MacDonald, N.A. v Australian Securities Commission

[1993] FCA 320

NEIL ALLAN MACDONALD and CHERYLL DIANA MATTHEWS v. AUSTRALIAN SECURITIES
COMMISSION
No. NG3041 of 1993
FED No. 320
Number of pages - 4
Administrative Law
(1993) 29 ALD 736

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J(1)

CATCHWORDS

Administrative Law - judicial review - whether application for reasons for decisions to serve notice under s.30 of Australian Securities Commission Act 1989 made out of time.

Administrative Decisions (Judicial Review) Act 1977, ss.3,5,13, Schedule 2.

Australian Securities Commission Act 1989, ss.13,28,30.

HEARING

SYDNEY, 23 April 1993

#DATE 18:5:1993

Counsel for the Applicants: T.K. Tobin, QC and T.J. Golding

Solicitors for the Applicants: Maurice Freidman and Company

Counsel for the Respondent: J.T. Gleeson

Solicitors for the Respondent: Mr. Beat Sidhu of Australian

Securities Commission

JUDGE1

SHEPPARD J The question at issue is whether or not the applicants are entitled to a statement of reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") in respect of a decision of the respondent Commission to issue notices to the applicants pursuant to the provisions of s.30 of the Australian Securities Commission Act 1989 ("the Act"). The notices are in a similar form. Each is dated 18 February 1993. That to the first applicant refers to an investigation by the Commission of the affairs of a company, Project Equity Finance Limited, during the period from 2 August 1989 to 12 February 1993. The notice proceeds as follows:-

"... you are hereby notified that, under Section 30 of the ASC Law you are required to produce to John Gerard Quirk at 2.00 p.m. on Friday, 26 February 1993, at Level 10, 135 King Street, Sydney, in the State of New South Wales, the books specified in Annexure A relating to the affairs of Project."

1. It is unnecessary to refer to the detail of Annexure A to the notice. It is sufficient to say that it specifies a number of books of account and other records as well as diaries, correspondence and annual returns.

2. Section 30 of the Act empowers the Commission, inter alia, to give to "an eligible person" in relation to a body corporate, a written notice requiring the production to a specified member or staff member of the Commission at a specified place and time of specified books relating to the affairs of the body corporate. Section 30 is to be found in Division 3 of Part 3 of the Act. Section 28, which is also in Division 3 of that Part, provides that a power conferred by Division 3 may only be exercised for the purposes of the performance or exercise of any of the Commission's functions and powers or for certain other purposes to the detail of which it is unnecessary to refer. Section 13 of the Act, which is in Division 1 of Part 3, empowers the Commission to make such investigation as it thinks expedient for the due administration of "a national scheme law" where it has reason to suspect that there may have been committed contraventions of laws referred to in the section. The expression "national scheme law" is defined in s.5 of the Act, but it is unnecessary to go to the detail of the definition.

3. The only point at issue between the parties is whether the request for a statement of reasons for the issue of the notices was made within time. The relevant provisions of the Judicial Review Act are contained in subsecs.13(1),(5) and (11) and also in s.3.

4. Subsection 13(1) provides that, where a person makes "a decision to which this section applies", any person who is entitled to make an application to the Court under s.5 in relation to the decision may request the person who made the decision to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. There is no question of the applicants' entitlement to make an application to the Court under s.5. The expression "a decision to which this section applies" is defined in subsec.13(11). It means "a decision that is a decision to which this Act applies" other than certain classes of decision including decisions included in any of the classes of decision set out in Schedule 2. The expression "a decision to which this Act applies" is defined in s.3 to mean a decision of an administrative character made under an enactment other than a decision by the Governor-General or a decision included in any of the classes of decision set out in Schedule 1.

5. Subsection 13(5) is as follows:-
   

"(5) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if:

(a) in the case of a decision the terms of which

were recorded in writing and set out in a

document that was furnished to the person who made the request - the request was not made on or before the twenty-eighth day after the day on which that

document was so furnished; or

(b) in any other case - the request was not made

within a reasonable time after the decision was made;

and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished."

1. The initial request for reasons for the decision to issue the notice was made by letter dated 20 April 1993 written by the applicants' solicitors to the Commission. On 21 April 1993, the Commission wrote to the applicants' solicitors saying that a statement of reasons would not be furnished because the request for the statement was made more than 28 days after the applicants had received notice of the decision. That was a reference to para.13(5)(a) of the Judicial Review Act. On 22 April 1993, the applicants' solicitors responded by saying that the case was within para.13(5)(b) so that the 28 day time limit did not apply.

