Birdseye and Australian Securities and Investments Commission
[2003] AATA 138
•12 February 2003
CATCHWORDS – JURISDICTION – corporations law - whether Tribunal has jurisdiction to review decision of respondent to apply to the Companies Auditors and Liquidators Disciplinary Board to revoke applicant’s registration as an auditor - Tribunal has jurisdiction.
CATCHWORDS – EXTENSION OF TIME – whether the Tribunal should exercise its discretion to grant an extension of time for the applicant to lodge his application for review - extension of time not granted.
Corporations Law ss. 9, 91, 229, 597, 1290, 1292, 1295, 1317B, 1317C and 1330
Corporate Law Economic Reform Program Act 1999 ss. 206A, 206B, 206C to 206E, 206F and 206G
Administrative Appeals Tribunal Act 1975 ss. 3, 25 and 29
Corporations Act 2001 s. 1401
Australian Securities and Investment Commission Act 2001 s. 276
Australian Securities and Investment Commission Act 1989 ss. 11, 28, 30, 72, 73, 75 and 244
Administrative Decisions (Judicial Review) Act 1977 ss. 3, 5, 6, 7 and 11
Australian National Airlines Act 1945
Income Tax Assessment Act 1936 ss. 8, 16, 208 and 209
Bankruptcy Act 1966
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305
Comcare v A'Hearn (1993) 119 ALR 85
Re Birdseye and Companies Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Coopers & Lybrand v Australian Securities Commission (1994) 53 FCR 599
Lamb v Moss (1983) 49 ALR 533
Australian National University v Burns (1982) 43 ALR 25
Chittick v Ackland (1984) 53 ALR 143
Lewins v Australian National University (1995) 133 ALR 452
Australian National Airlines Commission v Newman (1987) 70 ALR 275
General Newspapers Pty Limited v Telstra Corporation (1993) 117 ALR 629
Schokker & Anor v Federal Commissioner of Taxation (1996) 96 ATC 4885
Terrule Pty Ltd v Deputy Commissioner of Taxation (1985) 5 FCR 153
Hutchins v Deputy Commissioner of Taxation (1994) 123 ALR 133
Hutchins v Deputy Federal Commissioner of Taxation (1996) 96 ATC 4,372
Hongkong Bank of Australia Limited and Another v Australian Securities Commission and Others (1992) 40 FCR 402
Mercantile Mutual Insurance v Australian Securities Commission (1993) 40 FCR 409
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Morton and Australian Securities Commission (1993) 23 ACSR 454,
Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480
Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 476
Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97
Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578
Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186
Re Pepper-Clayton and Australian Telecommunications (1985) 7ALD 508
DECISION AND REASONS FOR DECISION [2003] AATA 138
ADMINISTRATIVE APPEALS TRIBUNAL )
) S2002/362
GENERAL ADMINISTRATIVE DIVISION )
Re NICHOLAS BIRDSEYE
Applicant
AndAUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 12 February, 2003
Place: Melbourne
Decision:The Tribunal refuses to extend the time within which the applicant may apply for review of a decision of the respondent to make an application to the Companies Liquidators Auditors Board for the revocation of the applicant’s registration as an auditor.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 8 October, 2002, the applicant, Mr Nicholas Birdseye, lodged an application for an extension of the time within which he could apply for review of a decision of the respondent, the Australian Securities and Investment Commission (“the Commission”). That decision was to apply to the Companies Auditors and Liquidators Disciplinary Board (“the Board”) for the revocation of his registration as an auditor. At the hearing of the application for extension of time, Mr Birdseye represented himself and the Commission was represented by Ms Francas. Mr Birdseye lodged a bundle of documents to which reference was made at the hearing (“applicant’s documents”).
THE ISSUE
There are two issues in this case. The first is whether Mr Birdseye is entitled to make an application to the Tribunal for the review of the Commission’s decision and the Tribunal has jurisdiction to review it. If he does not, that is an end of the matter. If he may, the second issue arises. That is whether the time within which Mr Birdseye may lodge an application to review the Commission’s decision should be extended.
LEGISLATIVE FRAMEWORK
I will begin with the provisions of the Corporations Law (“the Law”) that applied at the time that the Commission made its application to the Board and at the time that the Board made its decision. I will then set out the provisions that are relevant in determining whether or not the Tribunal has power to review the Commission’s decision to make an application to the Board. Finally, I will set out the provisions relating to the Tribunal’s power to extend the time within which an applicant may apply for review of a decision.
Powers to cancel or suspend registration of an auditor or otherwise deal with a registered auditor
Where a person who was registered as an auditor requests the Board to cancel his or her registration, the Board “may cancel the registration” and its decision came into effect as soon as practicable (s. 1290). Cancellation, or suspension, of an auditor’s registration might also occur in the circumstances specified in s. 1292. That section also provided for the suspension of an auditor’s registration and for other measures. Under s. 1292, the Commission might apply to the Board for a person, who was registered as an auditor, to be dealt with under that section.
