ML v Australian Securities and Investments Commission

The applicant sought judicial review of decisions made by the Companies Auditors and Liquidators Disciplinary Board, a Commonwealth authority. The Australian Securities and Investments Commission (ASIC) was the first respondent. The proceedings concerned the jurisdiction of the Supreme Court of New South Wales to review decisions of a Commonwealth authority, particularly in light of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) (ADJR Act) and the *Corporations Act 2001* (Cth). The applicant also sought a stay of the disciplinary proceedings.

The court was required to determine whether the Supreme Court of New South Wales had jurisdiction to grant relief against the Board, given that the Board is a Commonwealth authority and its decisions are subject to the ADJR Act. Specifically, the court had to consider whether section 9 of the ADJR Act, which generally excludes the jurisdiction of State courts to review decisions to which the Act applies, was overridden by provisions of the *Corporations Act*. A further issue was whether the court had the power to grant a stay of the disciplinary proceedings, even if criminal proceedings were contemplated but not yet laid.

The court reasoned that section 9 of the ADJR Act, which precludes State courts from reviewing decisions to which the Act applies, would ordinarily prevent the Supreme Court from making any order that would stop the Board from exercising its powers. However, section 9 is subject to section 1337B(3) of the *Corporations Act*. Section 1337H of the *Corporations Act* mandates that a State Supreme Court must transfer proceedings brought under section 1337B(3) to the Federal Court, unless those proceedings are related to other proceedings already pending in the State court. As there were no such related proceedings, the court was obliged to transfer any proceeding before it under section 1337B(3) to the Federal Court. The court found that the applicant had not invoked jurisdiction under section 1337B, meaning there was nothing to transfer. Consequently, the relief sought fell within the preclusion of section 9 of the ADJR Act. The application for a stay was dismissed, with the court noting that the Board was empowered to exercise its powers even if the conduct in question might constitute an offence, and that there was a public interest in the prompt resolution of disciplinary proceedings.

The application for a stay of the disciplinary proceedings was dismissed. The court also dismissed the notice of motion filed by the applicant and ordered that the applicant pay the first respondent's costs of the motion. An interim non-publication order was made to prevent prejudice to the proper administration of justice.