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Federal Court of Australia |
CORPORATIONS LAW - appeal - application for registration of foreign corporation - application by third party to review - refusal of application on ground applicant not a person "whose interests are affected by the decision" - whether Tribunal in error of law in so concluding.
Acts Interpretation Act 1901 (Cth), s33(2A)
Administrative Appeals Tribunal Act 1975 , s3(3), s27(1), s27A, s29(1); s30, s31 and 33(1)(b)
Administrative Decisions (Judicial Review) Act 1893 (1977) (Cth), s3, s5
Companies Act (WA)
Companies Act 1943 (WA), s328, 329
Companies Act 1961 (WA), s344, 346
Companies Code 1981, s512
Corporations (Western Australia) Act 1990 (WA), s10(1).
Corporations Bill 1988, cl344
Corporations Law, s9, s21, s102, s102A, s109C, 109D(2), s109ZB, s328, s329, s340, s341, s342, s343, s344, s346(1)(g), s349, s350, s360, s362, s512(1), s583, s596A, 596B, s597, s597B, s1317A, s1317B(1), s1317C, s1317D,
Corporations Legislation Amendment Bill 1990,
Therapeutic Goods Act 1975 (1989) (Cth), s23, s60,
Adam P Brown Male Fashions v Phillip Morris [1981] HCA 39; (1981) 148 CLR 170
Alphapharm Pty Ltd v Smithkline Beacham (Australia) Pty Ltd & Ors [1994] FCA 996; (1994) 121 ALR 373
Attorney-General of the Gambia v N'Jie [1961] AC 617
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493
Bilbao v Farquhar [1974] 1 NSWLR 377
Brettingham - Moore v St Leonard's Municipality [1969] HCA 40; (1969) 121 CLR 509
Broadbridge v Stammers (1987) 16 FCR 296
Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1
Ford v Ford [1947] HCA 7; (1947) 73 CLR 524
Re Gasbourne Pty Ltd & Ors [1984] VR 801
Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153
Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296
Maronis Holdings Ltd v Nippon Credit Australia Ltd (1990) 2 ACSR 138
McHattan and Collector of Collector of Customs (1977) 18 ALR 154
Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409
Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194
Ogle v Strickland (1987) 13 FCR 306
Onus v Alcoa of Australia [1981] HCA 50; (1981) 149 CLR 27
Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 28 ATR 307
Cf Peverill v Meir (1990) 95 ALR 401
Rice Growers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 56 FLR 443
Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421
United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520
Worthley v Australian Securities Commission [1993] FCA 287; (1993) 42 FCR 578
HUGH ANDREW JOHN EDWARDS v AUSTRALIAN SECURITIES COMMISSION and BELL GROUP NV (IN LIQ) and WESTPAC BANKING CORPORATION
NO WAG 101 OF 1996
CORAM: LEE, CARR and R D NICHOLSON JJ
PLACE: PERTH
DATE: 7 FEBRUARY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 101 OF 1996
On appeal from the Administrative Appeals Tribunal constituted by Deputy President T E Barnett and Senior Member Associate Professor R D Fayle in matters W96/140 and W96/158
B E T W E E N: HUGH ANDREW JOHN EDWARDS
as partner of Coopers & Lybrand
Appellant
and
AUSTRALIAN SECURITIES COMMISSION
First Respondent
and
BELL GROUP NV (IN LIQUIDATION)
Second Respondent
and
WESTPAC BANKING CORPORATION
Third Respondent
MINUTE OF ORDER
JUDGES MAKING ORDER: LEE, CARR and R D NICHOLSON JJ
DATE OF ORDER: 7 FEBRUARY 1997
WHERE MADE: PERTH
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. WAG 101 OF 1996
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
B E T W E E N: HUGH ANDREW JOHN EDWARDS
as a partner of Coopers & Lybrand
Appellant
and
AUSTRALIAN SECURITIES COMMISSION
First Respondent
and
BELL GROUP NV (IN LIQUIDATION)
Second Respondent
and
WESTPAC BANKING CORPORATION
Third Respondent
CORAM: LEE, CARR, NICHOLSON JJ
DATE : 7 FEBRUARY 1997
PLACE: PERTH
REASONS FOR JUDGMENT
LEE J:
I agree with the reasons of Nicholson J and the orders proposed by him.
I certify that this page is a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date:
IN THE FEDERAL COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WAG 101 of 1996
GENERAL DIVISION )
On appeal from the Administrative Appeals Tribunal
B E T W E E N : HUGH ANDREW JOHN EDWARDS
Appellant
- and -
AUSTRALIAN SECURITIES
COMMISSION & ORS
Respondents
CORAM: LEE, CARR & NICHOLSON JJ.
PLACE: PERTH
DATE: 7 FEBRUARY 1997
REASONS FOR JUDGMENT
CARR J:
Introduction
I have had the advantage of reading the reasons for judgment of R.D. Nicholson J in draft form. I agree with those reasons and with the orders proposed by him.
I certify that this page is a true copy of
the Reasons for Judgment of Justice Carr.
Associate:
Date: 7 February 1997
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 101 OF 1996
On appeal from the Administrative Appeals Tribunal constituted by Deputy President T E Barnett and Senior Member Associate Professor R D Fayle in matters W96/140 and W96/158
B E T W E E N: HUGH ANDREW JOHN EDWARDS
as partner of Coopers & Lybrand
Appellant
and
AUSTRALIAN SECURITIES COMMISSION
First Respondent
and
BELL GROUP NV (IN LIQUIDATION)
Second Respondent
and
WESTPAC BANKING CORPORATION
Third Respondent
CORAM: LEE, CARR and R D NICHOLSON JJ
DATE: 7 FEBRUARY 1997
PLACE: PERTH
REASONS FOR JUDGMENT
R D NICHOLSON J: This is an appeal from the decision of the Administrative Appeals Tribunal refusing an application by the appellant to review a decision of the first respondent ("the ASC") to register the second respondent ("BGNV") as a foreign corporation pursuant to s344 of the Corporations Law ("CL"). The application was made under s29(1) of the Administrative Appeals Tribunal Act ("the AAT Act"). Essentially the refusal was based on the conclusion of the Tribunal that the appellant was not a person "whose interests are affected by the decision": see AAT Act, s27(1); s30(1); and s31.
