Bittmann v Australian Securities & Investments Commission

REASONS FOR JUDGMENT 1 On 4 September 2006 the applicant commenced this proceeding by way of appeal from a decision of the Administrative Appeals Tribunalgiven on 21 August 2006. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') an appeal lies from the Tribunal to this court on a question of law. 2 By motion of which notice was given on 10 October 2006, the respondent moved for the Notice of Appeal to be 'struck out'. The deficiency in the Notice of Appeal upon which the respondent relied was its failure to state the question or questions of law raised on the appeal as required by O 53 r 3(2)(b) of the Rules of Court. The source of the court's power to strike out was not referred to in the respondent's Notice of Motion. 3 On 12 October 2006, Kenny J ordered that the respondent's motion be adjourned for hearing to 13 November 2006. Her Honour also gave the applicant leave to file and serve any proposed Amended Notice of Appeal by 6 November 2006. The applicant did so, and the motion came before me on 13 November 2006. 4 Although the applicant himself has not moved the court for leave to amend, he relied upon his proposed Amended Notice of Appeal, and it was implicit in the way in which the matter was conducted before me by both parties that the applicant should be treated as seeking leave to make the amendment. The respondent submitted that the amendment should not be allowed, substantially because the Amended Notice of Appeal did not state the question or questions of law to be raised on the appeal as required by O 53 r 3(2)(b) of the Rules of Court. Assuming that leave were not granted to amend, the respondent then pressed its motion that the original Notice of Appeal as filed be struck out. 5 The applicant's application in the Tribunal related to letters sent to him by the respondent on 22 September 2003, 14 January 2004 and 14 June 2006. Compendiously, the burden of those letters was that the respondent did not intend to take any action with respect to certain complaints which had been made to it by the applicant. In its reasons given on 21 August 2006, the Tribunal said that the applicant's complaints related to the manner in which controllers and liquidators of an unsecured creditor of Antal Air Pty Ltd discharged their functions. 6 In the Tribunal, the respondent contended that there was no relevant decision which was amenable to review as proposed by the applicant. By s 25 of the AAT Act, applications for review may be made only where provided for in particular legislation. Although some decisions made by the respondent under the Australian Securities and Investments Commission Act 2001 (Cth) are open to review in the Tribunal, those categories of decision do not include anything which might be relevant in the present circumstances. According to the reasons of the Tribunal, the applicant had submitted that the respondent had failed to take some action under Pt 5.3A of the Corporations Act 2001 (Cth) ('the Corporations Act'), in relation to which there is a broad availability of review in the Tribunal. 7 The Tribunal was unable to identify any provision of the Corporations Act under which the respondent made a decision, even a decision to do nothing. According to the Tribunal, there was, in the way the respondent dealt with the applicant's correspondence, no decision under the Corporations Act such as would make available a review pursuant to s 1317B thereof. Accordingly, the Tribunal decided that it did not have jurisdiction in the matter. 8 In his proposed Amended Notice of Appeal, the applicant asked the court for orders 'to reaffirm the Administrative Appeals Tribunal's jurisdiction to review decision as expressly authorised in Pt 9.4A of the Corporations Act 2001.' For his grounds, the applicant relies upon the following: ASIC and their prescribed persons are using their conferred powers (Section 33 Acts Interpretation Act 1901) to deny access of the creditors to the Administrative Appeal Tribunal, Section 1317B. ASIC also denies access to the courts; refer Section 536 and 1321 of the Act. The creditors require access to the Tribunal/Courts to demonstrate the imposed duties of ASIC; a person whose interest are affected, Section 1317B(2). The questions of law which are said to be raised on the appeal are set out as follows: 1. 15C Jurisdiction of courts Where a provision of an Act, whether expressly or by implication authorize a civil or criminal proceeding to be instituted in a particular court in relation to a matter: (a) that provision shall be deemed to vest that court with jurisdiction in that matter. Part 9.4A vests jurisdiction with the Tribunal and jurisdictions are authorized by an Act, not ASIC. Acts Interpretation Act 1901 2. ASIC's conferred function and powers have been delegated to prescribed persons. ASIC Act 2001, Section 102(1), (2) & (6) 2.1 A prescribed person means a registered auditor or liquidator. Corporations Act, Section 1292(8) 2.2 Prescribed person is subject to ASIC's directions. For the purposes of the law and this Act, these functions or powers have been performed or exercised by ASIC. ASIC Act, Section 102(5) & (6) 3. Chapter 5 - External Administration Corporations Act 2001 ASIC and these prescribed persons are appropriate officers of the companies that they control, with duties imposed by Acts. Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. Acts Interpretation Act 1902, Section 33(1) Comment: - Powers are conferred by the Acts, not ASIC. 4. The application for review is based on Section 1317B of the Corporations Act 2001. 1317B Applications for review i. Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by: 1. the Minister; or 2. ASIC; or 3. The Companies Auditors and Liquidators Disciplinary Board. ii. For the purpose of this Act and Administrative Appeal Tribunal Act 1975, ASIC is taken to be a person whose interest are affected by a decision made under this Act by the Companies Auditors and Liquidators Disciplinary Board. Corporations Act 2001 9 At the hearing of the motion, I pressed the applicant to identify the provision of the Corporations Act under which, according to his case, the respondent might have acted. Save to make it clear that he never suggested that the respondent ought to have acted under s 536 of that Act, he did not provide any satisfactory response to my question. The Tribunal's decision was simple: the applicant was unable to establish that such decisions as lay behind the respondent's correspondence to him were made under the Corporations Act. Had the applicant been able to establish that the Tribunal misunderstood the significance of a particular provision of that Act in the circumstances before it, I could well understand that an appeal against its decision would be on a question of law. However, the applicant was quite unable to point to any provision of the Corporations Act which the Tribunal had overlooked or misunderstood in the only ruling which it made, which was that the respondent's decision to take no action in response to the applicant's complaints was not made under that Act. 10 I shall not attempt to paraphrase the questions of law upon which the applicant relies, as set out above. Indeed, I am not at all sure that I understand them. I am sure, however, that they do not constitute legitimate questions of law which are, even arguably, raised by the decision of the Tribunal. In the circumstances, I shall not give leave to amend the Notice of Appeal. 11 That leaves the respondent's motion to strike out the original (and still existing) Notice of Appeal. When I asked counsel for the respondent to identify the provision upon which she relied for her motion, she referred to O 9 r 7 of the Rules of Court. I expressed my reservations as to the applicability of that rule in circumstances such as the present. Counsel made it quite clear that she desired the court to act under that provision, and none other. She informed me that the application of O 9 r 7 to a circumstance in which a respondent sought to strike out a Notice of Appeal in an appeal from the Tribunal had been upheld by Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515. Counsel did not have a copy of the report of his Honour's judgment in court at the time, and I was obliged to reserve my judgment so that I might consider his Honour's reasons. Having done so, it is clear to me that Ryan J's reasons in Lambroglou have nothing whatsoever to do with O 9 r 7 of the Rules of Court. Further, on no occasion which my own researches have revealed has O 9 r 7 ever been used for the purpose of striking out a Notice of Appeal from the Tribunal, whether for want of specifying a question of law or otherwise. 12 I consider that O 9 r 7 of the Rules of Court is concerned with a situation very different from the present one. It is concerned with the setting aside of originating process as such. I do not need to consider whether, in an appropriate case, a Notice of Appeal from the Tribunal might be regarded as 'originating process' within the meaning of the rule. It is sufficient if I note that it was not suggested by the respondent that there was anything irregular or deficient about the applicant's process: it was suggested only that, in point of content, so much of the Notice of Appeal as was required to identify the relevant questions of law was inadequate. 13 Because the respondent has sought only that I act under a provision of the rules which is inappropriate in the circumstances, I shall refuse its application made by Notice of Motion dated 10 October 2006. I shall do so, however, without prejudice to the respondent's rights to make such further application as it may be advised. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.