Loevski and Australian Securities and Investments Commission

[2001] AATA 850

DECISION AND REASONS FOR DECISION [2001] AATA 850

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V01/1039

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      YAKOV LOEVSKI
  Applicant
           And    AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer, Senior Member            

Date8 October  2001

PlaceMelbourne

Decision      1.        The Tribunal does not have jurisdiction in this matter.   2.     The application is dismissed for want of jurisdiction.
  (Sgd) Joan Dwyer
  Senior Member
JURISDICTION HEARING – application for review of decision of the Australian Securities and Investments Commission not to investigate or further investigate a complaint – whether Tribunal has jurisdiction to review such a decision – decision not within types of decision specified in s 244 of Australian Securities and Investments Commission Act 2001 – Tribunal does not have jurisdiction – application dismissed for want of jurisdiction

REASONS FOR DECISION

8 October  2001     Mrs Joan Dwyer, Senior Member   

1. This was a hearing as to whether or not the Administrative Appeals Tribunal has jurisdiction to deal with Mr Loevski's application for review.  Mr Loevski appeared in person and was assisted by an interpreter.  Mr Gladman, the Administrative Law Coordinator of the Melbourne office of the Australian Securities and Investments Commission ("ASIC "), appeared for ASIC.

2. On 14 August 2001 Mr Loevski, lodged an application for review with the Tribunal.  In that application, Mr Loevski did not describe the decision which he sought to review, but he attached to the application a copy of a letter from ASIC dated 19 July 2001.  In that letter ASIC advised Mr Loevski as follows:

   I refer to your complaint concerning Telegroup Network Services Pty Ltd (TNS) and the Joint Liquidators of that company; Mr Steven Sherman and Mr Peter Walker of Ferrier Hodgson.
   As you know, ASIC commissioned a report from an independent insolvency expert to advise us on this matter.  ASIC has now received that report and, accordingly, I have been able to conclude my deliberations on this matter.
   ASIC will not further investigate your complaint against Messrs Sherman and Walker.  I am satisfied that there is no commercial or regulatory basis to your complaint against the Joint Liquidators of TNS and, therefore, no basis on which ASIC could reasonably conduct further inquiries.
   I believe that the detailed information set out in ASIC's previous correspondence with you fully sets out our view of this matter. The expert's report received from Deloitte Touche Tohmatsu supports that view. In order to assist your understanding of this matter, and to save you the trouble and expense of making an application under the Freedom of Information Act, I have decided to provide you with a copy of this report, enclosed herewith.

3. On 15 August 2001, ASIC was advised of the lodging of Mr Loevski's application for review.  By letter dated 28 August 2001, Mr Gladman wrote to the Deputy Registrar of the Tribunal submitting that the AAT did not have jurisdiction to review a decision of ASIC not to investigate Mr Loevski's complaint. Mr Gladman wrote:

   ASIC's power to undertake investigations is provided by s.13 of the Australian Securities and Investments Commission Act 2001 (the ASIC Act). Section 244 of the ASIC Act sets out the decisions in respect of which the AAT has jurisdiction. Section 244 of the ASIC Act provides that application may be made to the AAT for the review of decisions of ASIC:

   (a)to make an order under s.72, 73, or 74;

   (b)to make an order under subsection 75(1) varying an order in force under Division 8 or Part 3; or

   (c)to refuse to vary or revoke an order in force under Division 8 of Part 3.

   As a decision on whether to investigate a complaint is not included in the decisions identified in s.244 of the ASIC Act, the AAT does not have jurisdiction to review such a decision. ASIC accordingly submits that Mr Loevski's application should be dismissed.

4. Mr Gladman's submission is clearly correct.  The AAT only has power to review certain decisions.  Section 25(1) and (4) of the Administrative Appeals Tribunal Act 1976 ("the AAT Act") provides:

   25  Tribunal may review certain decisions

   (1)An enactment may provide that applications may be made to the Tribunal:

   (a)for review of decisions made in the exercise of powers conferred by that enactment; or

   (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

   . . .

   (4)The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

5. In this matter the relevant enactment is the Australian Securities and Investments Commission Act 2001 ("the ASIC Act"). Section 244 of that Act specifies the only decisions of ASIC which the AAT has power to review, as set out by Mr Gladman in his letter of 28 August 2001.

6. The decision not to proceed further with the investigation of Mr Loevski.'s complaints is not a decision specified in s 244 of the ASIC Act. Thus the Tribunal has no jurisdiction to review that decision.

7. Mr Drysdale, the ASIC Acting Regional Commissioner, Victoria, wrote the letter to Mr Loevski of 19 July 2001, advising him that ASIC would not further investigate his complaint. He concluded his letter as follows:

   Let me conclude by again noting that if you have a complaint in relation to ASIC's conduct of this matter, or the behaviour or performance of ASIC staff, you can lodge a complaint with the Commonwealth Ombudsman.  The Commonwealth Ombudsman cannot re-determine ASIC's decision, but does have the power to investigate misconduct, or review the manner in which a decision has been made to ensure that it was done fairly and in accordance with the law.  You can write to the Office of the Commonwealth Ombudsman at:

   Level 10, Casselden Place
   2 Lonsdale Street,
   Melbourne   VIC   3000
   Telephone:  [phone]
   Facsimile:   [phone]

The Tribunal repeated that advice to Mr Loevski during the hearing. 

1. The Tribunal does not have jurisdiction in this matter.  The application will be dismissed for want of jurisdiction.

   I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member

   Signed:         Grace Carney
     Associate

   Date/s of Hearing  8 October 2001
   Date of Decision  8 October  2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Nil Self Represented
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Mr Gladman