O'Sullivan v Australian Securities and Investments Commission

1. The appeal be allowed.
2. The orders of the Tribunal made on 2 May 2017 be set aside and the matter remitted to the Tribunal to redetermine according to law.
3. The Respondent to pay the Applicant's costs up to and including 24 January 2018.
4. The Applicant to pay the Respondent's costs thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an appeal from the Administrative Appeals Tribunal given on 2 May 2017: O'Sullivan v Australian Securities and Investments Commission [2017] AATA 644. The Tribunal affirmed an earlier decision of the Australian Securities and Investments Commission ('ASIC') to prohibit the Applicant, Mr O'Sullivan, from providing financial services for a period of 7 years from the date of its decision, 16 February 2015. On that day, ASIC also decided that Mr O'Sullivan should be disqualified from managing a corporation for a period of 5 years. On review the Tribunal varied this decision by allowing Mr O'Sullivan to be involved in the management of three family companies so long as their activities did not involve persons other than Mr O'Sullivan's immediate family. 2 The hearing in the Tribunal concluded on 17 November 2015. Following it a large quantity of additional documentation became available. A number of procedural steps were taken in the Tribunal relating to these materials. For present purposes it is enough to know that these steps resulted in the production by the parties of, inter alia, an agreed statement of facts. The agreed statement of facts was provided to the Tribunal on 14 November 2016, nearly a year after the appeal had been reserved. In addition, Mr O'Sullivan's representatives also provided a written submission two days later on 16 November 2016 as to why fresh evidence, including the agreed statement of facts, should be taken into account by the Tribunal. 3 When the Tribunal delivered its reasons on 2 May 2017 it is apparent that it failed to consider either the agreed statement of facts or this written submission. On the hearing of the appeal in this Court Mr Lloyd SC, who appeared on behalf of ASIC with Mr King of counsel, accepted that the material was important and that the Tribunal had failed to respond to substantial clearly articulated arguments in consequence. The effect of that concession was that it followed that the Tribunal had denied Mr O'Sullivan procedural fairness. Both parties agreed this was the case and it is, in any event, well established: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [58]. 4 The necessary consequence of this is that the appeal must be allowed. The procedural fairness argument was embodied in what the parties referred to as ground 6 of the notice of appeal (but which appeared to be ground 7 as a matter of formality). Grounds 2-5 also raised various arguments about other errors allegedly made by the Tribunal. The parties agreed that it was not necessary for the Court to resolve these in light of the outcome of ground 6. 5 It is, however, necessary still to deal with ground 1 which involved a contention that neither the Tribunal nor ASIC had jurisdiction to prohibit Mr O'Sullivan from managing corporations under s 206F of the Corporations Act 2001 (Cth). During argument, Mr Jackman SC who, with Ms Mirzabegian of counsel, appeared for Mr O'Sullivan indicated that he would seek to add five words to ground 1 by way of clarification. This was not opposed by ASIC. Ground 1 (with those words added in underline) was as follows: '1. The Tribunal erred in law in holding that it (or ASIC) had jurisdiction to disqualify the Applicant from managing corporations under s 206F of the Corporations Act in circumstances where the Cashflow Liquidator's Report was known by ASIC to be incorrect. Particulars a. The uncontested evidence before the Tribunal was that the Cashflow Liquidator's Report was incorrect. b. The ASIC delegate at first instance was "not satisfied that Cashflow on being wound up had any significant unsecured creditors for whom the amount owed could be attributed to the conduct of its directors". c. The Tribunal: i. found at [707] that that even if it accepted that there were no unsecured creditor claims projected in the Cashflow Liquidator's Report, that would not necessarily impact on the disqualification decision; and ii. held at [709] that ASIC was authorised and empowered to make a decision on the merits as to whether disqualification was justified regardless of the correctness of the liquidator's reports lodged under s 533(1) of the Corporations Act.' 6 I will grant Mr O'Sullivan leave to amend his notice of appeal to add those words. I dispense with the need for the amended notice of appeal to be filed. 