Before the Tribunal the third respondent ("Westpac") was also an applicant for review of the same decision. On this appeal Westpac has agreed to abide the decision of the Court.
Reasons of the Tribunal
The Tribunal in its reasons stated there were three issues raised by the application, namely:
" a) whether the applicants have standing in terms of s27 of the AAT Act ("the first issue");
b) whether registration of a foreign company pursuant to s344 of the CL is a decision (as defined in s3(3) of the AAT Act) reviewable by the Tribunal in terms of s25 of the AAT Act and Pt9.4A of the CL ("the second issue"); and if so,
c) whether the application to register the joined party as a foreign company pursuant to s344 of the CL was defective so as to render it nugatory ("the third issue")."
Before the Tribunal it was agreed the Tribunal should confine itself to the first issue. However, it was accepted resolution of the first issue would depend in part on the resolution of the second and third issues. Accordingly, the Tribunal proceeded to decide the first issue upon hypothetically agreed facts, agreed only for the resolution of that issue: cf Perpetual Trustee Co (Canberra) Ltd v Commissioner for ACT Revenue [1994] FCA 1150; (1994) 28 ATR 307 at 319.
The hypothetically agreed facts were:
" a) [BGNV] is one of a number of parties which have instituted proceeding against [the appellant] and others in the Federal Court of Australia, being WAG 3067 of 1995.
b) [Westpac] is being sued by [BGNV] in Western Australia Supreme Court action 2285 of 1995.
c) [The appellant] and [Westpac] are parties to proceedings in the Supreme Court of WA (COR 57 of 1996) instituted by Troika Holding BV (Troika") to wind up [BGNV] pursuant to s583 of the CL. (Troika Holding BV is a company incorporated in the Netherlands Antilles which pursuant to the law of that country has been appointed liquidator of [BGNV].
d) The sole purpose of [BGNV] for seeking registration as a foreign company was to apply to the Court pursuant to s350(14) of the CL to appoint a liquidator in this jurisdiction, to seek an order of the Court to wind up [BGNV] as a Pt5.7 Body under s583 of the CL and seek an order of the Court for costs under s564.
e) The [appellant] is opposing proceedings in the Western Australian Supreme Court (COR 84 of 1996) in which Troika has applied for appointment of a liquidator to [BGNV] pursuant to s350(14) of the CL.
f) The [appellant] is opposing an application by [BGNV] in the Western Australian Supreme Court (matters COR 11 of 1993 and COR 108 of 1991) for access to the records and transcript, if any, obtained by the liquidators of each of Bell Group Finance Pty Ltd (in liquidation) from the first applicant pursuant to s596A or s596B of the CL. In the same matters the [appellant] has brought an application against [BGNV] and Troika for delivery up by them of any copies of the [appellants] documents obtained by them from the liquidators referred to in this paragraph.
g) [BGNV] is one of a number of parties which have instituted proceedings against [Westpac] and others in the English High Court of Justice Chancery Division.
h) [Westpac] is a creditor of [BGNV] pursuant to an order of Master Bredmeyer made on 17 April 1996 in the Supreme Court of Western Australia (COR 148 of 1995) that [BGNV] pay to [Westpac] the costs of an application brought by that company for an order that it be wound up.
i) [BGNV] is not carrying on business whether in its country of origin, this jurisdiction or anywhere else.
j) [BGNV's] application for registration under Div2 or Pt4.1 of Ch4 of the CL was not accompanied by:
(i) a certified copy of a current certificate of its incorporation or registration in its place of origin, if any, or a document of similar effect;
(ii) a certified copy of its constitution, if any."
The Tribunal then turned to an examination of relevant statutory provisions. These may be categorized into three groups:
(a) Relevant provisions for review in the AAT Act 1317
The Tribunal set out s27(1), s30(1) and s31 of the AAT Act as follows:
"27(1) Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or any authority of the Commonwealth) whose interests are affected by the decision.
30(1) Subject to par42A(2)(b), the parties to a proceeding before the Tribunal for review of a decision are:
(a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision:
(b) - (d) not relevant
31 Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive."
It then noted the provisions of s27A(1) as follows:
"27A(1) Subject to subs(2), a person who makes a reviewable decision must take such steps as are reasonable in the circumstances to give to any person whose interests are affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the right of the person to have the decision reviewed.
(2) Subsection (1) does not apply to:
(a) to (c) not relevant
(d) a decision under the CL of a State or an internal Territory to which s1317B of that Law applies; or
...".
Reference was also made to s30(1A) reading:
"30(1A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
It discounted the relevance of this subsection on the ground there were two separate applications contending separate interests were affected.
The AAT Act does not itself provide jurisdiction in the Tribunal to review the decisions made by the ASC under the CL. The Tribunal therefore turned to the relevant provisions in the CL providing for such review.
(b) Provisions for review in the CL
The Tribunal referred firstly to s1317B(1) reading:
"B(1) Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Law by:
(a) the Minister;
(b) the Commission; or
(c) the Companies Auditors and Liquidators Disciplinary Board."
It then set out the provisions of s1317C providing certain decisions in respect of which s1317B does not apply. It is not contended that those exclusions extend to the relevant decision of the ASC which was before the Tribunal.
The Tribunal also referred to the provisions of s1317D reading:
"1317D(1) This section applies if the Minister, the Commission or the Companies Auditors and Liquidators Disciplinary Board (the "decision maker") makes a decision to which s1317B applies.
(2) Subject to subs(3), the decision maker must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:
(a) of the making of the decision; and
(b) of the person's right to have the decision reviewed by the Tribunal.
(3) Subsection (2) does not require the decision maker to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if the decision maker determines that giving notice to the person or persons is not warranted, having regard to:
(a) the cost of giving notice to the person or persons; and
(b) the way in which the interests of the person or persons are affected by the decision.
(4) A failure to comply with this section does not affect the validity of the decision.
(5) The fact that a person has not been given notice of the decision because of a determination under subs(3) constitutes special circumstances for the purpose of subs29(6) of the Administrative Appeals Tribunal Act 1975 ."
