Loevski v A.S.I.C - [2003] FMCA 126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOEVSKI v A.S.I.C.

[2003] FMCA 126

ADMINISTRATIVE LAW – Summary dismissal – no error of law.

PRACTICE AND PROCEDURE – Subpoenas – setting aside – not relevant at hearing of appeal from Administrative Appeals Tribunal.

ADJOURNMENT – Failure to obtain legal assistance – relevance – refusal to grant pro bono application.

Australian Securities and Investments Commission Act 2001, ss.13, 244
Administrative Appeals Tribunal Act 1975 (Cth), s.25

Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 25 ALR 221
Re Qantas Airways v Deputy Commissioner of Taxation WA (1979) 2 ALD 291

Dey v Victorian Railways Commission (1949) 78 CLR 62

Applicant:

YAKOV LOEVSKI

Respondent:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

File No:

MZ 948 of 2001

Delivered on:

1 April 2003

Delivered at:

Melbourne

Hearing Date:

1 April 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr M. Galvin

Solicitors for the Respondent:

Australian Securities and Investments Commission

Counsel for Mr S. Sherman:

Ms G.J. Thomas

Solicitors for Mr S. Sherman:

Baker & McKenzie

ORDERS

The notice of appeal filed by the applicant on 9 November 2001 be dismissed.
The applicant shall pay the respondent's costs of the application including reserved costs, if any, and the costs before the transfer of the application by the Federal Court in accordance with the Federal Court Scale and thereafter costs to be paid including reserved costs, if any, pursuant to schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to order 62 of the Federal Court Rules.
The subpoena filed 19 March 2003 addressed to Stephen Sherman be set aside.
The subpoena filed 19 March 2003 addressed to Christopher Fintan be set aside.
The subpoena filed 19 March 2003 addressed to Mark Drysdale be set aside.
The applicant pay the costs of Mr Stephen Sherman pursuant to order 62 of the Federal Court Rules to be taxed in default of agreement and to be paid upon the Federal Court Scale.
The applicant pay the costs of Mr Christopher Fintan pursuant to order 62 of the Federal Court Rules to be taxed in default of agreement and to be paid upon the Federal Court Scale.
The applicant pay the costs of Mr Mark Drysdale pursuant to order 62 of the Federal Court Rules to be taxed in default of agreement and to be paid upon the Federal Court Scale.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 948 of 2001

YAKOV LOEVSKI

Applicant

And

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

REASONS FOR JUDGMENT

This is an application by way of notice of appeal which was filed in the Federal Court of Australia on 9 November 2001. The application seeks to appeal from a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 8 October 2001. In that decision the Tribunal decided that it did not have jurisdiction in the matter and dismissed for want of jurisdiction an application for review by the applicant before that Tribunal. It is noted that at the hearing the Tribunal referred to the applicant appearing in person, albeit assisted by an interpreter. Likewise, throughout the hearing in this court the applicant has been assisted by an interpreter.
The application for review was lodged by the applicant on 14 August 2001. It is relevant to look at the Tribunal's reasons, and in paragraph 2 of those reasons the Tribunal states that 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. The letter provides:
“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 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”.
According to the Tribunal, on 15 August 2001 ASIC was advised of the lodging of the applicant's application for review. There was a further letter dated 28 August 2001 addressed to the Deputy Registrar of the Tribunal from Mr Gladman on behalf of the Respondent submitting that the Tribunal did not have jurisdiction to review a decision of ASIC not to investigate the applicant's complaint. That letter is recited in the Tribunal's reasons and provides:-
“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 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 the 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.”
The Tribunal, after referring to that letter, upheld the submission by Mr Gladman on behalf of the respondent. It then followed that the Tribunal found that it did not have jurisdiction in the matter and dismissed the application for want of jurisdiction. The Tribunal referred to the relevant legislation and then referred to other correspondence which had been provided to the applicant from the respondent dated 19 July 2001 which provides:-
“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:
…”
Before the court this day I have already delivered decisions in relation to the setting aside of subpoenas and made orders in relation to costs against the applicant in relation to those matters. I have ruled that I would not permit the matter to be further adjourned. I have delivered reasons in relation to both matters and I will incorporate those reasons for decision upon review in this judgment.

