Smith v Papamihail

[1998] FCA 1310

BRIAN MILLWOOD SMITH v KERRIE PAPAMIHAIL AND AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
No. WAG 95 of 1998
FED No. 1310/98
Number of pages - 17
Corporations
(1998) 158 ALR 451

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

CARR J

Corporations - investigation by Australian Securities Commission (as it was then known) - Commission served statutory notice on applicant requiring assistance - applicant required to sign authorities addressed to a bank and trustee company overseas - whether notice issued under a power to require a person to give all reasonable assistance must include a requirement that the person appear for examination - whether the Commission has separate powers in that regard - whether privilege against self-incrimination applies - whether required assistance would prove futile.

Australian Securities and Investments Commission Law ss 13(1), 19, 68, 70

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Australian Securities Commission v Kutzner (1997) 25 ACSR 723 followed

Australian Paper Ltd v The Anti-Dumping Authority (Federal Court of Australia, 2 October 1998, No 1244 of 1998) cited

Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1984) 156 CLR 385 cited

Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 cited

BTR Engineering (Australia) v Patterson (1990) 20 NSWLR 724 cited

Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 cited

Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 cited

Hamilton v Oades (1989) 166 CLR 486 cited

Khan v Khan [1982] 1 WLR 513 cited

Re The Licensing Ordinance (1968) 13 FLR 143 cited

Doughty v Corporate Affairs Commission (NSW) (1988) 13 ACLR 612 cited

Traders Prudent Insurance Co Ltd v The Registrar of the Workers' Compensation Commission of New South Wales [1971] 2 NSWLR 513 cited

PERTH, 21 September 1998 (hearing), 16 October 1998 (decision)

#DATE 16:10:1998

Appearances

Counsel for the Applicant: Mr N P Gentilli

Solicitor for the Applicant: Messrs Jackson McDonald

Counsel for the Respondent: Mr K J Martin QC with Mr M J Gething

Solicitor for the Respondent: Mr Michael Gething

THE COURT ORDERS THAT:

1. The application be dismissed.

   2. The applicant pay the respondents' costs.

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

CARR J

INTRODUCTION

This is an application, under ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), for an order of review of a decision of the first respondent, Ms Kerrie Papamihail (a legal officer employed by the second respondent, the Australian Securities and Investments Commission, as it is now named) made on 22 June 1998 under s 19(2) of what was then the Australian Securities Commission Law ("the ASIC Law") requiring the applicant to give to the second respondent certain assistance in connection with an investigation being conducted by the second respondent. In summary, the assistance which the second respondent required was that the applicant sign two authorities, addressed respectively to a bank in England and a trust company…