MacDonald v Australian Securities Commission (No 2) - [1994] FCA 41

JUDGMENT No. ,,,~;~,,,,,.m~ ,.m~.%.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) )
1

GENERAL DIVISION )
MATTER NO. NG 3279 OF 1993

BETWEEN: NEIL ALLAN MACDONALD & FINANCE &
MORTGAGE CORPORATION LIMITED
Applicants

m: AUSTRALIAN SECURITIES COMMISSION
Respondent
MATTER NO. NG 3312 OF 1993

BETWEEN: AUSTRALIAN SECURITIES COMMISSION
Applicant

m: NEIL ALLAN MACDONALD & FINANCE &
MORTGAGE CORPORATION LIMITED
Respondents

CORAM: HILL J

PLACE :	SYDNEY
DATED :	8 FEBRUARY 1994

CORRIGENDA

Amendment to the Reasons for Judgment of his Honour Mr Justice
Hill delivered 8 February 1994:

Page 16, line 1 - Delete "corporation.

" and insert

"corporation,".

Page 18, line 9 - Delete "Tribunal's" and insert "Tribunals". Page 23, line-37 - Delete "proceeding" and insert "pending".

23 February 1994
Stuart Bvrne

CATCHWORDS

ADMINISTRATIVE LAW - Judicial Review - whether notices issued under ss.30 and 33 of the ASC Law invalid because issued solely at the behest of another, because the decision to issue was unreasonable or because the decision to issue the notices was invalidly exercised.
CORPORATIONS - corporate character - whether a notice issued to a corporation under s.33 of the ASC Law valid when addressed to a corporation and not to that corporation by its proper officer.
CORPORATIONS - Companies - Australian Securitv Commission Act 1989 (Cth) - whether notices issued under ss.30 and 33 invalid as no reason to suspect contravention of a relevant corporation law or because ambiguous.
CORPORATIONS - Companies - Australian Securitv Commission Act 1989 (Cth) - operation of s.70 - whether pending litigation a reasonable excuse for failure to comply with a s.70 notice.
WORDS & PMUlSES
"person"
Australian Securitv Commission Act 1989 (Cth): ss.30, 33,
37(9), 70.
Administrative Decisions [Judicial Review) Act 1974 (Cth):
s.5(2) (e)
FIELDHOUSE v COMMISSIONER OF TAXATION (1989) 25 FLR 187;
applied.
PENN-TEXAS CORPORATION V MURAT ANSTLAT !N0.2) [l9641 2 QB 647;
considered.

v AUSTRALIAN i3ECURITIES COMMISSION and AUSTRALIAN SECURITIES NEIL ALLAN MACDONALD & FINANCE h MORTGAGE CORPORATION LIMITED
COMMISSION v NEIL MACDONALD & FINANCE & MORTGAGE
CORPORATION LIMITED
Nos: NG 3279 of 1993 and NG 3312 of 1993 respectively

CORAM: HILL J
PLACE : SYDNEY
DATED : 8 FEBRUARY 1994
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) 1
)

GENERAL DIVISION )
MATTER NO. NG 3279 OF 1993

BETWEEN: NEIL ALLAN MACDONALD & FINANCE &
MORTGAGE CORPORATION LIMITED
Applicants

m: AUSTRALIAN SECURITIES COMMISSION
Respondent
MATTER NO. NG 3312 OF 1993

BETWEEN: AUSTRALIAN SECURITIES COMMISSION
Applicant

AND: NEIL ALLAN MACDONALD & FINANCE &
MORTGAGE CORPORATION LIMITED
Respondents

CORAM : HILL J
PLACE : SYDNEY
DATED : 8 FEBRUARY 1994

MINUTES OF ORDER

THE COURT ORDERS IN MATTER NO. NG3279/93 THAT:
1. The application be dismissed.
2. The applicants pay the respondent's costs.

THE COURT ORDERS IN MATTER NO. NG3312/93 THAT:
3. The respondents each produce to Mr Quirk of the applicant, within 7 days of this order taking effect, the documents specified in the schedule to each of…

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: [1994] FCA 41
Decision Date: 8 Feb 1994

CaseChat Overview and Summary

The case involves a challenge by Neil Allan MacDonald and Finance and Mortgage Corporation Limited against the Australian Securities Commission (ASC) regarding the validity of notices issued under sections 30 and 33 of the Australian Securities Commission Act 1989 (Cth) (ASC Law). The applicants sought review and injunction of the notices, while the ASC applied for an order requiring the production of certain documents. The key legal issues were whether the decisions to issue the notices were valid, whether the notices were ambiguous, and whether a notice addressed to a corporation needed to be addressed to its proper officer. The court found that the decisions to issue the notices were valid, the notices were not ambiguous, and there was no requirement for a notice to be addressed to a corporation by its proper officer. The court dismissed the applicants' application and ordered them to pay the ASC's costs. It also granted the ASC's application, ordering the applicants to produce the specified documents, with a stay pending appeal.

Orders