And at 174:
"Apart from provisions in the rules of a body conferring on the chairman of a meeting power to adjourn, the position in general is that it is for a meeting to decide whether or not to adjourn and that the vote of the majority of those present decides the matter, so that the chairman in leaving the chair or adjourning the meeting, without the approval of a majority, in the absence of power under the rules enabling him to adjourn of his own initiative, does not bring about an adjournment or termination of the meeting. ( Shaw v Thompson (1876) 3 Ch D 233 at p 249))."
94 No question arises of whether a chairperson's exercise of a power to adjourn is invalid only if there is lack of good faith, or whether any of the common law grounds of administrative review can be invoked to challenge it (cf Byng v London Life Association [1989] BCLC 400).
Declaration 4(a)
95 There is no dispute between the plaintiff and ASIC about whether Mr Vouris, as chairman of the second creditors' meeting, had a power unilaterally to adjourn that meeting, regardless of the wishes of the creditors who were there. He had no such power. If the creditors passed a resolution requiring that the meeting be adjourned, then in accordance with Regulation 5.6.18(1)(a) Mr Vouris would have had no alternative but to adjourn the meeting. In the absence of such a resolution or some other type of direction from the meeting, he could adjourn the meeting only with its consent. All this is common ground.
96 Declaration 4(a) as it stands would never be made because it is simply inaccurate to say that it is only with the direction of the creditors that an administrator has power to adjourn a creditors' meeting. As well, he has power to adjourn it without any such direction, but with the consent of the meeting. But even if declaration 4(a) were to be amended to reflect that possibility, I would not make it. A fundamental requirement for the Court to make a declaration of right is that there be real controversy about it between at least some of the parties to the proceedings: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448; Ibeneweka v Egbuna [1964] 1 WLR 219 at 224 - 225; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 - 438 per Gibbs J, 448 per Stephen J, 450 per Mason J; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. That requirement is not met by Declaration 4(a) as so amended.
Declarations 4(b)(c)(d) and 5
97 Mr Vouris' Administrator's Report had referred to the possibility of the creditors adjourning the meting if a proposal for a Deed of Company Arrangement was received after the date of that Report, but before the meeting (paras [12] and [17] above). Further, it is apparent from the minutes of the meeting that at the time Mr Vouris circulated the proposed Deed of Arrangement he:
"… advised that his report recommend the meeting be adjourned, however it was up to creditors to decide on the proposed Deed of Company Arrangement, adjourn the meeting or to appoint a liquidator."
98 The charge which ASIC makes against Mr Vouris is that in making that statement to the meeting (and in everything else he said to the meeting) he did not go far enough - the ASIC charges proceed on the basis that Mr Vouris did not in substance seek the consent of the meeting to adjourn, and that he should have sought the consent of the meeting to adjourn.
99 As I read the charge, the "duties or functions required by an Australian law to be carried out or performed by a registered liquidator" referred to in the charge are intended to be the duties and functions connected with being an administrator. The charge alleges that in eight respects those duties or functions were not adequately and properly carried out or performed.
100 It is possible for someone to fail to carry out or perform adequately and properly the duties and functions of being an administrator, even if it is not possible to point to some particular statutory provision which has been breached. For example, if an administrator had sent to creditors a report which dealt with each of the topics listed in section 439A(4), but which expressed opinions which were based upon an investigation or a process of reasoning which fell below proper professional standards, a charge of breach of section 1292(2)(d)(ii) of the Corporations Law could be made out. It would be a breach of section 1292(2)(d)(ii) if an administrator had taken a bribe for making a particular recommendation, even though nothing in Part 5.3A said administrators were not to take bribes. Whether the duties and functions of being an administrator have been performed adequately and properly can depend to some extent on having an intelligent understanding of the purposes which the administration provisions of the Corporations Law were trying to achieve, and what proper professional practice required to be done to enable those purposes to be achieved. It is for that reason that I have set out the overview of the provisions for administration of a company earlier in this judgment. In particular, sometimes proper practice might have called for the provision of information or advice to creditors even if no specific provision of the Corporations Law said so.
