Friday 17 July 2020

20-163MR Clive Palmer charged over breaches of directors’ duties and fraud

Following an ASIC investigation, Mr Clive Frederick Palmer, 66 of Broadbeach Waters in Queensland, has been charged with two counts of contravening section 184(2)(a) of the Corporations Act 2001 (Act) - dishonest use of position as a director and two counts of contravening section 408C(1)(d) of the Criminal Code Act 1899 (Qld) – fraud by dishonestly gaining a benefit or advantage.

ASIC alleges that between 5 August 2013 and 5 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Cosmo Developments Pty Ltd and/or the Palmer United Party (PUP) and others by authorising the transfer of $10,000,000 contrary to the purpose for which the funds were being held. It is alleged that he dishonestly used his position as a director of  Mineralogy Pty Ltd (Mineralogy), a mining company owned by him, in obtaining that advantage.

ASIC also alleges that, between 31 August 2013 and 3 September 2013, Mr Palmer dishonestly obtained a benefit or advantage for Media Circus Network Pty Ltd and/or PUP by authorising the transfer of $2,167,065.60 contrary to the purpose for which the funds were being held. It is alleged that Mr Palmer dishonestly used his position as a director of Mineralogy in obtaining that advantage.

The maximum penalty for an offence under section 184(2) of the Act is $340,000 or imprisonment for five years, or both.

The maximum penalty for an offence under section 408C of the Code is five years’ imprisonment.  However, if circumstances of aggravation are established the maximum penalty at the time the offences are alleged to have occurred is increased to 12 years’ imprisonment.

The matter was first mentioned in the Brisbane Magistrates Court on 20 March 2020, at which time the matter was adjourned for further mention on 17 July 2020. On 17 July 2020 the matter was adjourned until 28 August 2020. 

The matter is being prosecuted by the Commonwealth Director of Public Prosecutions.

Editor's note:

On 28 August 2020, the matter was mentioned in the Brisbane Magistrates Court and adjourned for further mention on 27 November 2020. 

Editor's note 2: 

On 27 November 2020, the matter was heard in the Brisbane Magistrates' Court and was adjourned for further mention on 11 March 2021.

Editor’s note 3:

On 9 March 2021, Clive Palmer filed a Claim with the Supreme Court of Queensland seeking an order that the prosecution in the Magistrates Court be permanently stayed.

Editor’s note 4:

On 11 March 2021, the matter was heard in the Brisbane Magistrates’ Court and was adjourned for further mention on 11 June 2021.

Editor’s note 5:

On 6 May 2021, Clive Palmer wholly discontinued his Claim filed on 9 March 2021 in the Supreme Court of Queensland.

Editor's note 6:

On 3 June 2021, Clive Palmer filed a Claim with the Supreme Court of Queensland seeking an order that the prosecution in the Magistrates Court be permanently stayed. 

Editor's note 7:

On 11 June 2021, the matter was heard in the Brisbane Magistrate’s Court and was adjourned for further mention on 17 September 2021.

Editor's note 8:

On 1 July 2021, ASIC, the CDPP and another person filed an application in the proceedings commenced by Mr Palmer on 3 June 2021 (Palmer stay proceedings, refer editor's note 6). The application seeks orders to set aside, stay or alternatively, strike out the Palmer stay proceedings.

The application made by ASIC, the CDPP and another person is listed to be heard on 23 August 2021 in the Queensland Supreme Court.

Editor’s note 9:

The application filed by ASIC, the CDPP and another person on 1 July 2021 (Commonwealth application) that was to have been heard on 23 August 2021 (refer editor’s note 8) has been listed for hearing on 22 September 2021.

Editor’s note 10:

The hearing of the application filed by ASIC, the CDPP and another person on 1 July 2021 (Commonwealth application) listed for 22 September 2021 has been vacated. The Commonwealth application has been listed for a directions hearing on 22 September 2021.

Editor’s note 11:

On 17 September 2021, the matter was mentioned in the Brisbane Magistrate’s Court and was adjourned for further mention on 10 December 2021. 

Editor's note 12:

On 21 September 2021, Mr Palmer filed an Amended Statement of Claim in the Palmer Stay Proceedings.

Editor’s note 13:

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 14:

On 10 December 2021, the matter was mentioned in the Brisbane Magistrate’s Court and was adjourned for further mention on 4 March 2022.

Editor’s note 15:

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 6 and 8) was part heard together with an application by Mr Palmer for summary judgment in the stay proceedings. The applications have been listed for further hearing on 9-10 March 2022.

Editor’s note 16:

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 17:

On 9 March 2022, Mr Palmer’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 note 6 and 8) 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 18:

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 19:

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 6 and 8) took place. The application remains listed for further hearing on 31 May and 1 June 2022.

Editor's note 20:

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 6 and 8) was heard. Justice Callaghan reserved his judgment.

Editor’s note 21:

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 22:

On 20 October 2022, ASIC and the CDPP’s application to set aside or alternatively, strike out the Palmer stay proceedings (refer to editor’s note 6 and 8) and Mr Palmer’s application for summary judgment of the stay proceedings (refer editor’s note 15 and 17) 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 summary judgment application will be dismissed; and
• indicated that ASIC and the CDDP’s application to permanently stay the Palmer 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 that may be required. 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 23:

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 24:

On 16 November 2022, Justice Callaghan delivered judgment in the Palmer stay proceedings (refer editor’s note 6) and ordered that:

• Palmer’s summary judgment application be dismissed (refer editor’s note 15 and 17);
• the Palmer stay proceedings be permanently stayed (refer editor’s note 8, 17 and 20);
• ASIC and the CDPP’s costs of the stay proceedings be paid by Palmer on an indemnity basis; and
• the Attorney-General for the State of Queensland’s costs of the stay proceedings be paid by Palmer.

View the judgment.

Editor’s note 25:

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 26:

On 7 December 2022, Mr Palmer 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 (see Editor’s note 24).

Editor’s note 27:

On 31 January 2023, the appeal was mentioned in the Court of Appeal of the Supreme Court of Queensland.  President Mullins listed the appeal for hearing over four days on dates to be fixed in July 2023 (refer editor’s notes 26 and 29).

Editor’s note 28:

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 29:

On 7 February 2023, the appeal was mentioned in the Court of Appeal of the Supreme Court of Queensland.  President Mullins listed the appeal for hearing on 18 – 21 September 2023 (refer editor’s note 26).

Editor’s note 30:

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.