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.

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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 the context of this case is section 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) which essentially provides that the Tribunal is to stand in the shoes of the original decision maker such that “the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision”.

9. As a consequence of the above matters, it is clear that the Tribunal is required to determine whether the decision under review was the correct or preferable decision having regard to everything that has transpired up to the time of the hearing of the substantive matter.

10. Accordingly, if this matter were to proceed to a hearing, the Tribunal would be bound to consider and take into account the fact that the Applicant is now an undischarged bankrupt. In those circumstances the Tribunal would have no option but to affirm the decision under review, since the Respondent must cancel the registration of the Applicant as a liquidator having regard to his status as an undischarged bankrupt and the Tribunal stands in the place of the Respondent as the original decision maker.

11. The Tribunal may dismiss an application pursuant to section 42B(1) of the AAT Act which provides as follows:

    The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)is frivolous, vexatious, misconceived or lacking in substance; or

    (b)has no reasonable prospect of success; or

    (c)is otherwise an abuse of the process of the Tribunal.

12. On the basis of the preceding discussion, the Tribunal is satisfied that the application has no reasonable prospect of success. Indeed, it appears to me that the application in the circumstances has no prospect of success whatsoever.

13. As I have concluded that section 42B(1)(b) is satisfied, it is not necessary for me to consider whether the application is frivolous, vexatious, misconceived or lacking in substance for the purpose of section 42B(1)(a) of the AAT Act or is otherwise an abuse of process of the Tribunal under section 42B(1)(c).

    DECISION

14. The application is dismissed pursuant to section 42B(1)(b) of the AAT Act.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Professor Robert Deutsch, Deputy President

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Associate

Dated 19 August 2015

Date of hearing	10 July 2015
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor
Counsel for the Other Party	Mr P Russell