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Australian Securities Commission v Kippe

Australian Securities Commission v Kippe

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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.

Corporations Law ss 837, 829, 835

Australian Securities Commission Act 1989 (Cth) ss 19, 68(1), 68(2), 68(3), 79, 13(1), 19(1), 19(2), 19(3), 1(2) and (3)

Coogans v MacDonald (1954) SLT 279, distinguished

Police Service Board v Morris (1985) 156 CLR 397, distinguished

Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 35 FCR 466, distinguished

Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 203, cited

Friend v Corporate Affairs Commission (1989) 7 ACLC 106, cited

Story v NCSC (1988) 6 ACLC 560, cited

Nicholas v Commissioner for Corporate Affairs (1987)
5 ACLC 258, cited

Nicholas v Commissioner for Corporate Affairs (1987)
5 ACLC 673, cited

Flavel v Borrett & Haig (1991) SASR 452, cited

Quinn v Australian Securities Commission (1994) 12 ACLC 412, cited

Re Network Agencies International Ltd (in liq); Johnston v Edwards (1991) 5 NZCLC 65, 535, cited

New South Wales Bar Association v Evatt (1968) 117 CLR 177, cited

Clyne v New South Wales Bar Association (1960) 104 CLR 186, cited

Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, cited

R v Associated Northern Collieries (1910) 11 CLR 738, cited

Naismith v McGovern (1953) 90 CLR 336, cited

Derby Corporation v Derbyshire County Council [1897] AC 550, cited

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 of…

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: [1996] FCA 517
Decision Date: 28 Jun 1996

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.

Orders