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 been said in the authorities as to the nature of this appeal. AS to the statutory requirement that the appeal proceed only on a question of law a Full Court of this Court has said in Brown v Re~atriatioq

(1985) 60 ALR 289 at 291:

"The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of

the appeal is confined to it. "

Brennan J in Waterford v m Commonwealth (1987) 71

ALR 673 said, in relation to the same matter in a passage

which has been approved by Mason CJ in Austra-
Tribunal v U (1990) 170 CLR 321 at 356, at 689:-

"A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the AAT Act confers on a party to a proceeding before the AAT a right of appeal to the Federal Court of Australia 'from any decision of the Tribunal in that proceedingt but only 'on a question of law'. The error of law which an appellant must rely on to succeed must arise on

vitiate the findings made or it must have led the	the facts as the AAT has found them to be or it must
AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact."

It is clear from the notice of appeal filed in these proceedings that Mrs Creswick sought to raise many questions of fact only. Indeed, the question of jurisdiction found against her is not specifically mentioned. This question of

jurisdiction is, however, quite clearly a question of law. The question has been raised, however, by way of motion brought by the ASC for summary dismissal of the application. In the circumstances it is clearly desirable that I deal with this as a preliminary matter. I have explained the desirability and necessity for so doing to Mrs Creswick.

It is convenient to set out the section which Mrs Creswick sought to have enlivened in respect of Mr Donnelly. It is S 1292(2)(d) of the Corporations Law. It provides so far as relevant as follows:

"1292(2) The Board may, if it is satisfied on an application by the Commission for a person who is registered as a liquidator to be dealt with under this section that, before, at or after the commencement of this section:

(d) that the person has failed, whether within or outside Australia, to carry out or perform adequately and properly:

(i) the duties of a liquidator; or

(ii) any duties or functions required by an

Australian law to be carried out or

performed by a registered liquidator;

or is otherwise not a fit and proper person to

remain registered as a liquidator;

by order, cancel, or suspend for a specified period,

the registration of the person as a liquidator."

In the present case, the ASC refused to make the
application necessary to set the section in motion and put the
Board on the inquiry envisaged by it. It is that refusal

which is, of course, the subject of Mrs Creswick's application
and her appeal.

Could this refusal be reviewed by the Tribunal? The learned Deputy President has held that it could not. I, after a consideration of what has been put to me in considerable depth, have come to the view that I must agree with him. The Tribunal had no power to review the ASC's refusal.

The broad basis of the Tribunal's power of review is to be found in s 25 of the BAT Act.	This section, so far as
relevant, provides as follows:

"25(1) An enactment may provide that applications

may be made to the Tribunal:

(a)	for review of decisions made in the exercise of powers conferred by that enactment; or
(b)	for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect undez that enactment."

It is therefore necessary to consider other enactment6 which could provide jurisdiction in the present case. The Corporations Law itself deals with the question of review of decisions by the Tribunal in s 1317B(l)(b) which provides as follows, so far as relevant:-

"1317B(1) Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Law by:

(b) the Commission; ..."

The question is therefore whether the ASC's refusal was "a decision made under this law", that is the Corporations Law. It appears that the only provision of the Corporations Law which can qualify for consideration in this regard is s 1292(2)(d) which I have set out above. The learned Deputy President held that he could not found jurisdiction to review upon this provision as the reasoning in the decision of the Full Court of this Court in the case of Honakona Bank of Australia Limited h Anor v Australian Securities Commission h

(1992) 108 ALR 70 prevented him from doing so.

In this, I consider that he was plainly correct. The Full Court was considering in that case s 597(1) of the Corporations Law. They said of that section, at page 75, that it was "not expressed as a dispositive provision creating rights or liabilities or reposing powers or functions". I am satisfied that the same must be said of the provisions of

s 1292(2) insofar as they refer to the role of the ASC. The

subsection does no more than identify the ASC as the party to make the application contemplated in it. The decision to make the application is not authorised by the section. The decision is not a decision "under the law". The authorisation thus must be sought elsewhere. See also Mercantile Mutual, Life Insurance Companv Limited h Anor v Australian Securities commission h Ors (Full Federal Court, 26 February 1993, unreported).

The appropriate legislation authorising the decision in my view is the Australian Securities Commission Act 1989. This m, of course, establishes the ASC and provides for its powers, duties and functions in a number of sections to which it is not necessary that I make reference in these short reasons.

The relevant section for consideration is, in my opinion, s 11 which provides, so far as relevant, as follows:-

"ll(1) The commission has such functions and powers

as are conferred on it by or under the following.

(a) the Corporations Act 1989,

(b) the Corporations Law of the Capital Territory;

(c) this Act.

necessary for or in connection with, or reasonably	11(4) The Commission has power to do whatever is
incidental to, the performance of its functions."

As was pointed out by Black CJ in the Nercantu Mutual case, one looks to s ll(4) for the conferring of the

necessary power upon the ASC. I am satisfied therefore that the ASC in refusing to make the application at Mrs Creswick's request acted under this subsection.

Can the decision of refusal under that section be subject to review by the Tribunal? In this regard, it is necessary to consider any relevant provisions of the auatralian Securities Commission Act. Review of decisions

under that by the Tribunal is specifically dealt with
under s 244(2), which provides:

"244(2) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Commissioner:

(a) to make an order under section 72, 73 or

74;

(b)	to make an order under subsection 75(1) varying an order in force under Division 8 of Part 3; or
(c)	to refuse to vary or revoke an order in force under Division 8 of Part 3."

Manifestly, decisions taken under the authority of s 11 are not reviewable by the Tribunal pursuant to s 244(2). I am satisfied on argument that has been put to me that there is no relevant provision that can enliven s 25 of the f@T Act

and thereby provide the Tribunal with jurisdiction to consider the refusal decision, the subject matter of these proceedings. As I have said, I am of the view that the learned Deputy President was correct in holding that he had no jurisdiction

must necessarily fail. I therefore dismiss the appeal. by the present appellant. In these circumstances this appeal to hear and determine the application which had been brought The ASC seeks orders for costs. In the

circumstances, I really have no basis upon which I can do anything other than order that costs follow the event and I so order.

I certify that the preceding eight (8)

pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice M. L. Foster.

Associate: /\	11, ! J
Date :	23 MARCH 1993

A P P E A R A N C E S

THE APPLICANT APPEARED IN PERSON

COUNSEL FOR THE RESPONDENT:	MR G.T. JOHNSON
INSTRUCTED BY:	AUSTRALIAN SECURITIES COMMISSION
DATE OF HEARING:	23 MARCH 1993

DATE OF JUDGMENT:  23 MARCH 1993