Alan Jorgensen v Australian Securities & Investments Commission
[2001] AATA 424
•24 April, 2001
CATCHWORDS – EXTENSION OF TIME – Whether applicant should be granted an extension of time within which to lodge his application for review – application two years out of time – whether Tribunal estopped from hearing application because of previous Administrative Decisions (Judicial Review) Act 1977 application and Federal Court judgement – Tribunal's jurisdiction not impinged upon – two year delay significant – Commission's decision acted upon by others – no reasonable prospects of success – futility of application – extension of time not granted.
Administrative Appeals Tribunal Act 1975 – ss 29, 43
Administrative Decisions (Judicial Review) Act 1977 – ss 3, 5, 6, 7, 11
Corporations Law – ss 9, 25, 60, 91A, 229, 232, 335, 236 475, 600, 1317DA, 1317FA
Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480
Comcare v A'Hearn (1993) 119 ALR 85
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Jorgensen v Australian Securities and Investment Commission [1999] FCA 356 (Unreported, Heerey J, 31March, 1998)
Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987)
14 ALD 477
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186
Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578
Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97
Re Delonga and Australian Securities Commission (1994) 15 ACSR 450; (1994) 13 ACLC 246
Re Pepper-Clayton and Australian Telecommunications (1985) 7 ALD 508
Re Wakim; Ex parte McNally (1999) 98 CLR 511
DECISIONS AND REASONS FOR DECISION c
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2000/1494
GENERAL ADMINISTRATIVE DIVISION )
Re ALAN JORGENSEN
Applicant
AndAUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Date 24 April, 2001
Place Brisbane
DecisionThe Tribunal refuses the applicant's application to extend the time within which an application for review of the respondent's decision dated 10 November, 1998 may be lodged.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 28 December, 2000, the applicant, Mr Alan Bradley Jorgensen, applied for an extension of the time within which to lodge an application to review a decision of a delegate of the respondent, the Australian Securities and Investment Commission ("the Commission") dated 10 November, 1998. That decision, which was made under s. 600 of the Corporations Law ("the Law"), prohibited Mr Jorgensen from managing a corporation without the leave of the Court for a period of three years from the date of the service of the Notice of Prohibition dated 10 November, 1998.
The hearing of Mr Jorgensen's application to extend the time within which he was entitled to apply for review of that decision was conducted over the telephone as he is currently working in Mauritius. He represented himself and the Commission was represented by Mr Rose QC with Mr Gladman. Regard was had to the delegate's decision, the judgement of Heerey J in Jorgensen v Australian Securities and Investment Commission [1999] FCA 356 (unreported, 31 March, 1999), the orders of Beach J of the Supreme Court of Victoria ("Supreme Court") dated 19 February, 1996, 27 February, 1996 and 29 April, 1996, the first page of a letter written by an unidentified writer to Ms Brodie, a letter dated 8 January, 1997 to Stannard Coghlan & Angelini, a facsimile message dated 14 March, 2000 to Mr Jorgensen from Mr John Adams, a letter dated 6 April, 2000 to Ms Janine Brodie from Mr Graeme Smith of Graeme L Smith & Co, an order made by Master Wheeler of the Supreme Court on 27 November, 1996, an agreed statement of facts prepared for the matter of The Queen v Jorgensen in the County Court of Victoria ("County Court"), the sentencing remarks of Judge Anderson of the County Court dated 15 December, 2000, a note written by Mr Jorgensen, a typed submission prepared by Mr Jorgensen, a written submission prepared on behalf of the Commission and oral evidence given by Mr Jorgensen during the hearing of the application.
At the conclusion of the hearing, I gave a decision refusing Mr Jorgensen's application and gave oral reasons. At Mr Jorgensen's request received on 24 April, 2001, I have prepared written reasons for my decision.
THE ISSUES
The parties raised several issues at the hearing. In my view, the central issue is whether I should exercise the discretion under s. 29(8) of the Administrative Appeals Tribunal Act 1975 ("AAT Act") to extend the time within which Mr Jorgensen may lodge his application for review. Mr Rose approached the matter in a different manner. He submitted that the Tribunal does not have jurisdiction to consider the application as the Tribunal is estopped from considering the application. In addition, he submitted that Mr Jorgensen's application is an abuse of process.
BACKGROUND
Based on the documents to which I have referred and Mr Jorgensen's oral evidence, I have made a number of findings of fact that I will set out in the following paragraphs.
The companies
Between 1992 and 1997, Mr Jorgensen was a director of various companies placed into liquidation or receivership. In brief, the companies and pertinent facts relating to their liquidation are:
(1)Teksid Pty Ltd (formerly Torbeck Pty Ltd)
First placed into receivership on 28 January, 1992 with a deficiency of $10,417,299 and then subject to a number of receiverships in the following years up to 30 September, 1994 when the final receiver retired. Mr Jorgensen was a director of the company at the time of the first receivership and continued as a director up until 1 February, 1997.
(2)Pelcar Pty Ltd
First placed into receivership on 22 February, 1992 with a deficiency of $15,325,621 and then subject to a number of receiverships up until 30 September, 1994 when the receiver retired. Mr Jorgensen was a director of the company at the time of the first receivership and continued as a director of the company until the company was de-registered on 24 April, 1996.
(3)Consolidated Diecasters Pty Ltd
Wound up on 3 February, 1993 with a deficiency of $9,918,333. Mr Jorgensen was a director at the time it went into liquidation.