101 But the appreciation of the overall purpose and scope of the administration provisions needs to be brought to bear on the question along with the specific provisions of Part 5.3A about what is or is not required, and what is or is not possible, in an administration. Relevantly for present purposes, the administrator had a duty under section 438A to form an opinion about whether it would be in the interests of the company's creditors to execute a Deed of Company Arrangement. That duty was one which he had to exercise "as soon as practicable after the administration of a company begins". In the present case, when Ms Kosinar was the only person interested in proposing a Deed of Company Arrangement, and when she had not put any firm proposal to the administrator before he convened the second creditors' meeting, Mr Vouris could not have performed that duty under section 438A prior to the time the meeting was convened.
102 Section 439C(a) expressly contemplated that at the second creditors' meeting the creditors could resolve to execute a Deed of Company Arrangement even if it differed from a Deed which was proposed at the time the notice of the meeting was given. Further, because of the appearance of the words "if any" in section 439C(a), it was open to the creditors at the second creditors' meeting to resolve that the company should execute a Deed of Company Arrangement even if no Deed at all had been proposed at the time of the notice which convened the second creditors' meeting. Hence it cannot be the case that, in absolutely all circumstances, the obligation of the administrator under section 438A to form an opinion about whether it would be in the interests of the company's creditors for the company to execute a Deed of Company Arrangement was going to result in an opinion that was communicated to all creditors. That is because, if a proposal for a Deed of Company Arrangement emerges only after the notice of the second creditors' meeting was sent, and if that meeting did not direct the administrator to adjourn, or consent to an adjournment to enable the administrator to investigate the proposal and report on it to all the creditors, those creditors who were present had the power to resolve to adopt the Deed, notwithstanding the absence of a report on it by the administrator, and notwithstanding that creditors who did not attend the meeting might never have known about the terms of the Deed before it became binding on them. In that circumstance, it only became "practicable" for the administrator to form his opinion about the desirability of the Deed in circumstances where there was no opportunity for him to report on it to all creditors. That this result could arise is consistent with the overall objectives of Part 5.3A as set out in section 435A, in that if a deed which was a clear benefit to all creditors was proposed at a late stage, it might have been a waste of time and money to require an adjournment, further reporting, and a further meeting; if a deed was adopted when it has not been reported on to all creditors, and it had serious deficiencies or unfairness, the Court might have terminated it under section 445D. That is not to say that in some circumstances the appropriate course for an administrator might be to seek to persuade the meeting to adjourn so that all creditors could be informed about the proposal for a Deed, and the administrator's views concerning it.
103 Whether Mr Vouris fell below acceptable professional standards in not seeking the consent of the meeting to adjourn (assuming, without deciding, that the proper way of viewing his behaviour is that he did not in substance seek the consent of the meeting to adjourn) is not solely a matter of law. It is a question the answer to which is influenced by evidence about appropriate professional standards. If this Court were to seek to answer the question, it would undermine the exercise by CALDB, a specialist tribunal, of the functions which Parliament has conferred upon CALDB. The conducting of an administration sometimes requires the administrator to weigh up the relative advantages of speed, efficiency and cheapness, on the one hand, and thoroughness on the other - a time when an administrator has to decide how hard he should urge creditors to adjourn a meeting is such an occasion. And questions of professional standards, as well as the "business judgment" test for breach of duty now contained in section 180(2), are relevant to whether the balance has been struck within the range of responsible professional decision-making. Registration as a liquidator confers certain rights and obligations, under the Corporations Act; the Corporations Act also provides the mechanism, by a hearing before CALDB, through which those rights and obligations can be taken away, qualified or make subject to conditions. In the exercise of its discretion this Court ought not make a declaration on a topic concerning which there is room for the exercise of judgment or discretion, when the statutory scheme is that any such judgment or discretion should be exercised by CALDB. Further, if CALDB were to make an error, there is a full appeal on the merits open to the Administrative Appeals Tribunal, and a right to have the decision reviewed under the Administrative Decisions (Judicial Review) Act 1977, on the grounds open under that Act, which would include correction of any error of law. Making a declaration of the kind sought in paragraph 4(b)(c) and (d) would not remove the need for a hearing by CALDB, even if otherwise appropriate, because the charge makes many allegations not covered by those claimed declarations. For these reasons, it is not appropriate for the Court to make declarations, or to refuse on the merits to make declarations, of the type sought in paragraph 4(b)(c) and (d) of the Amended Originating Process.
