Following an ASIC investigation, Mr Clive Frederick Palmer, 63, of Broadbeach Waters in Queensland, has been charged with breaching takeover law arising from a proposed takeover of The President's Club Ltd (TPC).
Palmer Leisure Coolum Pty Ltd (Palmer Leisure Coolum), previously known as Queensland North Australia Pty Ltd, has also been charged over the proposed takeover.
ASIC alleges that in April 2012 PLC publicly proposed to make a takeover bid for securities in TPC but subsequently did not make an offer for those securities within two months, as required under section 631(1) of the Corporations Act 2001. Mr Palmer, a director of Palmer Leisure Coolum, has been charged with contravening section 631(1) - through the operation of section 11.2 of the Criminal Code - for aiding, abetting, counselling or procuring the company to commit that offence.
The charges carry a maximum penalty of two years' imprisonment and fine of $11,000 for an individual, and fines of $55,000 in respect of a corporation.
The matter has been listed for a pre-trial hearing before the Brisbane Magistrates’ Court on 13 June 2018.
An application has been made by Mr Palmer and Palmer Leisure Coolum to the Supreme Court of Queensland for the charges to be permanently stayed, with the application returnable before that court on 19 April 2018.
The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.
Background
TPC operated a 'time share' scheme at a property previously known as Hyatt Regency Coolum, and now known as Palmer Coolum Resort.
On 12 April 2012, Queensland North Australia Pty Ltd (now known as Palmer Leisure Coolum Pty Ltd) lodged a bidder’s statement with ASIC that proposed a bid for all of TPC’s shares and the corresponding villa interests.
Section 631(1) of the Corporations Act requires that offers for the securities under a takeover bid must be made within two months after the public proposal of the takeover bid.
No offer was made by Queensland North Australia Pty Ltd to TPC’s members within this period, which commenced on 12 April 2012 (being the date of the public proposal of the takeover bid).
Editor's note:
On 12 April 2018, Clive Palmer and Palmer Leisure Coolum Pty Ltd filed with the Supreme Court of Queensland a Notice of Discontinuance in relation to their application to permanently stay the charges.
On 25 May 2018, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and adjourned for a pre-trial hearing on 13 June 2018.
Editor's note 2:
On 13 June 2018, the Brisbane Magistrates' Court listed the matter for a directions hearing on 30 August 2018.
Editor's note 3:
On 30 August 2018, the Brisbane Magistrates’ Court listed the matter for a committal mention on 21 September 2018.
Editor's note 4:
On 19 September 2018, Palmer Leisure Coolum Pty Ltd and Mr Palmer filed a statement of claim with the Queensland Supreme Court seeking orders for, among other things, the permanent stay of the criminal proceedings before the Brisbane Magistrates’ Court.
On 21 September 2018, the Brisbane Magistrates’ Court listed the criminal proceedings for mention on 2 November 2018.
Editor's note 5:
On 31 October 2018, ASIC and the CDPP filed an application before the Queensland Supreme Court to stay or set aside the application filed by Mr Palmer and PLC on 19 September 2018 on the basis that it lacks a reasonable cause of action, is scandalous, is frivolous or vexatious and is otherwise an abuse of the process of the court (alternatively, that the whole of the statement of claim filed by Mr Palmer and PLC, or relevant parts of it, be struck out on the same basis). The application made by ASIC and the CDPP is listed to be heard on 4 December 2018.
On 2 November 2018, the Brisbane Magistrates’ Court listed the criminal charges against Mr Palmer and PLC for mention on 25 January 2019.
Editor's note 6:
On 23 January 2019, the Queensland Supreme Court ordered that the claims made by Mr Palmer and Palmer Leisure Coolum be set aside and their statements of claim be struck out. Read the court's judgement here.
Editor's note 7:
On 25 January 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for mention on 22 February 2019.
Editor's note 8:
On 12 February 2019, Mr Palmer and Palmer Leisure Coolum filed notices of appeal with Court of Appeal of the Supreme Court of Queensland in relation to the judgment delivered on 23 January 2019.