It is pertinent to add that the word "decision" referred to in these provisions providing for review in the CL is defined by s1317A of the CL to have the same meaning as in the AAT Act. That meaning appears in s3(3) of the AAT Act and reads as follows:
"(3) A reference in this Act to a decision includes a reference to -
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing."
(c) Provisions of the CL providing for the making of the relevant decision
The Tribunal, before turning to these sections, drew attention to the following provisions of the CL:
"109C Every section of this Law has effect as a substantive enactment, without introductory words.
109D(1) The headings of Chapters, Parts, Divisions and subdivisions into which this Law is divided are taken to be part of the Law.
109D(2) A Schedule to this Law is taken to be part of this Law.
109D(3) Each heading to a section of this Law, and each footnote or end note to this Law, is taken not to be part of this Law."
The Tribunal then set out s343 and 344 of the CL which read:
"343 A foreign company must not carry on business in this jurisdiction unless:
(a) it is registered under this Division or a corresponding law or;
(b) it has applied to be so registered and the application has not been dealt with.
344 Subject to s102A and this Part, where a foreign company lodges an application for registration under this Division that is in the prescribed form and is accompanied by:
(a) a certified copy of a current certificate of its incorporation or registration in its place of origin, or a document of similar effect;
(b) a certified copy of its constitution;
(c) a list of its directors containing personal details of those directors that are equivalent to the personal details of directors referred to in subs242(3);
(d) if that list includes directors who are:
(i) resident in Australia; and
(ii) members of a local board of directors; a memorandum that is duly executed by or on behalf of the foreign company and states the powers of those directors;
(e) in relation to each existing charge on property of the foreign company that would be registrable charge within the meaning of Pt3.5 if the foreign company were a registered foreign company, the documents that subsection 262(3) requires to be lodged;
(f) notice of the address of:
(i) if it has in its place of origin a registered office for the purposes of a law there in force - that office; or
(ii) otherwise - its principal place of business in its place of origin; and
(g) notice of the address of its registered office under s359; the Commission shall:
(h) grant the application and register the foreign company under this Division by entering the foreign company's name in a register kept for the purposes of this Division and of each corresponding law; and
(j) allot to the foreign company a registration number distinct from the registration number of each body corporate (other than the foreign company) already registered under Pt2.2, this Part or a law corresponding to Pt2.2 or to this Part."
The Tribunal then turned to s102A of the CL (to which s344 is expressed to be subject) which reads:
"102A(1) This section facilitates the administration, on a national basis, of the CL of each jurisdiction by requiring some kinds of application to be made under the Corporations Law of each jurisdiction.
(2) This can be done by expressing an application to be made under the CL (rather than under the CL of a particular jurisdiction), so that it has effect as an application under the relevant provision of the CL Law of each jurisdiction.
(3) Subject to subs(6), this section applies to an application under ss341 or 344, subs383(1) or ss769, 770, 770A, 779B, 782, 1020A, 1067, 1126, 1131, 1132, 1144 or 1279 of the CL of this jurisdiction.
(4) The application is not to be granted unless the applicant has also made (by the means described in subs(2) or otherwise) a corresponding application under the corresponding section of the CL of each jurisdiction other than this jurisdiction.
(5) Also, the application is not to be granted if a corresponding application has been refused, or if it is proposed to refuse a corresponding application.
(6) This section does not apply in relation to an application that:
(a) was made under a previous law of this jurisdiction corresponding to a provision of this Law; and
(b) is taken because of a provision of this Law to have been made under the provision to which that previous law corresponds."
The Tribunal concluded s102A had no particular relevance to the first issue. That is a conclusion with which I disagree and to which I will return.
The Tribunal also referred to s109ZB(3) reading:
"109ZB(3) Where this Law provides that a person, court or body may do a particular act or thing, and the word "may" is used, the act or thing may be done at the discretion of the person, court or body."
The Tribunal's view was that the provision distinguished the use of "may" from "shall", which latter word is used in s344. It described the former as importing a discretion in contrast to the latter which, is mandatory.
The Tribunal concluded the scheme of the CL in Ch4, Pt4.1, Div2 (being the Division in which section 344 appears) was clear, namely, that in order to carry on business in this jurisdiction a foreign corporation was required to register with the ASC under the CL: see Ford's Principles of Corporations Law, Butterworths 1996, pars5.020 and 5.068.
The Tribunal then turned to the first issue. It concluded neither the appellant nor Westpac had standing for reasons which may be classified as follows:
(1) On a proper construction of s344 of the CL it is not required of the ASC that in relation to every application under that section, it inquire into the motives of applicants and, not withstanding the actual compliance with the requirements of the section, refuse to register an applicant on the basis of a judgment that it may be registration for an improper purpose. It had been submitted to the Tribunal on behalf of the appellant and Westpac that the sole purpose of BGNV seeking registration as a foreign corporation was to give it a "forensic advantage" of applying to the Court under s350(14) of the CL to appoint a liquidator, which liquidator would then be likely to summon the appellant to be examined about the affairs of BGNV, pursuant to ss596A or 596B of the CL.
(2) Such a conclusion was compelled by consideration of the terms of s1317D(2) which would impose an unreasonable responsibility on the ASC to examine motives in order to identify those persons whose interests may be affected by registration as a foreign corporation.
(3) On the tests propounded in case law, the interests of the appellant and Westpac were not affected by the "decision" to register BGNV as a foreign corporation: see in particular United States Tobacco Company v Minister for Consumer Affairs and Ors (1988) 20 FCR 520 at 529; Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157; Alphapharm Pty Ltd v Smithkline Beacham (Australia) Pty Ltd & Ors [1994] FCA 996; (1994) 121 ALR 373 at 403. Rather it was a decision of the Court pursuant to s350(14) or s596A or s596B which might affect the interests of the appellant and Westpac.
(4) That being the case such matters are outside the purview of the ASC and vest in the Court and lend themselves to judicial review on application by persons who believe they are aggrieved by such decisions: Worthley v Australian Securities Commission [1993] FCA 287; (1993) 42 FCR 578 and Re Gasbourne Pty Ltd & Ors [1984] VR 801 at 834-5.
