Gordon v Australian Securities and Investments Commission
[2002] FCA 1155
•17 SEPTEMBER 2002
FEDERAL COURT OF AUSTRALIA
Gordon v Australian Securities & Investments Commission
[2002] FCA 1155ROGER CHARLES GORDON & COLIN DOUGLAS TURNER v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
S.3010 of 2002
MANSFIELD J
17 SEPTEMBER 2002
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S.3010 OF 2002
BETWEEN:
ROGER CHARLES GORDON
FIRST APPLICANTCOLIN DOUGLAS TURNER
SECOND APPLICANTAND:
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
RESPONDENT
JUDGE:
MANSFIELD J
DATE:
17 SEPTEMBER 2002
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The applicants seek to review a decision of the respondent Australian Securities & Investments Commission (ASIC) which it is claimed to have made on 5 August 2002 that a nominated delegate (the delegate) would convene separate hearings under s 837 of the Corporations Act 2001 (Cth) (the Act) on designated dates to determine whether banning orders should be made with respect to each of the applicants. It is alleged that the delegate engaged in conduct which gives rise to a reasonable apprehension of bias that she will not be able to fairly preside over the proposed hearings so as to enliven the ground of review available under s 5(1)(a) and s 6(1)(a) of the ADJR Act.
BACKGROUND
The delegate is a delegate of ASIC for the purpose of making decisions under the Act and for the purpose of conducting hearings under s 51 of the Australian Securities & Investments Commission Act 2001 (Cth) (the ASIC Act).
On about 27 May 2001, the delegate was allocated a brief dated 13 May 2002 to consider whether a banning order pursuant to s 830 of the Act should be made against the second applicant. The delegate, having considered the brief, on 6 June 2002 issued a notice of hearing to the second applicant under s 837 of the Act. Section 837 relevantly provides:
“(1) The ASIC must not:
(a)…
…
(e)make, otherwise than by virtue of paragraph 828(a) or (d) or 829(a), (b) or (c) an order under section 830 against a person;
… unless ASIC complies with subsection (2) of this section.
(2)ASIC must give the applicant, licensee or person, as the case may be, an opportunity:
(a)to appear at a hearing before ASIC that takes place in private; and
(b)to make submissions and give evidence to ASIC in relation to the matter.”
The delegate’s letter to the second applicant dated 6 June 2002 identified the matter of the proposed hearing as follows:
“The Australian Securities and Investments Commission (ASIC) is concerned that:
·you may have contravened a securities law (para. 829(d) of the Corporations Act (‘the Act’);
·it may have reason to believe that you will not, perform efficiently honestly and fairly the duties of a representative of a dealer or an investment adviser (para. 829(g) of the Act).
I am a delegate of ASIC and have been appointed to decide what, if any, action should be taken against you arising out of those concerns.
The purpose of this notice is to inform you of ASIC’s concerns and to offer you the opportunity of a hearing under section 837 of the Act before I make my decision.”
It then explained that s 837 required ASIC to give the second applicant an opportunity to be heard before deciding whether to make a banning order under s 830 of the Act, and the nature of a banning order. By attachments, it identified the concerns which ASIC had about the second applicant’s conduct, and the information upon which those concerns were based. It briefly described the hearing procedures. It nominated a time and place for the hearing, although those arrangements have been put in abeyance pending resolution of the present application. It provided the second applicant with the opportunity to make submissions and to give evidence to ASIC, in addition to providing the opportunity to appear at the proposed hearing.
The attachment separately identified the conduct upon which ASIC was concerned that the second applicant may have contravened s 829(d) of the Act. There were two issues. The first was that, between about April 2001 and January 2002 the second applicant may have contravened s 726 of the Act by offering, or by being knowingly concerned in the offering of, securities of a managed investment scheme that would need to be registered and had not been registered, and that the offer would need disclosure to investors under Part 6D.2 if the scheme had been registered. Detailed particulars of that first matter of concern were provided, relating to a scheme called the “BFS Franchise Recovery Package” which ASIC described as a managed investment scheme. The second matter of concern was that, between about April 2001 and January 2002 the second applicant may have contravened s 995(2) of the Act by engaging in conduct which was misleading or deceptive or was likely to mislead or deceive. Again detailed particulars of that concern were provided. It is not necessary to set out those particulars in detail.
