Re Brian Leslie Joseph Buffier v Lionel Frost Bowen [1988] FCA 17 (4 February 1988)

FEDERAL COURT OF AUSTRALIA

Re: BRIAN LESLIE JOSEPH BUFFIER
And: LIONEL FROST BOWEN
No. ACT G7 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - judicial review - Consent by Attorney-General to the institution of proceedings for the summary prosecution of criminal offences notwithstanding that a period of more than three years had elapsed since the commission of the offences - Application for order of review - Whether decision-maker bound to afford the person against whom proceedings contemplated an opportunity to be heard - Whether the making of the decision an improper exercise of power in that there was a failure to take into account relevant considerations.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Companies Ordinance 1962 (A.C.T.), s.381(4)

HEARING

CANBERRA
4:2:1988

Counsel for the applicant: Mr R.C. Refshauge

Solicitors for the applicant: Macphillamy Cummins and Gibson

Counsel for the respondent: Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

ORDER

The decision made on 16 September 1986 by the respondent, the Attorney-General of the Commonwealth of Australia, under s.381(4) of the Companies Ordinance 1962 (A.C.T.) to consent to the institution of proceedings for the summary prosecution of the applicant for certain offences against that Ordinance be set aside.

The respondent pay the applicant's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

Brian Leslie Joseph Buffier ("the applicant") seeks an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision made on 16 September 1986 by the respondent, the Attorney-General of the Commonwealth of Australia, under s.381(4) of the Companies Ordinance 1962 (A.C.T.) ("the Companies Ordinance"). The decision was a decision to consent to the institution of proceedings for the summary prosecution of the applicant for certain offences against that Ordinance notwithstanding that a period of more than three years had elapsed since the offences were alleged to have been committed.

2. Prior to its repeal by the Companies Act 1981 (Cth), s.381 of the Companies Ordinance provided:

"381. (1) An offence against this Ordinance
which is punishable by imprisonment for a period
exceeding six months may, unless the contrary
intention appears, be punished either summarily
or on indictment, but an offender is not liable
to be punished more than once in respect of the
same offence.

(2) An offence against this Ordinance to
which the last preceding sub-section does not
apply is, unless the contrary intention appears,
punishable summarily.

(3) Except where provision is otherwise made
in this Ordinance, proceedings for the summary
prosecution of an offence against this Ordinance
may be taken by the Registrar or, with the
written consent of the Minister, by any person.

(4) Notwithstanding anything in any other
law of the Territory, proceedings for the summary
prosecution of an offence against this Ordinance
may be brought within the period of three years
after the commission of the offence or, with the
written consent of the Minister, at any later
time."

3. By virtue of s.10(2) of, and Part 1 of the Second Schedule to, the Seat of Government (Administration) Ordinance 1930 (A.C.T.), the Companies Ordinance was administered by the Attorney-General of the Commonwealth. The power to consent to the institution of proceedings for the summary prosecution of an offence against the Companies Ordinance survived the repeal of that Ordinance - see s.3(3) of the Companies Act 1981 (Cth), ss.3(e) and 29(2) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) and s.27 of the Companies (Transitional Provisions) Act 1981 (Cth).

4. The offences in respect of which consent was given under s.381(4) are expressed in the document of consent signed by the respondent and dated 16 September 1986 in the following terms:

"(1) That between the 3rd August 1976 and 25
June 1980 at Canberra in the Australian
Capital Territory, BRIAN LESLIE JOSEPH
BUFFIER committed an offence against
Section 161A of the Companies Ordinance
1962 as it then was in that between the
dates aforesaid Kentucky Homes
(Canberra) Pty. Limited failed to keep
such accounting records as correctly
record and explain the transactions and
financial position of the said company
and the said BRIAN LESLIE JOSEPH BUFFIER
was the officer of the said company in
default.

(2) That between 25 June 1978 and 25 June
1980 at Canberra in the Australian
Capital Territory, BRIAN LESLIE JOSEPH
BUFFIER committed an offence against
Sub-Section 303(1) of the Companies
Ordinance 1962 as it then was in that
between the dates aforesaid being the
period of two years immediately
preceeding (sic) the winding up of
Kentucky Homes (Canberra) Pty. Limited
the said company failed to keep proper
books of account and the said BRIAN
LESLIE JOSEPH BUFFIER was the officer of
the said company in default.

