Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 (21 October 2003)

Last Updated: 21 October 2003

FEDERAL COURT OF AUSTRALIA

Birdseye v Australian Securities and Investments Commission

[2003] FCAFC 232

PRACTICE AND PROCEDURE - appeal under s44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) - refusal by the Deputy President of the Administrative Appeals Tribunal to extend time to apply for review of a decision of the Australian Securities and Investments Commission - whether notice of appeal complies with Order 53 rule 3 of the Federal Court Rules - way in which a question of law should be framed

ADMINISTRATIVE LAW - appeal under s44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) - refusal by the Deputy President of the Administrative Appeals Tribunal to extend time to apply for review of a decision of the Australian Securities and Investments Commission - whether the decision of the Administrative Appeals Tribunal was affected by legal error.

Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 44

Acts Interpretation Act 1901 (Cth) s 33

Federal Court Rules Order 53

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 cited

Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 followed

Birdseye v Companies Auditors and Liquidators Disciplinary Board [2002] FCA 280; [2002] 20 ACLC 805 cited

Birdseye v Companies Auditors and Liquidators Disciplinary Board [2002] FCAFC 284 cited

Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 referred to

Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 cited

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 referred to

House v The King [1936] HCA 40; (1936) 55 CLR 499 cited

In the matter of National Roads and Motorists' Association Ltd [2003] FCAFC 206 cited

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 referred to

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 cited

Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board [2001] AATA 783; 39 ACSR 414 cited

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 followed

NICHOLAS BIRDSEYE v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

S 399 of 2003

BRANSON, MARSHALL and STONE JJ

21 OCTOBER 2003

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 399 of 2003

BETWEEN:	NICHOLAS BIRDSEYE APPLICANT
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT
JUDGES:	BRANSON, MARSHALL AND STONE JJ
DATE OF ORDER:	21 OCTOBER 2003
WHERE MADE:	SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 399 of 2003

BETWEEN:	NICHOLAS BIRDSEYE APPLICANT
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT

JUDGES:	BRANSON, MARSHALL AND STONE JJ
DATE:	21 OCTOBER 2003
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

BRANSON AND STONE JJ

INTRODUCTION

1 This proceeding is brought in reliance on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (`the AAT Act'). Section 44 authorises a party to a proceeding before the Administrative Appeals Tribunal (`the Tribunal') to appeal to this Court `on a question of law' from any decision of the Tribunal in that proceeding. As Bowen CJ and Deane J observed in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581:

`The proceedings are not an appeal in the strict sense in that they lie within the original jurisdiction of the court. It is, however, convenient to adopt the nomenclature of the Act and to refer to them as an appeal.'

2 The decision of the Tribunal that founds the present appeal is a decision given by Deputy President Forgie. The learned Deputy President refused the applicant an extension of time within which to apply for review of a decision of the respondent. The decision of the respondent to which the application for an extension of time related was a decision to make an application to the Companies Auditors and Liquidators Disciplinary Board (`the Board') for an order cancelling the registration of the applicant as an auditor.

3 The jurisdiction of the Court under s 44 of the AAT Act has been exercised in this case by the Court constituted as a Full Court because the relevant decision was given by a presidential member of the Tribunal and the Chief Justice, after consulting the President of the Tribunal, considered that this was the appropriate course (s 44(3)(b) of the AAT Act).

4 At the time of the applicant's application to the Tribunal for an extension of time within which to apply for review of the respondent's decision, the respondent's application to the Board had been heard and determined. The Board had by order cancelled the applicant's registration as an auditor. Further the decision of the Board to cancel the applicant's registration as an auditor had been affirmed by the Tribunal (Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board [2001] AATA 783; 39 ACSR 414); an appeal against the decision of the Tribunal had been dismissed by the Federal Court constituted by Hill J (Birdseye v Companies Auditors and Liquidators Disciplinary Board [2002] FCA 280; 20 ACLC 805) and an appeal against the decision of Hill J had been dismissed by the Full Court of the Federal Court (Birdseye v Companies Auditors and Liquidators Disciplinary Board [2002] FCAFC 284).

DECISION OF THE TRIBUNAL

5 We have had the advantage of reading the reasons for judgment of Marshall J. We gratefully adopt his Honour's summary of the decision of the Tribunal.