There were six topics of conduct of the second applicant which ASIC identified as being conduct upon which it may have reason to believe that the second applicant will not perform efficiently honestly and fairly the duties of a representative of a dealer or an investment adviser contrary to s 829(g) of the Act. Firstly, it was said that the second applicant may have accepted money from investors to participate in the BFS Franchise Recovery Package prior to the structure of the managed investment scheme being finalised. Secondly, it was said that the second applicant appeared to have treated money paid by investors to participate in the BFS Franchise Recovery Package as his own. Thirdly, it was said that the second applicant may have failed to make any or adequate inquiries about the BFS Franchise or the product comprising the franchise. Fourthly, it notified its concern that the second applicant’s personal goals “in the matter of the recovery package appear to have interfered with” his objectivity and influenced his personal recommendations and behaviour in relation to the investment. Fifthly, it was raised that the second applicant’s expressed intentions in acquiring a financial services business may give rise to concerns about the honesty, efficiency and fairness of his proposed conduct in relation to the conduct of a financial services business. Finally, it was raised that the second applicant may have promoted the BFS Franchise Recovery Package and solicited funds for that managed investment scheme when he did not understand the nature of the scheme or before the true structure of the managed investment scheme had been finalised. Particulars of each of those allegations were provided. The final issue under that heading was expressed in the following terms:
“By reason of the matters referred to in Grounds 1 to 8 above, it would appear that you do not understand the obligations of a representative of a dealer or of an investment adviser, and/or are not able to properly discharge the duties of a representative of a dealer or of an investment adviser, and/or cannot be relied on to properly discharge those duties.”
On about 2 June 2002, again in her capacity as a hearings delegate, the delegate was allocated a brief also dated 13 May 2002 to consider whether a banning order under s 830 of the Act should be made against the first applicant. Having considered that brief, the delegate on 24 June 2002 issued a notice of hearing to the first applicant under s 837 of the Act. It was in terms similar to that given to the second applicant. In addition to the two particular concerns identified to the second applicant, a third concern was identified, namely that ASIC was concerned that it may have reason to believe that the first applicant had not performed efficiently honestly and fairly the duties of a representative of a dealer contrary to s 829(f) of the Act. However, the breadth of the matters of concern was more widely expressed. It was as follows:
“As a delegate of ASIC, I am concerned that as a result of your conduct:
(1)between about mid April 1997 and 30 June 1998 whilst you were a proper authority holder of Greater Western Financial Services Co Pty Ltd (“Greater Western”), in relation to an investment stated to be a joint venture between the investor and Infomercial Management Group Pty Ltd (“IMG”) and described in an explanatory memorandum relating to the investment as an “Infomercial/Product Distribution Investment” (“Infomercial”);
(2)in the financial year ending June 1999 whilst you were a proper authority holder of Greater Western, in relation to an investment stated to be a joint venture between the investor and IP Product Management Group Pty Ltd (“IPPMG”) and described in an explanatory memorandum relating to the investment as a “Theme Based Music Collaborations Product Distribution Investment” (“Music”); and
(3)between about September 2001 and January 2002 in relation to an investment described as the BFS Franchise Recovery Package:
· you may have contravened a securities law;
·ASIC may have reason to believe that you have not performed efficiently, honestly and fairly, duties of a representative of a dealer; and
·ASIC may have reason to believe that you will not perform efficiently, honestly and fairly, the duties of a representative of a dealer or of an investment adviser.”
Separately then the attachment provided details of each issue of concern and particulars of the material upon which each issue of concern was based.
Then, on 24 June 2002, again in her capacity as a hearings delegate, the delegate was allocated a brief dated 29 May 2002 to consider whether the licence of Greater Western Financial Services Co Pty Ltd (GWFS) should be revoked or suspended under s 826 or 827 of the Act. Section 837(1) of the Act also directed ASIC not to make any such order without having complied with s 837(2) of the Act. The delegate on 3 July 2002, having considered the brief, issued a notice of hearing to GWFS pursuant to s 837 of the Act. The areas of concern which were the subject of that notice were identified in the following terms:
“As a delegate of the Australian Securities and Investments Commission (“ASIC”), I am concerned in relation to Greater Western Financial Services Co Pty Ltd (“Greater Western”), the holder of a dealers licence, that:
·between about mid April 1997 and 30 June 1999 in connection with an investment stated to be a joint venture between the investor and the Project Manager and described in an explanatory memorandum relating to the investment as an “Infomercial/Product Distribution Investment” (“Infomercial”) or a “Theme Based Music Collaborations Product Distribution Investment” (“Music”), Greater Western may have contravened a securities law;
·ASIC may have reason to believe that Greater Western has not performed efficiently, honestly and fairly the duties of a holder of a dealers licence;
·ASIC may have reason to believe that Greater Western will not perform efficiently, honestly and fairly the duties of a holder of a dealers licence:
·an order has been made under section 830 against Mr Kim Sing Koo, (“Mr Koo”) then a director of Greater Western; and
·the educational qualifications and experience of Greater Western’s directors Colin Douglas Turner (“Mr Turner”) and Roger Charles Gordon (“Mr Gordon”), who were not directors when Greater Western’s licence was granted, are inadequate having regard to the duties that they will perform in connection with the holding of the licence.”
