Re: ALAN BOND; PETER ALEXANDER MITCHELL and ANTONY GORDON OATES
And: JOHN ROBERT SULAN
No. G581 of 1990
FED No. 598
Companies - Declarations - Federal Jurisdiction
(1990) 8 ACLC 1273
98 ALR 121
26 FCR 580
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)
CATCHWORDS
Companies - investigator appointed by National Companies and Securities Commission to conduct investigation into various companies - whether required to observe procedural fairness by according right to be heard to directors of these companies regarding any adverse conclusions or inferences reached by the investigator prior to making interim or final report.
Declarations - discretion - whether declaration should be made as to future events - prematurity - utility - form of declaration in such cases.
Federal Jurisdiction - whether investigator appointed under Part VII of Companies Act 1981 an officer of the Commonwealth - concurrent appointment under State Codes - accrued jurisdiction - Cross-Vesting legislation inapplicable.
Judiciary Act 1903
Companies Act 1981
Companies Act 1961 (Vic.)
Companies (Western Australia) Code
Companies Act 1948 (U.K.)
Broken Hill Proprietary Co. Ltd v National Companies and Securities Commission (1986) 61 ALJR 124
Bond Corporation Holdings Ltd v Sulan (1990) 8 ACLC 562
Kodak (Australasia) Pty Ltd v The Commonwealth (1988) 89 ATC 4,010
Courtice v Australian Electoral Commission (1990) 95 ALR 297
The Queen v Registrar of Companies for the Australian Capital Territory; Ex parte Boris Ganke (1960) 1 FLR 109
Re Cram; Ex parte N.S.W. Colliery Proprietors' Association Limited (1987) 163 CLR 117
Boath v Wyvill (1989) 85 ALR 621
Orison Pty Ltd v Strategic Minerals Corporation NL (1988) 81 ALR 183
Attorney-General (Cth) v State of Queensland (1990) 94 ALR 515
National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296
Testro Bros. Proprietary Limited v Tait (1963) 109 CLR 353 In re Pergamon Press Ltd (1971) Ch 388
The University of New South Wales v Moorhouse (1975) 133 CLR 1
The Trustees of Church Property of the Diocese of Newcastle v Ebbeck (1960) 104 CLR 394
F v West Berkshire Health Authority (1989) 2 All ER 545
Inland Revenue Commissioners v Rossminster Ltd (1980) AC 952
HEARING
SYDNEY
#DATE 29:10:1990
Counsel and solicitors Mr F.M. Douglas QC and
for the Applicants: R.S. Angyal Esq. instructed
by Messrs Allen Allen and Hemsley.
Counsel and solicitors Miss M.J. Beazley QC and
for the Respondent: C.J. Birch Esq. instructed
by Mr B.A. Given, solicitor for the Corporate Affairs Commission.
ORDER
The application is dismissed with costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
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- AGLC
- Bond, A. & Ors v. Sulan, J.R. [1990] FCA 598 ((1990) 8 ACLC 1273; 98 ALR 121; 26 FCR 580)
- Case
- [1990] FCA 598
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Sulan, as an investigator appointed by the National Companies and Securities Commission, was obligated to observe procedural fairness by providing the directors of the companies under investigation with a right to be heard about any adverse conclusions or inferences reached before making an interim or final report. The plaintiffs contended that Sulan's failure to provide such an opportunity constituted a breach of procedural fairness, while the defendants argued that no such obligation existed.
The court considered the nature of Sulan's role as an investigator and the extent of procedural fairness required in the context of such investigations. The court found that Sulan, in the capacity of an investigator, did not have the authority to make binding decisions affecting the rights of the directors. Instead, Sulan's role was to gather information and provide recommendations to the National Companies and Securities Commission, which would then make any binding decisions. Consequently, the court held that Sulan was not required to observe procedural fairness by providing the directors with an opportunity to be heard before making any interim or final report.
The application was dismissed with costs, as the court found no obligation on Sulan to observe procedural fairness in the circumstances. The settlement and entry of orders are governed by Order 36 of the Federal Court Rules.
Orders
Orders of the court
The application is dismissed with costs.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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