Geoffrey William VINES v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION [2007] NSWCA 126

Reported Decision: 63 ACSR 505(2007) 25 ACLC 867

New South Wales Court of Appeal

CITATION: Geoffrey William VINES v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION [2007] NSWCA 126

HEARING DATE(S): 10 November 2006, 16 November 2006, 17 November 2006

JUDGMENT DATE: 22 June 2007

JUDGMENT OF: Spigelman CJ at 1; Santow JA at 128; Ipp JA at 206

DECISION: 1 Appeal allowed in part; 2 Set aside Order 1 made by Austin J on 9 August 2006; 3 Vary Order 2 made by Austin J on 9 August 2006 by deleting "$100,000" and substituting "$50,000"; 4 Cross-Appeal dismissed; 5 The Respondent/Cross-Appellant pay the Appellant's/Cross-Respondent's costs of the Appeal from the Penalty Judgment and of the Cross Appeal.

CATCHWORDS: APPEALS – Appellate review principles - Interference with discretionary judgment of the court below – Discretion under s1317EA(4) Corporations Act – where court is required to be "satisfied" of a matter then appellate court must exercise restraint, s1317EA(4) Corporations Law - CORPORATIONS – Management and Administration – Contravention of civil statutory duty established – Civil statutory penalty for breach of duty - s1317EA(4) Corporations Act – fit and proper person threshold – findings of contravention not be treated as a presumption of absence of fitness and propriety – strong weight of positive character evidence – evidence of lack of dishonesty and impropriety – evidence of skill and propriety in subsequent management. - CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – Fiduciary and related statutory duties – Remedies and penalties for breach of duty – Civil statutory penalties – meaning of "serious" contravention, s1317EA(5) Corporations Law – relevance of consequences of contravention – relevance of degree of departure from requisite standard of care and diligence – degree of negligence higher than to establish civil liability - CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – Fiduciary and related statutory duties – Remedies and penalties for breach of duty – Civil statutory penalties – imposition of separate penalties for each contravention where multiple contraventions found – analogous to principle of totality in sentencing - WORDS AND PHRASES - "satisfied" – s1317EA(4) Corporations Law - "serious" – s1317EA(5) Corporations Law