Carter and Australian Securities and Investments Commission - [2020] AATA 809

Carter and Australian Securities and Investments Commission [2020] AATA 809 (3 April 2020)
Division:GENERAL DIVISION
File Number(s): 2018/4519
Re:Rodney Carter
APPLICANT

Australian Securities and Investments CommissionAnd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:3 April 2020
Place:Perth

The time for the making of an application to review the decision of the delegate of the Respondent made on 20 July 2017 to disqualify the Applicant from managing a corporation for four years under s 206F(1) of the Corporations Act 2001 (Cth) is extended to 8 August 2018.
....................................[sgd].................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – extension of time application – jurisdiction of the Tribunal – merits of substantive application – prejudice to respondent – public interest – extension of time application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(2), 29(2)(a), 29(7), 42A(2), 42A(9)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Corporations Act 2001 (Cth) – ss 206F, 206F(1), 206F(1)(b)(i), 206F(3), 206F(4)
Income Tax Assessment Act 1997 (Cth) – ss 25-35, Part IVA
CASES
Brown v Commissioner ofTaxation [1999] FCA 563
Carter v ASIC [2018] FCA 1064
Carter v Australian Securities and Investments Commission [2019] FCAFC 229
Comcare v A’Hearn [1993] FCA 498; (1993) 119 ALR 85 at 88
Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305
Johnson and Minister for Home Affairs [2018] AATA 3469
Kang and Secretary, Department of Social Services [2019] AATA 758
Re Johnson and Commonwealth [1990] AATA 1
Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Somba and Minister for Home Affairs [2020] AATA 425
Thompson and Comcare [2019] AATA 714
REASONS FOR DECISION
Deputy President Boyle
3 April 2020
THE APPLICATION

This is an application for an extension of time, pursuant to s 29(7) of the

Administrative Appeals Tribunal Act 1975
(Cth) (the AAT Act), to lodge an application for review of the decision of a delegate of the Respondent made on 20 July 2017 to disqualify the Applicant from managing a corporation for four years under s 206F(1) of the Corporations Act 2001 (Cth) (the Corporations Act).
BACKGROUND
Up to April 2016 the Applicant was the director of various companies which carried on businesses of fundraising by way of tele-marketing, primarily for charities.
These companies operated as the trustee of the Voiceworks 2 Trust (the Trust).
In or around 2008 laws were introduced which prohibited the making of a call to a person who had registered on the ‘do not call list’. As the trustee companies of which the Applicant was a director were not registered charities, the companies were prevented from calling people on the do not call list.
The Applicant says that following advice from ‘the charities and the various state bodies’ (RCC2 to Applicant’s statement dated 28 February 2020) the Trust and the charities entered into an arrangement by which the ‘data’ (presumably names and telephone numbers) owned by the Trust was transferred to the charities and the Trust then made the telemarketing calls ‘on behalf of the charities’. The charities were to pay for the data transferred to them by the Trust on an instalment basis using the funds generated by the telemarketing activities.
During the year ended 30 June 2009 the Trust, or more correctly the company which was the then trustee of the Trust, issued invoices for the data transfer and telemarketing services to the charities. Of the amounts invoiced, a total of around $65 million which had been included in the Trust’s assessable income for that financial year, was not paid as at 30 June 2009. The various charities terminated their arrangements with the Trust in the year ended 30 June 2010 and the Trust ceased carrying on business.
The unpaid invoice amounts were written off. The total amount written off for the year ended 30 June 2010 was just over $60 million.
The Applicant sought and, in December 2016 obtained, from the Australian Taxation Office (ATO) a private ruling (RCC13) which held that the amount written off by the Trust was a deduction under s 25-35 of the Income Tax Assessment Act 1997 (Cth) (ITAA). That private ruling was stated to be subject to a number of qualifications and specified that it made no ruling on the applicability of the general anti-avoidance rules under Part IVA of the ITAA.
Starting in May 2009 various companies of which the Applicant was a director and the relevant charities were audited by the ATO. That audit took around 12 months to complete. The audit concluded that the writing off of the invoices was not in accordance with the tax law and that invoices for the unpaid portions would have to be issued.
As a result of the findings of the ATO audit, the Trust’s tax return for FY ’09 was amended to show a profit of around $70 million. The ATO assessed a deemed distribution to the primary beneficiaries of the Trust, the Applicant and his wife, of around $35 million each. Income tax assessments were issued against the Applicant and his wife. Both objected to those assessments. The ATO conceded the Applicant’s wife’s objection, however, before the Applicant’s objection to his assessment could be heard by the Tribunal, the Applicant was declared a bankrupt in June 2011. The Applicant’s trustee in bankruptcy did not proceed with the objection.
Companies of which the Applicant was a director were wound up; three on