Subpoenas

In this matter before me today there are three subpoenas which have been issued by the court on 19 March 2003. The first of those subpoenas is addressed to Mr Steven Sherman. It identifies him as a respondent. The second of those subpoenas is addressed to a Mr Christopher Fintan and likewise refers to him as a respondent. The third subpoena is addressed to Mr Mark Drysdale and again refers to that person as a respondent.
Before me today Ms Thomas has appeared for and on behalf of Steven Sherman; Mr Galvin appears for and on behalf of the respondent.
Ms Thomas has submitted that the subpoena addressed to her client should be set aside as the subpoena requires attendance for production of documents which cannot be relevant to an application of this kind, which is an appeal from a decision of the Administrative Appeals Tribunal delivered 8 October 2001. Reference was made to the applicant's notice of appeal, and the issues which are sought to be agitated must, it is submitted on behalf of Mr Sherman, relate to issues with could properly be said to be errors of law. In the circumstances, attendance of a witness at production of documents are submitted to be irrelevant to the court's inquiry and hearing of an application which ultimately will depend upon whether or not there is any demonstrated error of law.
Likewise, Mr Galvin, appearing for the respondent, whilst informing the court that both Mr Fintan and Mr Drysdale are employees of the respondent, has submitted that the documents sought to be produced by both of those parties are documents which relate to facts and do not relate to the issues relevant to this appeal.
I have heard from the applicant and noted the material which he filed entitled Applicant's Summary Arguments to the Respondent's Outline of Submissions filed 28 March 2003. I have asked the applicant to indicate the relevance of the subpoenas.
On the one hand, he sought to challenge the fact that Mr Sherman as liquidator had in fact at one stage been a second respondent to the original application filed in the Federal Court. It is clear from the court record and I accept that upon application being made by Mr Sherman on 6 December 2001, Marshall J struck out the Federal Court proceedings as against Mr Sherman. On 7 May 2002 the Full Federal Court dismissed the applicant's appeal against all the orders that Marshall J made on 6 December 2001, and on 14 February 2003 the High Court dismissed the applicant's application for special leave to appeal against the decision of the Full Federal Court. I accept that in the circumstances Mr Sherman is not a party to the present proceedings.
Even if I were to regard that chronology of court proceedings as to have no effect or impact upon this court, which of course I cannot do, I would still be minded in the present case not to accept that Mr Sherman could potentially be a party to these proceedings in all the circumstances. In any event, those orders have been made and, in my view, are entirely appropriate. It is therefore incorrect to refer to any of the parties who are the subject of subpoenas as being respondents to this application.
The Applicant has sought to suggest that the production of these documents is relevant to the grievance he has clearly felt in relation to the decision and in relation to the AAT decision in this matter. In my view, having read the subpoenas carefully, without reciting the details of the documents sought in each and every one of those subpoenas it is clear that the subpoenas constitute an abuse of process. They do not address any issues relevant to this application. They therefore cannot remain in full force and effect. In any event on an appeal of this nature the Court decides the matter on the facts as determined by the Tribunal and it is only in most unusual circumstances that the Court could justify admitting fresh evidence of a kind subject to the subpoenas in question (see Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 25 ALR 221 at 227). The only appropriate order in the circumstances is that each and every one of the subpoenas should be set aside.
In my view, it is appropriate that there be an order for costs in relation to the subpoena filed 19 March 2003 addressed to Steven Sherman. I have already made an order that that be set aside. I have indicated the Federal Court Scale because I think the Federal Magistrates Court Scale does not appropriately deal with matters of this kind and I am satisfied it is appropriate that the costs order should be made on the Federal Court Scale.
I will likewise make orders in the same form in relation to the subpoenas that I have set aside in relation to Mr Christopher Fintan and Mr Mark Drysdale.