Putting to one side the situation of an auditor, who was also registered as a liquidator, the Board had to consider the Commission’s application under s. 1292 under two specific heads of power in that section and exercise its powers accordingly. The first specific head of power was found in s. 1292(1) and it provided that:
“The Board may, if it is satisfied … that, before, at or after the commencement of this section:
(a)the person has:
(i)contravened section 1288 or a corresponding previous law; or
(ii)ceased to be a resident in Australia;
(b)a registration of the person under a previous law corresponding to Division 2 has been cancelled or suspended;
(c)the person has been dealt with under a previous law corresponding to subsection (9) of this section; or
(d)the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:
(i)the duties of an auditor; or
(ii)any duties or functions required by an Australian law to be carried out or performed by a registered company auditor;
or is otherwise not a fit and proper person to remain registered as an auditor.” (s. 1292(1))
Where the Board was satisfied that the person had failed to carry out or perform adequately and properly any of the duties or functions mentioned in s. 1292(1)(d) or was satisfied that the person was not a fit and proper person to remain registered as an auditor, the Board might deal with the person in the manner set out in s. 1292(9) and might use those powers in addition to, or instead of, its powers to cancel or suspend the person’s registration as an auditor (s. 1292(10)). Where the registration of a person was suspended, the Board might, on the application of a person or on its own motion, terminate the suspension. It did that by making an order (s. 1295).
The second specific head of power was found in s. 1292(7) which was amended by the Corporate Law Economic Reform Program Act 1999 (“CLERP Act”) with effect from 13 March, 2000 and provided that:
“The Board shall, if it is satisfied …
(a)that the person is disqualified from managing corporations under Part 2D.6; or
(b)that the person is incapable of, because of mental infirmity, of managing his or her affairs;
by order, cancel each prescribed registration of the person.”
A “prescribed person” included a person who was registered as an auditor and a “prescribed registration” in relation to a prescribed person meant, among others, a person who was registered as an auditor (s. 1292(8)).
Part 2D.6 was headed “Disqualification from managing corporations”. It came into operation on 13 March, 2000 after the enactment of the CLERP Act. A person was automatically disqualified from managing a corporation if he or she was convicted of certain types of offences specified in s. 206B(1), was an undischarged bankrupt under the laws of Australia, its external territories or another country (s. 206B(3)), had executed a deed of arrangement under Part X of the Bankruptcy Act 1966 and it had not been fully complied with or his or her creditors had accepted a composition under Part X (or a similar law) and final payment had not been made under that composition (s. 206B(4)). The Court might disqualify a person in the circumstances specified under ss. 206C to 206E. In each case, an application had first to be made by the Commission. The Commission might itself disqualify a person for up to five years in the circumstances specified in s. 206F.
A person who was disqualified from managing a corporation under Part 2D.6 committed an offence if he or she took certain specified steps in relation to the business or management of a corporation (s. 206A(1)). It was a defence, however, if the person had permission to manage a corporation under either s. 206F or 206G and his or her conduct was within the terms of that permission. Permission under s. 206F was granted by the Commission (s. 206F(5)) and permission under s. 206G was granted by the Court. Where a person wished to apply to the Court, he or she had first to give notice to the Commission and had to do so 21 days before commencing the proceedings (s. 206G(2)). Once granted by a Court, ASIC might apply to it to revoke the leave (s. 206G(5)).
Jurisdiction to review decisions - provisions of the AAT Act
The Tribunal’s jurisdiction to review decisions is dependent upon there being an enactment providing that:
“... applications may be made to the Tribunal:
(a)for review of decisions made in exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment. (Administrative Appeals Tribunal Act 1975 (“AAT Act”), s. 25(1))
Section 25(4) provides the necessary corollary to s. 25(1) when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment”. The general powers of the Tribunal are found in other provisions of the AAT Act. The remaining ten sub-sections of s. 25 go on to refine the general proposition made in s. 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. It is clear from s. 25 generally that Parliament intended that the Tribunal’s power of review be defined and circumscribed by the enactment making provision for that review.
Before leaving the AAT Act, I note that s. 3(3) of the AAT Act provides that the word “decision” includes a reference to
“(a) making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article, or
(g)doing or refusing to do any other act or thing.”
Jurisdiction to review decisions - provisions of the Corporations Act
Since the Board made its decision and I affirmed it, the Law has been repealed and the Corporations Act 2001 (“Corporations Act”) enacted in its place with effect from 15 July, 2001. Chapter 10 is concerned with transitional provisions. The effect of s. 1401 is that, where a person had a right or had incurred a liability under the Law that was in force before 15 July, 2001, the provision of the Law under which it was acquired or incurred is deemed to have been incorporated in the Corporations Act. On 15 July, 2001, the person acquires or incurs a right or liability under that incorporated provision. The effect of the provisions is that any time limits applicable to the right or liability under the relevant provision of the Law apply equally to it when that provision is incorporated in the Corporations Act.
The relevant provision of the Law was s. 1317B and that is not only deemed to be incorporated in the Corporations Act but is reproduced in that legislation. It provides that:
“Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Law by:
(a)the Minister;
(b)the Commission; or
(c)the Companies Auditors and Liquidators Board.”
Section 1317C excludes certain decisions from the application of s. 1317B(1) but no reference is made to s. 1292(7).
Jurisdiction to review decisions - provisions of the ASIC Act
I also note that rights of review are also given under the Australian Securities and Investment Commission Act 2001 (“ASIC Act”). That legislation came into operation on 15 July, 2001 with the repeal of the Australian Securities and Investment Commission Act 1989 (“1989 ASIC Act”) and the enactment of the Corporations Act. Part 16 of the ASIC Act sets out the transitional provisions. Section 276 provides for the creation of equivalent rights and liabilities under the ASIC Act to those that existed before 15 July, 2001 under the 1989 ASIC Act. It does so by adopting a similar formula to that I have set out above in relation to the Corporations Act (Division 6).
