Re Little River Goldfields NL and Little River (Resources) Pty Ltd v Kym Moulds and Australian Securities Commission Re Frank Lee and Steven Lee v Kym Moulds; Ronald Frederick Dunlop and Australian Securities Commission [1991] FCA 569 (22 November 1991)

FEDERAL COURT OF AUSTRALIA

Re: LITTLE RIVER GOLDFIELDS N.L. and LITTLE RIVER (RESOURCES) PTY LTD
And: KYM MOULDS and AUSTRALIAN SECURITIES COMMISSION
Re: FRANK LEE and STEVEN LEE
And: KYM MOULDS; RONALD FREDERICK DUNLOP and AUSTRALIAN SECURITIES COMMISSION
No. G365 and G481 of 1991
FED No. 721
Administrative Law
6 ACSR 299/10 ACLC 121
(1991) 32 FCR 456
(1991) 25 ALD 701 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Administrative Law - investigations by Australian Securities Commission into insider trading - whether a valid investigation - whether absence of a responsible delegate causes investigation to lapse - whether investigations unreasonable or not bona fide - whether investigations limited to transactions mentioned in affidavits - jurisdiction of Federal Court to review decisions of ASC under the ADJR Act.

Australian Securities Commission Act 1989 (Cth) - ss.13, 19, 31, 33

Corporations (New South Wales) Act 1990 (N.S.W.) - s.42(1)

HEARING

SYDNEY
22:11:1991

Counsel for the Applicants: Mr I.J. Kalaf

Solicitors for the Applicants: Kalaf and Damianos

Counsel for the Respondents: Mr C. Birch

Solicitors for the Respondents: Mr P.J. Stepek

ORDER

The applications be dismissed.

The applicants pay the respondents costs of the applications.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

These proceedings seek orders by way of judicial review in respect of notices issued under ss.19, 31 and 33 of the Australian Securities Commission Act 1989 (Cth) ("the ASC Law"). Those sections read, inter alia:-

"19(1) This section applies where the
Commission, on reasonable grounds, suspects or
believes that a person can give information
relevant to a matter that it is investigating,
or is to investigate, under Division 1.
19(2) The Commission may, by written notice in
the prescribed form given to the person, require the person:
(a) to give to the Commission all
reasonable assistance in connection
with the investigation; and
(b) to appear before a specified member or
staff member for examination on oath
and to answer questions.
...
31(1) The Commission may give to:
...
(f) any other person who, in the
Commission's opinion, has been a party
to a dealing in securities;
a written notice requiring the production to a
specified member or staff member, at a specified
place and time, of specified books relating to:
...
(h) a dealing in securities;
...
33 The Commission may give to a person a
written notice requiring the production to a
specified member or staff member, at a specified
place and time, of specified books that are in
the first-mentioned person's possession and
relate to:
(a) affairs of a body corporate;
...".

2. One notice given to Mr Frank Lee dated 22 May 1991 read, inter alia:-

"In relation to an investigation of suspected
offences which may have been committed pursuant
to Section 128 of the Securities Industry (New
South Wales) Code in respect of dealings in
securities of Little River Goldfields NL during
the period February 1988 to February 1990 inclusive.
you (sic) are hereby notified that under
subsection 19(2) of the Australian Securities
Commission Act 1989 you are required:
(a) to appear at 10.00 a.m. on Friday 21st day of
June 1991 at the 10th Floor, 135 King Street,
SYDNEY before Frederick Dunlop and Kym Moulds
for examination on oath or affirmation and to
answer questions put to you in relation to the
investigation; and
(b) to give the Australian Securities Commission all
reasonable assistance in connection with the
investigation.
Please note the provisions of subsection 23(1) of the Act
(relating to legal representation) and section 68 of the Act
(relating to self-incrimination). The effect of those
provisions is set out at the end of this form."

This notice was signed by the respondents, Ronald Frederick Dunlop and Kym Moulds.