Editor's note 9:
On 22 February 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for a further mention on 28 June 2019.
Editor's note 10:
On 8 March 2019, the Court of Appeal of the Supreme Court of Queensland directed that the appeals filed by Mr Palmer and Palmer Leisure Coolum Pty Ltd be set down for a hearing on 4 June 2019.
Editor's note 11:
On 4 June 2019 the Court of Appeal of the Supreme Court of Queensland heard the appeals of Mr Palmer and Palmer Leisure Coolum Pty Ltd. The Court reserved its decision.
Editor's note 12:
On 28 June 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 2 August 2019.
Editor's note 13:
On 2 August 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 20 September 2019 and granted bail to Mr Palmer on his own undertaking.
Editor's note 14:
On 20 September 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 13 December 2019.
Editor's note 15:
On 13 December 2019, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 3 April 2020.
Editor's note 16:
On 17 March 2020, the Court of Appeal of the Supreme Court of Queensland dismissed the appeals of Mr Palmer and Palmer Leisure Coolum with costs. Read the court's judgment here.
Editor's note 17:
On 2 April 2020, the Brisbane Magistrates’ Court adjourned the criminal proceedings to a date to be fixed and, on 14 April 2020, listed the matter for further mention on 26 June 2020.
On 14 April 2020, Mr Palmer and Palmer Leisure Coolum filed applications with the High Court of Australia for special leave to appeal in relation to the judgement delivered on 17 March 2020 by the Queensland Court of Appeal.
Editor's note 18:
On 26 June 2020, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 27 November 2020.
Editor's note 19:
On 5 August 2020, the High Court of Australia refused the Applications for Special Leave made by Mr Palmer and Palmer Leisure Coolum.
Editor's note 20:
On 27 November 2020, the Brisbane Magistrates’ Court listed the criminal proceedings for further mention on 11 March 2021.
Editor's note 21:
On 11 March 2021, the Brisbane Magistrates’ Court adjourned the matter to 11 June 2021.
Editor’s note 22:
On 1 June 2021, Palmer Leisure Coolum and Mr Palmer filed a statement of claim with the Queensland Supreme Court seeking declarations and orders in a further attempt to stay the criminal proceedings before the Brisbane Magistrates’ Court.
Palmer Leisure Coolum and Mr Palmer are pleading, among other things, that the prosecution would bring the administration of justice into disrepute by reason of the orders and judgment of the Federal Court of Australia on 23 and 25 November 2020, which resolved the litigation between Palmer Leisure Coolum, TPC and others.
Editor’s note 23:
On 11 June 2021, the Brisbane Magistrates’ Court adjourned the matter for further mention on 17 September 2021.
Editor's note 24:
On 29 June 2021, ASIC and the CDPP filed an application in the proceedings commenced by Palmer Leisure Coolum and Mr Palmer on 1 June 2021 (PLC stay proceedings, refer editor's note 22). The application seeks orders to set aside, stay or alternatively, strike out the PLC stay proceedings.
The application made by ASIC and the CDPP is listed to be heard on 23 August 2021 in the Queensland Supreme Court.
Editor’s note 25:
The application filed by ASIC and the CDPP on 29 June 2021 (Commonwealth application) that was to have been heard on 23 August 2021 (refer editor’s note 24) has been listed for hearing on 22 September 2021.
Editor’s note 26:
The hearing of the application filed by ASIC and the CDPP on 29 June 2021 listed for 22 September 2021 has been vacated and has been listed for a directions hearing on 22 September 2021.
Editor’s note 27:
On 17 September 2021, the Brisbane Magistrates’ Court adjourned the criminal proceedings for further mention on 10 December 2021.
Editor's note 28:
On 20 September 2021, Palmer Leisure Coolum and Mr Palmer filed an Amended Statement of Claim in the PLC Stay proceedings.