(4)T & P Pty Ltd
Wound up on 3 February, 1993 with a deficiency of $11,511,685. Mr Jorgensen was a director of the company at the time it went into liquidation.
The primary creditor of each of these companies was the ANZ Banking Group Ltd ("ANZ"). After disregarding any debts duplicated amongst the companies as a result of cross collateralisation, the debt owed to ANZ was in the order of $14m. Mr Jorgensen was the guarantor of that debt. At the conclusion of the administrations of the companies and the realisation of Mr Jorgensen's assets, the debt was reduced to $4.197m.
Mr Jorgensen controlled a group of companies known variously as the Lawrenson Group or the Townsend and Parker Group ("the Group") but was not listed as a director, officer or shareholder of any of the companies in the group. Companies in the Group were:
(1)LLMC Ltd (formerly Lawrenson Light Metal Casting Limited)
(2) Riton Holdings Pty Ltd
(3)Lawrenson Light Metal Die Casting Pty Ltd
(4)Lawrenson Metal Casting Pty Ltd
(5)Lawrenson Management Pty Ltd
(6)Mantonella Pty Ltd
(7)Pertone Pty Ltd
Riton Holdings Pty Ltd was incorporated in Victoria on 18 May, 1995 but then changed its name to Townsend and Parker Pty Ltd and then Townend Parker Pty Ltd before reverting to its original name on 3 March, 1998. Mantonella Pty Ltd held 19 of the 100 shares issued in Townsend and Parker Pty Ltd and Pertone Pty Ltd held 55 of those shares. Paul and Janine Brodie controlled those companies and Mr Jorgensen was not listed as a director of them. During the period 12 October, 1995 to 10 April, 1996, Mr Jorgensen was listed as a director of Riton Holdings Pty Ltd. His partner (de facto wife), Ms Janine Brodie, was a director from 18 May, 1995 to 27 December, 1996 and her brother, Mr Paul Brodie, was a director from 18 May, 1995 to 12 May, 1999. On 18 March, 1998, an external administrator was appointed to Riton Holdings Pty Ltd. There followed the appointment of a liquidator on 28 May, 1998. At that time, Riton Holdings Pty Ltd had outstanding debts to the Australian Taxation Office ("ATO") of $469,000 for Group Tax and to the FAI Workers Compensation of $168,000 for unpaid premiums.
Townsend and Parker Holdings Pty Ltd was incorporated in Queensland on 6 July, 1995. Later, on 28 January, 1998, it changed its name to Townsend and Parker Pty Limited, on 30 September, 1998, to Light Metal Casting Pty Ltd and, on 20 October, 1998, to Lawrenson Metal Casting Pty Ltd. Janine Brodie was a director between 6 July, 1995 and 27 December, 1996 and Mr Jorgensen was a director between 13 November, 1995 and 1 December, 1995 when the company was known as Townsend and Parker Holdings Pty Ltd. Mr Paul Brodie was a director between 6 July, 1995 and 12 May, 1999. Mantonella Pty Ltd held 19 of the 100 shares issued in Townsend and Parker Holdings Pty Ltd and Pertone Pty Ltd held 50 of them. A receiver and manager was appointed on 2 July, 1999.
Riton Holdings Pty Ltd operated a die casting business at the Braeside plant and did so as trustee of the Townsend Unit Trust and the Parker Unit Trust. The unit holders in each of the trusts were Ms Janine Brodie, Pertone Pty Ltd and Mytack Holdings Pty Ltd. The shareholders in Pertone Pty Ltd were Mr Paul Brodie and Ms Wanda Brodie. Mytack Holdings Pty Ltd changed its name to Dynacast International Pty Ltd and its shareholders were Janine Brodie and Mr Jorgensen's daughter, Ms Jimeale Jorgensen. After Riton Holdings Pty Ltd went into liquidation, Teksid Pty Ltd became the trustee of the Townsend Unit Trust and the Parker Unit Trust. Since 1 February, 1997, the sole director of Teksid Pty Ltd has been Jimeale Jorgensen.
On 28 December, 1997, a Sale of Business and Assets Agreement was entered into between Townsend and Parker Pty Ltd and Townsend and Parker Holdings Pty Ltd. Pursuant to that agreement, debtors, contracts and deposits, business names, goodwill, customer lists and records, stock, work in progress and a limited amount of plant and equipment, were transferred from Townsend and Parker Pty Ltd to Townsend and Parker Holdings Pty Ltd.
Lawrenson Light Metal Casting Ltd appointed a voluntary administrator on 20 April, 1999 but went into liquidation on 21 April, 1999 as a result of a creditor's petition issued by QBE Workers Compensation (Victoria) in respect of a debt in the order of $25,000. A debt of $296,234.55 was owed to the ATO.
Machland Pty Ltd was incorporated on 10 November, 1995. Between 6 December, 1995 and 21 November, 1996, it changed its name to Townsend and Parker (Vic) Pty Limited before changing it back to Machland Pty Ltd on 22 November, 1996. The administrator of Townsend and Parker (Vic) Pty Limited stated that his investigations had revealed a number of serious breaches of the Law by its past and present officers.
Mr Jorgensen was the secretary of Lotusdale Pty Limited from 24 August, 1995 until the date of its winding up on 18 December, 1996.
Mr Paul Brodie
On 11 June, 1999, Mr Paul Brodie was banned by the Commission from being a director or promoter of a corporation or from being in any way (either directly or indirectly) concerned in, or taking part in, the management of a corporation unless he had leave of the Court. He was banned for two years and two months from the day on which the Notice of Prohibition was served on him. Mr Brodie became bankrupt on 1 September, 1999 after a creditor's petition was issued against him for unpaid employee group tax deductions by companies of which he was a director.