(5) Such outcomes were "too remote" to be characterised as interests affected by the "decision".
(6) In coming to this view the Tribunal, in addition to other matters specifically raised in these reasons, had regard to the following namely that: s343 directs that a foreign corporation must not carry on business in this jurisdiction unless it is registered under the Division (or has applied to do so); s344 is a machinery provision which mandates, providing the seven preconditions of pars(a) and (g) are met to the respondent's satisfaction, the "Commissioner shall grant the application and register the foreign corporation under this Division"; should the respondent be satisfied at any time that a registered foreign corporation has ceased (or indeed has neither commenced nor intends to commence business) then it has power under s350 to remove that company from the register; and further, s109ZB(5) provides where the CL confers a power to make, grant or issue an instrument (such as a registration of a foreign corporation) that power is, unless a contrary intention appears, extended to repeal, rescind, revoke, amend or vary any such instrument.
Grounds of Appeal
The grounds of appeal raise the following three issues for consideration:
(1) Was the Tribunal in error in construing s344 of the CL as a mandatory provision not involving the exercise of any inquiry by or discretion of the ASC ("the construction issue")?
(2) Was the Tribunal in error in concluding the interests of the appellant were not affected by the decision of the ASC to register BGNV as a foreign corporation pursuant to s344 of the CL (the "standing issue")?
(3) Did the Tribunal err in law in deciding the question on hypothetical facts? ("the separate question issue").
The Construction Issue
It does not assist, as contended for the appellant, that BGNV's application is said to be an exceptional one. This issue falls for determination as an issue of statutory construction. It could not be the case that the motives and intentions of an applicant for registration as a foreign corporation are a relevant consideration only in respect of exceptional cases. Section 344 provides a system for such registration and not one applicable only in some circumstances but not in others, nor only when the information is forthcoming from the applicant. The question is which system it provides for as a matter of statutory construction.
The proper construction of s344 may be approached under the following heads:
(a) The terms of the section itself
The essential function of the ASC under the section is that which appears in par(h), namely that "the Commission shall... grant the application and register the foreign corporation...". The application referred to is "an application for registration under this Division that is in the prescribed form and is accompanied by" documents (a)- (g). The contents of "the prescribed form" cannot be called in aid to interpret the section itself and in particular do not form part of a Schedule to which s109D(2) has application.
In my opinion because there is "an application" in relation to which the ASC must consider whether or not to make an act of grant followed by an act of registration, the prima facie position is raised that the section requires the ASC to exercise a discretion whether or not to grant the application.
However, the factors relevant to granting the application take their colour from pars(a)-(g). None of those matters raises any element of discretion. They are simply factual requirements so that, when read with the requirement for the granting of the application, they support the mandatory nature of the grant when there has been compliance with pars(a)-(g).
It is also a consideration the language of s344 is unambiguous: Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194. It is the fact the section uses the word "shall": cf s109ZB of the CL and cf Acts Interpretation Act 1901 (Cth), s33(2A) and Corporations (Western Australia) Act 1990 (WA), s10(1).
Section 344 is subject to two matters namely, "s102A" and "this Part". Section 102A applies by operation of subs(3) to an application under s344. For the appellant it is contended s102A(4) shows the discretionary character of the act of grant under s344 because it requires the ASC to consider whether applications have been made on a corresponding basis and, as required by s102A(5), there has been a refusal or a proposal to refuse a corresponding application. In my opinion the submission for BGNV is correct in stating that the provisions of those subsections are of the same character as pars(a)- (g) of s344 - namely, they are factual matters to be checked by the Commission on the road to granting the application. They do not show the act of grant to be discretionary in character.
Section 344 is also subject to "this Part". Other provisions in the Part are dealt with in what follows.
(b) Section 344 in its immediate context
Section 344 cannot be construed independently of s343. It is precisely the presence of s343 which occasions the case for the appellant to contend that unless BGNV proposes to carry on business (a fact which the hypothetical facts disavow) it could not properly be registered pursuant to s344 so that its motive or purpose in seeking registration requires examination and therefore the exercise of a discretion by the ASC under s344.
The crux of s343 is the requirement that the foreign corporation must not "carry on business" unless registered under the Division.
The words "carry on" are defined by s9 of the CL to have a meaning affected by Div3. Sections 18-20 expand the concept of carrying on business beyond common law understandings of the phrase, specifically to include carrying on business other than for profit. Section 21 in that Division provides as follows:
21(1) A body corporate that has a place of business in Australia or in a State or Territory, carries on business in Australia, or in that State or Territory, as the case may be.
(2) A reference to a body corporate carrying on business in Australia, or in a State or Territory, includes a reference to the body:
(a) establishing or using a share transfer office or share registration office in Australia, or in the State or Territory, as the case may be; or
(b) administering, managing, or otherwise dealing with, property situated in Australia or in the Sate or Territory, as the case may be, as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.
(3) Despite subs(2), a body corporate does not carry on business in Australia, or in a State or Territory, merely because, in Australia, or in the State or Territory, as the case may be, the body:
(a) is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute;
(b) holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs;
(c) maintains a bank account;
(d) effects a sale through an independent contractor;
(e) solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be;
(f) creates evidence of a debt, or creates a charge on property;
(g) secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts;
(h) conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or
(j) invests any of its funds or holds any property."
Two immediate observations may be made. The first is where a body corporate has a place of business in Australia it carries on business in Australia. In the application to the ASC on behalf of BGNV, it was asserted BGNV has a place of business in Australia, namely, Perth. It may therefore be the case the hypothetically agreed fact before the Tribunal to the effect BGNV was not carrying on business is to be understood as a reference to the conduct of a business rather than to the having of a place of business. Alternatively, the fact was wrongly agreed. However, that cannot affect the construction issue.
Secondly, it is to be noted the sole purpose which BGNV espoused in its application for seeking registration - namely, application to the Court pursuant to s350(14) and subsequently under ss596A or 596B - is not within the exclusions in s21(3).
