in order 1, these proceedings are dismissed pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth).

3.    Within seven days of the date of these orders, the applicant and the second and third respondents are to provide to the associate to Justice Vandongen an agreed minute of proposed orders in relation to the issue of costs.

4.    If the parties cannot agree orders in accordance with order 3 then within 10 days of the date of these orders the applicant and the second and third respondents are to each file and serve a minute of proposed orders in relation to the issue of costs.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    On 22 February 2018 the second respondent, the Commonwealth Director of Public Prosecutions (CDPP), commenced a prosecution in the Magistrates Court of Queensland (Magistrates Court) against the applicant, Clive Frederick Palmer. In that prosecution, which was commenced by a complaint and summons under the Justices Act 1886 (Qld), the CDPP alleges that Mr Palmer aided, abetted, counselled or procured Palmer Leisure Coolum Pty Ltd (PLC) to contravene s 631(1) of the Corporations Act 2001 (Cth). Later, on 6 February 2020, the CDPP commenced a further prosecution against Mr Palmer in the Magistrates Court by complaint and summons in which it is alleged that Mr Palmer contravened s 408C(1)(d) of the Criminal Code (Qld) and s 184(2)(a) of the Corporations Act (PUP Payments Prosecution).

2    These proceedings are concerned only with the PUP Payments Prosecution.

3    In August 2023, Mr Palmer applied to the Magistrates Court for orders that the PUP Payments Prosecution be 'set aside or dismissed as an abuse of process', relying on various provisions of the Justices Act or the 'implied jurisdiction' of the Magistrates Court. That application was heard by Magistrate McKenzie (Magistrate) on 1 and 2 August 2024. At the conclusion of the hearing of that application, the Magistrate informed the parties to the proceedings that he was not satisfied that he had the power under either ss 22A or 103B of the Justices Act to summarily dismiss the PUP Payments Prosecution. The Magistrate also said that:

[e]ven if I had been so satisfied, considering the authorities to which we have discussed with regards to exceptional caution being exercised in exercising the power and only in the clearest of cases, I would not be so satisfied.

The Magistrate indicated that he would give 'more fulsome reasons' at a later date. Those further reasons were subsequently given on 28 October 2024.

4    Mr Palmer then sought judicial review of the Magistrate's decision in the Supreme Court of Queensland. Ultimately, Martin SJA held that the Supreme Court of Queensland did not have jurisdiction to hear and determine Mr Palmer's application: Palmer v Magistrate McKenzie [2025] QSC 127. His Honour's decision was upheld by the Court of Appeal of the Supreme Court of Queensland (Court of Appeal) on 14 July 2026 in Palmer v Magistrate McKenzie [2026] QCA 129 (Palmer v McKenzie (QCA)).

5    However, Martin SJA also decided to transfer part of Mr Palmer's application for judicial review to this Court pursuant to s 1337H of the Corporations Act because Mr Palmer had sought an order, under s 1337B(1) of the Corporations Act and s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), that the Magistrate's decision be quashed. That decision is unaffected by the conclusions reached by the Court of Appeal in Palmer v McKenzie (QCA).

6    Many other proceedings have affected the progress of the PUP Payments Prosecution in the Magistrates Court. For example, as a consequence of an order made in the Magistrates Court on 12 September 2025 referring certain questions to the Supreme Court of Queensland under s 49 of the Human Rights Act 2019 (Qld), the PUP Payments Prosecution was stayed until 26 March 2026: see Palmer v Australian Securities and Investments Commission [2026] QSC 51 and Palmer v Gibson [2026] QCA 60 at [98] to [99] (Doyle JA, Mullins P and Freeburn J agreeing). Other proceedings in which Mr Palmer sought to challenge the lawfulness of the complaint and summons were dealt with by the Court of Appeal in Palmer v Gibson.

7    By an originating application filed in this Court, Mr Palmer seeks various orders pursuant to s 1337B(1) of the Corporations Act and s 23 of the FCA Act (Palmer Application). Specifically, Mr Palmer seeks an order quashing the Magistrate's decision not to summarily dismiss the PUP Payments Prosecution and, alternatively, an order referring the matters to which the decision relates back to the Magistrates Court for further consideration and determination according to law. In the alternative, Mr Palmer seeks an order directing the Magistrate to dismiss the complaint and summons.

8    The Magistrate is the first respondent to the Palmer Application. However, and as might be expected, the Magistrate has indicated that he will abide by the orders of the Court save as to any issue of costs. However, the CDPP, and the third respondent, the Australian Securities and Investments Commission (ASIC) (together, the Commonwealth Parties), have applied by an interlocutory application for orders pursuant to s 23 of the FCA Act and/or r 1.32 of the Federal Court Rules 2011 (Cth) (Rules) that Mr Palmer's originating application be permanently stayed as an abuse of process. In the alternative, the Commonwealth Parties sought an order pursuant to s 23 of the FCA Act and/or r 26.01(1)(d) of the Rules summarily dismissing the originating application as an abuse of process. In these reasons the Commonwealth Parties' interlocutory application for a permanent stay and/or summary dismissal will be referred to as the Commonwealth Application.

9    After the hearing of the Commonwealth Application, the Commonwealth Parties applied to amend the Commonwealth Application to seek orders, in the alternative, that the Palmer Application be summarily dismissed pursuant to s 23 of the FCA Act and/or r 26.01(1)(d) of the Rules or that it be dismissed in the exercise of the Court's discretion pursuant to s 23 of the FCA Act and/or r 1.32 of the Rules (Proposed Amended Commonwealth Application). Mr Palmer opposed the Commonwealth Parties' application to amend the Commonwealth Application.

10    Before dealing with the Commonwealth Application, it is necessary to first deal with a preliminary issue that first arose after the conclusion of the hearing of that application. As I will shortly explain in more detail, when, at my direction, my associate provided certain information to the parties after the hearing of the Commonwealth Application, Mr Palmer then applied for me to recuse myself from dealing with these proceedings generally.

11    For the reasons that follow, I decline to recuse myself.

Recusal application

12    Four days after the hearing of the Commonwealth Application, I directed that my associate provide the parties with the following communication by email:

Dear Parties,

His Honour has asked me to inform the parties in the following terms.

While reading the materials relied upon by the parties, his Honour has recalled that while he was at the Bar, he was approached by solicitors acting for CITIC with a view to being briefed in relation to a matter or matters involving Mr Palmer and/or Mineralogy. His Honour cannot recall who the solicitors were (although thinks that it may have been Clifford Chance), or when he was approached. His Honour thinks that it is likely that the approach was made over 10 years ago. His Honour cannot recall what he was told by the solicitors, or the subject matter of the potential brief. However, he is unable to discount the possibility that the potential brief may have concerned the subject matter of one or more of the charges that Mr Palmer now faces.

His Honour has checked his records from his time at the Bar, but he can find no record of him having been approached by solicitors acting for CITIC, nor any record of any information that may have been imparted to him. However, he has directed me to inform you that he believes that he was never formally briefed and, in that regard, he can find no record of ever having been formally briefed in any matter involving Mr Palmer.

Kind regards

13    After receiving this email, the Commonwealth Parties responded to my associate and advised that they '[did] not consider that the matters disclosed by Vandongen J give rise to any issues that would prevent his Honour from continuing to preside in the proceeding'. However, Mr Palmer submitted that I should recuse myself from dealing with this matter.

14    At the hearing of the recusal application the parties were provided with the following further information:

HIS HONOUR: All right. Thank you very much. Just before we start, I just wanted to deal with two matters arising out of the email that my associates sent [the] parties on 15 December 2025. The first thing is that the email spoke of an approach being made to me by solicitors acting for CITIC. For the purposes of complete transparency, that was an approach, from my memory, that was in person. And the second matter is that I'm sure all of the parties know that my background was in criminal law, and therefore, it may well have been in relation to a matter involving criminal matters.

15    Although I will summarise Mr Palmer's submissions in more detail later in these reasons, it is convenient at this stage to note that, in his written submissions, senior counsel for Mr Palmer contended that I should recuse myself for two reasons, namely:

(1)    a reasonable bystander might conclude that I might not bring an impartial mind to the determination of the Commonwealth Application and the proceedings as a consequence of my 'previous involvement with the CITIC Parties, being counterparties of some of the applicant's companies and opponents of the applicant and his companies in litigation for more than a decade'; and

(2)    in any event, this is a 'case of real doubt', and it is 'prudent' for me to decide not to continue to sit to avoid the inconvenience that could result if another court were to take a different view on the matter of disqualification: citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Parbery v QNI Metals Pty Ltd [2018] QSC 249 at [35].

16    At the hearing of the recusal application, counsel who then appeared for Mr Palmer sought to simply rely on the written submissions that had been filed on Mr Palmer's behalf. However, in response to questions from the bench, counsel narrowed the basis on which it was contended that I should recuse myself. In that regard, it was submitted that I should recuse myself because of the potential for information to have been imparted to me during contact I had with solicitors acting on behalf of CITIC. As counsel who appeared for Mr Palmer at the hearing of the recusal application ultimately put it:

[P]art of the difficulty is we don't know what information may have been imparted 10 years ago, and therefore, if you apply the test of a reasonable person, it still may be the case that that test would be satisfied because we don't know what information was imparted at that earlier time.

17    The test for an apprehension of bias is now well established. A judge is disqualified for apprehended bias 'if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide': Ebner at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). As was outlined in SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8 at [1] (Gageler CJ and Gleeson J), [60] (Gordon J), [105] (Edelman J), [126] (Steward J), [130] (Jagot J), and [173] (Beech-Jones J), the approach to be taken to the application of that test involves three steps, namely:

(1)    the identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;

(2)    the articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and

(3)    an assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

18    In his written submissions, senior counsel for Mr Palmer argued that the 'potential involvement' between myself and 'the CITIC Parties' (namely, Sino Iron Pty Ltd, Korean Steel Pty Ltd and CITIC Ltd) had a 'real connection' to these proceedings. In that regard, and by way of background, Mr Palmer pointed out that the CITIC Parties are counterparties to agreements with his company, Mineralogy Pty Ltd (Mineralogy) and others, and they are together involved in a magnetite ore project in Western Australia. According to Mr Palmer, he, Mineralogy, the CITIC Parties and others have been involved in several litigious disputes since at least 2012. In describing the nature of those disputes Mr Palmer referred to a comment that was made by Kenneth Martin J in Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 15] [2023] WASC 56 at [3] to the effect that there has been 'a seemingly never-ending civil litigation war'.

19    Mr Palmer contends that it is against that background that he seeks judicial review of a decision of a magistrate in a criminal proceeding that was commenced after the CITIC Parties had unsuccessfully brought civil proceedings against Mr Palmer for, amongst other things, an alleged dishonest participation in a breach of trust and after the CITIC Parties made a complaint to the Western Australian Police Force (WAPOL) about Mr Palmer's alleged conduct: Sino Iron Pty Ltd v Palmer (No 3) [2015] QSC 94; (2015) 2 Qd R 574 (Sino Iron v Palmer (No 3)). According to the affidavit evidence of a solicitor who acts for Mr Palmer, the CITIC Parties complained to WAPOL in October 2014.

20    I pause at this point to note that, other than the evidence of Mr Palmer's solicitor, the evidence that is relied on to establish that the CITIC Parties made a complaint to WAPOL is a redacted WAPOL document dated 17 October 2014. The document does not, on its face, record that a complaint was made on that day or, if it was, that it was made by the CITIC Parties. What is recorded is that information was received by WAPOL on 11 December 2014 from someone who purported to be 'investigating on behalf of CITIC' that boxes were being removed from Mineralogy offices in Perth. The document further records that a detective from 'Qld Fraud and Cyber Crime Squad', who had been briefed and was 'currently assessing the complaint made by CITCI [sic]', had been advised and that observations made of the Mineralogy offices were that it appeared to be normal.

21    However, Mr Palmer also submitted, relying on the evidence of his solicitor, that between at least October 2014 and June 2019 the CITIC Parties made representations to WAPOL, Queensland Police Service (QPS) and ASIC regarding alleged payments that are the subject of the PUP Payments Prosecution. Mr Palmer also relies on the evidence of his solicitor to submit that two days after a 'parallel' civil proceeding commenced by Sino Iron Pty Ltd was dismissed by the Supreme Court of Queensland in Sino Iron v Palmer (No 3), a representative of the CITIC Parties supplied a copy of that judgment to QPS and sought an opportunity to brief them on the judgment.

22    After referring the Court to the relevant principles that must be applied, Mr Palmer's written submissions focussed on the reason why he contended that I must recuse myself. In that regard, Mr Palmer identified the factor which he said might lead me to resolve a question in these proceedings other than on its merits, which was:

[H]is Honour's previous involvement with the CITIC Parties or the potential previous involvement with the CITIC Parties and in particular, that his Honour [is] unable to discount the possibility that the potential brief may have concerned the subject matter of one or more of the charges that the applicant now faces.

23    Mr Palmer then submitted that the relevant 'question' to be resolved in this proceeding was whether or not the Palmer Application would fragment the PUP Payments Prosecution, which he contended was commenced after a complaint was made by the CITIC Parties. However, notwithstanding Mr Palmer's narrow articulation of the relevant question to which a fair-minded lay observer might reasonably apprehend I might not bring an impartial mind to its resolution, at the hearing of the recusal application Mr Palmer's then counsel informed the Court that the relevant question was broader than appeared to have been expressed in the written submissions. In that regard, counsel indicated that it extended to all questions raised by the Palmer Application including questions raised by the Commonwealth Application.

24    Accordingly, based on the written submissions made on his behalf, Mr Palmer contends that the identified factor to which I have referred might cause a deviation from an impartial resolution of the relevant questions raised by the Palmer Application and the Commonwealth Application because the fair-minded lay observer might see the matters as connected to that identified factor. This is because I was 'briefed or potentially briefed' by the CITIC Parties regarding the PUP Payments Prosecution in respect of which I will, by presiding over these proceedings, be required to decide certain issues. In that regard, it was submitted that there is an incompatibility between my 'role or potential role' as an adversary speaking against Mr Palmer and his interests, whether by way of advice or otherwise, and my role of sitting in judgment in related proceedings that directly concern him. As it was put in writing by senior counsel:

The fair minded lay observer might conclude his Honour is a person who has been the adversary of another person, in the sense of being briefed or potentially being briefed by the CITIC Parties, in the same or related proceedings and one that might ordinarily be expected to have developed in that role a frame of mind which is incompatible with the exercise of that degree of neutrality required dispassionately to weigh legal, factual and policy considerations relevant to the making of a decision which has the potential adversely to affect interests of the applicant.

