Ehrenfeld and Australian Securities and Investments Commission

The Administrative Appeals Tribunal (AAT) considered an application by Mr Ehrenfeld to dismiss proceedings brought by the Australian Securities and Investments Commission (ASIC). The dispute involved Mr Ehrenfeld's alleged repeated non-compliance with the Tribunal's directions and his attempt to re-litigate matters previously decided by the Supreme Court of New South Wales.

The primary legal issue before the Tribunal was whether it was bound by section 91 of the *Evidence Act 1995* (Cth), which generally excludes evidence of judgments or findings of fact from other proceedings when used to prove a fact in issue. The Tribunal also had to consider whether Mr Ehrenfeld's conduct amounted to a propensity for needless delay and prolongation of the final determination of the matter.

The Tribunal determined that section 91 of the *Evidence Act 1995* (Cth) did not apply to its proceedings. This was because the AAT is not a federal court as defined by the Act and, crucially, section 33(1)(c) of the *Administrative Appeals Tribunal Act 1975* expressly states that the Tribunal is not bound by the rules of evidence. The Tribunal affirmed that it could, however, use findings from other courts or tribunals as the basis for its own findings, giving them such weight as it considered appropriate. The Tribunal also noted that many of the issues Mr Ehrenfeld sought to re-litigate were questions of law, not fact, and that re-litigating them would be a waste of time.

The Tribunal dismissed Mr Ehrenfeld's application.