Johns, I.M. v Australian Securities Commission - [1992] FCA 421

Re: IAN MALCOLM JOHNS
And: AUSTRALIAN SECURITIES COMMISSION; ANTHONY GEOFFREY HARTNELL; NOREEN
CLAIRE MEGAY; ALBERT EDWARD WOODWARD; DOUGLAS GILBERT WILLIAMSON; THE HERALD
AND WEEKLY TIMES LTD; AUSTRALIAN BROADCASTING CORPORATION and THE STATE OF
VICTORIA
No. V G149 of 1992 FED No. 421
Administrative Law - Contempt
(1992) 10 ACLC 1057
(1992) 8 ASCR 156
(1992) 108 ALR 405
(1992) 35 FCR 146
(1992) 27 ALD 545

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Davies(2) and von Doussa(1) JJ.

CATCHWORDS

Administrative Law - judicial review - extension of time - delay by applicant - public policy considerations - s.11 Administrative Decisions (Judicial Review) Act 1977.

Whether ASC could validly aid Royal Commission by making available ASC powers of investigation - whether an investigation initiated by Ministerial direction under the co-operative scheme legislation lapsed when the ASC Law came into operation - whether the investigation continued under the ASC Law as one by the ASC - whether exercise of coercive powers of investigation under Part 3 of the ASC Law by the ASC was for a proper purpose or contrary to ASC Law - s.13, 14 and 14A ASC Law.

Delegation of powers to officers of ASC to assist in Royal Commission investigation - whether officer seconded from ASC to Royal Commission a "staff member" - whether investigation power validly delegated - effect of s.33C(2) of the Public Service Act 1922.

Confidentiality of material obtained in examinations by ASC - whether disclosure of material by ASC to Royal Commission lawful - whether disclosure of material at public hearings by Royal Commission lawful - Ss.25(3) and 127(4) and(5) ASC Law.

Contempt - Royal Commission - pending criminal proceedings - contempt of court - receipt by Commission of final submissions in public - whether real risk of interference with administration of justice given delay before criminal trial and nature of alleged contempt - whether any risk of interference outweighed by public interest in hearing submissions in public.

Administrative Decisions (Judicial Review) Act 1977: s.11.

Australian Securities Commission Act 1989: Ss. 5, 13, 14, 14A, 102, 120, 125, 127.

Companies (Victoria) Code: ss.291, 292.

Public Service Act 1922; s.33C(2).

Cases

1. Johns v Connor (Unreported, Lockhart J., Federal Court of Australia, 7 May 1992) applied.

2. Australian Securities Commission v Graco (1991) 29 FCR 491 applied.

3. Ex parte Wardley Australia Limited (1991) 5 ACSR 786 applied.

HEARING

MELBOURNE

#DATE 19:6:1992

Counsel for the Applicant: Mr R. Merkel QC

with Mr. J. Beach

Solicitors for the
Applicant: Arnold Bloch Leibler

Counsel for the First, Mr. A.J. Myers QC
Second and Third Respondents: with Mr. T. Pagone

Solicitors for the First, Australian Securities Commission,
Second and Third Respondents: Regional General Counsel

Counsel for the Fourth Ms. E. Wentworth
and Fifth Respondents:

Solicitors for the Fourth Clayton Utz
and Fifth Respondents:

Counsel for the Sixth and Mr. M. Dreyfus
Seventh Respondents:

Solicitors for the Sixth Arthur Robinson and Hedderwicks
Respondent:

Solicitors for the Seventh Blake Dawson Waldron
Respondent:

Counsel for…

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.

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Details

Case: [1992] FCA 421
Decision Date: 19 JUNE 1992

CaseChat Overview and Summary

The appellant, I.M. Johns, brought an appeal against the Australian Securities Commission seeking judicial review of a decision made by the Commission. The primary issue before the court was whether the appellant's significant delay in seeking judicial review should be excused under section 11 of the Administrative Decisions (Judicial Review) Act 1977, considering the public policy implications of permitting such delays. The court had to balance the appellant's rights against the broader public interest in the expeditious resolution of administrative actions.

The court examined the factors pertinent to section 11, focusing on the reasons for the delay and whether it was unreasonable to expect the appellant to have initiated proceedings sooner. The court recognised the principle that while delays can prejudice the respondent, public policy considerations may justify extending the time limit for seeking review. However, in this instance, the court found that the appellant's delay was both unreasonable and unjustified, and it did not serve the interests of justice to permit the late review.

The court concluded that the appellant's significant delay prejudiced the respondents, particularly the eighth respondent, and the public interest in the efficient administration of justice outweighed the appellant's arguments for an extension of time. Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the respondents, with the exception of the eighth respondent, who was granted liberty to make written submissions on its costs if it chose to do so. The appellant was also allowed to respond in writing if it wished to contest the eighth respondent's costs.

Orders

Orders of the court

THE COURT ORDERS THAT

1. The appeal be dismissed.

2. The appellant pay the costs of the respondents other than those of the eighth respondent.

3. There be liberty to the eighth respondent to make submissions in writing on the question of its costs if it so desires and to the appellant to make submissions in writing in reply on that question.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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