Director of Public Prosecutions (Cth) v JM [2013] HCA 30

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) APPLICANT

AND

JM RESPONDENT

Director of Public Prosecutions (Cth) v JM [2013] HCA 30 27 June 2013 M73/2012

ORDER

1. Special leave to appeal granted.

2. Special leave to cross-appeal granted.

3. Appeal and cross-appeal each treated as instituted and heard instanter.

4. Appeal allowed and cross-appeal allowed in part.

5. Set aside paragraphs 1 and 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 14 June 2012 and the orders of the Court of Appeal of the Supreme Court of Victoria made on 28 June 2012, insofar as those orders answered the reformulated question reserved, and, in their place, order that the questions reserved by Weinberg JA on 21 October 2011 are answered as follows:

Question 1: For the purpose of s 1041A of the Corporations Act 2001 (Cth), is the price of a share on the ASX which has been created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price for that share on the ASX an "artificial price"?

Answer: Yes.

Question 2: Was the closing price of shares in [X Ltd] on the ASX on 4 July 2006 an "artificial price" within the meaning [of] s 1041A(c) of the Corporations Act 2001 (Cth)?

Answer: Yes.

Question 3: Was the price of shares in [X Ltd] on the ASX on 4 July 2006 maintained at a level that was "artificial" within the meaning of s 1041A(d) of the [Corporations Act 2001 (Cth)]?

Answer: Yes.

On appeal from the Supreme Court of Victoria

Representation

O P Holdenson QC with G A Hill and C J Winneke for the applicant (instructed by Director of Public Prosecutions (Commonwealth))

M K Moshinsky SC with M I Borsky for the respondent (instructed by Clayton Utz Lawyers)