In my opinion, when it is understood the words "carrying on business" as used in s343 can include a body corporate that does no more than have a "place of business" in Australia, it cannot be said the existence of s343 requires the ASC under s344 to examine an application to ascertain whether the applicant company has an intention to be active in conducting business in the jurisdiction as a pre-condition to registration.
(c) Section 344 considered in relation to s350
The following subsections of s350 are relevant to the question whether a registered foreign corporation is required to carry on business:
"350(1) Within 7 days after ceasing to carry on business in Australia, a registered foreign company shall lodge written notice that is has so ceased.
(2) Where the Commission receives notice from a local agent of a registered foreign company that the foreign company has been dissolved, the Commission shall remove the foreign company's name from the register.
(3) Where the Commission has reasonable cause to believe that a registered foreign company does not carry on business in Australia, the Commission may send to the foreign company in the prescribed manner a letter to that effect and stating that, if no answer showing cause to the contrary is received within one month from the date of the letter, a notice will be published in the Gazette with a view to striking the foreign company's name off the register.
(4) Unless the Commission receives, within one month after the date of the letter, an answer to the effect that the foreign company is still carrying on business in Australia, it may publish in the Gazette, and send to the foreign company in the prescribed manner, a notice that, at the end of 3 months after the date of the notice, the foreign company's name will, unless cause to the contrary is shown, be struck off the register.
(5) At the end of the period specified in a notice sent under subs(4), the Commission may, unless cause to the contrary has been shown, strike the foreign company's name off the register and shall publish in the Gazette notice of the striking off.
(6) Nothing in subs(5) affects the power of the Court to wind up a foreign company whose name has been struck off the register.
(7) Where a foreign company's name is struck off the register under subs(5), the foreign company ceases to be registered under this Division.
(8) If the Commission is satisfied that a foreign company's name was struck off the register as a result of an error on the Commission's part, the Commission may restore the foreign company's name to the register, and thereupon the foreign company's name shall be deemed never to have been struck off and the foreign company shall be deemed never to have ceased to be registered under this Division.
(9) A person who is aggrieved by a foreign company's name having been struck off the register may, within 15 years after the striking off, apply to the Court for the foreign company's name to be restored to the register.
(10) If, on an application under subs(9), the Court is satisfied that:
(a) at the time of the striking off, the foreign company was carrying on business in Australia; or
(b) it is otherwise just for the foreign company's name to be restored to the register;
the Court may, by order:
(c) direct the foreign company's name to be restored to the register; and
(d) give such directions, and make such provision, as it thinks just for placing the foreign company and all other persons in the same position, as nearly as practicable, as if the foreign company's name had never been struck off."
The case for the appellant turns to these provisions saying that they should be read in conjunction with s343 and, when that is done, they show only a foreign corporation carrying on business should be registered under s344, so that the ASC must exercise a discretion to examine an application.
In my opinion these provisions lead to no such conclusion. Once it is understood there must be some jurisdictional fact connecting the foreign corporation with Australia, and that fact may alone be the existence of a place of business in the jurisdiction, nothing new arises to cast light on s344 or to support the contention that the ASC must in granting an application for such registration examine motives or intentions.
It is of relevance that s350(10) provides for a court to be satisfied that the name of a foreign corporation may be restored in circumstances where "it is just" and independently from the fact the foreign corporation was carrying on business in Australia. That supports the view registration of such a company is not to be construed in terms solely of it actively carrying on business.
However, the case for the appellants then turns to s350(14) which reads:
"350(14) Where a registered foreign company commences to be wound up, or is dissolved, in its place of origin:
(a) each person who, on the day when the winding up proceeding began, was a local agent of the foreign company shall, within the period of 1 month after that day or within that period as extended by the Commission in special circumstances, lodge or cause to be lodged notice of that fact and, when a liquidator is appointed, notice of the appointment; and
(b) the Court shall, on application by the person who is the liquidator for the foreign company's place of origin, or by the Commonwealth, appoint a liquidator of the foreign company."
It is said this exemplifies it cannot be intended the ASC under s344 should be mandated to register a foreign corporation in relation to which a liquidator has been appointed. In my opinion no such construction can be supported by reference to s350(14). All that subsection does is to make provision for the appointment of a liquidator to the registered foreign corporation within the jurisdiction. It does not provide any prohibition to the liquidator on behalf of that company carrying on business. Indeed, the liquidator may wish to do so in order to trade the company out of its liquidation. All the subsection does is to provide a mechanism for translating the fact of foreign liquidation to the registered foreign corporation in this jurisdiction. Where an application is received from a registered foreign corporation in a state of liquidation it falls for consideration under s344 and is not prohibited from registration by s350(14) nor does it require any additional examination as a consequence of that subsection.
(d) Section 344 considered in relation to Div3
The case for the appellant also drew attention to the provisions of s360 of the CL which read:
"360(1) On registering a body corporate under Div1 or Div2 or registering under subs358(3) a change in a registered body's name, the Commission shall issue to the body a certificate, under the Commission's common seal and in the prescribed form, of the body's registration under that Division.
(2) A certificate under subs(1) or a corresponding law is prima facie evidence of the matters stated in it."
It is contended because s360(2) provides only for the certificate of registration being prima facie evidence of the matter stated in it, it supports the concept of the ASC having a discretion pursuant to s344. The form of the certificate provided for states the registered foreign corporation was formed or incorporated in its place of incorporation and registered as a foreign corporation under Div2 of Pt4.1 of the CL on a particular date. It gives no certification as to the fact the company is carrying on business in the jurisdiction. Evidence may be adduced to rebut the prima facie position stated in the certificate. The certificate does not include a certification the company is carrying on business so there is no prima facie presumption concerning that fact. Consequently, it cannot be argued the rebuttability of that fact somehow supports a discretionary interpretation of s344.
Section 362(9) requires such a company to exhibit its name and place of origin and other matters "on the outside of every office and place (including its registered office) that is in this jurisdiction at which its business is carried on..." In my view that is a necessary concomitant of registration of a foreign corporation rather than a reason for saying s344 is discretionary because it must permit of assessment of whether it is in fact carrying on business. By definition, it will do so by having a place of business and by law it must have a registered office.