104 The plaintiff points out, correctly, that the obligation on the administrator under section 439A(4) to send a report to creditors had to be performed at the time that the notice of creditors' meeting is sent out. Hence, the report required by section 439A(4) could not possibly deal with a proposal for a Deed of Company Arrangement which only came to the attention of the administrator after the notice convening the meeting had been sent out. This means that the fourth and fifth of the circumstances listed in the SOFAC as ones which warranted Mr Vouris seeking the consent of the meeting to adjourn are mistaken in law - a statement in compliance with the requirements of section 439A(4)(b)(i)(ii) and (iii) of the Law, and a statement setting out details of a proposed Deed as required by section 439A(4)(c) of the Law could have been issued on one occasion only, namely when the notice of the second creditors' meeting was sent out. That fact does not mean, however, that the groundwork for declarations 4(b), (c) and (d) has necessarily been laid.
105 It does, however, justify the making of a declaration of the type sought in paragraph 5 of the Amended Originating Process. That declaration is one which is a pure question of law, not dependent on any understanding of proper professional practice, and not influenced by any exercise of judgment or discretion of a type which the statutory scheme entrusts to CALDB.
Declaration 6
106 The declaration sought in paragraph 6 of the Amended Originating Process is one which I would not make in the exercise of discretion, for the same reasons as concerns paragraphs 4(b), (c) and (d). In addition, it is too broad, in that it goes well beyond any matters which are in controversy between the plaintiff and ASIC.
107 The controversy between the plaintiff and ASIC relates to the plaintiff proceeding with the meeting, in the particular circumstances which are identified in the SOFAC. When Declaration 6 seeks a declaration that "the Plaintiff was justified in proceeding with the meeting", the text of the asked-for declaration is not limited to those circumstances - rather, it involves saying that in no conceivable respect, whatever, can criticism be made of Mr Vouris for proceeding with the meeting.
108 Declaration 6 also seeks a declaration that Mr Vouris was justified in executing the Deed. The only allegation which the SOFAC makes about Mr Vouris executing the Deed of Company Arrangement dated 16 November 2000 is in one of the particulars of the eighth respect in which it is alleged Mr Vouris breached section 1292(2)(d)(ii) of the Law. Those particulars are:
"In Central Data Networks Pty Ltd v Global Diagnostics Ltd & Anor (1998) 84 FCR 304 (Annexure 24), the Court held that the DCA signed by Deed Administrator and on behalf of the company to be valid (page 2, paragraph 2). Having regard to that authority ASIC does not dispute the right of the Administrator to execute a deed in his capacity as Deed Administrator as well as on behalf of a company. However, the execution by Mr Vouris of the DCA in such manner in the present circumstances where:
(i) if the DCA being proposed was not signed Epromotions would be placed into liquidation pursuant to section 446A(2)(a) of the Law and a creditor legal action against Ms Kosinar and Rikland Pty Ltd, through a litigation funder could be instituted;
(ii) a director of Epromotions refused to sign the DCA because he wanted a creditors' legal action through a litigation funder to proceed; and
(iii) it facilitated and completed the placement of Epromotions into a DCA;
when considered in conjunction with the matters referred to in paragraphs 2.8.3 (i) to (vii), 2.8.9 and 2.8.10 clearly indicate that Mr Vouris preferred the interests of Ms Kosinar and/or compromised his independence."
109 Insofar as paragraph 6 of the Amended Originating Process seeks a declaration that the plaintiff was justified in executing the Deed of Company Arrangement dated 16 November 2000, it goes well beyond any controversy raised by that paragraph of the SOFAC.
Amended Originating Process - Paragraph 4(e) - Availability of Defences Under Section 180(2)
110 This paragraph was added to the Amended Originating Process in the course of the hearing. It arose from the realisation that the version of section 232 of the Corporations Law which the SOFAC invoked had been repealed by the time of the actions of Mr Vouris which are the subject of the charge, and replaced by a new section 180 of the Corporations Law. The new section 180 provided:
"(1) A director or other officer of a corporation must exercise their powers and discharge their duties with the degree of care and diligence that a reasonable person would exercise if they:
(a) were a director or officer of a corporation in the corporation's circumstances; and
(b) occupied the office held by, and had the same responsibilities within the corporation as, the director or officer.
(2) A director or other officer of a corporation who makes a business judgment is taken to meet the requirements of subsection (1), and their equivalent duties at common law and in equity, in respect of the judgment if they:
(a) make the judgment in good faith for a proper purpose; and
(b) do not have a material personal interest in the subject matter of the judgment; and
(c) inform themselves about the subject matter of the judgment to the extent they reasonably believe to be appropriate; and
(d) rationally believe that the judgment is in the best interests of the corporation.