25    It was further submitted that, although I am not able to discount the possibility that when I was approached by solicitors for the CITIC Parties about a potential brief that it may have concerned the charges Mr Palmer now faces, this reinforces rather than displaces the reasonableness of the apprehension of bias in the circumstances of this case. Mr Palmer argued that if my recollection were to develop over time to a point that I became aware that the potential brief did involve the criminal charges the subject of the PUP Payments Prosecution, or some other aspect of the relationship between Mr Palmer and the CITIC Parties, I would then be required to recuse myself. It was said, in effect, that this possibility should be avoided and that the administration of justice would be better served by me not sitting from this point, to avoid inconvenience and disruption.

26    I should record at this point that my recollection about the approach that was made to me by solicitors acting on behalf of CITIC has not developed over time.

27    In his written submissions, Mr Palmer also referred to comments made by two judges of the Supreme Court of Queensland in other proceedings that he suggested indicate that those judges had questioned the CITIC Parties' conduct and the sustainability of the allegations made in the criminal proceedings: Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2022] QSC 227 (PLC v Magistrates Court [2022]) and matter No BS 15650 of 2024, respectively. Mr Palmer submits that the fair-minded observer might take into account the way the CITIC Parties have pursued Mr Palmer in relation to the subject matter of the criminal charges, as well as the adverse comments made by judges of the Supreme Court of Queensland, and conclude that the CITIC Parties 'might brief counsel with assertions regarding [Mr Palmer] the product of a similarly unsustainable nature'. On that basis Mr Palmer submits that:

The fair minded lay observer might conclude that a judge briefed in that manner as counsel might not bring an impartial mind to the determination of questions in a proceeding over which he presides and which was precipitated by such a parties' conduct.

28    As I have already alluded to, Mr Palmer also submitted that I should recuse myself in any event because this is a 'case of real doubt', and that it would therefore be prudent for me to decide not to continue to sit in the proceeding to avoid the inconvenience that could result if another court were to take a different view. It was submitted that the nature of my disclosure, namely that I cannot recall specific information regarding my involvement with the CITIC Parties, is problematic and that heightened caution should consequently be exercised when considering the question of recusal.

29    Further, Mr Palmer submitted that, as he seeks to challenge a decision made in the criminal proceeding, and the Commonwealth Parties seek orders to enable the criminal proceeding to continue, I should not continue to hear these proceedings as I may have been involved with the parties who made the complaint to the authorities which ultimately led to the laying of the same criminal charges.

30    In determining whether I should recuse myself it is first necessary to consider the factor which it is said might lead me to resolve the questions arising in these proceedings other than on their legal and factual merits. As I have said, in his written submissions Mr Palmer identified that factor as my 'previous involvement' with the CITIC Parties or the 'potential previous involvement' with the CITIC Parties and, in particular, that I am unable to discount the possibility that the potential brief may have concerned the subject matter of one or more of the charges that he now faces. At the hearing of the recusal application, counsel for Mr Palmer identified a different, but related factor, namely the possibility that information may have been imparted to me that may have concerned the subject matter of one or more of the charges that Mr Palmer now faces.

31    However, the phrases 'previous involvement' and 'potential previous involvement' must be given some content. What my associates' email to the parties disclosed was that my 'previous involvement' with CITIC was limited to an approach that was made to me while I was at the Bar by solicitors acting for CITIC, with a view to being briefed in relation to a matter or matters involving Mr Palmer and/or Mineralogy. That approach was likely to have been made over 10 years ago. I was and continue to be unable to recall what I was told by the solicitors when the approach was made or the subject matter of any potential brief. However, I was and continue to be unable to discount the possibility that the potential brief may have concerned the subject matter of one or more of the charges that Mr Palmer now faces. I also informed the parties that, notwithstanding my recollection, I could find no record of having been approached by solicitors acting for CITIC nor any record of any information that may have been imparted to me. I also informed the parties that I could find no record of ever having been formally briefed in any matter involving Mr Palmer, and that I believed that I was never briefed. At the hearing of Mr Palmer's recusal application, I also disclosed that the approach that was made to me was made in person and that, because of my practice as a criminal lawyer, the approach may well have been in relation to a matter involving criminal matters.

32    In those circumstances, I accept the submission made by counsel for the Commonwealth Parties, that, properly understood, the identified factor in this case must be understood as the possibility that a potential brief in respect of which I was approached over 10 years ago, but which did not materialise, concerned the subject matter of one or more of the charges that Mr Palmer now faces including the charges the subject of the PUP Payments Prosecution. Having regard to the oral submissions that were made on behalf of Mr Palmer there is a further but related identified factor, namely, the possibility that information relating to the charges Mr Palmer now faces, including the charges that are the subject of the PUP Payments Prosecution, may have been imparted to me when I was approached by solicitors acting for CITIC.

33    In my view, there is no logical connection between either of those identified factors and an apprehended deviation on my part from deciding the Palmer Application or the Commonwealth Application on their merits, whether those factors are considered alone or in combination with each other. Accepting Mr Palmer's contention that the PUP Payments Prosecution was commenced as a consequence of a complaint made by the CITIC Parties and assuming in Mr Palmer's favour that I was, in fact, approached by the solicitors for the CITIC Parties in relation to a potential brief that related to that complaint and the subject matter of the PUP Payments Prosecution, the fact is that I was never formally briefed. In that regard, I have found no record of me ever having been briefed in any matter involving Mr Palmer.

34    In those circumstances there can be no logical basis for concluding that there is any incompatibility between the role I assumed in relation to the CITIC Parties, and any frame of mind I might have developed in that role, and my role to determine the Palmer Application and the Commonwealth Application. I did not assume any relevant role in connection with the CITIC Parties other than being approached about a potential brief. It does not logically follow from the mere fact that an approach was made in relation to a potential brief that I have or even might have assumed a role or frame of mind, or that I have otherwise engaged in conduct in support of the CITIC Parties or adverse to Mr Palmer's interests, even if the potential brief did relate to a complaint made by the CITIC parties to police about the PUP Payments Prosecution.

35    That over 10 years ago I was approached by solicitors for the CITIC Parties in relation to a brief that may have in some way touched upon the subject matter of the PUP Payments Prosecution or indeed any other prosecution, but which brief never materialised, also does not establish that I have had a relevant association with the CITIC Parties that is of such a nature that there is a logical connection between that association and an apprehended deviation from my obligation to impartially determine the Palmer Application or the Commonwealth Application. As was submitted by the Commonwealth Parties, an apprehension of deviation from deciding the Palmer Application or the Commonwealth Application on their merits on that basis would be illogical and irrational.

36    There is also no logical connection between the mere possibility that information relating to the charges Mr Palmer faces, including the charges the subject of the PUP Payments Prosecution, may have been imparted to me when I was approached by solicitors acting for CITIC and a feared deviation from me determining the Palmer Application and the Commonwealth Application. That is because the existence of that connection would depend on the nature of the information imparted, and whether the information is still retained by me. Certainly, something more than the mere speculative possibility on which Mr Palmer relies that some information may have been imparted to me would be required. Further, and in any event, the possibility that I may have been imparted some relevant information must be understood in its proper context. In that regard, it must be appreciated that the Court file which I accessed before the hearing of the Commonwealth Application included several voluminous affidavits that had been filed in both the Supreme Court of Queensland and in this Court. Those affidavits included a significant amount of information concerning the charges that Mr Palmer currently faces. Furthermore, the parties have referred me to a raft of decided cases in which Mr Palmer has made various applications to different courts, some of which set out in detail information about the charges he faces.

37    In my assessment, a fair-minded lay observer would not reasonably apprehend that I might not bring an impartial mind to the resolution of the issues I am required to decide in the context of the Palmer Application and the Commonwealth Application. Imputed with the knowledge that more than 10 years ago I was approached by solicitors for the CITIC Parties in relation to a brief that may have been concerned with the underlying allegations that are the subject of the charges Mr Palmer faces, but where that brief never materialised, the fair-minded lay observer would not reasonably apprehend that I might decide the applications other than on their factual and legal merits.

38    Having reached that conclusion I will now consider Mr Palmer's separate contention that I should nevertheless recuse myself because this is a case of 'real doubt'.

39    Mr Palmer's submission that I should recuse myself because this is a case in which there is real doubt about whether it would be improper for me to continue to sit is based on what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [19] to [21]:

Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

(emphasis added)

40    Mr Palmer also relies on what was said, to similar effect, by Jagot J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 at [279]:

Yet the intensity and demands of this duty of judicial office may also yield to circumstance. The duty to sit is not absolute, even where no reasonable apprehension of bias is involved. Accordingly, in 'a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification'. This reflects the fact that, along with their duty to sit, a judge has a duty to ensure continuing public confidence in the administration of justice. Generally, the latter duty is best fulfilled by judges adhering to the former duty unless they are disqualified from so doing on a proper basis (be it a reasonable apprehension of bias or actual bias). But if tension between these two duties exists and is irreconcilable, the latter must prevail.

(footnotes omitted)

41    As can be seen from these passages, judges have a duty to sit on cases to which they are assigned. However, the point that was made in the above passages that this duty is not absolute and that it would not be improper for a judge to decide not to sit even after concluding that no reasonable apprehension of bias would be involved. Accordingly, Mr Palmer's submission that I should recuse myself as a matter of prudence must be understood as amounting to encouragement to take that step in circumstances in which that course is open to me and where, according to Mr Palmer, it would not be improper to do so.

42    I have considered whether it would be prudent for me to decline to determine the questions that arise in the Palmer Application and in the Commonwealth Application, notwithstanding the conclusion I have reached that no reasonable apprehension of bias would be involved. In considering that issue I have taken into account Mr Palmer's submission that an appellate court might take a different view to the one I have reached. I have also considered the submission that there remains the possibility that I may recollect further matters that may then give rise to a reasonable apprehension of bias. However, I have concluded that I should not decline to sit as a matter of prudence.

43    Having reached that conclusion, it is then necessary to deal with a further preliminary issue about whether this Court has jurisdiction to determine the Palmer Application. It is necessary to deal with this issue at this stage because if the Court does not have jurisdiction, then the Commonwealth Application would be rendered otiose.

Does the Federal Court have jurisdiction to determine the Palmer Application?

44    At the commencement of the hearing of the Commonwealth Application, the Court raised with the parties a question about whether this Court has jurisdiction to determine the Palmer Application. After hearing brief oral submissions from the parties, orders were made requiring written submissions to be filed in relation to that question. As those submissions ultimately revealed, the parties were in furious agreement that this Court has jurisdiction to determine the Palmer Application. For the following reasons, I accept the parties' joint position.

45    Section 1337B(1) of the Corporations Act provides that '[j]urisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations legislation'. The meaning of the phrase 'Corporations legislation' includes the Corporations Act: s 9 of the Corporations Act. A 'civil matter' is a matter other than a criminal matter: s 9 of the Corporations Act. The phrase 'criminal matter' is not defined in the Corporations Act. However, although the Palmer Application relates to criminal proceedings that have been commenced in the Magistrates Court, that application is plainly not within the ordinary meaning of a 'criminal matter' as it does not bear any of the defining characteristics of a criminal proceeding. Accordingly, the real question to be determined is whether the Palmer Application is a matter 'arising under' the Corporations Act.

46    In AgriWealth Capital Ltd v Australian Financial Complaints Authority Ltd [2023] FCAFC 118; (2023) 299 FCR 319 at [20] to [21] the Full Court said the following about s 1337B of the Corporations Act:

By force of s 1337B(1) of the Corporations Act, the Federal Court has civil jurisdiction in 'civil matters arising under the Corporations legislation'. The 'Corporations legislation' is defined in a way that includes the Corporations Act itself. Division 9.6A of the Corporations Act, in which s 1337B is found, operates to the exclusion of s 39B of the Judiciary Act 1903 (Cth): s 1337A(2)(b). Section 1337B is therefore the only potential source of jurisdiction. However, it runs in parallel with s 39B(1A)(c) in that it confers jurisdiction in matters 'arising under' a Commonwealth law. Conferral of federal jurisdiction in these terms is authorised by s 76(ii) of the Constitution, which refers to matters 'arising under any laws made by the Parliament'.

The central concept of a matter 'arising under' a law of the Commonwealth was enunciated by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 (Barrett), as follows:

'[A] matter may properly be said to arise under a Federal law if the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law.'

47    The Palmer Application seeks judicial review of a decision made by the Magistrate on 2 August 2024 to dismiss an application that sought orders that a complaint made on 6 February 2020 be set aside or dismissed as an abuse of process under ss 22A or 103B of the Justices Act. For the purposes of determining whether this Court has jurisdiction to determine the Palmer Application, it is only necessary to note that the matters of that complaint included two offences contrary to s 184 of the Corporations Act.

48    Section 1338A of the Corporations Act provides as follows:

(1)    This Division provides in relation to the jurisdiction of courts in respect of criminal matters arising under the Corporations legislation and so provides to the exclusion of sections 68, 70 and 70A of the Judiciary Act 1903.

(2)    This Division does not limit the operation of the provisions of the Judiciary Act 1903 other than sections 68, 70 and 70A.

(3)    Without limiting subsection (2), this Division does not limit the operation of subsection 39(2) of the Judiciary Act 1903 in relation to criminal matters arising under the Corporations legislation or sections 68A to 68D of that Act in relation to proceedings in relation to an offence against the Corporations legislation that are brought before the Federal Court.