3. Another notice dated 22 May 1991 given to Mr Frank Lee read, inter alia:-

"In relation to an investigation of suspected
offences which may have been committed pursuant to
Section 128 of the Securities Industry (New South
Wales) Code in respect of dealings in securities of
Little River Goldfields NL during the period
February 1988 to February 1990 inclusive.
You are hereby notified that, under subsection 31(1)
of the Australian Securities Commission Act 1989,
you are required to produce to Ronald Frederick
Dunlop at 10.00 a.m. on Wednesday the 5th day of
June 1991 at the Bank of America Building, Level 10,
135 King Street, SYDNEY the following books:
1. Contract notes for any purchase of shares in Little
River Goldfields NL ("LRG") during the period February
1988 to February 1990 that were beneficially owned by
you, Lee Realty or any other organisation that you
were associated with.
2. Correspondence and other documents evidencing the
purchase of such shares for the period specified in
paragraph one.
3. Contract notes for any sale of shares in LRG during
the period February 1988 to February 1990 that were
beneficially owned by you, Lee Realty or any other
organisation that you were associated with.
4. Correspondence and other documents evidencing the sale
of such shares for the period specified in paragraph
three.
5. Contract notes for any purchase or sale of shares in
LRG during the period February 1988 to February 1990
by you, Lee Realty or any other organisation that you
were associated with, on behalf of third parties.
6. Correspondence and other documents evidencing the
purchase or sale of such shares for the period
specified in paragraph five.
7. Any written authority for you, Lee Realty or any other
organisation that you were associated with, to
purchase and sell shares in LRG on behalf of third
parties during the period February 1988 to February 1990.
8. Documents evidencing any payment of monies by you, Lee
Realty or any other organisation that you were
associated with, for any purchase of shares in LRG
during the period February 1988 to February 1990.
9. Documents evidencing any receipt of monies by you, Lee
Realty or any other organisation that you were
associated with, for any sale of shares in LRG during
the period February 1988 to February 1990."
...
11. Any personal or business diaries relating to any
purchase or sale of shares in LRG or to the Henty Gold
Prospect covering the period February 1988 to February

1990.

12. Any contemporaneous notes made by you relating to any
purchase or sale of shares in LRG or to the Henty Gold
Prospect covering the period February 1988 to February

1990.

13. Any correspondence between yourself and any of the
directors of LRG and Renison relating to the Henty
Gold Prospect during the period February 1988 to
February 1990.
14. Any correspondence between the BOS Stockbrokers and
yourself, LRG and LRR relating to shares in LRG during
the period February 1988 to February 1990.
15. Any correspondence between yourself and any other
person in respect of the purchase and sale of shares
in LRG during the period February 1988 to February 1990.
16. Any other correspondence and documents relating to the
Henty Gold Prospect during the period February 1988 to
February 1990."

I have omitted paragraph 10, compliance with which was subsequently waived. This notice was signed by Mr Dunlop.

4. Like notices were served on Mr Steven Lee.

5. A notice was also given to each of the companies. The notice to the Secretary of Little River Goldfields N.L. read:-

"In relation to an investigation of suspected
offences which may have been committed pursuant
to Section 128 of the Securities Industry (New
South Wales) Code in respect of dealings in
securities of Little River Goldfields NL (`LRG')
during the period February 1988 to February 1990 inclusive.
You are hereby notified that, under subsection
33 of the Australian Securities Commission Act
1989, you are required to produce to Kym Moulds
forthwith at the Bank of America Building, Level
10, 135 King Street, SYDNEY the following books:
1. Minutes of meetings of directors of LRG
that relate to the Joint Venture between
LRG's subsidiary, Little River (Resources)
Pty Ltd ("LRR") and Renison Consolidated
Goldfields Limited ("Renison") in the
Henty Gold Prospect in Tasmania for the
period February 1988 to February 1990.
2. Agenda for such meetings.
3. Minutes of meetings of shareholders of LRG
that relate to the Joint Venture between
LRR and Renison in the Henty Gold Prospect
in Tasmania for the period February 1988
to February 1990.
4. Agenda for such meetings.
5. Minutes of Joint Venture Committee
meetings that relate to the Joint Venture
between LRR and Renison in the Henty Gold
Prospect in Tasmania for the period
February 1988 to February 1990.
6. Internal reports, memoranda,
correspondence and other documents that
relate to the Joint Venture between LRR
and Renison in the Henty Gold Prospect in
Tasmania for the period February 1988 to
February 1990.
7. Press releases from LRG that relate to the
Joint Venture between LRR and Renison in
the Henty Gold Prospect in Tasmania for
the period February 1988 to February 1990
8. Articles in newspapers and financial
journals that relate to the Joint Venture
between LRR and Renison in the Henty Gold
Prospect in Tasmania for the period
February 1988 to February 1990."

This notice was signed by Mr Moulds.

