Cro Travel Pty Ltd and Decision-Maker
[2020] AATA 1888
•19 June 2020
Cro Travel Pty Ltd and Decision-Maker [2020] AATA 1888 (19 June 2020)
Division:GENERAL DIVISION
File Number: 2019/4849
Re:Cro Travel Pty Ltd
APPLICANT
AndDecision-Maker
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date of decision: 19 June 2020
Place:Melbourne
The Tribunal decides that it does not have jurisdiction in this matter.
…………[sgd]…………………….
Deputy President S A Forgie
Catchwords – PRACTICE AND PROCEDURE – jurisdiction – nature of power exercised by tribunal in undertaking a review is administrative and not judicial – jurisdiction founded on Parliament’s having expressly provided that an application may be made to the Tribunal to review a decision – no general investigative powers – tribunal has no jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975; s 25
Australian Securities and Investments Commission Act 2001; ss 13; 72; 73; 75; 244
Constitution of the Commonwealth of Australia; s 71
Corporations Act 2001 (Corporations Act); s 1317B; s 1317C
Mutual Assistance in Business Regulation Act 1992
National Consumer Credit Protection Act 2009
National Disability Insurance Agency Act 2013; s 100(1)
Superannuation (Resolution of Complaints) Act 1993
Taxation Administration Act 1953
Cases
Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited [2017] NSWDC 279
Cro Travel Pty Ltd v Australia Capital Financial Management Pty Ltd [2018] NSWCA 153
Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30
Prentis v Atlantic Coast Line Co (1908) 211 US 210
QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55
Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359
Rola Co (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185; [1944] ALR 293; (1944) 18 ALJR 110
Shell Co of Australia Ltd v Federal Commissioner of Taxation (1931) AC 275
The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361
The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682
VCA and Ors v Australian Prudential Regulation Authority [2008] AATA 580
REASONS FOR DECISION
Deputy President S A Forgie
On 7 August 2019 and in the name of Cro Travel Pty Ltd, Mr Lennon lodged an application in the Tribunal for review of a decision made on 16 October 2017 by the District Court of New South Wales (District Court) in Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited.[1] An appeal lodged by Cro Travel Pty Ltd against that decision was dismissed by the Court of Appeal (NSW) on 13 July 2018.[2] Clearly, the Tribunal does not have jurisdiction to review the decision made by the District Court and I made that clear to Mr Lennon. He continues to search for a solution to what he regards as an injustice and sought to find that solution in the Tribunal. I said that I would explain in writing why he cannot find it in the Tribunal.
[1] [2017] NSWDC 279; Judge D Russell
[2] Cro Travel Pty Ltd v Australia Capital Financial Management Pty Ltd [2018] NSWCA 153; Meagher JA, Ward JA and Barrett AJA
BACKGROUND
In this section of my reasons, I will set out the Court of Appeal’s summary of events as presented to the courts followed by Mr Lennon’s view. Beginning with the Court of Appeal, it set them out in a headnote preceding its judgment. Although not part of the judgment, it is consistent with it. The headnote reads:
“The respondent (ACFM) conducted a money-lending business. As security for its obligation to repay drawdowns under a loan agreement with the respondent, ASSH (a skin and hide exporter) agreed to deposit with the respondent ‘all original shipping documents’ which “relate[d] to” each drawdown.
In 2014, in the course of applying to the respondent for drawdowns, ASSH deposited with the respondent eleven bills of lading which referred to goods ASSH had shipped to purchasers in China (‘CRO bills’). In reliance on the CRO bills, the respondent advanced money to ASSH. When ASSH failed to repay the advances, the respondent sought to take possession of the goods referred to in the CRO bills. However, it found that the goods had already been delivered by the carrier at the destination in China.
The appellant (CRO), which was a freight forwarder, had issued the CRO bills. The CRO bills contained a statement that they were issued by the appellant ‘as agent for [various named carriers]’. The appellant did not in fact have the authority of any of the carriers named in the CRO bills to issue bills of lading.
At the same time, the appellant had provided to ASSH an original bill of lading, issued by the carrier, corresponding to each shipment of goods to which the CRO bills related.