Editor’s note 29:
At the directions hearing held on 22 September 2021 before the Queensland Supreme Court, the Commonwealth Application was listed for hearing on 7 February 2022.
Editor’s note 30:
On 10 December 2021, the Brisbane Magistrates’ Court adjourned the criminal proceedings for further mention on 4 March 2022.
Editor’s note 31:
On 7-9 February 2022, ASIC and the CDPP’s application to set aside, stay or alternatively, strike out the Palmer stay proceedings (refer editor’s note 22 and 24) was part heard together with an application by Mr Palmer and Palmer Leisure Coolum for summary judgment in the stay proceedings. The applications have been listed for further hearing on 9-10 March 2022.
Editor’s note 32:
On 4 March 2022, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and were adjourned for further mention on 1 April 2022.
Editor's note 33:
On 9 March 2022, Mr Palmer and Palmer Leisure Coolum’s application for summary judgment in the stay proceedings was heard further. ASIC and the CDPP’s application to set aside, stay or alternatively, strike out the Palmer stay proceedings (refer editor’s notes 22 and 24) was mentioned and listed for review on 26 April 2022. Both applications have been listed for further hearing on 31 May and 1 June 2022.
Editor’s note 34:
On 1 April 2022, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and were adjourned for further mention on 1 July 2022.
Editor's note 35:
On 26 April 2022, a case management hearing for ASIC and the CDPP’s application to set aside, stay or alternatively, strike out the Palmer stay proceedings (refer editor’s notes 22 and 24) took place. The application remains listed for further hearing on 31 May and 1 June 2022.
Editor's note 36:
On 31 May – 1 June 2022, ASIC and the CDPP’s application to set aside, stay or alternatively, strike out the Palmer stay proceedings (refer editor’s note 22 and 24) was heard. Justice Callaghan reserved his judgment.
Editor’s note 37:
On 1 July 2022, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and adjourned for further mention on 21 October 2022.
Editor's note 38:
On 20 October 2022, ASIC and the CDPP’s application to set aside or alternatively, strike out Mr Palmer and PLC’s stay proceedings (refer to editor’s note 22 and 24) and Mr Palmer and PLC’s applications for summary judgment of the stay proceedings (see editor’s note 31 and 33) were listed for delivery of judgment. Without making final orders, Justice Callaghan:
- confirmed his earlier indication (given on 9 March 2022) that Mr Palmer’s and PLC’s summary judgment application will be dismissed; and
- indicated that ASIC and the CDDP’s application to permanently stay Mr Palmer and PLC’s stay proceedings will be granted.
The parties to the proceedings now have until 27 October 2022 to file written submissions in respect of costs and any other orders. His Honour indicated that he will finalize his judgment and pronounce all orders of the Court on a date (not yet fixed) following receipt of these submissions and that the time for any appeal will not commence to run until after he has done so.
Editor’s note 39:
On 21 October 2022, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and adjourned for further mention on 2 December 2022.
Editor’s note 40:
On 16 November 2022, Justice Callaghan delivered judgment in the Palmer and PLC stay proceedings (refer editor’s note 22) and ordered that:
- Palmer and PLC’s summary judgment application (refer editor’s note 31 and 33) be dismissed;
- the Palmer and PLC stay proceedings be permanently stayed (refer editor’s note 22 and 24);
- ASIC and the CDPP’s costs of the stay proceedings be paid by Palmer and PLC on an indemnity basis; and
- the Attorney-General for the State of Queensland’s cost of the stay proceeding be paid by Palmer and PLC.
Editor’s note 41:
On 29 November 2022, Clive Palmer filed a notice of appeal with the Court of Appeal of the Supreme Court of Queensland from the judgement of Justice Callaghan delivered on 16 November 2022.
Editor’s note 42:
On 2 December 2022, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and adjourned for further mention on 3 February 2023.
