Full Court appeal. The Respondent, by submission by email of 21 August 2018, that is before the first directions hearing, put the proposition that if the Applicant was successful in the Full Court, the decision to disqualify the Applicant would not have come into effect meaning that the Tribunal would not have jurisdiction. At the hearing the Tribunal pointed out that the issue being determined by the Full Court, namely whether there had been effective service of the notice of the disqualification for the purposes of s 206F(4) of the Corporations Act, had nothing to do with the review by this Tribunal of the substantive decision made by the delegate on 20 July 2017. The Tribunal's jurisdiction is to review a reviewable decision. Clearly a reviewable decision had been made by the delegate. Whether a notice relating to that decision had been served in accordance with s 206F(3) of the Corporations Act for the operation of the disqualification to commence for the purposes of s 206F(4) of the Corporations Act, is a different issue. That issue was irrelevant to whether the Tribunal had jurisdiction to review the decision. 2. The Applicant accepted that position. However, the Respondent continued to argue that the programming of the applications in the Tribunal should be delayed until after the

Full Court handed down its decision. By email dated 15 November 2018 to the Applicant's lawyer and the Tribunal, the Respondent referred to '...the centrality of the Full Federal Court appeal...to the applicant's extension of time application'. 3. Again in an email dated 4 February 2019 the Respondent said 'ASIC remains of the view that the applicant's extension of time application should not be heard until the Appeal Proceeding has been determined...' 4. The Applicant's lawyers responded to that statement in an email dated 5 February 2019 'Irrespective of the outcome of the appeal my client will still require to prosecute (sic) the application for review and seek an extension of time. There is no utility in the proposed adjournment but there is utility in proceeding'. 5. It is clear to the Tribunal that the reason for the delay in the making the application for the review and seeking an extension of time was that, the effect of the legal advice that he was receiving prior to the application being made, was that the coming into effect of the reviewable decision, and therefore the ability to seek review, was dependent on the proper service of the disqualification notice. While that position is wrong, it is apparent from the contemporaneous correspondence that that is the legal advice that the Applicant was receiving. 6. The Respondent seeks to rebut this as being the reason for the delay (paragraph 17 of Respondent's submissions) by arguing that:

The applicant has not gone on affidavit. His unsworn statement does not say whether he sought formal advice, nor when advice was sought or received, nor whether the advice that was provided orally or in writing. If it was in writing, a copy of the advice is not provided. If the advice was provided orally, there is no evidence from Mr Christensen confirming the date and content of the advice.

1. The Respondent also argues that the Applicant was aware from 31 July 2017 that a decision had been made and that he was required to make an application for review within 28 days (paragraph 19 of Respondent's submissions)
2. The Tribunal does not accept the Respondent's argument. It not only ignores the clear and stated assumptions of the Applicant's lawyer's letters and emails set out above, which were never disputed by the Respondent, but it also ignores the fact that it was the Respondent, not the Applicant, who as late as February 2019 was still arguing that the outcome of the Full Court appeal would determine the issue before the Tribunal.
3. The Tribunal accepts that the reason for the delay in making the application was the mistaken belief, held by both parties, that the review of the decision, and in fact the jurisdiction of the Tribunal, was dependent on whether there had been effective service of the notice of disqualification. It was in fact the Respondent that continued to hold that belief long after the Applicant had accepted that not to be the case.

1. Unfortunately the Applicant's submissions on this consideration were misconceived.

At paragraph 22 of his submissions the Applicant says:

The substantive application for review before the AAT is limited to discrete evidence which was before the Respondent, and secondly, to a question of law. The grounds of the review are as follows:

(a) whether or not the Respondent took into consideration all the relevant material available to it in making its decision; and

(b) whether or not the Respondent failed to properly apply the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in exercising its power under s 206F of the Corps Act.