The director's or officer's belief that the judgment is in the best interests of the corporation is a rational one unless the belief is one that no reasonable person in their position would hold.
(3) In this section:
"business judgment" means any decision to take or not take action in respect of a matter relevant to the business operations of the corporation."
111 ASIC has stated that it will amend the SOFAC to replace the references to section 232(4) with references to section 180(1), and make any consequential amendments. I will leave to one side whether that circumstance means that Declaration 4(e) should not be made on the basis that it is premature.
112 I decline to make the Declaration on the ground that there is no real dispute about it. ASIC says (in a written submission delivered, with leave, after the conclusion of the oral hearing, the leave being granted so that ASIC had time properly to consider the amendments to the Originating Process made in the course of the hearing) that:
"It is clear on a reading of section 180 that if a person is charged with a failure to exercise care and diligence pursuant to section 180(1) then the defence afforded pursuant to section 180(2) is available."
Amended Originating Process - Paragraph 7 - Excusing Breaches Under Section 1318
113 Section 1318 of the Corporations Act 2001 (Cth) provides:
"(1) If, in any civil proceeding against a person to whom this section applies for negligence, default, breach of trust or breach of duty in a capacity as such a person, it appears to the court before which the proceedings are taken that the person is or may be liable in respect of the negligence, default or breach but that the person has acted honestly and that, having regard to all the circumstances of the case, including those connected with the person's appointment, the person ought fairly to be excused for the negligence, default or breach, the court may relieve the person either wholly or partly from liability on such terms as the court thinks fit.
(2) Where a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person, the person may apply to the Court for relief, and the Court has the same power to relieve the person as it would have had under subsection (1) if it had been a court before which proceedings against the person for negligence, default, breach of trust or breach of duty had been brought. …
(4) This section applies to a person who is:
(a) an officer of a corporation; or …
(5) For the purposes of this section "officer" in relation to a corporation means: …
(c) an administrator of the corporation …"
114 It is to be observed that section 1318(1) uses the word "court" with a small "c", while section 1318(2) refers to "the Court", with a capital "C". The difference is explained by section 58AA of the Corporations Act 2001 (Cth):
(1) Subject to subsection (2), in this Act:
"court" means any court.
"Court" means any of the following courts:
(a) the Federal Court;
(b) the Supreme Court of a State or Territory;
(c) the Family Court of Australia;
(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.
(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court."
115 It is a precondition for the operation of section 1318(1) that there be a civil proceeding, in a court, against a person who occupies one of the roles identified in section 1318(4) in a corporation, and that those proceedings be "for negligence, default, breach of trust or breach of duty in a capacity as such a person". There are no proceedings of that kind against Mr Vouris. Further, the power to relieve which is conferred by section 1318(1) is one which can only be exercised by "the court before which the proceedings are taken". Thus, section 1318(1) cannot be availed of by Mr Vouris in the present case.
116 Section 1318(2) enables any of the specific courts which count as a "Court" to grant relief. The person to whom relief is granted must be someone who has one of the types of connection to a corporation identified in section 1318(4). The requirement that that person "has reason to apprehend" that a claim will or might be made against him or her means that there must be an objective basis for believing that the claim will or might be made against that person. Further, the claim must be one "in respect of any negligence, default, breach of trust or breach of duty in a capacity as such a person".
117 The way the argument was put is that it was the proceedings before CALDB which were the relevant proceedings in which the claim of negligence, default, breach of trust or breach of duty was made against Mr Vouris. I will assume (without deciding) in his favour that the fact that those proceedings have already been brought does not put him outside the scope of section 1318(2), on the ground that 1318(2) applies only in a situation where there is "reason to apprehend" that the claim "will or might be made", and hence does not apply to claims already made.
118 Even making that assumption, section 1318 does not enable this Court to grant that relief to Mr Vouris. The power which the Court has to grant relief, is the same as the power that a small-c court would have had under section 1318(1) if it had been a court before which proceedings against that person for negligence, default, breach of trust or breach of duty had been brought. The power of a small-c court under section 1318(1) is one which can be exercised only in a "civil proceeding", "for negligence, default breach of trust or breach of duty". It follows that the capacity of a Court under section 1318(2) to grant relief is limited to relief against the type of claim which can be brought, in a court, in a "civil proceeding", "for negligence, default breach of trust or breach of duty".
