Crase, J.K. v Australian Securities Commission

[1994] FCA 275

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I IN THE FEDERAL COURT OF AUSTRALIA )

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SOUTH AUSTRALIA DISTRICT REGISTRY ) SG 79 of 1993

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!	GENERAL DIVISION	1
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BETWEEN:  JOHN KENNETH CRASE

Applicant

AND :  AUSTRALIAN SECURITIES COMMISSION AND
;IOHN WOLTERS

Respondents

RICHARD ANTHONY FOUNTAYNE ENGLAND

Intervener

CORAM: Burchett J.
PLACE: Sydney

DATE : 11 May 1994

ORDERS OF THE COURT

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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2. The applicant pay the costs of the intervener, Richard

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1. Anthony Fountayne England.

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

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IN THE FEDERAL COURT OF AUSTRALIA )

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SOUTH AUSTRALIA DISTRICT REGISTRY ) SG 79 of 1993

)

GENERAL DIVISION )

BETWEEN :  JOHN KENNETH CRASE

Applicant

AND :  AUSTRALIAN SECURITIES COMMISSION AND
JOHN WOLTERS

Respondents

RICHARD ANTHONY FOUNTAYNE ENGLAND

Intervener

CORAM: Burchett J.
PLACE: Sydney

DATE : l1 May 1994

REASONS FOR JUDGMENT

BURCHETT J.:

This is the third in a group of cases in which applications have been brought before the Court to review decisions, made by a delegate of the Australian Securities Commission, to authorise a receiver and manager to apply to

Cor~orations Law. In this particular case, the argument was	the Court for an examination order under S. 597 of the
presented by consent on the basis of the evidence previously adduced in the case of Worthlev v. Australian Securities Commission, supplemented by some additional affidavits and documents. As in the case of Worthley, an argument was also advanced that the authorisation in question did not extend to the applicant. As that authorisation was granted to Richard Anthony Fountayne England, the receiver of Excel Finance Corporation Limited ("Excel"), I gave Mr England leave to intervene by his counsel to support the construction of the authorisation upon which he had acted.
The applicant's re-amended application for an order of review was drawn on the footing that there were three relevant decisions: an authorisation on 28 May 1991, which is the same authorisation as the authorisation in issue in Worthley; an alleged authorisation in or about July 1992 "to make an application under S. 597 to examine the applicant"; and a decision on or about 6 May 1993 "not to object to the application for an order to examine the applicant". But during the course of the hearing counsel abandoned pursuit of the alleged second decision.
In respect of the authorisation of 28 May 1991, the issues and arguments were substantially the same as those raised by Worthlev. It is sufficient to say that I dismiss the application for the reasons I expressed in that case.
So far as concerns the alleged third decision, and so far as concerns the question whether the authorisation extended to Crase, some distinction is suggested between the circumstances of Worthlev and the circumstances of the present matter. However, I do not think the distinction makes any
difference.
~t appears that in the course of the examinations of the executive directors of Exce1;whirch followed upon the grant of authority made on 28 May 1991, the receiver ascertained that Mr Crase was associated with Mr Worthley in the provision of advice to the company, involving matters which ultimately affected the balance sheets. Mr England came to the conclusion that M r Crase, too, ought to be examined. He wrote to the Australian Securities Commission, seeking confirmation that he might apply to the Court for that purpose under the authority he already held. Subsequently, on 12 June 1992, his solicitors wrote to the Commission in terms suggesting a fresh authorisation was required. In my opinion, for reasons I have already given in the matters of Whelan v. Australian Securities Commission and Worthlev v. Australian Securities commission, this was incorrect. The Commission took the same view, and on 6 July 1992 its Regional General Counsel wrote to the solicitors advising that it was for their "client to determine what applications he will make" (i.e. to the Court). There was some delay, occasioned by the Court proceedings brought by Mr Worthley, and then on 5 April 1993 the
no objection to Mr England now making application to the Court solicitors wrote seeking confirmation "that the Commission has
for an order for the examination of Mr Crase pursuant to section 597". On 6 May 1993, the Commission wrote that it had "no objection to the application".
In my opinion, there was no third decision to grant an authorisation under S. 597. I have set out the reasons which,
in my view, support this conclusion in Whelan and in Worthlev. Upon the construction of S. 597 adopted in those matters, and particularly upon the construction of the authorisation adopted in Worthlev, the authority extended to enable PLt England to make application for an examination order in respect of Mr Crase.

Accordingly I dismiss the application with costs. In the

circumstances, I consider that Mr England's intervention was reasonable and appropriate, and I also order that the applicant pay the costs of Mr England.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.

Associate: /I&	L Cpp-L l; .&L
Date: 11 May 1994	' /
Counsel for the Applicant:	Mr T.A. Gray Q.C. with
Mr R.J. Whitington

Solicitors for the Applicant:	Messrs Finlaysons
Counsel for the Respondent:	Mr J.R. Mansfield Q.C. with Mr J. O'Halloran
Solicitors for the Respondent:	Legal Department of Australian Securities Commission
Counsel for the Intervener:	Mr B.T. Lander Q.C. with Mr J. Jarvis
Date of hearing:	26 April 1994