Editor’s note 43:
On 7 December 2022, Palmer Leisure Coolum filed a notice of appeal with the Court of Appeal of the Supreme Court of Queensland from the judgment of Justice Callaghan delivered on 16 November 2022 and Mr Palmer filed an amended notice of appeal (refer editor’s note 41 and 46).
Editor’s note 44:
On 31 January 2023, the appeals were mentioned in the Court of Appeal of the Supreme Court of Queensland. President Mullins listed the appeals for hearing over four days on dates to be fixed in July 2023 (refer editor’s note 43) and granted Mr Palmer leave to file a further amended notice of appeal.
Editor’s note 45:
On 3 February 2023, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and adjourned for further mention on 27 February 2023.
Editor’s note 46:
On 7 February 2023, the appeals were mentioned in the Court of Appeal of the Supreme Court of Queensland. President Mullins listed the appeals for hearing on 18 – 21 September 2023 (refer editor’s note 43).
Editor’s note 47:
On 27 February 2023, the criminal proceedings were mentioned in the Brisbane Magistrates' Court and the prosecution’s application for directions was listed for hearing on 3 April 2023.
Editor's note 48:
On 3 April 2023, the prosecution’s application for directions was heard and adjourned until 2 May 2023.
Editor's note 49:
On 2 May 2023, the prosecution’s application for directions was heard and adjourned until 30 June 2023.
Editor’s note 50:
On 30 June 2023, the prosecution’s application for directions was heard in the Brisbane Magistrates Court and was successful in obtaining directions that the defendants provide committal notices to progress the prosecutions to committal hearing.
Three applications brought by Mr Palmer, which included an application for an adjournment of the entire committal proceeding until after all appeal rights had been exhausted in the appeals (see Editor’s note 46), were refused.
The prosecution has been adjourned for further mention on 7 August 2023.
Editor’s note 51:
On 11 July 2023, Clive Palmer and Palmer Leisure Coolum Pty Ltd filed an application for the review of the decisions made by Magistrate Pinder at the directions hearing held in the Brisbane Magistrates’ Court on 30 June 2023 (refer editor’s note 50).
The application is listed for a directions hearing in the Supreme Court of Queensland on 25 July 2023.
Editor’s note 52:
On 17 July 2023, the appeals were mentioned for review before Justice Dalton in the Court of Appeal of the Supreme Court of Queensland. The appeals have been listed for further review on 4 August 2023 and hearing on 18 – 21 September 2023 (refer editor’s note 46).
Editor’s note 53:
On 25 July 2023, the application for review filed by Clive Palmer and Palmer Leisure Coolum Pty Ltd was mentioned before Justice Burns in the Supreme Court of Queensland. The application was adjourned for hearing on 1 August 2023 in the Supreme Court of Queensland (refer editor’s note 51).
Editor's note 54:
In addition to the application filed on 11 July 2023 (refer editor’s note 51), on 28 July 2023, Clive Palmer and Palmer Leisure Coolum Pty Ltd filed a second application for the review of the decisions made by Magistrate Pinder at the directions hearing held in the Brisbane Magistrate’s Court on 30 June 2023.
On 1 August 2023, both applications for review filed by Clive Palmer and Palmer Leisure Coolum Pty Ltd were mentioned before Justice Burns in the Supreme Court of Queensland. The applications for review were both adjourned for further hearing on 25 August 2023 in the Supreme Court of Queensland (refer editor’s notes 51 and 53).
Editor’s note 55:
On 4 August 2023, the appeals were mentioned for review before Justice Dalton in the Court of Appeal of the Supreme Court of Queensland. The appeals have been listed for further review on 11 August 2023 and hearing on 18 – 21 September 2023 (refer editor’s notes 46 and 52).