4 November 2011, one on 12 October 2011, one on 16 September 2010 and one on

31 August 2010.
On 16 February 2016 a notice under s 206F(1)(b)(i) of the Corporations Act requiring the Applicant to demonstrate why he should not be disqualified from managing a corporation was served on the Applicant. That notice set out the concerns that the Respondent had in relation to the Applicant’s conduct as a director of the relevant companies.
The Applicant attended a hearing on 10 August 2016 to address the concerns raised by the Respondent. He was represented at the hearing by his lawyer, Mr Christensen.
Following the hearing a decision was made on 20 July 2017 by the Respondent’s delegate to disqualify the Applicant from managing a corporation for a period of four years. It is of that decision that that Applicant seeks review (see [1] above). The Applicant seeks an extension of time to make an application for that review.
THE LEGAL PRINCIPLES
Section 29(7) of the AAT Act provides that:
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
Section 29(7) of the AAT Act does not set out any principles which the Tribunal can refer to in order to be ‘satisfied that it is reasonable in all the circumstances’ to extend the time for making an application. However, relevant principles which the Tribunal may apply in assessing whether it is reasonable to grant an extension of time have been extensively judicially considered.
The most frequently applied authority in this regard is Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment[1] (Hunter Valley), in which the Federal Court considered whether to grant an extension of time to allow an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Justice Wilcox (at 310-311) set out principles that were intended to be “non-exhaustive guidelines” (see Brown v Commissioner ofTaxation[2] per Hill J at [32]-[34]) which may be relevant when considering whether to grant an extension of time. As stated by Wilcox J (at 310), the principles were intended ‘... to guide, not in any exhaustive manner, the exercise of the court’s discretion’.
[1] [1984] FCA 176; (1984) 58 ALR 305.
[2] [1999] FCA 563.
These principles are substantially similar to those which have been applied in decisions concerning s 29(7) of the AAT Act. In Re Mulheron and Australian Telecommunications Corporation[3] President O’Connor J applied the following principles considered by Deputy President Todd in Re Johnson and Commonwealth[4] at [17]:
(a)Prima facie proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b)It is relevant whether the applicant rested on his rights or took action to make the decision maker aware that the decision was being contested.
(c)Any prejudice to the respondent that would be caused by granting the extension of time is relevant.
(d)Any wider prejudice to the general public in terms of disruption to established practices is relevant.
(e)The merits of the substantial application are relevant.
(f)Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant.
The balancing of these factors will depend on the individual case.
[3] (1991) 23 ALD 309.
[4] [1990] AATA 1.
Member Burford in Johnson and Minister for Home Affairs[5] summarised the operation of

s 29(7) as follows at [20]:
Some flexibility is permitted in applying the principles, as indicated by the above statement that “[t]he balancing of these factors will depend on the individual case”. Thus the facts and circumstances of a particular case may warrant particular attention being given to one or more of the principles over others, some of which may be less relevant, or not relevant at all. In Zizza v Commissioner of Taxation [1999] FCA 848 the Full Court of the Federal Court, when discussing the principles set out by Wilcox J in Hunter Valley, observed (at [13]) that “[i]t would be an error to regard the summary as complete, or to treat each of the six principles it contains as necessarily applicable to any particular application for extension of time, especially an application under different legislation”.
[5] [2018] AATA 3469.
At [25] Member Burford summarised the relevant considerations to be undertaken by the Tribunal as follows:
25.In determining whether an extension of time should be granted in this case, the Tribunal notes that the relevant factors it should consider in exercising its discretion to depart from the prima facie rule that proceedings commenced outside the prescribed period will not be entertained, include:
the length of delay;
whether the Applicant was aware of his appeal rights and whether he rested on those rights;
whether there is any explanation for the delay and whether that explanation is satisfactory;
any prejudice to the Respondent or the general public arising from an extension of time;
the merits of the substantive application for review; and
any alternative avenues of relief for the Applicant should the extension of time not be granted.
This Tribunal took a similar approach in Thompson and Comcare[6] wherein it observed at [154]:
In Hunter Valley Developments v Cohen (1984) 3 FCR 344 Wilcox J outlined a number of guiding principles concerning applications to extend time limits under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Those principles were considered in relation to the SRC Act by President O’Conner J in Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309 and more recently by Edmonds J in Duong v Australian Postal Corporation [2005] FCA 991 at [17] in which the relevant principles were summarized as follows:
(1)   Prima facie, proceedings should be commenced within the prescribed period and an applicant for extension must show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;
(2)   Any action taken by the applicant, other than by making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he consents the finality of the decision (who has not ‘rested on his rights’) and a case where the decision-maker was allowed to believe that the matter was finally concluded.
(3)   Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
(4)   However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.
(5)   The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.
(6)   Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion.
[6] [2019] AATA 714.
CONSIDERATION
The reviewable decision was dated 20 July 2017. The date that the Applicant received the decision, however, is, or at least was, contentious. Subsection 206F(3) of the Corporations Act requires that a person be served with a notice of their disqualification under s 206F. Subsection 206F(4) provides that the disqualification takes effect from when that notice is served on the person.
The relevant notice, and the reasons for the delegate’s decision to disqualify the Applicant, were sent to the Applicant’s lawyer, Mr Christensen, under cover of a letter dated 20 July 2017 (RCC3). That letter also enclosed a copy of a letter addressed to the Applicant advising the Applicant of his disqualification. That letter to the Applicant was not sent by the Respondent to the Applicant. The letter addressed to Mr Christensen said, amongst other things, that:
The order will need to be served personally on your client and I have asked the case officer to make suitable arrangement, In the meantime, I enclose for your information a copy of my letter to your client and the enclosures.
Mr Christensen forwarded the letter and enclosures to the Applicant. What then happened is explained by Colvin J in Carter v ASIC[7] at [10]-[12]:
[7] [2018] FCA 1064.
10.Following a request from ASIC at the hearing, Mr Carter produced the email by which he had been sent the Decision Related Documents by