NOTICE OF APPEAL

6 The notice of appeal as originally filed in this matter purported to identify the question of law raised on the appeal as:

`Whether the Tribunal has committed an error of law in determining not to extend the time within which the appellant might apply for review (on the merits by the Tribunal) of the respondent's decision.'

Plainly the above formulation did not state a question of law; it invited enquiry into whether the Tribunal had committed any error of law in reaching its decision.

7 An amended notice of appeal was foreshadowed but an application for leave to file it was not pursued. A `further amended notice of appeal' (`the notice of appeal') was filed pursuant to leave to amend the notice of appeal granted by this Court during the hearing of the appeal. It purports to identify the following questions of law:

`2.1. Whether the considerations referred to in paragraph 3.1 below were relevant to the exercise of the Tribunal's discretion under s.29 (7) of the AAT Act.

2.2. Whether the Board's decision would remain in force and remain unchallengeable even if the respondent's decision were set aside.

2.3. Whether the finding of the Tribunal referred to in paragraph 3.3 below lacked any supporting evidence.'

8 The grounds specified in the notice of appeal are as follows:

`3.1. The learned Deputy President erred in law in that she failed to take into account the following relevant considerations:

3.1.1. That the application would not be futile or productive of unacceptable uncertainty.

Particulars

The learned Deputy President held (at [65]) that to disturb the respondent Commission's decision after the Board had validly acted upon it would leave the Board's decision operative, even if uncertain in its authority. The learned Deputy President ought to have held that the Board has power to revoke its decision to cancel the appellant's registration, and setting aside the respondent Commission's decision would provide a ground for doing so.

3.1.2. That there was merit in the proposed Application for Review.

Particulars

The learned Deputy President accepted (at[60]) that the merits of the substantial application were properly to be taken into account, but failed to give any consideration to the merits, beyond a recital of some relevant facts at [18] - [23].

3.1.3. That the respondent Commission had failed to comply with the requirements of s.1317D(2), Corporations Law (then in force), thereby depriving the appellant of his right to request a statement in writing of the matters referred to in s.28(1), AAT Act, and to apply for a review of the respondent Commission's decision within the prescribed time.

3.2. Further, or in the alternative to 3.1.1. above, the learned Deputy President erred in law in concluding that, as the Board's decision would remain in force even if the respondent Commission's decision were set aside, there was no effective purpose served by the proposed Application for Review.

The learned Deputy President ought to have held that the Board has power to revoke its decision to cancel the appellant's registration, and setting aside the respondent Commission's decision would provide a ground for doing so.

Further, or alternatively, the learned Deputy President ought to have held that the appellant would not be estopped or precluded from seeking an extension of time to apply to the AAT for a second review of the Board's original decision, following a setting aside of the respondent Commission's decision.

3.3. The learned Deputy President made a finding for which there was no evidence.

Particulars

The learned Deputy President found (at [64]) that the appellant "was legally represented up to and including the hearing of the appeal to the Full Federal Court which was decided on 19 March 2002".

The learned Deputy President ought to have found (on the undisputed evidence) that the appellant was unrepresented before the Full Court (hearing: 21.08.02; decision: 10.09.02) and was legally represented only before the AAT (decision 27.08.01) and at the hearing before Hill J. (18.02.02).'

9 Although the respondent has raised no objection to the notice of appeal, it does not, in our view, comply with the requirements of O 53 r 3 of the Federal Court Rules. The requirements of O 53 r 3 of the Federal Court Rules can only be understood in the context provided by s 44(1) of the AAT Act.

10 Section 44(1) of the AAT Act provides:

`(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.'

11 Gummow J observed in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178:

`Section 44 of the AAT Act is expressed in narrower terms than the old s 196 of the Tax Act. This provided for appeals from the Board of Review which "involved" a question of law. The result was that if some question of law was involved, the whole of the decision of the Board was open to review, not merely the question of law ... This no longer will be the case with appeals brought to this court under s 44 of the AAT Act. The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself ....' (citations omitted)

12 Order 53 of the Federal Court Rules regulates the practice and procedure to be followed in respect to appeals from the Tribunal. Order 53 rule 3(2), (3) and (4) provide:

`(2) The notice of appeal shall be signed by the applicant or his solicitor and shall state -

(a) the decision of the Tribunal from which the appeal is brought, the members constituting the Tribunal and the date when the decision was made;

(b) the question or questions of law to be raised on the appeal;

(c) the order sought; and

(d) briefly, but specifically, the grounds relied upon in support of the order sought.

