ae CATCHWORDS ' ADMINISTRATIVE GAW - Judicial review - Consent by Attorney-General to the institution of proceedings for the summary prosecution of criminal offences notwithstanding that a period of more than three years had elapsed since the commission of the offences - Application for order of review - Whether decision-maker bound to afford the person against whom proceedings contemplated an opportunity to be heard - Whether the making of the decision an improper exercise of power in that there was a failure to take into account relevant considerations. Administrative Decisions (Judicial Review) Act 1977 (Cth), 5.5 Companies Ordinance 1962 (A.C.T.), s.381(4) BRIAN LESLIE JOSEPH BUFFIER v. LIONEL FROST BOWEN No. ACT G 7 of 1987 Neaves J. 4 February 1988 Canberra A to acne ee sp epee IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G 7 of 1987 GENERAL DIVISION WHERE, MADE ' DATE OF ORDER BETWEEN : BRIAN LESLIE JOSEPH BUFFIER Applicant AND: LIONEL FROST BOWEN Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. 4 February 1988 : Canberra THE COURT ORDERS THAT: 1. The decision made on 16 September 1986 by the respondent, the Attorney-General of the Commonwealth of Australia, under 5s.381(4) of the Companies Ordinance 1962 (A.C.T.) to consent to the institution of proceedings for the summary prosecution of the applicant for certain offences against that Ordinance be set aside. The respondent pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. billie ernseetpotens Remo oc ane wep ene 2 OT TY ares we 2S = ans wee pee Pew nea tees co oe . a IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 7 of 1987 DISTRICT REGISTRY GENERAL DIVISTON BETWEEN : BRIAN LESLIE JOSEPH BUFFIER Applicant AND: LIONEL FROST BOWEN Respondent CORAM: Neaves J. DATE: 4 February 1988 REASONS FOR JUDGMENT Brian Leslie Joseph Buffier ("the applicant") seeks an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision made on 16 September 1986 by the respondent, the Attorney-General of the Commonwealth of Australia, under s.381(4) of the Companies Ordinance 1962 (A.C.T.) ("the Companies Ordinance"). The decision was a decision to consent to the institution of proceedings for the summary prosecution of the applicant for certain offences against that Ordinance notwithstanding that a period of more than three years had elapsed since the offences were alleged to have been committed. Lowes Prior to its repeal by the Companies Act 1981 (Cth), s.381 of the Companies Ordinance provided: "381. (1) An offence against this Ordinance which is punishable by imprisonment for a period exceeding six months may, unless the contrary intention appears, be punished either summarily or on indictment, but an offender is not liable to be punished more than once in respect of the same offence. (2) An offence against this Ordinance to which the last preceding sub-section does not apply is, unless the contrary intention appears, punishable summarily. (3) Except where provision is otherwise made in this Ordinance, proceedings for the summary prosecution of an offence against this Ordinance may be taken by the Registrar or, with the written consent of the Minister, by any person. (4) Notwithstanding anything in any other law of the Territory, proceedings for the summary prosecution of an offence against this Ordinance may be brought within the period of three years after the commission of the offence or, with the written consent of the Minister, at any later time." By virtue of s.10(2) of, and Part 1 of the Second Schedule to, the Seat of Government (Administration) Ordinance 1930 (A.C.T.), the Companies Ordinance was administered by the Attorney-General of the Commonwealth. The power to consent to the institution of proceedings for the summary prosecution of an offence against the Companies Ordinance survived the repeal of that Ordinance - see s.3(3) of the Companies Act 1981 (Cth), ss.3{(e) and 29(2) of the Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth) and s.27 of the Companies (Transitional Provisions) Act 1981 (Cth). wn mee ep ret ee pr On ar nent a The offences 1n respect of which consent was given under s.381(4) are expressed in the document of consent signed by the respondent and dated 16 September 1986 in the following terms: "(1) (2) (3) That between the 3rd August 1976 and 25 June 1980 at Canberra in the Australian Capital Territory, BRIAN LESLIE JOSEPH BUFFIER committed an offence against Section 161A of the Companies Ordinance 1962 as it then was in that between the dates aforesaid Kentucky Homes (Canberra) Pty. Limited failed to keep such accounting records as correctly record and explain the transactions and financial position of the said company and the said BRIAN LESLIE JOSEPH BUFFIER was the officer of the said company in default. That between 25 June 1978 and 25 June 1980 at Canberra in the Australian Capital Territory, BRIAN LESLIE JOSEPH BUFFIER committed an offence against Sub-Section 303(1) of the Companies Ordinance 1962 as it then was in that between the dates aforesaid being the period of two years immediately preceeding [sic] the winding up of Kentucky Homes (Canberra) Pty. Limited the said company failed to keep proper books of account and the said BRIAN LESLIE JOSEPH BUFFIER was the officer of the said company in default. That on or about 31 December 1979 at Canberra in the Australian Capital Territory, BRIAN LESLIE JOSEPH BUFFIER committed an offence against Paragraph 300(1)(c)(iv) of the Companies Ordinance 1962 as it then was in that