(3) That on or about 31 December 1979 at
Canberra in the Australian Capital
Territory, BRIAN LESLIE JOSEPH BUFFIER
committed an offence against Paragraph
300(1)(c)(iv) of the Companies Ordinance
1962 as it then was in that being an
officer of Kentucky Homes (Canberra)
Pty. Limited be did within twelve months
next before the commencement of the
winding up of the said Company make a
false entry in the books of the said
company, namely to show that a lease
over Lot 16 Section 234 Wanniassa was an
asset of the Company.

(4) That on or about the 17th day of October
1979 at Canberra in the Australian
Capital Territory BRIAN LESLIE JOSEPH
BUFFIER committed an offence against
Section 5 of the Crimes Act 1914 in that
he was knowingly concerned in the
commission of an offence against
Sub-Section 124(1) of the Companies
Ordinance 1962, namely the failure of
CHARLES PETER DUNNET to act honestly and
use reasonable diligence as a director
of Kentucky Homes (Canberra) Pty.
Limited whereby the said CHARLES PETER
DUNNET obtained a benefit for himself
namely that he used monies which were
the property of the aforesaid company to
obtain a lease over Lot 16 Section 234
Wanniassa."

5. Notwithstanding that the fourth offence is expressed to be an offence against s.5 of the Crimes Act 1914 (Cth), what is alleged is, in truth, an offence against s.124(1) of the Companies Ordinance: Mallan v. Lee [1949] HCA 48; (1949) 80 CLR 198. It follows that proceedings in respect of that offence might, in view of the lapse of time since the date of its alleged commission, be instituted only with the written consent of the respondent.

6. Informations were subsequently laid against the applicant in respect of the above offences. On those informations summonses were issued returnable before the Magistrates Court of the Australian Capital Territory on 28 October 1986. The proceedings remain pending in that court. A copy of the document evidencing the respondent's consent to the prosecution summarily of the offences was received by the applicant on 12 January 1987.

7. On 9 February 1987 the applicant commenced proceedings in this Court under the Judicial Review Act. The grounds stated in the application are that the respondent denied the applicant natural justice and that he failed to take into account relevant considerations. The particulars given of the first of those grounds are that the respondent did not afford the applicant an opportunity to be heard before making the decision and that the respondent did not inform the applicant that he was considering or intending to make the decision. The particulars of the second ground, as amended by leave during the hearing, are as follows:

"(a) The Respondent failed to take into
account that the Applicant had lost
considerable monies from the liquidation
of Kentucky Homes (Canberra) Pty.
Limited; and

(b) The Respondent failed to take into
account the reason for and length of the
delay and the prejudice to the applicant
caused by it since -

(i) the alleged commission of the
offences;

(ii) the provision to the Corporate
Affairs Commission of the A.C.T.
of the report of the liquidation
of Kentucky Homes (Canberra) Pty.
Limited."

8. In support of the application, counsel for the applicant relied upon an affidavit sworn by the applicant on 6 February 1987 wherein the applicant deposed that at no time was he approached by the respondent or anyone acting on his behalf concerning the giving of consent and that he was not asked to make any comment or submission on whether consent should be given. That that was the position was not disputed by the respondent.

9. Counsel for the applicant also relied upon a document (Exhibit "A"), being a copy of part of a submission dated 9 September 1986 made by the Commissioner for Corporate Affairs (A.C.T.) to the respondent seeking his consent to the institution of proceedings for the summary prosecution of the applicant and one Charles Peter Dunnet for offences against the Companies Ordinance. The submission was the subject of a subpoena duces tecum issued on behalf of the applicant addressed to the Commissioner for Corporate Affairs (A.C.T.). Production of the whole of the submission was objected to on a number of grounds and, in the result, the applicant did not press for its production. What was in fact produced was admitted by the respondent to be the only part of the submission that refers to the question of delay. The document in evidence reads as follows:

"Issue

Your consent is sought (Attachment 1) under
Sub-section 381(4) of the Companies Ordinance
1962 for the institution of proceedings for the
summary prosecution of Brian Leslie Joseph
BUFFIER and Charles Peter DUNNET for alleged
offences against Sections 124, 161A, 300 and 303
of the Companies Ordinance 1962 in connection
with the management of KENTUCKY HOMES (CANBERRA)
PTY. LIMITED. A copy of the inspector's report
is at Attachment 2.