(3) The Court may on such terms and conditions as the Court thinks fit, allow a notice of appeal to be amended.

(4) On the hearing of an appeal, the applicant shall not, without the leave of the Court, raise any question of law or rely on any ground in support of the order sought other than those stated in the notice of appeal.'

13 In Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524 Ryan J said:

`I do not regard it as legitimate to call in aid the grounds supplied in purported compliance with O 53, r 3(2)(d) to read down the questions stated as required by paragraph (b) to what are truly questions of law. Because the appeal under s 44 of the AAT Act is confined to a question of law it would be inappropriate for the Rules to specify as part of the contents of a notice of appeal "grounds" which would be appropriate if the appeal could be brought against findings of fact as well as against what are said to be errors of law; cp O 52, r 13(2)(b) which requires a notice of appeal of that wider kind to state "briefly, but specifically, the grounds relied upon in support of the appeal". The distinction is recognized by O 53, r 3(2)(d) which requires the notice of appeal under the AAT Act to state only "the grounds relied upon in support of the order sought". In the present case the order sought is that "the Decision of the Tribunal be set aside". Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary way the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.'

14 His Honour went on at 524 to indicate his view that merely to assert that the Tribunal had erred in law in making a particular finding was not to state a question of law.

15 Further, his Honour at 527 expressed the view that:

`... it simply begs the question of law to commence it with the words "Whether the Tribunal erred in law." If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law.'

16 We express our respectful agreement with the above observations of Gummow and Ryan JJ respectively.

17 A number of well known authorities has considered the distinction between a question of law and a question of fact (see, for example, Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 (FC); Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389). However, very limited consideration has been given to how a question of law ought properly to be stated in a notice of appeal from a decision of the Tribunal having regard to the requirements imposed by O 53 r 3(2). Those requirements include that the questions of law raised by the appeal are to be stated separately from the grounds relied upon in support of the order sought on the appeal.

18 In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. It is not necessary in this case to give consideration to questions such as whether an allegation of denial of natural justice can give rise to a question of law so as to found an appeal under s 44(1) of the AAT Act (see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 esp per Gray ACJ and North J at [3]-[8] and Gyles J at [58]-[67]) and if it can, how the question of law should be stated.

19 The question set out at par 2.1 of the notice of appeal seeks a ruling by the Court on whether particular considerations were relevant to the exercise of the Tribunal's discretion under s 29(7) of the AAT Act. The discretion vested in the Tribunal by s 29(7) is expressed in general terms; upon an application being made in writing, the Tribunal may extend the time for making an application for review. A discretion conferred in such terms is unconfined `... except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ....' (Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 40).

20 A ruling by the Court that the considerations referred to in par 3.1 of the notice of appeal were relevant to the exercise of the Tribunal's discretion under s 29(7) of the AAT Act (as they almost certainly were in the sense that the Tribunal would not have acted unlawfully if it had taken them into account) would not support an order setting aside the decision of the Tribunal. Nothing in s 29(7) or elsewhere imposes upon the Tribunal a duty to consider every relevant consideration before making a decision under the section.

21 Bearing in mind that the questions of law stated in a notice of appeal are the subject matter of the appeal brought under s 44 of the AAT Act, it seems to me that par 2.1 of the notice of appeal would have to be reframed in terms such as the following before it could provide the basis for an appeal:

Whether on the proper construction of s 29(7) of the AAT Act the Tribunal, in determining whether to extend the time for the making of an application for review of a decision of the Australian Securities and Investments Commission ("ASIC") to apply to the Board for the revocation of a person's registration as an auditor, is bound to take into account:

(a) whether the application would be futile or productive of unacceptable uncertainty having regard to the power that the Board has (as the applicant contends) to revoke its decision to cancel the applicant's registration as an auditor;

(b) whether the application had merit; and

(c) whether ASIC had failed to comply with the requirements of s 1317D(2) of the Corporations Law.

22 Assuming the above question to have been the only question on the appeal, the ground relied upon in support of the claimed order quashing the decision of the Tribunal and remitting the matter to the Tribunal for determination according to law would appropriately have been expressed in terms such as:

The decision of the Tribunal should be set aside as the Tribunal exercised the discretion vested in it by s 29(7) of the AAT Act without taking into account considerations that it was bound to take into account.