being an officer of Kentucky Homes (Canberra) Pty. Limited be did within twelve months next before the commencement of the winding up of the said Company make a false entry in the books of the said company, namely to show that a lease over Lot 16 Section 234 Wanniassa was an asset of the Company. Frey wowwen et io. : . . re +4 (4) That on or about the 17th day of October 1979 at Canberra in the Australian Capital Territory BRIAN LESLIE JOSEPH BUFFIER committed an offence against Section 5 of the Crimes Act 1914 in that he was knowingly concerned in the commission of an offence against Sub-Section 124(1) of the Companies Ordinance 1962, namely the failure of CHARLES PETER DUNNET to act honestly and use reasonable diligence as a director of Kentucky Homes (Canberra) Pty. Limited whereby the said CHARLES PETER DUNNET obtained a benefit for himself namely that he used monies which were the property of the aforesaid company to obtain a lease over Lot 16 Section 234 Wanniassa." Notwithstanding that the fourth offence is expressed to be an offence against s.5 of the Crimes Act 1914 (Cth), what is alleged is, in truth, an offence against s.124(1) of the Companies Ordinance: Mallan v. Lee (1949) 80 C.L.R. 198. It follows that proceedings in respect of that offence might, in view of the lapse of time since the date of its alleged commission, be instituted only with the written consent of the respondent. Informations were subsequently laid against the applicant in respect of the above offences. On those informations summonses were issued returnable before the Magistrates Court of the Australian Capital Territory on 28 October 1986. The proceedings remain pending in that court. A copy of the document evidencing the respondent's consent to the prosecution summarily of the offences was received by the applicant on 12 January 1987. On 9 February 1987 the applicant commenced proceedings in this Court under the Judicial Review Act. The grounds stated in the application are that the respondent denied the applicant natural justice and that he failed to take into account relevant considerations. The particulars given of the first of those grounds are that the respondent did not afford the applicant an opportunity to be heard before making the decision and that the respondent did not inform the applicant that he was considering or intending to make the decision. The particulars of the second ground, as amended by leave during the hearing, are as follows: "(a) The Respondent failed to take into account that the Applicant had lost considerable monies from the liquidation of Kentucky Homes (Canberra) Pty. Limited; and l (b) The Respondent failed to take into account the reason for and length of the delay and the prejudice to the applicant caused by it since - (i) the alleged commission of the offences; (ii) the provision to the Corporate Affairs Commission of the A.C.T. of the report of the liquidation of Kentucky Homes (Canberra) Pty. Limited." In support of the application, counsel for the applicant relied upon an affidavit sworn by the applicant on 6 February 1987 wherein the applicant deposed that at no time was he,approached by the respondent or anyone acting on his behalf concerning the giving of consent and that he was fe ee a 2 rea not asked to make any comment or submission on whether consent should be given. That that was the position was not disputed by the respondent. | Counsel for the applicant also relied upon a document (Exhibit "A"), being a copy of part of a submission dated 9 September 1986 made by the Commissioner for Corporate Affairs (A.C.T.) to the respondent seeking his consent to the institution of proceedings for the summary prosecution of the applicant and one Charles Peter Dunnet for offences against the Companies Ordinance. The submission was the subject of a subpoena duces tecum issued on behalf of the applicant addressed to the Commissioner for Corporate Affairs (A.C.T.). Production of the whole of the submission was objected to on a number of grounds and, in the result, the applicant did not press for its production. What was in fact produced was admitted by the respondent to be the only part of the submission that refers to the question of delay. The document in evidence reads as follows: "Issue Your consent is sought (Attachment 1) under Sub-section 381(4) of the Companies Ordinance 1962 for the institution of proceedings for the summary prosecution of Brian Leslie Joseph BUFFIER and Charles Peter DUNNET for alleged offences against Sections 124, 161A, 300 and 303 of the Companies Ordinance 1962 in connection with the management of KENTUCKY HOMES (CANBERRA) PTY. LIMITED. A copy of the inspector's report 1s at Attachment 2. Bert ee Promere ss eee 4 ON epecanernts me woe _ ree 3. Your consent is required as the alleged offences occurred more than three years ago between 1976 and 1980. The Ordinance still applies to these offences (relevant legislation at Attachment 5). , wees 5. The proceedings could not be brought within the three year period as the matter did not come to the attention of the Commission until approximately five years after the first of the alleged offences had been committed. Workloads prevented the Commission from completing its enquiries for approximately another three years and although the brief of evidence was referred to the D.P.P. in May 1985 a reply was not received until July 1986. Enquiries into the affairs of Kentucky Homes (Canberra) Pty. Limited were also prolonged by lack of co-operation on the part of company officers and the large volume of company records to be examined. 