Section 244(2) of the 1989 ASIC Act provided that applications might be made to the tribunal for review of a decision made by the Commission to make and order under ss. 72 or 73 or to make an order under s. 75(1) varying an order in force under Division 8 of Part 3 or to refuse to vary or revoke an order in force under Division 8 of Part 3 or to refuse to vary or revoke an order in force under Division 8 of Part 3 of the 1989 ASIC Act. Decisions under s. 11 were not referred to in s. 244(2) and so the tribunal has no jurisdiction to review them.
Provisions relevant in considering an application for extension of time
Pursuant to s. 29(2) of the AAT Act and unless varied by another enactment, a person has 28 days within which to apply for review of a decision. There is no variation effected by the Corporations Act or by the ASIC Act. A person may apply for an extension of the time allowed to lodge an application pursuant to s. 29(7) of the AAT Act and may do so even though the time for an application has expired (s. 29(8)). The principles followed by the Tribunal in determining such an application were set out by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305. These were summarised in the headnote as follows:
“(a) the fact that the applicant bears the onus of rebutting the prima facie rule that no s 5 proceedings commenced outside the prescribed period will be entertained by the court by showing an ‘acceptable explanation of the delay’ and that it would be ‘fair and equitable in the circumstances’ to extend the time;
(b) any action taken by the applicant, apart from the actual making of an application for review under the ADJR Act, which continues to make the decision-maker aware that the finality of his decision is being contested;
(c)any prejudice to the respondent which may have resulted from the delay;
(d)any unsettling of people, other than the respondent, or of established practices;
(e)the merits of the substantial s 5 application;
(f)considerations of fairness as between applicants and other persons in like positions: it is not only prejudice vis-á-vis the parties but against the wider public interest which must also be taken into consideration.”
Although it will normally be expected that the applicant will give an explanation for his or her delay in lodging an application, such an explanation is not an essential pre-condition to the Tribunal exercising its discretion (Comcare v A'Hearn (1993) 119 ALR 85 at 88).
FACTUAL BACKGROUND
Mr Birdseye submitted a number of documents including correspondence between himself and the Commission, which is referred to as “ASIC” in the correspondence. There was no dispute between the parties as to the facts, which were also set out in my previous decision regarding Mr Birdseye’s application to review the Board’s decision (Re Birdseye and Companies Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281). On 9 November, 1998, a sequestration order was made against Mr Birdseye’s estate and he became a bankrupt. On 24 November, 1998, Mr Birdseye wrote to the Commission advising it of his bankruptcy and stating that he did not believe that the circumstances of his bankruptcy would affect his being a fit and proper person to be an auditor and that he had not been convicted of any offence. He asked whether the Board would “not activate S1292(7)” were he to make a successful application under s. 229(1) of the Law as it was then in force. He was advised that, although he might be granted leave to manage a corporation, he was still subject to a s. 229 order and the matter would be referred to the Board.
At the time the correspondence was written, the expression “section 229 prohibition” was defined in s. 91(1) (s. 9) in the following terms:
“For the purposes of this Law, a person shall be taken to be or become subject to a section 229 prohibition if, and only if, the person is or becomes, as the case may be, by virtue of section 229 or a corresponding previous law, prohibited as mentioned in that section or corresponding previous law.”
Section 229(1) provided that “An insolvent under administration must not, without the leave of the Court, manage a corporation”. The expression “an insolvent under administration” was defined to mean a person who:
“(a) under the Bankruptcy Act 1966 or the law of an external Territory, is a bankrupt in respect of a bankruptcy from which the person has not been discharged; or
(b)under the law of a country other than Australia or the law of an external Territory, has the status of an undischarged bankrupt;
and includes:
(c)a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external territory or of the law of a country other than Australia, where the terms of the deed have not been fully complied with; and
(d)a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 or the corresponding provisions of the law of an external Territory or of the law of a country other than Australia where a final payment has not been made under that composition.” (s. 9)
On 14 December, 1998, Mr Birdseye wrote to the Commission and said, in part:
“Following our discussion of 4th December 1998 when you informed me that the ASIC may not make application to CALDB (although in general you do) if a registered company auditor has been made bankrupt.
The circumstances of my bankruptcy are complex and totally due to fraud committed on me.
…
I will be making a 229(1) application for I am involved in other businesses and I need to be able to provide management services.
My auditing clients are happy and not being registered would have a marked effect on my income earning capacity, being 20% of my practise income. I have not had any negligence claims made against me. I have maintained my fit and proper behaviour. I have not been involved in any behaviour that is referred to in section 229(3) of the Corporations Law and can provide many references as to character.
The reporting services in Butterworths ‘Australian Corporations Law’ Principles and Practise ref 3.2.0115 says the purpose of Section 229 is protective not punitive.
I can fully substantiate all and any claims made above. I was denied justice by 5 weeks by two ATO persons who were interested in the person and not the money. The liquidator had unlimited money and my lawyers, Matt Deller and Martin Keith, would confirm that the liquidator’s, as one of his tactics, was to win at whatever cost, even though they knew there was nothing to gain on bankrupting me.” (applicant’s documents, pages 7-9)
On 20 January, 1999, the Commission wrote to Mr Birdseye in response to his letter of 8 January, 1999. That letter summarised Mr Birdseye’s letter as listing the companies he wished to manage, advising that he wished to make an application to the Supreme Court or the Federal Court for leave to do so and advising that he wished to make an application to the Court for “the lifting of a S229(1) prohibition as defined in S1292(7) so that I can continue to be a Registered Company Auditor”. The Commission responded in part:
“Without having considered the basis upon which you intend to make your application, I point out that it is unlikely ASIC would consent to an application for leave to manage a corporation so soon after your becoming insolvent. One of the matters which the court will consider in relation to your application is your conduct in the period since the prohibition on your managing a corporation came into effect. It is ASIC’s view that this conduct cannot properly be considered until a reasonable time has elapsed following the prohibition. In my experience, is unusual for such an application to be made to the Court until at least 12 months has elapsed.