23 However, Mr Wells QC, counsel for Mr Birdseye, understandably did not contend that, on the proper construction of s 29(7) of the AAT Act, the Tribunal was bound to take into account all or any of the considerations referred to in par 3.1 of the notice of appeal. Nor did Mr Wells contend that anything in the Corporations Law bound the Tribunal to take those considerations, or any of them, into account. It can thus be seen that, when critically examined, par 2.1 of the notice of appeal does not state a question of law capable of supporting an appeal from the decision of the Tribunal. An answer to the question stated in par 2.1 favourable to the applicant would not reveal any error affecting the decision of the Tribunal.

24 The precise question of law intended to be stated by par 2.2 of the notice of appeal is unclear. Neither party contended that the validity of the order of the Board cancelling the applicant's registration as an auditor would be directly affected if the decision of the respondent to apply for the order were set aside. The applicant contended, however, that if the decision of the respondent to apply for the order were set aside, the Board might exercise a power to revoke its order cancelling the applicant's registration as an auditor. The applicant placed reliance on s 33(3) of the Acts Interpretation Act 1901 (Cth) in contending that the Board had the power to revoke its order.

25 At best the question stated at par 2.2 of the notice of appeal would seem to be a question of mixed fact and law inviting:

(a) consideration of whether the Board has power to revoke an order cancelling a person's registration as an auditor; and

(b) assuming that the Board has that power, speculation as to how the Board might exercise the power in the circumstances of this case should the decision of the respondent be set aside.

26 So read the connection between the question stated in par 2.2 of the notice of appeal and the decision of the Tribunal is tenuous. At [65]-[66] of its reasons for decision the Tribunal observed:

`The difficulty that I have with Mr Birdseye's application is that, even if Mr Birdseye's delay is understandable and even if there is no unfairness in granting him an extension when his situation is compared with that of others lies in the consequences of there being a review of the Commission's decision at this stage. As I have said, the Board's decision has been reviewed by the Tribunal and an appeal against that decision has been disallowed. If the Commission's decision were reviewed and if it were decided that the correct or preferable decision would have been not to make an application to the Board, what becomes of the Board's decision? A necessary pre-requisite to its being made was the Commission's application, which was validly made at the time. To take away the pre-requisite after the Board has acted upon it and after others have acted upon the Board's decision is to unsettle all that has followed the Commission's decision.

Had Mr Birdseye applied for an extension of time in May, 2001 when his application to review the Board's decision was still on foot, it might arguably have been the case that review of the Commission's decision would not have caused any difficulties of a practical nature. Whether there would be any in such a situation remains a question for another day and I express no view on it. At this stage, though, I consider that the application for an extension is made far too late. The administration for the regulatory scheme set out in the Corporations Act and in the Corporations Law before it requires that there be a time when the Board's decisions have finality and can be relied upon. In this case, that came when the Federal Court handed down its judgement. I do not consider that I should exercise my discretion to grant an extension of time to unsettle that finality in any way.'

27 The link between the question stated at par 2.2 and the orders sought on the appeal is apparently sought to be provided by par 3.1.1 and 3.2 of the notice of appeal (see [8] above). However, as we read the decision of the Tribunal, nothing said by the Deputy President was based on a finding, one way or the other, as to whether the Board had power to revoke an order cancelling the registration of an auditor. The Deputy president expressed the view that, in effect, it was `far too late' to unsettle the finality of the order of the Board cancelling the applicant's registration as an auditor. By confirming his desire to invoke the power which he contends that the Board has to revoke its order, the applicant adds strength to the observations made by the Tribunal at [65]-[66] of its reasons for decision.

28 To the extent that par 2.2 of the notice of appeal states a question of law, it does not state a question of law on which an appeal from the decision of the Tribunal may be founded. An answer favourable to the applicant to the question stated in par 2.2 would not reveal any error affecting the decision of the Tribunal.

29 The question stated at par 2.3 of the notice of appeal is stated in the form of a question of law. The question of whether there is any evidence of a particular fact is a question of law (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321). However, in determining whether the jurisdiction of this Court has been properly invoked under s 44 of the AAT Act, form cannot prevail over substance. If the decision of the Tribunal is not based on a finding as to a particular fact, the appellant cannot found an appeal under s 44 on an assertion that there was no evidence to support that fact; no answer to the question of law could justify the grant of the relief sought, or any relief.