1. The Applicant's position is fundamentally misconceived on two points. Firstly, the Tribunal in undertaking a review of a decision is not 'limited to the discrete evidence which was before the Respondent'. Secondly, the Tribunal undertakes an administrative merits review. Its role, unlike a court, is not to review a decision to find legal error in the decision, but to do over again that which the original decision maker did and to make its own decision. There are any number of cases which describe the role to be undertaken by the Tribunal. An often cited judgment in this regard is that of the Full Court in Shi v Migration Agents Registration Authority[11]. Justice Downes made the following observations:
   1. The Administrative Appeals Tribunal is not a court. It does not exercise the judicial power of the Commonwealth. It is an administrative decision-maker. It exercises the executive power of the Commonwealth. Administrative decision-making is almost always improved if it is based on the facts and circumstances as they are at the time of the decision and not as they were in the past. Administrative decisions should always be made on this basis unless there are compelling reasons for doing otherwise. Sometimes, however, legislation conferring the decision-making power will, expressly or by implication, require the decision-maker to address a time prior to the decision and the facts and circumstances as they were at that time.
   2. The position is different with litigation before courts. Judicial power is concerned with resolving disputes between parties. The dispute must exist at the time proceedings are commenced and generally be defined by pleadings or other documents addressing that point of time. Courts, accordingly, focus much more on the circumstances as they were at the time the proceedings were commenced. In this respect the work of courts can be contrasted with that of tribunals engaged in merits review of administrative decisions.

1. Hill J expanded upon this in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521:

"The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461. In exercising its role, in what Davies J in Jebb v Repatriation Commission [1988] FCA 105; (1988) 8 AAR 285 at 288-289 referred to as a "part of" an administrative "continuum", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision: cf Jebb (at 289-290); Lucas v Repatriation Commission (1986) 69 ALR 415 at 421; Ward v Nicholls (1988) 20 FCR 18 at 22, per Wilcox J."

1. Similar statements were made by Justice Nicholson in the same case as follows:
   1. His Honour's reasoning was based on what he described as the 'clear line of authority'. It is therefore appropriate to examine the line of authority on the issue. I consider it establishes the following:
      1. The Tribunal is empowered to exercise all of the powers and discretions that are conferred by any enactment on the person who made the decision the subject of the Tribunal's review (s 43(1) of the AAT Act): Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428 at [24] per Branson J.
      2. The Tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419 and Smithers J at 438-439, cited by Branson J at [24] in Aged Care [2004] FCA 843; 138 FCR 428. That is, the Tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision: per Wilcox J in Commonwealth v Ford [1986] FCA 94; (1986) 65 ALR 323 at 437-438 citing Drake 46 FLR at 419 and Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325 at 326-327 cited by Davies J in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 at 344. This general approach of the Tribunal was described by Davies J in Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329 at 289 as being:

'to regard the administrative decision-making process as a continuum and to look upon the Tribunal's function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant's entitlement from the date of application or other proper commencing date to the date of the Tribunal's decision.'

1. This Tribunal summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services[12] at [18] as follows:

The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is 'to "do over again" what the original decision maker did': see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].

