Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92

FEDERAL COURT OF AUSTRALIA

Murdaca v Australian Securities and Investments Commission [2009] FCAFC 92

ADMINISTRATIVE LAW – in considering whether disqualification is justified pursuant to s 206F(1)(c) and s 206F(2) of the Corporations Act 2001 (Cth), the Australian Securities and Investments Commission is required to accord procedural fairness to an affected person both by s 206F(1)(b) of the Corporations Act 2001 (Cth) and under the common law – there was no denial of procedural fairness by the Administrative Appeals Tribunal in the present case – any alleged denial of procedural fairness by ASIC's delegate was cured by the full merits review conducted by the Administrative Appeals Tribunal CORPORATIONS – determination pursuant to s 206F of the Corporations Act 2001 (Cth) by a delegate of ASIC that the appellant should be disqualified from managing corporations for two years – disqualification overturned by the Administrative Appeals Tribunal – appeal to a single judge of the Federal Court on questions of law – decision of the Administrative Appeals Tribunal set aside by primary judge – appeal to the Full Court – appeal concerned the correct interpretation of s 206F and s 533 of the Corporations Act 2001 (Cth) – whether for the purposes of s 206F(1)(a)(ii) ASIC is required to investigate the correctness and validity of a liquidator's report lodged pursuant to s 533(1) – whether the show cause notice contemplated by s 206F(1)(b)(i) must specify all allegations and all material to be relied upon by ASIC in support of such allegations when ASIC comes to consider disqualification – whether ASIC is permitted to consider allegations and material when making its decision pursuant to s 206F in respect of disqualification which have not been included in the show cause notice – the facts and matters referred to in s 206F(1)(a)(i), (a)(ii), (b)(i) and (b)(ii) are merely preconditions which enliven ASIC's power to set about deciding whether disqualification is justified – in addition to the statutory requirement in s 206F(b)(ii) to afford an affected person an opportunity to be heard on the question of whether disqualification is justified, ASIC is required to accord procedural fairness under the common law to such a person – the show cause notice contemplated by s 206F(b)(i) does not operate to constrain the scope of material to which ASIC may have regard when considering disqualification – the giving of such a notice is merely a precondition to action by ASIC – no error in the primary judge's decision Administrative Appeals Tribunal Act 1975 (Cth), ss 43 and 44 Companies (NSW) Code, s 562A Corporations Act 2001 (Cth), ss 9, 206A, 206B, 206BA, 206C, 206D, 206E, 206EA, 206F, 206G, 206GA, 533, 536 and 597 Corporations Law, s 600 Trade Practices Act 1974 (Cth), s 86E