Mr Jorgensen's composition under Part X
On 30 August, 1996, Mr Jorgensen's creditors accepted a composition under Part X of the Bankruptcy Act 1966. His statement of affairs disclosed unsecured creditors of approximately $14.5m and property of $17,000. As approximately $13m of the $14.5m were as a result of guarantees given to secure loans by the ANZ and as some of the loans were cross-secured and the ANZ had the benefit of earlier realisations of property, its debt was in the order of $4.197m. The composition required Mr Jorgensen to pay $15,000 for the benefit of his creditors. He did so on 3 September, 1996.
Adverse comments about Mr Jorgensen
On 10 February, 1997, Mr Thomson MHR, the member for Wills, made adverse comments about Mr Jorgensen during the course of the day's Grievance Debate in the House of Representatives. This was followed by an article in The Age on 17 February, 1997. That article appeared under the headline "Millions lost in scams, says MP" and repeated material given in Mr Thomson's comments. Mr Thomson made further adverse comments in the House of Representatives about Mr Jorgensen on 19 March, 1997.
Mr Jorgensen denied the allegations made by Mr Thomson and told Judge Anderson of the County Court of Victoria that they had been made maliciously. Their genesis lay in disputes between Mr Jorgensen and the union movement concerning the running of certain companies including Townsend and Parker Pty Ltd, Townsend and Parker Vic Pty Ltd, Machland Pty Ltd and Townsend and Parker Aluminium Diecasters.
Mr Jorgensen's dealings on behalf of companies in the Group
Mr Bergamasco, who was the Financial Controller of the Group from August, 1995 until January, 1999, was directed by Ms Janine Brodie that Mr Jorgensen had complete authority on an ongoing basis to control the payments and receipts of the Townsend and Parker group of companies.
Mr Jorgensen presented himself as Paul Brodie when dealing with officers of Westpac and at one meeting with BTR. In relation to Westpac, Mr Jorgensen was introduced to the Business Banking Manager of Westpac, Mr Bartlett, as Mr Paul Brodie; the Managing Director and majority shareholder of the die casting company, Townsend and Parker Pty Ltd. The introduction occurred at the home of one of Westpac's clients on 5 March, 1997. Mr Jorgensen negotiated with Mr Bartlett between March and August, 1997 as Mr Brodie. He supplied details of the assets and liabilities of Mr Brodie and arranged second mortgages over non-commercial properties not owned by Mr Brodie rather than over residential properties owned by Mr Brodie. Westpac obtained a credit report on Mr Brodie and that revealed nothing adverse. Subsequently, on 13 August, 1997, Westpac received a document called an Acceptance of Loan Offer. It was signed by Mr Paul Brodie in his capacity as a Director of Townsend and Parker Pty Ltd and accepted an offer of a loan totalling $450,000. At all times, Mr Jorgensen purported to be Mr Paul Brodie and, at no time, did he or anyone else disclose to Westpac Mr Jorgensen's existence or his role in the company.
On 20 April, 1998, Sims Lockwood wrote to Westpac to advise it that an administrator had been appointed to Riton Holdings Pty Ltd, by which Townsend and Parker Pty Ltd was now known. Westpac advised Mr Paul Brodie that it would continue with the existing credit facilities provided he met the repayments but that no further lending facilities would be approved. Westpac's credit facility was paid out in full by the sum of $1,487,181 advanced by Hongkong Bank of Australia.
In November, 1997, Mr Bartlett introduced Mr Jorgensen to Mr Hill, who was the Account Manager with the Australian Guarantee Corporation Limited ("AGC"). Mr Jorgensen was again introduced as Mr Paul Brodie, the Managing Director of Townsend and Parker Pty Ltd. Mr Hill outlined the credit facilities offered by AGC. In turn, in December, 1997 Mr Hill introduced Mr Jorgensen to Mr Mitchie, who was AGC's Senior Manager of Current Asset Finance Division. Again, he was introduced as Mr Paul Brodie. They all discussed the possibility of AGC's providing a factoring facility for Townsend and Parker Pty Ltd. On 29 December, 1997, AGC approved a control account factoring facility to the limit of $1m for Townsend and Parker Pty Ltd. That application incorporated details supplied by the person whom AGC believed to be Mr Paul Brodie and concerning Mr Paul Brodie. The credit report regarding Mr Paul Brodie was also included as part of the application.
AGC became aware of the Sale of Business and Asset Agreement between Townsend and Parker Pty Ltd and Townsend and Parker Holdings Pty Ltd. As a result, AGC treated both companies as the client in its letter of intent to Mr Paul Brodie outlining the facilities it was prepared to offer. On 30 January, 1998, AGC received a facsimile of the letter of intent signed by Mr Paul Brodie on behalf of Townsend and Parker Holdings Pty Ltd. All references to Townsend and Parker Pty Ltd were deleted and initialled. Mr Paul Brodie was the guarantor to this facility.
At no time during their discussions between February and December, 1998 did Mr Jorgensen or Mr Brodie reveal Mr Jorgensen's role in the management of Townsend and Parker Pty Ltd and Townsend and Parker Holdings Pty Ltd. On 5 February, 1999, a termination notice was issued in respect of AGC's facility with Lawrenson Metal Casting Pty Ltd (formerly Townsend and Parker Pty Ltd). It was to expire on 5 March, 1999 but that expiration date was extended to 14 April, 1999 when AGC was paid out with funds received from the Hongkong Bank of Australia.