119 Thus, even if it were the case that the disciplinary proceedings against Mr Vouris amounted to "any claim … in respect of any negligence, default, breach of trust or breach of duty", within the meaning of section 1318(2), section 1318(2) does not confer on this Court the power to relieve him from liability. This Court has no power to relieve against it, because those professional disciplinary proceedings are not the type of proceedings which could be brought in a court, and hence are not the type of proceedings to which section 1318(1) could possibly apply.
120 This conclusion, derived from analysis of the text of section 1318, is consistent with its legislative history. Section 1318 has a lineage which starts with section 3 of the Judicial Trustees Act 1896 of England, and can be traced through section 32 of the Companies Act 1907 of England, section 279 of the Companies (Consolidation) Act 1908 of England, section 288 of the Companies Act 1910 (Vic) section 288 Companies Act 1915 (Vic), section 288 Companies Act 1928 (Vic), and section 365 Companies Act 1961 (Vic): Lawson v Mitchell [1975] VR 579 at 585. After tracing the history of the provision, Young CJ and Newton J said, in Lawson v Mitchell at 586:
"The expression in s.32 of the English Companies Act 1907 "any proceeding against a director of a company for negligence or breach of trust" thus naturally referred to civil proceedings only, namely the principal proceedings then available in which a director could be held civilly liable to his company for loss which he had caused to it. Prior to 1907 there had been several decisions in England where a director had been held to be civilly liable to compensate his company for loss caused by technical misconduct (ie "breach of trust") on his part, notwithstanding that the director had acted honestly, or even if reliance upon legal advice: see, for example, Hirsche v Simms [1894] AC 654; Re Faure Electric Accumulator Co (1889) 40 ChD 141; [1886-90] All ER Rep 607 and Young v Naval and Military Co-operative Society [1905] 1 KB 687: see too the observations of Lindley LJ in Cullerne v London & Suburban General Permanent Building Society (1890) 25 QBD 485 at p.490. In our opinion the purpose of s.32 of the English Companies Act 1907 was to provide some amelioration of the strict approach laid down by such decisions in relation to civil liability of directors …" (emphasis added)
121 In AWA Ltd v Daniels (1992) 7 ACSR 759 at 855 Rogers CJ Com Div referred to the English committee whose report led to the enactment of the 1907 provision. Rogers CJ Com Div quotes that report's recommendation that power to relieve from breach of duty be granted to the Court,
"provided that the breach has been occasioned by honest oversight, inadvertence, or error of judgment on his part, and in an action for negligence or breach of trust against a director to relieve him from his liability on such terms as the court may consider proper if the court is satisfied that he has acted honestly and reasonably". (emphasis added)
122 There is another, though less powerful, reason for concluding that section 1318 cannot be used to relieve Mr Vouris from any liability which CALDB might impose on him. In Lawson v Mitchell Young CJ and Newton J said, at 595:
"The use of the expression in sub-s (1) "relieve him either wholly or partly from his liability" is difficult to apply to criminal proceedings. A person charged with an offence against a provision of the Companies Act may be exposed to twofold liability, namely, to a conviction and to a penalty, either by way of fine or imprisonment or both. To relieve a person so charged wholly of liability would necessitate a dismissal of the information. But it is not clear how a court could relieve a defendant partly from his liability for his conviction and punishment. Furthermore the exercise of power to relieve a person wholly or partly in respect of prospective liability for conviction and punishment would create great problems. It might require a Court to make findings of fact upon an information for an offence - perhaps in advance of its formulation - and an adjudication that the person at risk should not be convicted, or if convicted not punished. But apart from procedural problems of this type, relief from liability is not an expression used in connection with a criminal offence. The procedure followed to absolve a person from risk of conviction is to grant him either a pardon or an indemnity or immunity from prosecution - In addition the Crown might enter a nolle prosequi for this purpose."
123 While those difficulties of applying section 1318 to criminal proceedings do not all apply to administrative proceedings seeking a disciplinary sanction, there is still considerable awkwardness in describing a process of saying that no such sanction shall be applied as one of "relieving … from liability".
