Ferrinda v Australian Securities and Investments Commission
[2002] FMCA 182
•30 July 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FERRINDA & ANOR v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION | [2002] FMCA 182 |
ADMINISTRATIVE LAW – Application for review of decision by ASIC granting eligible status to Bendigo Bank Limited for the purpose of s.596A of the Corporations Act.
PRACTICE & PROCEDURE – Joinder of party – withdrawal of application – costs.
| Applicants: | NINA GIOVANNI FERRINDA and ROBERTO LAPEDOTA |
| Respondents: | AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION and BENDIGO BANK LIMITED |
| File No: | WZ130 of 2002 |
| Delivered on: | 30 July 2002 |
| Delivered at: | Melbourne (by audio link to Perth) |
| Hearing Date: | 30 July 2002 (by audio link to Perth) |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr Clifton |
| Solicitors for the Applicants: | Jackson McDonald |
| Counsel for the Respondent: | Mr Benter |
| Solicitors for Respondent: | Australian Securities and Investments Commission |
| Counsel for the Added Respondent: | Mr Macnish |
| Solicitors for Added Respondent: | Cocks Macnish |
ORDERS
The Bendigo Bank Limited be made a party to these proceedings.
The Applicants be granted leave to withdraw the application filed
11 June 2002.The Applicants shall pay the costs of both the existing respondent, Australian Securities & Investments Commission and the joined respondent Bendigo Bank Limited to be agreed and in default to be taxed pursuant to Order 62 of the Federal Court Rules in accordance with Schedule 1 of the Federal Magistrates Court Rules.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ130 of 2002
| NINA GIOVANNI FERRINDA and ROBERTO LAPEDOTA |
Applicants
And
| AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION and BENDIGO BANK LIMITED |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by NINA GIOVANNI FERRINDA and ROBERTO LAPEDOTA (the Applicants) against initially the AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION (the Respondent) by an application filed 11 June 2002 which seeks to review a decision of the respondent dated 13 September 2001 that Bendigo Bank Limited be granted status as an ‘eligible applicant’ for the purposes of section 596A of the Corporations Law in relation to LINCOLN CONSTRUCTIONS (WA) PTY LIMITED.
The applicants claim in their application to be aggrieved by the decision because “the decision has been the basis of a decision of the Supreme Court of Western Australia to order that an examination summons could be issued against each applicant by Bendigo Bank Limited (“the Bendigo Bank”) under section 596A of the Corporations Law”.
The grounds of the application include that the decision was based on an error of law and that the making of the decision constituted an improper exercise of the power conferred by the enactment pursuant to which it was purported to be made and the decision is otherwise contrary to law and details are set out in the application which I do not need to recite.
At the first hearing convened this day by audio link, Mr Clifton appeared for the applicants; Mr Benter appeared for the respondent; Mr Macnish appeared for the Bendigo Bank Limited.
The Bendigo Bank has made application to be joined as a party by application filed 21 June 2002. In that application, the Bendigo Bank further seeks an order that the applicants pay its costs of the application. In support of that application, the Bendigo Bank has relied upon the affidavit of Lee Simon Panotidis sworn 21 June 2002 together with certain annexures.
In further support of that application, detailed written submissions have been forwarded to this court for and on behalf of the party proposed to be joined to the application. The applicants in their original application had also relied upon a detailed affidavit by the first-named applicant, Roberto Lapedota sworn 11 June 2002.
At this first hearing, it was indicated for and on behalf of the applicants that as a result of a hearing by Master Sanderson this day, it was decided, appropriately, that the applicants did not wish to proceed with this application, and an order was sought that the applicants be granted leave to withdraw their application filed 11 June 2002. This prompted, understandably, an application by the respondent for the costs of the respondent to be paid by the applicants and I have already indicated that I am prepared to make orders granting leave to the applicants to withdraw the application and that the applicants pay the respondent’s costs.
The Bendigo Bank which sought to be joined has indicated, however, that if there is no strong opposition, as there has not been to it being joined, that it should have the benefit of an order that it should be joined to these proceedings and further the benefit of an order that having been joined prior to the applicants being granted leave to withdraw the application and that I should further make an order in relation to costs.
In my view the application by the Bendigo Bank has significant force in the sense that its application to be joined as a party on the material before me, and having heard what has been said for and on behalf of the applicants, would indicate that this is a proper application and it would be appropriate in all the circumstances for the court to make an order that the Bendigo Bank be joined as a party. That issue is not seriously challenged by the applicants. It seems to me that since
21 June 2002 or shortly thereafter, whilst it is true that there has not been any evidence placed before the court that the Bendigo Bank has sought consent by the applicants to the joinder of the Bendigo Bank to this proceeding at all material times it was open for applicants in circumstances of this kind to indicate consent and to therefore remove the necessity for the application to be further pursued in the manner that it has been pursued before this court. In any event at least at the stage where the application and supporting affidavit had been filed, the costs incurred in relation to that part of the proceeding are properly incurred and in the event that the applicants seek, as they have now sought to withdraw this application, then once an order is made allowing the joinder of Bendigo Bank to these proceedings, it likewise follows that upon withdrawal of the application, that costs should follow the event in relation to that joined respondent as they do in relation to the existing respondent.I am also satisfied that costs should include those costs up to and including this day in circumstances where again it is clear to me on the material that there has not been an attempt by the applicants to indicate consent and therefore obviate the need for the Bendigo Bank to be even represented this day, or to file and serve further material in support of its application which has in fact been prepared and filed.
Accordingly the orders of court are as follows:
(1)The Bendigo Bank Limited be made a party to these proceedings.
(2)The Applicants be granted leave to withdraw their application filed 11 June 2002.
(3)The Applicants shall pay the costs of both the existing respondent, Australian Securities & Investments Commission and the joined respondent the Bendigo Bank Ltd to be agreed and in default to be taxed pursuant to Order 62 of the Federal Court Rules in accordance with Schedule 1 of the Federal Magistrates Court Rules.
(4)Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 30 July 2002
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