49    Section 1338B(1) of the Corporations Act provides:

Subject to this section, a court of a State or Territory exercising jurisdiction:

(a)    with respect to:

(i)    the summary conviction; or

(ii)    the examination and commitment for trial on indictment; or

(iii)    the trial and conviction on indictment;

of offenders or persons charged with offences against the laws of the State or Territory concerned, and with respect to:

(iv)    their sentencing, punishment and release; or

(v)    their liability to make reparation in connection with their offences; or

(vi)    the forfeiture of property in connection with their offences; or

(vii)    the proceeds of their crimes; and

(b)    with respect to the hearing and determination of:

(i)    proceedings connected with; or

(ii)    appeals arising out of; or

(iii)    appeals arising out of proceedings connected with;

any such trial or conviction or any matter of a kind referred to in subparagraph (a)(iv), (v), (vi) or (vii);

has the equivalent jurisdiction with respect to offenders or persons charged with offences against the Corporations legislation.

50    Section 1338C of the Corporations Act provides:

(1)    Subject to this Division, the laws of a State or Territory respecting:

(a)    the arrest and custody in the State or Territory of offenders or persons charged with offences; and

(b)    criminal procedure in the State or Territory in relation to such persons; and

(c)    the rules of evidence applied in criminal procedure in the State or Territory in relation to such persons;

apply in the State or Territory, so far as they are applicable, to persons who are charged with offences against the Corporations legislation.

(2)    In this section:

criminal procedure means the procedure for:

(a)    the summary conviction; and

(b)    the examination and commitment for trial on indictment; and

(c)    the trial and conviction on indictment; and

(d)    the hearing and determination of appeals arising out of any such trial or conviction or out of any related proceedings;

of offenders or persons charged with offences, and includes the procedure for holding accused persons to bail.

51    For the purposes of s 1338C(1)(b) of the Corporations Act, read with the meaning of 'criminal procedure' in s 1338C(2), the laws of Queensland respecting the procedure for the examination and commitment for trial on indictment of the offences with which Mr Palmer has been charged contrary to s 184 of the Corporations Act are found in the Justices Act. Section 1338C(1)(b) operates to pick up the relevant text of the Justices Act and to apply that text as a Commonwealth law: Palmer v McKenzie (QCA) at [43].

52    The relevant controversy raised by the Palmer Application is whether, contrary to the Magistrate's conclusion, the Magistrates Court had the power to summarily dismiss the complaint dated 6 February 2020. However, while that controversy was determined by reference to the text of the relevant provisions in the Justices Act, it in fact concerned the existence or otherwise of a power to summarily dismiss conferred as a consequence of the text used in those provisions having been picked up and applied as Commonwealth law by a provision of the Corporations Act, namely s 1338C(1)(b). Accordingly, if the Magistrate had the power based on the text of the Justices Act to dismiss the relevant complaint, then that was a power that owed its existence to federal law, namely the Corporations Act. It follows that s 1337B(1) of the Corporations Act operates to confer jurisdiction on this Court in relation to the Palmer Application as it is a civil matter that arises under the Corporations Act.

53    Having determined that the Court has jurisdiction in relation to the Palmer Application, it is then necessary to turn to consider the merits of the Commonwealth Application.

The Commonwealth Application

54    Before dealing with the Commonwealth Application, it is necessary to say something about the parties' respective contentions.

55    The Commonwealth Application originally sought the following orders:

1.    An order pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act), and/or r 1.32 of the Federal Court Rules 2011 (Cth) (FCR) permanently staying this proceeding as an abuse of process.

2.    In the alternative to order 1, an order pursuant to s 23 of the FCA Act and/or FCR r 26.01(1)(d) summarily dismissing this proceeding as an abuse of process.

3.    Costs.

4.    Such further or other others as to the Court deems appropriate.

56    However, as I have already said, at the end of the hearing of the Commonwealth Application counsel for the Commonwealth Parties indicated that, in light of exchanges between counsel and the bench, the Commonwealth Parties intended to file and serve an amended interlocutory application. Programming orders were made for the filing of the Proposed Amended Commonwealth Application, as well as written submissions concerning the question of whether leave to rely on that proposed amended application should be granted.

57    The Proposed Amended Commonwealth Application was subsequently filed in which the Commonwealth Parties sought the following two additional orders:

2A    In the alternative to orders 1 and 2, an order pursuant to s 23 of the FCA Act and/or FCR r 26.01(1)(d) summarily dismissing this proceeding.

2B    In the alternative to orders 1 and 2A, an order pursuant to s 23 of the FCA Act and/or FCR r 1.32 that the proceeding be dismissed.

58    In their written submissions filed in support of the application to rely on the Proposed Amended Commonwealth Application, the Commonwealth Parties explained that while they maintained that the originating application should be permanently stayed or summarily dismissed as an abuse of process, the above amendments were sought to ensure that it was nevertheless open to the Court to dismiss the Palmer Application on a discretionary basis.

59    Mr Palmer opposed the Commonwealth Parties' application to amend the Commonwealth Application. In his written submissions, Mr Palmer argued that leave to amend should be refused because none of the relief sought would be granted. In the alternative, Mr Palmer submitted that the 'relief sought in proposed [orders] 2A and 2B should be dismissed'. Given those submissions, the question of whether leave should be granted to the Commonwealth Parties to amend the Commonwealth Application boils down to a question of whether any of the relief sought in the Proposed Amended Commonwealth Application should be granted.

60    The Commonwealth Parties submit that the Court has the power to make the orders sought in the Proposed Amended Commonwealth Application, and that this power should be exercised in the circumstances of this case. In making that submission the Commonwealth Parties invoke what is sometimes referred to in the authorities as the 'fragmentation principle'. That principle is broadly concerned with preventing civil proceedings from fragmenting, disrupting or interfering with pending criminal proceedings.

61    According to the Commonwealth Parties, the fragmentation principle is well established. In support of that contention the Commonwealth Parties rely on several authorities, including Sankey v Whitlam (1978) 142 CLR 1; Lamb v Moss (1983) 49 ALR 533; R v Iorlano (1983) 151 CLR 678; Clyne v Director of Public Prosecutions (1984) 154 CLR 640; Yates v Wilson (1989) 168 CLR 338; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120; Alqudsi v The Commonwealth [2015] HCA 49; Obeid v The Queen [2016] HCA 9; R v Rolfe [2021] HCA 38; (2021) 273 CLR 413 (Rolfe); Palmer v Magistrates Court of Queensland [2024] QCA 8 (Palmer v Magistrates Court [2024]); Palmer v Australian Securities and Investments Commission [2025] FCAFC 151; (2025) 312 FCR 151 (Palmer v ASIC (FC)); and Palmer v Gibson.

62    The Commonwealth Parties say that the Palmer Application amounts to a direct attack on the PUP Payments Prosecution because it directly challenges in civil proceedings a decision that was made by the Magistrate in, or in connection with, carrying out the 'overall supervisory responsibility for any committal proceeding coming before a Magistrates Court' that is conferred by s 103B(1) of the Justices Act. It is contended that the orders sought in the Palmer Application would, if made, directly fragment, disrupt and interfere with the conduct of the PUP Payments Prosecution in the Magistrates Court.

63    As I have explained, the Palmer Application seeks orders under s 1337B(1) of the Corporations Act and s 23 of the FCA Act quashing a decision made by the Magistrate after a two day hearing, directing the Magistrate to summarily dismiss the relevant complaint and summons, and/or requiring the Magistrate to redetermine whether the complaint and summons should be summarily dismissed. As the Commonwealth Parties point out, one of those orders, if made, would bring the PUP Payments Prosecution to an end while the others would 'directly interfere' with the PUP Payments Prosecution.

64    It is submitted by the Commonwealth Parties that the courts have deprecated the use of civil proceedings in this way because they tend to impinge upon or interfere with the administration of justice in criminal proceedings. The Commonwealth Parties submit that the authorities establish that a civil proceeding that has such an effect will only be heard by a court in exceptional circumstances and that it will otherwise be dismissed or stayed. On that basis, it is submitted that this Court should decline to hear and determine the Palmer Application unless Mr Palmer demonstrates that there are exceptional circumstances that would justify that course being taken.

65    The Commonwealth Parties submit that there is nothing exceptional about the Palmer Application and that there is, therefore, no justification for entertaining proceedings that would result in the fragmentation of the PUP Payments Prosecution. In that regard the Commonwealth Parties point out that the Palmer Application is similar to many other applications Mr Palmer has made in this Court and in the Supreme Court of Queensland, which have been summarily dismissed or stayed, including PLC v Magistrates Court [2022], affirmed in Palmer v Magistrates Court [2024]; Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2019] QSC 8, affirmed in Palmer v Magistrates Court [2020] QCA 47; (2020) 3 QR 546 (Palmer v Magistrates Court [2020]); Palmer v ASIC (FC); and Palmer v Gibson.

66    The Commonwealth Parties also contend that Mr Palmer has failed to demonstrate the existence of exceptional circumstances because the argument that he wishes to make in the context of the Palmer Application can be adequately dealt with in the course of the PUP Payments Prosecution both at the committal hearing itself and in the event that he is committed for trial.

67    Mr Palmer opposes the Court making any of the orders sought by the Commonwealth Parties. He says that, having filed his application in a court of competent jurisdiction, he has the right to have that application heard and determined in the ordinary way. In his written submissions, Mr Palmer identified three reasons why the Commonwealth Application must be dismissed.

68    Firstly, Mr Palmer submitted that to the extent a permanent stay or summary dismissal of the Palmer Application was sought on the ground that it constituted an abuse of process (orders 1 and 2 in the Commonwealth Application), the Commonwealth Parties have failed to discharge their onus of establishing that to allow the Palmer Application to proceed would be irreconcilable with the administration of justice where no other option is available. In that regard, Mr Palmer relies on what was said by a majority of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442 at [3] (Kiefel CJ, Gageler and Jagot JJ).

69    Secondly, it was submitted that the Commonwealth Parties rely on a wrong formulation of the fragmentation principle. I will identify the formulation of that principle on which Mr Palmer relies later in these reasons.

70    Thirdly, Mr Palmer submits that there are, in any event, exceptional circumstances warranting the Palmer Application being heard and determined by this Court. In that regard, Mr Palmer submits that the Magistrate's decision has denied him an 'efficacious committal'. By that I understand him to mean that he will be faced with having to contend with a committal proceeding in which he has been charged with offences that he has been arguing for some time are either not known to the law or are otherwise seriously deficient.

71    I will pause there to further explain this aspect of Mr Palmer's third reason for why the Commonwealth Application should be dismissed. In that regard, Mr Palmer says that the CITIC Parties made a complaint to WAPOL in October 2014 about the transfer of funds from an account in the name of Mineralogy. Then, in February 2020, the Commonwealth Parties commenced the PUP Payments Prosecution in which Mr Palmer is charged with offences relating to that transfer. However, Mr Palmer contends that, on several occasions, the Commonwealth Parties have changed their position regarding the formulation of the charges in the PUP Payments Prosecution and that despite his attempts to seek clarification of the prosecution case, the nature of the charges remains unclear. Mr Palmer says that this has impaired his ability to defend himself. In his written submissions filed in opposition to the Commonwealth Application, Mr Palmer put it this way:

The prosecution has never properly articulated a charge because there is no charge known to the law which conforms to the fact pattern relied on by the prosecution. This contention formed the basis for the part of the application dismissed by Magistrate McKenzie for want of jurisdiction.

72    The application to which Mr Palmer referred in that submission was his unsuccessful application in the Magistrates Court for an order that the complaint in the PUP Payments Prosecution be set aside or summarily dismissed.

73    Mr Palmer says that the Commonwealth Parties' 'numerous changes of position and inability or unwillingness to articulate the charge to be met, constitute exceptional circumstances' warranting the Palmer Application being heard and determined in the usual way.

74    Mr Palmer also argues, as part of his third reason for why the Commonwealth Application should be dismissed, that the question that is sought to be resolved by the Palmer Application is whether the Magistrates Court has the jurisdiction to summarily dismiss the PUP Payments Prosecution. According to Mr Palmer that is a question that has broader implications beyond the PUP Payments Prosecution. He points out that, as the question cannot be resolved in the Supreme Court of Queensland, there is otherwise utility in having the issue of principle resolved by this Court.

75    On 10 April 2026, the Court of Appeal delivered judgment in Palmer v Gibson. Consequently, the parties sought leave to file written submissions to deal with what was said in that case about the fragmentation principle. I will deal with Palmer v Gibson in more detail when I come to identify the principles that must be applied in determining the Commonwealth Application. However, I will record the parties' respective contentions about the relevance of that decision to this Court's determination of the Commonwealth Application.

76    The Commonwealth Parties submit that the Court of Appeal in Palmer v Gibson rejected Mr Palmer's articulation of the fragmentation principle upon which he now relies. The Commonwealth Parties say that Palmer v Gibson is now the second time that an intermediate appellate court has rejected that articulation. In that regard, the Commonwealth Parties rely on what was said by the Full Court in Palmer v ASIC (FC). The Commonwealth Parties submit, in effect, that based on what was said about the scope of the fragmentation principle in Palmer v Gibson and in Palmer v ASIC (FC), the only question for this Court is how to respond to the fragmentation that would be caused by the Palmer Application to the PUP Payments Prosecution were it to be heard and determined.

77    However, the Commonwealth Parties also submit that Palmer v Gibson should be distinguished insofar as it held that it was not open to the primary judge in that case to summarily dismiss Mr Palmer's claim for declaratory relief as an abuse of process. In summary, the Commonwealth Parties contend that, unlike the circumstances in Palmer v Gibson where the declarations sought by Mr Palmer were found to have some utility after completion of the relevant committal proceedings, there would be no utility in the orders sought in the Palmer Application. In the alternative it was submitted that, even if Mr Palmer was able to identify some utility in those orders, a temporary stay of the Palmer Application should be ordered.