....

3. Your consent is required as the alleged
offences occurred more than three years ago
between 1976 and 1980. The Ordinance still
applies to these offences (relevant legislation
at Attachment 5).

....

5. The proceedings could not be brought within
the three year period as the matter did not come
to the attention of the Commission until
approximately five years after the first of the
alleged offences had been committed. Workloads
prevented the Commission from completing its
enquiries for approximately another three years
and although the brief of evidence was referred
to the D.P.P. in May 1985 a reply was not
received until July 1986. Enquiries into the
affairs of Kentucky Homes (Canberra) Pty.
Limited were also prolonged by lack of
co-operation on the part of company officers and
the large volume of company records to be
examined.

....

7. I consider that it would be reasonable for
you to consent having regard to the serious
nature of the offences. (The specific reasons
in support are outlined at Attachment 8)."

In the margin of the submission, immediately below the above recommendation, is a notation that it was approved by the respondent on 16 September 1986.

10. The document referred to as "Attachment 8" is also in evidence. It reads:

"FACTORS SUPPORTING THE GRANT
OF CONSENT TO PROSECUTE

The following considerations support the grant of
consent in this case:

(i) The Director of Public Prosecutions has
advised that prima facie cases exist
against BUFFIER and DUNNET.

(ii) The company was placed in liquidation with
a deficiency estimated to be in the
vicinity of $350,000.

(iii) Although comprehensive accounting records
were kept by the company, the liquidator
reported serious deficiencies in the
manner in which they were kept. Failure
to keep proper accounting records hindered
investigations into the company's affairs,
particularly into houses built by the
company for its directors (one of which is
the subject of offences 3 & 4).

(iv) These offences have been seen by the
legislators as serious and the penalties
are either substantial or have been
substantially increased under the current
Companies Act 1981, as follows:

Offence Companies Penalty Companies Penalty
Ordinance Act 1981
1962 Section
Section

1 161A $1000 or 6 months 267 $2500 or 6 months
imprisonment imprisonment

2 303(2) $400 or 1 years 555 $5000 or 1 year
imprisonment or both

3 & 4* 124 $2000 229(1)a $5000
(non-fraudulent)
229(1)b $20,000 or 5
(fraudulent) years or both

5 300(1)(c) 2 years 560(1) $10,000 or 2
(iv) imprisonment years or both

* Offence 4 is in fact an alleged breach of Section
5 of the Crimes Act 1914 regarding the accused
being knowingly concerned in a breach of Section
124 of the Companies Ordinance 1962."

11. Counsel for the applicant did not read a further affidavit of the applicant sworn on 20 November 1987 upon counsel for the respondent stating that it was not contended on behalf of the respondent that any relief to which the Court might otherwise consider the applicant to be entitled should be refused on discretionary grounds.

12. No evidence was adduced on behalf of the respondent.

13. The first ground upon which the decision is challenged is that set out in s.5(1)(a) of the Judicial Review Act, namely that a breach of the rules of natural justice occurred in connection with the making of the decision. As has already been mentioned, it is conceded by the respondent that the applicant was not informed, prior to the decision being made, that the respondent was to be asked to give his consent pursuant to s.381(4) of the Companies Ordinance to the institution of proceedings against the applicant and was given no opportunity to put material before the respondent or make submissions to him in relation to the matter. The applicant contends that s.381(4), on its proper construction, required that the applicant be so informed and be afforded such an opportunity. The respondent contends that he was under no such obligation.

