Deloitte Touch Tohmatsu v Australian Securities Commission - [1994] FCA 780

DELOITTE TOUCHE TOHMATSU (formerly known as DELOITTE HASKINS and SELLS and
DELOITTE ROSS TOHMATSU) v. AUSTRALIAN SECURITIES COMMISSION
No. G286 of 1994
FED No. 780/94
Number of pages - 10
Administrative Law - Corporations
(1994) 54 FCR 284

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LINDGREN J

CATCHWORDS

Administrative Law - Administrative Decisions Judicial Review Legislation - s. 5 (1) (b) - "procedures that are required by law to be observed in connexion with the making of" decision impugned - necessity of connection - whether sections 16 and 18 of Australian Securities Commission Act 1989 (Cth) prescribe "procedures" in connection with "the making of" decision by Australian Securities Commission under s. 50 of the Act.

Corporations - Administration of Companies Legislation - decision of Australian Securities Commission under Australian Securities Commission Act 1989 (Cth), s. 50, that proceedings be begun and carried on by company against auditors - order of review of decision applied for by auditors under Administrative Decisions (Judicial Review) Act 1977 (Cth) - no interim report by Australian Securities Commission under s. 16 of former Act - whether requirements of ss. 16 and 18 relating to interim report constituted in relation to Commission's decision under s. 50 "procedures in connexion with" that decision for purposes of s. 5 (1) (b) of AD(JR) Act

Australian Securities Commission Act 1989 (Cth) ss. 13, 16, 17, 18, 50
Administrative Decisions (Judicial Review) Act 1977 (Cth) s. 5 (1) (b)

HEARING

SYDNEY, 12 October 1994
#DATE 21:10:1994

Mr R A Conti QC instructed by Messrs Mallesons Stephen Jaques, solicitors for the applicant.

Mr T R Gray QC with Mr R J Whitington of counsel instructed by Valdemar Malinaric, solicitor for Australian Securities Commission, for the respondent.

ORDER

THE COURT ORDERS THAT:

1. The applicant be granted leave to amend the application by filing a Further Further Re-Amended Application for an Order of Review in the form of annexure "A" to the Reasons for Judgment excluding paragraph 4 in part D and paragraph 3 in part E with any alterations consequential upon those exclusions.

2. The question of costs of the motion be reserved.

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

JUDGE1

NATURE OF PROCEEDINGS
LINDGREN J The applicant ("DTT") applies for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") in respect of a decision of the respondent ("the ASC") on 29 March 1994 that it was in the public interest to cause proceedings to be begun and carried on by The Adelaide Steamship Company Limited ("Adsteam") against, according to the application, Deloitte Haskins and Sells ("DHS") and Deloitte Ross Tohmatsu ("DRT") in the South Australian District Registry of the Court pursuant to s. 50 of the ASC Law. The ASC's decision referred to "the Auditor, Deloitte Ross Tohmatsu, formerly Deloitte Haskins and Sells". On 20 April 1994 proceedings were begun by Adsteam against, inter alia, DHS as…

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: [1994] FCA 780
Decision Date: 21 OCTOBER 1994

CaseChat Overview and Summary

The Federal Court was asked to review a decision made by the Australian Securities Commission (ASC) in a case brought by Deloitte Touch Tohmatsu. The ASC had issued a decision, and Deloitte sought to have that decision reviewed, arguing that certain procedures required by law were not followed. The central issue in this case was whether specific sections of the Australian Securities Commission Act 1989 prescribed the procedures that needed to be observed when making decisions under section 50 of the Act.

The court had to determine whether sections 16 and 18 of the Australian Securities Commission Act required certain procedures to be followed in connection with the making of decisions by the ASC. The focus was on whether these sections prescribed the necessary procedures as required by law, and if there was a sufficient connection between the prescribed procedures and the decision-making process. The court examined the statutory language and legislative intent to ascertain whether the ASC's decision-making process complied with the mandated procedures.

In its reasoning, the court found that the sections in question did not prescribe the procedures required by law in connection with the decision-making process under section 50 of the Act. Consequently, the ASC's decision was not reviewed on the basis of procedural non-compliance. The court granted the applicant leave to amend the application, specifying the form and content of the revised application, and reserved the question of costs for later determination.

The court's final orders included granting the applicant leave to amend the application by filing a Further Further Re-Amended Application, with specific exclusions and consequential alterations. The court also reserved the question of the costs associated with the motion, leaving it to be addressed at a later stage in the proceedings.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The applicant be granted leave to amend the application by filing a Further Further Re-Amended Application for an Order of Review in the form of annexure "A" to the Reasons for Judgment excluding paragraph 4 in part D and paragraph 3 in part E with any alterations consequential upon those exclusions.

2. The question of costs of the motion be reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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