CORPORATIONS LAW - application for review of decision of the Administrative Appeals Tribunal - whether a proceeding for a banning order under s 829 of the Corporations Law is "a proceeding for the imposition of a penalty" - respondent objected to admission of evidence on basis of privilege against self-incrimination - consideration of the object of the Australian Securities Commission Act - consideration of s 1(2) and (3) - court to look at the predominant purpose of the provision - consideration of authorities relating to professional disciplinary sanctions and distinction between disciplinary sanctions designed to protect public confidence and the punitive provisions - statute cast in specific terms - use of language of purpose - effect of banning order is exclusion from futures and securities markets - it may impose hardships but purpose is not punitive.
Sir Frederick Jordon, Selected Legal Papers, Legal Books (1983) Pt 3 "General Principles of Administration of Justice"
AUSTRALIAN SECURITIES COMMISSION v MAXWELL ALFRED KIPPE & STEPHANIE FORGIE
No QG 199 OF 1995
von Doussa, Cooper & Tamberlin JJ Brisbane 28 June 1996
IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) No. QG 199 of 1995 GENERAL DIVISION )
BETWEEN: AUSTRALIAN SECURITIES COMMISSION Applicant
AND: MAXWELL ALFRED KIPPE First Respondent
STEPHANIE A FORGIE Second Respondent
CORAM: von DOUSSA, COOPER & TAMBERLIN JJ PLACE: BRISBANE DATED: 28 JUNE 1996
MINUTE OF ORDERS
THE COURT:
Orders that the application be granted
Orders that the decision of the Deputy President of the Administrative Appeals Tribunal be set aside.
Declares that the proceeding for a banning order under s829 of the Corporations Law is not a proceeding for the imposition…
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 Kippe
Sign in free to access the full text
Details
AGLC
Australian Securities Commission v Kippe [1996] FCA 517
Case
[1996] FCA 517
Decision Date
CaseChat Overview and Summary
The case of Australian Securities Commission v Kippe involves an application for review of a decision made by the Administrative Appeals Tribunal (AAT) regarding a proceeding for a banning order under section 829 of the Corporations Law. The primary issue before the court was whether such a proceeding is properly characterised as "a proceeding for the imposition of a penalty" under section 68(3) of the Australian Securities Commission Act 1989 (Cth). The respondent, Maxwell Kippe, objected to the admission of evidence on the grounds of privilege against self-incrimination. The court had to determine whether the proceeding for a banning order, which results in exclusion from futures and securities markets, was punitive or protective in nature.
The court examined the language of the relevant provisions and considered the object of the Australian Securities Commission Act, particularly its function to maintain investor confidence by ensuring adequate protection. The court noted that the effect of a banning order, while potentially imposing hardships, was not punitive but rather aimed at protecting the public interest and ensuring the effective operation of the securities industry. The court distinguished between disciplinary sanctions designed to protect public confidence and those that were punitive. It concluded that the proceeding for a banning order was protective and not intended to punish or penalise, even though it might result in exclusion from the industry.
Based on the reasoning above, the court held that the proceeding for a banning order under section 829 of the Corporations Law was not a proceeding for the imposition of a penalty within section 68(3) of the Australian Securities Commission Act 1989. The court granted the application, set aside the decision of the AAT, and remitted the matter back for determination in accordance with the law. The first respondent was ordered to pay the applicant's costs of the application.