Finally I note that you refer to an application to the court for ‘the lifting of a S229(1) prohibition as defined in S1292(7) so that I can continue to be a Registered Company Auditor.’ I am unaware of the basis upon which you intend to make such an application or the basis upon which a court would have the authority to make such an order. I suggest you may wish to obtain some legal advice before proceeding with this aspect of your application. …” (applicant’s documents, page 18)
On 30 April, 1999, the Commission applied to the Board pursuant to s. 1292(7) of the Law to have Mr Birdseye dealt with under s. 1292 on the basis that he was subject to a s. 229 prohibition. Section 229(1) provided that “An insolvent under administration must not, without the leave of the Court, manage a corporation”. The expression “an insolvent under administration” included a person who was an undischarged bankrupt (s. 9). In a letter also dated 30 April, 1999, the Commission notified Mr Birdseye of its application. Correspondence was exchanged between Mr Birdseye’s solicitor and the Board.
On 9 March, 2001, the Commission applied to the Board to amend its application by deleting its reference to a s. 229 prohibition and inserting a reference to disqualification under Part 2D.6E of the Law. That amendment was to take account of the repeal of s. 229 of the Law and the substitution of Part 2D.6 by the CLERP Act.
The Board heard the application on 3 May, 2001 and ordered that Mr Birdseye’s registration as an auditor be cancelled. The Board’s decision was stayed on 10 May, 2001 and that stay remained in place until 27 August, 2001 when I affirmed the Board’s decision.
CONSIDERATION
In essence, Mr Birdseye submitted that the Commission’s decision to make an application to the Board is reviewable pursuant to s. 1317B of the Corporations Act, that he had not been notified by the Commission that it was reviewable and that, as a consequence, the 28 day period for lodgement of an application is irrelevant. He rejected Ms Francas’ submissions that the Commission’s decision is not reviewable and did so on the basis that its not being reviewable would be a breach of natural justice. He referred to the judgements of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and drew support for his position from a judgement of Von Doussa J in Coopers Lybrand v Australian Securities Commission (1994) 53 FCR 599. Ms Francas submitted that the Tribunal does not have power to review the Commission’s decision as it is not a final, operative or determinative decision and, in event, was made not under s. 1292(7) of the Law but under s. 11(4) of the 1989 ASIC Act. It is the latter section that is the source of power and not the former.
The meaning of the word “decision”
In considering the submissions, I will begin with identifying the decision to which reference is made in the Law and the 1989 ASIC Act. In neither legislation is the word “decision” defined but it is defined in s. 3(3) of the AAT Act as I have set out above. It is in the same terms as the word is defined in s. 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) and it was in this context that it was considered in the Bond case. I note that the ADJR Act provides for applications to be made to the Federal Court for the review of decisions to which the Act applies (s. 5), of conduct related to the making of such decisions (s. 6) and in respect of failures to make such decisions (s. 7). The words “decision to which this Act applies” are defined to mean
“... a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule II.” (ADJR Act, s. 3(1))
In the Bond case, Mason CJ observed, it was
“... clear that a ‘decision to which this Act’ applies must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word ‘decision’ upon which the definition in s3(1) is based.” (page 335)
His Honour, with whom Brennan J and Deane J agreed, considered the competing policy considerations to be taken into account in determining the compass of the word “decision”. These were:
“On the one hand, the purposes of the ADJR Act are to allow persons aggrieved by the administrative decision making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen CJ and Lockhart J appeared to emphasise the first of these considerations in Australian National University v Burns (1982) 64 FLR 166 at 172; 43 ALR 25 at 30, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision making and set at risk the efficiency of the administrative process.” (pages 336-337)
Mason CJ went on to say:
“The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s3(2)(g), the instances of decision mentioned in s3(2) are all substantive in character. Moreover, the provisions in sub-ss(1),(2),(3) and (5) of s3 point to a substantive determination. In this context the reference in s3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s16(1)(b) or in para (e) of Sch 1 or para (1) of Sch 2 to the ADJR Act any contrary implication. These exclusions from the ADJR Act or from s13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.
If ‘decision’ were to embrace procedural determinations, there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of a ‘decision under an enactment’.” (pages 337-338)
Mason CJ made it clear that a reviewable decision need not be one which ultimately determined all of the issues when he referred to Lamb v Moss (1983) 49 ALR 533. He said:
“Lest it should be thought otherwise, I should say that, to the extent in Lamb v Moss that the magistrate decided that a prima facie case had been established and that he would proceed with the committal proceedings, a reviewable decision had been made. That decision was one for which s41(2) of the Justices Act 1902 (NSW) specifically provided. The decision resolved an important substantive issue to be determined before the ultimate decision could be made under s41(6) of that Act whether to commit the defendant for trial or discharge him from custody.” (page 338)
In considering the word “conduct”, which is defined in s. 3(5) of the ADJR Act to include
“... a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.”