The respondent obtained judgment against the appellant in the District Court of New South Wales, first, for damages for misleading or deceptive conduct contravening s 18(1) of the Australian Consumer Law; and, second, for damages for breach of warranty of authority (although there was to be only one recovery, given the overlap in the causes of action).
As to the finding of misleading or deceptive conduct, the appellant contended on appeal: first, that the primary judge had erred in finding that the bills were not ‘genuine’ (ground 4 of the grounds of appeal); second, that there was no misleading or deceptive conduct because the bills of lading took effect in accordance with their tenor; they did not purport to be ocean bills; and they conferred on the lawful holder a right of suit against the appellant (and that there was no conduct that represented otherwise) (ground 5 of the grounds of appeal); and, third, in the alternative, that no loss or damage was suffered by reason of any misleading or deceptive conduct (ground 5A of the grounds of appeal).
As to the judgment for breach of warranty of authority, it was held by the primary judge that, although the CRO bills were not bearer bills and were never endorsed, the respondent would have had a right to demand the delivery of the goods if the bills had been issued with authority. The appellant contended on appeal (ground 6 of the grounds of appeal) that the respondent’s failure to obtain endorsement meant that it never became the lawful holder of the bills and would never have obtained delivery of the goods, with the result that the appellant’s conduct did not cause the respondent any loss. The respondent, in its notice of contention, gave further reasons for upholding the primary judge’s conclusion on this issue.
Held (Meagher JA, Ward JA and Barrett AJA), dismissing the appeal:
1. The primary judge’s description of the CRO bills as not genuine should be understood by reference to the conclusion that the CRO bills were not issued with authority. There was no disconformity with the finding that the CRO bills were negotiable instruments. Ground 4 of the grounds of appeal was dismissed: at [96], [98] (Ward JA); [1] (Meagher JA); [268] (Barrett AJA).
2. There was no error in the primary judge’s conclusion that the issue by CRO of the CRO bills, expressly as agent for the named carriers, whilst at the same time circulating bills of lading authorised by the carrier, was misleading or deceptive conduct on the part of the appellant. Ground 5 of the grounds of appeal was dismissed: at [140] (Ward JA); [1] (Meagher JA); [268] (Barrett AJA).
3. The primary judge was correct to conclude that the appellant’s misleading or deceptive conduct caused the respondent’s loss. The respondent relied on the bills as providing a right to obtain possession of the goods and would not otherwise have lent the moneys. Ground 5A of the grounds of appeal failed: at [151] (Ward JA); [1] (Meagher JA); [268] (Barrett AJA).
4. There was no error by the primary judge in the conceptual approach to the assessment of damages for breach of warranty of authority (assuming the CRO bills had been endorsed) and, to that extent, ground 6 of the grounds of appeal is not made good: at [172]-[173] (Ward JA); [1] (Meagher JA); [268] (Barrett AJA).
5. If the CRO bills had been issued with authority, the respondent would have had a sufficient interest in the goods to sue the carrier, as a possessory pledgee and this is sufficient to support the primary judge’s award of damages in relation to the breach of warranty of authority claim: ground 3 of the respondent’s notice of contention accepted: at [235] (Ward JA); [1] (Meagher JA); [268] (Barrett AJA).”
Mr Lennon’s allegations are detailed but I have attempted to summarise the main points that he has made:
(1)Freight Solutions (Vic) Pty Limited (Freight Solutions), which was established in 2000, has a sound knowledge of the shipping industry and offered an advanced logistics service to those in the skin and hide industry;
(2)Mr Ding Long is a Chinese skin trader, who ran a company trading skins between Australia and China;
(3)Mr David Lee and his wife, Ms Jennifer Zhong, took over the company and re-registered it as Australian Sheep Skin & Hides (ASSH) in May 2014;
(4)Ms Yang and her husband, Mr Bai, were experienced in the skin industry. Ms Yang became a director of ASSH. They invested funds in what they thought was a lucrative business. They obtained business visas enabling them to live in Australia. Mr Bai looked after the operational side of ASSH’s business by trading skins between Australia and China. Mr Lee and Ms Zhong looked after the financial side.