78    However, according to the Commonwealth Parties the Commonwealth Application is analogous to the case that was considered by the Court of Appeal in Palmer v Magistrates Court [2024]. The relevant part of that case on which the Commonwealth Parties rely was referred to in Palmer v Gibson at [94] (Doyle JA, Mullins P and Freeburn J agreeing) in the following way:

In Palmer v Magistrates Court of Queensland … [2024] QCA 8, Dalton JA (with whom Boddice JA and Burns J agreed) concluded on the facts in that case that the civil proceedings were an abuse. This was because, as her Honour concluded at [5] (citations omitted):

'… my view is that the primary judge's decision to characterise both the [PUP Payments Prosecution] and Coolum Resort proceedings as abuses of process which should be permanently stayed was correct. In broad outline, that was because the proceedings sought the exercise of the supervisory jurisdiction of this Court to interfere in the course of pending criminal proceedings (a "most exceptional" jurisdiction) in circumstances where it was not, and could not, be demonstrated that there was any compelling reason to do so. It was not demonstrated that either the [PUP Payments Prosecution] or the Coolum Resort prosecution was doomed to fail. There was no reason demonstrated why such points of legal argument or defence as the appellants wished to raise could not be determined in the criminal courts in the ordinary way. In those circumstances, the delay and disruption to the prosecutions which the [PUP Payments Prosecution] and the Coolum Resort proceeding were causing, and would continue to cause, meant that they were an abuse of the process of this Court because they interfered with the proper administration of criminal justice according to law.'

79    The Commonwealth Parties also submit that, in any event, the Proposed Amended Commonwealth Application seeks dismissal of the Palmer Application in the exercise of the Court's discretion as a threshold issue. In that regard, the Commonwealth Parties rely on the approach adopted in cases such as Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 (Rozenes (1994)); Hutson v Australian Securities and Investments Commission [2023] QCA 167; (2023) 17 QR 21; Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36; and Roberts v Magistrate Gett [2025] FCA 360 (Roberts v Gett). It was submitted that the power to dismiss the Palmer Application in that way was not in any way diminished by what was said in Palmer v Gibson.

80    Mr Palmer submits, on the other hand, that Palmer v Gibson did not establish that the fragmentation of criminal proceedings, without more, constitutes an abuse of process or that the limited utility of relief is a sufficient basis on which to justify summary dismissal. He submits that a court must also be satisfied that there is no real prospect of the declaration sought being made in due course so as to justify civil proceedings being struck out. According to Mr Palmer, the Commonwealth Parties have not sought to demonstrate that the relief sought in the Palmer Application is doomed to fail on its merits.

81    Mr Palmer also sought to distinguish Palmer v Magistrates Court [2024]. According to Mr Palmer, the proceedings in that case were held to be an abuse of process because there was no compelling reason to invoke the Supreme Court's supervisory jurisdiction, the relevant prosecutions were not shown to be doomed to fail and the points of legal argument or defence Mr Palmer wished to raise could be determined in the criminal courts in the ordinary way. Mr Palmer says that the Palmer Application, on the other hand, concerns the power of the Magistrate to summarily dismiss the PUP Payments Prosecution, which is not capable of being authoritatively determined in the criminal proceedings, and there has been no determination that the Palmer Application is doomed to fail.

82    It is also submitted by Mr Palmer that the contention that the Palmer Application has no utility should not be accepted. Mr Palmer says that the relief sought has 'direct and independent utility' because if the Court determines that the Magistrate does have the power to summarily dismiss the PUP Payments Prosecution then the application must be reheard and the relief sought goes beyond what could be granted by the Magistrates Court itself. Further, Mr Palmer submitted, relying on what was said by the Full Court in Roberts v Gett [2026] FCAFC 3; (2026) 314 FCR 354 (Roberts v Gett (FC)) at [62] to [63], that the availability to him of a no case to answer submission is irrelevant to the discretion to refuse supervisory relief because it cannot raise the lawfulness of the underlying decision.

83    Mr Palmer also does not accept that the Court of Appeal in Palmer v Gibson should be taken to have rejected his articulation of the fragmentation principle. In that regard, Mr Palmer makes four points.

84    Firstly, he says that his arguments about the fragmentation principle rely on binding authority of the High Court in Sankey, Gedeon and Rolfe, and that this Court must follow that authority.

85    Secondly, Mr Palmer says that Sankey expressly contemplated that a case such as the one that is the subject of the Palmer Application would not engage the fragmentation principle. In that regard, Mr Palmer submits that Gibbs ACJ drew a distinction in Sankey between:

(1)    declarations that committal proceedings have been 'invalidly instituted or wrongly continued' or that 'a charge brought ... is not one known to the law', where 'the accused has a "right"' not to be exposed to proceedings that have no legal substance'; and

(2)    declarations on 'evidence or procedure'.

Mr Palmer says that it is the second of those categories that engages the fragmentation principle, not the first, and that the Palmer Application falls within the first.

86    Thirdly, Mr Palmer contends when the concept of 'fragmentation' is properly understood, the Palmer Application 'is properly seen as part of the working-out of the criminal proceedings according to law as contemplated by Sankey, not their fragmentation'.

87    Fourthly, Mr Palmer refers to Roberts v Gett (FC) at [50] where the Full Court said that 'fragmentation' is an umbrella term or characterisation, rather than a formal test and it is important to identify the particular circumstances that are said to justify the exercise of that discretion. According to Mr Palmer, the Commonwealth Parties have failed to identify the particular circumstances in this case that justify bringing the Palmer Application to a permanent or temporary halt.

88    In conclusion, Mr Palmer submits that even if the fragmentation principle is engaged, contrary to the position he has taken, then Palmer v Gibson establishes that the appropriate response is a temporary stay until conclusion of the criminal proceedings or other order. However, Mr Palmer contends that the orders sought by the Commonwealth Parties in the Proposed Amended Commonwealth Application are not sufficiently broad to include an order for a temporary stay. Mr Palmer submits that if a temporary stay is pressed then it should be sought by making an application to further amend the Commonwealth Application.

89    In their responsive submissions the Commonwealth Parties take issue with almost all of Mr Palmer's submissions. In the end, however, they submit that the only real debate in the context of the Proposed Amended Commonwealth Application is as to the precise form of the relief that this Court should order because they say it is plain that the fragmentation principle is engaged and that there are no special circumstances warranting the intervention of this Court.

What are the relevant principles that must be applied?

90    In my view, the starting point is to recognise that it is fundamental that a plaintiff is entitled to have their action tried in the ordinary course of the procedure and business of the Court: Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19; see also Cox v Journeaux [No 2] (1935) 52 CLR 713 at 720. However, this is not an absolute rule: Palmer v ASIC (FC) at [256] to [263]. Relevantly, this principle does not wholly displace the well-established need to exercise restraint in civil proceedings where such proceedings have the effect of fragmenting, delaying or disrupting, or where they amount to a collateral attack on, criminal proceedings. The principle also does not state a presumptive rule against the making of a stay order: Palmer v Gibson at [64] (Doyle JA, Mullins P and Freeburn J agreeing): citing Rozenblit v Vainer [2018] HCA 23; (2018) 262 CLR 478 at [12] (Kiefel CJ and Bell J). Indeed, it has been observed that proper grounds for granting a stay include the need to exercise judicial restraint where civil proceedings have a fragmenting effect on criminal proceedings: Palmer v Gibson at [64] (Doyle JA, Mullins P and Freeburn J agreeing); see also Palmer v ASIC (FC) at [258].

91    The restraint shown by courts when dealing with civil claims that have the effect of fragmenting criminal proceedings is often referred to as the fragmentation principle: Roberts v Gett (FC) at [47]; Palmer v ASIC (FC) at [71] to [78]. However, it must be appreciated that 'fragmentation' is an umbrella term or characterisation, rather than a formal test: Palmer v ASIC (FC) at [178].

92    In this case the parties disagree about when the fragmentation principle is engaged. The parties also disagree about the circumstances in which a court can and should exercise judicial restraint, and about the powers that are available to a court when the fragmentation principle is engaged.

When the fragmentation principle is engaged

93    Mr Palmer's core submission is that the question of when the fragmentation principle is engaged was authoritatively propounded in the reasoning and result in Sankey. Specifically, Mr Palmer submits that the fragmentation principle is demarcated by what was said by Gibbs ACJ in the emphasised parts of the following passage taken from his Honour's reasons at 25 to 26 of Sankey:

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technical[i]ties; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticize those concerned with the conduct of Bourke v. Hamilton, or to show any disrespect for the careful judgments delivered in that matter - indeed I have derived much assistance from them - when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration - in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v. Dunn, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf. Ibeneweka v. Egbuna) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.

(emphasis added; footnotes omitted)

94    According to Mr Palmer, the opening words used in this passage limit the circumstances in which the fragmentation principle is engaged to those in which a litigant seeks declaratory relief in a civil court concerning a 'question of evidence or procedure' arising in pending criminal proceedings. Mr Palmer says that, as the Palmer Application does not seek declaratory relief and furthermore does not challenge any 'question of evidence or procedure' arising in the PUP Payments Prosecution, the fragmentation principle is not engaged. In short, Mr Palmer says that this means that there is no basis for this Court to exercise any judicial restraint in relation to the Palmer Application. Mr Palmer contends that as a single judge, I am bound to follow what was said by Gibbs ACJ in Sankey. In support of that contention, he says that the above passage from Sankey has subsequently been affirmed by the High Court in Gedeon and Rolfe.

95    However, Mr Palmer's articulation of the limits of the fragmentation principle, and his contention that this articulation has been affirmed by the High Court, have both been specifically rejected in two recent decisions of intermediate appellate courts.

96    The first of those cases is Palmer v ASIC (FC). In that case, Mr Palmer and PLC applied for an extension of time to seek leave to appeal against an order that civil proceedings he had commenced against the Commonwealth Parties in this Court be temporarily stayed. Mr Palmer challenged ASIC's exercise of the coercive statutory power provided for in s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) which required Mr Palmer to attend an examination. Mr Palmer sought declarations and injunctive relief against the Commonwealth Parties alleging that the examination and the use or potential use of the transcripts of the examination, including in relation to both actual and potential criminal or other proceedings, was unlawful. At first instance the primary judge ordered that the proceedings commenced by Mr Palmer and PLC be temporarily stayed to prevent fragmentation of criminal proceedings brought against them.

97    The first ground on which Mr Palmer sought an extension of time to seek leave to appeal in Palmer v ASIC (FC) was that the primary judge misapprehended the core concept of the fragmentation principle. As he now does in this case, Mr Palmer contended that the fragmentation principle is only engaged when civil proceedings have the effect of fragmenting criminal proceedings by 'challenging discrete evidentiary and/or procedural rulings' made in those criminal proceedings: Palmer v ASIC (FC) at [145]. While the Full Court granted an extension of time within which to appeal, and granted leave to appeal, it concluded that this ground of appeal had not been made out: Palmer v ASIC (FC) at [199].

98    At [160], the Full Court in Palmer v ASIC (FC) said that Mr Palmer's articulation of the fragmentation principle was 'too narrow' and that the primary judge in that case was correct to reject that statement of the principle. After carrying out a detailed review of several relevant authorities, including the specific passage in the reasons of Gibbs ACJ in Sankey on which Mr Palmer now continues to rely, the Full Court said at [187] that it is not necessary for the applicability of the fragmentation principle that there be 'direct impingement' on the course of criminal proceedings or that there be fragmentation arising from challenges to evidence or procedural rulings made in such proceedings. In reaching that conclusion, the Full Court expressly rejected Mr Palmer's contention that the High Court in Gedeon and Rolfe has, by adopting the passage taken from the judgment of Gibbs ACJ in Sankey that is reproduced at [93] of these reasons, endorsed the narrow formulation of the fragmentation principle on which he relied: Palmer v ASIC (FC) at [182]. Furthermore, the Full Court noted at [183] that:

intermediate appellate courts have not taken Sankey to impose a narrow test. Numerous intermediate appellate courts have also considered and applied the principle in ways which make it clear that it is not confined in this way.

99    It may be seen, therefore, that the Full Court's rejection of Mr Palmer's articulation of the fragmentation principle on which his first ground of appeal critically depended formed part of the ratio decidendi of Palmer v ASIC (FC).

100    I must, of course, follow Palmer v ASIC (FC). In those circumstances I am bound to reject the same narrow articulation of the fragmentation principle upon which Mr Palmer relies in these proceedings that was rejected in Palmer v ASIC (FC).

101    The second case in which Mr Palmer's narrow articulation of the fragmentation principle has been rejected by an intermediate appellate court is Palmer v Gibson. In that case Mr Palmer commenced proceedings against a Justice of the Peace, Ms Gibson, in the Supreme Court of Queensland. In his statement of claim Mr Palmer relevantly alleged that Ms Gibson witnessed the complaint made by an ASIC employee and made the decision to issue a summons directed to Mr Palmer in respect of the complaint which commenced the PUP Payments Prosecution. For reasons that are unimportant in the context of these proceedings, Mr Palmer alleged that Ms Gibson's 'decisions' to witness the complaint and issue the summons were unlawful. On that basis, Mr Palmer sought declarations that the complaint and summons were unlawful and invalid, and further orders that they be quashed or set aside. Mr Palmer also sought damages for misfeasance in public office and/or breach of statutory duty.

102    The primary judge dismissed Mr Palmer's claims for declaratory relief and stayed the proceedings until after the conclusion of the criminal proceedings. In making those orders the primary judge invoked the fragmentation principle.

103    On appeal, Mr Palmer relied once again on the same articulation of the fragmentation principle upon which he continues to rely in these proceedings. At [31], Doyle JA summarised Mr Palmer's contentions about the fragmentation principle in the following way:

For Mr Palmer it was urged that:

(a)    The test requires that the civil proceedings directly impinge on the criminal proceedings.

(b)    It is not enough that issues which will or may arise in the criminal proceedings will or may arise in the civil proceedings.

(c)    Civil proceedings would only directly impinge on the conduct of the criminal proceedings if: (i) in the civil proceedings relief was sought which affected the procedure or process in the criminal proceedings (such as declarations as to the admissibility of evidence, or entitlement to privilege as to possible evidence); or (ii) relief sought in civil proceeding amounts to a collateral challenge to the criminal proceedings (such as a determination that the charge was incapable of being an offence; or the like).

(d)    This is not the case here. In support of this it was submitted that the effect here of the civil proceedings being determined will not be to directly impinge on the criminal proceedings. In particular this is because the relief urged (it was submitted) was that the Committal and Summons Decisions were liable to be quashed as distinct from relief quashing them. The criminal proceedings, it is urged, are not affected.