Mr Christensen. It was a forwarding email without any comment from

Mr Christensen. It did not state that the email was forwarded to Mr Carter by way of information. However, it did include the covering email originally sent by ASIC to Mr Christensen (referred to above) in which the Decision Related Documents were described by ASIC as documents 'to be served on Mr Carter, for your reference'. It included both attachments to the original email from ASIC to Mr Christensen.
11.On 30 and 31 July 2017, Mr Carter communicated with ASIC in terms that made it clear that he had received documents relating to the disqualification from Mr Christensen and was aware of the disqualification. In particular, on

30 July 2017, Mr Carter sent an email to ASIC stating 'I have received an email from the solicitor representing myself, in relation to these proceedings'. Later in the email he said 'I have accordingly resigned all Directorships to respect the orders'. On 31 July 2017, Mr Carter sent a further email to ASIC which began 'I have thoroughly read the documents sent'.
12.Thereafter, ASIC proceeded on the basis that Mr Carter had been served in accordance with s 206F(3) and that the disqualification took effect from

31 July 2017.
While Colvin J found that after 31 July 2017 the Respondent proceeded on the basis that the Applicant had been duly served with the notice, it does not appear that the Applicant, or his lawyer, proceeded on that basis. In correspondence following 31 July 2017 Mr Christensen made it clear that he, and presumably the Applicant, did not accept that the Applicant had been served with the notice as required by s 206F(3) of the Corporations Act. On 7 December 2017 Mr Christensen wrote to the Respondent (RCC5) stating, amongst other things:
The decision by Ms Chapman was communicated to me under cover of a latter of 20 July 2017. The letter properly advised that it was necessary to serve Mr Carter personally (as is the case for the decision to take effect-this is consistent with what is on your register). The letter went on to advise that someone would contact me to arrange for that service. No one (sic) has ever contacted me and nor (sic), has Mr Carter been personally served.
There is no evidence before the Tribunal of any response from the Respondent to that letter of 7 December 2017.
On 14 May 2018 Mr Christensen again wrote to the Respondent (RCC6) and said:
…
4.On 20 July 2017…received a letter from ASIC notifying of the decision and advising that ASIC would make contact with us to arrange for personal service of the order on Mr Carter.
5.We were not, and have not since been, contacted by ASIC regarding the service of the order and we are instructed by Mr Carter that the order has not separately been served up on him [sic].
…
Further, Mr Carter would seek to appeal the substantive decision disqualifying him as a director and cannot do so until the order is served and has taken effect for the purposes of making an application for review in the Australian (sic) Appeals Tribunal. Accordingly, the order is required to be served personally on Mr Carter as soon as practicable. Please let us know if you require us to make arrangements for service.
It appears that ASIC did not respond to that letter either. At the hearing the Tribunal asked the Respondent’s counsel whether there had been any responses to those letters.