6. A notice given to Little River (Resources) Pty Ltd was analogous. This company was joined as an applicant at the hearing. The hearing proceeded on the footing that its position was identical to that of Little River Goldfields N.L.

7. Both Mr Dunlop and Mr Moulds held relevant delegations from the Australian Securities Commission ("the Commission") under s.102 of the ASC Law and general authorities from the Commission under s.34 of the ASC Law.

8. As can be seen, each notice referred to "an investigation of suspected offences which may have been committed pursuant to Section 128 of the Securities Industry (New South Wales) Code in respect of dealings in securities of Little River Goldfields NL during the period February 1988 to February 1990 inclusive."

9. Section 128, which for present purposes is "a relevant previous law" under s.13(3) of the ASC Law, provides that insider trading in securities shall be an offence. The section provides, inter alia:-

"(3) Where a person is in possession of any
such information as is mentioned in sub-section
(1) or (2) that if generally available would be
likely materially to affect the price of
securities but is not precluded by either of
those sub-sections from dealing in those
securities, he shall not deal in those
securities if -
(a) he has obtained the
information, directly or
indirectly, from another
person and is aware, or ought
reasonably to be aware, of
facts or circumstances by
virtue of which that other
person is then himself
precluded by sub-section (1)
or (2) from dealing in those
securities; and
(b) when the information was so
obtained, he was associated
with that other person or had
with him an arrangement for
the communication of
information of a kind to which
those sub-sections apply with
a view to dealing in
securities by himself or that
other person or either of them.
...
(5) A person shall not, at any time when he is
precluded by sub-section (1), (2) or (3) from
dealing in any securities by reason of his being
in possession of any information, communicate
that information to any other person if -
(a) trading in those securities is
permitted on a stock market,
whether within or outside NSW; and
(b) he knows, or ought reasonably to
know, that the other person will
make use of the information for
the purpose of dealing, or
causing or procuring another
person to deal, in those securities."

10. The applications which were filed in this proceeding specified numerous grounds upon which orders of review were sought. I need not set out these grounds as in general they were not pursued at the hearing. The applicants subsequently complied with a direction given by Mr Justice Beaumont and filed a "statement of perceived issues and contentions". That document also was not followed or not precisely followed by Mr I.J. Kalaf, solicitor, who appeared for the applicants.

11. I should mention particularly that, insofar as the applications and the statement of contentions raised the issue that the notices were too wide and oppressive and that they required the applicants to produce documents which were not in the possession of the applicants, this contention was not pursued by Mr Kalaf at the hearing. The applicants would not fail to comply with the notices if they produced only such documents as were in their possession. Moreover, the waiver of paragraph 10 of the notices given under s.31(1) to Mr Frank Lee and Mr Steven Lee reduced the width and arguable oppressiveness of the notices.

12. Moreover, no point was taken that the notices given under s.31(1) may have required the production of documents in relation to transactions to which Mr Frank Lee and Mr Steven Lee were not parties. This point was not raised in either the application or the statement of contentions and, though it was mentioned in the course of the hearing, it was not pursued as, if the point raised any ground of invalidity, it could be overcome by the issue of other notices given under ss.31(1) and 33.

13. It was submitted by Mr Kalaf that there was no valid investigation being undertaken by the Commission. Section 13 of the ASC Law provides, inter alia:-

"(1) The Commission may make such investigation
as it thinks expedient for the due
administration of a national scheme law of this
jurisdiction where it has reason to suspect that
there may have been committed:
(a) a contravention of a national scheme law; or
(b) a contravention of a law of the
Commonwealth or of a State or
Territory, being a contravention that:
(i) concerns the management or affairs of a
body corporate; or
(ii) involves fraud or dishonesty
and relates to a body
corporate, securities or
futures contracts.
...
(3) Where the Commission has reason to suspect
that a contravention of a relevant previous law
of this jurisdiction may have been committed,
the Commission may make such investigation as it
thinks appropriate.
...
(5) Where:
(a) immediately before the commencement of this
subsection, the NCSC was investigating a
matter under a relevant previous law of
this jurisdiction; and
(b) either or both of subsections (1) and (3)
empower the Commission to investigate that matter;
then:
(c) the Commission may continue the NCSC's
investigation of that matter; and
(d) the investigation, as continued by the
Commission, is taken to be an investigation
under that subsection, or each of those
subsections, as the case may be."