7. I consider that 1t would be reasonable for you to consent having regard to the _ serious nature of the offences. (The specific reasons in support are outlined at Attachment 8)." ee ee ee a rT. . ee In the margin of the submission, immediately below the above recommendation, is a notation that it was approved by the respondent on 16 September 1986. The document referred to as "Attachment 8" is aiso in evidence. It reads: "FACTORS SUPPORTING THE GRANT OF CONSENT TO PROSECUTE The following considerations support the grant of consent in this case: (i) The Director of Public Prosecutions has advised that prima facie cases exist against BUFFIER and DUNNET. (ii) (Lii) (iv) The company was placed in liquidation with a deficiency estimated to be in the vicinity of $350,000. Although comprehensive accounting records were kept by the company, the liquidator reported serious deficiencies in the manner in which they were kept. Failure to keep proper accounting records hindered investigations into the company's affairs, particularly into houses built by the company for its directors (one of which is the subject of offences 3 & 4). These offences have been seen by the legislators as serious and the penalties are either substantial or have been substantially increased under the current Companies Act 1981, as follows: Offence Companies Penalty Companies Ordinance Act 1981 Penalty Section Section 1 161A 2 303{2) $400 or 1 years 555 $5000 or 1 year 3 & 4k 124 $1000 or 6 months 267 imprisonment imprisonment imprisonment or both $2000 229(l)a $5000 (non- fraudulent) 229(1)b $20,000 or 5 (fraudulent) years or both 5 300(1)(c) 2 years 560(1) $10,000 or 2 (iv) imprisonment years or both $2500 or 6 months * Offence 4 is in fact an alleged breach of Section 5 of the Crimes Act 1914 regarding the accused being knowingly concerned ina breach of Section 124 of the Companres Ordinance 1962." wee ee ee re op ew ore Le to me cee ee ee . ' * : we eee eran a Mee - owes wee oe wep eg mera arr rs ' , se .o wee oe ae Counsel for the applicant did not read a! further affidavit of the applicant sworn on 20 November 1987 upon counsel for the respondent stating that it was not contended on behalf of the respondent that any relief to which the Court might otherwise consider the applicant to be entitled should be refused on discretionary grounds. No evidence was adduced on behalf of the respondent. The first ground upon which the decision is challenged is that set out in s.5(1l)(a) of the Judicial Review Act, namely that a breach of the rules of natural justice occurred in connection with the making of the decision. As has already been mentioned, it is conceded by the respondent that the applicant was not informed, prior to the decision being made, that the respondent was to be asked to give his consent pursuant to 5.381(4) of the Companies Ordinance to the institution of proceedings against the applicant and was given no opportunity to put material before the respondent or make submissions to him in relation to the matter. The applicant contends that s.381(4), on its proper construction, required that the applicant be so informed and be afforded such an opportunity. The respondent contends that he was under no such obligation. Counsel for the applicant relied upon a number of matters which he submitted, considered cumulatively, west ri nn Tien pean awe 10. supported the applicant's contention. First, it was said that, because of the nature of the power and the circumstances surrounding its exercise, it was unlikely that a person in relation to whom the exercise of the power was being considered would, unless he were expressly so informed, become aware of that fact and thus be in a position to submit material for the consideration of the respondent. Secondly, it was submitted that the matters relevant to be considered in the exercise of the power would include matters peculiarly within the knowledge of the person in relation to whom the power was to be exercised. Thirdly, emphasis was placed on the circumstance that' the giving of consent could have serious consequences for the person concerned in that it could place him in jeopardy of being convicted of criminal offences of a serious nature. Fourthly, reliance was placed on the circumstance that a person in relation to whom the power was exercised would have no opportunity in the prosecution proceedings to challenge the validity of the decision to consent. Counsel for the applicant conceded, for the purpose of argument, that a decision to institute a prosecution for an offence against the Companies Ordinance might properly be made without affording to the person to be prosecuted an opportunity to put material and submissions before the decision-maker. I also understood him to concede, for that purpose, that a similar situation applied to the giving of consent under s.381(3). But, it was submitted that the nature of the power conferred by s.381(4) and the matters afr il. relevant to be considered in its exercise, being the matters referred to above, compelled a different conclusion in relation to that provision. It was further submitted on behalf of the applicant that the respondent was bound to afford him an opportunity to present material and make submissions in support of his contention that consent should not be given because the giving of consent would deprive the applicant of a legitimate expectation of a