The applicants were each appointed directors of GWFS on 8 April 2002 and are its only directors and shareholders.
The applicants had previously been examined and provided assistance to ASIC in connection with an investigation under s 19(2) of the ASIC Act in March 2002. The notices given under s 19 of the ASIC Act to each of the applicants indicated that the examinations then conducted were in relation to an investigation into a suspected contravention by Waldorf Fiducial Marketing Pty Ltd (Waldorf), and each of the applicants, of ss 995, 999 and 1000 of the Act in the period from 1 April 2001 to 4 March 2002. Subsequent to those examinations, solicitors for the applicants conferred with ASIC about its concerns, with a view in part to determine whether those concerns might be resolved without formal action on ASIC’s part. It is not necessary to set out in detail the course of the discussions. They did not result in resolution of ASIC’s concerns by any consensual action.
Following (but not necessarily as a result of) representations made by solicitors for the applicants in July 2002, the chief delegate of ASIC in South Australia was assigned to conduct the hearing of which notice had been given to GWFS.
I accept that the delegate accurately described her state of mind as follows:
“I was of the view that the material before me might warrant the making of a banning order if, after a hearing, the cogency of that material was undiminished and it appeared to be in the public interest to make such an order. It was for this reason that I issued the Notices of Hearing. I have not reached any decision as to whether or not a banning order should be against Mr Turner or Mr Gordon and will not do so until after I have considered the evidence given and submissions made on behalf of Mr Turner and Mr Gordon at the respective hearing.”
Counsel for the applicants accepted that evidence, and did not contend that in fact the delegate would approach the hearings with other than an open mind.
THE CONTENTION
In the application, the conduct which is said to give rise to a reasonable apprehension of bias in the delegate in relation to the proposed hearings under s 837 in respect of each of the applicants is as follows:
“(1)Ms Maroney’s conduct in causing a Section 837 Notice to be issued against Greater Western Financial Services Co Pty Ltd (a company for which the applicants are the sole directors and shareholders), after Section 837 Notices had been issued against the applicants, but before the applicants’ cases had been heard; and
(2)Ms Maroney’s decision to issue a Section 837 Notice against the first applicant, in part related to the first applicant’s alleged degree of involvement in investment schemes known as the infomercial and music schemes (‘the schemes’), without directly questioning or otherwise making enquiries with the first applicant about the first applicant’s involvement in the schemes.”
ASIC contended that the circumstances, even as alleged by the applicants, could not give rise to a reasonable apprehension of bias on the part of the delegate in her conduct of the hearings under s 837 or in any decisions she might make following those hearings. It also contended that the decisions complained of, namely decisions made on or about 5 August 2002 to convene separate hearings under s 837 in respect of each of the applicants on designated dates to determine whether banning orders should be made with respect to each of the applicants, are not reviewable decisions under the ADJR Act.
CONSIDERATION
(a) Jurisdiction
On 5 August 2002, the delegate notified the applicants by their solicitors that she proposed to continue to conduct the hearings under s 837 of which she had given notice on 6 June 2002 to the second applicant and on 24 June 2002 to the first applicant. The notification followed an exchange of correspondence between ASIC and the solicitors for the applicants concerning their request that the delegate not conduct the hearings.
The decisions by which the delegate was allocated the task of considering the briefed material to determine whether banning orders should be made under s 830 against the applicants are not the subject of challenge in these proceedings. Nor are the delegate’s decisions notified on 6 and 24 June 2002 that she should give effect to s 837(2) by giving the applicants the opportunity of a private hearing and to make submissions and give evidence in relation to the matters of concern. It is only the subsequent decision of the delegate to continue to conduct the hearings, in effect in the face of the request on behalf of the applicants that she not do so, which is the subject of the present application.
