McLachlan v Australian Securities Commission

[1998] FCA 952

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - CORPORATIONS LAW - Australian Securities Commission - procedures relating to making a banning order under s 829(f) Corporations Law – reason to believe a person has not performed honestly, efficiently and fairly the duties of a representative of a dealer - whether the Australian Securities Commission decision to issue a Notice of Hearing under s 57(2) Australian Securities Commission Act (1989) (Cth) constitutes a reviewable decision - whether the Australian Securities Commission engaged in reviewable conduct in deciding to issue a Notice of Hearing.

ADMINISTRATIVE LAW - CORPORATIONS LAW - duty to observe the rules of natural justice - whether the Australian Securities Commission is precluded on grounds of procedural unfairness from making use in decision making of information improperly obtained by a third party.

ADMINISTRATIVE LAW - CORPORATIONS LAW - whether s 829(f) Corporations Law creates an obligation that the Australian Securities Commission take into account all information it possesses relevant to a particular decision - whether the Australian Securities Commission is under an obligation to disclose information favourable to the applicant not relied on in making a decision.

ADMINISTRATIVE LAW - CORPORATIONS LAW - whether a reasonable apprehension of bias was raised by the decision maker having a preliminary view concerning issues to be decided - whether a reasonable apprehension of bias or prejudgment of the issue is raised by the same Australian Securities Commission delegate making decisions both to issue a Notice of Hearing under s 829(f) and to conduct a hearing under s 837 Corporations Law - refusal by the decision maker to disqualify himself.

Corporations Law, s 600, s 600(2), s 600(3), s 784, s 829, s 829(f), s 830, s 837, s 1323

Australian Securities Commission Act 1989 (Cth), s 1(2)(c), s 57, s 59(2), s 60, s 102, s 102(6)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, s 6

Evidence Act 1995 (Cth), s 138(1)

Story v National Companies and Securities Commission (1988) 6 ACLC 560 (Applied)
Winter v Australian Securities Commission (1995) 16 ACSR 61 (Distinguished)
Tobacco Institute v National Health & Medical Research Council (1996) 142 ALR 1 (Applied)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Applied)
Neate v Australian Securities Commission (1995) 60 FCR 518 (Followed)
Collie v Behan (1997) 25 ACSR 644 (Followed)
Rose v Bridges (1997) 149 ALR 710 (Applied)
Schokker v Commissioner, Australian Federal Police (1997) 73 FCR 279 (Applied)
Vinton Smith Dougall Ltd v Australian Securities Commission (1997) 23 ASCR 567 (Applied)
Laycock v Forbes (1997) 25 ACSR 659 (Applied)
Re Polites;  Ex parte Hoysts Corporation Ltd (1991) 173 CLR 78 (Applied)
Livesey v New South Wales Bar Association (1983) 151 CLR 288 (Applied)
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (Applied)
R v Commonwealth Conciliation and Arbitration Commission;  Ex parte Angliss Group, (1969) 122 CLR 546 (Applied)

MALCOLM BOYD MCLACHLAN (Applicant) v AUSTRALIAN SECURITIES COMMISSION (Respondent)

SG54 of 1998

FINN J
31 JULY 1998
SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG54  of   1998

BETWEEN:	MALCOLM BOYD MCLACHLAN APPLICANT
AND:	AUSTRALIAN SECURITIES COMMISSION RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		31 JULY 1998
WHERE MADE:		SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG54 of 1998

BETWEEN:	MALCOLM BOYD MCLACHLAN APPLICANT
AND:	AUSTRALIAN SECURITIES COMMISSION RESPONDENT

JUDGE:	FINN J
DATE:	31 JULY 1998
PLACE:	SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

Introduction

The course taken at the hearing of this matter accounts for the varying focus of these reasons.  The matter originally was listed for the purpose of determining both an objection to competency and a strike out motion.  In the event the parties agreed, save in relation to one discrete part of the application, that the application itself be heard and determined.  As to the part excepted, I heard the objection to competency and the strike out motion.

I should also note that this application was heard together with a not dissimilar but nonetheless unrelated application brought by the present applicant’s son, a Mr Hamish McLachlan.  The overlap in issues in the two proceedings meant that, for reasons of economy in time and effort, submissions made in the other application were simply adopted in this.  I will note in these reasons where such occurred.  And as separate reasons for judgment have been given in that other matter, I will merely note in more abbreviated form in these reasons the conclusions on the adopted submissions.  They are outlined in detail in those other reasons.

The Application

Malcolm Boyd McLachlan is a representative of, and a director of, Thompson Brindal Ltd (“TB Ltd”), a securities dealer licensed under s 784 of the Corporations Law. In that capacity he apparently conducted trading in shares and options on the accounts of certain of RetireInvest Pty Ltd’s clients. The Australian Securities Commission (“the ASC”) has inquired into Mr McLachlan’s conduct in this. It has now appointed Mr Malinaric as its delegate under s 102 of the Australian Securities Commission Act 1989 (Cth) (“the ASC Act”) for the purposes of determining whether a banning order should be made against Mr McLachlan on the ground that the ASC has reason to believe that he has not performed efficiently, honestly and fairly the duties of a representative of a dealer: Corporations Law, s 829(f).

A statutorily prescribed prerequisite to the making of such an order is that Mr McLachlan be given an opportunity to appear at a private hearing conducted by Mr Malinaric and that he be allowed to make submissions and give evidence in relation to the matter: Corporations Law ss 829, 837. A Notice of Hearing containing both Mr Malinaric’s “decision” to consider the making of a banning order and the conduct complained of were served on Mr McLachlan. Mr McLachlan has sought to challenge that “decision” as also a range of decisions said to have been made subsequently by Mr Malinaric. All are said to constitute either decisions or conduct under s 5 or s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR”). For present purposes the ASC (which is now the respondent to the application) concedes that all such decisions, save the first, were “conduct” for s 6 purposes. In relation to those parts of the application which I am to hear and determine, the challenges made in respect the ASC’s conduct are that some number of breaches of natural justice have occurred or are likely to occur.