14. Counsel for the applicant relied upon a number of matters which he submitted, considered cumulatively, supported the applicant's contention. First, it was said that, because of the nature of the power and the circumstances surrounding its exercise, it was unlikely that a person in relation to whom the exercise of the power was being considered would, unless he were expressly so informed, become aware of that fact and thus be in a position to submit material for the consideration of the respondent. Secondly, it was submitted that the matters relevant to be considered in the exercise of the power would include matters peculiarly within the knowledge of the person in relation to whom the power was to be exercised. Thirdly, emphasis was placed on the circumstance that the giving of consent could have serious consequences for the person concerned in that it could place him in jeopardy of being convicted of criminal offences of a serious nature. Fourthly, reliance was placed on the circumstance that a person in relation to whom the power was exercised would have no opportunity in the prosecution proceedings to challenge the validity of the decision to consent.

15. Counsel for the applicant conceded, for the purpose of argument, that a decision to institute a prosecution for an offence against the Companies Ordinance might properly be made without affording to the person to be prosecuted an opportunity to put material and submissions before the decision-maker. I also understood him to concede, for that purpose, that a similar situation applied to the giving of consent under s.381(3). But, it was submitted that the nature of the power conferred by s.381(4) and the matters relevant to be considered in its exercise, being the matters referred to above, compelled a different conclusion in relation to that provision.

16. It was further submitted on behalf of the applicant that the respondent was bound to afford him an opportunity to present material and make submissions in support of his contention that consent should not be given because the giving of consent would deprive the applicant of a legitimate expectation of a benefit. In respect of each of the offences alleged against him, it was said that, upon the expiration of the period of three years from the date on which the offence was alleged to have been committed, the applicant had a legitimate expectation that he would not be prosecuted in respect of that offence. In consequence, so the submission ran, consent to the institution of proceedings for that offence could not properly be given unless and until the applicant had been given an opportunity to put relevant material before, and make submissions to, the decision-maker.

17. The general principles to be applied in resolving the issue between the parties are to be found in the judgment of Mason J. in Kioa v. West [1985] HCA 81; (1985) 159 CLR 550. His Honour said, at pp 582-3:

"It is a fundamental rule of the common law
doctrine of natural justice expressed in
traditional terms that, generally speaking, when
an order is to be made which will deprive a
person of some right or interest or the
legitimate expectation of a benefit, he is
entitled to know the case sought to be made
against him and to be given an opportunity of
replying to it: Twist v. Randwick Municipal
Council [1976] HCA 58; (1976) 136 CLR 106, at p 109; Salemi
(No.2) (1977) 137 CLR, at p 419; Ratu (1977)
137 CLR, at p 476; Heatley v. Tasmanian
Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR
487, at pp 498-499; F.A.I. Insurances Ltd. v.
Winneke [1982] HCA 26; (1982) 151 CLR 342, at pp 360,
376-377; Annamunthodo v. Oilfields Workers'
Trade Union (1961) AC 945. The reference to
'right or interest' in this formulation must be
understood as relating to personal liberty,
status, preservation of livelihood and
reputation, as well as to proprietary rights and
interests.

The reference to 'legitimate expectation' makes
it clear that the doctrine applies in
circumstances where the order will not result in
the deprivation of a legal right or interest.
Take, for example, an application for a renewal
of a licence where the applicant, though he has
no legal right or interest, may nevertheless
have a legitimate expectation which will attract
the rules of natural justice. In Salemi (No.2)
(1977) 137 CLR, at p 404 Barwick C.J.
expressed the view that the expression
'legitimate expectation' adds little, if
anything, to the concept of a right. However,
later decisions demonstrate that the concept of
'legitimate expectation' extends to expectations
which go beyond enforceable legal rights
provided that they are reasonably based:
Heatley (1977) 137 CLR, at pp 508-509; F.A.I.
(1977) 137 CLR, at pp 348, 351-352, 369, 412;
Attorney-General (Hong Kong) v. Ng Yuen Shiu
[1983] UKPC 2; (1983) 2 AC 629, at p 636. The expectation
may be based on some statement or undertaking on
the part of the authority that makes the
relevant decision. In the view of some members
of the Court in Salemi (No.2) the 'amnesty'
constituted an example of such an undertaking.
Alternatively, the expectation may arise from
the very nature of the application, as it did in
the case of the application for a renewal of a
licence in F.A.I. [1982] HCA 26; (1982) 151 CLR 342 or from
the existence of a regular practice which the
person affected can reasonably expect to
continue: Council of Civil Service Unions v.
Minister for the Civil Service (1985) 1 A.C.
374, at p.401. The expectation may be that a
right, interest or privilege will be granted or
renewed or that it will not be denied without an
opportunity being given to the person affected
to put his case."

