Australian Securities Commission v Avram - [1996] FCA 1009

CATCHWORDS

CORPORATIONS - AUSTRALIAN SECURITIES COMMISSION - Validity of notice requiring appearance for examination in relation to an investigation - Notice required to state the “general nature of the matter” - Extent to which notice must disclose matter under investigation - Reference to the management of affairs of the company sufficient where coupled with reference to a breach of a specific legislative provision - No failure to identify conduct being investigated where the nature of the provision discloses the conduct - No requirement that identity of suspect be stated - Requirement that a notice disclose questions likely to be asked discussed

Australian Securities Commission Act 1989, s.19

Australian Securities Commission v Graco (1991) 29 FCR 491
Johns v Connor (1992) 35 FCR 1
Little River Goldfields NL v Moulds (1991) 32 FCR 456
Stockbridge v Ogilvie (1993) 10 ACSR 688

AUSTRALIAN SECURITIES COMMISSION -v- AVRAM

No VG 398 of 1996

Before:           North J
Place:             Melbourne
Date:              21 November 1996

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

No VG 398 of 1996

B E T W E E N :

AUSTRALIAN SECURITIES COMMISSION

Applicant

AND

KATHY AVRAM

Respondent

MINUTES OF ORDER

JUDGE: North J
PLACE: Melbourne
DATE: 21 November 1996

THE COURT ORDERS THAT:

The application is allowed with costs.
The respondent shall appear, on a date and at a time to be fixed, for examination on oath or affirmation and to answer questions put, and to give the applicant all reasonable assistance in accordance with the requirements of the notice dated 19 June 1996 given to the respondent by the applicant under s.19(2) of the Australian Securities Commission Act 1989.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

No VG 398 of 1996

B E T W E E N :

AUSTRALIAN SECURITIES COMMISSION

Applicant

AND

KATHY AVRAM

Respondent

JUDGE: North J
PLACE: Melbourne
DATE: 21 November 1996

REASONS FOR JUDGMENT

This is an application by the Australian Securities Commission (“ASC”) under s.70(3) of the Australian Securities Commission Act 1989 (“the ASC law”). The Court is asked to enquire into the failure of Kathy Avram, the respondent, to comply with a notice issued under s.19 of the ASC law requiring her to appear at the offices of the ASC for examination, and to order that she attend for such examination. The central issue is whether the notice served by the ASC on the respondent is valid.

The ASC’s power to serve a notice requiring the attendance of the respondent is contained in s.19 of the ASC law which provides:

19(1) This section applies where the Commission, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.
19(2) The Commission may, by written notice in the prescribed form given to the person, require the person:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Australian Securities Commission v Avram

Details

AGLC: Australian Securities Commission v Avram [1996] FCA 1009
Case: [1996] FCA 1009
Decision Date: 21 NOVEMBER 1996

CaseChat Overview and Summary

The Australian Securities Commission sought an order compelling Kathy Avram to attend for examination. The Court was asked to determine whether a notice served on Avram was valid. The validity of the notice was challenged on three grounds: it failed to state the "general nature of the matter"; it did not identify the conduct being investigated; and it did not state the identity of the suspect. The Court held that the notice was valid because the reference to the management of the affairs of the companies, coupled with the reference to the contravention of a specific section, was sufficient to state the general nature of the investigation. The Court also held that the notice was not required to identify the conduct or the identity of the suspect. Finally, the Court held that the notice was not required to disclose the questions likely to be asked at the examination. The application was allowed with costs.

Orders