Application for adjournment

The Applicant seeks to adjourn the hearing so that he may obtain legal assistance. In this application, which I note was filed in the Federal Court on 9 November 2001, the applicant seeks to appeal from a decision made by the Administrative Appeals Tribunal on 8 December 2001. The matter was the subject of an order transferring the application from the Federal Court to this court on 10 December 2001. It was then clear that when the matter was before this court an appeal had been lodged from the Federal Court decision of 6 December 2001, and in those circumstances when the matter came before me on 21 January 2002 I decided to adjourn the application pending the outcome of the appeal.
As I have indicated earlier today dealing with matters concerning the issues of subpoenas, the Full Court of the Federal Court dismissed the appeal on 7 May 2002 and the High Court dismissed an application for special leave to appeal on 14 February 2003. When the matter came before me on 7 March 2003 I made certain directions and orders in relation to the further progress of the matter and otherwise fixed it for hearing this day.
It is clear from reference to the material on file that there has been an ongoing attempt by the applicant to seek legal assistance. It is equally clear to me that in an application of this kind, which does relate to a technical issue in a sense of establishing an error of law from a Tribunal decision, that the applicant, as all other applicants, would benefit from legal aid. I have noted from the court file a number of items of correspondence which date from 9 April 2002 where the applicant seeks some legal assistance.
A Registrar of this Court communicated with the applicant on 23 April 2002 in relation to the possibility of assistance from the Community Legal Service and that was subject to a reply on 15 May 2002 from the applicant who, in turn, was advised by letter dated 23 May 2002 by the court to consider yet another Community Legal Centre for advice, and that appeared to be unsuccessful as again by letter dated 6 June 2002 the applicant indicated that he had not been able to seek legal assistance.
It is clear from the file that there have been a number of attempts by the Applicant to obtain legal assistance. It is also fair to say that during the course of last year correspondence from the Applicant constituted a plea to the court to somehow arrange for legal assistance or at the very least consider an application for pro bono assistance. It is true that the court has formally rejected an application for pro bono assistance, and that matter was decided in the circumstances by the court yesterday, and it is also true that in those circumstances in the normal course of events it may well be that an applicant could complain that he needs further time to further pursue the issue of legal assistance.
It should be noted that the purpose of a referral under rule 12.03 of the Federal Magistrates Court Rules should not be misinterpreted and should be read in the light of rule 12.01(2) which states that the scheme is not intended to be a substitute for legal aid. Considering a request for pro bono assistance in this case has not, in my view, compromised in any way the court's ability to properly assess otherwise the merits of this application, save that I have concluded that there is not a public interest element in this case of sufficient kind that would encourage the court to recommend pro bono assistance under the court's rules.
I am satisfied on the chronology that I have just recited and having now had the advantage of hearing through an interpreter the applicant on a number of occasions that there be little or no point served in further delaying this issue and that it would not indeed be appropriate in the interests of the administration of justice for both the applicant or the respondent to permit this matter to be further adjourned.
Accordingly, it seems to me in the present case, dealing, as I must, with what can only be described as a narrow issue of law arising from the Tribunal decision of 8 October 2001, it is in the interests of the parties and, as I have indicated, the administration of justice that I not delay the matter any further and that I proceed to hear and determine the issue this day. The application for adjournment is refused.
The application now before this court is an application by the respondent filed 14 March 2003. That application seeks orders that the notice of appeal filed by the applicant on 9 November 2001 be dismissed, that the applicant pay the respondent's costs and such other orders as the court considers appropriate. In support of that application the respondent has filed and served an outline of submissions dated 14 March 2003. The applicant has filed with the court detailed submissions entitled “Applicant's Summary Arguments to the Respondent's Outline of Submissions” filed 28 March 2003. I have also permitted the applicant to rely upon written submissions dated 31 March 2003.
It is clear to me during the course of the hearing in considering the application for summary dismissal by the respondent, that the applicant has sought to agitate issues which are not relevant to the matter before this court. He sought to restate matters already set out in the voluminous material to which I have referred. In an application of this kind, it is my view that the parties should be given a fair and appropriate opportunity to be heard. It is clear that parties may be heard either by relying upon documents in writing or making further oral submissions.
On a number of occasions I have invited the applicant to make submissions directly relevant to the issue of summary dismissal and, having heard him on each and every occasion and having noted the matters raised in the written material, I was satisfied that it would not be in the interests of the administration of justice to permit valuable court time to be taken by any further oral submissions to be made by the applicant before the court this day.
It is said by the applicant that the court must listen to submissions made for and on his behalf. That is clearly a misconception. The court must listen to those submissions which are relevant to the application and must give parties an opportunity to at least have the views which they wish to express taken into account. I am satisfied in the circumstances of this case that the applicant has been given an opportunity to place material before the court in support of his appeal and to otherwise address the court in relation to whether or not the appeal should be the subject of summary dismissal.
I am satisfied in the circumstances that the applicant may not necessarily appreciate the technical issues in relation to summary dismissal but I am nevertheless satisfied that he does understand that the issue essentially before this court is whether or not he has been able to demonstrate an error of law arising from the decision of the Tribunal. That much is clear from the written submissions of the applicant, which I have permitted him to rely upon this day, dated 31 March 2003 where the applicant states with regard to paragraph 5 of the reasons of decision made by the senior member of the AAT, Mrs J. Dwyer:
“… she was mistaken by wrong conclusion that in that matter V 1039/01 the relevant enactment is ASIC Act only. The Corporation Act 2001 established ASIC's responsibility as watchdog or supervisor (s.536) of liquidator by many sections. Therefore she made the incorrect conclusion that: ‘8. The Tribunal does not have jurisdiction in this matter. The application will be dismissed for want of jurisdiction.”