Sections 5 and 6 of the ADJR Act permit judicial review of “a decision to which this Act applies”, and conduct which is engaged in or proposed to be engaged in for the purpose of making a decision to which the Act applies. Section 3(1) defines the expression “a decision to which this Act applies” relevantly to mean a decision of an administrative character made, proposed to be made, or required to be made under an enactment. If the decision complained of is “a decision” made under the Act or the ASIC Act, in my view it would clearly fall within the compass of that definition as it is clearly of an administrative character.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), Mason CJ at 337-338 explained that a decision, to be reviewable under the ADJR Act, will generally entail one required or authorised by statute which “is final or operative and determinative, at least in a practical sense, of the issue falling for consideration”. Thus, Finn J in McLachlan v Australian Securities Commission (1998) 28 ACSR 473 concluded that a decision to issue a notice of hearing under s 52(2) of the ASIC Act, or under s 837(2) of the Act, is not reviewable under s 5 or 6 of the ADJR Act as such a decision merely puts in train a process which may lead to a decision which has consequences of the kind to which Mason CJ adverted in Bond.
In my view, the decision complained of is of a similar character. It is maintaining the process initiated by the notices given on 6 and 24 June 2002 in an effort to comply with s 837(2) of the Act. It does not itself result in any determination, even on an intermediate basis, of rights or liabilities of the applicants or of any substantive issue. If I had not taken that view, I would have concluded that the decision complained of is a decision under the Act and the ASIC Act, as those enactments provide the legislative source for the entitlement and, in the present circumstances, the obligation to conduct the proposed hearings and to make decisions under s 830 of the Act.
On appeal from the decision of Finn J, the Full Court was not confronted with any claim that the Court lacked jurisdiction to entertain the particular complaints then made about how the ASIC delegate was to proceed to make a decision under s 830 of the Act: see McLachlan v Australian Securities and Investments Commission (1999) 85 FCR 286 (McLachlan). One issue raised was whether the delegate should be disqualified from conducting the proposed hearing by reason of apprehended bias. If the present application were amended to complain that the proposed conduct of the delegate for the purpose of making a decision under s 830 of the Act, namely the conduct of the proposed hearings, involves a contravention or likely contravention of the rules of natural justice by reason of apprehended bias on the part of the delegate, then in my view the claim would fall within s 6(1)(a) of the ADJR Act. I propose to consider the present application as if such an amendment were made. If the application were otherwise to succeed, I would give the applicants the opportunity to seek such an amendment and of course I would also give ASIC the opportunity to oppose it. However, as I have concluded that the application must fail in any event, it is not necessary to consider that issue further.
(b) Apprehended Bias
There is no dispute about the applicable law. Under s 59 of the ASIC Act, the rules of natural justice apply to a hearing conducted by ASIC. Any decision to be made under s 830 of the Act also clearly attracts the rules of natural justice or procedural fairness in its process of decision making.
No actual bias is alleged. The allegation is that there is a reasonable apprehension of bias on the part of the delegate that she may have pre-judged the issue of whether banning orders should be made against the applicants. The applicants contend that the appropriate legal test is identified by Kirby J in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia). Kirby J said at 548-549:
“An applicant in such a case is not concerned, as such, with the state of mind or attitude of the decision-maker. The focus of attention is on the decision itself and the manner in which it was apparently arrived at. The criteria are not subjective to the decision-maker. They are wholly objective. The issue raised is decided not by reference to a serious accusation of deliberate wrongdoing and misuse of office. It is judged by the much more readily established consideration of how the decision, and the process of arriving at it, might appear to the persons affected and to the public, judged reasonably and objectively.
Many decisions of this Court have emphasised that imputed bias is determined by reference to a standard that is more easily made out. Such bias must still be “firmly established”. It is not enough that the reasonable bystander has a vague sense of unease or disquiet. The test for imputed bias, which has now been accepted by this Court, is expressed in terms of possibilities (might), rather than of the proof of a ‘high probability’ of bias inconsistent with the fair performance of public duties, that was formerly the accepted criterion.”