The hearing was stood down for 20 minutes while the Respondent’s counsel took instructions. At the resumption of the hearing the Respondent’s counsel advised the Tribunal that no response to these letters could be found.[8]
[8] Transcript at 11 and 14.
On 23 May 2018 the Applicant’s lawyer sent an email to the Respondent referring to the letter dated 14 May 2018 (see [26] above) and advising that:
We attach for your reference a copy of our letter to ASIC dated 14 May 2018.
We confirm that we have instructions to accept service of the Notice of Disqualification dated 20 July 2017 on behalf of our client.
On 28 May 2018 the Applicant’s lawyers sent another email noting that they had not received a response to the email of 23 May 2018. That email said, amongst other things:
We understand that ASIC deems him to have been served as he is aware of the Order. This could not be effective personal service nor does the Act make any provision for such ‘deemed’ service.
…we have instructions to proceed to seek a declaration that Mr Carter has not been effectively served, and until he is, he is not disqualified…
On 5 June 2018 the Applicant filed in the Federal Court an application seeking the declaration identified in the email quoted in [29] (RCC8).
On 13 July 2018 Colvin J heard that Applicant’s application for the declaration and on 18 July his Honour delivered his judgment. His Honour dismissed the application finding that:
34.It is true that ASIC initially communicated with Mr Christensen in a manner that may have indicated that service on Mr Carter was to be arranged. The letter to Mr Christensen was to that effect. However, that did not mean that personal service could not be effected by the delivery of the Notice to Mr Carter personally in the manner that occurred. The way in which Mr Carter received the Letter and the Notice would not have left any real doubt that those communications were by ASIC to him personally. Contrary to the characterisation by Mr Carter in his affidavit that the Decision Related Documents had been sent to him for his information, there was no suggestion from Mr Christensen that he was forwarding the Letter and the Notice to Mr Carter by way of information only. The email from ASIC to Mr Christensen (forwarded to Mr Carter) said only that the Decision Related Documents 'are to be served on Mr Carter, for your reference'. That communication was not sufficient to denude the Letter (signed for ASIC and addressed to Mr Carter) of its character as a communication to him by ASIC when he received it. His contemporaneous communications with ASIC on 30 and 31 July 2017 show that was the manner in which he treated the Letter and the Notice. Therefore, upon receiving and reading the Letter and Notice and the communication of that fact to ASIC, Mr Carter had been served by ASIC with notice of the disqualification.
35.The above conclusion does not depend upon any particular authority on the part of Mr Christensen to receive communications. It depends upon the receipt of the Letter by Mr Carter and the communication to ASIC on 31 July 2017 in unequivocal terms that he had thoroughly read the documents (which included the Letter and the Notice).

On 8 August 2018 the Applicant lodged in the Tribunal the application for the review of the decision and the application for extension of time. The Applicant also lodged in the Federal Court an appeal against the decision of Colvin J. On 16 December 2019 the Full Court (Greenwood, Kerr and Burley JJ) dismissed the appeal (Carter v Australian Securities and Investments Commission[9]).
[9] [2019] FCAFC 229.
The explanation for the delay
The delay in making the application was a long one. The ability of the Applicant to make the application for the review of the decision of 20 July 2017 commenced on the ‘day on which the decision [was] made’ (s 29(2) of the AAT Act) and ended ‘on the twenty-eighth day after … the day on which a document setting out the terms of the decision [was] given to the applicant’ (s 29(2)(a)).
While neither party addressed in their submissions the question of when the ‘window’ for the making of the application closed, namely identifying the day which is twenty-eighth days after the reasons for the decision were given, the Tribunal finds, consistent with the findings of Colvin J cited at [31] above, that sometime after 20 July 2017 and before 30 July 2017 the Applicant received the documents sent to Mr Christensen on

20 July 2017, including the reasons for the delegate’s decision to disqualify the Applicant. While the issue that Colvin J determined was whether service of the notice of disqualification had been effected for the purposes of s 206F(3) of the Corporations Act, not whether ‘a document setting out the terms of the decision’ had been ‘given to the applicant’ for the purposes of s 29(2) of the AAT Act, the Tribunal finds that that latter event occurred in the same period in which his Honour found that the notice under

s 206F(3) of the Corporations Act had been served. Accordingly, the window for the making of the application ended sometime in the period between 17 and 27 August 2017. The application was therefore just under 12 months late in being made.
Whether an applicant has an acceptable explanation for the delay will be relevant,

but “... there is no rule that such an explanation is an essential pre-condition” to the success of the application for an extension of time (see Comcare v A’Hearn[10]).
[10] [1993] FCA 498; (1993) 119 ALR 85 at 88.
The Applicant’s explanation for the delay is that (paragraph 25 of Applicant’s submissions):
…he took the view, according to his solicitor’s advice, that the appeal period had yet to commence because the decision had not taken effect by reason of