(footnotes omitted)

104    I pause here to note that it is somewhat curious that Mr Palmer appeared to accept in Palmer v Gibson that civil proceedings might relevantly fragment criminal proceedings where the relief sought in those civil proceedings amounts to a collateral challenge to the criminal proceedings 'such as a determination that the charge was incapable of being an offence; or the like'. That is because the relief sought by Mr Palmer in these proceedings includes an order directing the Magistrate to dismiss the complaint and summons in the PUP Payments Prosecution. That order is sought, in essence, on the ground that Mr Palmer has not been charged with an offence known to the law 'which conforms to the fact pattern relied on by the prosecution': see [71] of these reasons.

105    Returning to the reasoning in Palmer v Gibson, as Doyle JA said at [30] (with whom Mullins P and Freeburn J agreed) the 'primary controversy' in that appeal was the:

nature of the interference which must be shown in order to enliven the court's reluctance not to consider civil proceedings which are said to fragment or amount to a collateral attack on the criminal proceedings and then whether the primary judge erred in adopting some different test.

After giving detailed consideration to Sankey, Gedeon and Rolfe, and to several other cases in which the fragmentation principle has been considered, Doyle JA also rejected Mr Palmer's narrow articulation of the fragmentation principle: Palmer v Gibson at [32] to [65] (Doyle JA, Mullins P and Freeburn J agreeing).

106    As what was said in Palmer v Gibson concerns the common law of Australia I am bound to follow it: Hill v Zuda Pty Limited [2022] HCA 21; (2022) 275 CLR 24 at [25]. To the extent it may be relevant in circumstances in which I am, in any event, bound to follow Palmer v ASIC (FC), I am far from persuaded that the rejection of Mr Palmer's statement of the fragmentation principle in Palmer v Gibson is plainly wrong.

107    In his submissions in this Court, Mr Palmer raised a further argument in support of his articulation of the fragmentation principle that did not appear to have been raised in either Palmer v ASIC (FC) or in Palmer v Gibson. That argument focussed on s 1337D(2) of the Corporations Act, which provides in a manner similar to s 39B(1C) of the Judiciary Act 1903 (Cth), that:

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.

108    Mr Palmer submits that s 1337D(2) represents a legislative choice to limit those occasions on which this Court must not exercise its jurisdiction in relation to prosecutions for offences against the Corporations Act that are before state courts. However, I do not accept that submission. As is apparent from its terms, s 1337D(2) is concerned only with precluding this Court from determining matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer or officers of the Commonwealth. This legislative choice says nothing about whether the fragmentation principle, which was well established at the time s 1337D(2) was enacted, will only be engaged in the narrow way for which Mr Palmer contends. Indeed, it is implicit in Mr Palmer's own formulation of the limits of the fragmentation principle that it survives unaffected by s 1337D(2).

109    The essential focus of the fragmentation principle is on the effect that civil proceedings may have on criminal proceedings and the diversion of criminal proceedings from their ordinary course: Palmer v Gibson at [49] (Doyle JA, Mullins P and Freeburn J agreeing). As Gibbs ACJ noted in Sankey at 25 to 26, the same passage on which Mr Palmer relies and which I have already reproduced above at [93]:

But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process.

(emphasis added)

110    Further on in that passage, his Honour said:

Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf. Ibeneweka v. Egbuna) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion.

(footnotes omitted)

111    That the focus of the fragmentation principle is on the effect of civil proceedings on criminal proceedings may be seen from the non-exhaustive list of reasons for the need for restraint identified by Kirby P (as his Honour then was) in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235, which were referred to in Roberts v Gett (FC) at [48] in the following way:

(a)    the undesirability of discontinuity, disruption or delay;

(b)    the superior knowledge of the criminal court concerning the whole facts and circumstances of the case under its consideration;

(c)    the undesirability of the beneficial remedies of declaration or the prerogative writs being misused to justify transfer to the superior courts of matters committed by law to the criminal courts;

(d)    the cost of proliferating litigation, especially at an interlocutory stage, which diverts attention from the real substance of the accusations brought and concentrates instead upon peripheral and often procedural matters; and

(e)    the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens.

112    In a similar vein it may be noted that in Palmer v Gibson at [50], Doyle JA (with whom Mullins P and Freeburn J agreed) said:

In numerous other cases courts have expressed the need for restraint to be exercised where the civil proceedings might have the effect of fragmenting the criminal proceedings. Often they involve issues such as the admissibility of evidence: R v Iorlano; Re Mullally; Ex parte A-G (Cth) (1983) 151 CLR 678 at 680 (Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ); R v Elliott (1996) 185 CLR 250 at 257 (Brennan CJ, Gummow and Kirby JJ). But the statements of principle are not, nor has their application been, limited in that way (but have extended to other more substantive challenges which might operate to disrupt the normal progress of the criminal proceedings): Alqudsi v Commonwealth (2015) 90 ALJR 192 at [22] (French CJ); Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373 (Dawson J); Obeid v The Queen (2016) 90 ALJR 447 at [15] (Gageler J).

(emphasis added)

113    Further, his Honour said at [61]:

The courts favour, save where the interests of justice lead otherwise, that the civil courts show restraint and allow the criminal proceedings to run their course first, and without being impacted by delay, diversion of a litigant's resources, competing courts dealing with overlapping issues, or divergent and multiple appeals along the way. It is that effect which impinges on the criminal proceedings and it does so because the issues in the civil proceedings touch upon those in the criminal proceedings in a material manner. That effect is fragmenting, or can be described as a collateral attack on the criminal proceedings, even if the relief sought would not itself restrain or quash the complaint the foundation of the criminal proceedings.

(emphasis added)

114    In my view, where civil proceedings would have the effect of fragmenting, delaying or otherwise disrupting pending criminal proceedings in the way explained in Palmer v Gibson, the question that arises is when and how a court seized with those civil proceedings should exercise the required judicial restraint.

The exercise of judicial restraint when the fragmentation principle is engaged

115    A convenient starting point for examining the principles to be applied in relation to the exercise of judicial restraint in circumstances in which civil proceedings have the effect of fragmenting pending criminal proceedings are the same reasons of Gibbs ACJ in Sankey on which Mr Palmer relies. After dealing with an argument about whether the Court had power to grant declaratory relief on the application of an informant in committal proceedings, Gibbs ACJ said at 25 that:

In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief.

(emphasis added)

116    Then, later in the same passage, Gibbs ACJ said at 26:

Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.

(emphasis added)

117    Almost certainly cognisant of these passages, courts called upon to consider whether civil proceedings would have the effect of fragmenting criminal proceedings often observe that relief sought in such civil proceedings will only be granted in 'exceptional' or 'special' circumstances, or where there are 'compelling' or 'extraordinary' reasons: see, for example, Lamb v Moss at 546; Palmer v Magistrates Court [2024] at [5], and [38] to [39] (Dalton JA, Boddice JA and Burns J agreeing), Hutson at [40], and [47] to [48] (Mullins P, Dalton JA and Henry J agreeing); and Roberts v Gett at [34] to [35]. In fact, in Palmer v Magistrates Court [2020] at [39], Fraser JA (with whom Morrison JA and Boddice J agreed) said:

More than 35 years ago the Full Court of the Federal Court in Lamb v Moss referred to 'a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage' and, citing a statement by Gibbs ACJ in Sankey v Whitlam, held that except in special circumstances a failure to permit criminal proceedings to follow their ordinary course will constitute an error of principle. This principle has been repeatedly endorsed …

(footnotes omitted)

118    Further, in Hutson at [60], Mullins P (with whom Dalton JA and Henry J agreed) said that:

As Sankey emphasises, avoidance of the fragmentation of the criminal trial process with the consequential delays is an important public policy consideration and explains why a defendant in a criminal trial should only seek declaratory relief from the Supreme Court in the exercise of its supervisory jurisdiction of criminal proceedings in exceptional cases.

(emphasis added)

119    However, while it may be the case that the courts have, as a matter of fact, only granted relief in civil proceedings that have a fragmentary effect on pending criminal proceedings in exceptional, special or compelling circumstances, it appears to me that the relevant principle is as expressed by the High Court in Gedeon at [23]:

With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged. In any event, a declaration may be of limited utility where founded, as would be the case here, on facts admitted only for the purposes of the satellite litigation.

(footnotes omitted; emphasis added)

120    Accordingly, it may be seen that the need for exceptional or special circumstances, or compelling reasons, is a necessary consequence of the exhortation in the 'important general principle' to exercise the power to make declaratory orders 'sparingly' where it would touch the conduct of criminal proceedings, and to actively discourage fragmentation of the criminal process.

121    More recently, in Palmer v Gibson, Doyle JA (with whom Mullins P and Freeburn J agreed) explained at [61] to [63] that:

[t]he courts favour, save where the interests of justice lead otherwise, that the civil courts show restraint and allow the criminal proceedings to run their course first, and without being impacted by delay, diversion of a litigant's resources, competing courts dealing with overlapping issues, or divergent and multiple appeals along the way. It is that effect which impinges on the criminal proceedings and it does so because the issues in the civil proceedings touch upon those in the criminal proceedings in a material manner. That effect is fragmenting, or can be described as a collateral attack on the criminal proceedings, even if the relief sought would not itself restrain or quash the complaint the foundation of the criminal proceedings.

The converse is also true. Even if the civil proceedings directly impinge on the criminal proceedings the interests of justice might nonetheless favour not staying those proceedings or not declining to make declarations in those civil proceedings. That is to be assessed in each case on the facts. Where there are discrete issues of law which do not turn on any factual issues it may be more readily determined that disposal of them in civil proceedings by a superior court might be more timely, efficient and cost effective: Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 188, 204; Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20. In such cases a special reason would have been made out to do so.

No doubt whether in any case the interests of justice justify the court overcoming that required restraint is likely to turn on a number of factors, including the degree of the overlap of issues, and whether in the circumstances disposal of some issue in civil proceedings might be more timely, efficient and cost effective. The more remote the subject matter of the relief sought in the civil proceedings is from the issues in the criminal proceedings, the less likely those proceedings can be described as giving rise to fragmentation and leading to a departure from the normal course of the criminal proceedings running their course.

(emphasis added)

122    In this passage, his Honour's focus on the 'interests of justice', and whether those interests might overcome the judicial restraint that stems from the need to actively discourage the fragmentation of the criminal process as explained in Gedeon, also reflects what was said by Gibbs ACJ in Sankey. In that regard, Gibbs ACJ said at 26 that:

[o]nce criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order.

(emphasis added)

123    It is also consistent with the approach that was recently taken in Hutson, where Mullins P said at [47] (Dalton JA and Henry J agreeing):

The broad test that applies to whether a defendant in a criminal proceedings should be permitted to invoke the supervisory jurisdiction of the Supreme Court is whether it is in the interests of justice.

(emphasis added)

124    In a similar vein Mullins P later said at [53] (Dalton JA and Henry J agreeing) that:

[i]n the circumstances applicable to this case, the threshold question for the primary judge was whether it was in the interests of justice that the issues of law and fact agitated by the appellant in seeking declaratory relief from the Supreme Court should be determined in the exercise of its supervisory jurisdiction of criminal proceedings rather than allowing the criminal proceedings to follow the usual course.

(emphasis added)

125    See also Emanuel Exports at [42], where the Court of Appeal of the Supreme Court of Western Australia applied the touchstone of the 'interests of justice' in deciding whether the criminal proceedings relevant to that case should be allowed to proceed in its ordinary course unimpeded by an application for statutory judicial review.

126    Accordingly, it appears to me that, save where the interests of justice lead otherwise, the courts are required to show restraint and to sparingly exercise their powers to grant relief sought in civil proceedings where it would touch upon the conduct of criminal proceedings. Because of the importance of this principle, and the need to actively discourage fragmentation of the criminal process, it will only be in exceptional, special or compelling circumstances in which it will be in the interests of justice to grant relief that would have the effect of fragmenting criminal proceedings.

127    Before moving on it is necessary to deal with one other issue. In a short submission made in writing, Mr Palmer appeared to contend that the fragmentation principle only applies with respect to the exercise of the power to make the declaratory orders. I take Mr Palmer's submission to rely on the fact that in several cases, including Sankey, Hutson, and Gedeon, the observations about the fragmentation principle were made in circumstances in which declaratory relief was sought. Of course, declaratory relief is not sought in the Palmer Application. What Mr Palmer seeks are orders in the nature of certiorari and mandamus under the Court's jurisdiction conferred by s 1337B(1) of the Corporations Act and in the exercise of the Court's powers under s 23 of the FCA Act.

128    I do not accept that the fragmentation principle only applies in circumstances in which declaratory relief is sought. It is self-evident that applications in civil courts seeking relief in the nature of certiorari and mandamus can also have, and in in many cases will have, a direct fragmentary effect on criminal proceedings. In any event, there have been several occasions on which courts have exercised restraint to avoid fragmenting criminal proceedings where relief other than declaratory relief has been sought. For example, in Rozenes (1994), an application for orders nisi for writs of certiorari, mandamus, and prohibition as well as an injunction were dismissed by Dawson J because the fragmentation of criminal proceedings was considered to be highly undesirable and would only be allowed in exceptional circumstances. Further, in Rozenes v Beljajev [1995] 1 VR 533 at 571 it was said:

In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force 'where proceedings are in charge of a judge who at this very moment is beginning the trial': Anderson v. Attorney-General for New South Wales (1987) 10 N.S.W.L.R. 198 at 200 per Kirby P. Such fragmentation should be avoided unless there are exceptional or special circumstances. It is sufficient to refer in this context to Sankey; R. v. Iorlano (1983) 151 C.L.R. 678; Lamb v. Moss and Brown (1983) 76 F.L.R. 296; Yates v. Wilson (1989) 168 C.L.R. 338; Beljajev v Director of Public Prosecutions (1991) 173 C.L.R. 28; Harland-White v Gibbs [1993] 2 V.R. 215; Re Rozenes; Ex parte Burd (1994) 68 A.L.J.R. 372. These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari.

(emphasis added)

129    There have also been other cases in which the fragmentation principle has been applied in circumstances in which relief other than declaratory orders have been sought: see, for example, Guss v The Magistrates' Court of Victoria and Jacotine [2005] VSC 153; Metro Trains Melbourne Pty Ltd v Paciocco [2017] VSC 778; Roberts v Gett; and Palmer v Gibson.