On approximately 8 March, 1999, Mr Jorgensen represented himself as Mr Paul Brodie to Mr Hewett, who was the Manager of Equipment Finance for Capital Finance Australia Ltd ("Capital"). Mr Jorgensen told Mr Hewett that he was seeking $115,000 equipment finance for Lawrenson Metal Casting Pty Ltd, which was a business he was involved in. In connection with his application, Mr Jorgensen gave Mr Hewett the financial accounts of the Townsend Unit Trust and the Parker Unit Trust. Mr Hewett spoke with Mr Jorgensen, as Mr Paul Brodie, on numerous occasions. Mr Jorgensen sought further financing for the purchase of other equipment totalling $420,000. On 23 March, 1999, Capital conditionally approved finance of $400,000 and sent a document entitled "Approval Notification" to Mr Paul Brodie at Lawrenson Metal Casting Pty Ltd.
In April, 1999, Capital provided a cheque in the amount of $20,000 for the purchase of two fork lifts. Capital sent Mr Brodie documentation entitled "Equipment Lease" for him to sign. It was returned to Capital which paid the supplier of the forklifts. Later in April, 1999, Mr Hewitt received an Equipment Team Purchase Contract signed by Mr Paul Brodie, a director of Lawrenson Metal Casting Pty Ltd for a total amount of $119,474.08. On 22 April, 1999, Capital provided a cheque for $100,000 for equipment referred to in an invoice supplied by Asset Plant and Machinery Pty Ltd for three die casting machines.
On 3 May, 1999, Mr Hewett had a second meeting with Mr Paul Brodie. Mr Edwards, Capital's National Equipment Lease Manager, also attended this meeting. The meeting was held to discuss additional finance sought by Mr Brodie on behalf of Lawrenson Metal Casting Pty Ltd for the purchase of plant and equipment from BTR. Mr Brodie later gave Capital a formal valuation of the plant and equipment he intended to purchase. In addition to the $120,000 already advanced by Capital, Mr Jorgensen, as Mr Paul Brodie, indicated that he sought a total of $800,000. Capital did not approve the finance application when it found that Lawrenson Metal Casting Pty Ltd had been the subject of an application by the ATO to wind it up.
On 2 July, 1999, a receiver and manager was appointed to Lawrenson Metal Casting Pty Ltd. Capital recovered the two forklifts and sold them at a small loss. The receiver and manager sold the three die casting machines and he and Capital were in dispute over the ownership of those machines. Capital wrote off $111,272 including losses associated with the three die casting machines. Mr Jorgensen's representation of himself as Mr Paul Brodie did not cause Capital's loss.
The Commission's decision
At the time the Commission made its decisions its power to issue a notice of prohibition was found in (the now repealed) s. 600 of the Law. Before considering whether to issue such a notice, the Commission had to first:
"Ö give to a person who is a relevant person in relation to 2 or more relevant bodies that are, at the time of service, section 600 bodies a notice in writing requiring the person to show cause why the Commission should not serve on the person a notice under subsection (3)." (s. 600(2))
For the purposes of s. 600, a "relevant body" included a corporation or a corporation that was being wound up or had been dissolved (s. 9). A relevant body was a "section 600 body":
"Ö at a particular time if, and only if, within the period of 7 years ending at that time, a liquidator of the body has, under:
(i)subsection 533(1); or
(ii)a previous law corresponding to subsection 533(1);
reported, or lodged a report with respect to, a matter relating to the ability of the body to pay its unsecured creditors." (s. 600(1)(b))
A person was a "relevant person" in relation to a relevant body that was a s. 600 body only if that person was a director of the body at any time during the 12 months ending on the day of the beginning of the winding up of the body (s. 600(1)(c)).
Where the Commission had served a notice on a person under s. 600(2) and had given a person an opportunity of being heard in relation to the matter:
"Ö the Commission shall, unless it is satisfied that it is not appropriate to do so, serve on the person a notice in writing prohibiting the person, for such period not exceeding 5 years as is specified in the notice, from managing a corporation." (s. 600(3))
Section 600(4) provided that:
"Where:
(a)the Commission has served a notice under subsection (2) on a person who is a relevant person in relation to 2 or more relevant bodies that were, at the time of service, section 600 bodies; and
(b)those 2 bodies have at any time been related to each other, or any of those bodies has at any time been related to any other of those bodies, as the case may be;
the Commission shall have regard to that fact in considering whether or not it is appropriate to serve on the person a notice under subsection (3)."
A person who was subject to a notice of prohibition under s. 600 could not, without leave of the Court, manage a corporation (s. 600(5)). What is meant by "managing a corporation" was set out in s. 91A (now repealed) of the Law. The effect of s. 91A(3) was that, in the jurisdiction, a "Ö person manages a corporation Ö if the person Ö is in any way (whether directly or indirectly) concerned in or takes part in the management of, the corporation.
There were four areas of concern on which the Commission's decision to issue the Notice of Prohibition was based. The first three related to Lotusdale Pty Limited and the remaining area of concern to Machland Pty Limited.
