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…

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: [1998] FCA 952
Decision Date: 31 JULY 1998

CaseChat Overview and Summary

McLachlan v Australian Securities Commission involves the applicant seeking judicial review of decisions made by the Australian Securities Commission (ASC). The applicant, McLachlan, disputes the ASC's decision to issue a Notice of Hearing under section 57(2) of the Australian Securities Commission Act (1989) (Cth) and subsequent conduct in the banning order process. The case raises significant issues of administrative and corporations law, particularly regarding the ASC's procedures and the application of natural justice principles.

The primary legal issues addressed in the case are whether the ASC's decision to issue a Notice of Hearing constitutes a reviewable decision and whether the ASC engaged in reviewable conduct in this context. Additionally, the case scrutinizes whether the ASC is obligated to consider all relevant information in its decision-making process and whether there was a breach of natural justice by using improperly obtained information. Another key issue is whether there was a reasonable apprehension of bias due to the decision maker's preliminary views and the refusal to disqualify himself from the proceedings.

The court examined the ASC's actions under the statutory framework provided by the Corporations Law. It found that the decision to issue a Notice of Hearing is not itself a reviewable decision under the Administrative Decisions (Judicial Review) Act. The court also determined that the ASC is not obliged to disclose information favourable to the applicant that was not relied upon in the decision-making process. Furthermore, the court held that the ASC is not required to consider all information it possesses when making a decision under section 829(f). The court rejected the argument of bias, finding no reasonable apprehension due to the decision maker's preliminary views or the refusal to disqualify himself, as there was no evidence of actual bias or prejudgment.

The court dismissed the application, concluding that the ASC's decisions and conduct were within the bounds of the law and did not warrant judicial intervention.

Orders

Orders of the court

The application be dismissed.

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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