130    In this case, the Commonwealth Parties seek that this Court show the required judicial restraint by making orders that the Palmer Application be permanently stayed or summarily dismissed as an abuse of process. In that regard, the Full Court in Palmer v ASIC (FC) noted at [311] that a well-established category of abuse of process includes the commencement and continuation of civil proceedings that would fragment a pending criminal proceeding where there are no compelling reasons to permit that course. Similarly, in Palmer v Magistrates Court [2024] at [5], Dalton JA (Boddice JA and Burns J agreeing) said that in the circumstances of that case, the:

delay and disruption to the prosecutions [including the PUP Payments Prosecution] which the [civil proceedings] were causing, and would continue to cause, meant that they were an abuse of the process of this Court because they interfered with the proper administration of criminal justice according to law.

131    However, it is important to note the observation subsequently made in Palmer v Gibson at [96] (Doyle JA, Mullins P and Freeburn J agreeing) that the 'fragmentation of criminal proceedings does not without more establish that the proceeding is an abuse of process' (emphasis added). Further, and in any event, a decision to permanently stay proceedings can only be made in exceptional circumstances. As Dalton JA (Boddice JA and Burns J agreeing) recognised in Palmer v Magistrates Court [2024] at [3], it was held in GLJ at [3] (Kiefel CJ, Gageler and Jagot JJ) that:

the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.

132    As the Commonwealth Parties explained in their written submissions in support of the Proposed Amended Commonwealth Application, orders are sought in the alternative to a permanent stay or summary dismissal on the basis that the Palmer Application is an abuse of the process of the Court. Those orders are for the dismissal of the Palmer Application in the exercise of the Court's discretion. I interpose here to observe that while the Commonwealth Parties' written submissions in support of the Proposed Amended Commonwealth Application suggest that the Court should make proposed order 2A on a discretionary basis, the reference in that proposed order to r 26.01(1)(d) of the Rules is somewhat confusing. That is because r 26.01(1)(d) confers power to give summary judgment in proceedings that are an abuse of the process of the Court. However, it is unnecessary to deal with this anomaly because, as will be seen, I accept the submissions made by the Commonwealth Parties that the Court should make the order sought in para 2B of the Proposed Amended Commonwealth Application.

133    In support of their submission that the Court has the power to dismiss the Palmer Application on a discretionary basis the Commonwealth Parties rely on several cases, including Rozenes (1994), Hutson, and Emanuel Exports. However, before examining those cases, it is convenient to begin by looking at what was said about this issue in Sankey. As I have already mentioned, Gibbs ACJ said (at 26) in that case that once criminal proceedings have begun, they should be allowed to follow their ordinary course 'unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order'. Implicit in that statement is that where relief is sought in a civil court that would have a fragmentary effect on criminal proceedings, the court has a discretionary power to refuse to grant the relief sought without forming a concluded view about the merits of the case. Otherwise, proceeding to hear a case and then only exercising a discretion not to grant the relief sought after determining the merits of the case would exacerbate rather than alleviate the very fragmentary effect that courts are urged to avoid.

134    In separate reasons in Sankey, with which Aicken J expressed general agreement at 103, Stephen J said at 80:

If there be any merit in these proceedings it surely lies in the opportunity they afford of resolving once and for all questions of law first raised years ago in the magistrate's court at Queanbeyan and which have ever since troubled the parties and the courts. It being a matter of discretion, this Court should, in the particular circumstances of this case, grant such declaratory relief as the parties are entitled to. In many like cases an exercise of discretion in the contrary sense may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings.

(emphasis added)

135    Once again, the existence of a discretionary power to refuse to grant declaratory relief without considering the merits of the proceedings is implicit in the emphasised part of Stephen J's reasons. To consider the merits of an application for relief before determining whether to exercise a discretion to dismiss the application would undermine the objective of avoiding interference with the 'due and orderly administration' of criminal proceedings.

136    Finally, and to similar effect, Mason J said at 82 that various factors in that case:

tend to indicate that a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course.

137    Some years after Sankey, the applicants in Rozenes (1994) sought an order nisi for a writ of prohibition and an injunction, alternatively an order nisi for a writ of mandamus and an injunction, against the CDPP. The applicants also sought an order nisi for a writ of prohibition and certiorari against a Judge of the County Court of Victoria. The grounds for the applications related to the mode of selection of a jury and to the joinder of counts alleging both Commonwealth and State offences. In dismissing the applications, Dawson J said at 373:

I have set out briefly the arguments which the applicants seek to put, not to express any view as to their merit, but to indicate their nature. For I have formed the view that, notwithstanding that the grounds advanced might well be sufficiently arguable to support the grant of orders nisi, I ought to exercise my discretion against giving that relief.

This court has repeatedly indicated that the fragmentation of a criminal trial by proceedings to contest the rulings of a trial judge, by way of either leave to appeal or prerogative relief, is highly undesirable and will only be allowed in exceptional circumstances.

(footnotes omitted)

138    It may be seen that in circumstances in which writs of prohibition, mandamus, and certiorari were sought, together with injunctive relief, Dawson J dismissed the applications without considering their merits and in the exercise of a discretion against giving that relief.

139    A similar approach was taken in Hutson. In that case the appellant sought declaratory relief in the Supreme Court of Queensland concerning the construction of certain provisions of the ASIC Act in a context in which the appellant was charged on indictment with several offences, including offences contrary to the ASIC Act. The primary judge determined the merits of the application but also said that he would have dismissed the application on discretionary grounds. On the Appeal Mullins P identified at [53] (Dalton JA and Henry J agreeing) that there was a 'threshold question' for the primary judge to determine, namely whether it was in the interests of justice that the issues of law and fact raised by the application for declaratory relief should be determined in the exercise of the primary court's supervisory jurisdiction of criminal proceedings rather than allowing the criminal proceedings to run their usual course.

140    Mr Palmer submits that to the extent that the Court in Hutson identified the existence of a 'threshold question' then it is either a decision that is confined to its facts and circumstances, or that it was wrongly decided and should not be followed. Both of those submissions must be rejected.

141    In my view the articulation of a 'threshold question' in Hutson was not confined to the particular facts of that case. After discussing what were described as the 'seminal cases' of Sankey and a case decided by the Court of Appeal of the Supreme Court of New South Wales, namely Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198, what Mullins P said in Hutson at [47] (Dalton JA and Henry J agreeing) was:

As these seminal cases show, there are important public policy reasons for limiting the exercise of the Supreme Court's supervisory jurisdiction over criminal trials to exceptional or special cases. One of the most significant reasons recognised in Sankey at 26 is to avoid the fragmentation of criminal proceedings which otherwise detracts from the efficiency of the criminal process. If it were not the case that the supervisory jurisdiction was confined to exceptional or special cases, there would be the potential of multiplicity of proceedings on the same issue in the anticipation by a defendant to a criminal proceeding that a judge in the exercise of the Supreme Court's supervisory jurisdiction in advance of the criminal trial might look favourably on the question sought to be determined outside the processes that apply to a criminal proceeding. The broad test that applies to whether a defendant in a criminal proceeding should be permitted to invoke the supervisory jurisdiction of the Supreme Court is whether it is in the interests of justice. The interests of justice is not confined to what is in the interests of the particular defendant but is a broader question involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally. Where the defendant is unsuccessful in invoking the Supreme Court's supervisory jurisdiction, there will be consequential delay to the criminal proceeding which is not in the interests of the administration of justice.

(emphasis added)

142    In this passage it may be seen that the focus was on avoiding or limiting the circumstances in which the Supreme Court's supervisory jurisdiction over criminal proceedings should be invoked.

143    After then referring to Emanuel Exports to illustrate the importance of limiting the fragmentation of the criminal process to exceptional circumstances, Mullins P turned to deal with a question about whether the primary judge in that case '[s]hould…have embarked on a consideration of the construction and application of [the relevant legislative provision]'. It was in that context that Mullins P said at [53] (Dalton JA and Henry J agreeing):

In the circumstances applicable to this case, the threshold question for the primary judge was whether it was in the interests of justice that the issues of law and fact agitated by the appellant in seeking declaratory relief from the Supreme Court should be determined in the exercise of its supervisory jurisdiction of criminal proceedings rather than allowing the criminal proceedings to follow the usual course.

(emphasis added)

144    From [54] to [60], Mullins P (with whom Dalton JA and Henry J agreed) then examined the various factors in that case that bore on the 'threshold question' as she had identified it, before concluding at [61] to [62] that:

When all the relevant factors are considered, the conclusion in this case is overwhelmingly against the threshold question being determined in favour of the appellant. It would have therefore been preferrable for that threshold question to have been determined by the primary judge without embarking on a detailed consideration of the substantive issues raise by the appellant as to the construction and application of [the relevant legislative provisions].

Generally, if the threshold question is not considered before the substantive issues raised by an application for declaratory relief, defendants in criminal trials will be encouraged to challenge a ruling made under s 590AA of the Code by seeking declaratory relief and, if the result was not what was sought on the substantive issues, to pursue an appeal to obtain an advisory opinion from this Court. That is not in the interests of the efficient and fair administration of the criminal justice system.

(emphasis added)

145    However, it does not follow from her Honour's identification that a consequence of not considering the 'threshold question' before the substantive issues raised by an application for declaratory relief is that defendants will be encouraged to challenge rulings under the particular legislation that applied in Queensland, that a threshold question only arose in the particular circumstances of that case. In particular it does not detract from the recognition in that case of the existence of a general discretionary power to refuse to grant declaratory relief that would have a fragmentary effect on criminal proceedings and to do so without determining the merits of the application in which such relief is sought.

146    Having regard to the, with respect, persuasive reasoning in Hutson, I am far from satisfied that it is plainly wrong.

147    In Emanuel Exports, to which reference was made in Hutson, the applicant sought to engage the judicial review jurisdiction conferred on the Supreme Court of Western Australia by s 36 of the Magistrates Court Act 2004 (WA) in circumstances in which a magistrate had determined in the course of criminal proceedings, adversely to the applicant, that the relevant offence creating provisions in that case were not invalid by operation of s 109 of the Constitution. The Court explained that there were four factors as to why it had decided to decline to exercise its discretion under s 36 of the Magistrates Court Act, and to do so without considering the merits of the application. The fourth of those reasons, which was described as the most significant, was that the exercise of judicial review jurisdiction would involve the fragmentation of pending criminal proceedings and that this counted strongly against the exercise of discretion to grant relief. In support of that conclusion, the Court referred to both Gedeon and to Sankey. Immediately after referring to those cases, the Court then said:

Similar observations as to the need to exercise the discretion to grant declaratory relief sparingly in relation to criminal proceedings were made by Ipp J (Malcolm CJ and Owen J agreeing) in Connell v Reynolds [(1993) 9 WAR 27 at 35 (Malcolm CJ), 53 to 54 (Ipp J) and 54 (Owen J)]. In our view, the same considerations apply to the exercise of the court's discretion to grant relief under s 36(4) of the Magistrates Court Act in relation to pending criminal proceedings. It has been so held in many cases in the General Division of this court.

(footnotes omitted; emphasis added; bold in original)

148    More recently, in Palmer v Gibson, Doyle JA noted at [84] (Mullins P and Freeburn J agreeing) that in the various authorities to which he had referred earlier in his reasons, the decision as to how to give effect to the required judicial restraint in circumstances where civil proceedings have a fragmentary effect on criminal proceedings was referred to as a matter of discretion. In that context, and where the primary judge in that case had ordered that part of the civil proceedings brought by Mr Palmer be temporarily stayed, Doyle JA said that he was of the view that this was the correct description of a decision whether or not to grant a temporary stay.

149    It must be appreciated that the orders that Mr Palmer seeks under s 23 of the FCA Act are orders in the nature of certiorari and mandamus. It is well-established that such orders, like orders seeking declaratory relief, may be refused on discretionary grounds: Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd [2022] FCAFC 15; (2022) 289 FCR 508 at [124] (Rangiah J); citing Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5], [17], [49], [52], [54], [145], [172] and [217]. See also Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 at [158].

150    In my view, Mr Palmer's submission that there is no separate discretionary power, or 'threshold question', to summarily dismiss the Palmer Application without first considering its merits cannot be accepted.

151    However, Mr Palmer submits that the Full Court's decision in Palmer v ASIC (FC) establishes that the Court does not have a discretion to dismiss a civil proceeding without considering its merits on the ground that it would be fragmentary of pending criminal proceedings. In those circumstances, Mr Palmer says that I am bound to follow that decision. In that regard, Mr Palmer says that Palmer v ASIC (FC) establishes that a determination that a civil proceeding impermissibly fragments a criminal proceeding is an evaluative decision for which there is only one correct answer, relying on what was said by the Full Court in that case at [311] and [319].

152    I do not accept Mr Palmer's submission.

153    The passages in Palmer v ASIC (FC) on which Mr Palmer relies do not establish that a determination that a civil proceeding impermissibly fragments a criminal proceeding is an evaluative decision for which there is only one correct answer. I have already referred to [311] of Palmer v ASIC (FC) earlier in these reasons at [131]. What the Full Court recorded at [311] was its agreement with a submission made by the respondents in that case that the primary judge was correct to conclude that it would be an abuse of the Court's processes to allow the proceedings to continue because to do so would fragment the criminal proceedings, and that this was a well-established category of abuse of process. That says nothing about whether a determination that a civil proceeding impermissibly fragments a criminal proceeding is an evaluative decision for which there is only one correct answer.

154    At [319] in Palmer v ASIC (FC) the Full Court discussed an issue about whether in ordering a temporary stay a court engages in an evaluative exercise for which there is only one answer. However, the Full Court did not determine that issue. What the Full Court said at [319] was that in the circumstances of that case it was prepared to proceed on the same basis as the parties had done, namely, that the primary judge's decision to grant a temporary stay was an evaluative exercise. Accordingly, not only did the Full Court not make a final decision about that issue, it did not say anything at all about whether a decision that a civil proceeding impermissibly fragments a criminal proceeding is an evaluative decision for which there is only one correct answer.