7 The effect of ground 1, if it be accepted, is that the Tribunal has no jurisdiction to hear Mr O'Sullivan's review application. During argument, some difficulties were identified with this position. The first was that the jurisdictional argument did not in any way affect the Tribunal's decision to prohibit Mr O'Sullivan from providing financial services which was made under s 920A(1)(e) of the Act. Since the argument was directed only at the order made by the Tribunal under s 206F to prohibit Mr O'Sullivan from managing a corporation it followed that the Tribunal's alleged lack of jurisdiction extended only to that matter. During argument, it was accepted that this was so. 8 The second difficulty was that if the jurisdictional challenge were upheld the result would be that this Court would then set aside the Tribunal's decision. This would leave in place, however, ASIC's earlier decision to prohibit Mr O'Sullivan from being involved in the management of corporations. It would also leave in place Mr O'Sullivan's by then unresolved application for review in the Tribunal. Mr O'Sullivan did not seek in his notice of appeal any order restraining the Tribunal from proceeding under s 206F which would have been impossible, in any event, because the Tribunal was not joined as a party to the proceeding. It seems unlikely, however, that if this Court determined that the Tribunal had no jurisdiction under s 206F that the Tribunal would fail to follow the Court's conclusions to that effect. That being so Mr O'Sullivan has the difficulty that complete success by him on the jurisdictional point will only result in the restoration of ASIC's initial decision and the loss by the Tribunal of its ability to hear his review application. It is by no means obvious that this would constitute a victory for Mr O'Sullivan; indeed, it looks very much like a loss. 9 That difficulty rather suggests that Mr O'Sullivan's jurisdictional argument is not comfortably accommodated in an appellate proceeding such as the present. It would appear to be more likely to be procedurally coherent as an application for a writ of prohibition which joined ASIC and the Tribunal as respondents. 10 These substantial problems were raised during the hearing. Ultimately in reply it was indicated on Mr O'Sullivan's behalf that he would seek, if he otherwise succeeded on ground 1, a prohibitory order against the Tribunal to prevent it dealing with his own review application. It was accepted, correctly, that that could not occur whilst the Tribunal was not joined as a party. Ultimately, the matter was left on the basis that if the Court upheld his challenge to jurisdiction Mr O'Sullivan would apply at that time to join the Tribunal. 11 I have spent a little time explaining the various procedural difficulties confronting Mr O'Sullivan's case because they presage major structural difficulties in his substantive argument about s 206F. To that it is now necessary to turn. 12 Section 206F(1) of the Act provides: '206F ASIC's power of disqualification Power to disqualify (1) ASIC may disqualify a person from managing corporations for up to 5 years if: (a) within 7 years immediately before ASIC gives a notice under paragraph (b)(i): (i) the person has been an officer of 2 or more corporations; and (ii) while the person was an officer, or within 12 months after the person ceased to be an officer of those corporations, each of the corporations was wound up and a liquidator lodged a report under subsection 533(1) (including that subsection as applied by section 526‑35 of the Corporations (Aboriginal and Torres Strait Islander) Act 2006) about the corporation's inability to pay its debts; and (b) ASIC has given the person: (i) a notice in the prescribed form requiring them to demonstrate why they should not be disqualified; and (ii) an opportunity to be heard on the question; and (c) ASIC is satisfied that the disqualification is justified. …' 13 The operation of s 206F was explained by the Full Court in Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92; (2009) 178 FCR 119 ('Murdaca') at 143 [101] to have three elements: a trigger mechanism set out in s 206F(1)(a); a procedural fairness requirement set out in s 206F(1)(b); and a decision on the merits that disqualification is or is not appropriate set out in s 206F(1)(c) read with s 206F(2). As in Murdaca itself, this case is concerned with the satisfaction of the trigger condition in s 206F(1)(a). 14 There was no doubt that the first element of the trigger condition in s 206F(1)(a) was satisfied in this case. It is not in dispute that Mr O'Sullivan had been an officer of two or more corporations. Debate was instead focussed on the second element of the trigger condition, namely, whether the corporations referred to in s 206F(1)(a)(i) had been wound up and whether, importantly for present purposes, a liquidator had lodged a s 533 report about each of those corporation's inability to pay its debts. 15 In Mr O'Sullivan's case the trigger would be satisfied, at least on its face, if two or more s 533 reports were lodged by liquidators of corporations of which he was an officer. As it happens, there were two such reports. Before turning to them it is necessary to note the terms of s 533. It places an obligation on the liquidator of a corporation to lodge a report with ASIC where it appears to a liquidator that: (a) offences may have been committed in relation to corporations under, broadly speaking, company law; or (b) corporate property may have been misappropriated or that there may have been breaches of duty or trust; or (c) the company may be unable to pay its unsecured creditors more than 50 cents in the dollar. 