Fiorentino and Members of the Companies Auditors and Liquidators Disciplinary Board

[2015] AATA 607

Fiorentino and Members of the Companies Auditors and Liquidators Disciplinary Board [2015] AATA 607 (19 August 2015)

Division	TAXATION & COMMERCIAL DIVISION
File Number(s)	2014/3231
Re	Pino Fiorentino
APPLICANT
And	Members of the Companies Auditors and Liquidators Disciplinary Board
RESPONDENT
And	Australian Securities and Investments Commission
OTHER PARTY

DECISION

Tribunal	Professor Robert Deutsch, Deputy President
Date	19 August 2015
Place	Sydney

The application is dismissed pursuant to section 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

...................[sgd].................................................

Professor Robert Deutsch, Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal – power to dismiss – application for review of decision to cancel registration as liquidator – applicant has become an undischarged bankrupt since application was commenced – no reasonable prospect of success – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 42B, 43

Bankruptcy Act 1966 (Cth) s 55

Corporations Act 2001 (Cth) ss 206B, 1292

CASES

Commonwealth of Australia v Ford (1986) 9 ALD 433

Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111

REASONS FOR DECISION

Professor Robert Deutsch, Deputy President

19 August 2015

1. The Applicant applied to this Tribunal for a review of a decision made by the Respondent dated 24 June 2014 to cancel the Applicant’s registration as a liquidator.

2. On 30 March 2015 the Applicant became an undischarged bankrupt pursuant to section 55 of the Bankruptcy Act 1966 (Cth).

3. Section 206B(3) of the Corporations Act 2001 provides as follows:

   A person is disqualified from managing corporations if the person is an undischarged bankrupt under the law of Australia, its external territories or another country.

4. Section 1292(7) of the Corporations Act 2001 provides as follows:

   The Board must, if it is satisfied on an application by ASIC or APRA for a prescribed person to be dealt with under this section:

   (a)that the person is disqualified from managing corporations under Part 2D.6; or

   (b)that person is incapable, because of infirmity, of managing his or her affairs;

   by order, cancel each prescribed registration of the person.

5. For the purposes of section 1292(7) the “Board” is the Companies Auditors and Liquidators Disciplinary Board and a “prescribed person means a person who is registered as an auditor, as a liquidator or as a liquidator of a specified body corporate.”

6. Thus, having regard to the above extracted statutory provisions, it is clear that the consequence of the Applicant being an undischarged bankrupt is that he is disqualified from managing corporations and the consequence of his being so disqualified is that the Respondent must cancel the Applicant’s registration as a liquidator.

7. The Tribunal’s review of a decision proceeds by way of a hearing de novo and the Tribunal is not confined to considering the material that was before the Respondent or to the events which occurred up to the date of the Respondent’s decision: Commonwealth of Australia v Ford (1986) 9 ALD 433; Searle Australia Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111.

8. A further provision of relevance in…