Bolton and Australian Securities and Investments Commission

This matter concerned an application by the applicant, Mr. Bolton, for the reinstatement of his application for review of a decision made by the Australian Securities and Investments Commission (ASIC). The application had been dismissed by the Tribunal on 16 November 2020, pursuant to section 42A(5) of the Administrative Appeals Tribunal Act 1975, for failure to proceed with the application within a reasonable time.

The primary legal issue before the Tribunal was whether the dismissal of the applicant's substantive application was made "in error" and, consequently, whether the application should be reinstated. This required the Tribunal to consider the conduct of the applicant's representatives and the circumstances surrounding the lack of communication with the Tribunal that led to the dismissal.

The Tribunal noted the lengthy and complex procedural history of the substantive matter, which had been listed for hearing on seven separate occasions, with six listings vacated. Following a part-heard hearing and subsequent decisions on procedural issues in 2018, the Tribunal received no further communication from either party until its attempts to contact the applicant's lawyers in September and November 2020. The Tribunal found that its attempts to communicate were unsuccessful, and in the absence of a response, it made the decision to dismiss the application under section 42A(5) of the Act. However, upon reviewing the circumstances and the applicant's subsequent application for reinstatement, the Tribunal concluded that the dismissal had been made in error and ordered that the application be reinstated.