Mason CJ said that its meaning becomes clear once it is accepted that a “decision” is
“... one that generally is substantive, final and operative ... In its setting in s6 the word ‘conduct’ points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s3(5) refers to two examples of conduct which are clearly of that class, namely, ‘the taking of evidence or the holding of an inquiry or investigation’. It would be strange indeed if ‘conduct’ were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.
Accordingly, there is a clear distinction between a ‘decision’ and ‘conduct’ engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the complaint is that the process of decision making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to ‘conduct’. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.” (pages 341-342).
What is meant by “under an enactment”?
What is meant by “under an enactment” was dealt with in the earlier case of Australian National University v Burns (1982) 43 ALR 25, Bowen CJ and Lockhart J said:
“The difficulty in the present case does not lie in the definition of the expression ‘under an enactment’. We agree with Fox J who said in Evans v Freimann (1981) 35 ALR 428 at 436; 3 ALD 326 at 333, that the word ‘under’, in the context of the Judicial Review Act, connotes ‘in pursuance of’ or ‘under the authority of’: see also R v Clyne [1941] VLR 200. The difficulty lies in the application of the expression to particular circumstances. The present case poses the problem in an acute form.” (page 31)
This passage has since been adopted in other cases such as Chittick v Ackland (1984) 53 ALR 143 at 153 (per Lockhart and Morling JJ) and referred to in cases such as Lewins v Australian National University (1995) 133 ALR 452 at 461.
Bowen CJ and Lockhart J also adopted the words of Ellicott J, from whose judgement the appeal had been taken, when he had said:
“The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power to do a particular thing will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case, the question to be asked is one of substance, whether, in effect, the decision is ‘made under an enactment’ or otherwise.” (page 31, (1982) 40 ALR 707 at 716-717)
Applying the principles to the facts of the case before them, Bowen CJ and Lockhart J said:
“In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 [of the Australian National University Act 1946] empowered the council to enter into the contract on behalf of the appellant. Even if the council, in considering the position of the appellant under the contract, might be said to be acting under section 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract.” (page 32)
In Australian National Airlines Commission v Newman (1987) 70 ALR 275, the High Court found that the Australian National Airline Commission’s conduct of a kitchen was not something “done or purporting to be done” under the Australian National Airlines Act 1945. As Brennan J said,
“In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorise the conduct of the kitchen. True it is that the Act expressly confers powers on the Commission to operate services and facilities for the purposes of and incidental to the carrying on of its business (s19D) and to do ‘all things necessary or convenient to be done for or in connection with, or as incidental to, the performance of its functions’ (s19H(1)) but the Act is not to be regarded, for the purpose of s63(1), as the source of power which the commission otherwise possesses. Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done ‘under’’ the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory power to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of s.63(1).” (pages 282-283)
The case of General Newspapers Pty Limited v Telstra Corporation (1993) 117 ALR 629 was concerned, in part, with whether Telstra’s actions in negotiating the printing of its telephone directories or its decision to enter a contract with printers without calling for tenders was reviewable under the ADJR Act. In their joint judgement, Davies and Einfeld JJ reviewed a number of the authorities and continued:
“In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provisions for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decision.” (page 637)
Nicholson J’s judgement in Schokker & Anor v Federal Commissioner of Taxation (1996) 96 ATC 4885 is also relevant. The applicants sought review of a decision not to prosecute staff of the Australian Taxation Office for alleged breaches of the secrecy provisions in s. 16 of the Income Tax Assessment Act 1936 (“the ITA Act). Nicholson J reviewed the ITA Act and found that prosecutions for a taxation offence are either instituted by or on behalf of the Commissioner of Taxation. It follows that he must make a decision under that legislation as to whether or not a prosecution should be brought.
A similar approach can be said to have been taken by Jenkinson J in Terrule Pty Ltd v Deputy Commissioner of Taxation (1985) 5 FCR 153 when his Honour decided that a decision by a Deputy Commissioner of Taxation to institute proceedings for the recovery of income tax was a decision of an administrative character made under an enactment. He found that s. 209 of the ITA Act conferred upon the Commissioner of Taxation the power to take those proceedings and also the power to decline to take them.
Some years later, Jenkinson J considered whether a decision by a Deputy Commissioner of Taxation to vote against a motion at a creditors’ meeting held under the Bankruptcy Act 1966 was a decision under the ITA Act and, in particular, under s. 8 or s. 209. He did so in Hutchins v Deputy Commissioner of Taxation (1994) 123 ALR 133.
Section 8 of the ITA Act provided that the Commissioner of Taxation had the general administration of the legislation. Jenkinson J decided that a general power cannot be understood to make provision for any of the many decisions which the Commissioner must make in exercising his authority. The function of the section, he said, is merely to nominate the person by whom decisions relating to general administration may be made. Section 209 provided that the Commissioner or a Deputy Commissioner could sue for and recover unpaid tax. Section 208 provided that, when income tax became due and payable, it was a debt due to the Commonwealth.
