Bittman and Australian Securities and Investments Commission

[2006] AATA 732

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 732

ADMINISTRATIVE APPEALS TRIBUNAL          N° V2006/566

GENERAL ADMINISTRATIVE DIVISION

Re:           ANTAL BITTMANN

Applicant

And:AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             21 August 2006

Place:            Melbourne

Decision:For reasons given orally at the hearing the Tribunal decides that it does not have jurisdiction to review the decisions made by the respondent on 22 September 2003, 14 January 2004 and 14 June 2006.

(sgd) G. D. Friedman

Senior Member

JURISDICTION – refusal to investigate complaint made against liquidator - relevant legislation - whether decision reviewable  

Acts Interpretation Act 1901
Administrative Appeals Tribunal Act 1975 s 25
Australian Securities and Investments Commission Act 2001 ss 11(4), 244

Corporations Act 2001 ss 536, 1317B, Part 5.3A

Re Nickson and Australian Securities and Investments Commission [2005] AATA 859

REASONS FOR DECISION

21 August 2006  G.D. Friedman, Senior Member

1. Mr Bittmann was the secretary and director of Antal Air Pty. Ltd (Antal Air).  He complained to the respondent about the manner in which controllers and liquidators of an unsecured creditor of Antal Air discharged their functions.  In letters to Mr Bittmann dated 22 September 2003, 14 June 2004 and 14 June 2006 the respondent stated that it did not intend to take any action on his complaint.

2. Mr Bittmann sought review of the decisions on the basis that Part 5.3A of the Corporations Act 2001 (the Corporations Act) deals with voluntary administration and should be applied to all controllers and liquidators. The respondent’s view was that the decisions were made under s 11(4) of the Australian Securities and Investments Commission Act 2001 (the ASIC Act), which gives the respondent the power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions and the decisions are not reviewable by the Tribunal.  Two other documents were included in Mr Bittmann’s application, but as these did not originate with the respondent they do not form part of the review application.  

3. In support of his application Mr Bittmann stated that the respondent had failed to appreciate the wide ambit of the Corporations Act, and that Part 5.3A aims to protect companies and involves all creditors and shareholders. He said that the Explanatory Memorandum of the legislation and investigations by the Australian Law Reform Commission, demonstrate that the respondent has the necessary powers to control liquidators. Mr Bittmann referred to the Acts Interpretation Act 1901 and told the Tribunal that the respondent was not exercising its responsibility to apply relevant law. He also referred to s 1317B of the Corporations Act which provides for review by the Tribunal.

4. The respondent submitted that the only provision of the Corporations Act which could qualify for consideration is s 536, which deals with the power to supervise liquidators.

5. Section 25 of the Administrative Appeals Tribunal Act 1975 provides that the Tribunal can only review a decision if the decision is made under a relevant enactment. Jurisdiction of the Tribunal to review decisions of the respondent made under the ASIC Act is conferred by s 244, which provides:

   …

   (2)Applications may be made to the Administrative Appeals Tribunal for review of a decision by ASIC:

   (a)       to make an order under section 72 or 73; or

   (b)to make an order under subsection 75(1) varying an order in force under Division 8 of Part 3; or

   (c)       to refuse to vary or revoke an order in force under Division 8 of Part 3.

   …

6. In Re Nickson and Australian Securities and Investments Commission [2005] AATA 859 Deputy President Forgie canvassed the relevant issues and case law in relation to a similar application involving the respondent, in which Mr Nickson complained about the actions of an Administrator. At paragraph 55 the Tribunal stated:

   I am not satisfied that ASIC made a decision under s. 536 not to investigate the matters Mr Nickson raised.  Certainly, it could have made such a decision for its discretion was enlivened when Mr Nickson made his complaint about the conduct of Mr McLellan, a liquidator, in connection with the performance of his duties as administrator of the EPAC Group i.e. the event specified in s. 536(1)(b) has occurred.  ASIC decided that, on the information available to it, Mr McLellan’s conduct did not require regulatory intervention at that time.  It referred specifically to the CALD Board.  That was consistent with its reference to regulatory intervention. It made no reference to any inquiry of the sort that it could conduct under s. 536. In omitting to mention such an inquiry, I have concluded that ASIC has not decided not to enquire under s. 536 into the matters raised by Mr Nickson.  Instead, it has decided not to turn its mind to its powers under s. 536 at all.  That is a decision that it could make exercising its powers under s. 11(4) of the ASIC Act but that is not a decision that is reviewable by the Tribunal because of the operation of s. 244(2) of that legislation.  As it has not made a decision at all under s. 536 of the Act, the Tribunal cannot rely on s. 1317B(1) of the Act on which to base its jurisdiction to review ASIC’s action.

1. The Tribunal appreciates that Mr Bittmann is unhappy with the way in which the respondent has dealt with his complaint.  However, on the facts of this case, as in Re Nickson, the Tribunal concludes that the respondent formed the view (as stated in its letters to Mr Bittmann) that this was not an appropriate matter for regulatory intervention. The respondent did not refer to functions conferred upon it by s 536 of the Corporations Act. Consequently the complaint was not about a regulatory scheme, and the decisions not to investigate the complaint were made under the incidental powers conferred by s 11(4) of the ASIC Act.

1. For these reasons the respondent’s decisions to take no action in relation to Mr Bittmann’s complaint do not come within the scope of s 244 of the ASIC Act and are not reviewable by the Tribunal.

DECISION

1. For reasons given orally at the hearing the Tribunal decides that it does not have jurisdiction to review the decisions made by the respondent on 22 September 2003, 14 January 2004 and 14 June 2006.

I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Date of hearing:  21 August 2006

Date of decision:  21 August 2006
Advocate for applicant:                Self‑represented

Counsel for respondent:              Ms G. Hubble
Solicitor for respondent:              Australian Securities & Investments Commission