Jewel of India Holdings and Australian Securities & Investments Commission

[2013] AATA 314

[2013] AATA 314 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4711
Re	Jewel of India Holdings
APPLICANT
And	Australian Securities & Investments Commission
RESPONDENT

DECISION

Tribunal	Hon. Brian Tamberlin, QC, Deputy President
Date	17 May 2013
Place	Sydney

Decision Summary

The Tribunal decides that the application was made on behalf of both Holdings and Enterprises and that the decision was made with respect to the affairs of both entities.

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Hon. Brian Tamberlin, QC, Deputy President

Catchwords

CORPORATIONS – Australian Securities and Investments Commission – Order seeking financial statements not be made available where Applicant successful in substantive proceedings – Order seeking restriction of publication – Interlocutory applications resolved by way of undertakings – Whether decision made in respect of subsidiary as well as chief where application is unclear or incomplete – Considerations specific to factual nexus – Not to be used as basis for general rule - Application made on behalf of, and decision made with respect to the affairs of, both entities.

Legislation

Administrative Appeals Tribunal Act 1975 s 35; 37

Corporations Act 2001 s 319; 50; 342; 1354; 342AA;

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REASONS FOR DECISION

Hon. Brian Tamberlin, QC, Deputy President

17 May 2013

1. This matter was listed for hearing before me on 10 April 2013 in relation to two interlocutory applications. 

2. The first application sought an order that financial statements of the Applicant should not be made available to the public unless the Tribunal decides that the Applicant is unsuccessful in the substantive proceedings.

3. The second order was sought pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to restrict publication of parts of witness statements and other information and documents.

4. In the substantive proceedings the issue is whether the Respondent should be satisfied under the Corporations Act 2001 (the Act) that compliance with the requirements of that Act, to prepare and file financial documents, would impose unreasonable burdens on the Applicant, such that the Applicant should have an order relieving the Applicant from complying with s 319 of the Act.

5. The dispute concerning the two interlocutory orders sought have now been resolved after discussions between the parties by way of undertakings concerning (i) confidentiality and (ii) an agreement by the Respondent not to take further action in relation to the decision until determination of the substantive issue.

6. In the course of argument in relation to the interlocutory orders, however, a question was raised by the Respondent as to whether the decision under review was made in relation to Jewel of India Holdings Pty Ltd (Holdings) alone or whether a decision was also made with respect to its subsidiary Jewel of India (Enterprises) Pty Ltd (Enterprises) which is the main operating company.

7. Holdings’ is the parent company of Enterprises and is therefore a “related entity” within the meaning of s 50 of the Act.

8. Having considered the language of the application for exemption, the correspondence and the oral submissions by the parties and the Reasons for Decision given in the s 37 Statement (AAT Act), I have reached the conclusion that the application was made on behalf of both Holdings and Enterprises and that the decision was made with respect to the affairs of both entities.

9. My reasons for this conclusion are as follows.

10. Firstly, the application was expressed to be by Holdings and “related entities” for an exemption order in relation to the preparation and lodgement of the 2012 General Purpose Financial Reports.  While there is some ambiguity in the correspondence subsequent to the date of lodgement of application on a fair reading of the correspondence taken as a whole, I am satisfied that the decision to refuse was made in respect of the application signed by Peter White of Ernst and Young dated 17 May 2012 and that it was made by both entities.

11. Secondly, while the refusal of 19 September 2012 refers only to “Holdings”, the s 37 Statement by the decision-maker refers to the application as being “on behalf of Jewel of India Holdings Pty Ltd and related entities” and both entities are included in the expression “Company” as used in those Reasons for Decision.

12. Thirdly, the Reasons for Decision refer to the financial and commercial activities including the affairs of Enterprises.  The consideration and discussion is not limited to the affairs or circumstances only of the Holding company. 

13. Fourthly, it is clear from the application that the reasons advanced as amounting to an “unreasonable burden” primarily involved the affairs, records and documents of Enterprises and its dealings with its customers and they are not restricted to consideration of the burden on Holdings alone.  Accordingly the reasonable inference is that the decision-maker dealt with the application as having been made on behalf of the related companies, as well as Holdings.

14. Fifthly, the application claims that there will be an imposition of an unreasonable burden under s 342 if the Applicant’s financial records are disclosed to competitors as a result of compliance with s 319. The “financial affairs” in question primarily relate to the records and financial affairs of Enterprises as set out in the letter of application and these are discussed in some detail in the s 37 Statement of the decision-maker.

15. Further, I do not consider that, having regard to the terms in which the application was made and the way it was treated by the Respondent, it can be said that the application was not validly made in respect of Enterprises because statutory forms were not followed or fees paid. In particular, I do not consider that the requirements under the Act and Regulations concerning applications as to form and payment is such that failure to comply was intended to result in invalidity of the application. Section 1354 of the Corporations Act specifically provides that an application is not invalid merely because of non-payment of a fee.  There are two requirements imposed under s 342AA of the Corporation Act, namely:

    (i)that the application must be in writing; and,

    (ii)that it be signed by the Applicant and lodged with the Respondent. 

    In the present case, Holdings made the application in writing on its own behalf and that of Enterprises and it was lodged.

16. I want to emphasise that in reaching my conclusion in the present matter, I pay particular regard to the specific facts and nature of the application and correspondence and the way in which the Respondent dealt with, and reasoned to its conclusion to refuse exemption.  These considerations and specific to the present case and provide no basis for any general rule as how to ascertain the identity of particular applicants in other cases. 

17. The indicators to which I have referred above lead me to the firm conclusion that the application for exemption and the reviewable decision were made and determined in respect of both Holdings and Enterprises.  I am further satisfied the Application for Review to this Tribunal is made in respect of both companies.  I do not consider that there is any jurisdictional objection to this Tribunal considering the application for review in regard to the affairs of both Holdings and Enterprises.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of the Hon B Tamberlin QC,  Deputy President.

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Associate

Dated 17 May 2013

Date of hearing	10 April 2013
Counsel for the Applicant	Denis Barlin
Advocate for the Applicant	Elias Yamine
Solicitors for the Applicant	Bartier Perry
Counsel for the Respondent	Madeleine Avenell
Advocate for the Respondent	Matthew Povey
Solicitors for the Respondent	ASIC