benefit. In respect of each of the offences alleged against him, it was said that, upon the expiration of the period of three years from the date on which the offence was alleged to have been committed, the applicant had a legitimate expectation that he would not be prosecuted in respect of that offence. In consequence, so the submission ran, consent to the institution ° of I proceedings for that offence could not properly be given unless and until the applicant had been given an opportunity to put relevant material before, and make submissions to, the decision-maker. The general principles to be applied in resolving the issue between the parties are to be found in the judgment of Mason J. in Kioa v. West (1985) 159 C.L.R. 550. His Honour said, at pp.582-3: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is Soe 12. entitled to know the case sought to be made against him and to be given an opportunity of replying to 1t: Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106, at p.109; Salemi CNo.2] (1977) 137 C.L.R., at p.419; Ratu (1977) 137 C.L.R., at p.476; Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487, at pp.498-499; F.A.I. Insurances Ltd. v. Winneke (1982) 151 C.L.R. 342, at pp.360, 376-377; Amnamunthodo v. Oilfields Workers' Trade Union £19612 A.C. 945. The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to 'legitimate expectation' makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [CNo.2] (1977) 137 C.L.R., at p.404 Barwick C.J. expressed the view that the expression 'legitimate expectation' adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of 'legitimate expectation' extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (1977) 137 C.L.R., at pp.508-509; F.A.T. (1977) 137 C.L.R., at pp.348, 351-352, 369, 412; Attorney-General (Hong Kong) v. Nq Yuen Shiu £19833 2 A.C. 629, at p.636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members ef the Court in Salemi [No.2] the 'amnesty' constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in F.A.I. (1982) 151 C.L.R. 342 or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v. Minister for the Civil Service £19857 1 A.C. 374, at p.401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case." on en a er 13. His Honour continued, at pp.584~5: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. eeee Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends toa large extent on the construction of the statute. in Mobil Oi1 Australia Pty. Ltd. v. Federal Commissioner of Taxation (1963) 113 C.L.R. 475, at pp.503-504, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Req. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 C.L.R. 546, at pp.552~553; National Companies and Securities Commission v. News Corporation Ltd. (1984) 156 C.L.R. 296, at pp.311, 319-321." The giving of consent under s.381(4) of the Companies Ordinance to the summary prosecution of a person for an offence against that Ordinance does not affect any right or interest of that person in the sense in which those expressions are used in the above cited passages. Indeed, I did not understand counsel for the applicant to submit to the contrary. The submission made on behalf of the l applicant has already been summarised. Its acceptance Nee = Me ge ree ne nes ooo 14. depends upon the applicant being found to have had a legitimate expectation that he would not be prosecuted in respect of any of the offences alleged against him. That legitimate expectation was said to arise not from any assurance given to the applicant by the respondent or by anyone on his behalf nor from any other conduct engaged in by or on behalf of the respondent. It was said to arise solely from a consideration of the legislative provision itself. In my opinion, the submission lacks substance and should be rejected. If it be proper to regard s.381(4) of the Companies Ordinance as giving rise in the applicant toa legitimate expectation of benefit, that legitimate expectation did not extend beyond an expectation (perhaps more correctly described as a right) that summary proceedings for an offence alleged to have been committed more than three years before would not be instituted except with the written consent, properly given, of the respondent. In Murchison v. Keating (No.2) (1984) 54 A.L.R. 386, Morling J. rejected a submission that the rules of natural justice were applicable to the making of a decision by the Treasurer of the Commonwealth of Australia pursuant to s.70(1) of the Banking Act 1959 (Cth) to consent to the institution of proceedings for an offence against that Act or the regulations made thereunder. Counsel for the applicant submitted that, although what was said in that case in relation to the giving of consent to the institution we wy ae — wee ae T oe mae aa = wep ee ey oD apee wee ere ke 15. of proceedings for a criminal offence might be applicable to the comparable provision contained in s.381(3) of the Companies Ordinance, it had no application to the giving of consent under 5.381(4). This was said to follow from. the circumstance that s.381(4) operated only after the expiration of the three year period referred to therein, the expiration of that period giving rise to the legitimate expectation to which reference has already been made. In my opinion, for the reasons I have already given, there is, for the purpose of the argument now being considered, no relevant distinction between sub-s.(3) and sub-s.