14. Mr Kalaf submitted that because an investigation by the Commission could lead to serious consequences, including the prosecution of the persons whose affairs were investigated, s.13 should be strictly construed and that it should be implied that the section would not authorise an investigation unless the decision to undertake the investigation was in writing made by the Commission or a delegate of the Commission. Mr Kalaf submitted that the written decision must set out the grounds upon which a relevant contravention was suspected, the ambit of the investigation and a reasonable time within which the investigation must be completed and that the writing should appoint an officer of the Commission to have the conduct or responsibility of the investigation.

15. Counsel for the Commission, for his part, submitted that it was sufficient that a delegate of the Commission who was authorised to conduct an investigation had reason to suspect that a relevant offence may have been committed and considered that an investigation should be undertaken.

16. In my opinion, s.13 does not confer a power upon the Commission to take a decision which is "an ultimate or operative determination", as to which see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338, 375-6. Section 13 merely confers a power upon the Commission to enter upon an investigation when there is reason to suspect that there may have been committed a relevant contravention. There must be reason to suspect that a contravention has been committed and a belief that it is expedient and appropriate to undertake the investigation. But that is all the section requires. It does not require any matter to be put in writing and it is not to be implied from the sub-section that strict limited terms should be imposed upon the investigation.

17. In the usual course of events, the requisite belief will not be held by the Commission itself but by one of its authorised officers. An officer of the Commission will have authority to determine whether an investigation should be instituted or continued. Having regard to s.102 of the Act, that officer will presumably be a delegate of the Commission. But that is not to say that any officer who is a delegate would be entitled to take action on behalf of the Commission in respect of an investigation. Ordinarily, in organisations, officers are given authorities and responsibilities in addition to formal delegations. Ordinarily, the institution of an investigation and the continuance of an investigation will be undertaken by an officer of the Commission who has the authority of the Commission to handle that matter. Within the lines of authority established by the Commission, a particular matter will be committed to the responsibility of an appropriate officer subject to the supervision of his superiors.

18. In any particular case, therefore, it will be sufficient that the duly authorised officer who has the responsibility for the investigation has reason to suspect that a specified contravention has been committed and considers it expedient to conduct the investigation. The sub-section does not call for the implication of the terms which Mr Kalaf has suggested.

19. This particular investigation was commenced by the National Companies and Securities Commission under s.13 of the Securities Industry (New South Wales) Code ("the Securities Industry Code"). The National Companies and Securities Commission, as it was authorised to do, delegated to the Corporate Affairs Commission of New South Wales by instrument dated 6 May 1989 its powers and functions under Division 1 of Part II of the Securities Industry Code, in which s.13 appears. The respondents, Mr R.F. Dunlop and Mr K. Moulds, and a Miss Dulcie Taylor were in 1990 members of the Compliance Division of Business and Consumer Affairs, an agency of the New South Wales government which had the responsibility for the New South Wales Corporate Affairs Commission. On 18 June 1990, Mr Dunlop, on referral of the matter by the National Companies and Securities Commission, asked Mr Moulds, who was then an assistant senior investigator, to inquire into dealings in securities of Little River Goldfields N.L. On 17 July 1990, Mr Moulds reported to Mr Dunlop. Mr Dunlop referred the report to Ms Taylor, who was then a branch manager. On 24 July 1990, Ms Taylor approved, pursuant to s.13 of the Securities Industry Code, an investigation. The Corporate Affairs Commission, as it was authorised to do, had delegated its powers and functions to certain officers by instrument dated 8 December 1989. Ms Taylor was a delegate in respect of the powers and functions under s.13 of the Securities Industry Code.

20. Ms Taylor's approval of the investigation was in writing and read:-

"I have reviewed the Preliminary Review report
by Asst. Senior Investigator Moulds, supporting
documentation and the comments by Special
Investigator Dunlop. I have formed the view
that there is reason to suspect that breaches of
the following provisions may have been commited
(sic) by the directors of the company and/or
other persons:
- Section 128 of the Securities Industry (NSW) Code
I therefore approve an investigation pursuant to
Section 13 of the Securities Industry (NSW) Code.
I have noted that the interviews of Theresa LEE,
Frank LEE and Steven LEE would only take a short
time and use minimal Agency resources.
Enquiries could also be made as to Ms. Lee's
status as a student and whether she is in
receipt of a student allowance. The authorities
would appreciate knowledge of her earnings, if
she is receipt of the allowance, and would take
the appropriate action."