30 The reasons for decision of the Tribunal include the statement:

`I note that he [ie the applicant] was legally represented up to an [sic] including the hearing of the appeal to the Full Federal Court which was decided on 19 March, 2002. I make no further comment on that.'

31 In fact it was the appeal heard by Hill J that was decided on 19 March 2002. The applicant was legally represented up to and including the hearing by Hill J of the appeal to the Federal Court. The reference to the Full Federal Court would appear to be a mere slip. It would lack significance so far as the Tribunal's decision is concerned even if the Tribunal had not made it plain, as it did, that its decision was not based on its observation concerning the applicant's legal representation. The Tribunal based its decision on the matters identified at [65] - [66] of its reasons for decision (see [26] above). Even if it be assumed, contrary to the reading of the decision of the Tribunal which we consider to be the preferable reading, that the Tribunal did find that the appellant was legally represented up to and including the hearing before the Full Federal Court, the decision of the Tribunal has not been shown to have been affected by that legal error.

CONCLUSION

32 In our view, for the reasons given above, the notice of appeal does not state any question of law on which an appeal from the decision of the Tribunal could succeed. Indeed, as the reasons for judgment of Marshall J reveal, even if this Court had jurisdiction to entertain an appeal from the Tribunal which involved a question of law, this appeal would fail.

33 In the circumstances the issue raised by the notice of contention filed by the respondent need not be determined.

34 We would dismiss the application with costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson and Stone.

Associate:

Dated: 21 October 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 399 of 2003

BETWEEN:	NICHOLAS BIRDSEYE APPLICANT
AND:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION RESPONDENT

JUDGES:	BRANSON, MARSHALL AND STONE JJ
DATE:	21 OCTOBER 2003
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

MARSHALL J

35 The proceeding before the Court is an application under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (`the AAT Act'), which allows a party to a proceeding before the Administrative Appeals Tribunal (`the AAT') to `appeal' to this Court on a question of law from any decision of the AAT in that proceeding.

36 Pursuant to s 44(3)(b) of the AAT Act the jurisdiction of the Court to hear the `appeal' is to be exercised by a Full Court, as the AAT's decision was given by a presidential member and the Chief Justice has decided that the `appeal' be heard and determined by a Full Court. In hearing and determining the `appeal' the Full Court is exercising the original jurisdiction of the Court.

FACTUAL BACKGROUND

37 A sequestration order was made against the estate of Mr Birdseye on 9 September 1998. At that time Mr Birdseye was registered as an auditor. The sequestration order rendered his registration as an auditor liable to cancellation by the Companies Auditors and Liquidators Disciplinary Board (`the Board') on application by the respondent, the Australian Securities and Investments Commission (`ASIC'), pursuant to s1292(7) of the Corporations Law, as it then stood.

38 On 30 April 1999, ASIC applied to the Board to have Mr Birdseye's registration as an auditor cancelled. On 3 May 2001, the Board cancelled the registration. The AAT affirmed the Board's decision on 27 August 2001. Mr Birdseye applied to the Court by way of appeal from the decision of the AAT. The proceeding was heard by Hill J on 18 February 2002. On 19 March 2002, Hill J published his reasons for judgment in which his Honour dismissed the application. An appeal from the judgment of Hill J was heard on 21 August 2002. On 10 September 2002, a Full Court dismissed the appeal.

39 On 8 October 2002, Mr Birdseye applied to the AAT for an extension of time within which to apply to the AAT for a review of the decision of ASIC, of 30 April 1999, to apply to the Board to cancel Mr Birdseye's registration as an auditor.

THE DECISION OF THE AAT

40 The AAT refused Mr Birdseye's application for an extension of time. It noted that Mr Birdseye had 28 days within which to apply for a review of ASIC's decision. It further noted that s 29(7) of the AAT Act permitted the AAT to extend the time for the making of an application to the AAT.

41 The AAT referred to the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, in which his Honour at 348 to 349 `distilled' some principles as an inexhaustive guide to the exercise of discretion to extend time. At [17] the AAT said that:

`Although it will normally be expected that the applicant will give an explanation for his or her delay in lodging the application, such an explanation is not an essential pre-condition to the Tribunal exercising its discretion ...'