(e) Section 344 in the context of Div1
Division 1 of the Part refers to "registrable Australian bodies". Such a body is defined by s9 of the CL to mean body corporate which is not a company or a recognized company or an exempt public authority or corporation sole as defined or an unincorporated body in certain circumstances but not including a financial institution or a foreign corporation. Section 340, like s343, provides that a registrable Australian body must not carry on business in the jurisdiction unless, among other things, it has applied to be registered. Section 341, like s344 provides that "subject to s102A and this Part" where a registrable Australian body lodges an application for registration that is in a prescribed form and is accompanied by various documents prescribed in pars(a)-(f) "the Commission shall... grant the application and register the body...". Section 342 provides for notification of cessation of carrying on business in the jurisdiction and for striking off along the lines of s350. The relevance of Div1 shows that Div2, and therefore ss343 and 344, are cast in the same mould. That is of relevance when the requirements for registration of a foreign corporation in ss343 and 344 are considered in the context of the legislative history of such provisions.
(f) Section 344 considered in the context of its legislative history
The Companies Act 1893 (WA) provided foreign companies should not commence or carry on business until complying with certain requirements as to the appointment of attorneys having an office and other matters. The Companies Act 1943 (WA) provided in PtXI for the part to apply to companies commencing to carry on business within the State. The phrase "carries on business" was defined to include establishing or using a share transfer or a share registration office and the words "to carry on business" had a corresponding meaning: see s328. By s329 every company to which the Part applied was required within twenty eight days to file with the registrar for registration certain documents, the last of which was a statutory declaration in which the agent was required to declare that the company "proposes (is) carrying on business in Western Australia".
The Companies Act 1961 (WA) provided in s344 (subject to the appearance of contrary intention) for certain provisions to apply to a foreign corporation only if it has a place of business or is carrying business within the State. The words "carrying on business" were defined to include establishing or using a share transfer or share registration office or administering, managing or otherwise dealing with properties situated in the State and the words "to carry on business" to have a corresponding meaning: s344(2). It listed a number of acts which were not to be regarded as "carrying on business". Section 346 provided within one month after a foreign corporation established a place of business or commenced to carry on business it would lodge certain documents with the registrar "for registration". One of these was a statutory declaration required by s346(1)(g) in which again the agent was required to declare as to the jurisdictional fact, that the foreign corporation was either carrying on business or had established a place of business in the jurisdiction.
With the introduction of the Companies Code in 1981, s512(1) introduced a requirement such as that in s343 in CL that a foreign corporation should not establish a place of business or commence to carry on business within the State unless it is registered. Section 512(2) provided if a foreign corporation lodged with the Commission for registration certain documents in (a)-(h) then "the Commission shall register the company under this Division".
In the Corporations Bill 1988, cl344 was based on s512(2) of the Code and provided that "the Commission shall... register".
However, it was the Corporations Legislation Amendment Bill 1990 which introduced the concept of grant. It provided for s344 of the CL to be amended by omitting pars(h) and (j) and inserting (h) and (j) in their present form, including in particular the addition of the words "grant the application and register" the foreign corporation. At the same time the section was amended to introduce the concept that an application for registration should be lodged in respect of a foreign corporation, as per the present opening words of s344 of the CL. In the explanatory memorandum to the Bill it was said the concept of "application" was similar to and made for the same reasons as the amendment to the opening words of s341. That section was amended to provide for a formal application to be made. The explanatory memorandum described that change as a "technical change... necessitated by a proposed s102A which refers to 'applications'". Section 102A(1) of the CL has previously been quoted.
It is apparent from this history that the introduction of the words "grant the application" and the reference for the need for an application in s344 was not designed to introduce any additional discretionary element to the act of registration. Rather it was designed to bring a generic description to the type of matters which fell for attention under s102A.
(g) Section 344 considered with reference to the purpose of the Part and Division
The interpretation of s344 in mandatory terms is also consistent with the purpose and effect of registration provided for by Pt4 Div2. The purpose of Div2 is to facilitate commerce in the jurisdiction and to benefit persons within the jurisdiction in their dealings with foreign companies: Maronis Holdings Ltd v Nippon Credit Australia Ltd (1990) 2 ACSR 138 at 140. The effect of registration of a foreign corporation is it can lawfully carry on business within the jurisdiction and become subject to aspects of the Australian corporate regulatory regime; it can be served with process within the jurisdiction; and it becomes subject to reporting requirements such as those provided in s349 of CL.
(h) Section 344 in the context of Pt9.4A
Section 344 requires consideration also in relation to s1317D. The Tribunal concluded that to construe s344 in the manner the appellant contends for would place an impossible burden on the ASC each time an application was made because it would be required to act pursuant to s1317D(2) to give notice to all persons whose interests were affected by the decision. That overlooks the effect of s1317D(3) which allows the ASC to ameliorate that requirement in light of considerations of cost or the way in which the interests of persons are affected.
However, a more significant point arises from consideration of s1317D. Given that there is the prima facie requirement to give notice in accordance with s1317D(2), it could be expected if s344 bore the construction contended for on behalf of the appellant, the documents to which it refers to in (a)-(g) would include some document which assisted the ASC as the decision maker to determine whose interests would be affected by the decision to register. That not being the case, there is support for the view that s344 involves no exercise of discretion in the manner contended for.
It is, of course, yet an issue undetermined as to whether the action of the ASC pursuant to s344 falls within the concept of "decision" for the purposes of the AAT Act. I therefore avoid opining on the question of whether s1317D(2) is capable of application to an action of grant and registration by the ASC under s344. It is sufficient for the purposes of the construction issue to state that consideration of s1317D(2) suggests s344 would have been otherwise cast if it were to bear the construction contended for the appellant.
When s344 is considered both in its context and in relation to its legislative history there can in my opinion be only one conclusion as to its proper intent. That intent is that a foreign corporation, not precluded by s102A or Pt4.1, lodging documents (a)-(g) is one in relation to which it is mandatory on the ASC to "grant the application and register the foreign corporation". The section does not require the ASC to consider motives or intention of the applicant foreign corporation or to exclude from registration a foreign corporation under liquidation in its place of origin.
For these reasons I do not consider that the Tribunal was in error on the construction issue.