2. The question to be determined is whether the applicants' request for reasons has been made out of time. In the Commission's submission, either para. 13(5)(a) applies with the consequence that the request was well out of time, or, in the event that the case is governed by para.13(5)(b), the request was not made within a reasonable time after the making of the decision.

3. Those are the only matters to be considered. I should mention, however, that, when the matter was argued, there were submissions made on behalf of the respondent concerning the significance of subparas. (e)(v) and (f)(iv) of Schedule 2 to the Act which specifies classes of decision which are not decisions to which s.13 applies. In written submissions, lodged after I reserved my decision, counsel for the Commission said that, although it did not concede the matter, it did not make any submissions in relation to those paragraphs in the present case. It was concern I had about the significance of the submission based on the two subparagraphs of the Schedule that led me to reserve my decision. During the hearing, I had formed a clear view of what the outcome should be otherwise, and would have delivered an oral judgment had the submission based upon the two subparagraphs in Schedule 2 not been pressed.

4. I have reached the conclusion that the applicants' request for reasons for the decision is out of time. Counsel for the applicants relied upon the fact that the notice served on their clients did not disclose the terms of the decision to issue the notice. However, the problem which confronts that submission is the significance to be accorded para.3(2)(e) of the Judicial Review Act which provides that a reference to the making of a decision in the Act includes a reference to making a declaration, demand or requirement. In my opinion, the notices in question are demands or requirements and the service of the notices had the effect of making demands or requirements on the applicants. The terms of the notices are quite specific. They specify the persons to whom they are directed, the body giving the notices, their date and their requirements. If subsec.13(5) of the Judicial Review Act is read in conjunction with para.3(2)(e) thereof, it is clear that the notices record the terms of the decision.

5. Counsel for the applicants submitted that para.3(2)(e) of the Judicial Review Act was irrelevant because of the introductory words, "a reference to the making of a decision". The question was whether, within the language of para.13(5)(a) of the Judicial Review Act, the decision was one, the terms of which were recorded in writing and set out in a document furnished to the applicants. But the opening words of subsec.13(1) are "Where a person makes a decision ..." Those words take one to the provisions of subsec.3(2). It is true that the decision must be one to which the Act applies; subsecs.13(1) and (11); and that the expression "decision to which this Act applies" is defined in subsec.3(1). But the definition speaks of "a decision of an administrative character made, proposed to be made or required to be made ...". Again one is drawn to the concept of a decision being made. That is a natural use of language. One does not speak of a decision without expressly or by implication referring to it having been made. True it is one can say "decided", but that is the same as saying "made a decision".

6. It follows that, for the purposes of the Judicial Review Act, the decisions in question are to be regarded as contained within the notices. The decisions were decisions which were recorded in writing and set out in documents which were furnished to the applicants. Paragraph 13(5)(a) is therefore the applicable paragraph. The time limit of 28 days had expired well before the request for reasons was made.

7. If my conclusion that this case falls within para.13(5)(a) were incorrect, the matter would be governed by para.13(5)(b). I think I should express my views on the question whether, in that event, the request for reasons was made within a reasonable time after the decisions were made. The notices in question were served as a step in an investigation being carried out by the Commission. It is unnecessary to dwell upon the important public functions with which it is entrusted. It is enough to say that its investigations are carried out in the public interest and the very nature of the work which it does suggests that its investigations ought to be able to proceed with a minimum of delay. The notices in this case were served on 18 February 1993. The application for judicial review was filed on 1 March 1993. No request for reasons was then made; such a request was not made until 20 April, i.e. almost nine weeks after the service of the notices and seven weeks after the filing of the application. Obviously the decision to seek reasons pursuant to s.13 of the Judicial Review Act was an afterthought. It is open to the criticism that it is a tactic either to delay matters, or to fish for more material to support the application for review. In all the circumstances I am satisfied that the delay in making the request for reasons was quite unreasonable with the consequence that the request was not made within a reasonable time after the decision was made. It follows that, whether the matter is governed by para. (a) or para. (b) of subsec.13(5), the request is out of time and the respondent is not obliged to supply the reasons which the applicants seek.

8. Because of uncertainty I have as to the form of the orders to be made, I shall discuss with counsel, after the publication of these reasons, the form which the orders, including any declaration, should take.