Boucher v Australian Securities Commission

[1996] FCA 1062

CATCHWORDS

JUDICIAL REVIEW - hearing conducted by respondent’s delegate for the purpose of determining whether a banning order should be made against the appellant, a securities representative, under s 829 the Corporations Law - whether the rules of natural justice required the application by the respondent’s delegate of the principles applicable to the re-opening of proceedings in a court - relevance of fact that respondent’s delegate exercising an administrative function, as opposed to a judicial function - rules of natural justice satisfied if decision to re-open is made in a procedure which is in all the circumstances fair - no defect in delegate’s decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Australian Securities Commission Act 1989 (Cth) - ss 1, 59
Corporations Law - ss 829, 830, 837

Cases Considered

Bushell v Repatriation Commission (1992) 175 CLR 408
Kioa v West (1995) 159 CLR 550
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Murray v Figge (1974) 4 ALR 612
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296
Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518
Precision Data Holdings Limited v Wills (1991) 173 CLR 167
R v Apostilides (1984) 154 CLR 563
Salemi v Mackellar [No 2] (1977) 137 CLR 396
Smith v New South Wales Bar Association (1982) 176 CLR 256
The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Tuckiar v The King (1934) 52 CLR 335
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

ALLEYN JAMES BOUCHER v AUSTRALIAN SECURITIES COMMISSION
VG 365 OF 1996

SPENDER, DRUMMOND AND MERKEL JJ
5 DECEMBER 1996
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA                 No VG 365 of 1996
VICTORIA DISTRICT REGISTRY  
GENERAL DIVISION  

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ALLEYN JAMES BOUCHER

Appellant

AND:AUSTRALIAN SECURITIES COMMISSION

Respondent

MINUTES OF ORDERS

JUDGES MAKING ORDER:  Spender, Drummond and Merkel JJ
DATE OF ORDER:  5 December 1996
WHERE MADE:  Melbourne

THE COURT ORDERS THAT:

1.  The appeal is dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA                 No VG 365 of 1996
VICTORIA DISTRICT REGISTRY  
GENERAL DIVISION  

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:ALLEYN JAMES BOUCHER

Appellant

AND:AUSTRALIAN SECURITIES COMMISSION

Respondent

CORAM:Spender, Drummond and Merkel JJ

DATE:5 December 1996

PLACE:Melbourne

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from the dismissal of an application to a single judge of this Court (Northrop J) brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) seeking the review of the decision of the respondent's delegate to permit the re-opening of a hearing held for the purpose of determining whether the respondent should make a banning order against the appellant pursuant to s 829 the Corporations Law and what are described as two other decisions which are consequential on the first.

The appellant identified the issue in the appeal as being whether the rules of natural justice required the application by the respondent’s delegate to the hearing he was conducting of the principles applicable to the re-opening of proceedings in a court.  The appeal proceeded on the assumption by both parties that the delegate’s ruling to re-open the hearing to receive further evidence was a decision to which the ADJR Act applied or was conduct engaged in for the purpose of making the banning order, itself a decision to which the ADJR Act would apply.

The appellant was employed by Vinton Smith & Dougall (“Vintons”), a firm of stockbrokers, as a representative; as such, he was a securities representative under Chapter 7 the Corporations Law. By a notice served on him, the Commission gave notice that it would hold a hearing, to commence on 1 August 1995, for the purpose of determining whether or not it should make a banning order against the appellant under s 829 the Corporations Law.  Certain allegations against the appellant were set out in the notice.  They identified the circumstances by reference to which the Commission intended to determine whether or not to make the banning order.

Section 829 the Corporations Law relevantly provides:

“Subject to section 837, the Commission may make a banning order against a natural person ... if:

...

(d)he or she contravenes a securities law;

...

(f)the Commission has reason to believe that he or she has not performed efficiently, honestly and fairly the duties of:

(i)a representative of a dealer          ...”

Section 830 confers power on the Commission to make various forms of banning order pursuant to s 829. Section 837 relevantly provides:

“(1)     The Commissioner shall not:

¼

(e)make ¼ an order under section 830 against a person;

¼

unless the Commission complies with subsection (2) of this section.

(2)The Commission shall give the ¼ person ¼ an opportunity:

(a)to appear at a hearing before the Commission that takes place in private;  and

(b)to make submissions and give evidence in relation to the matter.”