In relation to Lotusdale Pty Limited, an area of concern was Mr Jorgensen's failing, as company secretary, to ensure that Lotusdale Pty Limited lodged its annual report in 1995. This was in breach of s. 335 of the Law. The second area of concern was Mr Jorgensen's alleged failure to comply with the request of the Official Liquidator to supply a report of affairs pursuant to s. 475 of the Law. The third related to Mr Jorgensen's alleged failure to deliver to the liquidator all of the company's books that were in his possession. In relation to each of these allegations, the delegate of the Commission preferred the evidence of the liquidator to that of Mr Jorgensen.
In relation to Machland Pty Limited, the liquidator considered that Mr Jorgensen would be considered as a director of that company pursuant to s. 60. He noted that he had been a director of two other companies that had been wound up. They were Consolidated Diecasters Pty Limited and T & P Pty Limited.
Judicial review in the Federal Court
Mr Jorgensen applied to the Federal Court for judicial review of the Commission's decision. He did so under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"). Mr Jorgensen, who was represented by senior and junior counsel, submitted that the Commission's decision was flawed on four bases. Heerey J rejected each of those bases and dismissed his application. He did so on 31 March, 1999.
Mr Jorgensen lodged an appeal to the Full Court of the Federal Court. Directions hearings were held in June and July, 1999 and the matter was set down for hearing on 31 August, 1999. The hearing date was vacated due to the uncertainties surrounding the jurisdiction in light of the High Court's judgement in Re Wakim; Ex parte McNally (1999) 198 CLR 511. Early in 2000, the Federal Court ordered that Mr Jorgensen file appeal books by 31 March, 2000 but that order was not complied with. The compliance date was extended to 5 May, 2000 but the appeal was withdrawn. Mr Jorgensen consented to an order for costs being made against him.
The convictions
On 15 December, 2000, Mr Jorgensen pleaded guilty in the County Court to two offences contrary to s. 1317FA(1) of the Law. That section has since been repealed but, in so far as it is relevant in this case, that section provided that a person is guilty of an offence if the person contravenes a civil penalty provision knowingly, intentionally or recklessly and intending to deceive someone (s. 1317FA(1)). Section 232(6) is a civil penalty provision (ss. 9 and 1317DA). In so far as it is relevant to the circumstances of this case, it provides that an officer or employee of a corporation must not, in this jurisdiction or elsewhere, make improper use of his or her position to gain, directly or indirectly, an advantage for him or her self or for any other person or to cause detriment to the corporation.
The first count with which Mr Jorgensen was charged related to his actions in posing as Mr Paul Brodie and deceiving officers of Westpac and AGC. I have summarised the details of his actions in paragraphs 21-25 above. The second count related to Mr Jorgensen's actions in posing as Mr Paul Brodie, who was the sole director of Lawrenson Metal Casting Pty Ltd. Mr Jorgensen deceived officers of Capital and I have summarised the details of his actions in paragraphs 26-29 above.
After canvassing the facts in detail, Mr Jorgensen's background, the absence of any prior convictions and evidence of his good character, Judge Anderson said, in part:
" In my view, the circumstances of the offence and notwithstanding his plea of guilty, what I consider to be a lack of appreciation by the accused of the seriousness of what he has done requires his conduct to be denounced by the imposition of a severe penalty. In the present case this must involve a term of imprisonment.
The system of limited liability for corporations can only operate effectively so long as there is adequate disclosure by the individuals responsible for the management of a particular corporation and if persons dealing with a corporation can have confidence that the public records are correct and persons acting in managerial positions will conduct themselves with propriety. In the present case the accused had extensive experience as a director of companies and in their management. The transactions included in the offences involved substantial sums of money and were negotiated over significant periods of time during which the accused maintained the faÁade that he was Paul Brodie, the sole director of those companies. For part of this period the accused was a person banned from acting in the position of director or otherwise in the management of a corporation. The demands of both general and specific deterrence must appropriately be addressed in the sentence. It appears, however, that the accused acted in what he believed was the best interests of the relevant corporation and not for direct personal gain. He hoped by his actions that the corporation would prosper and it was not a case where the facilities provided by the bank and finance companies went to purposes over (sic) than that which had been intended.
The accused has reached the age where in the absence of prior convictions it is appropriate that significant regard be had to his previous good character. His early plea of guilty to the present charges must also be given considerable weight. This has saved community resources in the prosecution and trial of these matters." (transcript, pages 17-18)
His Honour went on to sentence Mr Jorgensen to a term of 18 months' imprisonment on each count with the terms to be served concurrently. He suspended the sentences of imprisonment on Mr Jorgensen's entering a recognizance in the sum of $500 to be of good behaviour for 18 months.
THE SUBMISSIONS
Mr Jorgensen's submissions focused on five main issues. First, he submitted that the findings of the Supreme Court of Victoria have established that Lotusdale Pty Limited and Townsend and Parker (Vic) Pty Limited (later named Machland Pty Limited) are inextricably linked. Therefore, he submitted, they should be treated as only one company for the purposes of s. 600 of the Act. Second, he submitted that failure to lodge an annual return for Lotusdale Pty Limited for the 1995 financial year attracts a penalty of $200 and not a three year period of prohibition. In any event, he had not been appointed as the secretary of the company until three months after the annual report was due. Mr Jorgensen's third submission concerned the books required by the liquidator. He said that the books were given to the liquidator and produced correspondence to support his submission. As he had resigned as a director some nine months before the liquidator was appointed, he could not understand why he was being asked for the books. Mr Jorgensen expressed a similar sentiment in relation to his fourth submission concerning his failure to lodge a return of affairs in relation to Lotusdale Pty Limited. He was not a director and should not have been asked to complete that return. His fifth submission was that he had not failed to provide assistance to the liquidator. It had been almost twelve months since he had been a director and it was "Ö ridiculous to assert that I failed to assist the Liquidator." (Mr Jorgensen's facsimile dated 19 December, 2000).
