Bell, T.J. v Australian Securities Commission - [1991] FCA 528

Re: TREVOR JOHN BELL
And: AUSTRALIAN SECURITIES COMMISSION
No. Q G113 of 1991
FED No. 528
Corporations
5 ACSR 638
103 ALR 689
(1991) 31 FCR 184

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)

CATCHWORDS

Corporations - investigation by Australian Securities Commission - objection to examinee's lawyer - whether right of objection - whether validity of objection examinable.

Administrative Decisions (Judicial Review) Act 1977

Australian Securities Commission Act 1989, ss. 11, 22, 23

National Crime Authority Act 1984, ss.19, 25

HEARING

BRISBANE

#DATE 30:8:1991

Counsel for the applicant : Mr A.J.H. Morris

Solicitors for the applicant : Feez Ruthning

Counsel for the respondent : Ms S.M. Kiefel QC with Ms R.G. Atkinson

Solicitors for the respondent : Australian Securities Commission

ORDER

The decision of the respondent that neither James Francis Mackenney nor any other member of the firm of Gilshenan and Luton be permitted to be present at the continued examination of the applicant by the respondent be set aside.

The respondent pay the applicant's costs of and incidental to this application.

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

JUDGE1

This is an application by a person who has been called to be examined by an inspector in the course of an investigation by the respondent Commission. The applicant is being examined in connection with the affairs of a company, Aust-Home Investments Ltd. ("the company"). The application is made under the Administrative Decisions (Judicial Review) Act 1977, to review decisions of the "inspector" - i.e. the person before whom the applicant is being examined - relating to the legal representation of the applicant before him and certain other matters.

The substantial point of the case is whether the inspector, a Mr Behan, is entitled to decline to allow the applicant to be represented by the solicitor, or indeed the firm of solicitors, of his choice. The applicant says the statute expressly gives him a right to be represented by his lawyer and that if the right is not absolute, at least no such implication can be made in the statute as to justify the proposed exclusion of his solicitor from the examination.
The application was begun on Monday last and on that day, counsel for the applicant, Mr Morris, applied for and obtained interim relief. He did so at a hearing at which Mr Behan himself appeared for the respondent, although it was his own conduct which was challenged. Mr Behan, on that occasion, attempted to make explanations from the bar table to justify his decision, but Mr Morris objected to his doing so on the ground that statements of fact from the bar table cannot be used in evidence. Partly because I thought that the respondent might wish to obtain other representation and partly to afford the respondent an opportunity to adduce evidence, I gave the applicant relief for three days only, rather than until trial, and adjourned the case until yesterday.…

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.

Keep reading for free

Create a free CaseChat account to read Bell, T.J. v Australian Securities Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1991] FCA 528
Decision Date: 30 AUGUST 1991

CaseChat Overview and Summary

The case of Bell, T.J. v Australian Securities Commission involved Thomas J Bell as the applicant, contesting a decision made by the Australian Securities Commission (ASC) regarding the presence of his legal representatives during an investigation. The dispute was heard in the Federal Court of Australia. The applicant sought to overturn a decision by the ASC that prohibited James Francis Mackenney and any other member of the firm Gilshenan and Luton from attending the continued examination of the applicant by the ASC. The key issue before the court was whether the ASC had the authority to object to the applicant's legal representation and whether the validity of such an objection could be subject to examination. Additionally, the court needed to determine if the ASC's decision was lawful and reasonable.

In addressing these issues, the court examined the powers and procedures of the ASC in conducting investigations. It considered whether the ASC had the right to exclude legal representatives from the examination process and if such a decision could be challenged in court. The court also assessed the legal grounds upon which the ASC based its decision and whether those grounds were sufficient to justify the exclusion of the applicant's legal counsel. Ultimately, the court found that the ASC's decision was not supported by the relevant legislation and was therefore unlawful. The court held that the ASC did not have the authority to exclude the applicant's legal representatives from the examination and that the objection was invalid.

Consequently, the court set aside the ASC's decision that prohibited James Francis Mackenney and any other member of Gilshenan and Luton from being present during the examination of the applicant. Additionally, the court ordered the ASC to pay the applicant's costs associated with the application. This decision reinforces the importance of legal representation in investigative proceedings and the need for regulatory bodies to adhere to legal standards when exercising their powers.

Orders

Orders of the court

The decision of the respondent that neither James Francis Mackenney nor any other member of the firm of Gilshenan and Luton be permitted to be present at the continued examination of the applicant by the respondent be set aside.

The respondent pay the applicant's costs of and incidental to this application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.