1. The above authorities make it clear that the role of the Tribunal is to do over again that which the original decision maker did and, on the evidence before the Tribunal at the time that it makes its decision, exercising the same discretions that the original decision maker had, make what it considers to be the correct or preferable decision. That is not, as asserted by the Applicant, an exercise in considering what errors the delegate made. It will be an exercise in considering the evidence that was presented to the delegate, and any further evidence put to the Tribunal by the parties, and forming its own view as to what the correct or preferable decision is.
2. The evidence that will have to be considered by the Tribunal in this matter is extensive and complex. Not only will it include all of the material that was before the delegate, but it will also include the new material lodged by the Applicant in these proceedings including the evidence in the Applicant's statement of 25 March 2020. That statement included a copy of the deed of settlement (dated 20 March 2020) of the proceedings taken by the liquidators of various companies of which the Applicant was a director against the accountant who, the Applicant claims, gave the advice which resulted in the massive tax liabilities which, again according to the Applicant, eventually caused the companies to go into liquidation. On the face of it, those documents produced by the Applicant would have to be considered in any de novo consideration of whether the Applicant should be disqualified and if so, for what period.
3. Further, independently of any new material that the Tribunal would have to consider in doing over again that which the delegate did, it may be that on review of the material that was before the delegate (even ignoring additional material) the Tribunal may simply form a different conclusion to that formed by the delegate. While the delegate, based on the information before her, formed the view that it was appropriate, firstly to disqualify the Applicant, and then formed the view that four years was an appropriate period for which to disqualify the Applicant, this Tribunal may form a different view.
4. Looking at the material that this Tribunal would need to consider to undertake a hearing de novo, it is, in this Tribunal's assessment, impossible to conclude that the Applicant has no prospect of success either in having this Tribunal form the view that disqualification was not justified or, if it was justified, that a period of disqualification of other than four years might be appropriate.
5. What is the appropriate test to be applied to the strength of the merits of the Applicant's case? That question recently arose in the case of Somba and Minister for Home Affairs[13] in considering the required level of merit in the substantive application in an application under s 42A(9) of the AAT Act for reinstatement of an application dismissed under

s 42A(2) of the AAT Act. The following parts of the decision in that case are pertinent: 1. The level of merit of the substantive application used by the tribunal in Serpinli_, which was not criticised by Justice O'Callghan on appeal, was whether it was shown that there was a 'reasonable case to advance'._ 2. In looking at whether an extension of time for filing a notice of appeal should be granted, Justice Lander in Hopkins v Repatriation Commission opined at [28] that :

Whether this application should be granted must depend upon whether any of the grounds of appeal would be likely to succeed if an extension of time were granted.

1. The tribunal in Fitzgibbon refused an application for reinstatement because it found (at [35]) that the application 'had little to no prospect of success' and the tribunal in CDJR and Australian Research Council dismissed an application for reinstatement because it was not satisfied that 'there are any reasonable prospects of success of his application'. Similarly the tribunal in Rob dismissed the application for reinstatement as it found at [12] that the 'application for review had no reasonable prospects of success'.

1. The Applicant points to the fact that while the Applicant had raised the argument before the delegate that he, in his role as a director of the companies, had acted in accordance with advice from his accountant and that action was being taken against that accountant, those proceedings have now been resolved in the various companies' favour. As noted above, a deed of settlement evidencing a significant payment being made by the accountant to the liquidators of the various companies was included in the material provided by the Applicant in his 25 March 2020 statement. This, according to the Applicant, strengthens his argument that he had acted on professional advice.
2. The Tribunal asked the Respondent's counsel at the hearing what the Respondent contended the appropriate test for the merit of the substantive application was. Counsel responded (Transcript at 22) that:

But simply working perhaps as a negative. If there is no demonstrated merit then that counts against the reasonableness.

1. The 'reasonableness' to which counsel for the Respondent was referring was the reasonableness referred to in s 29(7) of the AAT Act, namely, whether it is 'reasonable in all the circumstances' to extend time.
2. In the Tribunal's view the appropriate test to be applied in considering the merit of the Applicant's substantive application is that it has some prospect of success, or perhaps more appropriately, whether it could not be said that it did not have any reasonable prospect or success. Given the sheer volume of material that will need to be considered, the complexity of that material including the new material that has not previously been considered, and given the discretionary nature of the exercise that the decision maker has to undertake under s 206F of the Corporations Act, including determining the length of the disqualification, it is not the case that the application does not have any reasonable prospect of success.

