Clyne v Director of Public Prosecutions (Cth) [1984] HCA 56

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Clyne v Director of Public Prosecutions (Cth) [1984] HCA 56

ORDER Demurrer allowed. Judgment for the defendants in the action with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 3 Gibbs C.J.

Before the Court is a demurrer to the statement of claim filed by the plaintiff in an action commenced in the original jurisdiction of this Court. The statement of claim alleges that the plaintiff has been charged with a breach of reg. 40 of the Banking (Foreign Exchange) Regulations ("the Regulations") made in intended exercise of the powers conferred by the Banking Act 1959 Cth, as amended ("the Act"), and has been committed for trial before the District Court of New South Wales. The first defendant, the Director of Public Prosecutions for the Commonwealth, has taken over the prosecution and has informed the plaintiff that a bill of indictment is to be presented. The plaintiff claims that reg. 42 of the Regulations is ultra vires and null and void and that therefore a breach of reg. 40 would not expose him to any penalty or punishment. He claims a declaration that regs. 40 and 42 are void and an injunction restraining the first defendant from proceeding with the trial.

This Court has in a number of cases said that it is wrong that the ordinary course of proceedings in the criminal courts should be interrupted by applications for declarations as to questions that will or may arise in the criminal proceedings: see Crouch v. The Commonwealth [1] and Sankey v. Whitlam [2] ; cf. Reg. v. Iorlano [3] . In the present case it would have been open to the defendants to apply to stay the proceedings as vexatious or as an abuse of the process of the Court. However no such application was made, and the defendants chose to demur. Now that the demurrer has been set down for hearing before us it is convenient to determine it.