Consideration
31 The effect of s 569B of the Corporations Act and the definition of 'eligible applicant', when taken in conjunction with s 11(4) of the ASIC Act (see Mercantile Mutual Life Insurance v ASC (1993) 40 FCR 409), is to enable ASIC to make an administrative decision by virtue of which a person is granted standing to apply to the Court to summons a person for examination about a corporation's examinable affairs. The term 'examinable affairs' is defined in s 9 of the Corporations Act. It follows from the definition, also in s 9, of 'eligible applicant' that the appointment of a liquidator of a corporation does not preclude ASIC from granting an authorisation to some other person which will result in that person falling within the definition of 'eligible applicant': 'eligible applicant … means: … (e) a person authorised in writing by ASIC …' (Corporations Act s 9)
32 The operation of the precursor to these provisions was considered by the Full Court in Re Excel Finance Corporation Ltd v England (1994) 52 FCR 69 (Excel). The Full Court in Excel drew attention to the fact that the legislation provides for a two stage process and that different matters will arise for consideration at each stage of that process. The first stage in that procedure, where the prospective applicant for a court order is not ASIC or a person referred to in par (b), (c) or (d) of the definition of 'eligible applicant', is the authorisation by ASIC of the person to make an application under Part 5.9. The second stage is when the applicant, thus authorised, makes an application to the Court. The question at issue in the first stage is whether the prospective applicant seeking authorisation is an appropriate person for ASIC to authorise to make the application to the Court. That question will require consideration of the relationship which that person has to the relevant corporation, although it may also encompass matters personal to that applicant, such as the applicants' relationship to the persons to be examined: Excel at 82. At 86 the Full Court said:
'As we have already noted, the grant of authorisation under subs (1) does no more than confer standing upon the person authorised to make an application. That being the case, reference to the subject matter, scope and purpose of subsection (1) leads to the conclusion that the decision-maker, in determining whether to authorise a particular person to make applications in relation to a particular corporation, will be required only to consider the relationship which that person has to the external administration and in the particular case the appropriateness of that person being given standing to apply to the Court under subs (2).'
33 There was no contest as to the basic principles which are applicable where review is sought on the ground of failure to take into account relevant considerations. They were laid down by the High Court in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24. I attempted to summarise them in Elias v Commissioner of Taxation (2002) 123 FCR 499. This ground is only made out if it is shown that the decision-maker has failed to take into account a consideration which, in the circumstances, he was bound to take into account in order to validly exercise the power (ie a mandatory relevant consideration). Mandatory relevant considerations are determined by a construction of the statute. In particular, where the terms of the power are unconfined, the factors that may be taken into account are similarly unconfined, except insofar as there is found some implied limitation on the factors to which the decision-maker may legitimately have regard; with the existence of any implied limitation turning ultimately on the subject matter, scope and purpose of the statute. Where a power is cast in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not.
34 As Excel makes plain, the question for ASIC to determine was whether Mr Carpenter was an appropriate person to receive the relevant authorisation. An applicant seeking a written authorisation does not have to show that he or she is the most suitable person in the circumstances to conduct the proposed examinations: see Queensland Building Services v Australian Securities Commission (1997) 73 FCR 29 at 40, although that is not to say that if some more suitable person was seeking to conduct examinations, that ASIC would not be entitled to take that matter into account, if it thought it appropriate, in deciding whether or not to grant an authorisation.
35 The Delegate did not give evidence in these proceedings. A request that he should provide a statement pursuant to s 13 of the ADJR Act was rejected by ASIC. The justification for the rejection was that the decision was not one to which s 13 applied because it was included in one of the classes of decision set out in Schedule 2 to the ADJR Act, and in particular par (f) and/or (f)(iv). This matter was not pursued further. The evidence establishes that the documents before the Delegate at the time he made his decision consisted of the documents included in the brief to the Delegate and the documents included in the ASIC working file. Given the failure of the applicants to pursue a request under s 13, the Delegate was not bound to give reasons for his decision, and nor did he do so. In those circumstances, any determination, purely as a matter of fact, as to what matters the Delegate did or did not take into account can only be made by way of inference from the documents that were put before him.
36 Notwithstanding particulars (i)(A)-(C) above, it is clear that information in relation to each of these matters was placed before the Delegate. In those circumstances, either the Delegate did take these matters into account, or, at the very least, the applicants have not established that the Delegate failed to take the matters into account, given that there is simply no basis in the evidence on which I could draw an inference that the Delegate failed to take into account matters which were put before him: see Minister for Aboriginal & Torres Strait Islander Affairs v Western Australia (1996) 67 FCR 40 at 62; Minister for Immigration & Multicultural & Indigenous Affairs v W157/00A (2002) 125 FCR 433 at 460-461.
37 Again, notwithstanding particular (ii)(A) - (C) above, it is clear that information in relation to each of these matters was placed before the Delegate. At the very least, the applicants have not shown that the Delegate failed to take those matters into account.
38 So far as particular (ii)(D) is concerned, any concern about interference with the liquidator's functions was not apparent in correspondence before ASIC, nor was it referred to by Mr Fordyce when he was asked by ASIC about the liquidator's position. There is no evidence from the liquidator that he has, at any time, ever perceived a risk of interference to his functions from examinations being conducted by some other 'eligible applicant'. The authorisation of Mr Carpenter as an 'eligible applicant' does not have the result that the liquidator ceases to have that status. Hence, there is no warrant in the statutory scheme for an implication that ASIC is bound to make enquiries of all or some of the persons falling within the definition of 'eligible applicant' before giving a written authorisation to some other person.
39 Particular (iB) is not made out. The attitude of the liquidator of Pioneer concerning the matters particularised is not a mandatory relevant consideration. The question before ASIC was not whether the liquidator had acted properly or improperly in coming to his decision not to institute proceedings against the Bank until outstanding issues were resolved. All that ASIC had to decide was whether the range of 'eligible applicants' should be expanded so as to include Mr Carpenter. If more than one eligible applicant made an application to the Court under s 596B of the Corporations Act, then it would be a matter for the Court to determine how any conflict between the competing applications should be resolved.
40 In any event, ASIC had before it the letter from the liquidator of 13 November 2003 which disclosed his position, as well as the letter of 22 December 2003 from the applicants' solicitors. This correspondence recorded that the liquidator had advised Mr Carpenter's solicitors that he does not propose to conduct an examination unless and until he has secured sufficient funds or funding to conduct not only the examinations but also the case which, in Mr Carpenter's contention, Pioneer has against the Bank. The correspondence also disclosed that the liquidator had no funds to be able to bring any action. These matters were also referred to in Ms Tuck's memorandum of 8 January 2004. Information was thus placed before the Delegate as to the liquidator's attitude concerning the proposed proceedings and the proposed examinations.
41 Grounds (iC), (iD) and (iE) allege a failure to take into account matters referred to in the judgment of Austin J. The issue with which Austin J was concerned was whether Mr Thomas should be removed as liquidator. In the course of coming to a decision upon that question, Austin J found that there was no impropriety in the manner in which the liquidator had approached the possible claim of Pioneer against the Bank. For the reasons earlier given, whether or not the liquidator was justified in the stance which he took was not a mandatory relevant consideration, as ASIC was entitled to grant a written authorisation in favour of Mr Carpenter without an enquiry as to whether the liquidator was guilty of any relevant default.