Australian Securities Commission v Burns, J - [1993] FCA 159

Re: AUSTRALIAN SECURITIES COMMISSION
And: JOHN BURNS; GEOFFREY BERNARD WHITE; JOHN SPINKS; ALAN JOHN WELLS; TRAVERS
WILLIAM DUNCAN; FRANK STRATTON McALARY and GEOFFREY CHARLES CLARKE
No. ACT G75 of 1992
FED No. 159
Number of pages - 13
Administrative Law
(1993) 113 ALR 468
(1993) 41 FCR 407
(1993) 30 ALD 923 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Application to review decision of Magistrate declining to commit respondents for trial on indictable offences - One respondent charged with offence against Securities Industry Act 1980 (Cth) - Objection to competency of application - Whether offence charged an offence against the laws of the Commonwealth within the meaning of sub-s.68(2) of the Judiciary Act 1903 (Cth) - Effect of subs.22(3) of the Acts Interpretation Act 1901 (Cth)

Administrative Decisions (Judicial Review) Act 1977, s.5

Judiciary Act 1903 (Cth), subs.68(2)

Acts Interpretation Act 1901 (Cth), subs.22(3)

Magistrates Courts Act (ACT), s.91

HEARING

CANBERRA, 16 February 1993

#DATE 26:3:1993

Counsel for the applicant: Mr R. Castan QC and Mr B.E. Walters

Solicitor for the applicant: Director of Public Prosecutions (Cth)

Counsel for the second to
sixth respondents: Mr R.W. White

Solicitors for the second to
sixth respondents: Mallesons Stephen Jaques

Counsel for the seventh respondent: Mr M.I. Bozic

Solicitors for the seventh respondent: Sly and Weigall

ORDER

THE COURT ORDERS THAT:

1. The objection to competency notice of which was filed on

behalf of the seventh respondent on 10 December 1992 be dismissed.

2. The seventh respondent pay the applicant's costs of the

objection to competency.

3. The motion of the second, third, fourth, fifth and sixth

respondents notice of which is dated 15 February 1993 be dismissed.

4. The second, third, fourth, fifth and sixth respondents pay

the applicant's costs of the motion.

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

JUDGE1

NEAVES J. The Australian Securities Commission ("the applicant") has applied to the Court pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") for an order of review in respect of what are described in the application as decisions made on 30 October 1992 by the first respondent, Mr John Burns, a person appointed under s.7 of the Magistrates Court Act 1930 (ACT) to hold an office of Magistrate. Mr Burns was exercising the jurisdiction of the Magistrates Court of the Australian Capital Territory in committal proceedings against Geoffrey Bernard White ("the second respondent"), John Spinks ("the third respondent"), Alan John Wells ("the fourth respondent"), Travers William Duncan ("the fifth respondent"), Frank Stratton McAlary ("the sixth respondent") and Geoffrey Charles Clarke ("the seventh respondent") each of whom was charged with an indictable offence. The second, third, fourth, fifth and sixth respondents were each charged with an offence against s.108 of the Companies Act 1981 (Cth) of authorising or causing the issue, on or about 12 August 1987,…

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.

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Details

Case: [1993] FCA 159
Decision Date: 26 MARCH 1993

CaseChat Overview and Summary

In the matter of the Australian Securities Commission versus Burns, the court was presented with a case that involved an application to review a magistrate's decision declining to commit several respondents for trial on indictable offences. The seventh respondent objected to the competency of the application on the basis that the offence charged was not an offence against the laws of the Commonwealth. The second to sixth respondents sought to dismiss the application on the basis that it was incompetent. The case was heard in the Federal Court of Australia, which had jurisdiction to hear the matter under section 39B of the Judiciary Act 1903 (Cth).

The primary legal issue before the court was whether the offence charged was an offence against the laws of the Commonwealth within the meaning of subsection 68(2) of the Judiciary Act 1903 (Cth). The court also needed to determine the effect of subsection 22(3) of the Acts Interpretation Act 1901 (Cth) on the competency of the application. The court needed to consider whether the offence charged was an offence against the Commonwealth or against a State, and whether the Federal Court had jurisdiction to hear the matter.

The court held that the objection to competency was invalid, and that the Federal Court had jurisdiction to hear the matter. The court found that the offence charged was an offence against the laws of the Commonwealth, and that the Federal Court had jurisdiction to hear the matter under section 39B of the Judiciary Act 1903 (Cth). The court also found that the motion to dismiss the application was invalid, and that the application was competent. The court dismissed both the objection to competency and the motion to dismiss the application, and ordered that the respondents pay the applicant's costs.

The court ordered that the objection to competency filed on behalf of the seventh respondent be dismissed, and that the seventh respondent pay the applicant's costs of the objection to competency. The court also ordered that the motion of the second, third, fourth, fifth and sixth respondents be dismissed, and that those respondents pay the applicant's costs of the motion. The court noted that settlement and entry of orders was dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The objection to competency notice of which was filed on

behalf of the seventh respondent on 10 December 1992 be dismissed.

2. The seventh respondent pay the applicant's costs of the

objection to competency.

3. The motion of the second, third, fourth, fifth and sixth

respondents notice of which is dated 15 February 1993 be dismissed.

4. The second, third, fourth, fifth and sixth respondents pay

the applicant's costs of the motion.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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