16 It is the third of these which is relevant in this case. Section 533(1) and (2) provide: '533 Reports by liquidator (1) If it appears to the liquidator of a company, in the course of a winding up of the company, that: (a) a past or present officer or employee, or a member or contributory, of the company may have been guilty of an offence under a law of the Commonwealth or a State or Territory in relation to the company; or (b) a person who has taken part in the formation, promotion, administration, management or winding up of the company: (i) may have misapplied or retained, or may have become liable or accountable for, any money or property of the company; or (ii) may have been guilty of any negligence, default, breach of duty or breach of trust in relation to the company; or (c) the company may be unable to pay its unsecured creditors more than 50 cents in the dollar; the liquidator must: (d) as soon as practicable, and in any event within 6 months, after it so appears to him or her, lodge a report with respect to the matter and state in the report whether he or she proposes to make an application for an examination or order under section 597; and (e) give ASIC such information, and give to it such access to and facilities for inspecting and taking copies of any documents, as ASIC requires. (2) The liquidator may also, if he or she thinks fit, lodge further reports specifying any other matter that, in his or her opinion, it is desirable to bring to the notice of ASIC. …' 17 The Full Court described the operation of s 533 in Murdaca in these terms (at 144 [105]): '105 In our judgment, the liquidator is not required to express any particular views or conclusions in a s 533 report. If opinions or views on the part of the liquidator are expressed in the report, the liquidator is not required to set out the basis for such opinions or views. Nor is the liquidator obliged to have reasonable grounds for holding such opinions or views before articulating them. The function of the report is to alert ASIC to potential problems with particular corporations and to do so promptly after the potential problems have been identified by the liquidator. All that the liquidator is required to do is comply with subpars (d) and (e) of s 533(1). 18 There were three such reports in this case. Mr O'Sullivan had been a director of Cashflow Finance Solutions Pty Ltd ('Cashflow') and Provident Capital Ltd ('Provident'). Provident's business was providing property finance secured by registered first mortgages. It obtained its funding for this business from three sources: the issue of debentures to retail investors; borrowings from Bendigo and Adelaide Banks under a wholesale lending facility; and the operation of two managed investment schemes. 19 Cashflow's business, on the other hand, was the provision of short term inventory financing loans to small and medium size enterprises. Provident was wholly owned by interests associated with Mr O'Sullivan whilst a majority of the issued capital in Cashflow was held by those interests too. 20 Provident was wound up on 24 October 2012 and liquidators appointed. Cashflow was wound up on 28 May 2013 and liquidators appointed. On 24 September 2013 the liquidators of Cashflow filed with ASIC a Form EX01 indicating that the likely return to creditors would be zero cents in the dollar. At the same time a report into Cashflow under s 533 was filed with ASIC. Neither party relied upon this report. A report under s 533 was subsequently filed by the liquidators of Provident on 30 October 2013. 21 A copy of the Form EX01 for Cashflow was, however, handed up during the hearing. The relevant portion appeared under the heading 'Unsecured Creditors' and was as follows: 'Unsecured creditors 22. Please select the total number of unsecured creditors (excluding employee entitlements and taxes and other statutory debts): Less than 25 23. Please select the total $ amount owned to unsecured creditors (excluding employee entitlement and taxes and other statutory debts) $50,001 - less than $1 million 24. Is more than 50% of the total amount owed to unsecured creditors owed to related parties? No 25. Please estimate what may be the 'cents in $' dividend to unsecured creditors (excluding priority creditors): 0 22 The answer to question 25 called for an estimate not a precise answer. 23 The liquidator of Cashflow then filed a supplementary s 533 report on 14 March 2014. This was done at the request of ASIC. This report was much more detailed than the Form EX01 and ran to some 27 pages. At p. 16 the liquidators said this: '5.4 Trade creditors The Receivers' RATA discloses unsecured creditors in the amount of $935,569. Based on my investigations and claims received to date unsecured creditors as at the date of winding up amount to $933,687. Please refer to the enclosed schedule of all Company creditor claims attached as Annexure K.' 24 Annexure K showed that when the secured creditors were removed from the equation, Cashflow had unsecured creditors totalling $933,352.04. It will be noted that as with the Form EX01 the liquidator's statement did not need to be definitive. It was expressly said to be 'based on my investigations and claims received to date…'. 