Rich and Australian Securities and Investments Commission [2003] AATA 1009 (24 September 2003)

Last Updated: 10 October 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2003/532

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JOHN DAVID RICH

Applicant

And

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

DECISION

Tribunal

Justice Garry Downes, President

Date 24 September 2003

Place Sydney

Decision

The Tribunal grants leave for a summons to be issued against the Australian Securities and Investments Commission in the form filed by the applicant on 12 September 2003, returnable at the commencement of the hearing of the matter on 13 October 2003.

...............................................

President

CATCHWORDS

PRACTICE AND PROCEDURE - PRACTICE AND PROCEDURE - leave to issue summons - Administrative Appeals Tribunal Act 1975, s 40 - documents sought relating to exercise by respondent of a reviewable power - evidence that power may have been exercised - production not onerous - after production tribunal may consider whether access by applicant might foreclose result of application - summons returnable morning of hearing

Administrative Appeals Tribunal Act 1975 ss 28, 40

Australian Securities and Investments Commission Act 2001 s 11

Corporations Act 2001 s 536

REASONS FOR DECISION

24 September 2003

Justice Garry Downes, President

1. This is an unusual matter. The applicant seeks to review an alleged decision of the Australian Securities and Investments Commission which it says was made pursuant to section 536 of the Corporations Law. The purported decision was a decision concerning the investigation of the conduct of the liquidators of One.Tel Limited. The applicant has applied pursuant to s 28 of the Administrative Appeals Tribunal Act 1975 for reasons for the decision it says was made. There is no appeal from the alleged substantive decision

2. The Commission asserts that it has no obligation to give any reasons because it engaged in no conduct and more accurately made no decision under s 536 of the Corporations Act 2001. To the extent to which it did act and make a decision, that decision was made under s 11 of the Australian Securities and Investments Commission Act 2001 which is not the subject of review by this Tribunal and correspondingly cannot be made subject to an order for the giving of reasons.

3. The applicant seeks the issue of a summons under s 40 of the Administrative Appeals Tribunal Act.. That section permits a presidential member of the Tribunal to decline to grant leave to issue a summons. The summons proposed by the applicant requires the production of documents from the Commission's records associated with its conduct in connection with the complaint relating to the liquidators of One.Tel.

4. The respondent urges upon me that without any recourse to documents, other than those already before the Tribunal, the Tribunal will be able to determine whether or not there has been any decision under s 536 of the Act and the respondent says that plainly it will not. The respondent may be right. However, in a letter dated 16 January 2003 from the Manager of the Liquidators Program of the Commission to the applicant, reference is made to the Commission being "satisfied with our enquiries" as a result of which the Commission did "not intend any further action unless further information" came to hand. This statement appears in conjunction with a reference to s 536.

5. It may be that the applicant will be unable to do so, but I consider that it is entitled at least to seek to prove that the conduct of the Commission to which that letter was referring included the making of a decision under s 536 which would be reviewable in this Tribunal and in consequence would permit the Tribunal to make an order for the giving of reasons. Whether or not the conduct of the Commission did fall within s 536 and amount to a decision under s 536 could depend at least in part upon what was done within the Commission. That will be determined by the documents, or that may be determined, at least in part, by the documents that came into existence within the Commission in connection with its inquiries.

6. It seems to me that in these circumstances it is appropriate for me to grant leave to issue a summons. Nevertheless, I am conscious of two potential problems. The first problem that concerns me is the question of how onerous the proposed summons might be. However, Ms Henderson, appearing for the Commission, has candidly and fairly informed the Tribunal that the production of the documents would not be onerous. The second matter that concerns me is whether the documents to be produced might themselves provide reasons to the applicant which I might ultimately determine it is not entitled to. Accordingly, it seems to me that any documents which are to be produced to the Tribunal which are to be made the subject of an objection to their being made available to the applicant should be considered with care before they are made available.

7. In all the circumstances it seems to me that the appropriate way of dealing with this matter is to grant leave for the issue of a summons in the form lodged with the Tribunal, making that summons returnable on the first day of hearing of the application, which is 13 October next. I have in mind that the first matter to be determined will be whether access is given to the documents, or some of them. Fortunately, two days have been set aside for the hearing of this matter and the hearing of a related matter has also been fixed for the two days. The same counsel appear in the related matter. The two days are not consecutive days; there is a day between the first and second hearing days.

8. It seems to me that there is unlikely to be any prejudice to the applicant suffered from seeing these documents for the first time only on the morning of the hearing. Any such prejudice can be avoided because of the day between the two hearing days. I have also been involved in practice long enough to remember a time when it was the rule rather than the exception that one saw documents only on the morning of a hearing.

9. I do not think any prejudice will ultimately flow. I conclude therefore that I will grant leave for the issue of the summons returnable on 13 October 2003. Questions as to access to the documents can be dealt with at that time.

I certify that the nine (9) preceding paragraphs are a true copy of the reasons for the decision herein of Justice Garry Downes, President

Signed: .......................................................................................

Associate

Date/s of Hearing 24 September 2003

Date of Decision 24 September 2003

Counsel for the Applicant G Flick SC

Solicitor for the Applicant Joanne Kelly

Counsel for the Respondent R Henderson

Solicitor for the Respondent Australian Securities and Investments Commission