1. At paragraph 26 of its submissions, the Respondent argues that the first prejudice that it will suffer if an extension of time is granted is that it 'will be put to the time, cost and effort of responding to...an unmeritorious claim'. The Tribunal rejects that argument. The prejudice to be taken into account under this consideration must relate to the extension of time, not to responding to an application that the Respondent would have had to respond to had it been made within time. If the Respondent's argument were accepted there would never be an extension of time granted. Obviously in every case where an extension of time is granted the result is that the respondent must then defend the application.
2. The second basis upon which the Respondent raises a prejudice (Respondent's submissions paragraph 27) is that the effluxion of time will have an impact on witnesses' recollection. The Respondent does not identify any witness to which that might apply. That submission, in the absence of identifying which witnesses would be so affected, is unhelpful. The only potential evidence to which the Respondent refers is the liquidators' reports. They are statutory reports which speak for themselves.
3. Further, since August or September 2018 it is the Respondent, not the Applicant, who has sought to delay the applications (see [38]-[41] above). The Respondent did not seem to have any concerns then about any witnesses recollections being prejudiced or there being any urgency in having the application progressed.
4. In any event, the nature of the evidence and the issues involved in the substantive application are unlikely to be determined, or even significantly impacted, by witnesses' recollection of relevant events.
5. The third type of prejudice identified by the Respondent (Respondent's submissions paragraph 28) is that the 'decision concerns a matter of public importance...that has been recorded on a public register since 1 August 2017'. The Respondent submits that:

The statutory timeframe for filing an application for review advances the public interest in certainty as to the persons who are entitled to manage corporations. Accordingly, contra applicant's submission [32], the applicant's private interest should be given less weight than may otherwise be the case in respect of a decision that affects only the applicant.

Carter v ASIC [2018] FCA 1064 [24]; Statement of Rodney Charles Carter, 28 February 2020, [25], RCC9 p 98; RCC10

1. At the hearing counsel for the Respondent explained this prejudice as follows:[14]

MR WRIGHT: ....The issue of disqualification is from being involved in the management of a corporation is a matter of protecting the public interest, and we're now three years into the disqualification. The matter has been on the public register since 31 July 2017, and it's not in the public interest that the matter be revisited sometime potentially not until later this year or early next year before there will even be a decision.

1. The following exchange then took place:[15]

TRIBUNAL: Sorry, but surely the public interest in all of the cases look at protecting the public interest. The public interest is served because he's suspended. He is currently banned, the only prejudice really is to Mr Carter, isn't it, the public's protected?

MR WRIGHT: The public interest is in the public being able to rely upon the register because if the application for review was successful then it would result in Mr Carter, in fact, not having being banned, so the public would have been proceeding under the apprehension that he was banned and - - -

TRIBUNAL: How would that prejudice the public, companies that would otherwise have offered Mr Carter a directorship now being prejudiced because he shouldn't have been banned? The public interest is clearly protected by the fact that the status quo currently is that he is banned.

1. As the Tribunal noted at the hearing, it is difficult to see how the public could have acted to its detriment based on the public record which would now make it inappropriate to allow an extension of time and, potentially, have the Applicant's status changed. The public record, upon which presumably the public has relied to determine the Applicant's status, has since 31 July 2017 shown the Applicant to have been disqualified. The public interest is in individuals who should not have been disqualified having the decision to disqualify them being reviewed and, where appropriate, overturned. The Tribunal rejects the Respondent's argument.

1. While the delay is significant, nearly 12 months, the Tribunal finds that;
   • (a) there is a reasonable explanation for the delay for making the application (see [35]-[46] above;
   • (b) it could not be said that the substantive application has no reasonable prospect of success (see [52]-[59] above); and
   • (c) there is no demonstrated significant prejudice to the Respondent in an extension of time being granted (see [60]-[67] above).
2. Accordingly, the Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 8 August 2018.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[sgd]....................................

Australian Securities and Investment Commission

[1] [1984] FCA 176; (1984) 58 ALR 305.

[2] [1999] FCA 563.

[3] (1991) 23 ALD 309.

[4] [1990] AATA 1.

[5] [2018] AATA 3469.

[6] [2019] AATA 714.

[7] [2018] FCA 1064.

[9] [2019] FCAFC 229.

[10] [1993] FCA 498; (1993) 119 ALR 85 at 88.

[11] [2007] FCAFC 59.

[12] [2019] AATA 758.

[13] [2020] AATA 425.