Matthews v ASIC

[2009] NSWCA 155

NSW Court of Appeal

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Interrogate

Catchwords

1. Contempt of Court
2. › Civil contempt
3. › Disobedience of court orders
4. › Statement of charge
5. › Distinction between elements and particulars of charge
6. › Whether all particulars required to be proved for charge to be established
7. › Supreme Court Rules 1970 (NSW), Pt 55 r 6
1. Contempt of Court
2. › Civil contempt
3. › Disobedience of court orders
4. › Standard of proof
5. › Whether primary judge applied criminal standard of proof beyond reasonable doubt to each element of charge
6. › Whether failure to use express words importing criminal standard vitiates finding
1. Contempt of Court
2. › Civil contempt
3. › Disobedience of court orders
4. › Construction of court orders
5. › Whether consent orders to be construed by reference to statutory definitions in Corporations Law on which they were founded
6. › Whether reference to repealed Corporations Law should be read as reference to Corporations Act 2001 (Cth)
7. › Corporations Act 2001 (Cth), s 1384B
1. Contempt of Court
2. › Civil contempt
3. › Disobedience of court orders
4. › Construction of phrase 'undertaking a business'
5. › Whether sending 1,650 identical letters containing investment advice constituted undertaking a business of advising about and dealing in securities
6. › Whether preparatory steps to a business constitute undertaking a business

Quick Take

In contempt proceedings, a charge need only establish the essential elements of breach of the relevant order; additional allegations specifying the mode or mechanism of breach are particulars, not elements, and need not all be proved provided those established are sufficient to constitute proof of the essential elements. Posting 1,650 identical letters containing investment advice and soliciting commercial transactions constitutes 'undertaking a business' even where no transaction has been completed, where the solicitation is methodical, systematic and undertaken with a view to financial gain. Consent orders employing statutory terminology are to be construed by reference to the statutory definitions in force when the orders were made, and orders made under the repealed Corporations Law continue to have effect under s 1384B(1) of the Corporations Act 2001 (Cth).