21. The investigation was thereafter continued under the general care of Mr Dunlop and Mr Moulds.

22. The investigation was not completed when the current National Scheme came into force on 1 January 1991. Accordingly, on that date, the investigation was one which the Commission was empowered to continue by reason of s.13(5) of the ASC Law. However, appropriate delegations and authorisations were not executed in favour of Mr Dunlop and Mr Moulds, who had transferred to and had become officers of the Commission, until 21 March 1991. No new approval, such as that which had been executed by Ms Dulcie Taylor, was executed. Nevertheless, the investigation continued in the hands of Messrs Dunlop and Moulds.

23. Mr Kalaf submitted that, because of the hiatus between the coming into operation of the ASC Law on 1 January 1991 and the execution of the delegations and authorisations on 21 March 1991, the investigation lapsed. However, an investigation by the Commission will not lapse merely because there is no delegate having responsibility for it. The mere continuance of an investigation by the Commission does not require that there be at all times actively involved with the investigation an officer who holds a formal delegation under s.102. It is sufficient for the operation of s.13(5) of the ASC Law that the investigation be continued by the Commission, that is to say, by officers of the Commission who have its authority. Such an investigation continued by the Commission is deemed to be an investigation under s.13. There is no evidence that, during the alleged hiatus from January 1991 to 21 March 1991, the Commission abandoned or discontinued the investigation. Nor is there evidence that Mr Dunlop and Mr Moulds did not hold the requisite view as to the investigation. Indeed, the evidence is to the contrary.

24. Mr Kalaf further submitted that no delegate of the Commission had resolved in writing to continue the investigation or in writing determined its ambit or its duration or who was to be in charge of it. For the reasons I have already given, I think that s.13 does not require such a course to be taken. I am satisfied by the evidence that Mr Dunlop, who is a manager/team leader in the Investigations Division of the New South Wales Regional Office of the Commission, and who holds a delegation and authority authorising him to do so, has the conduct of the investigation and considers that there is reason to suspect that there may have been a relevant contravention and that it is expedient to investigate the matter. I am satisfied on this aspect that the investigation is bona fide and undertaken with authority.

25. Mr Kalaf submitted that no officer of the Commission or any person previously connected with the investigation could have had reason to suspect that there had been a contravention of s.128 of the Securities Industry Code. Mr Kalaf submitted that two affidavits filed in these proceedings sworn by Mr Moulds identified only two transactions, the first being a purchase of shares in Little River Goldfields N.L. by Mr Frank Lee's daughter, Theresa Lee, on 23 February 1988, and a like purchase on 24 February 1990. Both acquisitions appear to have taken place shortly before information was released to the Australian Stock Exchange. In both cases the information concerned a gold prospect in which Little River Goldfields N.L., through its subsidiary Little River (Resources) Pty Ltd, had an interest. A release on 25 February 1988, just two days after Theresa Lee acquired shares does not appear to have had any significant effect upon the price of shares in the company. After the release on 31 January 1990, however, the shares in Little River Goldfields N.L. jumped from 45 cents to 85 cents. Theresa Lee sold out at a profit on 5 February 1990.

26. Mr Kalaf referred to affidavits filed in these proceedings by Mr Frank Lee and Mr Steven Lee, who deposed that the two disclosures to the Stock Exchange were not of information more favourable than information the company had already announced in annual reports of its directors. Mr Kalaf submitted that neither release could be described as "favourable".

27. The challenge on this ground must fail. No attempt has been made to prove what was the material before Mr Moulds at the time he recommended the investigation or before the Commission at any time in the course of the investigation. In the absence of proof as to what this material was, it could not be held that the actions taken in the course of the investigation were entirely without foundation or were unreasonable or not bona fide or that material factors were ignored. The fact that there were two purchases of shares by a member of the Lee family shortly before information was to be disclosed to the Stock Exchange, which might have an effect upon the value of the company shares, is an indication of a possible contravention of s.128 of the Securities Industry Code. But whether that was the only information known to Mr Moulds or presently known to the Commission is not disclosed by the present evidence.

28. I would add that these applications challenge only the 6 notices I have mentioned. They do not and could not challenge any actions taken in the investigation prior to 1 January 1991. I should further state that I would not, in any event, regard the original report by Mr Moulds, the approval to investigate by Ms Taylor or the subsequent carrying on of the investigation as constituting reviewable decisions in the sense I have mentioned. The notices which are under challenge stand, however, in a different position for they are formal acts which impose obligations upon the recipients. Counsel for the Commission accepted that those notices were reviewable.