His Honour referred to his earlier judgement in Terrule case and doubted its correctness. He said:
“I see more force now than when I rejected it in the submission of counsel for the Deputy Commissioner in Terrule’s case that s209 did not make provision for decisions of that character but merely authorised suit by the Commonwealth for recovery of income tax by the Commissioner or a deputy commissioner suing in his official name, and that no other section of the Income Tax Assessment Act 1936 made provision for such a decision. I have already given my reasons for thinking that s8 does not make that provision. On the view for which counsel for the Deputy Commissioner contended in Terrule’s case the decision whether or not to institute the suit for recovery of the tax is an exercise of the executive power of the Commonwealth conferred by s61 of the Constitution.” (page 139)
An appeal from Jenkinson J’s judgement was dismissed by the Full Court of the Federal Court in Hutchins v Deputy Federal Commissioner of Taxation (1996) 96 ATC 4,372. The majority, Black CJ and Spender J, concluded that s. 8 was expressed too generally and that ss. 208 and 209 were too remote and non specific to support a conclusion that the decision had been made under an enactment. Lockhart J disagreed on this aspect.
Is the decision to make an application to the Board a decision made under the Law?
It seems to me that the essential difference between Mr Birdseye’s position and that of Ms Francas is that he effectively asserts that the Commission made a decision under s. 1292(7) and she effectively asserts that it was made pursuant to s. 11(4) of the 1989 ASIC Act. I have set out s. 1292(7) above but s. 11(4) gives the Commission power “... to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.” If the decision were to have been made under s. 11(4), the Tribunal would not have jurisdiction to review its decision for it is not a decision coming within s. 244(2) of the 1989 ASIC Act.
Having regard to the general principles considered in the cases to which I have already referred, it seems to me that I must first consider whether there is an operative and final decision (in the sense referred to in the Bond case decision) that has been made in the exercise of a power under either the Law or the 1989 ASIC Act. If there is such a decision, I must then consider whether it is a decision which is not excluded from review under the Law if it is made under that legislation. If it was made under the 1989 ASIC Act, I must consider whether it is a decision for which review is expressly provided. If the decision does not fall within one category or the other, it is not reviewable.
Have the general principles been modified by cases that have considered the provisions of the Law or of the 1989 ASIC Act? There are three authorities of the Federal Court that are relevant. The first is Hongkong Bank of Australia Limited and Another v Australian Securities Commission and Others (1992) 40 FCR 402 (Lockhart, Gummow and O’Connor JJ). In that case, an application had been made under the now repealed s. 597(2) of the Law to apply to the court for an order that a specified person attend to be examined regarding the affairs of a corporation. Either the Commission or a “prescribed person” was permitted to apply for such an order. The Commission had authorised Messrs Murphy and Allen, the new trustees of Estate Mortgage Trust to apply to the Supreme Court of New South Wales for an order in relation to the previous trustees, Burns Philp Trustee Co Limited. They were prescribed person. The orders were obtained and required the examination of two persons and the production of records by them and by the appellants in the case.
The appellants then applied to this tribunal for a review of the Commission’s decision to authorise Messrs Murphy and Allen, to make that application. The tribunal decided that it had no jurisdiction. On appeal, the Full Court of the Federal Court looked first to whether the decision to authorise Messrs Murphy and Allen was a decision in respect of which an enactment provides for an application for review by the tribunal within the meaning of s. 25 of the AAT Act.
It decided that it was not such a decision for the decision to authorise Messrs Murphy and Allen had been made not under s. 597(1) but under s. 11(4) of the 1989 ASIC Act. That was the provision that gave the Commission the power to authorise them. Section 597(1) merely gave those who had been authorised by the Commission standing to apply for the appropriate order. As the decision to authorise them had been made under a provision of the 1989 ASIC Act, it was in that Act that the right to apply to the tribunal had to be found. As decisions made under s. 11(4) were outside the scope of s. 244, which provided for review to the tribunal, the decision to authorise Messrs Murphy and Allen was not reviewable.
The same facts lay behind the judgement of the Full Court of the Federal Court in the Mercantile Mutual Insurance v Australian Securities Commission (1993) 40 FCR 409 (Black CJ, Lockhart and Gummow JJ). Again the decision of which review was sought was a decision made to authorise Messrs Murphy and Allen to apply under s. 597(2) of the Law. Review of that decision was sought under the ADJR Act. In finding that the source of power of the authorisation was s. 11(4) of the 1989 ASIC Act, the Full Court reached the same conclusion as that reached in the Hongkong Bank case. Consideration was given to the validity of the authorisation and that is not relevant in these proceedings.
The third case is that to which Mr Birdseye referred. It is the case of Coopers & Lybrand. The Commission had issued a notice to the partners of Coopers & Lybrand pursuant to s. 30 of the 1989 ASIC Act. The notice required the production of certain books and the Commission later advised Coopers & Lybrand that if they did not comply with the notice, the Commission would certify its failure to the Court and ask the Court to enquire into Cooper & Lybrand’s non-compliance. Section 28 modified the operation of s. 30 by providing that the power conferred by that section might only be exercised for, among other matters, the purposes of the performance or the exercise of any of the Commission’s functions under, among others, the Law. Coopers & Lybrand contended that the notice was not valid on the ground that the Commission was not empowered by any relevant legislation and in particular was not empowered by s. 1292 of the Law.