(5)Mr Lee approached clients of Freight Solutions, Mr Frank Zhang and Ms Carol Huang, for House Bills to be issued for some of their consignments. At the request of its clients, Freight Solutions issued House bills for what it believed were to be used to obtain customs clearance in China in respect of consignments that Freight Solutions were led to believe had been on-sold to Mr Lee. Mr Lennon stated that this was the proper purpose of a House Bill. A financier, he said, would not lend against an unendorsed export Bill of lading. Shippers did not recognise Freight Solutions’ House bills. That meant that they could not be marked off at destination, Mr Lennon said.
(6)Using unendorsed Freight Solutions House Bills, which Mr Lennon alleged were obtained under false pretences, Mr Lee and Ms Zhong falsified Commercial Invoices and Packing Lists using high fictitious prices for consignments that neither belonged to them nor related to ASSH. They did so in order to borrow $1.19m across seven drawdowns from Australia Capital Financial Management. Ms Yang, Mr Lennon said, was in China at the time that the first three of the drawdowns was arranged. Mr Lennon asserted that, but for the friendship between Mr Lee and Ms Zhong, on the one hand, and the sole director of ACFM, Mr Ou Yang Chen, a loan of this nature would not have been possible.
(7)Regardless of what was on the documents, Mr Lennon said, Mr Ou Yang Chen would transfer money to ASSH where Mr Lee and Ms Zhong were in control of the money. They would then transfer the money from ASSH to another company, Winpac Australia, controlled by Mr Lee, or withdraw it in cash.
(8)Mr Bai’s family questioned Mr Ou Yang Chen about the drawdowns but he told them it was not his problem.
(9)When liquidators were appointed to ASSH, no financial records were to be found.
(10)As a separate issue, Mr Lennon alleged that, without the knowledge of Ms Yang and Mr Bai, Mr Lee and Ms Zhong falsified ASSH documents in order to borrow money that was equivalent to the amount that Ms Yang and Mr Bai had invested in Australia. The loan was to be obtained but the intent was that ASSH would default on the payments. When it defaulted, as it did, Mr Ou Yang Chen would seize the properties, in which they had invested in Australia.
(11)After ASSH went into liquidation, Mr Bai and Ms Yang lost their Australian business visa and returned to China.
(12)ACFM brought proceedings against Ms Yang and Mr Bai to recover the amount of the loan and obtained a default judgment. They would not transfer their properties in Spencer Street, Melbourne, to ACFM.
(13)ACFM then instituted proceedings against Freight Solutions claiming $1,446,253 on a debt of $742,800. The basis of the claim was misleading and deceptive conduct and breach of warranty of authority based on Freight Solutions’ issuing an unendorsed Bill of lading. ACFM claimed that it held the Bill of lading as security for a loan of $2m.
(14)Mr Lennon said that he had a written agreement with Mr Lee that he, Mr Lee, would pay his legal costs. That did not come to pass.
(15)Mr Lennon sought advice from various law firms and feels very let down by them. He felt that the whole of his story was not put to the District Court and he could not lead new evidence to the Court of Appeal. In particular, he could not lead evidence of the Loan Agreement, to which he had not been a party.
(16)Mr Lennon feels that he has been a victim of fraud perpetrated by Mr Lee and Ms Zhong as well as Mr Ou Yang Chen and exacerbated by poor legal representation. A Bill of lading it today’s times should be no more than a receipt for shipment and certainly not security for a loan.
CONSIDERATION
Courts and the exercise of judicial power
In the Commonwealth,[3] a court exercises judicial power and a tribunal such as this Tribunal does not. What is meant by “judicial power” and why does a court exercise judicial power alone and not the Tribunal? The answer lies in The Constitution of the Commonwealth of Australia (Constitution). I will begin with the courts and judicial power and give a brief outline.[4]
[3] A tribunal established by the Parliament of an Australian State may be vested with judicial power as well as administrative power because their Constitutions do not separate legislative, executive and judicial powers as does the Commonwealth Constitution: see, for example, Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30 at [30] and [135] and citations therein; Tate, Niall and Emerton JJA.
[4] Senior Member Fice and I gave a more comprehensive explanation of judicial power and the Tribunal’s exercise of executive power in Re VCA and Ors and Australian Prudential Regulation Authority [2008] AATA 580; (2008) 105 ALD 236 at [290]-[308]; 321-328.