With regard to the judgement of Heerey J, Mr Jorgensen said that he lodged an appeal to the Full Court of the Federal Court. He was told that the court no longer had jurisdiction to deal with matters under the Law and he withdrew the case. Mr Jorgensen considered that the Commission should have given him an oral hearing. He also considered that his counsel should have raised the issue of the two inextricably linked companies.
Mr Jorgensen had not pursued the matter as he had faced more pressing problems flowing from his prohibition. Those problems were related to the Hongkong Bank of Australia's placing the Group into receivership. His financial situation was such that he could not obtain legal advice. The Hongkong Bank of Australia's actions had not flowed from his prohibition but from Mr Paul Brodie's prohibition and its date of effect. Mr Jorgensen submitted that the notice of prohibition had affected the interests of his daughter who was $600,000 out of pocket.
The essence of Mr Rose's submissions was that the Tribunal does not have jurisdiction to review the Commission's decision and that the application to extend time is an abuse of process. The Tribunal, he submitted, does not have power to review Heerey J's judgement and Mr Jorgensen's application is a "back-door approach" to do that. Furthermore, the reasons for Mr Jorgensen's delay in lodging the application in the Tribunal has not been explained. The Commission should not be required to expend further money in answering a claim that has already been fully determined by Heerey J.
CONSIDERATION
I will consider first Mr Rose's submission that the Tribunal does not have power to review the Commission's decision in view of Heerey J's judgement of 19 March, 1999. The Tribunal's power to review the Commission's decision in this case is to be found in s. 25 of the AAT Act when read with Part 9.4A of the Law. Section 25(1) provides that:
"An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment."
Section 25(4) provides the necessary corollary to this subsection when it provides that the "Ö Tribunal has power to review any decision in respect of which an application is made to it under any enactment." Where an enactment makes such a provision, it must specify the person or persons whose decisions may be reviewed, may be expressed to apply to all decisions of a person or to a class of such decisions and may specify the conditions subject to which applications may be made (s.25(3)).
The powers of the Tribunal in reviewing decisions are found in other provisions of the AAT Act. In particular, s. 43(1) provides that:
"For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and;
(i)making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."
In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, Bowen CJ and Deane J described the Tribunal's task in reviewing a decision when they said:
" The question for determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v Browning (1947) 74 CLR 492 at 496, 498, 499-500, 504), that regard must be had to the relevant considerations, and that matters 'absolutely apart from the matters which by law ought to be taken into consideration' must be ignored: R v Cotham [1898] 1 QB 802 at 806; Randall v Northcote Corp [1910] 11 CLR 100 at 109-110; Shrimpton v Commonwealth (1945) 69 CLR 613 at 620; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] ALR 1067 at 1071." (page 589)
Their Honours distinguished the function of the Tribunal from the function of a court exercising judicial review:
" The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal." (page 589)
That brings me to Heerey J's judgement. His Honour was considering an application made under the ADJR Act. That Act provides that, subject to certain exceptions listed in Schedule 1, a person who is aggrieved by a decision to which the Act applies, may apply to the Federal Court or Federal Magistrates Court for an order of review in respect of the decision on any one of specified grounds (s. 5(1)). Those grounds are:
"(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g)that the decision was induced or affected by fraud;
(h)that there was no evidence or other material to justify the making of the decision;
(i)that the decision was otherwise contrary to law." (s. 5(1))
The grounds specified in ss. 5(1)(e) and (h) are expanded upon in ss. 5(2) and (3):
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a)taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d)an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(i) any other exercise of a power in a way that constitutes abuse of the power
(3)The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
Similar applications on similar grounds may also be made in respect of conduct for the purpose of making a decision to which the ADJR Act applies (s. 6). An application may also be made where a person has failed to make a decision to which the ADJR Act applies but there is no time limit within which that decision must be made. It may be made on the basis that there has been an unreasonable delay in making that decision (s. 7(1)).
A decision to which the ADJR Act applies is:
"Ö a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1." (s. 3(1))
It is apparent from these provisions that, the Court, while reviewing an administrative decision is concerned only with the lawfulness of that decision as specified in s. 5 of the ADJR Act. Provided the decision is lawfully made, the Court is not concerned with the merits of that decision. It is not concerned, for example, with whether another decision would have been open to the decision maker on the material. The Tribunal's role is different. Its role is to review the merits of the decision. That is to say, it must first ascertain the law so that it knows the extent of its power and then consider the material before it in light of the law. It must then make its decision taking both into account. If there is only one correct decision open to it (as may occur, for example, where a discretion is to be exercised), the Tribunal must make that decision. If more than correct decision is open to it on the facts, it must make the preferable decision. An overriding consideration in making its decision is that it do so according to the rules of natural justice and according to law as reflected in the grounds set in s. 5(1) of the ADJR Act.
It follows from what I have said that Heerey J was concerned in his judgement of 19 March, 1999 to review the lawfulness of the Commission's decision in terms of the ADJR Act. That is a different function from that exercised by the Tribunal. Consequently, his Honour's judgement does not impinge upon the jurisdiction of the Tribunal under the AAT Act. Mr Jorgensen's seeking to ask this Tribunal to review the Commission's decision cannot be regarded as a "back-door" means of reviewing his Honour's judgement.