The issue of the notice of hearing followed investigations by officers of the Commission into complaints made by a Ms James, a client of Vintons, who had engaged in certain share dealings on the appellant's advice, given to her in his capacity as an investment adviser employed by Vintons. The conduct of the appellant, set out in the allegations in the notice of hearing, that was said to raise for consideration whether a banning order should be made pursuant to s 829(f)(i) consisted of, among other things, advice allegedly given by the appellant to Ms James in relation to certain specified share sales and purchases. The allegations in the notice relating to s 829(d) asserted that the appellant had contravened s 851 the
Corporations Law by giving this same advice to Ms James.

At the hearing by the Commission's delegate, the appellant was legally represented and an officer of the Commission, who was a lawyer, appeared to assist the delegate.  Procedural directions were given on 1 August and the hearing resumed and was conducted on 27, 28, 29 September and 2 and 6 October.  Written submissions were provided by leave of the Commission's delegate by 6 November.

Before the decision of the Commission's delegate could be announced, officers of the Commission conducted further investigations into matters relevant to some of the issues the subject of the allegations in the notice of hearing.  By letter dated 26 October, the legal officer assisting at the hearing informed the solicitor for the appellant that what he termed “fresh evidence” had come to the attention of the Commission and that on 3 November 1995 he would make application to the delegate to receive that material.  The letter summarised the substance of the new evidence proposed to be given by a Mr Hewins, who had previously been, but who was no longer in Vintons’ employ; he had run Vintons’ training program for employees, including the appellant. It was apparent that the evidence Mr Hewins would give contradicted some of the evidence given by the appellant at the hearing in late September and early October on a matter of relevance to whether a banning order should be made.

Whether the hearing should be re-opened for the purpose of receiving this further evidence was dealt with by the Commission's delegate on 17 November
1995; the appellant was again legally represented.  The appellant's lawyer objected to the delegate receiving the further evidence on the ground that the appellant had prepared and conducted his case on the basis of the evidence presented by the Commission in the first part of the hearing and it would be unfair to allow the Commission to contradict him, given that he had provided his explanation; it was argued that Commission investigators had, in the course of their investigations made well before the issue of the notice of hearing, shown that they were aware of the issue in relation to which it was proposed to call Mr Hewins and had in fact spoken with him and other employees of Vintons during those investigations.

Notwithstanding the appellant’s objection, the delegate announced that he proposed to receive the further evidence.  The delegate said that it was in the interests of justice that he hear all the evidence that is available and not just what was before him at the previous hearing.  He added “Until I have handed down my decision I think I am entitled to look at all of the material before me, in the interests of justice and in the public interest.”  Resumption of the hearing was adjourned to enable the appellant to challenge the delegate's decision.

The learned primary judge accepted that, in addition to those provisions of the Corporations Law to which we have referred, certain provisions of the Australian Securities Commission Act 1989 (Cth), and in particular s 59, were relevant to the conduct of the hearing by the delegate. That provision relevantly provides:

“ (1)A hearing shall be conducted with as little formality and  technicality, and with as much expedition, as the requirements of
national scheme laws of this jurisdiction and a proper consideration of the matters before the Commission permit.

(2)At a hearing, the Commission:

(a)is not bound by the rules of evidence;

(b)may, on such conditions as it thinks fit permit a person to intervene;  and

(c)shall observe the rules of natural justice.

¼

(8)Any person may be represented at a hearing by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court.”

The learned primary judge considered the provisions of the Corporations Law relating to banning orders and concluded that such an order could constitute a severe penalty for the appellant. In considering the nature of the power conferred on the Commission by ss 829 and 830, his Honour referred to s 1 the Australian Securities Commission Act, which identifies as one of the objects of that Act the establishment of the Commission to administer such laws of the Territories and States as confer functions and powers on the Commission and which section also stipulates that the Commission, in performing its functions and exercising its powers, must strive:

“¼

(b)to maintain the confidence of the investors in the securities market and futures markets by ensuring adequate protection for such investors; and

(c)to achieve uniformity throughout Australia in how the Commission and its delegates perform those functions and exercise those powers; and

(d)to administer national scheme laws effectively but with a minimum of procedural requirements;  and

¼

(g)to take whatever action it can take, and is necessary, in order to enforce and give effect to national scheme laws.”