His Honour continued, at pp.584-5:

"The law has now developed to a point where it
may be accepted that there is a common law duty
to act fairly, in the sense of according
procedural fairness, in the making of
administrative decisions which affect rights,
interests and legitimate expectations, subject
only to the clear manifestation of a contrary
statutory intention.

....

Where the decision in question is one for which
provision is made by statute, the application
and content of the doctrine of natural justice
or the duty to act fairly depends to a large
extent on the construction of the statute. In
Mobil Oil Australia Pty. Ltd. v. Federal
Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475,
at pp 503-504, Kitto J. pointed out that the
obligation to give a fair opportunity to parties
in controversy to correct or contradict
statements prejudicial to their view depends on
'the particular statutory framework'. What is
appropriate in terms of natural justice depends
on the circumstances of the case and they will
include, inter alia, the nature of the inquiry,
the subject-matter, and the rules under which
the decision-maker is acting: Reg. v.
Commonwealth Conciliation and Arbitration
Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122
CLR 546, at pp 552-553; National Companies
and Securities Commission v. News Corporation
Ltd. [1984] HCA 29; (1984) 156 CLR 296, at pp 311, 319-321."

18. The giving of consent under s.381(4) of the Companies Ordinance to the summary prosecution of a person for an offence against that Ordinance does not affect any right or interest of that person in the sense in which those expressions are used in the above cited passages. Indeed, I did not understand counsel for the applicant to submit to the contrary. The submission made on behalf of the applicant has already been summarised. Its acceptance depends upon the applicant being found to have had a legitimate expectation that he would not be prosecuted in respect of any of the offences alleged against him. That legitimate expectation was said to arise not from any assurance given to the applicant by the respondent or by anyone on his behalf nor from any other conduct engaged in by or on behalf of the respondent. It was said to arise solely from a consideration of the legislative provision itself.

19. In my opinion, the submission lacks substance and should be rejected. If it be proper to regard s.381(4) of the Companies Ordinance as giving rise in the applicant to a legitimate expectation of benefit, that legitimate expectation did not extend beyond an expectation (perhaps more correctly described as a right) that summary proceedings for an offence alleged to have been committed more than three years before would not be instituted except with the written consent, properly given, of the respondent.

20. In Murchison v. Keating (No.2) [1984] FCA 162; (1984) 54 ALR 386, Morling J. rejected a submission that the rules of natural justice were applicable to the making of a decision by the Treasurer of the Commonwealth of Australia pursuant to s.70(1) of the Banking Act 1959 (Cth) to consent to the institution of proceedings for an offence against that Act or the regulations made thereunder. Counsel for the applicant submitted that, although what was said in that case in relation to the giving of consent to the institution of proceedings for a criminal offence might be applicable to the comparable provision contained in s.381(3) of the Companies Ordinance, it had no application to the giving of consent under s.381(4). This was said to follow from the circumstance that s.381(4) operated only after the expiration of the three year period referred to therein, the expiration of that period giving rise to the legitimate expectation to which reference has already been made.

21. In my opinion, for the reasons I have already given, there is, for the purpose of the argument now being considered, no relevant distinction between sub-s.(3) and sub-s.(4) of s.381 of the Companies Ordinance. In the case of neither provision, in my view, is the decision-maker bound to afford to the person alleged to have committed an offence against the Ordinance a prior opportunity to present material or make submissions. This conclusion accords with that reached by the Supreme Court of Victoria in Nicol v. Attorney-General for Victoria (1982) VR 353 in relation to the provision, s.381(2), of the Companies Act 1961 (Vic) which corresponds with s.381(4) of the Companies Ordinance now under consideration. It must, however, be acknowledged, as I pointed out in the reasons for decision I delivered on 12 May 1987 dismissing an objection by the respondent to the competency of the present application, that the actual decision in that case turned on the provisions contained in the Administrative Law Act 1978 (Vic.) which delimited the kinds of decisions that could be the subject of review under that Act.

