Stockbridge v Ogilvie - [1993] FCA 469

ROBERT EDWARD STOCKBRIDGE; HAROLD CECIL NORRISH; DOROTHY JOYCE CAMPBELL; SUSAN
MAY CALDERBANK; DENNIS JOHN RAYMOND CALDERBANK and ANDREW JOHN WILKES v. JAMIE
GEORGE MICHAEL OGILVIE and AUSTRALIAN SECURITIES COMMISSION
No. WAG3003 of 1993
FED No. 469
Number of pages - 12
Corporations
(1993) 11 ACLC 645
(1993) 10 ACSR 688
(1993) 43 FCR 244

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J(1)

CATCHWORDS

Corporations - examination of persons - Australian Securities Commission Law s.19 - notices issued pursuant to s.19 - validity of - extent to which notice must disclose nature of matter under investigation - legal representation - direction by inspector excluding particular legal representative - whether valid.

Australian Securities Commission Act 1989 (Cth)

Australian Securities Commission v. Graco (1991) 29 FCR 491

WA Pines Pty Ltd v. Bannerman (1980) 30 ALR 559

Johns v. Connor (1992) 35 FCR 1

Australian Securities Commission v. Bell (1991) 32 FCR 517

Wood v. NCSC (1990) 8 ACLR 462

HEARING

PERTH, 30 March 1993

#DATE 6:7:1993

Counsel for the Applicants: Mr B. Laurie

Solicitors for the Applicants: Mossensons

Counsel for the Respondent: Mr W. Martin

Solicitors for the Respondent: Australian Securities Commission

ORDER

The Court orders that:

1. The application be dismissed.

2. The applicants pay the respondent's costs of the application.

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

JUDGE1

Introduction

FRENCH J On 9 February 1993, notices were issued by the Australian Securities Commission ("ASC") pursuant to s.19 of the ASC Law. The notices were issued to a number of persons connected with a group of companies who had an association with Michael Wayne Childs. The persons to whom the notices were issued are represented by a single firm of solicitors. The officer of the ASC conducting the examination has indicated that he will exclude any representative of the applicants' present solicitors from appearing for any of the applicants at the s.19 examinations. The validity of that direction is challenged as is the validity of the notices.

Factual Background
2. Robert Byrne is a Senior Investigator employed by the ASC. Jamie Ogilvie is a Principal Investigator with the ASC. On 25 November 1992, Mr Byrne made a determination pursuant to s.13(3) of the Australian Securities Commission Act 1989 (Cth) ("ASC Law"). The determination, which was in written form, referred to the examination of an undisclosed witness concerning one Michael Wayne Childs and to documents relating to the following companies:

Vishna Pty Ltd;

M.W. Childs and Associates Pty Ltd; Aardaria Pty Ltd;

Aardwolf Pty Ltd;

Aardwolf Finance Pty Ltd;

Effilon Pty Ltd; and

Karonda Pty Ltd ("the Companies")

The determination went on:

"As a result I have reason to suspect that s.227(2) of the Companies (Western Australia) Code and/or s.229(3) of the Corporations Law has been breached by Michael Wayne Childs between August 1989 which was the date he was released from custody in WA to date. For this reason I have…

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.

Continue reading Stockbridge v Ogilvie

Details

AGLC: Stockbridge v Ogilvie [1993] FCA 469
Case: [1993] FCA 469
Decision Date: 06 JULY 1993

CaseChat Overview and Summary

Stockbridge v Ogilvie involved a dispute between the applicants, Stockbridge, and the respondent, Ogilvie, relating to the validity of notices issued by the Australian Securities Commission under section 19 of the relevant legislation. The applicants sought a review of the decisions made by Ogilvie, who was acting in his capacity as an inspector under the legislation, regarding the examination of the applicants. Specifically, the applicants challenged the extent to which the notices issued under section 19 must disclose the nature of the matter under investigation and the validity of a direction by the inspector excluding particular legal representation.

The primary legal issues before the court were whether the notices issued by the Australian Securities Commission adequately disclosed the nature of the matter under investigation and whether the direction by the inspector excluding certain legal representation was valid. The applicants argued that the notices were insufficiently detailed and that the exclusion of their chosen legal representative was improper. The court needed to determine whether these contentions had merit and whether they impacted the validity of the examination process.

The court found that the notices issued by the Australian Securities Commission were sufficient in disclosing the nature of the matter under investigation. The court held that the notices provided adequate information for the applicants to understand the scope of the investigation, thereby meeting the statutory requirements. Additionally, the court ruled that the direction by the inspector excluding particular legal representation was valid. The court determined that the inspector had the authority to make such a decision in the interest of maintaining the integrity and efficiency of the examination process. As a result, the applicants' challenges were dismissed.

The court's decision concluded that the application by the applicants was without merit, and they were ordered to pay the respondent's costs of the application. The final orders reflect this outcome, with the application being dismissed and the applicants directed to cover the respondent's costs. The settlement and entry of these orders were to be dealt with in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The Court orders that:

1. The application be dismissed.

2. The applicants pay the respondent's costs of the application.

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

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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