yro IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY No. G193 of 1983 BETWEEN PETER LEOPOLD CLYNE Applicant AND EARDLEY MURRAY SCOTT (S.M.) First Respondent AND PAUL JAMES HOLDING Second Respondent CORRIGENDA Amendment to the judgment of Beaumont, J. of 6 October, 1983. In Orders, where"date orders made"appears, substitute "6 October, 1983" for "5 October, 1983". In Reasons for Judgment, where "Dated" appears on first page, substitute "6 October, 1983" for "5 October, 1983". On page 2 line 7 where "bail on 11 December, 1983" appears Dua Chay Diana Chang Associate to Mr. Justice Beaumont substitute "ll December, 1982". IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY No. G193 of 1983 BETWEEN PETER LEOPOLD CLYNE Applicant AND EARDLEY MURRAY SCOTT (S.M.) First Respondent AND PAUL JAMES HOLDING Second Respondent ORDERS JUDGE MAKING ORDERS: Beaumont, J. DATE ORDERS MADE: 5 October, 1983. WHERE MADE: Sydney THE COURT ORDERS THAT: 1. Order that the application for review and application for interim stay of proceedings be adjourned to Monday, 17 Octeber, 1983 at 9.30 a.m. for mention only in the first instance but with a view to fixing a date for a final hearing of the application for review should that be appropriate. 2. Costs be reserved. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION NEW SOUTH WALES DISTRICT REGISTRY NO. G1¢3 of 1983 BETWEEN PETER LEOPOLD CLYNE Applicant AND EARDLEY MURRAY SCOTT (S.M.) First Respondent AND PAUL JAMES ECLDING Second Respondent CCRAM: BEAUMONT, J. DATED: 5 October, 1983. REASONS FOR JUDGMENT This 1s an application made pursuant to s.15(1)(b) of the Administrative Decision (Judicial Review) Act, 1977 to stay all proceedings under a decision made by the first respondent sitting as stipendiary magistrate. The proceedings in which the decision was made were instituted under an informstion dated 10 December, 1982 and charged the applicant with a breach of Regulation 40 of the Banking 2. (Foreign Exchange) Regulations made under the Banking -Act, 1959. The information gave particulars of an alleged false statement said to be contrary to Regulations 40 and 42. The information was exhibited on 10 December, 1982 and on thesame day a warrant was issued for the apprehension of the applicant. The applicant was arrested on that day but released on bail on 11 December, 163,) Although the applicant first appeared before a Court of Petty Sessions on 13 December, 1982 when he was remanded until 20 December, 1982, the consent of the Treasurer to the insitution of the proceedings as required by s.70 of the Banking Act, 1959, was not given until 16 December, 1982. Committal proceedings were commenced before the first respondent on 4 July, 1983 and the hearing of those proceedings continued on 5 and 6 July, 1983. Some evidence was taken but a number of preliminary submissions were made on behalf of the applicant. A decision on these preliminary submissions was reserved. On 20 July, 1983 the first respondent rejected the preliminary submissions and held that he _ had jurisdiction to proceed in the matter for the reasons he then gave. Cn 21 July, 1983 the applicant filed his @épplication in this Court for an order of review of the decision of the first respondent made on 20 July, 1983 under the provisions of the Administrative Decision (Judicial Review) Act, 1977. The matter was adjourned from time to time in this Court. One reason for its adjournment was that the parties were awaiting the outcome of the appeal to a Full Court of this Court from the decision of St. John, Jd. in Moss v. Brown (1983) 47 A.L.R. 217. It was accepted that if that appeal were successful, it would probably result in the dismissal of this application for review on the ground that this Court lacked jurisdiction. In support of his application for a stay, the applicant submits that, by reason of three points of law gcoing to jurisdiction, he has established a sufficiently arguable case to warrant the grant of a stay of proceedings under the decision of the first respondent holding that he has jurisdiction to proceed in the matter. The points are developed at length in written submissions which were made by the applicant to the first respondent and which were made available in this application. In essence, the points are as follows: 1. Although the information was exhibited on 10 December, 1982, the consent of the Treasurer as reguired by s.70 of the Banking Act, 1959, was not obtained for some days thereafter and it follows, by reason of the provisions of s.70(1), that the proceedings are bad (see McDonnell v. Smith (1918) 24 C.L.R. 409). Further, s.70(3) has no application since it 1s limited in its operation to the grant of immunity from suit to those invclved in the arrest. 4. 2. The information 1s bad because the informant was not an officer of the Reserve Bank, these being proceedings brought under regulations administered by that Bank (cf. Crimes Act, 1914, s.13). 3. Regulation 42 of the Banking (Foreign Exchange) Regulations is invalid. The source of power to make this regulation is s.39(2)(q) and Regulation 42 does not "prescribe" a penalty for that purpose (see Borowski v. Veales Automotive Engineers Pty. Ltd. [1979] WAR 33). In the light of the conclusion I have ultimately reached as to the proper course to be taken in this proceeding at this stage, it 1s not necessary that I express any view at all on any of the points raised and I do not propose to do so. In my opinion, the proper exercise, at this stage, of the discretion given to the Court by s.15(1)(b) 1s to adjourn the application for a stay for a short period in the expectation that judgment will shortly be given in the appeal in Moss v. Brown. The fate of that appeal is expected to be known next week. Thereupon, the question of jurisdiction should, in the main, be resolved. If jurisdiction here is established, full consideration may then be given to the three points which have been argued by the applicant. If jurisdicticn is not established, presumably only the guestion of ccsts will remain fer decision. If a short adjournment of the stay application were granted, it would seem that the applicant would suffer relatively little, if any, prejudice: the probabilities are that, although, of course, a matter for him, the first respondent will adjourn the further hearing of the proceedings until at least judgment is given in the appeal in Moss. v. Brown; even if that hearing proceeds temporarily, the applicant appears there in person and will not incur professional expenses in that behalf. On the other hand, it is at least possible that, if the committal hearing proceeds, the applicant will wish to raise further points for review by this Court and there 1s merit in the suggestion that all points to be raised for review should be dealt with in a single hearing. For these reasons, in my view, the balance of convenience suggests that no stay be granted at this stage but that the application for a stay be adjourned for a short period so that the applicant may renew his application if he sees fit to do so. I should indicate that I would be able to hear the application for review on a final hearing basis in the week commencing 17 #£2October, 1983, assuming jurisdiction is established. I propose to make these orders: l. Crder that the application for review and ree 6. application for interim stay of proceedings be adjourned to Monday, 17 Cctober, 1983 at 9.30 a.m. for mention only in the first instance but with a view to fixing a date for a final hearing of the application for review should that be appropriate. 2. Costs reserved, | certify that this and the 5 preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. (Da ay ane Associkite Dated 6 Octsver 1987 ses <I '