22. I should add that, in my opinion, none of the other matters relied upon by counsel for the applicant, taken singly or in combination, support the first ground upon which the decision under review is challenged.

23. I turn, then, to the second ground, that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (Judicial Review Act, s.5(1)(e)) in that the respondent failed to take a relevant consideration into account in the exercise of the power (s.5(2)(b)).

24. Sub-section (4) of s.381 of the Companies Ordinance is expressed in general terms - proceedings may be brought within three years after the commission of the offence or, with the written consent of the Minister, at any later time. The provision clearly confers a very wide discretion. The sub-section contains no specification of the criteria by reference to which the discretion to give or withhold consent is to be exercised. Nor does the sub-section expressly identify any matters as factors which the decision-maker is bound to take into account in exercising the power. In such circumstances, "the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act": Minister for Aboriginal Affairs v. Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J. at p 40.

25. In my opinion, a consideration of s.381(4) in its context and the general nature of the power which it confers serves to indicate that the overriding consideration for the decision-maker must be what the proper administration of justice dictates in the particular case. But, a consideration of those matters also serves to identify a number of factors which must be taken into account in the balancing process which is involved in determining whether consent to the institution of proceedings for an offence should be granted notwithstanding the lapse of time since the date of its alleged commission.

26. During the period of three years to which the sub-section refers, proceedings for an offence may be brought by the Registrar acting on his own initiative. During that period, proceedings may also be instituted by any person, the common informer, provided he obtains the consent of the respondent as the relevant Minister. So much is provided in s.381(3). The requirement that a person other than the Registrar must obtain the consent of the respondent is to be seen as an administrative safeguard against the formulation of charges which the respondent, as Attorney-General, might think do not warrant prosecution: Murchison v. Keating (No.2) (supra) at p 394. After the expiration of the period of three years no prosecution may be brought, either by the Registrar or by any other person, without the respondent's written consent.

27. The subject-matter of the power clearly requires that, in considering whether to consent, the respondent is bound to consider the nature of the offence in question, the allegations made against the person alleged to have committed that offence, the seriousness of those allegations and the sufficiency of the evidence against him. It seems to me to be equally clear that the respondent is bound to take into account the period of time which has elapsed since the commission of the offence and, if it is likely to be substantial, the further period which will elapse before the prosecution can be heard and determined. After all, the circumstance that the period of three years since the commission of the offence has expired is the very matter which brings the relevant power into operation. The period of the delay is, therefore, at the very heart of the matter and is a consideration which the legislature must be taken to have required the decision-maker to take into account.

28. To require that the decision-maker take into account the delay which has occurred since the commission of the offence involves more than simply taking into account the period of time which has elapsed. To give proper consideration to the question before him, the decision-maker must, in addition to the actual period of time involved, have regard to the reasons why the delay occurred and to any available material offering an excuse, explanation or justification for the delay. To conclude in a particular case that, in all the circumstances, the delay was inordinate and unjustifiable would be a most material consideration in determining whether consent should be given. Further, delay usually renders more difficult the determination of factual issues. Documents and witnesses may become unavailable and, even when witnesses are available, their recollection of events may well be impaired. Clearly, if any material were available to the decision-maker showing particular prejudice to the alleged offender on this account, the decision-maker would, in my view, be bound to take that prejudice into account. Reason and experience of human affairs suggests that, at least where the delay is substantial, the alleged offender would be likely to suffer some prejudice and the likelihood that this would be so is yet another matter that the decision-maker is bound to take into account.

29. With the above considerations in mind it is necessary to examine so much of the submission dated 9 September 1986 made by the Commissioner for Corporate Affairs (A.C.T.) to the respondent as is before the Court. In doing so, due regard must be had to the admission made on behalf of the respondent that what was produced to the Court is the only part of the submission that refers to the question of delay.