Editor's note 56:
On 2 August 2023, Mr Palmer and Palmer Leisure Coolum Pty Ltd filed an application with the Brisbane Magistrates’ Court seeking orders to set aside or dismiss the charges as an abuse of process. A further application for directions was filed on 4 August 2023 by Mr Palmer and Palmer Leisure Coolum Pty Ltd seeking orders for cross examination. On 7 August 2023, the Brisbane Magistrate’s Court listed the applications for hearing on 6 and 7 November 2023. On 8 August 2023 two further applications were filed by Mr Palmer and Palmer Leisure Coolum Pty Ltd for directions as to particulars and as to disclosure.
Editor's note 57:
On 11 August 2023, the appeal was mentioned for review before Justice Dalton in the Court of Appeal of the Supreme Court of Queensland. The appeal is listed for hearing on 18 – 21 September 2023 (see Editor’s note 55).
Editor’s note 58:
On 25 August 2023, the applications for judicial review filed by Mr Palmer and Palmer Leisure Coolum Pty Ltd on 11 July 2023 and 28 July 2023 respectively were heard by Justice Wilson in the Supreme Court of Queensland (see Editor’s Notes 51, 53 and 54).
Justice Wilson granted the Palmer parties leave to discontinue their applications and ordered that they pay the costs of the applications which were incurred by ASIC and the CDPP between 7 August 2023 and 21 August 2023.
Editor’s note 59:
On 18 and 19 September 2023 the appeals were heard before the Court of Appeal of the Supreme Court of Queensland (see Editors Notes 52, 55 and 57). Judgment was reserved by the Court with no indication given when as to when it will be delivered.
Editor's note 60:
On 10 October 2023, Mr Palmer and Palmer Leisure Coolum Pty Ltd filed a further Claim with the Supreme Court of Queensland seeking an order that the prosecution in the Magistrates Court be permanently stayed.
Editor’s note 61:
On 24 October 2023, Mr Palmer and Palmer Leisure Coolum filed an application in the Brisbane Magistrate’s Court seeking an adjournment of the hearing of the applications set down for hearing on 6 and 7 November 2023 (see Editor’s Note 56) until after the determination of the appeal in the Court of Appeal (see Editor’s note 59). The application has been listed for hearing in the Magistrate’s Court at Brisbane on 2 November 2023.
Editor’s note 62:
On 1 November 2023, Mr Palmer and Palmer Leisure Coolum discontinued the further Claim filed with the Supreme Court of Queensland on 10 October 2023 (see Editor’s Note 60).
Editor’s note 63:
On 2 November 2023, Mr Palmer and Palmer Leisure Coolum’s application for an adjournment of the applications set down for hearing on 6 and 7 November 2023 (see Editor’s Note 56) in the Magistrates Court at Brisbane until after the determination of the appeal in the Court of Appeal (see Editor’s note 59) was adjourned until 6 November 2023.
Editor’s note 64:
On 6 November 2023, on the application of Mr Palmer and Palmer Leisure Coolum, the applications set down for hearing on 6 and 7 November 2023 (see Editor’s Note 56) in the Magistrates Court at Brisbane were adjourned for mention on 15 December 2023 pending the determination of the appeal in the Court of Appeal (see Editor’s note 59).
Editor's note 65:
On 14 December 2023 the applications listed for mention on 15 December 2023 (see Editor’s notes 56 and 64) in the Magistrates Court at Brisbane were adjourned for mention on 16 February 2024.
Editor’s note 66:
On 6 February 2024 the Court of Appeal of the Supreme Court of Queensland delivered judgment in the appeals heard on 18 and 19 September 2023 (see Editor’s Note 59). In a unanimous decision the Court of Appeal ordered that:
- the appeals of Mr Palmer and PLC (refer Editor’s notes 42 & 43) be dismissed; and
- ASIC and the CDPP’s costs of the appeals be paid by Mr Palmer and PLC.
Editor's note 67:
On 16 February 2024 the prosecutions of Mr Palmer and Palmer Leisure Coolum, including the applications (see Editor’s notes 56, 64 and 65), were mentioned in the Magistrates Court at Brisbane and adjourned for further mention on 15 March 2024.