Section 71 provides:
“Judicial power and Courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.”
Justice of the High Court and of other courts created by the Commonwealth Parliament are appointed under s 72. Both ss 71 and 72 are found in Chapter III of the Constitution.
The expression “judicial power” used in s 71 was explained by Latham CJ, with whom McTiernan J concurred, in Rola Co (Australia) Pty Ltd v Commonwealth[5] (Rola):
“ The limits of the legislative, the executive and the judicial powers of the Commonwealth are nowhere defined. A strict division is, as I have said before, impossible, and we find more and more, as a matter of practical government, a mingling of functions … ‘The authorities … show,’ said the Judicial Committee in Shell Co of Australia Ltd v Federal Commissioner of Taxation …[[6]], ‘that there are tribunals with many of the trappings of a court which, nevertheless, are not courts in the strict sense of exercising judicial power.’ Some negative propositions were enumerated. Affirmatively, however, it may be said that the character of the act depends upon substance and not upon form. ‘The words ‘judicial power’ as used in s. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. … ‘A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end’ (Prentis v Atlantic Coast Line Co …[[7]] per Holmes J). …”[8]
[5] [1944] HCA 17; (1944) 69 CLR 185; [1944] ALR 293; (1944) 18 ALJR 110; Latham CJ, Rich, Starke, McTiernan and Williams JJ
[6] (1931) AC 275 at 296-297
[7] (1908) 211 US 210 at 226; 53 Law Ed 150 at 158
[8] [1944] HCA 17; (1944) 69 CLR 185; [1944] ALR 293; (1944) 18 ALJR 110 at 210-211; 318-319; 135-136
Kitto J explained the way in which court exercises its judicial power in The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd:[9]
“… Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of the law to facts has shown to exist. …”.[10]
[9] (1970) 123 CLR 361
[10] (1970) 123 CLR 361 at 374
Tribunals and the exercise of executive power
Using the powers given to it by Chapter I of the Constitution, the Parliament of the Commonwealth has created bodies other than courts. Those bodies, including the Tribunal, which it created under the Administrative Appeals Tribunal Act 1975 (AAT Act), exercise executive power under Chapter II of the Constitution. They do not exercise judicial power. Despite that, as Latham CJ explained in Rola:
… administrative authorities have been created for the purpose of ascertaining facts, supplementing the courts, and entrusted with power to make at least initial determinations in matters within, and not outside, ordinary judicial power. … [I]t is a matter for the consideration of the legislative body how and to what extent facts should be submitted to the administrative tribunals in aid of or to supplement judicial power. …”[11]
[11] [1944] HCA 17; (1944) 69 CLR 185; [1944] ALR 293; (1944) 18 ALJR 110 at 211; 319; 136
In Retail Employees Superannuation Pty Ltd v Crocker,[12] Allsop J, as he then was, explained in the context of the Superannuation Complaints Tribunal created by the Superannuation (Resolution of Complaints) Act 1993, that “… the Tribunal’s task was confined to the role given to it by the Act. …”.[13] The same is true of the Tribunal. Its task is that which has been given to it in the AAT Act. It is a task to review decisions made in the exercise of powers conferred by certain enactments. Section 25(1) states that those certain enactments are those that provide:
“… that applications may be made to the Tribunal:
(a)for the 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 under that enactment.”[14]
[12] [2001] FCA 1330; (2001) 48 ATR 359
[13] Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330; (2001) 48 ATR 359 at [16]; 363
[14] AAT Act; s 25(1). Section 25(2) provides that regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
The framework of powers and discretions, in which the Tribunal reviews a decision that is the subject of an application, is set out in the AAT Act. It may, however, be varied in respect of the review of a particular decision or decisions by the terms of the legislation providing that the application might be made.[15] What cannot be varied is the foundation on which the Tribunal exercises power at all. That foundation is found in ss 25(1) and 25(2) i.e. that it may review a decision made in the exercise of powers conferred by an enactment (or by an enactment having effect under that enactment) if, and only if, that enactment provides that an application may be made to the Tribunal for its review.[16]
[15] See AAT Act; s 25(6) and, as an example, see my consideration of it in the context of the modification of the stay power by s 14ZZB(1)(a) of the Taxation Administration Act 1953 in The Trustee for the Confidential Trust and Commissioner of Taxation [2013] AATA 682
[16] The role of ss 25(1) and (2) as foundation provisions was, before its repeal by the Tribunals Amalgamation Act 2015(s 3 and Schedule 1, Item 40, underlined by s 25(4) of the AAT Act. Section 25(4) stated: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
There are a number of ways in which Parliament specifies those decisions in respect of which an application may be made to the Tribunal. In some Acts, for example, Parliament may provide that primary decisions are reviewable by the Tribunal and, in others, that the primary decision must first be reviewed within an agency before an application may be made to the Tribunal. Some Acts identify the primary decisions in a single section by reference to the other sections under which they have been made.[17] Others identify them by exclusion. Section 1317B of the Corporations Act 2001 (Corporations Act), for example, provides that:
[17] See, for example, the National Disability Insurance Agency Act 2013; s 100(1)
“Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:
(a)the Minister; or
(b)ASIC; or
(c)the Companies Auditors Disciplinary Board; or
(d)a committee convened under Part 2 of Schedule 2.”
