Boys v Australian Securities Commission - [1997] FCA 519

C A T C H W O R D S

ADMINISTRATIVE LAW - Australian Securities Commission - Trustee for debenture holders appointed Receiver and Manager (“Receiver”) to Company - Receiver reported to Commission that provisions of the Companies Code may have been contravened by directors and auditors of Company - Receiver applied to Commission for authorisation to apply to Court to conduct public examinations to facilitate possible civil proceedings against former officers and auditors of the Company - Commission decided to make investigation of Company’s affairs - Commission and Receiver reached understanding involving appointment of Receiver and his solicitor as unpaid consultants to the Commission - Formal consultancy agreement executed - Receiver and solicitor to assist Commission in investigation of Company’s affairs and question examinees, including auditors - Understanding that Receiver would apply later for copies of documents produced to Commission in course of investigation and transcripts of examinations for use by him in proposed civil proceedings against auditors - Whether steps taken in accordance with the understanding and the consultancy agreement were beyond power - Whether Receiver had relevant conflict of interest - Whether denial of procedural fairness - Whether confidentiality breached - Whether Federal Court of Australia had jurisdiction to hear matter.

Judiciary Act 1903 (Cth), s.38B(1A)
Australian Securities Commission Act 1989 (Cth) Pt 3, ss.19,20,25(1),121(1),125, 127(1),(4)
Companies (Western Australia) Code, ss. 107, 129, 229, 285, 324C, 564, 556
Corporations (Western Australia) Act 1990 (W.A.), s.58

Fencott v. Muller (1983) 152 CLR 570
Avamure Pty Ltd (in liq) v. Fletcher Jones and Staff Pty Ltd (1996) 22 ACSR 256
Enterprise Sheet Metal Pty Ltd (in liq) v. Queensland Steel and Sheet Pty Ltd [1995] 1 Qd R 511
Moorgate Tobacco Co Ltd v. Phillip Morris Ltd (1980) 145 CLR 457
L.N.C. Industries Ltd v. B.M.W. (Australia) Ltd (1983) 151 CLR 575
Phillip Morris Inc v. Adam P. Brown Male Fashions Pty Ltd (1982) 148 CLR 457
Thompson v. Randwick Corporation (1950) 81 CLR 87
Little River Goldfields NL v. Moulds (1991) 32 FCR 456
Cousins v. Corporate Affairs Commission (1977) 3 ACLR 398
Queensland Building Services Authority v. Australian Securities Commission (1997) 23 ACSR 254

Australian Securities Commission v. Deloitte Touche Tohmatsu (1996) 21 ACSR 332
Hong Kong Bank of Australia Ltd v. Murphy (1992) 28 NSWLR 512
Australian Securities Commission v. Lucas (1992) 36 FCR 165
Re Excel Finance Corporation Ltd; Worthley v. England (1994) 52 FCR 69
Downsview Nominees Ltd v. First City Corporation Ltd [1993] AC 295
Re B. Johnson & Co (Builders) Ltd [1955] Ch 634
Johns v. Australian Securities Commission (1993) 178 CLR 408
Wardley Australia Ltd v. Attorney-General (W.A.) (1991) 5 WAR 453
Westpac Banking Corporation v. Australian Securities Commission (1997) 15 ACLC 445
Bond v. Sulan (1990) 26 FCR 580
Kioa v. West (1985) 159 CLR 550
National Companies and Securities Commission v. The News Corporation Ltd (1984) 156 CLR 296
Whelan v. ASC (1993) 12 ACSR 239
Grimwade v. Meagher (1995) 1 VR 446

ALAN HAROLD BOYS & ORS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 519
Decision Date: 13 JUNE 1997

CaseChat Overview and Summary

The applicants in this case sought to restrain the Australian Securities Commission and others from using certain documents in civil proceedings against them. The applicants, former auditors, argued that the Commission's investigation of their client, Geneva Finance Limited, was unlawful and that the use of the documents in question would breach their rights. The court examined several legal issues, including whether the Commission had jurisdiction to hear the matter, whether the investigation was properly conducted, and whether the Commission's engagement of consultants was lawful. The court found that the Commission had jurisdiction to hear the matter and that the investigation was properly conducted, with procedural fairness extended to the applicants. The court also found that the engagement of consultants did not amount to a conflict of interest and that the release of information was lawful. Consequently, the application was dismissed with costs.

Orders