Editor's note 68:
On 21 February 2024 and 5 March 2024 Mr Palmer and Palmer Leisure Coolum respectively filed applications in the High Court of Australia for special leave to appeal the decision of the Court of Appeal of Queensland dated 6 February 2024 (see Editor’s Note 66).
Editor's note 69:
On 15 February 2024 Mr Palmer and Palmer Leisure Coolum commenced proceedings against ASIC and the CDPP by filing an Originating Application and Statement of Claim in the Federal Court of Australia.
Editor's note 70:
On 24 April 2024, ASIC and the CDPP filed applications in the Federal Court proceedings commenced by Palmer Leisure Coolum and Mr Palmer on 15 February 2024 (refer editor's note 69). The applications seek orders to permanently stay or, alternatively, summarily dismiss the Federal Court proceeding on the basis that it is an abuse of the process of the Court. Following the case management hearing held on 26 April 2024, the Court listed the applications made by ASIC and the CDPP for hearing on 22 August 2024.
Editor’s note 71:
On 1 May 2024, the mention of the prosecutions of Mr Palmer and Palmer Leisure Coolum listed on 3 May 2024, including the applications (refer editor’s notes 64, 65 and 67), were adjourned for further mention on 7 June 2024.
Editor's note 72:
On 6 June 2024, the High Court of Australia refused the Applications for Special Leave made by Mr Palmer and Palmer Leisure Coolum with costs (refer editor’s note 68).
- HCA Disposition - Palmer Leisure Coolum v Mags Court of QLD & Ors (PDF 153 KB)
- HCA Disposition - Palmer v Mags Court of QLD & Ors (PDF 149 KB)
Editor's note 73:
On 7 June 2024 the prosecution and the applications (see editor's note 56) were mentioned in the Brisbane Magistrates’ Court. The applications were listed for a 2-day hearing commencing on 1 August 2024.
Editor’s Note 74:
On 1 and 2 August 2024 applications of Mr Palmer and Palmer Leisure Coolum (see Editor’s Note 56) were heard in the Brisbane Magistrates’ Court. The court directed the defendants’ applications for disclosure be adjourned to a case management hearing on 28 October 2024.
The defendants’ further applications were also adjourned without being heard, to the case management hearing on 28 October 2024.
Editor’s Note 75:
On 22 August 2024, ASIC and the CDPP’s applications to permanently stay or, alternatively, summarily dismiss the Federal Court proceeding (refer editor’s note 69 and 70) were heard. Justice Button reserved her judgment.
Editor’s Note 76:
On 8 October 2024, Justice Button delivered judgment in ASIC and the CDPP’s applications to permanently stay or, alternatively, summarily dismiss the Federal Court proceeding (refer to editor’s note 69, 70 and 75). Justice Button ordered that the Federal Court proceeding be stayed pending the hearing and final determination, including any appeals, of the criminal prosecutions, or until further order. Read the Court’s judgment.
Editor's note 77:
On 23 October 2024, Mr Palmer and Palmer Leisure Coolum filed an application with the Federal Court of Australia for an extension of time to seek leave and leave to appeal the interlocutory judgement of Justice Button delivered on 8 October 2024 (refer editor’s note 76).
Editor’s Note 78:
At the case management hearing held on 28 October 2024 (refer editor’s note 74), Magistrate McKenzie:
- directed that Mr Palmer and Palmer Leisure Coolum’s application for disclosure be listed for hearing on 28 and 29 November 2024; and
- delivered his reasons in respect of Mr Palmer and Palmer Leisure Coolum’s application seeking orders to set aside or dismiss the charges as an abuse of process.
Magistrate McKenzie dismissed the application on the basis that the Magistrates Court does not have the power to make the orders sought.
Mr Palmer and Palmer Leisure Coolum’s application for particulars was also listed for further argument on 28 and 29 November 2024.
Editor’s Note 79:
The hearing of the applications for disclosure and particulars listed on 28 and 29 November 2024 has been adjourned to 11 and 12 February 2025.