That brings me to Mr Jorgensen's application for an extension of the time within which to lodge his application for review. Pursuant to s. 29 of the AAT Act, Mr Jorgensen had 28 days within which to lodge an application for review to the Tribunal. The power to extend that time is found in sub-section 29(7) of the AAT Act. It provides:
"The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section)."
In considering the manner in which the discretion to grant an extension should be exercised, regard is traditionally paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. In that case Wilcox J considered an application for extension of time pursuant to section 11 of ADJR Act. After noting that section 11 does not set out any criteria to be followed in exercising the Court's discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said:
"... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court's discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed method' of 28 days is not to be ignored: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time: Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly (Neaves J, 9 December 1983, unreported, at 7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights': per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, unreported, at 18) with Lucic at 414–5 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the 'need for finality in disputes' (see Lucic at 410 but also the 'fading from memory' problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at 287; Duff at 484–5; Hickey at 525–7 and Wedesweiller at 533–4.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at 18; Lucic at 416; Hickey at 523. In this context, public considerations often intrude: Lucic, Hickey. A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550; Becerra v Fowell (Morling J, 18 February 1983, unreported, at 12– 13)) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417; Chapman at 6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534–5." (pages 114-115)
The Hunter Valley case has since been cited with approval and applied by the Federal Court, eg Burchett J in Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 and Northrop J in Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 477. It has also been followed in reported decisions of this tribunal such as Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97 and; Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578. Similar principles were applied by Mr R K Todd, Deputy President, in the case of Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186 which pre-dated the decision in Hunter Valley and in Re Pepper-Clayton and Australian Telecommunications (1985) 7ALD 508 which post-dated it but made no reference to it.
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 (Comcare v A'Hearn (1993) 119 ALR 85 at 88 per Black CJ, Gray and Burchett JJ).
I accept that the last few years have been a difficult time for Mr Jorgensen. He has experienced financial difficulties and his attention has been engaged in pursuing his application under the ADJR Act in the Federal Court and facing criminal charges in the County Court of Victoria. It could be said that his attention was engaged with these matters up to approximately May, 2000 when he withdrew his appeal to the Full Court against Heerey J's judgement. A further seven months passed before he lodged his application for an extension of time on 28 December, 2000. For part of that time at least, Mr Jorgensen has been overseas.
While these matters explain to some extent Mr Jorgensen's delay in seeking review in the Tribunal, it does not explain it in its entirety. His rights in the Federal Court and in the Tribunal are concurrent. An application can be lodged in either or both at the same time. Whether one application is heard before the other is a matter to be determined in the circumstances of each case. Even if Mr Jorgensen's distractions diverted his attention up until May, 2000, they do not provide any substantial explanation for the seven month period that followed the Federal Court judgement. In those seven months, I am not satisfied that Mr Jorgensen made it known to the Commission that he wished to pursue an application in the Tribunal. Certainly, he made it clear that he was not pleased with its decision and did not consider it properly made or to have been made with a sound foundation. He pursued his right to have judicial review in the Federal Court but, that did not indicate any intention to pursue an application in the Tribunal.
When regard is had to the two year delay in lodging Mr Jorgensen's application, it is a significant period. Decisions have been made having regard to the Commission's decision made on 10 November, 1998. The operation of the decision was not stayed and so it took effect immediately from the date of its service upon Mr Jorgensen. Since that service, decisions, such as Judge Anderson's judgement on sentence, have taken account Mr Jorgensen's prohibition. These are decisions that cannot be undone if the Tribunal were to set aside the Commission's decision.
The merits of Mr Jorgensen's application are also relevant but this is not the time to undertake an exhaustive examination of all of the issues and the material. It may be that neither Mr Jorgensen nor the Commission has lodged all of the material upon which they would want to rely, for the Tribunal is not limited to the material before the Commission or to the grounds upon which it reached its decision. Consideration would also need to be given to the principles according to which the Commission may exercise its powers under s. 600. They were considered by the Tribunal in Re Delonga and Australian Securities Commission (1994) 15 ACSR 450 (Justice Bulley, Deputy President Forgie and Mr Horrigan, Member) where it was said:
"23. Are there are any matters which we must take into account in considering whether we are satisfied that it is not appropriate to issue a notice under sub-section 600(3)? Deputy President McMahon also addressed that question in Sheslow and Australian Securities Commission (Decision No.9691, 24 August, 1994). He considered passages from Friend's case, Cullen's case, Re Dawson Print Group and Another (1987) 3 BCC (Hoffman J), Blunt v Corporate Affairs Commission (No.2) 6 ACLC 1077 and Dwyer v National Companies and Securities Commission (No.2) 7 ACLC 743. We will not repeat those passages other than that of Powell J in Friend's case when he said:
'It is, I believe, clear - and I believe, generally, if not universally, accepted - that the function of sec.562A of the Code is to protect the public - not merely the investing public, but ordinary business men and tradespeople who might deal with a company - from the depredations of, and from losses which might be caused by the activities of dishonest, unscrupulous, untrustworthy, irresponsible, or merely incompetent, company directors. If any support for the view which I have just recorded be thought necessary, it is readily to be found in the following passages in the judgment of O'Bryan J. in Nicholas v CCA (1987) 5 ACLC 258 at pp.265-266; (1986) 10 ACLR 792 at pp.799-800):
"Section 562A is concerned with a person's fitness to be a director or promoter of a corporation or to be in any way, directly or indirectly, concerned in or taking part in the management of a corporation (subsec.(3)). This concern is for the present and future protection of the public, to protect the public from persons whose past conduct in relation to a dissolved company has been reported on adversely by the liquidator."'