The Statutory Setting

Part 3, Division 6 of the ASC Act deals with ASC hearings. Insofar as presently relevant, s 57 of that Act provides:

“57(1) [Application of section]        This section applies where a national scheme law of this jurisdiction requires the Commission to give a person an opportunity to appear at a hearing and to make submissions and give evidence to it.

57(2)  [Place and time for hearing] The Commission shall appoint a place and time for the hearing and cause written notice of that place and time to be given to the person.”

The manner of conduct of a hearing is prescribed in s 59.  It provides (inter alia) that:

“59(1) [Hearing may be informal]    A hearing shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of national scheme laws of this jurisdiction and a proper consideration of the matters before the Commission permit.

59(2)  [Commission not bound by rules of evidence]         At a hearing, the Commission:

(a)is not bound by the rules of evidence;

(b)may, on such conditions as it thinks fit, permit a person to intervene;  and

(c)shall observe the rules of natural justice.”

I merely note in passing that the Notice of Hearing sent to Mr McLachlan was based (i) on s 57(2), to the extent that it appointed the place and time for the hearing; and (ii) on s 59(2)(c), insofar as it identified the conduct (and particulars thereof) upon which the ASC was relying to form its belief concerning Mr McLachlan.

Finally, s 60 provides:

“60     The Commission shall take into account:

(a)evidence given, or a submission made, to it at a hearing;

…

in making a decision on a matter to which the evidence or submission relates.”

Part 7.3, Division 5 of the Corporations Law deals with excluding persons from the securities industry. Section 829 insofar as presently relevant provides:

“829    Subject to section 837, the Commission may make a banning order against a natural person (other than a licensee) if:

…

(f)the Commission has reason to believe that he or she has not performed efficiently, honestly and fairly the duties of:

(i)        a representative of a dealer.”

A banning order is made by way of a written order prohibiting a person permanently or for a specified period from doing an act as a representative (inter alia) of a dealer: Corporations Law, s 830.

Finally s 837, to which s 829 is subject, provides that:

“837(1)          [Commission not to make certain orders without hearing] The Commission shall not:

…

(e)make, otherwise than by virtue of paragraph 828(a) or (d) or 829(a), (b) or (c), an order under section 830 against a person;

...

unless the Commission complies with subsection (2) of this section.

837(2) [Right to appear and be heard]        The Commission shall give the applicant, licensee or person, as the case may be, an opportunity:

(a)to appear at a hearing before the Commission that takes place in private;  and

(b)to make submissions and give evidence to the Commission in relation to the matter.”

Background Setting

The course followed by the ASC and then by Mr Malinaric as its delegate leading to the s 837 hearing, and the relevant related dealings between Mr McLachlan and Mr Malinaric, were as follows.

(i)ASC officers having previously conducted investigations into the conduct of Mr McLachlan, on or about 10 December 1997 two ASC officials supplied Mr Malinaric with a memorandum containing a submission relating to potential banning action against Mr McLachlan together with eight lever arch files containing copies of the documents referred to in the memorandum.

(ii)It is Mr Malinaric’s uncontested evidence that, solely on the basis of the information contained in the memorandum and its accompanying documents, he decided to issue a Notice of Hearing to Mr McLachlan based on s 829(f) of the Corporations Law. This he did on 28 January 1998.

(iii)Mr McLachlan’s solicitors were later provided with copies of the memorandum and the documents in the eight files.

(iv)The Notice of Hearing specified seven forms of conduct upon which the ASC relied for its s 829(f) belief. That conduct occurred during the period that TBL traded in shares and options on the accounts of clients of a Mr Laming who was a proper authority holder of RetireInvest Pty Ltd (“RetireInvest”). Particulars of that conduct were provided in the notice.

(v)During 1997 the Australian Stock Exchange Ltd (“the ASX”) had, through one of its officers (a Mr Francese), been furnished with a report concerning TBL (“the ASX Report”).  Mr McLachlan’s solicitors wrote to the ASC on 6 March 1998 informing it that (a) the ASX Report was prepared using information obtained from Mr McLachlan in breach of the rules of natural justice;  (b) the Notice of Hearing (the “Charge” as it was referred to) was based in some degree on the ASX Report and on information obtained by Mr Francese in preparing it;  (c) Mr Malinaric’s decision “to bring charges” against Mr McLachlan was “based on the tainted Report and information”;  and (d) the “charges” should be quashed.

(vi)For the purposes of conducting a s 837 hearing a preliminary meeting was held by Mr Malinaric on 2 April 1998. At that meeting Mr Malinaric was requested to, but refused:

(a)to adjourn the s 837 hearing pending application to challenge the validity of the AXS report;

(b)to give discovery of communications between the ASC and ASX relevant to the issue of the Notice of Hearing;

(c)to give discovery of material put before the Federal Court in proceedings brought by the ASC against Mr Hamish McLachlan under s 1323 of the Corporations Law – I note the applicant was not a party to that proceeding;  and

(d)to identify the materials relied upon in the decision to issue the Notice of Hearing that originated with the ASX.

(vii)On 24 April 1998 Mr McLachlan’s solicitors wrote to Mr Malinaric in terms (inter alia) that:

“It has also come to my client’s attention that in your capacity as regional general counsel for the South Australian Regional Office of the Australian Securities Commission you filed and prosecuted an application in the Federal Court in which the Australian Securities Commission was the named applicant and my client’s son, Hamish McLachlan, was the named respondent.  The matters canvassed in that action are the same matters to be presently considered.

In your capacity as the solicitor advising the ASC you have no doubt perused material, spoken to potential witnesses, formed views and advised on aspects of the matter which makes it inappropriate that you should now hear our client’s matter on the principles of apprehended bias.  Those principles require that you should disqualify yourself because in the minds of reasonable persons there would be a substantial distrust that you may not be discharging your duty to decide the case.

My client requests that you disqualify yourself from further acting in the present proceedings.”

The same letter reiterated Mr McLachlan’s objection to the ASX Report and to Mr Malinaric’s reliance on it.