155    In any event, the issue discussed by the Full Court at [319] was determined in Palmer v Gibson. As I have already noted, Doyle JA said at [84] (Mullins P and Freeburn J agreeing) that the correct description of a decision whether to grant a temporary stay is that it is a matter of discretion.

156    In his written submissions concerning the effect of Palmer v Gibson, Mr Palmer also submits that Palmer v Magistrates Court [2020] at [29] to [31] and [39] to [40] (Fraser JA, Morrison JA and Boddice J agreeing), which he says was approved in Palmer v Gibson at [92] to [93] (Doyle JA, Mullins P and Freeburn J agreeing), establishes that whether discretionary relief in relation to the Palmer Application is ultimately granted is a matter for trial, not summary application. To understand why that submission cannot be accepted it is necessary to say something about Palmer v Magistrates Court [2020].

157    In that case Mr Palmer and PLC commenced proceedings in the Supreme Court of Queensland against the Magistrates Court and the Commonwealth Parties. Mr Palmer claimed:

(1)    Declarations that complaints charging offences against Mr Palmer and PLC are abuses of process, or declarations that the continuation of those proceedings would tend to bring the administration of justice into disrepute.

(2)    Declarations designed to establish that elements of the offence, charged against Mr Palmer and PLC, are premised upon an incorrect construction of provisions of the Corporations Act .

(3)    An order that the committal proceedings upon those charges in the Magistrates Court be permanently stayed.

158    Mr Palmer and PLC then appealed against orders made by the primary judge upon the Commonwealth Parties' application to strike out their statement of claim and set aside each of their claims.

159    As the Court of Appeal noted at [26], the primary judge made an order under r 16(e) of the Uniform Civil Procedure Rules 1999 (Qld). In that light the Court of Appeal concluded that the primary judge's order summarily terminating that part of Mr Palmer's and PLC's proceedings could be justified only upon the basis that their claims were, as the Commonwealth Parties contended in their application, an abuse of process. More specifically, if the claims were abuses of processes because they lacked reasonable grounds so as to be vexatious. It was in that context that Fraser JA (with whom Morrison JA and Boddice J agreed) said at [26] to [31] that:

[t]he order made by the primary judge under r 16(e) [of the Uniform Civil Procedure Rules 1999 (Qld)] setting aside the appellants' claims denied the appellants access to the usual interlocutory processes and a trial. The primary judge did not make that order upon the ground that the appellants' claims could or should have been litigated in the Magistrates Court: compare UBS AG v Tyne [(2018) 265 CLR 77]. The primary judge did mention that the arguments underlying the claims for declarations about the elements of the offences could be raised in a no case submission before the Magistrate or, if prosecutions ensued, in the District Court at the end of the Crown case, but no party submitted that any of the relief claimed by the appellants in their Supreme Court proceeding could be sought by them in the Magistrates Court. Absent the invocation by the primary judge of any other ground, the order summarily terminating that part of the appellants' proceedings could be justified only upon the basis that the appellants' claims were, as the respondents contended in their application, an abuse of process. The claims were abuses of processes if they lacked reasonable grounds so as to be vexatious.

The respondents' application therefore attracted the principle articulated by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde [(2000) 201 CLR 552 at [57]] that 'a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases'; there must be such 'a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way' as to justify summary termination of the proceedings: see Batistatos v Roads and Traffic Authority (NSW) [(2006) 226 CLR 256 at [25], [46], [53] and [71] (Gleeson CJ, Gummow, Hayne and Crennan JJ)].

…

The traditional restraint against fragmenting criminal proceedings certainly applies to those parts of the appellants' claims which ask the Supreme Court to adjudicate upon and make declarations about the elements of the offences. But the question raised by the respondents' application was not whether the Court should accede to those claims. The question was whether those claims were so clearly bound to fail that they should be summarily terminated as an abuse of process. In relation to the claims for a permanent stay of the committal proceedings, the primary judge correctly proceeded upon the footing that such relief should be granted only in an exceptional case, but again the question raised by the respondents' application was not whether a permanent stay should be granted but whether the applicants' claims for a permanent stay should be summarily dismissed as an abuse of process.

As will appear, I would affirm the primary judge's conclusions that there is nothing exceptional in the appellants' cases warranting the Supreme Court's intervention by way of declarations about the elements of the offences or its intervention to make declarations or orders putting an end to the criminal proceedings. The respondents' application, however, required consideration of the further question whether the claims for those forms of relief were so obviously untenable as to justify their summary termination as an abuse of process. In relation to the claims for orders to put an end to the criminal proceedings upon the ground of abuse of process, upon the premises that the Magistrates Court lacked power to stay the committal proceedings and the Supreme Court is empowered to grant a stay of the committal proceedings as an abuse of process, a finding that the appellants had an arguable claim that the committal proceedings were an abuse of process would preclude the exercise of the power summarily to terminate the claims.

It must be accepted, as the appellants submit, that the primary judge therefore erred in deciding that the appellants' claims in the Supreme Court were amenable to summary dismissal merely upon the ground that they amounted to a fragmentation of, or interference in, criminal proceedings without any consideration of the question whether any of those claims might nevertheless succeed after a trial.

(footnotes omitted; emphasis added)

160    It may be seen, therefore, that the issue that arose for determination in Palmer v Magistrates Court [2020] was framed by the specific nature of the application that was made by the Commonwealth Parties and by the order that was ultimately made by the primary judge. It may also be noted that Fraser JA nevertheless affirmed the primary judge's conclusions that there was nothing exceptional warranting the Supreme Court's intervention by way of declarations about the elements of the offences or its intervention to make declarations or orders putting an end to the criminal proceedings.

161    Having concluded that the primary judge erred in summarily dismissing the claims on the ground that they amounted to a fragmentation of criminal proceedings without giving any consideration of the question that was actually raised by the applications, namely, whether those claims were so obviously untenable as to justify their summary termination as an abuse of process, Fraser JA then said that it was necessary to consider the case afresh. In considering the allegations that were made in the statement of claim relied on by Mr Palmer and PLC in support of claimed declarations about the elements of the offences, Fraser JA said the following at [39] to [40] (Morrison JA and Boddice J agreeing):

It is clear beyond reasonable argument that this section of the statement of claim, like the appellants' claim for declarations, seeks to involve the Supreme Court in an exercise of jurisdiction that would fragment the criminal process. More than 35 years ago the Full Court of the Federal Court in Lamb v Moss referred to 'a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage' and, citing a statement by Gibbs ACJ in Sankey v Whitlam, held that except in special circumstances a failure to permit criminal proceedings to follow their ordinary course will constitute an error of principle. This principle has been repeatedly endorsed, including in many decisions cited by the primary judge.

The appellants' pleadings and arguments do not articulate anything that might justify a trial judge in finding that this is an exceptional case. There is no reason to think that the appellants' case in this respect might improve during further interlocutory processes or at a trial of their claims. Unless another ground for a stay has some arguable basis, the appellants could not hope to persuade a trial judge to fragment the criminal proceedings by adjudicating upon the elements of the charged offences as the appellants seek. That is sufficient to dispose of this aspect of the appeal but it should be noted that a further consideration supports the same conclusion: the appellants seek an adjudication upon those issues in the Supreme Court notwithstanding that their application in the committal proceedings in the Magistrates Court that they have no case to answer, which comprehends the same arguments, remains on foot.

(footnotes omitted; emphasis added)

162    It may be seen therefore, that contrary to the submissions Mr Palmer has made in this Court, the passages in Palmer v Magistrates Court [2020] on which he relies in support of a contention that whether discretionary relief is ultimately granted is a matter for trial, not summary dismissal, are to the opposite effect.

163    Having identified the principles that must be applied, it remains necessary to explain why I am of the view that this Court should, as a 'threshold issue', exercise its discretion to dismiss the Palmer Application without considering its merits.

Application of the principles in the circumstances of this case

164    It is very clear that the Palmer Application seeks to have this Court consider an application for judicial review that would fragment the criminal process commenced by complaint and summons in the PUP Payments Prosecution. Not only would proceeding to a hearing of the Palmer Application with a view to it being determined on its merits further delay and disrupt the PUP Payments Prosecution, but the relief sought by Mr Palmer would, if granted, also have a direct impact on those proceedings. In that regard, Mr Palmer seeks orders quashing the Magistrate's decision, directing the Magistrate to reconsider whether to summarily dismiss, and/or an order directing the Magistrate to summarily dismiss the complaint and summons in the PUP Payments Prosecution. In those circumstances, I am required to give effect to the principle that this Court must sparingly exercise its power to make such orders, and to actively discourage the fragmentation of the criminal process, unless there are exceptional, special or compelling reasons to adjudicate upon the Palmer Application, or the interests of justice would otherwise justify overcoming the restraint that must be exercised.

165    Mr Palmer submits that there are exceptional circumstances that justify the Palmer Application being heard and determined on its merits. As he did when he sought summary dismissal in the Magistrates Court of the charges in the complaint and summons the subject of the PUP Payments Prosecution, Mr Palmer criticises both the formulation and viability of those charges. In short, he says that the charges are hopelessly defective.

166    He says that as things presently stand, the way in which the charges have been formulated and articulated in the complaint and summons will deny him an 'efficacious committal'. Mr Palmer contends that the Commonwealth Parties have on several occasions changed their position in relation to the formulation of the charges and that they have been unable or unwilling to properly articulate the charges. Mr Palmer says that the defects in the charges are of such significance that he has, in fact, not been charged with an offence known to the law. He submits that in those circumstances he should not be exposed to the criminal process at all. He also says that the formulation of the charges in the complaint and summons will have a detrimental effect on his ability to conduct his defence at the committal hearing. He submits that these factors constitute exceptional circumstances that warrant this Court hearing and determining the Palmer Application on its merits in the usual way.

167    Mr Palmer also submits that the question of whether the Magistrates Court has jurisdiction to summarily dismiss a complaint during committal proceedings under relevant provisions of the Justices Act is a serious question of public importance, particularly when regard is had to the grounds on which he sought dismissal. Mr Palmer points out that the bounds of jurisdiction of any decision maker is of the 'utmost importance' to all litigants and participants in the legal process, and to the decision-making body itself, particularly where that body exercises powers as part of the criminal process.

168    It is also submitted that the relief sought in the Palmer Application could not be granted in the Magistrates Court or the court that may be seized of the matter were Mr Palmer to be committed for trial. Mr Palmer argues that his ability to make a no-case to answer submission at the end of the committal proceedings will not offer him the 'same practical opportunity' as would an application for summary dismissal. He says that this is not least because the committal will take place in circumstances in which the charges that he faces are 'in a state of flux', and that his ability to challenge them, and the evidence on which the prosecution wish to rely, will be 'confounded and impaired'.

169    In addition to the matters on which Mr Palmer specifically relies as exceptional, special or compelling reasons, I note that the PUP Payments Prosecution has already been significantly delayed and disrupted, including by dint of the need to determine the Commonwealth Application. I have taken that factor into account in deciding whether, notwithstanding the restraint that must be shown in entertaining applications that touch upon criminal proceedings, it is nonetheless in the interests of justice to hear and determine the Palmer Application on its merits. I have also taken into account that the arguments that fall to be considered in the context of the Palmer Application, were it to be heard and determined, are likely to be limited to questions of law.

170    In my view there is nothing relevantly exceptional, special or compelling about the Palmer Application, or that the interests of justice otherwise require this Court to hear and determine that application on its merits.

171    An important, and in my view decisive, reason why this Court should determine the threshold question identified in Hutson adversely to Mr Palmer and exercise its discretion not to hear and determine the issues agitated by the Palmer Application and to thereby allow the criminal proceedings to follow the usual course, are the reasons given by the Magistrate for refusing Mr Palmer's application to summarily dismiss the complaint and summons in the PUP Payments Prosecution. To explain why, it is necessary to reproduce the Magistrate's reasons in full.

172    Mr Palmer's application for summary dismissal was heard by the Magistrate over two days. After hearing extensive oral submissions from the parties, the Magistrate said the following:

Mr Dunning, whilst your arguments have been persuasive and well put forward, I would like to form something to be rather - a bit more eloquent [indistinct] decision, but I can inform you that I am not satisfied with the broad reading of sections 22A or 130B [of the Justices Act] are enough so as to give me, at this stage of the proceeding, the ability to summarily dismiss. Even if I had been so satisfied, considering the authorities to which we have discussed with regards to exceptional caution being exercised in exercising the power and only in the clearest of cases, I would not be so satisfied. So it will be my intent to give more fulsome reasons - hopefully not too far away - for a dismissal of the application.

...

HIS HONOUR: Now, I'm saying that for both of you because I don't want my giving the reasons in delaying the progression of the matter…

(emphasis added)

173    A short while later, and after there had been discussion between the Magistrate and senior counsel for Mr Palmer about other issues concerning the proceedings, the following exchange took place:

HIS HONOUR: I'm just saying I can see there have been delays. We need to progress.

MR DUNNING: Now, your Honour, we'll have to carefully consider your Honour's reasons, as you might expect, because there are other vexed issues that are going to present themselves in the course of this case. I can see at least two: one in relation to disclosure and another in relation to some reticence that the Crown have put some of their own officers on the list - witness list. So we'll have to give - apart from the fact that the decision alone might be one that we would want to consider what our alternatives are, we'll - but I'm not asking your Honour to delay the matter. I'm just alerting your Honour to it.

HIS HONOUR: Okay. Then if - my hope - it looks like I'll have some time - I'm in Mount Isa next week, but I should have some time during that week to conjure up a more fulsome decision. But, ultimately, as I've said, Mr Dunning, my position is that if the legislature had intended of giving this court the ability to summarily dismiss prior to a committal hearing, it would be expressly provided for in the Justices Act, and as it's not, I don't consider I have that ability.

MR DUNNING: Or to strike out, it would seem, to follow from that as well.

HIS HONOUR: Sorry?

MR DUNNING: Or to strike it out.

HIS HONOUR: Yes, to - similarly. Or to strike it out. I simply don't believe I have the ability to do so. And again, even if I did have the ability or considered I had the ability, balancing those elements, then, with regards to, in the clearest of cases, as put forward by Judge Burnett and Judge Barwick - Chief Justice Barwick, sorry - exceptional caution exercising that power, I wouldn't do so in the circumstances.