His Honour also described the power conferred on the Commission by s 829 the Corporations Law as a power that “performs part of the supervisory function of the Commission”.

His Honour identified the only issue for his determination as being whether the principles referred to in Murray v Figge (1974) 4 ALR 612 applied to the re-opening of the hearing before the Commission’s delegate for the purpose of receiving the evidence from Mr Hewins. Before us, the appellant did not repeat this particular submission but identified the issue thrown up by the delegate's decision to receive the further material in the more general way we have set out above.

The learned primary judge rejected the submission based on Murray v Figge.  He doubted whether, in the light of recent cases, including Smith v New South Wales Bar Association (1982) 176 CLR 256, it could, in any event, be regarded as containing a correct statement of the law. The Full Court of this Court in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139 (and at 143) observed that it seems quite clear from footnote 12 to the judgment in Smith v New South Wales Bar Association, which refers to an unreported decision of Sheppard J in Joyce v GIO (NSW), that the joint High Court judgment “rejects the stringent obiter dicta” in Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88, which Muirhead J applied in Murray v Figge.  However, the learned trial judge took the view that,
whatever the correct principles were which govern the re-opening of a party's case in litigation in a court, they did not apply to the hearing conducted by the Commission's delegate under s 837.

His Honour plainly did not hold that the relevant requirements of natural justice did not apply to the conduct of the hearing.  Rather, he held that, whatever be the rules governing the re-opening of a party's case in a court, those particular rules did not form any part of the requirements of natural justice which the Commission's delegate was bound to observe in the conduct of the hearing.  How his Honour reached this conclusion can be seen from the following passages in his judgment:

“It is necessary to consider the nature of the functions and powers of the Commission, acting by its delegate, Mr Broder, in conducting the hearing referred to in the notice of hearing given to the applicant. The hearing was to determine whether the Commission should make a banning order against the applicant on one or other or both of two grounds namely those stated in paragraph 829(d) and 829(f)(i) of the Corporations Law.  The Commission had conducted an investigation into complaints made against the applicant.  It was considering whether to make a banning order.  The Commission complied with the procedures and requirements prescribed by [Australian] Securities Commission Act.  The Commission completed the hearing and reserved its decision.

The fact that a lawyer appeared at the hearing to assist the Commission may give the impression that the Commission was hearing a dispute between two parties - the Commission and the applicant.  This impression is false.  The mere statement of the impression illustrates that it is a wrong impression.  The Commission cannot be a party and judge in its own behalf.  When conducting the hearing, the Commission was not acting as an arbitrator hearing a dispute between two parties.  No question of res judicata or issue estoppel would arise.  The functions of the Commission were to hear the evidence and submissions put to it and give proper consideration to all the matters put to it before making a decision.  The Commission was in proof exercising a true administrative function, not a quasi judicial function.  It is true that procedural requirements and compliance with the rules of natural justice apply but this does not make the functions quasi judicial.

¼

The present case is clear.  The Commission was acting in an administrative capacity.  Subject to compliance with the provisions of the [Australian] Securities Commission Act it was free to conduct the hearing as it thought proper.  Rules of procedure and function applied in courts of law or have no application.  In particular, the principles relating to the re-opening of a hearing before a court can have no application.”

It was submitted that the learned primary judge fell into error by determining the case on the basis that the rules applicable to re-opening a case in proceedings before a court had no application to the hearing conducted by the Commission's delegate because the Commission was performing an administrative rather than a quasi judicial function.  It was further submitted that the delegate's decision to receive the evidence in question resulted in a denial of natural justice to the appellant because it made the hearing an unfair one:  the appellant had prepared and presented his answer to the allegations contained in the Commission's notice on the basis of the evidence first led against him by the Commission and it was said he will necessarily suffer prejudice if the Commission is now allowed to rely on further evidence which goes to an issue to the importance of which Commission investigators were long alert.