The construction issue arose and was argued on the basis of its relevance to the determination of the standing issue. So construed it is arguable that s344 does not make provision for a substantive determination in the sense required by Mason CJ's statement in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337, and so is not a reviewable "decision". Cf Peverill v Meir (1990) 95 ALR 401 at 420 and Hutchins v Deputy Commissioner of Taxation (1996) 136 ALR 153 at 158 (Black CJ) and 161 (Lockhart J).
The Standing Issue
The appellant's argument in relation to the standing issue commences by asserting that registration of BGNV as a foreign corporation under s344 would give it a status under the CL which it could then use for the purpose of adversely affecting the appellant. Status for this purpose is to be understood as explained in Ford v Ford [1947] HCA 7; (1947) 73 CLR 524 at 529 and 534. The adverse effect is that which is stated as the sole purpose of registration in hypothetical fact (d). It is said the application for winding up would in turn entitle an application to be made under s596B for a discretionary examination. On such an examination it is clear the decision of the ASC to authorise a person to apply under s597 is a decision to which the Administrative Decisions (Judicial Review) Act 1975 (1977) (Cth), ss3(1) and 5 of that Act apply. There is authority the appellant would be a "person aggrieved" within the meaning of s3(4) of the ADJR Act: Worthley v Australian Securities Commission at 580; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 429-30; 433. In Re Gasbourne Pty Ltd at 832-35, A B Nicholson J in the Supreme Court of Victoria concluded there was no practical distinction between the words "a person affected" and "a person aggrieved" within the particular context of the Companies Rules which he was examining. He accepted they had the effect given by Lord Denning in Attorney-General of the Gambia v N'Jie [1961] AC 617 at 635 where he said:
"The words 'person aggrieved' are of wide import and should not be subject to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering with things which do not concern him, but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."
Worthley and Re Gasbourne (supra) were referred to in the reasons of the Tribunal but on the ground that the examination of persons pursuant to ss596A and 596B of the CL, were matters beyond the purview of the Tribunal and it was relevant that such matters lent themselves to judicial review before the body in which the power was being exercised. Nevertheless that is no answer to the submission made for the appellant that there is no relevant distinction between the character of a "person whose interests are affected" between the AAT Act and the ADJR Act.
In the appellant's case this is supported by reference to United States Tobacco at 527-31, particularly at 527 when the Court (Davies, Wilcox and Gummow JJ) said:
"The term "interest" has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person."
Their Honours supported this by reference to what was stated by Ellicott J in Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421 at 437 where his Honour said in particular:
"In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties: cf Robinson v Western Australian Museum [1977] HCA 46; (1977) 138 CLR 283."
Their Honours referred to the fact these remarks had been applied in subsequent decisions, including decisions of the Full Court, instancing Rice Growers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 56 FLR 443 at 447; Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296; Ogle v Strickland (1987) 13 FCR 306 at 307-8 and 314-5 and 321- 4 and Broadbridge v Stammers (1987) 16 FCR 296.
The Full Court in United States Tobacco then continued:
"In an analogous field, standing for the purpose of the Administrative Appeals Tribunal Act (Cth), Davies J said in Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 at 8-9:
"In their context in ss27 and 30, the words 'interests are affected' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest. As Brennan J said in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157:
'The relevant "interests" do not have to be pecuniary interests or even specific legal rights: cf Bilbao v Farquhar [1974] 1 NSWLR 377 at 380, per Hutley JA.
...
However, a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives 'real', 'genuine' and 'direct' to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and context of a decision under review. As Brennan J said in McHattan's case at 157:
'However, a decision which affects interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which affection of interests by a decision should be regarded as too remote for the purposes of s27(1). The character of the decision is relevant, for if the interests relied on are of such a kind that a decision of the given character could not affect them directly, there must be some evidence to show that the interests are in truth affected.'"
The reasoning of the Court in United States Tobacco was cited by the Tribunal together with reference from Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (1980) 50 FLR 1 and Re McHattan v Collector of Customs. The Tribunal was not led to consider the appellant was a "person whose interests were affected" because in its opinion "the then existing situation of the [appellant] was not affected by the "decision" to register [BGNV] as a foreign corporation and that "decision" alone imposed nothing new on [the appellant]". The Tribunal considered the interests of the appellant were not affected by the "decision" although the evidence was that in all probability its interests may be affected by the outcome of proceedings in another place. For this conclusion the Tribunal relied upon what was said by Gummow J in Alphapharm (supra) at 403.
Before turning to that decision it should also be stated that the submissions for the appellant also turned to other decisions setting out the approach taken by the Court to issues of standing and in particular Brettingham-Moore v St Leonard's Municipality [1969] HCA 40; (1969) 121 CLR 509 at 524- 5 where Barwick CJ held that "persons who would or might be affected in their person or property" by an exercise of executive authority were clearly entitled to sue for a declaration of invalidity as a means of precluding executive action. Bilbao v Farquhar [1974] 1 NSWLR 377 recognised that there may be a personal interest in the performance of duties which the law imposes.
It is apparent that it is critical to the resolution of this aspect of the appeal to determine whether the Tribunal correctly understood the purport of Alphapharm. In that case a question had come before the trial judge whether the respondent was a person the interests of which were affected by a decision made under the Therapeutic Goods Act (1989) (Cth) and which was, under s60(2) of that Act, entitled to lodge a request that the Minister reconsider that decision. Alphapharm had applied for registration of its generic cimetidine on the Therapeutic Goods Register pursuant to s23 of the Therapeutic Goods Act. Registration took place in February 1993. It was that decision which the respondent companies requested the Minister to reconsider. The Minister refused to do so on the grounds the respondent companies were seeking to use the review process for commercial purposes. The matter came to the Court by way of judicial review.
Gummow J at 394-96 said that in answering the question whether there was standing to seek reconsideration of the initial decision to register, the registration system itself provided for in the Therapeutic Goods Act was of central importance. He continued (at 403):
"There is no requirement for the provision of an opportunity to any third parties to be heard upon an application for registration. Reasons are required only where the decision is not to register (s25(3)). Nor is there a requirement that a decision under s25(3) to register goods be published generally. I have referred to other provisions which provide for notification of decisions in the Gazette; see also s60(2)(a) which gives to a person whose interests are affected by a decision particulars of which are so notified in the Gazette, 90 days thereafter to request reconsideration. The provisions in s61 for the release of therapeutic goods information are, so far as is relevant to the present case, limited to the provision of information in relation to therapeutic goods which are already on the Register.