(viii)On 27 April 1998 Mr Malinaric responded to the above letter.  As to the request that he disqualify himself, he observed:

“With regard to the fact that I was the solicitor on the record for the ASC in the proceeding to which you refer in the sixth and seventh paragraphs of you letter, I note that I did not have the personal conduct of that proceeding.  As Regional General Counsel in South Australia, all court proceedings involving the ASC are conducted in my name and I have responsibility for their conduct.  While I am aware in a general way of the issues and material used in that application, the inferences that you draw in the first sentence of the seventh paragraph of your letter are not correct.

My being the solicitor on the record for the ASC in that application has not caused me to be actually biased in relation to the present hearing, and in my opinion no reasonable observer who was aware of all the relevant facts would have a reasonable perception that I might be biased.  Accordingly, I am not prepared to disqualify myself as the ASC’s delegate to hear this matter.”

In relation to the objection taken to making use of the ASX Report Mr Malinaric had this to say:

“On my present understanding of your client’s contentions, I am not persuaded that the grounds of the challenge to the report are of a nature that I should adjourn the hearing in relation to the banning order concerning your client until that application is determined.  As the ASC’s delegate conducting the hearing, I am not bound by the rules of evidence, in particular any evidentiary rule excluding unlawfully obtained material.

The extent to which I shall place any reliance on the ASX report will be subject to my being satisfied as to its relevance and credibility.  Mr McLachlan may challenge the probative value of the report and its relevance to the question whether a banning order should be made.  If the manner in which the report was compiled affects its probative value, he will be able to rely on that matter in the course of the hearing.”

(ix)On 28 April 1998 Mr McLachlan commenced proceedings in the Supreme Court of South Australia against the ASX and Mr Francese seeking variously a declaration that the ASX Report be held void, its quashing and the destruction of draft reports, as well as the destruction of transcripts of interview of Mr McLachlan and others.

(x)On 29 April the present application was filed.  It challenges six “decisions”/items of “conduct” of Mr Malinaric.  These are:

(1)the decision to issue to notice;

(2)-(5)  the four matters refused at the 2 April preliminary hearing;  and

(6)       the 27 April refusal by Mr Malinaric to disqualify himself.

(xi)It should be noted that Mr Malinaric as delegate of the ASC has also been engaged in like banning order proceedings involving Mr Hamish McLachlan and Mr Laming.

The Decisions/Conduct Challenged

For ease in exposition I will refer to the various matters challenged as “decisions” though it is accepted that, if open to challenge at all, these decisions (with one alleged exception) are simply “conduct” for ADJR Act purposes.

Decision 1:  The Belief Held when the Notice of Hearing was Issued

The applicant’s case here is that before deciding both to conduct a s 837 hearing and, then later, to make a banning order, s 829 requires the ASC to determine whether it has reason to believe that Mr McLachlan has not performed efficiently, honestly and fairly the duties of a representative of a dealer. It is that “decision” they seek to challenge in this application on the basis of its being tainted by the ASX Report which is being impugned in the Supreme Court proceedings. This so-called s 829 decision is said to be reviewable under the ADJR Act by analogy with a decision to commit for trial: Lamb v Moss (1983) 49 ALR 533; the ASC having to satisfy itself that a prima facie case existed against Mr McLachlan before proceeding to a s 837 “trial”: Story v National Companies and Securities Commission (1988) 6 ACLC 560 at 573.

I am not in this proceeding called upon to determine the substance or otherwise of Mr McLachlan’s complaint.  Nonetheless, this alleged “decision” is subject to attack by the ASC in both its objection to competency and strike out motion.  It is on these bases that I will deal with the matter.

It is the case, as Young J indicated in Story’s case at 573 in relation to an analogous provision of the former Securities Industries Code (NSW), that the ASC ought so to inform itself concerning Mr McLachlan before deciding to have a s 837 hearing that, if after the hearing the evidence was unchanged it would “seriously consider” making a banning order. This need in the ASC inheres in the frame of s 829(f) itself but would probably be there in any event in consequence of those principles of fair dealing and of good administration properly to be expected of a governmental agency: see Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1 at 41; Kelson v Forward (1995) 60 FCR 39 at 66.

It equally is the case that the decision to issue a Notice of Hearing under s 57(2) of the ASC Act for the purpose of a s 837/s 829(f) hearing is not one which can of itself result in any determination of rights or liabilities or of any substantive issue: “[i]t merely puts in train a process which may lead to a decision which has consequences of that kind”: Winter v Australian Securities Commission (1995) 16 ACSR 61 at 67.

The objection to competency taken by the ASC is that, when it issued its Notice of Hearing on 28 January, the ASC had not taken a “reviewable decision” and had not engaged in “reviewable conduct” for the purposes of the ADJR Act. The objection is well founded.

Section 829(f) does, as I have indicated, presuppose that the ASC will inform itself concerning Mr McLachlan and in light thereof will determine whether to proceed to a hearing for the purposes of thereafter deciding whether to make a banning order. If after conducting a hearing the ASC then has the “reason to believe” required by s 829(f), the ASC may proceed to make such an order. But it is not required to have or to form – and no consequence could follow for s 829(f) purposes from its having or forming – that belief prior to its having conducted a s 837 hearing. The ASC is, after all, obliged to “take into account” evidence given and submissions made at the hearing. This is a significant obligation: see Tobacco Institute v National Health & Medical Research Council (1996) 142 ALR 1 at 13 and the cases referred to therein.

At the time the ASC determines to proceed to a s 837 hearing it is not then required by the statute to make “an intermediate decision” concerning Mr McLachlan such as would constitute “a reviewable ‘decision’ ... for which provision is made by or under statute”: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337. So clearly is this the case in my view that it is unnecessary to burden these reasons with citation from Bond’s case and with discussion of its application to the present.  I would merely note that in Neate v Australian Securities Commission (1995) 60 FCR 518 Drummond J came to a like conclusion concerning a Notice given under s 600(2) of the Corporations Law. That case for all relevant purposes is indistinguishable from the present. As a matter of comity I would follow it in any event.

Insofar as it is alleged that the ASC has engaged in reviewable conduct, that conduct is the ASC’s reliance upon the ASX Report for the purpose of making the so-called “829(f) prima facie case” decision or else the proposed so-called “s 837 trial decision”.

