Dean-Willcocks v Companies Auditors and Liquidators Disciplinary Board

Federal Court of Australia|2006-05-19|Before: Tamberlin J

REASONS FOR JUDGMENT 1 In this matter, the applicant seeks judicial review under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) of a determination by the Companies Auditors and Liquidators Disciplinary Board made on 12 April 2006, and also a stay preventing the publication of the Board's determination pursuant to s 15 of that Act. I have made orders and given directions for the early hearing of this matter and I now publish my reasons for granting interlocutory relief. 2 The decision in respect of which the stay is sought is a decision of the Board to suspend the applicant's registration as liquidator for a period of twelve months pursuant to s 1292(2) of the Corporations Act 2001 (Cth) ("the Act"). 3 Section 1292(2) enables the Board to cancel or suspend for a specified period the registration of a person as liquidator if it is satisfied on an application by ASIC that the registered liquidator has failed to adequately or properly perform any duties or functions required by an Australian law to be carried out or performed by registered liquidator. 4 Section 1296(1) of the Actrequires that within fourteen days after the Board has made such a determination, the Board must give a notice in writing to the person setting out the decision and reasons, and also cause to be published in the Gazette a written notice setting out the decision. The stay sought by the applicant is to restrain the giving of that notice required by s 1296(1) due to the anticipated adverse effect on his practice and the inconvenience likely to be caused. 5 The application is resisted by ASIC on the basis that there is no seriously arguable error, and also on the ground that any exercise of discretion should be exercised against the applicant on the balance of convenience test.

Balance of Convenience 18 In relation to the balance of convenience, ASIC accepts that publication of the notice that the applicant seeks to have stayed will have an adverse effect on the applicant's reputation. ASIC recognises that the applicant has been a registered liquidator and official liquidator for a substantial period of time and has a substantial reputation at stake. It also acknowledges the inconvenience which will arise if applications have to be made for the applicant's removal from the numerous positions to which he has been appointed. On the other hand, ASIC refers to the important fact that the Board has exercised a broad discretion as to the appropriate sanction. It notes that the Board's determination represents the evaluation of an experienced and qualified expert body, and requires due deference because of this evaluation. It is further urged that on a general basis and paying due regard to the protective nature of the Board's function the issues raised are directed to protection of the public interest as opposed to the resolution of competing private interests. ASIC refers to the application of appropriate standards and sanctions which are fundamental to the proper discharge of its functions, and points out that there is a weighty and legitimate necessity to ensure compliance with carefully formulated Codes of professional conduct. 19 The applicant, on the other hand, submits that ASIC points to no prospect or potential circumstance where any actual conflict of interest may arise or detriment be caused. The applicant also emphasises that the conduct occurred between 5 to 8 years ago, and that there have been no complaints about appointments after 2003 when the joint venture came to an end. There is uncontested evidence from Mr Dean-Willcocks that he has no present intention of entering into any similar arrangements. The applicant also points to the substantial expense and inconvenience in making applications for substituted appointees to handle the large number of commitments, liquidations and administrations in question. In addition, the applicant is also extremely concerned as to the impact on his reputation and that of his practice. In the event that he is ultimately successful, the applicant contends that publication of the Board's determination will cause irreparable harm which is not compensable. The lack of any likely or reasonably foreseeable harm arising if the stay is granted and an early hearing with a tight expedited schedule imposed is important in relation to the balance of convenience. 20 I conclude that the balance of convenience in this case, especially in view of the absence of any indication of any possible or likely prospect of harm to the public, falls in favour of the applicant. I consider that it is clearly a matter which must be expedited and I have imposed a tight timetable to progress the matter and to ensure an early hearing. 21 In the circumstances, I grant the order sought and I have made the necessary orders as to enable the prompt prosecution of this matter. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 19 May 2006 Counsel for the Applicant: I M Jackman SC

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent:: Dr G Flick SC

Solicitor for the Second Respondent: Australian Securities & Investments Commission

Date of Hearing: 20 April 2006

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Cited By (1)