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…

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: [2003] FMCA 126
Decision Date: 1 April 2003

CaseChat Overview and Summary

The case of Loevski v A.S.I.C. came before the Federal Court of Australia, where the applicant, Loevski, appealed against a decision made by the Australian Securities and Investments Commission (ASIC). The primary dispute centred on the dismissal of an appeal by Loevski and the setting aside of several subpoenas issued by ASIC. The court was also tasked with determining the costs associated with the appeal and the subpoenas, including costs incurred by the parties involved.

The court identified several legal issues for determination. These included the validity of the notice of appeal filed by Loevski, the appropriateness of setting aside the subpoenas, and the allocation of costs between the parties. The court needed to consider whether the appeal was properly filed, whether the subpoenas were justified, and how to fairly distribute the costs incurred by the parties.

In its reasoning, the court determined that the notice of appeal filed by Loevski was defective and, therefore, the appeal was dismissed. The court found that the subpoenas were not justified, leading to their setting aside. The court also ruled on the costs, requiring Loevski to pay ASIC's costs and the costs of the individuals named in the subpoenas. The costs were to be taxed and paid according to the Federal Court Scale and the Federal Magistrates Court Rules.

The final orders included dismissing the notice of appeal, setting aside the subpoenas, and directing Loevski to pay the costs of ASIC and the subpoenaed individuals. The court's decision was clear and comprehensive, addressing each aspect of the dispute and ensuring that the costs were allocated in a manner that reflected the court's findings.

Orders

Orders of the court

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.

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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