MR DUNNING: Certainly. And might I inquire if we would take your Honour as having made that decision now in case time matters?

HIS HONOUR: Yes. I would prefer to make that decision now- - -

MR DUNNING: Yes, I understand.

HIS HONOUR: - - and then give more fulsome reasons at a later date - - -

MR DUNNING: Yes. I understand.

HIS HONOUR: -- - so the parties can move on.

MR DUNNING: Thank you.

(emphasis added)

174    It may be seen from these two passages that the Magistrate gave two reasons for dismissing Mr Palmer's application that the complaint and summons relating to the PUP Payments Prosecution be summarily dismissed. The first reason was that the Magistrate did not have the power to summarily dismiss the complaint and summons. The second was that, even if the Magistrate did have that power, he would not have exercised it in any event.

175    The second reason given by the Magistrate for dismissing Mr Palmer's application for summary dismissal means that even if this Court were to find, favourably to Mr Palmer, that on the proper construction of the relevant provisions of the Justices Act the Magistrate did have the power to summarily dismiss the complaint and summons, and were to make an order quashing the Magistrate's decision and remitting the matters to which that decision relates for further consideration and determination according to law, Mr Palmer could not achieve a different result. The Magistrate's conclusion that he would not have summarily dismissed the complaint even if he had the power to do so would remain unaffected by those orders. Further, in circumstances in which Mr Palmer does not contend that the Magistrate fell into jurisdictional error in concluding that he would not have summarily dismissed the complaint even if he had found that he had the power to do so, it would not be open to this Court to make the order sought by Mr Palmer directing the Magistrate to dismiss the complaint and summons. On Mr Palmer's own case, the Magistrate's decision that he would not summarily dismiss the complaint and summons even if he had the power to do so was a decision made within jurisdiction.

176    Mr Palmer submits, however, that notwithstanding the above passages taken from the transcript of the proceedings the Magistrate did not in fact decide that he would not have summarily dismissed the complaint and summons even if he had the power. In order to understand Mr Palmer's submission in that regard it is necessary to reproduce what the Magistrate said when the proceedings were reconvened over two months later:

HIS HONOUR: Thank you. This is the matters of the Australian Securities Investment Commission v Clive Frederick Palmer and Palmer Leisure Corporation. Mr Palmer and Palmer Leisure Corporation are facing a number of charges by way of the Commonwealth Criminal Code, the Corporations Act, the Criminal Code of Queensland. On the 1st of August, I heard an application for dismissal of certain charges - or of those charges brought by the Australian Securities Investment Commission against Mr Clive Frederick Palmer and Palmer Leisure Corporation. After hearing final submissions from both defence and prosecution, I advised that I did not consider the Magistrates Court has jurisdiction to dismiss the charges pre-committal hearing and the application for dismissal was dismissed and would provide my reasons at a later date. These are those reasons.

Representing the applicant-defendants was Mr Dunning of King's Counsel with Mr Byrne of counsel, instructed by Alexander Law and Robinson Nielsen. Representing the respondent prosecution was Ms McDonald of Senior Counsel with Ms Freeman and Mr Tam of counsel, instructed by the Commonwealth Director of Public Prosecutions. In support of the application was the defendant's outline of submissions filed 24 July 2024, the defendant's outline of submissions in reply dated 31 July °'24, and further to those written submissions were the oral submissions made by Mr Dunning of King's Counsel. In opposition to the application was the prosecution outline of submissions filed 23 July '24 and the prosecution's reply submissions filed 30 July 2024. There was also the oral submissions of Ms McDonald of Senior Counsel. I was also provided with bundles of authorities to be relied upon by both defence and prosecution.

The basis for the application for dismissal was the alleged lack of particulars of the offences and/or ambiguity of the particulars which were said to be prejudicial to the defendants in them properly defending the charges. The Magistrates Court is an inferior court. That is, it does not have the inherent jurisdiction of the superior courts, such as the Supreme Court. The powers and duties of the Magistrates Court must be conferred by its constituting statutes. The restriction of the Magistrates Court is outlined distinctly in the separate reasons of their Honours Justices McPherson and Keane in that authority of Higgins v Comans, Acting Magistrate [2005] QCA 234.

With regard to this court's powers to summarily dismiss the charges, I was firstly taken to section 22A of the Justices Act, which is entitled Jurisdiction of the Magistrates Court and provides that, 'Magistrates Courts are to have the civil, criminal and other jurisdictions', subsection (a), 'that Courts of Petty Sessions or justices sitting in Petty Sessions had before the commencement of the Justices Amendment Act 1964', and subsection (b), 'that is conferred on them by this Act and other Acts'.

Then I was taken to the High Court decisions: firstly of Johnson v Miller [1937] 59 CLR 467 and Davies v Ryan [1933] 50 CLR 379. Both of those authorities dealt with circumstances where it was said that there was a lack of particulars of the charges and a court of summary jurisdiction or Court of Petty Sessions exercised its power to dismiss them: such power being provided by - to this court, it is said, by way of the jurisdiction under section 22A(a) of the Justices Act by way of a Court of Petty Sessions. Indeed, it was put that those decisions were authority that the court not only has the power to dismiss in circumstances of lack of particulars or ambiguity but has an obligation to exercise its powers to dismiss in such circumstances.

Upon my reading of both of those authorities, the court in those instances were dismissing the charge or charges due to a lack of particulars at the hearing of those matters. That is to be distinguished from this proceeding before me where we were not yet at the committal stage of proceeding, let alone the hearing of the charges. We are, in effect, still at what can be referred to as pre-committal. Noting the limit of jurisdiction in the Magistrates Court that the authorities are clear the court does not have the express or implied power to stay a proceedings [indistinct] I find that the Magistrates Court does not, by way of section 22A of the Justices Act, have the power at the pre-committal stage to dismiss charges.

With regard to the submission of, 'Magistrates Court has the implied power or, indeed, again, a duty to dismiss a charge', I was then taken to 130 - 103B of the Justices Act. That section coming within part 5, division 5 of the Justices Act. That being by way of sections 103B through to section 111. Those sections provide the mechanisms by which a matter proceeds to a committal with cross-examination. Section 103B comes with the heading Magistrate's Supervisory Role with subsection (1) providing, 'A magistrate has an overall supervisory responsibility for any committal proceeding coming before a Magistrates Court at a place where the magistrate is appointed to constitute a Magistrates Court.'

I note that section 104, subsection (2) of the Justices Act provides, 'When, upon such an examination all the evidence to be offered on behalf - on', sorry, 'the part of the prosecution had been adduced and the evidence, in the opinion of the justices then present, is not sufficient to put the defendant upon trial for any indictable offence, the justices shall order the defendant, if the defendant is in custody, to be discharged as to the discharge of that subject of that examination.' That is what is commonly referred to as a no-case-to-answer submission and it's restricted to the court being able to consider all of the evidence offered on behalf of the prosecution.

Indeed, his Honour Justice Callaghan considered that such would be the case in his authority which can be found at section 85 of his decision. Again, having regard to the submissions of the parties and the authorities I was taken to, I do not consider that the supervisory role of the magistrate provided at section 103B of the Justices Act can be interpreted widely or broadly enough to provide power for dismissal. I do consider that should Parliament consider it appropriate to enable the Magistrates Court to have summary dismissal powers, then specific or express provision for such would be made through the Justices Act and it is not.

Further to the above, my consideration of the submissions and authorities relied upon by both defence and prosecution, I undertook my own research into the breadth of the court's power to dismiss. In doing so, I had cause to read the review into the civil and criminal jurisdiction of the Magistrates Court handed down by the Honourable Martin Moynihan AO QC in December 2008, as well as the recent criminal procedure review of Magistrates Courts undertaken by retired judge Michael Shanahan AM released in June of this year. Both the review and the report refer to the Magistrates Court having the ability to dispose of a charge or charges at the end of the prosecution case at a committal and neither makes reference or recommends any change providing for summary dismissal before the Magistrates Court.

As provided on the 2nd of August 2024, I'm not satisfied that the Magistrates Court has the power to dismiss as sought by defence and accordingly, the application to dismiss is dismissed. Okay. That's out of the way. I do apologise how long that took me to get there too. I was hoping to get it much earlier, and I do note the review has already been made. I saw my name in lights across the courtyard.

177    Mr Palmer submits that it should be concluded that the above passage constitutes the reasons, and the only reasons, the Magistrate gave for dismissing his application to summarily dismiss the complaint and summons. Mr Palmer makes that submission because the Magistrate did not in those reasons say anything about whether he would have dismissed the complaint and summons in any event even if he had found that he had the necessary power. However, I do not accept Mr Palmer's submissions.

178    Immediately after hearing from the parties the Magistrate made a final decision to dismiss Mr Palmer's application to summarily dismiss the complaint and summons. The Magistrate was clearly keen to ensure that a final decision was made as soon as possible to avoid delaying the prosecution any further. However, the Magistrate was also at pains to ensure that the parties were given at least a basic understanding of the reasons why he had reached that conclusion. Then, in circumstances in which senior counsel very clearly flagged that consideration would need to be given by Mr Palmer to the question of whether the Magistrate's decision should be challenged, the Magistrate again reiterated that he was of the view that he did not have the power to summarily dismiss the complaint and summons and that even if he did have that power he would not have exercised it in all of the circumstances.

179    It may be accepted that when the Magistrate came to give fuller reasons for dismissing Mr Palmer's application to summarily dismiss the complaint and summons, he did not again say that he would have done so even if he had the power to do so. However, it does not follow that the Magistrate somehow walked back the earlier reasons he had given for refusing to summarily dismiss the complaint and summons. In my view, as the parties' attention during the two days of argument before the Magistrate was focussed on the question of whether there was power to summarily dismiss the complaint and summons, the Magistrate gave fuller reasons for reaching the conclusion that he did not have that power. As he had previously made it pellucidly clear that he would have refused to exercise such a power in any event, it was plainly unnecessary for him to simply repeat that for a third time.

180    While I am of the view that the Magistrate's decision that he would not have summarily dismissed the complaint and summons in any event is of itself a sufficient reason to exercise my discretion to dismiss the Palmer Proceedings, I should also record that I am not persuaded that there are any other exceptional, special or compellable reasons that justify, in the interests of justice, the Court overcoming the restraint that it must show against fragmenting the criminal proceedings that are underway in the Magistrates Court.

181    I am not satisfied that the issues Mr Palmer has with the prosecution's alleged changes of position and inability to formulate, articulate and properly particularise the charges in the complaint the subject of the PUP Payments Prosecution, amount to exceptional, special or compellable reasons that would justify the fragmentation of the criminal proceedings by exercising the power under s 23 of the FCA Act to make any of the orders sought in the Palmer Application.

182    The magistrate who, pursuant to s 103B(1) of the Justices Act, will have 'overall supervisory responsibility for any committal proceeding coming before a Magistrates Court' will be best placed to deal with any issues about the fairness of the committal proceeding, including any contention that Mr Palmer's ability to defend himself is compromised because of the way in which the charges are or have come to be formulated, articulated and particularised. Further, in the exercise of that responsibility, a supervising magistrate will be best equipped to deal with any contention that the way in which the charges have been formulated will in any other respect deny Mr Palmer an 'efficacious committal', including because of any effect it may have on Mr Palmer's ability to challenge the evidence sought to be relied on by the prosecution, including by challenging its admissibility. That is, after all, among the things a supervising magistrate is required to do.

183    The supervising magistrate will also be required to reach opinions under ss 104(2) and 108(1) of the Justices Act about whether the evidence adduced is sufficient to put Mr Palmer on trial for any indictable offence and, if not, to discharge Mr Palmer 'as to the charge the subject of the examination' in the committal proceeding. In reaching an opinion under ss 104(2) and 108(1) the supervising magistrate will necessarily need to give consideration to the way in which the charge has been formulated, articulated and particularised and, if the issue is raised, whether 'the charge the subject of the examination' charges Mr Palmer with an offence known to the law.

184    In my view there is nothing exceptional, special or compelling in the circumstances of this case that the interests of justice warrant this Court's interference with a magistrate's overall supervisory responsibility for a committal proceeding in relation to the charges that are the subject of the complaint and summons in the PUP Payments Prosecution.

185    Mr Palmer's submission that the question of whether a magistrate who has overall supervisory responsibility for a committal proceeding has power to summarily dismiss a complaint during such a proceeding is a serious question of public importance rises no higher than a mere assertion. It is important to appreciate that Mr Palmer does not contend that the Magistrates Court does not have jurisdiction to conduct the committal proceeding. Specifically, he does not in these proceedings seek judicial review in relation to any aspect of the commencement of the proceedings in the Magistrates Court or of the subsequent conferral of supervisory responsibility on a magistrate for the committal proceedings under s 103B(1) of the Justices Act. Instead, Mr Palmer seeks to challenge the Magistrate's decision that he did not have power to summarily dismiss the complaint. In circumstances in which there is no question that a supervising magistrate does have an express statutory power under ss 104 and 108 of the Justices Act to discharge a defendant as to the charge the subject of committal proceedings if the evidence is not sufficient to put the defendant on trial for any indictable offence, an unsupported assertion that there is a public importance to decide whether there is a further power to summarily dismiss such a charge does not constitute an exceptional, special or compellable reason why this Court should conclude that it is in the interests of justice to fragment the pending criminal proceedings.

Conclusion

186    In all of the circumstances I grant the Commonwealth Parties leave to amend the interlocutory application filed on 30 September 2025 in terms of the amended interlocutory application filed on 18 December 2025. For the reasons I have given I allow that application by making an order in terms of para 2B of the amended interlocutory application that the Palmer Application be dismissed in the exercise of the Court's discretion pursuant to s 23 of the FCA Act. As I would make an order in terms of para 2B of the amended interlocutory application it is unnecessary to consider whether I would make any of the orders sought in paras 1, 2 or 2A of that application.

187    I will make further orders requiring the parties to file a joint minute of agreed orders or, failing agreement, competing minutes of proposed orders to deal with any question of costs.

Associate:

Dated:    5 August 2026