Administrative Law—Natural justice—Australian Securities Commission—Private examination—Transcripts released to Royal Commission for internal use—Subsequent decision to release for use in Royal Commission's public hearings—Whether examinee entitled to opportunity to object—Judicial review—Power to direct party to do any act necessary to do justice between parties—Extent of power—Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 16(1)(d)—Australian Securities Commission Act 1989 (Cth), ss. 19(2)(b), 22(1), 24, 25(3), 127(1), (4).
Orders
1. Appeal allowed in part.
2. Set aside the order of the Full Court of the Federal Court and in lieu thereof order: (a) appeal to that Court allowed in part; (b) set aside the order of Heerey J and in lieu thereof:
(i) declare as against the first and third respondents that the following decisions by the third respondent in exercise of powers delegated to her under the Australian Securities Commission Act 1989 (Cth) were invalid on the ground that the powers were exercised in breach of the rules of natural justice, namely, the decisions to release to the fourth and fifth respondents transcripts of the appellant's examination before the third respondent held pursuant to s.21 of the Act in circumstances which allowed the material or information contained in such transcripts to be published generally; (ii) otherwise dismiss the application;
(c) otherwise dismiss the appeal to the Full Court of the Federal Court.
3. Otherwise dismiss the appeal to this Court.
4. Liberty to each of the parties to file and serve on each of the other parties within 14 days written submissions as to the orders which should be made relating to (a) the costs of the proceedings in the Federal Court; (b) the costs of the application for special leave to appeal to
this Court;
(c) the costs of this appeal.
Liberty to each of the parties to file and serve submissions in reply, if any, within 7 days from service of the submission to which the reply relates or, in the case of the submissions already filed by the fourth, fifth and eighth respondents, within 21 days of this order.
Decisions
BRENNAN J I take the facts of this case substantially from the judgment of Black CJ and von Doussa J in the Full Court of the Federal Court from which this appeal is brought ((1) (1992) 108 ALR 405.). The appellant (Mr Johns) was the managing director of 22 companies comprising the Tricontinental group ("Tricontinental") at the time of the group's collapse. On 7 September 1990 the Victorian Government secured the appointment by the Governor-in-Council of a Royal Commission to inquire into the affairs of Tricontinental. The fourth and fifth respondents, the Hon. Sir Edward Woodward, O.B.E., QC and Mr D.G. Williamson, R.F.D., QC, are the two Commissioners who remained in office at the time of the appeal in this matter to the Full Court…
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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AGLC
Johns v Australian Securities Commission [1993] HCA 56
Case
[1993] HCA 56
Decision Date
CaseChat Overview and Summary
In *Johns v Australian Securities Commission*, the High Court of Australia considered an appeal concerning the release of transcripts from a private examination conducted by the Australian Securities Commission (ASC). The appellant, Mr. Johns, had been examined privately under the *Australian Securities Commission Act 1989* (Cth). Subsequently, the ASC decided to release transcripts of these examinations to a Royal Commission for use in its public hearings. Mr. Johns sought judicial review of this decision, arguing that he had not been afforded an opportunity to object to the release of the transcripts.
The central legal issues before the High Court were whether the ASC's decision to release the examination transcripts to the Royal Commission, for use in public hearings, was made in breach of the rules of natural justice, and the extent of the Federal Court's power under section 16(1)(d) of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) to direct a party to do any act necessary to do justice between the parties. The Court also had to consider the scope of the ASC's powers under the *Australian Securities Commission Act 1989* (Cth) regarding the release of examination material.
The High Court reasoned that the ASC's decision to release the transcripts for use in public hearings, without affording Mr. Johns an opportunity to object, constituted a breach of the rules of natural justice. The Court found that while the ASC had a broad discretion under its governing legislation, this discretion was not unfettered and was subject to the requirements of procedural fairness. The Court held that the power to direct a party to do what is necessary to do justice included the power to declare decisions invalid where natural justice had been denied.
The High Court allowed the appeal in part, setting aside the orders of the Full Court of the Federal Court and the primary judge. It declared that the ASC's decisions to release the transcripts to the Royal Commission, in circumstances that allowed for their general publication, were invalid due to the breach of natural justice. The Court otherwise dismissed the application and appeals, with liberty granted to the parties to make submissions regarding costs.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside the order of the Full Court of the Federal Court and in lieu thereof order:
(a) appeal to that Court allowed in part;
(b) set aside the order of Heerey J and in lieu thereof:
(i) declare as against the first and third respondents that the following decisions by the third respondent in exercise of powers delegated to her under the Australian Securities Commission Act 1989 (Cth) were invalid on the ground that the powers were exercised in breach of the rules of natural justice, namely, the decisions to release to the fourth and fifth respondents transcripts of the appellant's examination before the third respondent held pursuant to s.21 of the Act in circumstances which allowed the material or information contained in such transcripts to be published generally; (ii) otherwise dismiss the application;
(c) otherwise dismiss the appeal to the Full Court of the Federal Court.
3. Otherwise dismiss the appeal to this Court.
4. Liberty to each of the parties to file and serve on each of the other parties within 14 days written submissions as to the orders which should be made relating to
(a) the costs of the proceedings in the Federal Court; (b) the costs of the application for special leave to appeal to
this Court;
(c) the costs of this appeal.
Liberty to each of the parties to file and serve submissions in reply, if any, within 7 days from service of the submission to which the reply relates or, in the case of the submissions already filed by the fourth, fifth and eighth respondents, within 21 days of this order.