I do not consider his Honour’s expressions in that case differ from, or were intended to differ from, previous observations of the Court. In my view a reasonable apprehension of bias will be made out if it is established that a suspicion may reasonably be engendered in the minds of those who come before the decision maker or in the minds of the public that the decision maker may not bring to the resolution of the questions arising for decision a fair and unprejudiced mind: see R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554 (Angliss); R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 261-262, and 264; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-294. That test is to be applied having regard to the nature of the jurisdiction being exercised and to the statutory provisions governing its exercise: Angliss at 553. I accept, as counsel for the applicants urged upon the observations of Kirby J in Jia at 549, that the purpose of the rule of apprehended or imputed bias is “to uphold vigilantly the high standards applicable to the appearance of justice and fairness in official decision-making in Australia”.
I therefore address the circumstances to determine whether a fair minded person might reasonably suspect that the delegate might not resolve the questions before her with a fair and unprejudiced mind.
In the light of the decision of the Full Court in McLachlan, it was not argued that the delegate reaching a state of mind sufficient to oblige the delegate to comply with s 837(2) of the Act is itself any reason to suspect the delegate will not then address the issues with a fair and unprejudiced mind: see per Kenny J (with whom O’Loughlin and Mansfield JJ agreed) at 301-302. The fulfilment of that statutory obligation cannot of itself give rise to a reasonable apprehension of bias on the part of the delegate. Nor is there anything in the terms of the two notices under s 837(2) given on 6 and 24 June 2002 which is said to do so. The terms of those notices are entirely consistent with an open mind being brought to bear on the consideration of the task imposed by s 830, including the conduct of the two proposed hearings and the consideration of any material that emerged in the course of or as a result of those hearings.
In my judgment, the sequence of the three s 837 notices to the second applicant, the first applicant and then to GWPS, in the light of the content of those notices, also does not give rise to any reasonable suspicion on the part of a fair minded person that the delegate might not approach the questions before her with a fair and unprejudiced mind. Counsel for the applicants said the timing and sequence of those notices was the critical issue. He asked rhetorically why the notices should have been issued in a staggered sequence rather than simultaneously. He pointed out that, in large measure, the material relied upon by the delegate in forming her views upon which the s 837 notices were given to the applicants is common or overlaps.
In my judgment, there is no foundation upon which a fair minded person might suspect from those circumstances that the delegate might not resolve the questions before her with a fair and impartial mind. The fact that the delegate formed the views which are expressed in each of the notices upon material which, in large measure, is said to be common in each of the three briefs, could not reasonably lead a fair minded person to have any such suspicion. Because the delegate was of the view, on the material in the brief concerning the second applicant, there was some basis for considering a banning order she was obliged to comply with s 837(2) of the Act. Her state of mind does not advance beyond that point because, on the material in the brief concerning the first applicant, she formed a similar view and so had to comply with s 837 in relation to him. Whether the material she considered in the brief was in practical terms the same, or was materially different, the level of intellectual satisfaction reached to activate the obligation under s 837(2) is the same. Her state of mind does not advance beyond that point because, on the material in the brief concerning GWFS, she formed a view which also obliged her to comply with s 837(2) in relation to GWFS. Again, whether the material she considered in that brief was in practical terms the same, or was materially different, the level of intellectual satisfaction reached to activate the obligation under s 837(2) is the same. In each case, that level of satisfaction having been reached, the delegate issued the notices under s 837(2).
There is nothing which indicates, in respect of either of the applicants or GWFS, that the delegate reached any higher level of intellectual satisfaction. Whether that level of intellectual satisfaction was reached in respect of the applicants and GWFS more or less contemporaneously, or sequentially, it is still no more than that necessary to activate the obligation under s 837(2). It was necessary to address the individual circumstances of each of them. The three notices to which the applicants have referred indicate the delegate did that. But they do not indicate that the delegate went beyond the point at which s 837(2) came into operation. To arrive at that crest of opinion by successively considering the three briefs, even some time apart, does not support any reasonable belief that the delegate at any time went beyond the crest of opinion at any time.