In matters of this kind I should also add that in addition to permitting an unrepresented applicant who obviously has language difficulties to rely upon written material does not mean that this court has an obligation to examine each and every submission and all the matters referred to by the applicant in what can only be described as voluminous and largely what I would regard as irrelevant documents. It is appropriate for the court to consider the outline of submissions of the respondent and to consider whether, amongst the voluminous material relied upon by the applicant, there is some basis upon which it can be said that the application for summary dismissal should not be entertained.
In the respondent's outline of submissions to which I have referred dated 14 March 2003 the respondent refers to a decision made by the Tribunal and indicates that the reviewable decision or the relevant decision considered by the Tribunal was that decision made by the respondent on 19 July 2001, that is, the letter to which I have referred from the respondent to the applicant.
The relevant decision, it is submitted, of the respondent not to further investigate the applicant's complaints about the conduct of Steven Sherman or Peter Walker as liquidators of the Telegroup Network Services Pty Ltd in liquidation is the matter that was before the Tribunal. It is submitted by the respondent that as at the date of the application for review to the Tribunal, s.13 of the Australian Securities and Investments Commission Act 2001, (the ASIC Act), relevantly provided as follows:
“ASIC may make such investigations as it thinks expedient for, the due administration of the corporations (other than the excluded provisions) where it has reason to suspect that there may have been committed
(a)a contravention of the corporations legislation (other than the excluded provisions);, or
(b)a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction being a contravention that:
(i)concerns the management or affairs of a body corporate or managed investment scheme, or
(ii)involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to securities or futures contracts.”
In its submissions the respondent refers the court to s.25 of the Administrative Appeals Tribunal Act 1975 (Cth), (the AAT Act), which defines the Tribunal's jurisdiction as follows:
“(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.”
It is submitted by the respondent in the written submissions that review by the Tribunal of decisions by the respondent is further limited by s.244 of the ASIC Act which provides as follows:
“(1)In this section:
"decision" has the same meaning as the Administrative Appeals Tribunal Act 1975.
(2)Applications may be made to the Administrative Appeals Tribunal for review of a decision by the ASIC
(a)to make an order under section 72, 73 or 74, or
(b)to make an order under subsection 75(1) varying an order in force under Division 8 of Part 3, or
(c)to refuse to vary or revoke an order in force under Division 8 of Part 3.”
It is submitted on behalf of the respondent that the relevant decision was not made under any of those provisions referred to in s.244(2). In the circumstances, it is submitted. The Tribunal therefore has no jurisdiction to review the relevant decision (see Re Qantas Airways v Deputy Commissioner of Taxation WA (1979) 2 ALD 291). Accordingly, it is submitted the Tribunal dismissed the application for review for want of jurisdiction.
It is submitted that in the present case, having regard to the clear and unequivocal terms of s.244 of the ASIC Act as to the limits of the Tribunal's jurisdiction with respect to review of the respondent, the application has no prospect of success and is hopeless. Accordingly, it is the respondent's application that I should summarily dismiss the applicant's appeal pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
A decision by a court to summarily dismiss is a decision by the court which should be made after careful consideration of the merits of the case. It is not a matter to be considered in a way which might result in unfairness or injustice. It needs to be considered in circumstances where it can be properly said that there is indeed no arguable case or indeed that the application before the court is so hopeless as to require the court's early intervention and exercise its powers to summarily dismiss. Summary dismissal should only occur in a very clear case (see Dey v Victorian Railways Commission (1949) 78 CLR 62 at 91).
In the present application I can see no error of law that was made by the Tribunal which would be of a kind to attract the attention of s.44 of the AAT Act. It is clear, in my view, that the Tribunal simply did not have jurisdiction to entertain the application for review of the decision of the kind referred to by the Tribunal in its reasons for decision. The submissions made for and on behalf of the respondent are clearly correct. The jurisdiction of the AAT is limited by those matters and those decisions designated by statute as being matters properly to be reviewed by the AAT under the appropriate enactment.
There is nothing in the material which would suggest the Tribunal has incorrectly interpreted the powers which it may have in considering a review of the application in this matter. Accordingly, for those reasons this application and this appeal has no prospect of success and indeed may well be categorised as entirely hopeless in law. The applicant cannot establish an error of law of a kind sufficient to attract the attention of s.44 of the AAT Act.
Accordingly, in those circumstances it is not only appropriate but is the obligation of a court in matters of this kind to ensure that the application is summarily dismissed.
I will direct that the reasons for decision that I have just delivered be transcribed and, upon review, shall constitute my reasons for decision. As indicated, those reasons will incorporate reasons for decision in the issue of adjournment and subpoenas. I will also, upon review, ensure that a copy is forwarded to the applicant so that he may properly have an opportunity to consider the matter and have the contents of the decision interpreted for him as soon as they become available.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 1 April 2003