25 Mr O'Sullivan contends that the liquidator's report was wrong and sought to prove this. When ASIC was making its original decision it had before it a statutory declaration by Mr O'Sullivan which was to the effect that, for various reasons, the amounts totalling $933,687 were not actually owing by Cashflow at the date of the winding up. The ASIC delegate dealt with that contention at [70] in these terms: '70. Cashflow's estimated liabilities included $8,882,953 owing to Provident, a secured creditor, $370 owing regarding employees and $933,687 owing to unsecured creditors. Mr O'Sullivan in his statutory declaration stated, regarding the amounts owing to unsecured creditors totalling $933,687, various reasons for ignoring the amounts. Those reasons included the contingent nature of one amount, the incurring of other amounts by the receivers, and the offsetting claim made by Cashflow against Coface. At the hearing it was submitted that Cashflow on being wound up had no unsecured creditors. I am not satisfied that Cashflow on being wound up had any significant unsecured creditors for whom the amount owed could be attributed to the conduct of its directors.' 26 It was submitted that this showed that ASIC knew that the liquidator's report was wrong. There are, I think, a number of difficulties with that submission. The last sentence does not say that the delegate accepted that the unsecured creditors did not exist. Rather, it makes the somewhat more delphic remark that there were no significant creditors 'for whom the amount owed could be attributed to the conduct of its directors'. The meaning of that statement is readily discerned from the surrounding context in which it is found. It appears in a discussion of whether the power in s 206F(1) should be exercised against Mr O'Sullivan, that is to say, the delegate was ruminating upon whether the existence of the unsecured creditors reflected poorly upon Mr O'Sullivan's capacities as an officer of a corporation. The last sentence of [70] records the delegate's view that the existence of the unsecured creditors did not reflect negatively upon the fitness of Mr O'Sullivan to manage a corporation. I do not read it as a statement that the delegate accepted Mr O'Sullivan's claims as set out in his statutory declaration that the $933,687 of unsecured debts were not due. To the contrary, it is apparent that the delegate avoided having to deal with Mr O'Sullivan's evidence about that by concluding that the unsecured debts did not suggest Mr O'Sullivan or the other directors were unfit to manage a corporation. 27 As will be seen shortly, that conclusion marks the end of Mr O'Sullivan's appeal to this Court. This is because his argument turned on the Court accepting that ASIC knew that the unsecured debts of $933,687 were not owing and hence also that ASIC knew that the s 533 report was wrong in suggesting to the contrary. But the short fact is that ASIC did not know either of those matters. 28 Even if ASIC did know those matters (which it did not), I would not have accepted Mr O'Sullivan's argument. The submission was that s 206F(1)(a) was not engaged when ASIC knew that one of the s 533(1) reports was wrong. But it is clear from the language of s 206F(1)((a)(ii) that the mere existence of the two reports under s 533 is the jurisdictional fact upon which the provision rests. The section does not say that the reports must be right, reasonable or even sensible. The power is enlivened when two such reports have been lodged. If there is to be consideration of the substantive merits of what appears in a report that is to occur at the level of the exercise of the discretion conferred by the provision. The merits are not be considered by seeking to place a strained construction on the jurisdictional prerequisites in s 206F(1)(a)(ii). 29 All of this was explained by the Full Court in Murdaca at [117] and [120]: '117 It is the fact of lodgement of such a report that matters for the purposes of s 206F(1)(a)(ii). The correctness of information, assertions and opinions contained in the report is (at best) only relevant to the third stage of the process ie the decision stage (s 206F(1)(c)). … 120 For these reasons we reject the appellant's submission that ASIC is obliged to satisfy itself of the validity and correctness of the relevant s 533 report before it is permitted to issue a show cause notice. The appellant's submissions in support of this contention are noted at [61]-[67] above.' 30 The 'reasons' referred to at [120] include those at [117] which accordingly forms part of the ratio decidendi and binds me as a single judge. It was submitted that [117] did not address itself to the situation where it was known by ASIC that the report was wrong. I accept this, but this is because the reasoning has nothing to do with knowledge. I do not accept, therefore, that [117] does not cover the current situation. It establishes that the relevant matter is the 'fact' of lodgement. That fact was established here. 31 Next it was submitted that if [117] did operate as I accept it does then it was too broadly expressed. I do not agree. The Full Court's analysis of s 206F is, with respect, impeccable but my views as a single judge on the topic are, in any event, irrelevant. In particular, I am not at liberty to depart from the ratio decidendi of a decision of the Full Court even if I did think it too broadly expressed. 