42 The AAT then traversed the uncontroversial background facts before turning to consider whether the `decision' of ASIC to apply to the Board was a decision within s 3(3) of the AAT Act. At [59] the AAT held that the decision of ASIC was a decision under the Corporations Law, which was reviewable by the AAT.

43 The AAT next considered whether an extension of time should be granted for Mr Birdseye to apply to review the decision. The AAT made further reference to Hunter Valley Developments and to cases in which the approach of Wilcox J had been applied. At [62] the AAT said that:

`In applying the guidelines set out in the Hunter Valley case, I am mindful that it was stated in that case and has been consistently stated in decisions of the Federal Court since that they are not exhaustive. I am also mindful that the Federal Court has said that there is no precondition that there must be an acceptable explanation of the delay before an application for an extension of time can be successful. While there is no pre-condition it is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered ...'

44 In Mr Birdseye's favour, the AAT noted that he had first become aware of his right to seek a review of ASIC's decision to apply to the Board on 10 May 2001. Second, the AAT observed that Mr Birdseye has:

`... made it very clear at all times that he was not happy with the Commission's applying to the Board or with the Board's subsequent decision.'

Third, the AAT considered it `understandable' that Mr Birdseye would think that `he had to complete one review before commencing another.'

45 On the other hand, the AAT observed that:

* until October 2002, Mr Birdseye had given the impression that although unhappy with ASIC's decision, he was not challenging it in the AAT;

* he was legally represented in the Court before Hill J (wrongly referred to in the AAT's reasons as `the Full Federal Court'). Hill J's judgment was published 19 March 2002; see [38] above;

* the Board's decision has been subject to review and an `appeal' to the Court, in circumstances where a `pre-requisite' to the Board's decision was ASIC's application to the Board. The AAT said that:

`To take away the pre-requisite after the Board has acted upon it and after others have acted upon the Board's decision is to unsettle all that has followed the Commission's decision.'

46 The AAT considered that the application for an extension of time was made `far too late'. It was influenced in coming to that view primarily by a desire not to unsettle the `finality' that had been achieved by the Court's rejection of Mr Birdseye's appeal against the AAT's decision to affirm the decision of the Board.

THE APPLICANT'S CONTENTIONS

47 Counsel for Mr Birdseye, Mr Wells QC, submitted to the effect that the discretion of the AAT had miscarried by it failing to take into account relevant considerations. Those considerations were said to be:

* that an extension of time would not be futile or lead to unacceptable uncertainty;

* that there was merit in the proposed application for review;

* ASIC deprived Mr Birdseye of his right to request a statement in writing of its reasons for its decision to apply to the Board,

(this last consideration was addressed briefly in written submissions but not pressed orally).

48 Mr Wells also took issue with that part of the AAT's reasons for decision, in which the AAT referred to Mr Birdseye being represented by counsel until `the hearing of the appeal to the Full Federal Court which was decided on 19 March 2002'. It was common ground that the word `Full' should not have appeared in that sentence of the AAT's reasons. Mr Wells contended that the AAT seemed to suggest that the proceedings to challenge the Board's decision had concluded in March 2002 rather than September 2002, leaving an unexplained delay of six months by Mr Birdseye. Further Mr Wells reiterated that Mr Birdseye was not represented before the Full Court. However, he conceded that the principal concerns of the AAT was a desire for finality.

49 Mr Wells submitted that the AAT did not take into account that the Board was able to revoke its decision if it could be shown that the decision of ASIC to apply to it was wrongly made. Mr Wells contended that the power of the Board to revoke its decision was derived from a proper construction of s 33 of the Acts Interpretation Act 1901 (Cth). In particular, Mr Wells referred to s 33(3) which provides that:

`Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.'

It is notable that s 33(1) provides that:

`Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.' (emphasis supplied)

50 Mr Wells conceded that there is nothing in the Corporations Act 2001 (Cth) that expressly permits the Board to revoke a decision but contended that such a power is implied by s 33 of the Acts Interpretation Act. Mr Wells further conceded that Mr Birdseye was able to apply for re-registration now, based on the changed circumstance that Mr Birdseye is no longer an undischarged bankrupt. Mr Wells refined his submission in the course of argument to the following:

* The AAT made an error of law in the exercise of its discretion by assuming that the Board's decision was not recoverable even if ASIC's decision to apply to the Board is set aside.