30. The delay is substantial. The first of the offences alleged is said to have been committed between 3 August 1976 and 25 June 1980, that is in a period which began more than ten years and ended more than six years before the document of consent was signed on 16 September 1986. The second of the offences is alleged to have been committed between 25 June 1978 and 25 June 1980, the third on or about 31 December 1979 and the fourth on or about 17 October 1979. The date of institution of the proceedings for the prosecution of the offences does not appear in the evidence before the Court.

31. Attachment 8 to the submission is described (see the submission, par.7) as outlining the "specific reasons in support" of the recommendation that "it would be reasonable" for consent to be given. True to that description, Attachment 8 does not refer the decision-maker to any factors which might be thought to militate against giving consent and those matters are not addressed elsewhere. The only concession which the document makes to the question of delay is the reference in the third of the considerations there set forth to the circumstance that the company's failure to keep proper accounting records had hindered investigations into its affairs, particularly into houses built by the company for its directors, a matter the subject of one at least of the offences alleged against the applicant.

32. The only paragraph of the submission itself which refers to the delay is par.5, the text of which has already been set out. The primary concern of that paragraph is to identify three periods of delay.

33. The first is a period of approximately five years after the first of the alleged offences was committed, which I take to be a reference to 3 August 1976. It is said that the matter did not come to the notice of the Corporate Affairs Commission (A.C.T.) until the expiration of that period. No doubt, the circumstance that the matter had not come to the attention of the Commission until the expiration of the first period mentioned was a relevant matter for the respondent to consider and one may infer, although there is no reference to it in the submission, that that was brought about because the company did not go into liquidation until 27 June 1980 and some time necessarily elapsed thereafter before the liquidator, after making enquiries into the company's affairs, was in a position to report to the Commission that offences may have been committed. It appears, however, to be implicit in the submission that to assign as the reason for a period of delay, however long, the Commission's lack of knowledge of the matter is at once to provide a sufficient justification for treating that period of delay as providing no ground for refusing to give consent under s.381(4). That, in my opinion, cannot be regarded as a correct approach.

34. The second period of delay referred to in par.5 of the submission is a period of approximately three years commencing at the expiration of the first period. During this period (presumably from 1981 to 1984), the Commission appears to have made enquiries into the matter though no details are given as to what those enquiries were nor is any indication given as to the length of time that they necessarily required for their completion. There is a general reference to "workloads" as having prevented those enquiries being completed earlier but, again, no details are given.

35. The third period is a period of 14 months from May 1985 to July 1986 when the matter was with the Director of Public Prosecutions. No explanation, let alone justification, for this period of delay is proferred to the respondent for his consideration.

36. Paragraph 5 of the submission also contains a general statement that enquiries into the affairs of Kentucky Homes (Canberra) Pty Limited were prolonged by "lack of co-operation on the part of company officers and the large volume of company records to be examined". It does not appear whether the applicant is included in the company's officers of whom this complaint is made.

37. On the view which I have taken of the matters which the legislative provision requires to be taken into account in relation to the question of delay, it is demonstrable that the material which was before the respondent and upon which the decision to give consent was taken was manifestly inadequate. It was, in my opinion, so inadequate as to warrant the conclusion that the respondent failed to take into account relevant considerations. In particular, the material before the respondent failed to direct any attention to the question whether the delay was, in all the circumstances, to be considered inordinate and unjustifiable and failed to consider whether any and, if so, what prejudice in the preparation and conduct of his defence would be likely to be suffered by the applicant by reason of the delay. The terms of the recommendation put to the respondent also appear to me to be of some significance in this regard. It is expressed in terms of what would be reasonable. A recommendation that consent be given should, more appropriately, be expressed in terms of a conviction as to what the proper administration of justice requires in the particular circumstances of the case.

38. For the above reasons, I order that the decision under review be set aside. I further order that the respondent pay the applicant's costs. It is hardly necessary to add that whether further proceedings are to be taken against the applicant in respect of the offences which he is alleged to have committed will be a matter for consideration by the respondent and those advising him.