Otter Gold Mines Ltd v Forrest, B M Deputy President of the Administrative Appeals Tribunal

Otter Gold Mines Limited, the applicant, sought a stay of the decision of the Administrative Appeals Tribunal (AAT) which stayed a decision of the Australian Securities Commission (ASC). The AAT had stayed the ASC's decision to grant Otter a second modification under section 618 of the Corporations Law to allow it to restore itself to its pre-dilution shareholding in Allstate Explorations NL. The stay was made under section 41(2) of the Administrative Appeals Tribunal Act 1975. The applicant challenged the decision of the AAT on the grounds that it had a point of substance to argue and that injustice would flow from the decision. The court held that the applicant had not demonstrated that it had a point of substance to argue that the decision was so unreasonable that no reasonable tribunal could have arrived at it. The applicant had also not demonstrated that injustice would flow from the decision. The court dismissed the application for a stay of the AAT decision with costs.

The court first considered the objection to competency raised by the respondents. The court held that the decision of the AAT was a decision made under an enactment and was therefore reviewable under the Administrative Decisions (Judicial Review) Act 1977. The court assumed for the purposes of the application that it had jurisdiction to review the decision of the AAT.

The court then considered the principles to be applied on an application to the Court to stay an interlocutory decision of the AAT. The court held that the applicant must demonstrate that it has a point of substance to argue and that injustice is likely to flow from the decision. The court noted that the extent to which a point of substance must be clearly demonstrated might vary according to the injustice flowing from the decision.

The court held that the applicant had not demonstrated that it had a point of substance to argue that the decision of the AAT was so unreasonable that no reasonable tribunal could have arrived at it. The court noted that the AAT had taken into account the interests of the persons affected by the review and considered it desirable to grant the stay sought for the purpose set out in section 41(2) of the AAT Act. The court was not satisfied that there was any basis for the submission that the decision made was so unreasonable that no reasonable tribunal could arrive at it.

The court also held that the applicant had not demonstrated that injustice would flow from the decision. The court noted that the applicant had not proffered an undertaking to divest itself of shares acquired under the second modification if it was set aside. The court held that the undertaking proffered after the conclusion of the hearing was not appropriate and did not resolve the difficult question of whether a breach of section 615 of the Corporations Law would have occurred if the AAT set aside the second modification. The court concluded that the application for a stay or suspension of the AAT decision should be dismissed with costs.