Section 1317C specifies those decisions made under the Corporations Act that are excluded from s 1317B.
Although they have different powers, the path leading to the exercise of those powers will have many similarities. Both a court and a tribunal reviewing will have to identify the relevant law be it statutory or common law. Having done that, a court will determine it and, as an executive body without judicial power, a tribunal will ascertain it. Both will then look at the issues that must be decided along the path to the resolution of the dispute in a court or the review of a decision in a tribunal. Having done that, each will then analyse the evidence in order to decide the facts of which it is satisfied regarding each of those issues. The task is the same but, for a court, it is a necessary task on the path to exercising its judicial power. For a tribunal, it is an equally necessary task on the path to the exercise of its executive power. Those issues may require a tribunal to come to conclusions or reach decisions about legal rights but they do not involve an exercise of judicial power.[18]
[18] QSuper Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 at [93]; Moshinsky, Bromwich and Derrington JJ
When a court has found the relevant acts, it looks to the law for the consequences and comes to its judgment. That is to say, it exercises judicial power and determines the parties rights and liabilities as the District Court did in coming to its judgment in Australia Capital Financial Management Pty Limited v Freight Solutions (Vic) Pty Limited. When a tribunal such as the Administrative Appeals Tribunal has found the relevant facts, it looks to the law for the outcome. That outcome may be its decision at that stage or, if the decision is a discretionary decision, it must go through a similar process to determine the way in which it will exercise its discretion. That then becomes its decision. That is an exercise of executive power and the outcome is the creation (and not the determination) of rights or liabilities.
Returning to ss 25(1) of the AAT Act, its practical effect is that the Tribunal can never be a general body of review of any administrative decision that may be made by a Commonwealth Department or agency.[19] It is not a body that may instigate its own enquiries into matters regardless of the concerns those matters may raise and regardless of whether Parliament has provided that applications may be made for review of decisions it has identified. Its jurisdiction is limited to the review of those decisions in respect of which Parliament has stated that an application may be made to it.
[19] The same is true of s 25(2) in relation to decisions made in the exercise of powers conferred by a Norfolk Island enactment.
Furthermore, Parliament has not given the Tribunal power to review disputes between persons, be they individuals or corporate bodies. Indeed, it could not do so for, apart from the fact that they do not involve the review of decisions made under an enactment, the resolution of such disputes involves the exercise of judicial power. For the reasons I have given above, the Tribunal may not exercise judicial power.
THE OUTCOMES SOUGHT BY CRO TRAVEL PTY LTD
Mr Lennon alleged fraud perpetrated on Freight Solutions by Mr Lee and others. He alleges that they have colluded and have committed offences under s 83A of the Crimes Act 1958. As directors, Mr Lee and Mr Ou Yang Chen have been in breach of their duties as directors under the Corporations Act. There have also been breaches of Chapter 3 of the National Consumer Credit Protection Act 2009. There have, however, been no decisions made under those Acts that the Tribunal is able to review.