Further, an interpretation of the legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration would not sit well with that object of the legislation which is concerned with the timely availability of therapeutic goods, after evaluation by an expert body and pursuant to a "complex and delicate administrative scheme."
His Honour concluded where the initial decision was not to register or to register with conditions, the applicant would be a person whose "interests are affected" within the meaning of s60. However, where there had been an initial decision to register which had been acted upon by the effecting of registration, the operation of the Therapeutic Goods Act upon the steps leading up to registration was spent. His third conclusion was the scope and purpose of the legislation in the above situation did not allow of third parties as persons who have an interest affected by the initial decision to grant registration and who may seek reconsideration and reversal of it under s60. He also concluded it may be that a third party in situations where the registration is varied, new conditions added or cancelled prospectively has "interests" which are "affected".
The statutory regime in Alphapharm as reviewed by Gummow J bears many similarities to the one under consideration in this case. The regime resulted in criminal penalties being imposed for non- compliance with s343. The regime did not require third parties to be heard on the application for registration. There was no requirement to give reasons (except under the Therapeutic Goods Act where there may be a refusal). There is also no requirement that the decision be published generally.
The power to change the register in Alphapharm differs from the restricted power to alter the register established under s344 of the CL. In Alphapharm it was open to the Secretary to "reconsider" the registration and vary, cancel or impose conditions. The power of the ASC under s350 of CL is limited to cancellation of registration where the foreign corporation ceases to "carry on business". Whether there would be third party interests in such cancellation is not in issue here. Consistently with Gummow J, the initial consideration of an application to register under s344 is one in which the applicant has an "interest affected" if registration was refused. No other party has an interest to be affected by that initial decision to register. In my opinion the ratio of Gummow J in Alphapharm is not distinguishable from the present case.
It is also the case that an interpretation of legislation which treated a third party as a person interested in, in the sense of opposed to, a grant of registration, would not sit at all with the object of Div2 to bring about registration of any foreign corporation carrying on business in the jurisdiction. Contrary to the submission for the appellant, there are significant similarities between the legal effect of the statutory provisions relating to the register in Alphapharm and the register at issue pursuant to s344 of the CL.
There is also the question of remoteness which was considered by the Tribunal. As the case for BGNV puts it, the relevant chain of events which would follow the registration of BGNV would be:
(i) Application by the foreign liquidator of BGNV for the appointment of a liquidator pursuant to s350(14) of the CL - this having now occurred.
(ii) An application to wind up BGNV pursuant to s583 of the CL.
(iii) Following the appointment of a liquidator pursuant to s350(14) and/or BGNV being wound up pursuant to s583 of the CL, the local liquidator would in all probability apply for an order against the appellant pursuant to s597B of the CL.
(iv) If the Court in the exercise of its discretion pursuant to s597B ordered an examination of the appellant then the information and documentation which may be obtained as a result of the examination may be of assistance to BGNV in pre-existing court proceedings (Supreme Court Action 2285/95) against the appellant for negligence and breach of contract in the conduct of audits of BGNV.
These steps make apparent the acquisition of status of registration does not of itself create the relevant interest.
There remains the additional contention made for the appellant that no one would have standing to challenge the registration if it does not do so, with the consequence there could not be supervision of compliance with the requirements for registration. For example, if it is the case that the requirements in pars(a) and (b) of s344 were not complied with in fact as the hypothetical facts assume, is it the appellant above all others who should be able to challenge the decision to register because of the stated objective in hypothetical fact (d). In my opinion that contention is not open on an analysis of the purposes of registration under s344. I have dealt with that in discussion of Alphapharm.
The preceding contention is supported by reference to s360(2) which it is said recognises the decision to register is impeachable. However, the section entitles impeachment only of the statement of fact as to whether or not registration as foreign corporation under s344 has occurred. It is not a foundation for creating third party interests in supervision of the register. The existence of the section is the safety valve of the register but only after registration has occurred and within its limits.
In my opinion the Tribunal was correct in the conclusions which it reached on the standing issue.
The Separate Question Issue
For the appellant it is contended it was erroneous for the Tribunal to consider standing as a "separate" issue in the circumstances, especially since to do so involved it in proceeding on hypothetical facts and in construing the relevant provisions of CL.
BGNV and the ASC conceded the facts which the appellant wished to raise in the application and which formed the hypothetical factual basis upon which the Tribunal proceeded. The Tribunal had a discretion whether to determine standing as a preliminary issue: ss31 and 33(1)(b) of the AAT Act; Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 532, 552; Onus v Alcoa of Australia [1981] HCA 50; (1981) 149 CLR 27 at 38 and 76; see also Adam P Brown Male Fashions v Phillip Morris [1981] HCA 39; (1981) 148 CLR 170 at 176- 7. In my opinion no error of law is shown in the Tribunal's exercise of its discretion to determine standing as a preliminary basis using for that basis the hypothetical facts.
I have previously raised the question whether hypothetical fact (i) to the effect that BGNV was not carrying on business was a proper concession given the basis of its application for registration was that it had a place of business in the jurisdiction. However, the assumption of that hypothetical fact was made only for the basis of the standing issue and cannot endure into further consideration of the issues before the Tribunal.
Conclusion
For these reasons I consider the appeal should be dismissed.
I certify that this and the preceding 29 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date: 7 February 1997
APPEARANCES
Counsel for the Appellant: Mr S Rares SC and
Mr N Gentilli
Solicitors for the Appellant: Jackson McDonald
Counsel for the First Respondent: Ms C McLure
Solicitors for the First Respondent: Australian Securities Commission
Counsel for the Second Respondent: Mr A R Emmett QC and
Mr K L Christensen
Solicitors for the Second Respondent: Phillips Fox
Date of Hearing: 18 October 1996
Date of Judgment: 7 February 1997
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