That submission, in turn, was based on the proposition that under s 1296 of the Corporations Law (as it then stood) the Board issued an instrument (within the meaning of the Acts Interpretation Act) when it made its decision.

THE RESPONDENT'S CONTENTIONS

51 Ms Francas, counsel for ASIC, submitted that the Corporations Act disclosed a contrary intention for the purposes of s 33 of the Acts Interpretation Act. In her written outline of submissions at [41], Ms Francas said:

`The nature of the powers being exercised by the Board are such that it would make the regulatory regime unworkable if the Board could simply change its decision ...'

52 Ms Francas also submitted that there was no duty in the AAT to consider the merits of the Board's decision in exercising its discretion to extend time.

CONSIDERATION - EXTENSION OF TIME

53 The decision of the AAT to refuse to extend time was a discretionary decision which will not be overturned unless it is demonstrated that in exercising its discretion the AAT:

* acted on a wrong principle;

* allowed irrelevant matters to guide it;

* mistook the facts; or

* did not take into account some material consideration.

See House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 520 and In the matter of National Roads and Motorists' Association Ltd [2003] FCAFC 206 at [21] to [23] per Ryan and Gyles JJ.

54 In my view the AAT did not err in the exercise of its discretion in refusing to extend time to appeal. I hold that view for reasons which follow.

55 I reject Mr Wells' contention that the ability of the Board to revoke its decision was a material or relevant consideration which the AAT did not take into account. In my view s 33(3) of the Acts Interpretation Act does not apply because the Corporation Law, as it then stood, evinced a contrary intention.

56 Under Div 3 of Pt 9.2 of the Corporations Law, the Board was given specific powers to:

(a) terminate a suspension of an auditor under s 1292(1); and

(b) under s 1297(2), suspend the operation of an order cancelling or suspending registration.

The existence of those powers tends against an intention that the Board be able to revoke a decision to cancel the registration of an auditor, especially in circumstances where it is not in dispute that an auditor is able to re-apply for registration despite the earlier cancellation decision; see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 at [8] ff per Gleeson CJ.

57 The instant case, unlike Bhardwaj, is not one where the initial decision of the decision maker was without legal foundation. The decision of the Board was legally effected and withstood challenge all the way to a Full Court of this Court; compare Bhardwaj at [53] per Gaudron and Gummow JJ. The AAT did not err in considering that it would be wrong to unsettle the finality which had been achieved to that point in the Board's decision. As Gleeson CJ said in Bhardwaj at [8]:

`The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.'

58 I further do not consider that the AAT erred by not considering the merits of the appeal in determining not to extend time. It will be a rare case where an administrative review tribunal examines the merits of an application in considering whether to extend time, unless the merits obviously disclose that the case sought to be put is either powerful or untenable. Further, it will be rare for a review tribunal to examine the merits in detail when the point of the exercise in considering whether or not to extend time is to determine whether the merits need be considered.

59 I am unable to discern how it is relevant to whether or not ASIC's decision to apply to the Board should be reviewed, to consider whether Mr Birdseye was in some way deprived of his ability to seek reasons for the decision. Finally, I consider that no error of principle is disclosed by the AAT's inadvertent reference to the word `Full' when describing the Court for the purposes of the judgment given by Hill J.

POWER TO REVIEW

60 Having regard to my views on the attack on the AAT's exercise of discretion, it is unnecessary to consider the contentions of ASIC that the AAT lacked the power to review ASIC's decision to apply to the Board.

NOTICE OF APPEAL

61 I have read in draft form, since preparing these reasons for judgment, the reasons for judgment of Branson and Stone JJ. I agree with what their Honours have said concerning the deficiencies in the applicant's notice of appeal and I also agree that the notice of appeal in the instant matter does not, with precision, identify a question or questions of law.

ORDER

62 I would order that the application be dismissed, with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 21 October 2003

Counsel for the Applicant:	Mr J Wells QC
Solicitor for the Applicant:	Iles Selley Lawyers
Counsel for the Respondent:	Ms C Francas
Solicitor for the Respondent:	Australian Securities & Investments Commission
Date of Hearing:	27 August 2003
Date of Judgment:	21 October 2003