s. 206F(4) of the Corps Act, and accordingly, was not a “decision made” for the purposes of s. 29(2) of the AAT Act…
The Applicant submits at paragraph 26 of his submissions that:
…the Applicant notes that the AAT considers that the decision, regardless of whether it has taken effect, is a decision for the purposes of s.29(2) of the AAT Act. While the parties both initially took the view before the AAT that the decision had not crystallised for the purposes of review under s. 29(2) of the AAT Act, once advised otherwise by the Sitting Member, the Applicant immediately conceded that the AAT had jurisdiction in this regard.
The above statement is a reference to the comments made by this Tribunal to the parties’ legal representatives in the initial directions hearings commencing in September 2018. Both the Applicant’s and Respondent’s counsels in those directions hearings expressed the view that the application should be held in abeyance pending the outcome of the

Full Court appeal. The Respondent, by submission by email of 21 August 2018, that is before the first directions hearing, put the proposition that if the Applicant was successful in the Full Court, the decision to disqualify the Applicant would not have come into effect meaning that the Tribunal would not have jurisdiction. At the hearing the Tribunal pointed out that the issue being determined by the Full Court, namely whether there had been effective service of the notice of the disqualification for the purposes of s 206F(4) of the Corporations Act, had nothing to do with the review by this Tribunal of the substantive decision made by the delegate on 20 July 2017. The Tribunal’s jurisdiction is to review a reviewable decision. Clearly a reviewable decision had been made by the delegate. Whether a notice relating to that decision had been served in accordance with s 206F(3) of the Corporations Act for the operation of the disqualification to commence for the purposes of s 206F(4) of the Corporations Act, is a different issue. That issue was irrelevant to whether the Tribunal had jurisdiction to review the decision.
The Applicant accepted that position. However, the Respondent continued to argue that the programming of the applications in the Tribunal should be delayed until after the

Full Court handed down its decision. By email dated 15 November 2018 to the Applicant’s lawyer and the Tribunal, the Respondent referred to ‘…the centrality of the Full Federal Court appeal…to the applicant’s extension of time application’.
Again in an email dated 4 February 2019 the Respondent said ‘ASIC remains of the view that the applicant’s extension of time application should not be heard until the Appeal Proceeding has been determined…’
The Applicant’s lawyers responded to that statement in an email dated 5 February 2019 ‘Irrespective of the outcome of the appeal my client will still require to prosecute (sic) the application for review and seek an extension of time. There is no utility in the proposed adjournment but there is utility in proceeding’.
It is clear to the Tribunal that the reason for the delay in the making the application for the review and seeking an extension of time was that, the effect of the legal advice that he was receiving prior to the application being made, was that the coming into effect of the reviewable decision, and therefore the ability to seek review, was dependent on the proper service of the disqualification notice. While that position is wrong, it is apparent from the contemporaneous correspondence that that is the legal advice that the Applicant was receiving.
The Respondent seeks to rebut this as being the reason for the delay (paragraph 17 of Respondent’s submissions) by arguing that:
The applicant has not gone on affidavit. His unsworn statement does not say whether he sought formal advice, nor when advice was sought or received, nor whether the advice that was provided orally or in writing. If it was in writing, a copy of the advice is not provided. If the advice was provided orally, there is no evidence from Mr Christensen confirming the date and content of the advice.
The Respondent also argues that the Applicant was aware from 31 July 2017 that a decision had been made and that he was required to make an application for review within 28 days (paragraph 19 of Respondent’s submissions)
The Tribunal does not accept the Respondent’s argument. It not only ignores the clear and stated assumptions of the Applicant’s lawyer’s letters and emails set out above, which were never disputed by the Respondent, but it also ignores the fact that it was the Respondent, not the Applicant, who as late as February 2019 was still arguing that the outcome of the Full Court appeal would determine the issue before the Tribunal.
The Tribunal accepts that the reason for the delay in making the application was the mistaken belief, held by both parties, that the review of the decision, and in fact the jurisdiction of the Tribunal, was dependent on whether there had been effective service of the notice of disqualification. It was in fact the Respondent that continued to hold that belief long after the Applicant had accepted that not to be the case.
Merits of the Applicant’s case
Unfortunately the Applicant’s submissions on this consideration were misconceived.