Additional Claim to Relief Under Section 1322(4)(c) - Relief from Liability for Late Convening of Meeting
124 I should mention here a claim which was dealt with in argument, although not within the scope of the Amended Originating Process. It concerns the admitted breach of the Act involved in convening the second creditors' meeting one day late. One of the orders which is possible under section 1322(4)(c) is "an order relieving a person in whole or in part from any civil liability in respect of a contravention or failure of a kind referred to in paragraph (a)." In Re Ricon Constructions Pty Ltd (in liq); ex parte McDonald, Santow J not only made an order under section 447A(1) and section 1322 validating a second creditors' meeting which had been convened one day late, but also made an order under section 1322(4)(c). Pursuant to section 1322(6)(b) and (c), an order under section 1322(4)(c) cannot be made unless the Court is satisfied that the person subject to the civil liability concerned acted honestly, and that no substantial injustice has been or is likely to be caused to any person. I have already held that those factual elements are satisfied, so far as the meeting being convened one day late is concerned.
125 Though section 1322(6) sets out necessary preconditions for the making of an order under 1322(4), the making of the order is still discretionary. To decide whether it should be granted, one needs to consider what is the extent of relief which would result from the making of an order. That depends on turn as what counts as "any civil liability", within the meaning of section 1322(4)(c).
126 The Corporations Act 2001 (Cth) contains no definition of the expression "civil liability". Section 9 contains a definition that "civil matter" means "a matter other than a criminal matter". Clearly a "civil liability" would include any liability which could be enforced in the courts by a non-criminal procedure. An arbitration has been held to be a "civil proceedings" within the meaning of the provision which prohibited the commencing or proceeding with a "action or other civil proceeding" against a company in liquidation except by leave of the court (Re Vassal Pty Ltd (1983) 8 ACLR 683; Doran Constructions Pty Ltd (in liq) v Beresfield Aluminium Pty Ltd (2002) 54 NSWLR 416 at 418), and within the meaning of section 16 of the Service and Execution of Process Act 1901 (Cth) (Alliance Petroleum Australia (NL) v Australian Gaslight Co Ltd (1983) 48 CLR 69; TNT Bulkships Ltd v Interstate Construction Pty Ltd (1985) 35 NTR 15.) A "civil proceeding" includes an examination in a company liquidation: Cheney v Spooner (1929) 41 CLR 532; Re Williams Bros Ltd (1928) 46 WN (NSW) 39).
127 Whether or not the proceedings before CALDB count as a "civil proceeding", I have some doubt whether any penalty which CALDB could impose would count as "any civil liability" within the meaning of section 1322(4)(c). The range of remedies open to CALDB are cancellation or suspension of registration, admonishing or reprimanding, and requiring undertakings. There is the same awkwardness in treating those sanctions as "any civil liability" for the purpose of section 1322(4)(c), as there is in treating them as a liability which can be relieved against under section 1318.
128 However, I shall not decide this point on that basis. Even if the liability which CALDB could impose counted as a "civil liability" within the meaning of section 1322, I would not as a matter of discretion relieve Mr Vouris from any such liability. That view is not based on any opinion about whether Mr Vouris does, or does not, deserve to have any punishment imposed on him - it is based solely on the view that, when the jurisdiction of CALDB has been validly attracted, and the decision of CALDB is influenced by questions of proper professional practice, this Court ought not make an order which has the effect of preventing CALDB from performing the task Parliament intended it to perform. Even if making such an order were within the words of section 1322(4), and in that sense within power, it is not, it seems to me, within the proper scope for the exercise of discretion under section 1322. Hence, while it seems to me that it would be appropriate to make an order under section 1322(4)(c) concerning the late convening of the meeting, I would except from that order any penalty which CALDB might think fit to impose. That exception is one I make for the sake of clarity about the scope of the order, and even though I have doubts about whether there would be power under section 1322(4)(c) for this Court to relieve Mr Vouris from the type of penalties which CALDB can impose.
Declaration 10 - Admissibility or Relevance of Evidence before CALDB
129 Exhibit NH3 is a collection of minutes of the second meeting of creditors, of various companies which were in administration. They were all minutes where a proposal for a deed of company arrangement, or an amendment of a proposal for a deed of company arrangement, was received after the notice of meeting and its accompanying report were sent. There were seven sets of minutes in total. By written submission filed, with leave, after conclusion of the oral hearing, ASIC acknowledged that two of them were no longer relevant, and would not be used before CALDB.
130 I have set out in para [33] above the provisions of section 218(1) of the ASIC Act. Concerning a similar provision in section 33(1) Administrative Appeals Tribunal Act 1975, which freed that Tribunal from the rules of evidence, Brennan J said in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 256-7,
"To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: "Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence'. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'." That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. …
The majority judgments in Bott's case, supra, show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J said at 249, 250: "The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case."