The applicants’ counsel contended that the delegate, having described the briefed material as being of such a nature as to require her to comply with s 837(2) in respect of each of them, should “logically” have awaited the outcome of their hearings before considering the content of the GWFS brief. After their hearings, it was argued, she may have concluded there was no foundation for any banning order under s 830 against either of them. By the delegate failing to adopt that course, it was suggested the fair minded observer might think that the delegate had progressed or might have progressed beyond keeping an open mind in relation to the outcome of her consideration of the applicants’ positions and had, or might have, taken the step of concluding adversely to their positions and so moved from there to consider the position of GWFS. I do not accept those contentions. It is implicit in them that there was some threshold in her consideration of the circumstances of GWFS which included, or might have included, some positive adverse finding against the applicants. There is no basis for any such understanding in the relevant provisions of the Act. Nor is there any foundation for any such understanding from the terms of the notices to each of the applicants and to GWFS, whether considered alone or together. The applicants did not seek to identify any such terms.
It was not necessary for the one delegate to have considered the brief concerning GWFS as well as those concerning the applicants. Indeed, it was not necessary for the one delegate to have considered each of the briefs concerning the applicants. However, the fact that the one delegate considered the briefs concerning each of the applicants, and that concerning GWFS, does not provide any reason for suspecting that she might not perform the hearing functions in relation to each with other than an open mind. The fact that she considered the brief concerning GWFS, and determined to conduct a hearing under s 837(2) by reason of that consideration does not suggest she had a mind foreclosed to a fair and impartial consideration of the applicants’ respective circumstances. Indeed, as the material in the three briefs overlapped to a not inconsiderable extent, it would be surprising if the delegate did not reach the same or a similar view in each subsequent consideration of that material as she had reached in consideration of that material in relation to the second applicant.
The delegate’s chosen course of considering the brief concerning GWFS before having completed the proposed hearings concerning each of the applicants’ circumstances also, in my view, cannot either alone or in combination with the other matters of context to which counsel for the applicants referred give rise to any apprehended bias on her part. The fact that the delegate did not defer her consideration of the GWFS brief was of no moment, as the intellectual crest which enlivened s 837(2) in its case was no higher than that which applied in the case of the applicants, and the material in that brief, as counsel for the applicants said, was to a not insubstantial degree common with that in the briefs concerning the applicants.
I also do not consider that the re-allocation of the hearing concerning GWFS to a different delegate conveys anything upon which there might be reason to suspect that the delegate conducting the hearings concerning the applicants might not address the issues with a fair and unprejudiced mind.
Finally, the applicants’ counsel submitted that a compendium of contextual matters added weight or colour to the claims of apprehended bias on the part of the delegate. In my view, the contextual matters referred to do not advance the question whether it is established that a suspicion may reasonably be engendered in the minds of the applicants or in the mind of the public that the delegate may not bring to her consideration of the issues concerning the applicants a fair and unprejudiced mind. Those matters included the applicants having had no dealings with ASIC prior to their dealings concerning the matters the subject of the respective notices, including their dealings with ASIC from February 2002, the unsuccessful attempts to resolve ASIC’s concerns without the possibility of banning orders being made under s 830, including certain terms of the attempts in that regard, ASIC’s resistance to the applicants’ application, the transfer of the GWFS hearing to another ASIC delegate, and the means by which the notices of 6 and 24 June 2002 were allegedly served. Some reference was also made to the matters identified to the first applicant extending beyond those of which he was, to then, aware as being of concern to ASIC.
The delegate is not said to have played any part at all in any of those matters prior to her consideration of the respective briefs, nor any direct role in the means by which the notices of 6 and 24 June 2002 were served. (The complaint was that the notices were served by leaving them at a front office, readily perused by office staff). The content of the brief concerning the first applicant is also not a matter in which the delegate was involved; her role was to consider the brief as presented. It cannot be a relevant contextual matter to support a claim of apprehended bias that ASIC, and the delegate, resist the claim. Otherwise, the making of such a claim would result in the potential or actual decision maker being disqualified for having declined to acquiesce in being disqualified from the hearing. I have separately addressed the significance, or lack of significance, of the change of the ASIC delegate in respect of the GWFS hearing.
CONCLUSION
For those reasons, in my judgment the application must be dismissed with costs.
I announced my decision on 17 September 2002. As then indicated, I direct the time from which any appeal from my decision may be brought do run from the date of these reasons for judgment.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 11 October 2002
Counsel for the Applicant: Mr M Douglas Solicitor for the Applicant: Phillips Fox Counsel for the Respondent: Ms C Francas Date of Hearing: 10 September 2002 Date of Judgment: 17 September 2002 Date of Publication of Reasons 11 October 2002
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