At paragraph 22 of his submissions the Applicant says:
The substantive application for review before the AAT is limited to discrete evidence which was before the Respondent, and secondly, to a question of law. The grounds of the review are as follows:
(a) whether or not the Respondent took into consideration all the relevant material available to it in making its decision; and
(b) whether or not the Respondent failed to properly apply the test in Briginshaw v Briginshaw (1938) 60 CLR 336 in exercising its power under s 206F of the Corps Act.
The Applicant’s position is fundamentally misconceived on two points. Firstly, the Tribunal in undertaking a review of a decision is not ‘limited to the discrete evidence which was before the Respondent’. Secondly, the Tribunal undertakes an administrative merits review. Its role, unlike a court, is not to review a decision to find legal error in the decision, but to do over again that which the original decision maker did and to make its own decision. There are any number of cases which describe the role to be undertaken by the Tribunal. An often cited judgment in this regard is that of the Full Court in Shi v Migration Agents Registration Authority[11]. Justice Downes made the following observations:
35.The Administrative Appeals Tribunal is not a court. It does not exercise the judicial power of the Commonwealth. It is an administrative decision-maker. It exercises the executive power of the Commonwealth. Administrative decision-making is almost always improved if it is based on the facts and circumstances as they are at the time of the decision and not as they were in the past. Administrative decisions should always be made on this basis unless there are compelling reasons for doing otherwise. Sometimes, however, legislation conferring the decision-making power will, expressly or by implication, require the decision-maker to address a time prior to the decision and the facts and circumstances as they were at that time.
36.The position is different with litigation before courts. Judicial power is concerned with resolving disputes between parties. The dispute must exist at the time proceedings are commenced and generally be defined by pleadings or other documents addressing that point of time. Courts, accordingly, focus much more on the circumstances as they were at the time the proceedings were commenced. In this respect the work of courts can be contrasted with that of tribunals engaged in merits review of administrative decisions.
…
38.Hill J expanded upon this in Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521:
"The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation [1994] FCA 1058; (1994) 50 FCR 461. In exercising its role, in what Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 288-289 referred to as a "part of" an administrative "continuum", the Tribunal, within the ambit of the jurisdiction conferred upon it as a review authority, decides the matter by reference to the evidence before it and not the evidence before the decision-maker, taking into account events that may have occurred to the date of decision: cf Jebb (at 289-290); Lucas v Repatriation Commission (1986) 69 ALR 415 at 421; Ward v Nicholls (1988) 20 FCR 18 at 22, per Wilcox J.”
[11] [2007] FCAFC 59.
Similar statements were made by Justice Nicholson in the same case as follows:
10.His Honour’s reasoning was based on what he described as the ‘clear line of authority’. It is therefore appropriate to examine the line of authority on the issue. I consider it establishes the following:
1. The Tribunal is empowered to exercise all of the powers and discretions that are conferred by any enactment on the person who made the decision the subject of the Tribunal’s review (s 43(1) of the AAT Act): Aged Care Standards and Accreditation Agency Ltd v Kenna Investments Pty Ltd [2004] FCA 843; (2004) 138 FCR 428 at [24] per Branson J.
2. The Tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 per Bowen CJ and Deane J at 419 and Smithers J at 438-439, cited by Branson J at [24] in Aged Care [2004] FCA 843; 138 FCR 428. That is, the Tribunal is not confined either to the material which was before the primary decision-maker or the events which had occurred up till the time of its decision: per Wilcox J in Commonwealth v Ford (1986) 65 ALR 323 at 437-438 citing Drake 46 FLR at 419 and Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 51 FLR 325 at 326-327 cited by Davies J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 344. This general approach of the Tribunal was described by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 289 as being:
‘to regard the administrative decision-making process as a continuum and to look upon the Tribunal’s function as a part of that continuum so that, within the limits of the reconsideration of the decision under review, the Tribunal considers the applicant’s entitlement from the date of application or other proper commencing date to the date of the Tribunal’s decision.’
This Tribunal summarised the role of the Tribunal in reviewing a decision in Kang and Secretary, Department of Social Services[12] at [18] as follows:
The role of the Tribunal in such a review is to determine for itself what is the correct and preferable decision: see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 (Shi). The Tribunal is not limited to reviewing the decision for legal or other error, but rather conducts its own de novo assessment and determination of the matter. Its role is ‘to “do over again” what the original decision maker did’: see Yao v Minister for Immigration and Border Protection (2014) 140 ALD 21at [41] per Perry J (White and Wigney JJ agreeing), referring to Shi at [100] (per Hayne and Heydon JJ) and at [37] (per Kirby J). See also Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at [589] and reference to that case in CMHV and Director-General of Security and Minister for Foreign Affairs [2017] AATA 1547 at [37].
[12] [2019] AATA 758.
The above authorities make it clear that the role of the Tribunal is to do over again that which the original decision maker did and, on the evidence before the Tribunal at the time that it makes its decision, exercising the same discretions that the original decision maker had, make what it considers to be the correct or preferable decision. That is not, as asserted by the Applicant, an exercise in considering what errors the delegate made. It will be an exercise in considering the evidence that was presented to the delegate, and any further evidence put to the Tribunal by the parties, and forming its own view as to what the correct or preferable decision is.
The evidence that will have to be considered by the Tribunal in this matter is extensive and complex. Not only will it include all of the material that was before the delegate, but it will also include the new material lodged by the Applicant in these proceedings including the evidence in the Applicant’s statement of 25 March 2020. That statement included a copy of the deed of settlement (dated 20 March 2020) of the proceedings taken by the liquidators of various companies of which the Applicant was a director against the accountant who, the Applicant claims, gave the advice which resulted in the massive tax liabilities which, again according to the Applicant, eventually caused the companies to go into liquidation. On the face of it, those documents produced by the Applicant would have to be considered in any de novo consideration of whether the Applicant should be disqualified and if so, for what period.
Further, independently of any new material that the Tribunal would have to consider in doing over again that which the delegate did, it may be that on review of the material that was before the delegate (even ignoring additional material) the Tribunal may simply form a different conclusion to that formed by the delegate. While the delegate, based on the information before her, formed the view that it was appropriate, firstly to disqualify the Applicant, and then formed the view that four years was an appropriate period for which to disqualify the Applicant, this Tribunal may form a different view.
Looking at the material that this Tribunal would need to consider to undertake a hearing de novo, it is, in this Tribunal’s assessment, impossible to conclude that the Applicant has no prospect of success either in having this Tribunal form the view that disqualification was not justified or, if it was justified, that a period of disqualification of other than four years might be appropriate.
What is the appropriate test to be applied to the strength of the merits of the Applicant’s case? That question recently arose in the case of Somba and Minister for Home Affairs[13] in considering the required level of merit in the substantive application in an application under s 42A(9) of the AAT Act for reinstatement of an application dismissed under
[13] [2020] AATA 425.

