Polymath Investors Proprietary Limited and Australian Securities & Investments Commission

This matter came before the Administrative Appeals Tribunal concerning an objection to a summons issued by the Australian Securities and Investments Commission (ASIC) against Polymath Investors Proprietary Limited. The dispute centred on Polymath's application to waive two components of the ASIC Industry Funding Levy, with Polymath arguing that exceptional circumstances justified such a waiver. The Tribunal was tasked with determining whether to issue the requested summons, which was intended to compel the attendance of Ms. Hodgson, an ASIC officer involved in the determination of the levy.

The primary legal issue before the Tribunal was whether the circumstances surrounding Polymath's application for a waiver of levy components constituted "exceptional circumstances" as contemplated by the relevant legislation, and whether issuing a summons to Ms. Hodgson would serve the Tribunal's objectives. Specifically, the Tribunal had to consider if Ms. Hodgson's attendance was necessary for the proper determination of the matter, given that the underlying legislative instruments and the quantification of ASIC's regulatory costs were already before the Tribunal. The Tribunal also considered the broader legislative framework for the ASIC Supervisory Cost Recovery Levy, which aims to ensure that leviable entities contribute to ASIC's regulatory costs.

The Senior Member, Mr. P W Taylor SC, reasoned that the Tribunal's objective, as outlined in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth), would not be served by issuing the summons. He concluded that Ms. Hodgson would likely be invited to speculate on circumstances that were either obvious or demonstrable from the legislative instruments themselves, particularly the instrument detailing total regulatory costs. The Senior Member indicated that while he did not close his mind to the possibility that a disproportionate burden on entities like Polymath could be considered exceptional, he was satisfied that Ms. Hodgson's testimony would not advance the case.

Consequently, the Tribunal refused the request for a summons, declining under section 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) to issue the summons sought by Polymath.