Matthews v ASIC [2009] NSWCA 155

Appeal Outcome: Special leave dismissed with costs by the High Court, 17 August 2009 s183/2009

New South Wales Court of Appeal

CITATION: Matthews v ASIC [2009] NSWCA 155

HEARING DATE(S): 27 May 2009

JUDGMENT DATE: 22 June 2009

JUDGMENT OF: Tobias JA at 1; Basten JA at 151; Campbell JA at 194

DECISION: Appeal dismissed with costs

CATCHWORDS: PROCEDURE – Contempt, attachment and sequestration – Contempt – What constitutes –Disobedience of orders of court – Procedure – Difference between civil and criminal contempt – Statement of charge – Facts required to be proved to establish charge – Elements of charge – Whether information in charge comprised elements or particulars of charge – Whether all particulars of charge required to be made out for each element of charge to be proven – Evidence – Burden and standard of proof – Whether each element of charge proved beyond reasonable doubt – Interpretation – Construction of court orders – Whether primary judge erred in construing orders in accordance with definitions and terminology in Corporations Law – Whether primary judge erred in substituting a reference in orders to repealed Corporations Law for Corporations Act – Construction of phrase "undertaking a business" – Whether sending letter to 1,650 recipients containing investment advice amounted to undertaking a business of advising about and dealing in securities - APPEAL – Appeal against sentence – Grounds for interference – Whether primary judge attributed suitable weight to various matters – Bail – Application for bail – Power of Court of Appeal to grant bail in respect of committal for contempt pending determination of appeal and effect of any such grant of bail

Bail Act 1978 Civil Procedure Act 2005 Companies Act 1938 (Vic) LEGISLATION CITED: Corporations Act 2001 (Cth) Corporations Law Occupational Health Safety and Welfare Act 1986 (SA) Supreme Court Act 1970 Supreme Court Rules 1970