s 42A(2) of the AAT Act. The following parts of the decision in that case are pertinent:
86.The level of merit of the substantive application used by the tribunal in Serpinli, which was not criticised by Justice O’Callghan on appeal, was whether it was shown that there was a ‘reasonable case to advance’.
87.In looking at whether an extension of time for filing a notice of appeal should be granted, Justice Lander in Hopkins v Repatriation Commission opined at [28] that :
Whether this application should be granted must depend upon whether any of the grounds of appeal would be likely to succeed if an extension of time were granted.
88.The tribunal in Fitzgibbon refused an application for reinstatement because it found (at [35]) that the application ‘had little to no prospect of success’ and the tribunal in CDJR and Australian Research Council dismissed an application for reinstatement because it was not satisfied that ‘there are any reasonable prospects of success of his application’. Similarly the tribunal in Rob dismissed the application for reinstatement as it found at [12] that the ‘application for review had no reasonable prospects of success’.
(Footnotes omitted.)
The Applicant points to the fact that while the Applicant had raised the argument before the delegate that he, in his role as a director of the companies, had acted in accordance with advice from his accountant and that action was being taken against that accountant, those proceedings have now been resolved in the various companies’ favour. As noted above, a deed of settlement evidencing a significant payment being made by the accountant to the liquidators of the various companies was included in the material provided by the Applicant in his 25 March 2020 statement. This, according to the Applicant, strengthens his argument that he had acted on professional advice.
The Tribunal asked the Respondent’s counsel at the hearing what the Respondent contended the appropriate test for the merit of the substantive application was. Counsel responded (Transcript at 22) that:
But simply working perhaps as a negative. If there is no demonstrated merit then that counts against the reasonableness.
The ‘reasonableness’ to which counsel for the Respondent was referring was the reasonableness referred to in s 29(7) of the AAT Act, namely, whether it is ‘reasonable in all the circumstances’ to extend time.