His Honour was, in our respectful opinion, correct in identifying the function exercised by the Commission’s delegate as administrative.  That this was the nature of the function performed by the Commission’s delegate is of relevance to the question whether he was bound or ought to apply the principles applicable to re-opening a case that are applied in courts, in determining whether to receive the further evidence.  There is a fundamental difference between the exercise of an
administrative function, such as the activity in which the Commission engages when considering whether to make a banning order under s 829 the Corporations Law, and the exercise of a judicial function:  see Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 188-190. A court determines an issue between two parties on the evidence each chooses to put before the court: any power a court may have in both civil and criminal proceedings to call evidence of its own motion is strictly limited. See Obacelo Pty Ltd v Taveraft Pty Ltd (1986) 10 FCR 518 and R v Apostilides (1984) 154 CLR 563. Moreover, so far as criminal proceedings are concerned, it is a fundamental principle of criminal law that, whether a person be in fact guilty or not, that person is entitled to be acquitted if the prosecution fails to discharge the onus resting on it to prove guilt beyond reasonable doubt: Tuckiar v The King (1934) 52 CLR 335 at 346. An administrative agency is, in contrast, “under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate [the administrative decision-maker] may request or itself compel the production of further material”: Bushell v Repatriation Commission (1992) 175 CLR 408 at 425. The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 provides an early example of an administrative agency lawfully embarking upon inquiries of its own in order to make the determination required of it by the relevant statute.

But the fact that the delegate was exercising an administrative rather than a judicial function is not, of itself, determinative of the question for decision by the learned primary judge.  The critical issue must be whether the delegate, by ruling that he would receive the further evidence after he had adjourned the hearing to consider
his decision, failed to discharge his statutory obligation to comply with the rules of natural justice.

The authorities show that an obligation resting on an administrative decision-maker to observe the rules of natural justice does not require the inflexible application of a fixed body of rules; what it requires is fairness in all the circumstances of the particular case, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise:  National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296, per Gibbs CJ at 312 and see also per Mason, Wilson & Dawson JJ at 320 and Brennan J at 326; Salemi v Mackellar [No 2] (1977) 137 CLR 396 at 445 and 451; Kioa v West (1995) 159 CLR 550 at 583-585, 601, 613-614, 622. In Kioa v West, Mason J, at 584-585, explained in more detail what an administrative decision-maker must do to comply with an obligation to observe the rules of natural justice:

“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute ¼  What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting ¼

In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.  The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations ¼”

It is erroneous to equate the duty of an administrative decision-maker to comply with the rules of natural justice with a duty to follow curial procedures for these reasons and for the further reasons given by his Honour in Kioa v West at 583-584:

“It has been said on many occasions that natural justice and fairness are to be equated ¼  And it has been recognised that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness.  This is because the expression ‘natural justice’ has been associated, perhaps too closely associated, with procedures followed by courts of law.  The developing application of the doctrine of natural justice in the field of administrative decision making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making.  The effect of Aitken LJ’s influential observations in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd was to focus attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply in a particular case.  The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model ¼”

As the modern cases show, the emphasis in determining what an administrative decision-maker must do to discharge an obligation to comply with the rules of natural justice is on flexibility rather than on compliance with a rigid procedure.  In the present case, so far as the appellant is concerned, that would require the decision-maker to adopt a procedure which would be fair in all the circumstances to him as a person whose rights, interests or legitimate expectations are liable to be affected by the making of the decision in question.  A consequence of this new emphasis is, in the oft-quoted words of Stephen J in Salemi v Mackellar, supra, at 444,
that the rules of natural justice “may also vary from case to case although each be conducted before one and the same tribunal”.

In National Companies and Securities Commission v The News Corporation Ltd, supra, the Commission was conducting a hearing pursuant to legislation relevantly similar to s 837(2) the Corporations Law and s 59 the Australian Securities Commission Act; the hearing was for the purpose of the Commission determining whether there were grounds for commencing Supreme Court proceedings against certain persons on the basis that they had committed offences against the Companies (Acquisition of Shares) Act 1980 (Cth).  The Court, in concluding that the Commission’s obligation to comply with the rules of natural justice in conducting the hearing did not require it to adopt procedures that mirrored those applicable to proceedings in a court, referred to the nature of the proceeding as inquisitorial, not adversarial.  The Court also referred to the fact that the proceeding did not involve the determination of any issue as a result of which rights, interests or legitimate expectations of persons could be affected (see pp 309, 313-314, per Gibbs CJ and 322 per Mason, Wilson and Dawson JJ).  However, in making these latter comments in the course of explaining why the fundamental requirement of fairness imposed on the Commission by its duty to comply with the rules of natural justice did not require the Commission to adopt a procedure mirroring court procedure, the Court cannot, we think, be taken to have laid down by implication a rule that, where a hearing, even if administrative and inquisitorial in nature, involves something analogous to the determination of an issue which may affect the rights or interests of a person, the rules of natural justice will only be complied with if court procedures are faithfully mirrored. 
To read the judgments in this way is to ignore what their Honours repeatedly said (at pp 312, 316, 320 and 324) to the effect that the rules of natural justice are flexible in their application to any particular case and that they require nothing more or less than what is fair in all the circumstances of the case to the person whose interests may be affected.