As best I can understand the applicant’s analysis of the processes involved in the making of a s 829(f) banning order, at least four decisions would seem to be required to be made. These are:

(i)the s 829(f) “prima facie case” decision leading to the issue of a Notice of Hearing;

(ii)       the decision to issue a Notice of Hearing;

(iii)      the decision that the ASC has the requisite reason to believe;  and

(iv)      the decision to make a banning order.

The effect of my previous holding, as also of Neate’s case, is that (i) and (ii) of the above are not reviewable decisions for the purposes of the ADJR Act. The best that can be said in the circumstances of the conduct presently complained of is that it was engaged in for the purpose of making these two “decisions”. As such, as Spender J held in Collie v Behan (1997) 25 ACSR 644 in circumstances not different in principle from the present, that conduct is for that reason not reviewable under s 6 of the ADJR Act. Whether or not it is the case (it is unnecessary here to decide) that the ASC would make a reviewable decision as and when it took decision (iii) above, the conduct here complained of was not engaged in for the purpose of that decision. As Mr Malinaric indicated in his letter of 27 April 1998, the extent to which any reliance would be placed on the ASX Report for that purpose would be a matter to be agitated at the s 837 meeting.

Accordingly I uphold the objection to competency on the bases that the decision/conduct complained of is not reviewable under the ADJR Act.

Decision 2: The 2 April 1998 Refusal to Adjourn the s 837 Hearing

It is agreed that, in light of a subsequent adjournment granted, this decision has been overtaken by events, with the consequence that it would be futile to pass upon it.  The application is no longer prosecuted in relation to it.

Decision 3:  The 2 April 1998 Refusal to give Discovery of Communications between the ASC and the ASX Relevant to the Issue of the Notice of Hearing.

And

Decision 5:  The 2 April 1998 Refusal to Identify materials of ASX Origin Relied upon in Deciding to Issue the Notice of Hearing

Objection to competency is not taken to either of these refusals insofar as they are characterised as “conduct” for ADJR Act purposes. Of this, I would note in passing that the information sought and refused in each instance related to a matter (ie the issue of the Notice of Hearing) that, as I have earlier indicated, was not itself either a decision or conduct for ADJR Act purposes. Nonetheless it is alleged that the refusals will each result in the s 837 hearing proceeding in breach of the rules of natural justice. It is on this basis that I have been asked to hear the application.

The underpinning of the applicant’s natural justice challenges is as follows. Mr Malinaric relied in some degree (the extent thereof is in dispute) on the ASX Report and ASX examinations of (inter alia) Mr McLachlan in making his decision to issue the Notice of Hearing. That Report has been challenged in the Supreme Court proceedings on grounds (a) of want of authority in the ASX to carry out the investigation into TB Ltd and to make its report; and (b) of lack of procedural fairness in the investigation itself. On the assumption that the Supreme Court proceedings are successful, the Report and the transcripts of interviews are likely to be held void or quashed. But Mr Malinaric has already relied upon such material in deciding to issue the Notice of Hearing and he will have relied upon material which ought to have been excluded from his consideration because it will have been illegally or invalidly entertained. Accordingly (re Decision 5) Mr McLachlan is entitled to know what was the ASX material upon which Mr Malinaric relied in reaching his decision to issue the Notice of Hearing. And (re Decision 3) he was entitled to discovery of all that passed between the ASX and ASC for the purpose of being able to test the extent to which Mr Malinaric’s “reasonable belief” (as Mr McLachlan describes the “decision” prior to the issue of a Notice under the ASC Act s 57(2)) was based on material which is void or should be quashed. A subsidiary basis for the challenge on Decision 3 is that not all of the information provided by the ASX to the ASC was necessarily included in the eight folders given Mr Malinaric and discovery is required of all of that information so that Mr McLachlan can ascertain the extent to which information favourable to him was not considered by Mr Malinaric. This subsidiary claim for discovery relies in part upon similar arguments to those advanced to challenge Decision 4. It will be considered below together with that decision. Finally, I should reiterate, that Mr Malinaric has supplied Mr McLachlan with all of the material on which he relied in deciding to hold a s 837 hearing; he has in the Notice of Hearing particularised the conduct complained of; and he has acknowledged his duty to accord procedural fairness at the hearing.

The challenges to Decision 5 and (insofar as presently relevant) Decision 3 are both premature and misconceived. They are directed to information originating from the ASX and possessed by the ASC that either was relevant to the issue of, or was relied upon by Mr Malinaric in deciding to issue, the Notice of Hearing. In other words, while the refusals impugned occurred on 2 April 1998 at the preliminary hearing, the actual “decisions” Mr McLachlan seeks to impugn after obtaining access to the information sought are what I have referred to as the s 829(f) “prima facie case” decision or else the “decision” to issue the Notice of Hearing – decisions, or for that matter conduct, which as I have held are not reviewable under the ADJR Act. At best the application seems to suggest that those decisions will have a flow-on effect into the s 837 hearing in that matters will then be considered which ought never have been relied upon in the “prima facie case” decision. To put it at its highest a breach of natural justice is apprehended at (or presumably after) the s 837 hearing.

It is when one comes to identify what that breach might be that the vices in this application become apparent.

To begin with the trite, the ASC’s responsibility to Mr McLachlan is to observe the rules of natural justice.  It is not to provide discovery as such and this is belatedly conceded by the applicant.  To make out that Mr Malinaric has failed to discharge the ASC’s responsibility, it is insufficient for it to be shown that better or fairer procedures could have been adopted by Mr Malinaric.  It must be shown that those adopted were unfair in the circumstances:  Rose v Bridges (1997) 149 ALR 710 at 717. While, for example, it may be able to be shown that it would have been better or fairer for the ASC not to have relied upon ASX Report and investigation (assuming these to be open to successful challenge) – and I express no view on any of this – such reliance cannot be impugned unless it can be shown actually to be unfair in the circumstances.

Turning to the ASX Report and the transcripts of interviews, etc. If it be found that the ASX investigation occurred without authorisation and/or in breach of the rules of natural justice, that finding would be likely to have the consequence of precluding the ASX from founding subsequent action/decision upon its Report, the more so if the Report was quashed. What such a finding would not of itself do would be to put the ASC in breach of its natural justice obligation to Mr McLachlan were it to obtain possession of the Report etc and to rely upon a part or parts thereof in making a banning order under s 829(f). Before such a breach could be said to have occurred it would be necessary to show, not merely that the ASX breached its duties to Mr McLachlan, but that the ASC in acting as it did in the circumstances was actually guilty of procedural unfairness. It is at this point that the applicant’s case fails and for two reasons.

