Creswick, P. v Australian Securities Commission - [1993] FCA 272

19 1%

JUDGMENT No. ...a A&..../ nn.ll .,.

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WAtES DISTRICT REGISTRY ) No. NG 3161 of 1992

GENERAL DIVISION 1

BETWEEN : PHYLLIS CRESWICK

Applicant

AND : AUSTRALIAN SECURITIES COMMISSION
Respondent

JUDGE W I N G ORDERS: FOSTER J

DATE : 23 MARCH 1993
PLACE : SYDNEY

-

-:

1. The appeal be dismissed.
2. The applicant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)

NEW SOUTH WALES DISTRICT REGISTRY ) NO. NG 3161 of 1992

)

GENERAL DIVISION )

BETWEEN: PHYLLIS CRESWICK

Applicant

AND : AUSTRALIAN SECURITIES COMMISSION

Respondent

CORAH: FOSTER J
DATE a 23 MARCH 1993
PLACE a SYDNEY

(Extempore)

HIS HONOUR: This is an appeal brought under s 44 of the brought from a decision of a Deputy President of the Administrative Appeals Tribunal (the "Tribunal"), Mr B.J.

strative

A ~ ~ e a l s Tribunal Ac& (the "AAT Act"). It is

McMahon, given on 29 June 1992.
The applicant, Mrs Phyllis Creswick, appeared in person before the learned Deputy President and also appears in person on the appeal. She applied to the Tribunal for review of a decision of the Australian Securities Commission (the "ASC") which was the respondent before the Tribunal and is the respondent in this appeal.

The decision given by the ASC was one of refusal to apply at the request of Mrs Creswick under S 1292(2)(d) of the Corporations Law to the Companies Auditors and Liquidators Disciplinary Board (the "Board") for a liquidator, Max Christopher Donnelly to be dealt with by the Board under the section. It appears that Mr Donnelly had been the Liquidator of Mrs Creswick's family company, Creswick Industries Limited, and she was desirous that the ASC apply to the Board for certain disciplinary action to be taken against him in relation to aspects of his conduct of the liquidation.

The Deputy President dismissed the application for review of the ASC's refusal. In the first place he held that the Tribunal had no jurisdiction to review the ASC's decision to refuse to make the application. Notwithstanding, he entered upon a full consideration of the facts of the matter as they had been placed before him and he found that even if the Tribunal had had jurisdiction he would have dismissed the application on the merits.

This appeal to this Court is brought under s 44 of the mT Act. It is confined to "a question of law". I emphasise that fact as it is clear that Mrs Creswick has acted under the misapprehension that it was to be a full appeal in which she could call further evidence and question witnesses. Indeed I have released from attendance certain witnesses who have attended in response to subpoenas issued by her.

In these circumstances I think it proper that I should refer briefly to what has…

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: [1993] FCA 272
Decision Date: 23 Mar 1993

CaseChat Overview and Summary

Phyllis Creswick, the applicant, sought to appeal a decision of the Administrative Appeals Tribunal (AAT) which had dismissed her application for review of a decision by the Australian Securities Commission (ASC). The ASC had refused to apply to the Companies Auditors and Liquidators Disciplinary Board (Board) for disciplinary action against Max Christopher Donnelly, who had been the liquidator of Creswick Industries Limited, a family company of the applicant. The AAT found that it had no jurisdiction to review the ASC's decision and dismissed the application on the merits. This appeal to the Federal Court was limited to a question of law.

The central legal issue was whether the AAT had jurisdiction to review the ASC's refusal to make the application to the Board. The Court examined the relevant statutory provisions to determine the scope of the AAT's jurisdiction. It concluded that the ASC's decision was not a decision "under the law" within the meaning of the relevant sections of the Corporations Law. Instead, the decision was authorized by the Australian Securities Commission Act 1989. Furthermore, review of decisions under this Act by the AAT was specifically excluded by its provisions. Consequently, the AAT lacked jurisdiction to review the ASC's decision.

Given the lack of jurisdiction, the appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the appeal.

Orders