The way in which the appellant’s case was presented at first instance may well have diverted attention from the critical inquiry, viz, whether in deciding to re-open the hearing, the Commission’s delegate acted in a way which was fair to the appellant, in all the circumstances of the case.  But it is clear that the learned primary judge adverted, in his reasons, to many of the considerations relevant to that critical issue.

The proceeding was conducted by the Commission’s delegate in the exercise of an administrative function which enabled an inquisitorial, rather than an adversarial inquiry.  The proceeding was being conducted for the purpose of enabling the Commission to decide whether to exercise the statutory power to make a banning order against the appellant.  That power is one of the powers conferred by the Corporations Law on the Commission to enable it, by the exercise of its supervisory functions, to discharge the obligation cast on it by s 1(b) the Australian Securities Commission Act to maintain the confidence of investors in the securities market by ensuring adequate protection for such investors.  In deciding whether to exercise this particular power, the delegate was thus required to have regard to the public interest.  The outcome of the proceeding, if adverse to the appellant, will have
a severe impact on his rights. Moreover, the proceeding took the form of an inquiry into a number of specific allegations and whether a banning order is made will depend upon the delegate’s decision in relation to the issues so identified. The Commission’s freedom to adopt hearing procedures it considers appropriate, conferred by s 59(1) and (2)(a), is subject to compliance with the general duty cast by s 59(2)(c) the Australian Securities Commission Act on the Commission to comply with the rules of natural justice in conducting any hearing in which the Commission is authorised to engage and also to compliance with s 837, which obliges the Commission to comply with specific procedural requirements before it can lawfully exercise the power to make a banning order, viz, it must give the person in question an opportunity to appear at a hearing of the Commission, to make submissions and give evidence in relation to the matter.

All these considerations are relevant in determining the procedures that should be adopted by the delegate at the various stages of the hearing which he must conduct before giving his decision, including that at which he ruled in favour of re-opening, to ensure that the persons entitled to be heard are fairly treated throughout.  The learned primary judge took into account these considerations in the course of reasoning his way to his ultimate conclusion, although he dismissed the appellant’s application for review on the ground that, because the delegate was performing an administrative function, procedural rules applied in courts had no application.

Moreover, his Honour did not refer to the consideration which is, in our
opinion, of particular importance to the question whether the appellant was accorded procedural fairness, viz, whether the decision to re-open would subject the appellant to impermissible prejudice.  Re-opening was sought solely for the purpose of introducing further evidence.  That further evidence can be assumed to increase the risk of a banning order being made against the appellant.  But that by itself cannot constitute relevant prejudice.  It is apparent from the legislative framework within which the Commission’s delegate had to act, and to which we have referred, that there is a public interest in the appellant being banned from acting as a security representative, if there are good grounds warranting that course.  Subject to the obligation imposed on him by the statute to observe the rules of natural justice, it is the duty of the Commission’s delegate to conduct an inquiry to determine whether or not circumstances are such which make it appropriate to make a banning order.  If it were proposed to introduce new evidence that tended to increase the risk that a banning order would be made in circumstances in which the appellant would not have a reasonable or an effective opportunity to deal with that new evidence and to present any answering material upon which he might wish to rely, then it is likely that reception of the new evidence would amount to prejudice sufficient to make re-opening unfair to him.  But nothing of the kind was suggested either to the delegate or to this Court.  Before the delegate, as here, the contention was that it must necessarily be unfair to confront a person with further evidence after his adversary has presented its evidence and after that person has made his answer to it.  That the same theoretical approach was taken before the learned primary judge appears from the way his Honour identified the issue for his determination.