24. The other cases to which we have referred discuss what degree of incompetence is required or what degree of breach of "company morality" or recklessness. They are, of course, a guide to us but we have also had regard to the general scheme of the Act.
25. We have looked at the Corporations Law to see whether there are any more particular matters which may give us guidance in considering sub-section 600(3). Only section 232 sets out the general duty and liability of an officer, including a director, of a company. He or she has a duty to act honestly at all times in the exercise of powers and discharge of duties (sub-section 232(2)). In addition, he or she must
'In the exercise of his or her powers and the discharge of his or her duties, an officer of a corporation must exercise the degree of care and diligence that a reasonable person in a like position in a corporation would exercise in the corporation's circumstances.' (Sub-section 232(4)).
He or she must not make improper use of information acquired by virtue of his or her position as an officer to gain, directly or indirectly, an advantage for himself or herself or any other person or to cause detriment to the corporation (sub-section 232(5)). Similarly, he or she must not make improper use of his or her position to gain such an advantage or cause such a detriment (sub-section 232(6)).
26. The Corporations Law prohibits a director from voting on a matter in which he or she has a material personal interest (sub-section 232A(1)). Provisions are made in relation to the age of the director (section 228) and prohibiting certain people from managing a company who has been convicted of serious fraud or of certain offences relating to promotion, formation or management of a body corporate or corporation or of certain offences under the Corporations Law (section 229). Nowhere in the Corporations Law have we been able to find any provision relating to the minimum expertise or competence that a person must have to be appointed as a director. The focus of the Corporations Law at the time of a director's appointment seems to be upon his or her taking up shares in the company (sections 222 and 223) but not upon his or her competence or expertise).
27. Some light is shed on a director's duties and responsibilities by the provisions creating certain offences. A director is, for example, liable to be convicted of an offence if he or she does not disclose certain matters (section 590), fails to take all reasonable steps to show compliance with the accounting provisions set out in section 289 (section 590), makes a false or misleading statement or omission in a prospectus (section 996), falsifies the company's books (section 1307) or makes a mis-statement in certain statements relating to take-overs (part 6.6).
28. In addition to these requirements, a director must also take reasonable steps to ensure that he or she complies with the provisions relating to the preparation of a company's financial statements and of directors' reports (section 318). Finally, a director contravenes section 588G if he or she is a director at a time the company incurs a debt, the company is insolvent at that time or becomes insolvent by incurring that debt (either alone or with other debts), there are reasonable grounds for suspecting that the company either was insolvent or would become so and the director was aware there were grounds, or a reasonable person would have been aware, there were grounds for suspecting the company was or would become insolvent.
29. Looking at these provisions in a general sense, their emphasis is upon a director's being open and frank in carrying out his or her duties and functions as a director of the company, upon his or her personal interests in dealing with the company, and upon his or her taking reasonable steps to ensure compliance with the accounting and reporting provisions of the Corporations Law and to ensure that the company only incurs debts when it is able to pay its debts as they fall due. Distilling the general principles yet further, the Corporations Law focuses upon the actions of directors in light of the need to protect the shareholders, actual and prospective, of the company and to protect the general public in so far as it attempts to ensure that the information which is given to the general public is adequate and accurate and that the general public does not deal with an insolvent company." (pages 457-458)
Returning to Mr Jorgensen's application, if Mr Jorgensen did provide all of the relevant books and information to the liquidator as he has asserted and the circumstances in which he came to commit the offences of which he was convicted are as he stated at the hearing, I do not consider that he would have reasonable prospects of succeeding in having the Commission's decision set aside. His submission that Lotusdale Pty Limited and Machland Pty Limited were really one entity for the purposes of s. 600 so that the Commission would not be authorised to have given Mr Jorgensen a notice to show cause would be unlikely to succeed. That would be so because they are separate corporate entities and would be regarded as such for the purposes of the Law. As to his behaviour in posing as Mr Paul Brodie in promoting the interests of the two companies, there is only a small prospect of the Tribunal's finding that Mr Jorgensen's behaviour is acceptable for a person who is to be entrusted with the management of a corporation. That is so whether or not the Tribunal accepts that he engaged in the behaviour considering it to be innocent and not wishing to defraud any person or entity.
I note that, even if Mr Jorgensen were to succeed in having the Commission's decision set aside, he would continue to be prohibited from managing a corporation without the leave of the Court. That prohibition, which continues for a period of five years from the date of his convictions under s. 232, follows from the application of s. 229 of the Law.
Taking all of these matters into account, I consider that the prospects of Mr Jorgensen's success on the substantive application would be small and his application would, in any event, be futile in achieving Mr Jorgensen's desire to be free to manage a corporation. He wishes also to "clear his name" but, in view of the conclusions I have reached, I do not consider it an appropriate use of public resources to permit the Tribunal to be used for that purpose some two years after his right to seek review arose and he failed to take advantage of it.
For these reasons, I refused the applicant's application to extend the time within which an application for review of the respondent's decision dated 10 November, 1998 may be lodged.
I certify that the sixty-nine preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed: ..........................................
A Horne AssociateDate of Hearing 24 April, 2001
Date of Decision 24 April, 2001
Counsel for the Applicant Self by Telephone
Counsel for the Respondent Mr P Rose
Solicitor for the Respondent Mr M Gladman
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