29. Mr Kalaf further submitted that, as Mr Moulds' affidavits mentioned only two transactions, the purchases by Theresa Lee, the investigation must necessarily be limited to those two transactions. Mr Kalaf submitted that the Court should make an order declaring what was the ambit of the investigation so as to ensure that the investigation did not trespass into other areas, e.g., into purchases by companies and others with whom the Lee family may be connected.

30. However, the approval for the investigation given by Ms Taylor contained no clearly identifiable limits for the approval referred to the preliminary review report of Mr Moulds. Moreover, even had it originally been contemplated that the investigation would be limited to the purchases of shares by Theresa Lee, that would not be a reason why an extended investigation should not now be authorised under s.13 of the ASC Law. It is not necessary that the ambit of an investigation be specified in a document. It is sufficient that the Commission, acting through an authorised officer, has reason to suspect a relevant contravention or contraventions and the view that it is appropriate to investigate whether the contravention or contraventions occurred.

31. Moreover, the evidence as a whole does not suggest that the investigation was ever limited as Mr Kalaf suggests. Thus, an earlier and apparently invalid notice dated 13 August 1990, which was served upon Mr Frank Lee, required Mr Lee, "To disclose ... all information of which you are aware that might have affected any dealing in the securities of Little River Goldfields N.L. during the period February 1988 to March 1990". This description was not narrower than that set out in the present notices. Mr Moulds' affidavit of 17 September 1991 itself mentions, in addition to the acquisitions by Theresa Lee, that one firm of sharebrokers was responsible for over 50% of the trading in the shares of Little River Goldfields N.L. between 23 January and 31 January 1990.

32. Mr Kalaf further submitted that the notices given to Mr Steven Lee were invalid for they referred to an investigation encompassing a period going back to February 1988, a time when Mr Steven Lee was not a director. However, a notice under s.19 may be given to a person who has or is thought to have relevant information. It is not necessary that that person should be a director and it is not necessary that the person should have information as to the totality of the matter the subject of the investigation.

33. Mr Kalaf tended to suggest in his address that the Commission was not entitled to investigate whether a contravention had occurred unless it had cogent information that such was the case. Mr Kalaf seemed to suggest that the Commission was limited in the ambit of an investigation to the matter or matters established by that cogent evidence. Mr Kalaf seemed to suggest that the Commission was obliged to justify an investigation by disclosing in its notices or on affidavit the material which it had to show that a contravention had occurred.

34. But such an approach is not correct. The Commission may undertake an investigation provided that the belief is held that a contravention may have occurred and provided that the investigation is undertaken bona fide for the purpose of ascertaining what were the facts of the matter and whether a prosecution should be commenced. If any challenge is made to the investigation, the Commission is not bound to justify its action. The onus lies on the challenger to establish lack of bona fides etc., certainly in a case such as the present where the Commission appears to have grounds for inquiry into a possible contravention.

35. In the hearing of these proceedings, no issue was raised as to the jurisdiction of the Court, although the relevant law was referred to as the ASC Law, following ss.58(1) and 63(1) in Part 11 of the Corporations (New South Wales) Act 1990 (N.S.W.). I have assumed that the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") would apply to decisions and acts of the Commission. The application of that Act to the National Scheme laws seems necessarily to be implied by s.42(1) of the Corporations (New South Wales) Act, which refers to that Act, and also by the fact that the ASC Law itself makes no specific provision for the review of the decisions and acts of the Commission. A Judge of the Supreme Court of New South Wales, McLelland J., in fact referred application No. G481 of 1991 to this Court on the footing that any jurisdiction to review the notices arose under the ADJR Act. Without considering whether the Supreme Court of New South Wales may also have jurisdiction, I am content to take the view that the National Scheme does not intend that decisions and acts of the Commission should be unreviewable. I assume that the ADJR Act or s.39B of the Judiciary Act 1903 (Cth) or the judicial review jurisdiction of the Supreme Court of New South Wales confers the appropriate jurisdiction on this Court. I need not further discuss the matter as the actual head of power is not of significance.

36. For these reasons, the grounds raised by Mr Kalaf fail. The applications should be dismissed with costs.