First, Mr McLachlan makes the global claim that if the ASX Report is quashed, both it and the evidence on which it was based would have been illegally and invalidly obtained and hence could not be used by the ASC.  The apparent basis of this assertion is unclear, although it seems to be suggested that if declared void the information both contained in the Report and gathered by the ASX itself becomes “void” information.  Such information could only be used, so it is said, if the ASC were then to gather it independently using its own powers notwithstanding that it already knew and was possessed of that information.  I am unable to understand why such a counter-factual consequence should follow from the quashing of a report as such.  What is sought is the creation of a fiction.  It is one thing to deny the use of information for some reason.  It is another to deny its existence.

Even in relation to bodies bound by the rules of evidence – which the ASC is not: see ASC Act, s 59(2)(a) – both at common law and under the Evidence Act 1995 (Cth) illegally or improperly obtained evidence is not for that reason inadmissible: see eg R v Swaffield (1998) 151 ALR 93; Evidence Act 1995, s 138(1). Admissibility is a matter of discretion involving considerations of fairness and the weighing of competing public policies: see the discussion in Australian Law Reform Commission Report No 26, paras 957ff;  R v Swaffield, esp per Toohey, Gaudron and Gummow JJ.

I am prepared to assume without deciding that information obtained or produced (a) in circumstances involving a breach of the rules of natural justice or (b) by a person mistakenly professing to be authorised to ask for it, can in some instances be said for the purposes of the law of evidence to be information improperly obtained.  But where it is a third party that improperly obtains such information and where a body such as the ASC (not itself being guilty of any impropriety in the matter) later acquires that information whether or not compulsorily, the propriety of the latter’s use of that information depends upon the constraints the law imposes on it in its decision making.

The ASC clearly is not precluded as of course from making use in its decision making of information improperly obtained by a third party.  It is not to be in a worse position than a body bound by the rules of evidence:  cf Schokker v Commissioner, Australian Federal Police (1997) 73 FCR 279 at 286. Importantly, such an automatic preclusion could well jeopardise the ASC’s performance, for example, of functions aimed at protecting the public: see eg ASC Act, s 1(2)(c); Vinton Smith Dougall Ltd v Australian Securities Commission (1997) 23 ASCR 567.  In the present case the relevant constraint on the ASC suggested by the applicant is the obligation to observe the rules of natural justice.

For that constraint to be invoked successfully it would need to be demonstrated, not that the information to be used was improperly obtained, but that the use, or the particular use, to be made of it or of some part or parts of it was procedurally unfair in the circumstances.  I would instance, for example, the use of a particular part of the information that was adverse to a person such as the applicant but was of such dubious reliability because of the improper manner of its compilation that it would be unfair to require that a response be made to it.  The material in question may, for example, be unqualified when it requires systematic qualification;  it may be grossly incomplete; etc.

In a case such as the present where the alleged improperly obtained material was made up of a variety of documents, etc of differing provenance, one would expect that at the most it would only be a part (if that) of that material that could not be used by the ASC for natural justice reasons.  Here, for instance, business records obtained by the ASX from TB Ltd were passed on to the ASC.  Save in exceptional circumstances, it is difficult to see how objection could properly be taken on natural justice grounds to their use.  It equally would be quite exceptional where there was a mixed corpus of materials, for the use of all parts of it to be found objectionable.

In the present application Mr McLachlan has proceeded on the inappropriate basis that all materials of ASX origin cannot be used.  What in consequence he has not done is to indicate what, if any, particular part or parts of the materials known to have come from the ASX should not be able to be used and the reason why the use of that part or parts would involve the ASC in a breach of its natural justice obligation.  In this the application is deficient.

Mr Malinaric has supplied Mr McLachlan with the materials he relied upon for the purposes of proceeding to a s 837 hearing. While all of the documents of ASX provenance contained in the eight folders given Mr McLachlan have not so far been identified, there are some about which there can be no doubt in this respect as Mr Dal Cin, one of Mr McLachlan’s advisers attests. I refer for example to a draft of the ASX Report and the transcripts of interview. If there were documents containing information sensitive to a possible natural justice challenge if used by the ASC these would rank high amongst them.

In these circumstances it is not open to Mr McLachlan to take refuge behind the claim that he does not know all of the documents in the folders of ASX origin.  A sufficiently important number are known.  He properly is to be expected, if there is any substance at all in his application, to be able to particularise respects in which, and why, a breach of natural justice would occur if Mr Malinaric was to use particular portions of the information known to Mr McLachlan to be of ASX origin.  This Mr McLachlan has not done.

More importantly Mr Malinaric has not been addressed on why the use of particular parts of the ASX materials would be objectionable and on the reasons therefor.  And Mr Malinaric has not, in consequence, been given an opportunity to respond to objections so raised, though from his correspondence and otherwise he has indicated an awareness of his obligation to accord natural justice.

In my view, the s 837 hearing is the proper place at which the natural justice objection should be taken to the use of ASX materials and the precise basis for it made plain. And it may well be that even if some part of that material is considered objectionable this in turn may be able to be “cured” at the hearing itself: cf the distantly analogous situation of the cure of a procedurally flawed decision by a later decision or appeal: see Aronson and Dyer, Judicial Review of Administrative Action, 476ff;  De Smith, Woolf and Jowell, Judicial Review of Administrative Action, paras 10-020ff. Whether this be possible or not, the s 837 hearing nonetheless provides the crucible for the main discharge of the ASC’s natural justice obligation to Mr McLachlan. It is there that the material upon which Mr Malinaric intends to draw is to be subjected to testing and submission. And unless and until that occurs it would be quite improper to anticipate that a breach of the rules of natural justice is likely to occur. It may well be the case that even if the ASX Report is quashed, the use Mr Malinaric ultimately proposes to make of it and of information on which it relies, will be quite unobjectionable on natural justice grounds. This application in relation to Decisions 3 and 5 is premature.