In the Tribunal’s view the appropriate test to be applied in considering the merit of the Applicant’s substantive application is that it has some prospect of success, or perhaps more appropriately, whether it could not be said that it did not have any reasonable prospect or success. Given the sheer volume of material that will need to be considered, the complexity of that material including the new material that has not previously been considered, and given the discretionary nature of the exercise that the decision maker has to undertake under s 206F of the Corporations Act, including determining the length of the disqualification, it is not the case that the application does not have any reasonable prospect of success.
Prejudice to the Respondent
At paragraph 26 of its submissions, the Respondent argues that the first prejudice that it will suffer if an extension of time is granted is that it ‘will be put to the time, cost and effort of responding to…an unmeritorious claim’. The Tribunal rejects that argument. The prejudice to be taken into account under this consideration must relate to the extension of time, not to responding to an application that the Respondent would have had to respond to had it been made within time. If the Respondent’s argument were accepted there would never be an extension of time granted. Obviously in every case where an extension of time is granted the result is that the respondent must then defend the application.
The second basis upon which the Respondent raises a prejudice (Respondent’s submissions paragraph 27) is that the effluxion of time will have an impact on witnesses’ recollection. The Respondent does not identify any witness to which that might apply. That submission, in the absence of identifying which witnesses would be so affected, is unhelpful. The only potential evidence to which the Respondent refers is the liquidators’ reports. They are statutory reports which speak for themselves.
Further, since August or September 2018 it is the Respondent, not the Applicant, who has sought to delay the applications (see [38]-[41] above). The Respondent did not seem to have any concerns then about any witnesses recollections being prejudiced or there being any urgency in having the application progressed.
In any event, the nature of the evidence and the issues involved in the substantive application are unlikely to be determined, or even significantly impacted, by witnesses’ recollection of relevant events.
The third type of prejudice identified by the Respondent (Respondent’s submissions paragraph 28) is that the ‘decision concerns a matter of public importance…that has been recorded on a public register since 1 August 2017’. The Respondent submits that:
The statutory timeframe for filing an application for review advances the public interest in certainty as to the persons who are entitled to manage corporations. Accordingly, contra applicant’s submission [32], the applicant’s private interest should be given less weight than may otherwise be the case in respect of a decision that affects only the applicant.
Carter v ASIC [2018] FCA 1064 [24]; Statement of Rodney Charles Carter, 28 February 2020, [25], RCC9 p 98; RCC10
At the hearing counsel for the Respondent explained this prejudice as follows:[14]
MR WRIGHT: ….The issue of disqualification is from being involved in the management of a corporation is a matter of protecting the public interest, and we’re now three years into the disqualification. The matter has been on the public register since 31 July 2017, and it’s not in the public interest that the matter be revisited sometime potentially not until later this year or early next year before there will even be a decision.
[14] Transcript at 20.
The following exchange then took place:[15]
TRIBUNAL:Sorry, but surely the public interest in all of the cases look at protecting the public interest. The public interest is served because he’s suspended. He is currently banned, the only prejudice really is to Mr Carter, isn’t it, the public’s protected?
MR WRIGHT: The public interest is in the public being able to rely upon the register because if the application for review was successful then it would result in Mr Carter, in fact, not having being banned, so the public would have been proceeding under the apprehension that he was banned and - - -
TRIBUNAL: How would that prejudice the public, companies that would otherwise have offered Mr Carter a directorship now being prejudiced because he shouldn’t have been banned? The public interest is clearly protected by the fact that the status quo currently is that he is banned.
[15] Transcript at 21.
As the Tribunal noted at the hearing, it is difficult to see how the public could have acted to its detriment based on the public record which would now make it inappropriate to allow an extension of time and, potentially, have the Applicant’s status changed. The public record, upon which presumably the public has relied to determine the Applicant’s status, has since 31 July 2017 shown the Applicant to have been disqualified. The public interest is in individuals who should not have been disqualified having the decision to disqualify them being reviewed and, where appropriate, overturned. The Tribunal rejects the Respondent’s argument.
CONCLUSION
While the delay is significant, nearly 12 months, the Tribunal finds that;
(a)there is a reasonable explanation for the delay for making the application (see [35]-[46] above;
(b)it could not be said that the substantive application has no reasonable prospect of success (see [52]-[59] above); and
(c)there is no demonstrated significant prejudice to the Respondent in an extension of time being granted (see [60]-[67] above).
Accordingly, the Tribunal finds that it is reasonable in all the circumstances to extend the time for the making of the substantive application to 8 August 2018.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[sgd]....................................
Associate
Dated: 3 April 2020

Date(s) of hearing: 26 March 2020

Counsel for the Applicant: Mr A Prentice

Solicitors for the Applicant: Mossensons

Counsel for the Respondent: Mr S Wright

Solicitors for the Respondent: Australian Securities and Investment Commission

Date(s) of hearing:	26 March 2020
Counsel for the Applicant:	Mr A Prentice
Solicitors for the Applicant:	Mossensons
Counsel for the Respondent:	Mr S Wright
Solicitors for the Respondent:	Australian Securities and Investment Commission