Chapel Road Pty Limited v Australian Securities Investments Commission (No 10) [2014] NSWSC 346

Supreme Court New South Wales

Medium Neutral Citation: Chapel Road Pty Limited v Australian Securities Investments Commission (No 10) [2014] NSWSC 346 Hearing dates: 18 November 2013, 19 November 2013, 20 November 2013, 21 November 2013, 22 November 2013, 25 November 2013, 26 November 2013, 27 November 2013, 28 November 2013, 2 December 2013 and 3 December 2013 Decision date: 28 March 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Chapel Road's statement of claim is dismissed. The usual order as to costs is that they follow the event. In the event that the parties wish to be heard on that order they should approach within 14 days, otherwise that will be the Court's order. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: TORTS - malicious prosecution - misfeasance in public office - elements of tort - revocation of security dealer's licence - whether plaintiff pleaded case it pressed - can tort of misfeasance in public office be established by aggregating the conduct of various ASIC officers as plaintiff sought to do - statutory framework - the elements of tort of misfeasance in public office - plaintiff's approach to the tort not available - whether factual findings sought can be made - credit issues - Jones v Dunkel inferences - expert evidence - ASIC's practises in 1999 - expert's views - Regulation 7.3.02 of Corporations Law - compliance system - whether decision to commence second surveillance motivated as alleged - whether conduct of ASIC officers in second surveillance was conducted and motivated as alleged - whether decision to use results of second surveillance for revocation of or imposition of conditions upon plaintiff's licence motivated as alleged - whether decision of the delegate to revoke licence motivated as alleged - damages - causation - expert evidence as to valuation - orders Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Corporations Law (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 Australian Securities Commission v Kippe [1996] 67 FCR 499; 137 ALR 423 Australian Securities and Investments Commission v Whitlam (No 2) [2002] NSWSC 718; 42 ASCR 515 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Chapel Rd v ASIC [2006] NSWSC 1014 Chapel Road v ASIC (No 2) [2007] NSWSC 975; Aust Torts Reports 81-912 Chapel Rd Pty Ltd v Australian Securities and Investments Commission (No 6) [2012] NSWSC 511 Chapel Road Pty Limited v Australian Securities Investments Commission (No 7) [2012] NSWSC 584 Cornwall v Rowan [2004] SASC 384; 90 SASR 269 Dasreef Pty Ltd v Hawcher [2011] HCA 21; 243 CLR 588 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 Fabre v Arenales (1992) 27 NSWLR 437 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Leinenga v Logan City Council [2006] QSC 294 Luxton v Vines [1952] HCA 19; 85 CLR 352 Minister of Aboriginal and Torres Strait Islander Affairs of the Commonwealth of Australia v Malcolm Mcdonald Douglas and Valerie Anne Douglas and Francis Djaigween, Frank Sebastian, Mathew Gilbert and Joe Bernard [1996] FCA 1509 (28 May 1996) Manly Council v Byrne and Anor [2004] NSWCA 123 McLachlan v Australian Securities & Investments Commission [1999] FCA 244; 85 FCR 286 Moder v Commonwealth of Australia [2012] QCA 92; 261 FLR 396 Neilsen v The City of Swan [2006] WASCA 94; 147 LGERA 136 Northern Territory v Mengel [1995] HCA 65; 185 CLR 307 Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129 Sanders v Snell [1998] HCA 64; 196 CLR 329 Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 200 CLR 121 Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCA 152. Three Rivers District Council v Bank of England No 3 [1000] 3 All ER 1 Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Category: Principal judgment Parties: Chapel Road Pty Limited (Plaintiff) Australian Securities Investments Commission (Defendant) Representation: Counsel: Mr A Black SC with Mr I Todd and Mr S Walsh (Plaintiff) Mr NJ Williams SC, Mr JR Clarke SC and Mr TL Phillips Solicitors: Creagh & Creagh (Plaintiff) Ashurst Australia (Defendant) File Number(s): 2006/266784 Publication restriction: None