Von Doussa J referred to the distinction between functions and powers and to the analysis of that distinction drawn by Northrop and Franki JJ in Edelsten v Health Insurance Commission (1990) 27 FCR 56. Turning to s. 1292(1), he said that it:
“… plainly reposes in the ASC the function of making application to the Companies Auditors and Liquidators Disciplinary Board established by s 202 of the ASC Law. …
It is implicit in s 1292(1), particularly when it is read to have effect subject to s 1294 as required by s 1292(12), that the ASC as part of that function must monitor the conduct of registered auditors, and in the course of determining whether to exercise the function of making application to the Board, to gather information relevant to the circumstances on which the Board could appropriately order cancellation or suspension. To enable these administrative functions to be performed in my opinion it is implicit in s 1292(1) that the ASC is empowered to do so. The ASC is further empowered by s 1294(2) to appear at a hearing to make submissions and to bring evidence before the Board. The exercise of this express function and power to be meaningful must extend also to conducting inquiries to ascertain the full circumstances of the conduct the subject of the hearing before the Board.” (page 605)
Referring to the Hongkong Bank case, Von Doussa J said that the analogy to be drawn is between ss. 1292(1) and 597(2) and not between ss. 1292(1) and 597(1). It seems to me that his Honour’s reasons for drawing that analogy is that ss. 1292(1) and 597(2) both empowered the making of an application; in the case of the former to the Board and in the case of the latter to the Court. The role of s. 597(1) was to provide, as it were, a definition of a “prescribed person” but not to empower the making of an application.
Von Doussa J then went on to consider s. 11(4) of the 1989 ASIC Act should he be incorrect in his conclusion. He noted that, although not finally deciding the point, the Full Court in the Hongkong Bank case had suggested that the power to authorise a person arose under that section and this had been found to be so in the Mercantile Mutual Life Insurance case. He concluded that s. 11(4) could equally be a source of power for the Commission to exercise a function of making an application under s. 1292(1) of the Law.
In Morton and Australian Securities Commission (1993) 23 ACSR 454, I concluded that the power to intervene in any proceeding arising under the Law arose under s. 1330(1) of the Law but that it did not arise under s. 11(4). In view of the Coopers & Lybrand case, it may be that I was incorrect in that and that s. 11(4) provides an additional source of power. In that case, I went on to consider whether declining to exercise the Commission’s power to intervene under s. 1330(1) was a decision made under that section or under s. 11(4). I concluded:
“36. There is nothing in sub-section 1330(1) which requires the ASC to make a decision whether or not to exercise the power. It is a power available to be used but so too is a range of other powers. The power of intervention is but one step that the ASC could have chosen. It could have decided, for example, to keep a “watching brief” on the proceedings but take no part, it could (as it did) appear as amicus curiae or it could choose to do nothing about those proceedings at all. Its decision to reject one course of action open to it (i.e. to exercise its power to intervene) and to adopt another is not taken under sub-section 1330(1) of the Law but under the more general powers of sub-section 11(4) of the ASC Act. The decision is, therefore, a decision authorised by the ASC Act and so a decision under that legislation. As this tribunal does not have jurisdiction to review a decision under sub-section 11(4), it does not have jurisdiction to review the decision to refuse to intervene in the proceedings.”
That conclusion was sufficient to decide the Morton case but I went on to consider whether the Commission’s declining to intervene was a final, operative and determinative decision. After considering a number of authorities, I concluded:
“50. In this case, it seems to me that the decision was a final, operative and determinative decision that the ASC should not intervene but take another step. There was no further step along the way for the ASC to make on that issue. Despite that, it is essentially a decision as to what procedure should be followed in proceedings which it had not instituted. It is not determinative of any substantive issue. It is not, therefore, a decision within the meaning of sub-section 1317B(1) of the Law and so is not a decision which is reviewable by the tribunal.”
Having regard to the three cases in the Federal Court, it seems to me that each has applied the general principles that I have set out above. I also followed those principles in Morton. The difference in outcome in each case is explicable by reference to the different analyses of the decisions that were made rather than a difference in the principles applied in reaching those analyses.
Applying the principles to the facts of this case, I must begin with the Commission’s action to make an application to the Board pursuant to s. 1292(7). That provision did not merely provide that making an application to the Board was a function of the Commission. By empowering the Board to take certain action if the Commission made an application, it implicitly empowered the Commission to make that application. When the Commission decided to exercise that power, it needed no authority to make it other than s. 1292(7) and it made it under s. 1292(7).
Ms Francas submitted that the Commission’s decision is not a final, operative or determinative decision and referred both to the Bond and the Morton cases. It was the Board’s decision that was determinative, she submitted, and not that of the Commission. While it is true that it is the Board’s decision that was determinative of Mr Birdseye’s entitlement to continue as an auditor, it is necessary to look at the quality of the Commission’s decision and to determine whether that has the necessary quality of finality. When that is done in this case, the Commission’s decision does not have the quality of a decision that is simply a precursor to another or simply a procedural decision along the way to a final and determinative decision. What the Commission’s decision did was to determine the issue that s. 1292(7) gave to it to decide. That is to say, it decided that it would make an application and that was a final, operative and determinative decision of the issue of whether or not it should make an application. What the Board did with that application was a matter for it to decide in accordance with its powers under the Law.
It follows that the decision of the Commission was a decision that was a decision under the Law. As it was not a decision that was excluded from review by s. 1317C, it was a decision that was reviewable under s. 1317B(1) of the Law and so of the Corporations Act.
Should an extension of time be granted to apply for review of the decision?
In considering the manner in which the discretion to grant an extension should be exercised, regard is traditionally paid to the principles set out by Wilcox J in Hunter Valley case. In that case Wilcox J considered an application for extension of time pursuant to s. 11 of ADJR Act. After noting that s. 11 does not set out any criteria to be followed in exercising the Court’s discretion and noting that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he said:
“... I venture to suggest that from them may be distilled the following principles to guide, not in any exhaustive manner, the exercise of the court’s discretion:
(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed method’ of 28 days is not to be ignored: Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained: Lucic v Nolan (1982) 45 ALR 411 at 416. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time: Duff v Freijah (1982) 43 ALR 479 at 485; Chapman v Reilly (Neaves J, 9 December 1983, unreported, at p7).