Mr Lennon approached the Australian Securities and Investments Commission (ASIC) regarding the issues he has raised in the Tribunal. ASIC replied to him on 13 April 2018 explaining that:
“ASIC has broad oversight over the way directors of corporations behave, and their obligations to the company and its members. We are also responsible for ensuring that credit services are licensed and that they provide enough information to consumers to allow them to make informed decisions about the risks and benefits using credit or taking out loans; however our credit role differs for commercial lending.
As a regulator, we consider the public benefit and we do not act on behalf of individuals to resolve their private disputes and we cannot give personal legal advice.”
ASIC determined that, on their own, Mr Lennon’s concerns and its subsequent enquiries were not enough to prove misconduct and decided not to take any further action. At the same time, ASIC said that it appreciated the negative impact that the conduct had had upon Mr Lennon and that the District Court’s judgment had wider implications for his industry. It went on to set out its reasons for reaching that conclusion. Finally, ASIC gave Mr Lennon the contact details for the NSW Office of the Legal Services Commissioner regarding his concerns regarding his legal representation in the court.
ASIC’s assessment of Mr Lennon’s complaints was simply that. It was a decision not to undertake further investigations in order to decide whether it would exercise powers, and make a decision, under the Corporations Act. It was not a decision “made under” the Corporations Act as required by s 1317B(1). Therefore, Mr Lennon was not entitled to lodge an application and there is no decision that the Tribunal may review under that legislation.
ASIC has investigative powers under s 13 of the Australian Securities and Investments Commission Act 2001 (ASIC Act). It may, for example, make such investigation as it thinks expedient for the due administration of the corporations legislation where it has reason to believe there has been a contravention or the contravention of a law of the Commonwealth, State or Territory in each State, the Australian Capital Territory or the Northern Territory concerning, among other matters, the management or affairs of a body corporate or involves fraud or dishonesty or relates to a body corporate or managed investment scheme or to financial products.[20] It has not embarked on any investigation in relation to matters raised by Mr Lennon.
[20] ASIC Act; s 13(1). These powers are in addition to specific powers such as ss 912C and 912E of the Corporations Act requiring a person who is licensed to carry on a financial services business to give information about the business or the information or evidence gathering powers it has in certain circumstances under the Mutual Assistance in Business Regulation Act 1992 to assist foreign regulators.
Even if I were to characterise ASIC’s not embarking on any investigation as a decision, it is not a decision in respect of which Mr Lennon may make an application to the Tribunal. The only applications that may be made to the Tribunal for review of a decision are set out in s 244(2). They are decisions made by ASIC to make an order under ss 72 or 73 or to make an order under s 75(1) varying an order in force under Division 8 of Part 3 of the ASIC Act. Sections 72 and 73 give ASIC power to make orders in relation to matters such as the disposal or acquisition of the securities of a body corporate or of its financial products or trust property. ASIC may exercise its power where, in its opinion, information about those matters needs to be found out for the purpose of the exercise of its powers but cannot be found out because a person has failed to comply with a requirement made under Part 3 when exercising its investigative powers.[21] ASIC has not made an order under ss 72, 73 or 75 of the ASIC Act. Therefore, no application may be made to the Tribunal on that basis and it has no power to review any aspect of the events set out by Mr Lennon.
[21] ASIC Act; s 71
I know that this outcome is not what Mr Lennon is looking for. He feels very let down by the legal system and, more so, by his legal representatives. It is not for this Tribunal to question the proceedings in the District Court or the Court of Appeal or the judgments they have delivered and I do not intend to do so. I have, however, explained the way the courts go about their task. Their hands are tied by the evidence and cases put to them by the parties before them. Sometimes that means that they cannot deliver what a party seeks. I fear that this is such a case. In one of his submissions to the Tribunal, Mr Lennon said that his one-time legal representatives were more interested in negotiating a settlement “… rather than exposing this matter for what it was and holding them accountable.” The determination of rights and liabilities in a court does not necessarily lend itself to that wider outcome just as the creation of rights and liabilities in the Tribunal does not necessarily do so. This would seem to be such a case and I cannot assist him.
DECISION
I have decided that the Tribunal does not have jurisdiction to review any decision or issue arising out of the matters raised by Mr Lennon.
| I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie |
....................[sgd]...................................................
Associate
Date of decision: 19 June 2020
Heard: Applicant’s Advocate: | 30 August 2019 Self-represented |
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