Decision 4:  The 2 April 1998 Refusal to Discover Material put before the Federal Court in ASC Proceeding against Hamish McLachlan

The premise of the challenge made to this decision (as also the subsidiary challenge to Decision 3) is that the material placed before the Federal Court (or produced by the ASX but not contained in the eight folders) may well have been relevant to the conduct being inquired into for the purpose of making a s 829(f) banning order against Mr McLachlan. As such, so it is claimed, it ought be disclosed to him. The reasons why disclosure is said to be necessary were enlarged upon at length in the parallel proceeding involving Hamish McLachlan and were simply adopted without further substantial submission in this proceeding.

In my reasons for judgement in the Hamish McLachlan matter I indicate in some detail why I rejected the like submission in that case.  Those reasons are equally applicable here and I incorporate them by reference. Here I will simply reiterate my conclusions for rejecting the “discovery” sought by Mr McLachlan.

The basis of the claim to have disclosed all relevant materials held by the ASC, but not contained in the eight folders, is submitted to be that in order that the s 837 hearing comply with the requirements of proper consideration and natural justice, Mr McLachlan should be entitled to make his own assessment of relevant material held by the ASC, rather than simply accept whatever assessments were used by the ASC in excluding materials from the folders. In any event, it is said, the ASC cannot simply rely upon a “sub-set” of the information available to it by providing Mr Malinaric with only a part (the eight folders) of the information held by it. The entirety of the relevant information held must be considered by it.

Of my reasons for rejecting this submission in the Hamish McLachlan matter I need only refer expressly to the following here.

Such is the effect of a banning order that there should be corresponding substance and seriousness in the matters relied upon by the ASC to furnish the “reason to believe” required by s 829(f). Importantly, though, s 829(f) (unlike s 60 of the ASC Act) does not prescribe the considerations or the information to which the ASC is “to have regard” (or “take into account”) in arriving at that reason for belief: on the nature of the obligation imposed by the “have regard to” etc formulae, see Re R J D Hunt;  Ex p Sean Investments (1979) 53 ALJR 552 at 554; Tobacco Institute v NH&MRC (1996) 142 ALR 1 at 12-13. Rather, it leaves it to the ASC to identify (i) the particular respects in which it will consider whether, for s 829(f) purposes, a person has not performed his or her duties efficiently, honestly and fairly; and (ii) the evidence of non-performance which it considers relevant thereto and on which it intends to rely: see Winter v Australian Securities Commission (1995) 16 ACSR 61 at 67; Laycock v Forbes (1997) 25 ACSR 659 at 670; though, given the terms of s 60 of the ASC Act, Mr Malinaric must take into account any evidence to be given or submission made by Mr McLachlan at the s 837 hearing.

In other words s 829(f) so circumstances the ASC that (a) it can disregard respects other than those inquired into, which might also furnish reason for a s 829(f) belief; and (b) it can generate and delineate the body of information that both is relevant to the actual matters to be considered and is sufficient to provide reason for the required belief. This is subject, of course, to the well-known judicial review constraints particularly of good faith, Wednesbury unreasonableness and relevant/irrelevant considerations:  see eg Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39ff.

Absent a statutory “have regard to” obligation, and subject to the constraints noted, what the ASC does not have to do is to ascertain the existence of, and/or to take into account, all information it in fact possesses which may be shown to be relevant in some way to the matters to be considered – and it cannot be faulted merely for failing to inquire as to the existence of such information:  on the “duty to inquire” see eg Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; and see generally, Aronson & Dyer, Judicial Review of Administrative Action, 302ff.

There is obvious reason for the latitude so given the ASC. Delinquent conduct can come in a multiplicity of guises from the most subtle to the most blatant. And it may, variously, be an occasional, recurrent, or pervasive feature of a representative’s actions. More importantly to reach the belief required by s 829(f) in some instances, the ASC may need to engage in a fine and exhaustive survey of all information available to it. In others, given the subject inquired into, a particular piece or pieces of evidence may be so cogent, overwhelming and damning as to make further inquiry superfluous.

In the present matter the applicant is seeking to impose on the ASC, both in the manner of its consideration of his case and in his access to its information, an obligation inconsistent with that presupposed by s 829(f). And he seeks to do this impermissibly under colour of the ASC’s duty to observe the rules of natural justice.

I would note additionally that (i) the applicant has disclaimed any allegation of bad faith in the ASC in its marshalling and use of material against him;  (ii) while Mr McLachlan asserts that the ASC ought to have had regard to all relevant information possessed by it, he has not asserted – let alone been able to point to – any relevant consideration of which the ASC was bound to take account but failed (or would fail) so to do:  cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd, above, at 39; (iii) there is no plausible basis for any assertion that the ASC’s conduct is leading it to a decision that will be tainted by Wednesbury unreasonableness;  and (iv) there is not the slightest justification in the evidence for any assertion that the ASC positively precluded Mr Malinaric from obtaining access to additional information should he have had an actual need to do so.

The submission that the ASC cannot as a matter of natural justice rely on material adverse to Mr McLachlan while withholding other (possibly favourable: see Decision 3 subsidiary submission) material is likewise misconceived. The ASC’s natural justice obligation did not extend to the disclosure of information not relied upon and not adverse to Mr McLachlan in respect to conduct being considered for s 829(f) purposes. Such non-disclosure did not compromise Mr McLachlan’s right to a fair hearing: see generally Aronson and Dyer, above, at 531ff; Wade and Forsyth, Administrative Law, 531ff, (7^th ed).  It was not productive of unfairness in the circumstances.

Decision 6:  Mr Malinaric’s 27 April 1998 Refusal to Disqualify Himself

The request made to Mr Malinaric to disqualify himself related to his being solicitor on the record for the ASC in the Federal Court proceedings against Hamish McLachlan.  Notwithstanding that his refusal related simply to that supposed ground for disqualification, the claim of apparent bias has been more widely cast in argument and the parties are content that I proceed to deal with the claim as presented.

It is now contended that the circumstances give rise to a reasonable apprehension of bias for the following reasons.