32 Accordingly, even if I had found that the delegate knew the report was wrong this would not matter for the purposes of s 206F. Only the fact of the report matters. That is not to say, as the Full Court itself accepted in Murdaca at [118], that it may not be possible to contend in some circumstances that a s 533 report is invalid. It suffices for present purposes only to observe that no such contention was made in this case. This too is fatal to Mr O'Sullivan's case. 33 There were other difficulties as well. One of these was that ASIC's findings were legally irrelevant once the review process was enlivened since the Tribunal stood in ASIC's shoes and remade the decision afresh. This was a particular problem for Mr O'Sullivan's argument because the Tribunal did not make any finding that the s 533 report was wrong so that his s 206F(1) contention never even becomes relevant. The Tribunal's finding was at [706] and was that it could 'find no basis for suggesting that the figure was materially incorrect' (the figure being $933,687). 34 If it is the Tribunal's conclusions which count when assessing the jurisdictional issue then this is fatal even if one accepts, which I do not, Mr O'Sullivan's argument about what s 206F(1)(a) requires. 35 This forced counsel for Mr O'Sullivan into a hasty retreat to two possible redoubts. The first of these was that the decision of the Tribunal did not matter and it was instead the decision of ASIC which was legally significant. This was said to be because ASIC's decision was invalid since it knew that the s 533 report was not correct. Given my finding to the contrary this argument does not much help Mr O'Sullivan. In any event, it is legally wayward. Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') provides: '43 Tribunal's decision on review … Tribunal's decision on review (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. …' 36 This has been held to require the Tribunal to stand in the shoes of the primary decision-maker and to exercise all of its powers: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 299 [40], 315 [100] and 324-5 [134]. To this it was submitted that since ASIC's decision was invalid then there was no valid appeal by Mr O'Sullivan which the Tribunal could hear, i.e, the Tribunal could only hear appeals from valid decisions. This is not quite the same as the argument in the notice of appeal or the written submissions or even with the way the case was opened and it has, in that circumstance, a certain swashbuckling spontaneity about it. But that does not matter because the submission is certainly wrong. It is established beyond doubt that the Tribunal can review invalid decisions: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 342 per Bowen CJ and 363 per Smithers J. 37 This brings one to Mr O'Sullivan's last submission which was that if it were the Tribunal's decision which was the legally relevant decision, then this Court itself should find as a fact that the statement in the s 533 report as to unsecured creditors was wrong. ASIC, on the other hand, submitted that the Court's power to do so was not enlivened and drew the Court's attention to the terms of s 44(7) of the AAT Act: '44 Appeals to Federal Court of Australia from decisions of the Tribunal … Federal Court may make findings of fact (7) If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if: (a) the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and (b) it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to: (i) the extent (if any) to which it is necessary for facts to be found; and (ii) the means by which those facts might be established; and (iii) the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and (iv) the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and (v) the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and (vi) whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and (vii) such other matters (if any) as the Court considers relevant. …' 38 Subsection (7)(b) requires the Court to be of the opinion that it is 'convenient' to find the proposed fact having regard, inter alia, to the extent to which it is necessary for the fact to be found and the means by which it might be found. If this Court were to quash the Tribunal's decision this would mean the Tribunal had not yet formed a view on the question of whether the report was right or wrong. I see no reason why this Court, bound as it is by rules of evidence, would choose to do what the Tribunal is better placed to do (and on this hypothesis, will not have done). If it had arisen, I would have declined to exercise the power in s 44(7). 39 The appeal should be allowed on ground 6 but not ground 1. The orders of the Tribunal made on 2 May 2017 should be set aside and the matter remitted to it to redetermine according to law. The Respondent should pay the Applicant's costs up to and including 24 January 2018 (the date ASIC indicated that it accepted that ground 6 justified allowing the appeal) but the Applicant should pay the Respondent's costs thereafter since it lost the argument on ground 1. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.