(b) Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon, and Douglas v Allen (Morling J, 3 April 1984, unreported, at p18 of the transcript) with Lucic at 414–5 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
(c) Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay, is a material factor militating against the grant of an extension: see Doyle at p287; Duff at pp484–5; Hickey at pp525–7 and Wedesweiller at pp533–4.
(d) However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas at p18; Lucic at p416; Hickey at p523. In this context, public considerations often intrude: Lucic, Hickey. A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at p550; Becerra v Fowell (Morling J, 18 February 1983, unreported, at 12– 13)) or of established practices (Douglas at 19) is likely to prove fatal to the application.
(e) The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at p417; Chapman at p6.
(f) Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion: Wedesweiller at pp534–5.” (pages 310-311)
The Hunter Valley case has since been cited with approval and applied by the Federal Court, eg Burchett J in Chumbairux v Minister for Immigration and Ethnic Affairs (1986) 74 ALR 480 and Northrop J in Hoare v Deputy Commissioner of Taxation of the Commonwealth of Australia (1987) 14 ALD 476. It has also been followed in reported decisions of this tribunal such as Re Bonavia and Secretary, Department of Social Security (1985) 9 ALD 97 and; Re Bogaards and Commonwealth of Australia (1987) 13 ALD 578. Similar principles were applied by Mr R K Todd, Deputy President, in the case of Re Bell and Australian Telecommunications Commission (1983) 5 ALN N186 which pre-dated the decision in Hunter Valley and in Re Pepper-Clayton and Australian Telecommunications (1985) 7ALD 508 which post-dated it but made no reference to it.
In applying the guidelines set out in the Hunter Valley case, I am mindful that it was stated in that case and has been consistently stated in decisions of the Federal Court since that they are not exhaustive. I am also mindful that the Federal Court has said that there is no precondition that there must be an acceptable explanation of the delay before an application for an extension of time can be successful. While there is no pre-condition it is, however, to be expected that such an explanation will normally be given as a relevant matter to be considered (Comcare v A’Hearn (1993) 119 ALR 85 at 88 per Black CJ, Gray and Burchett JJ).
Referring to Mr Birdseye’s statement that he had first become aware of his right to have the Commission’s decision reviewed when it was raised by Deputy President Burns at the hearing of his application for a stay on 10 May, 2001, Ms Francas submitted that there was no reason why he could not have made his application for review in May, 2001. She rejected his submission that he had to wait until his application to review the Board’s decision had been heard and determined. In any event, the Commission’s decision had now been subsumed in the Board’s subsequent decision which had been reviewed by the Tribunal and the Tribunal’s decision had been considered by the Federal Court on appeal.
Having regard to the history of both Mr Birdseye’s application to review the Board’s decision, he has made it very clear at all times that he was not happy with the Commission’s applying to the Board or with the Board’s subsequent decision. In not lodging an application for its review, however, he has until October, 2002 given the impression to the Commission and generally that he is challenging the Board’s decision and, although unhappy with it, not challenging the Commission’s decision to make an application to the Board. He has given that impression for some seventeen months for, on his own statement, he first became aware of his right to apply on 10 May, 2001 at the stay hearing by Deputy President Burns. As a person, who is not legally qualified, Mr Birdseye’s inaction in that period may be understandable on the basis that he thought that he had to complete one review before commencing another. I note that he was legally represented up to an including the hearing of the appeal to the Full Federal Court which was decided on 19 March, 2002 I make no further comment on that.
The difficulty that I have with Mr Birdseye’s application is that, even if Mr Birdseye’s delay is understandable and even if there is no unfairness in granting him an extension when his situation is compared with that of others lies in the consequences of there being a review of the Commission’s decision at this stage. As I have said, the Board’s decision has been reviewed by the Tribunal and an appeal against that decision has been disallowed. If the Commission’s decision were reviewed and if it were decided that the correct or preferable decision would have been not to make an application to the Board, what becomes of the Board’s decision? A necessary pre-requisite to its being made was the Commission’s application, which was validly made at the time. To take away the pre-requisite after the Board has acted upon it and after others have acted upon the Board’s decision is to unsettle all that has followed the Commission’s decision.
Had Mr Birdseye applied for an extension of time in May, 2001 when his application to review the Board’s decision was still on foot, it might arguably have been the case that review of the Commission’s decision would not have caused any difficulties of a practical nature. Whether there would be any in such a situation remains a question for another day and I express no view on it. At this stage, though, I consider that the application for an extension is made far too late. The administration of the regulatory scheme set out in the Corporations Act and in the Corporations Law before it requires that there be a time when the Board’s decisions have finality and can be relied upon. In this case, that came when the Federal Court handed down its judgement. I do not consider that I should exercise my discretion to grant an extension of time to unsettle that finality in any way.
For the reasons I have given, I refuse to extend the time within which the applicant may apply for review of a decision of the respondent to make an application to the Companies Liquidators Auditors Board for the revocation of the applicant’s registration as an auditor.
I certify that the sixty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)
Signed: ..sgd.P. Paczkowski.…...........................
P. Paczkowski Associate
Date/s of Hearing 15 November, 2002
Date of Decision 12 February, 2003
For the Applicant self
Solicitor for the Respondent Ms Francas, ASIC
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