(i)Mr Malinaric made the s 829(f) “prima facie case” decision and is now purporting to conduct the s 837 “trial”;

(ii)       he is solicitor on the record in the ASC Federal Court proceedings;  and

(iii)      he has refused requested adjournments and discovery.

The test to be applied in determining whether Mr Malinaric should disqualify himself – the Livesey test – is not in contest between the parties (although the ASC has placed particular emphasis upon the explanation of it in Re Polites;  Ex parte Hoysts Corporation Ltd (1991) 173 CLR 78 at 85-87). That test is that:

“a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it”:  Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4.

Insofar as concerns Mr Malinaric being solicitor on the record for the ASC in the Federal Court proceedings, there is no proper basis on which a fair-minded person might reasonably apprehend that his participation such as it was in that proceeding, might have caused him to prejudge the s 829(f) question as it related to Mr Malcolm McLachlan: cf Webb v The Queen (1994) 181 CLR 41 at 46; Minister for Immigration, Local Government and Ethnic Affairs v Mok (1995) 55 FCR 375. That proceeding was against Mr McLachlan’s son alone. While I am informed that it relates in some way to RetireInvest matters, I note that the conduct alleged against Mr McLachlan for s 829(f) purposes does not involve joint activity with his son. I have not been provided with any of the documents filed in that case nor has evidence been adduced enlarging upon it. In any event the explanation given by Mr Malinaric in his 27 April letter of the nature of his involvement in the Hamish McLachlan proceeding bespeaks a level of operational detachment from the matter that was inapt to generate the apprehension required by the Livesey test.  The reasonable fear that whatever Mr Malinaric has learned in the Hamish McLachlan proceeding has so prejudiced him in favour of a conclusion in the Malcolm McLachlan matter has simply not been established at all let alone “firmly established”:  Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100; see also R v Australian Stevedoring Industry Board;  Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116.

As to the inferring of bias from the decisions made by Mr Malinaric on 2 April adverse to Mr McLachlan, I need only say that these may have produced a reaction of disappointment or more in Mr McLachlan.  They provide no basis in themselves for apprehending bias.  I should add that such of those decisions as I have been asked to consider in this application, I have found to be unobjectionable and it cannot be that the aggregation of adverse decisions properly made itself provides a basis for a bias challenge.

The only matter that requires more protracted consideration is the claim based on Mr Malinaric’s being the person both who decided to issue the Notice of Hearing and who will make, if at all, the s 829(f) banning order.

Additional Factual Material

Before considering the issues said to be raised by his so acting, it is important to emphasise that Mr Malinaric did not participate in any way in the investigations leading to the compilation of the eight folders of material and the preparation of the submission of 10 December 1997 recommending that a banning order be made.

The procedure adopted by the ASC is revealed, first, in the submission made to Mr Malinaric as ASC delegate by two ASC officials and, then, in the letter of 28 January 1998 that accompanied the Notice of Hearing he in turn issued.

The burden of the submission is revealed in its opening paragraphs:

“1.      The Recommendation

1.1It is recommended that you, as delegate of the Australian Securities Commission (ASC) exercise the authority delegated to you to make an order pursuant to subsection 830(1) of the Corporations Law (the Law) prohibiting Malcolm Boyd McLachlan (MBM) from doing an act as a representative of a dealer or of an investment adviser.

1.2The recommendation follows enquiries by the ASC into allegations of unauthorised trading in securities conducted on the accounts of clients of RetireInvest Pty Ltd (RET) utilising the broking services of Thompson Brindal Limited (TBL).

2.Basis for Recommendation

2.1It is submitted that the matters set out herein are sufficient to give you, as a delegate of the ASC, reason to believe that MBM has not performed efficiently, honestly and fairly the duties of a representative of a dealer within the meaning of sub-paragraph 829(f)(i) of the Law.”

The letter of 28 January 1998 began with the following:

“BANNING ORDER

I have been appointed delegate to consider whether a banning order pursuant to section 830 of the Corporations Law should be made against you. On the basis of the information before me I have reason to believe that you may not have performed efficiently, honestly and fairly the duties of a representative of Thompson Brindal Limited. Section 837 of the Law requires that you be given an opportunity to appear at a hearing and to make submissions and give evidence.

Accordingly, I have issued a Notice of Hearing and this is enclosed.”

I would note, finally, that the Notice of Hearing, in relating Mr McLachlan’s case to the statutory procedures of the Corporations Law and having referred to s 829(f) and s 830 contains the following:

“E.The ASC has reason to believe that you have not performed the duties of a representative of TBL efficiently honestly and fairly, particulars of which are set out in the Schedule to this notice.

F.The ASC may therefore make a banning order against you pursuant to section 830 of the Law prohibiting you either permanently or for a specified period from doing an act as a representative of a dealer or an investment adviser or both.

G.Section 837 of the Law requires the ASC, before making a banning order, to give you an opportunity:

(a)       to appear at a hearing before the ASC that takes place in private;  and

(b)to make submissions and give evidence to the ASC in relation to the matter.”

The bias issue

Section 600 of the Corporations Law, in dealing with the prohibition of a person from managing a corporation, prescribes a procedure somewhat analogous to that required by s 829(f). Under s 600(2) the ASC may give a “relevant person” (a defined term) a notice requiring him or her “to show cause why the Commission should not serve on the person a notice under [s 600(3)]”. Under s 600(3) after a show cause notice has been given and the person concerned has been given an opportunity to be heard in relation to the matter, the ASC “shall, unless it is satisfied that it is not appropriate to do so, serve on the person a notice … prohibiting the person … from managing a corporation” for the period specified in the notice.

In Winter v Australian Securities Commission, above, a decision involving s 600, von Doussa J expressed the view by way of dictum that (at 68):

“Under s 600(2) the decision-maker who decides that a notice to show cause should be given is required to consider the material available to the ASC and form a judgment about it. The decision reflects a prima facie conclusion that in all the circumstances it is appropriate that the director be prohibited from managing a corporation. If the same person were then to conduct the hearing under s 600(3) a fair minded member of the public might entertain a reasonable apprehension of bias: cf Laws v Australian Broadcasting Tribunal. In the present case, the power of the ASC to delegate the performance and exercise of the different functions and powers under ss 600(2) and 600(3) to different people provides the means of avoiding this consequence.”