A major purpose of the hearing to which the statute entitles the appellant is to give him an opportunity to answer the material which the Commission has identified as material which might justify a banning order.  It was not suggested that that purpose could not be achieved even if further evidence were received.  There is no reason to think that the Commission's delegate intended to act in a way which would deprive the appellant of a proper opportunity to deal with the further material.  The appellant was to be given an edited transcript of the s 19 examination of Mr Hewins and, having said that the appellant should receive that material, the Commission’s delegate agreed to the adjournment sought by the appellant’s lawyer to enable the appellant, among other things, to prepare to deal with it.

The appellant's case that he is prejudiced by the decision to re-open in truth amounts to nothing more than that reception of the new evidence might deprive him of some of the advantage that he considers he had achieved at the conclusion of the evidence on 6 October.  Standing alone that cannot, in our opinion, make the decision to re-open relevantly unfair.  The purpose of the statutory power, the administrative nature of the function the delegate was performing and the opportunity the appellant has had to answer the further evidence leave us in no doubt that procedural fairness has been accorded to the appellant.

His Honour did not refer to the reasons why the Commission’s lawyer sought to re-open the hearing to adduce the further evidence.  In the usual course, that would be a relevant consideration for the delegate in considering whether to re-open the hearing.  A deliberate decision by a party in court proceedings not to rely on
certain evidence in presenting its case at trial ordinarily will be fatal to that party’s application to re-open its case to call that evidence:  see Smith v New South Wales Bar Association, supra, at 266. But even if the failure by the Commission’s lawyer to rely on Mr Hewins from the outset were due to a deliberate decision not to use his evidence, that would not necessarily, by itself, be sufficient to make it a denial of procedural fairness to the appellant to permit that evidence to be put before the delegate after the appellant had presented his case: as pointed out earlier, different considerations apply to curial proceedings to those applicable in administrative proceedings.

In the present case the position seems to be that the Commission’s lawyer responsible for presenting to the delegate the material gathered by the Commission’s investigators may not have appreciated the significance of what Mr Hewins could say until that was made apparent during the hearing, by the direction the appellant’s case there took.  It does not appear from the material before this Court whether he was aware all along of the evidence available from Mr Hewins or whether he was only told of that by the Commission investigators as the appellant’s case unfolded.  But during the hearing in late September-early October, he sought to contact Mr Hewins, found he had left Vintons’ employ, then tried to, but could not, locate him.  It was not until mid October that Mr Hewins was spoken to.  The appellant was then given notice of the application to re-open.  The material before this Court, which includes the transcript of the proceedings in which the delegate made his decision to re-open, does not support a finding that the failure of the Commission to rely on Mr Hewins in the initial phase of the hearing was due to a deliberate decision to
that effect.

Accordingly, even if, contrary to our view, the principles applied by a court, as stated in Smith v New South Wales Bar Association, supra, at 266-267, were applicable, it is far from clear how those principles could operate to prevent the re-opening sought in the present case. In the majority judgment in Smith, at 267, it was made quite clear that the primary consideration on such an application is whether the re-opening sought “would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it”. As has been pointed out by us, we are not persuaded that that has occurred in the present case.

The learned primary judge correctly dismissed the application for review.  For reasons which probably arose from the way the case was argued before him, his Honour did not deal, in his reasons, with some of the considerations relevant to the question whether the decision to re-open resulted in impermissible unfairness to the appellant.  But the evidence relating to those considerations was fully canvassed before this Court.  In our view the delegate’s decision to re-open was not relevantly unfair and natural justice or procedural fairness have not been denied to the appellant.

We would dismiss the appeal with costs.

I certify that this and the preceding 18 pages are a true copy of the reasons
for judgment herein of the Court.

Associate:
Date:  5 December 1996

Counsel for the appellant:  Mr A Goldberg QC and Mr P Rose

Solicitor for the appellant:  Phillips Fox

Counsel for the respondent:  Mr P Cranswick QC and Mr P Hiland

Solicitor for the respondent:  Regional General Counsel for Victoria

Australian Securities Commission

Date of Hearing:  1 October 1996