C P Ventures Pty Ltd v Australian Securities and Investment Commission
[1999] FCA 1436
•13 SEPTEMBER 1999
FEDERAL COURT OF AUSTRALIA
C P Ventures Pty Ltd v Australian Securities & Investment Commission
[1999] FCA 1436C P VENTURES PTY LTD V AUSTRALIAN SECURITIES & INVESTMENT COMMISSION
W 95 of 1999
CARR J
13 SEPTEMBER 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 95 OF 1999
BETWEEN:
C P VENTURES PTY LTD
ApplicantAND:
AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION & ORS
Respondents
JUDGE:
CARR J
DATE:
13 SEPTEMBER 1999
PLACE:
PERTH
EX TEMPORE REASONS FOR JUDGMENT
The Court has before it a notice of motion whereby the applicant CP Ventures Ltd seeks an order that the decision of the first respondent the Australian Securities and Investments Commission, on 9 August 1999, to apply to the Corporations and Securities Panel (“the Panel”) under s 733 of the Corporations Law for a declaration that unacceptable circumstances have or may have occurred when the applicant acquired certain shares in Wesfi Ltd, be stayed. In the alternative, it seeks orders “otherwise affecting the operation or implementation of that decision” for the purpose of securing what is said to be the effectiveness of the hearing and determination of “the appeal”.
The appeal referred in the applicant’s notice of motion was lodged today. In it the applicant seeks to challenge a decision given on 6 September 1999 by the Administrative Appeals Tribunal that that Tribunal had no jurisdiction to review the Commission’s decision. Part of the factual background to this matter can be found in a judgment which I delivered earlier this afternoon, C P Ventures Pty Ltd v McKeon (1999) FCA 1272. I incorporate the factual background in the CP Ventures’ case by reference in these reasons.
The Commission’s decision of 9 August 1999 is also the subject of a challenge by the applicant in this matter as plaintiff in proceedings in the Supreme Court of Western Australia. In those proceedings, the applicant plaintiff sought, and still seeks apparently, declaratory relief which would have vitiated the Commission’s decision to apply to the Panel.
When the Supreme Court decided on 12 August 1999 not to admit that action to its expedited list, the applicant applied to the Tribunal to review the Commission’s decision on the basis that it was a decision made under s 733 of the Corporations Law and a decision of the type referred to in s 1317A and 1317B of the Law.
The applicant’s motion is supported by an affidavit sworn today by Ms Jennifer Mary Hill who is employed by the applicant’s solicitors. That affidavit discloses the following additional factual matters. On 23 August 1999 the applicant sought the review, which I have just mentioned, in the Administrative Appeals Tribunal. It would appear that an application for a stay was heard by the Tribunal on 2 September 1999. On 6 September 1999 the Tribunal published its decision. Its decision was that the Commission’s decision to apply to the Panel was not of the type referred to in s 1317 of the Corporations Law. It did not, on my reading of the Tribunal’s reasons, refer specifically to that section but relied on a definition in s 3 of the Administrative Appeals Tribunal Act which in turn is referred to in s 1317A of the Corporations Law.
The Tribunal decided that it had no jurisdiction in the matter and that the application to it by the applicant in these proceedings accordingly be dismissed. On 9 September 1999 the solicitors for the Panel informed the applicant that it intended to convene a conference in relation to its inquiry, being a conference commencing at 9 o’clock tomorrow morning; that is, 14 September 1999.
Ms Hill says in her affidavit that she believes that unless an order is granted staying the Commission’s decision, the appeal will be rendered nugatory. For the purposes of this motion I accept that the applicant has a reasonably arguable appeal on the question of whether the Tribunal was in error in holding that it did not have jurisdiction. However, I do not think that the appeal would be rendered nugatory in the relevant sense if a stay were refused. The application to the Tribunal was for review on administrative law grounds; ie, that the decision of the Commission was contrary to law, was unreasonable and was an improper exercise of power in that the Commission either took into account irrelevant considerations or failed to take into account relevant considerations.
If upon the eventual hearing of this appeal it transpires that the Tribunal’s decision as to jurisdiction was wrong, then the matter can be sent back to it for further consideration. In those circumstances if, as the applicant alleges, the Commission’s decision is legally flawed, then it can still have that decision set aside. In that event, it seems to me that there would be no valid application to the Panel and the applicant’s rights would be thereby preserved.
I appreciate that this would result in the Panel proceeding with its inquiry in circumstances where it might eventually be found that the Tribunal had (a) declined jurisdiction invalidly and (b) found that the Commission had erred in law in the manner alleged. But there would still remain, after the Panel finished its proceedings, a right in the applicant in this matter to review the Panel's eventual decision, either on the basis that there was no proper application to it from the Commission or, for that matter, on any other basis.
Mr Bennett, counsel for the applicant, referred me to two decisions which he submitted provided for a different approach to be adopted where a stay is sought under section 44A of the Administrative Appeals Tribunal Act. The cases to which I was referred were Re Repatriation Commission and Strang (1988) 15 ALD 12 and Re Repatriation Commission and Bramston (1985) 8 ALD 468. I do not find those cases helpful in disposing of this motion. I note that they are not decisions of this Court; they are decisions of Deputy President Hall of the Administrative Appeals Tribunal. Were they not distinguishable or were they otherwise to the point, I would hesitate before not deriving some help from them, but they are in my view of no assistance in the disposal of this motion.
Mr Bennett submitted that I should not, as the Commission urges, take into account, in the balancing exercise, the public interest. I do not accept Mr Bennett’s submission. I have weighed up:
· the apparent strength of the applicant’s appeal on the jurisdictional point;
· the degree to which the Panel’s procedures may affect the applicant in the sense of impinging on it deleteriously and requiring it to go to the expense and the other non-financial aspects of such effect on the one hand; against
· the public interest in not having the Panel's inquiry fragmented by the delay which would follow if a stay were imposed.
Parliament has made it very clear that the Panel’s functions are to be carried out expeditiously. I think that that factor when weighed in the balance causes the balance to tilt against any inconvenience or risk of an injustice to the applicant; an injustice which can in my opinion very largely be removed by review after the Panel's decision. So for those reasons the motion will be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate:
Dated:
Counsel for the Applicant: Mr M L Bennett Solicitor for the Applicant: Messrs Bennett & Co Counsel for the First Respondent: Mr C G Colvin Solicitor for the First Respondent: Australian Securities Commission Counsel for the Second and Third Respondents: Mr P D Evans Solicitor for the Second and Third Respondents: Messrs Freehill Hollingdale & Page Counsel for the Fourth Respondent: Mr B D Luscombe Solicitor for the Fourth Respondent: Messrs Mallesons Stephen Jaques Date of Hearing: 13 September 1999 Date of Judgment: 13 September 1999
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