The present applicant has submitted that a like view should be taken of a decision maker who for s 829(f) purposes decided to issue a Notice of Hearing and then sought to conduct the hearing.

The respondent, in contrast, has submitted that all that Mr Malinaric decided was that on the information before him he had reason to believe that Mr McLachlan may not have performed the duties of a representative efficiently etc and this was providing him with the opportunity prescribed by s 837. He was following the statutorily prescribed path to making a s 829(f) judgment, not engaging in pre-judgment. Reliance in this was placed upon the decision of Young J to the above effect in Story v National Companies and Securities Commission, above, on a provision relevantly similar in terms to s 829(f).

Plainly s 829(f), even when read in light of s 837, is not cast in terms that carry the necessary implication that separate delegates of the ASC are required to take the decisions (a) to issue a Notice of Hearing and (b) both to conduct the s 837 hearing and to make a banning order. Nor do I consider that the test relating to the reasonable apprehension of bias imposes that requirement on the ASC as a matter of practical necessity in all cases: see Story’s case;  above.

As I have indicated earlier in these reasons, in deciding to issue a Notice of Hearing for s 829(f) purposes, the ASC delegate has to form a view of the conduct of the person in question such that on the information then possessed, the making of a banning order would be seriously considered if it remained unqualified and unexplained. The forming of that view does not necessarily have the consequence that the delegate concerned should thereby be taken to have reasonably engendered a suspicion that he or she may not bring to the s 837 hearing and to the decision to make a banning order a fair and unprejudiced mind. It is not sufficient for that purpose that that hearing and decision will be by a person who has previously given thought to the subject matter and, having thought about it has formed views or some inclination of mind with respect to it: R v Commonwealth Conciliation and Arbitration Commission;  Ex parte Angliss Group, (1969) 122 CLR 546 at 555.

In Laws v Australian Broadcasting Tribunal, above, Gaudron and McHugh JJ observed that (at 100):

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”

It would be anomalous to infer such a fear of closure of the mind from the making of the decision that circumstances exist such as necessitate giving the opportunity to be heard and, if submissions and evidence are then given, of having them taken into account in relation to the matter: ASC Act, s 60. Whatever may be the case with the "decision" required to be made to issue a s 600(2) show cause notice (cf Winter’s case), a delegate’s decision to issue a Notice of Hearing for s 829(f) purposes is not one that of itself justifies a conclusion of reasonably apprehended prejudgment in relation to that delegate’s further participation in the matter. The bias test has to accommodate itself to the particular statutory function of the decision maker to whom it is sought to apply it: see R v Commonwealth Conciliation and Arbitration Commission;  Ex parte Angliss Group, above, at 553. The scheme of the s 829(f) banning process requires the ASC (whether or not by its delegate: see ASC Act s 102(6)) to form a preliminary view so triggering the s 837 hearing opportunity. It does not for that reason require, nor is it suggestive of, a closing of the mind when that view is formed. On the contrary as s 837 as also s 60 of the ASC Act attest.

Having said this, it may well be that, knowing the actual circumstances of a particular case, the “fair minded observer” would reasonably apprehend that a prejudiced and partial mind would be brought to the later hearing and decision in that case:  cf Law’s case, above, at 87.  For this reason in the present matter it is important to have regard to the actual procedures followed by the ASC up to the making of the decision to issue the Notice of Hearing and to Mr Malinaric’s part in them.

The procedure adopted up to the issue of the Notice of Hearing was a two part one. First ASC officials conducted the investigation leading to the compilation of the eight folders of materials and the submission. Mr Malinaric played no part in this. It was not his responsibility to prepare and compile the ASC case. Secondly, he in turn on the basis of the materials put before him formed the preliminary view that triggered the need for the s 837 hearing. Whatever the possible apprehension Mr McLachlan may have reasonably entertained had Mr Malinaric been the investigator and compiler of the case against him - a role that may have exposed him to adverse matter not necessarily included ultimately in the s 829(f) case – his actual role required no more of him than that he form a preliminary view on the materials presented to him. And as I have indicated already the forming of such a view would not of itself provide the basis for an apprehended bias claim. Something more was needed. In the present case, apart from differences in expression between the letter of 28 January 1998 and the Schedule to the Notice of Hearing concerning the nature of the ASC’s reason to believe – the letter refers to “may not have performed the duties” etc;  the Schedule to “have not performed” – there seems nothing at all in Mr Malinaric’s actions and statements to provide that something more.

I do not regard the differences in expression as being of any moment given they both were made as part of the one communication the purpose of which was to provide Mr McLachlan with notice of his opportunity to be heard in the matter.  The difference is neutral in that context.

I have emphasised the particular and distinctive role that Mr Malinaric performed for this reason.  In Winter’s case, von Doussa J’s view to which I have referred seems to have been informed in part at least by the person making the show cause notice decision having been involved in the creation of the case for its issue with all that that entailed in terms of access to information in the ASC’s possession:  see ibid, 666.

In any event, given that I am concerned with a question to be determined on its particular facts and in a different statutory and factual setting from Winter’s case, it is unnecessary for me to express a concluded view on von Doussa J’s dictum.

I would reject the applicant’s claim as it relates to Mr Malinaric’s role in the matter.

Finally I should say that I do not consider Mr McLachlan’s position is improved by attempting to aggregate the “effect” of the three bias grounds relied upon.  They each are unrelated.  They do not suggest reasonably a pattern from which the necessary apprehension can be inferred.  They cannot do together what they have failed to do individually.

Conclusion

The effect of my conclusions is as follows.  The application as it relates to Decision 1 is incompetent.  The challenges made to Decisions 3, 4, 5 and 6 are rejected.  And the challenge to Decision 2 has been abandoned.  Accordingly I would order that the application be dismissed.

I certify that this and the preceding twenty-six (26) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:
Dated:             30 July 1998

Counsel for the Applicant:  Mr Clayton QC
Solicitor for the Applicant:  Mr Wilkinson
Solicitor for the Respondent:                Ms C Francas
Dates of Hearing:  24, 25 July 1998
Date of Judgment:  31 July 1998