(4) of s.38]1 of the Companies Ordinance. In the case of neither provision, in my view, is the decision-maker bound to afford to the person alleged to have committed an offence against the Ordinance a prior opportunity to present material or make submissions. This conclusion accords with that reached by the Supreme Court of Victoria in Nicol v. Attorney-General for Victoria [1982] V.R. 353 in relation to | the provision, s.381(2), of the Companies Act 1961 (Vic) which corresponds with s.381(4) of the Companies Ordinance now under consideration. It must, however, be acknowledged, as I pointed out in the reasons for decision I delivered on 12 May 1987 dismissing an objection by the respondent to the competency of the present application, that the actual decision in that case turned on the provisions contained in the Administrative Law Act 1978 (Vic.) which delimited the kinds of decisions that could be the subject of review under that Act. em et, ee fe eye ewe sre 16. I should add that, in my opinion, none of the othey matters relied upon by counsel for the applicant, taken singly or in combination, support the first ground upon which the decision under review 1s challenged. I turn, then, to the second ground, that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made (Judicial Review Act, s.5(1)(e)) in that the respondent failed to take a relevant consideration into account in the exercise of the power (s.5(2)(b)). Sub-section (4) of s.381 of the Companies Ordinance is expressed in general terms - proceedings may be brought within three years after the commission of the offence or, with the written consent of the Minister, at any later time. The provision clearly confers a very wide discretion. The sub-section contains no specification of the criteria by reference to which the discretion to give or withhold consent is to be exercised. Nor does the sub-section expressly identify any matters as factors which the decision-maker is bound to take into account in exercising the power. In such circumstances, "the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act": Minister for Aboriginal Affairs v. Peko-Walisend Ltd (1986) 162 C.L.R. 24 per Mason J. at p.40. yap wee any gree en o 17. In my opinion, a consideration of s.381(4) in its context and the general nature of the power which it confers serves to indicate that the overriding consideration for the decision-maker must be what the proper administration of justice dictates in the particular case. But, a consideration of those matters also serves to identify a number of factors which must be taken into account in the balancing process which is involved in determining whether consent to the institution of proceedings for an offence should be granted notwithstanding the lapse of time since the date of its alleged commission. During the period of three years to which the sub-section refers, proceedings for an offence may be brought by the Registrar acting on his own initiative. During that period, proceedings may also be instituted by any person, the common informer, provided he obtains' the consent of the respondent as the relevant Minister. So much is provided in s5.381(3). The requirement that a person other than the Registrar must obtain the consent of the respondent is to be seen as an administrative safeguard against the formulation of charges which the respondent, as Attorney-General, might think do not warrant prosecution: Murchison v. Keating (No.2) (supra) at p.394. After the expiration of the period of three years no prosecution may be brought, either by the Registrar or by any other person, without the respondent's written consent. | or oe ananateaten Mieaialiaberainiatali on cc ican at ~ ' wo 43 vow, a 18. The subject-matter of the power clearly requires that, in considering whether to consent, the respondent is bound to consider the nature of the offence in question, the allegations made against the person alleged to have committed that offence, the seriousness of those allegations and the sufficiency of the evidence against hin. tt seems to me to be equally clear that the respondent is bound to take into account the period of time which has elapsed since the commission of the offence and, if it is likely to be substantial, the further period which will elapse before the prosecution can be heard and determined. After all, the circumstance that the period of three years since the commission of the offence has expired is the very matter which brings the relevant power into operation. The period of the delay is, therefore, at the very heart of the matter and is a consideration which the legislature must be taken to have required the decision-maker to take into account. To require that the decision-maker take into account the delay which has occurred since the commission of the offence involves more than simply taking into account the period of time which has elapsed. To give proper consideration to the question before him, the decision-maker must, in addition to the actual period of time involved, have regard to the reasons why the delay occurred and to any available material offering an excuse, explanation or justification for the delay. To conclude in a particular case that,, in all the circumstances, the delay was inordinate and unjustifiable would be a most material oa 19. consideration in determining whether consent should be given. Further, delay usually renders more difficult the determination of factual issues. Documents and witnesses may become unavailable and, even when witnesses are available, their recollection of events may well be impaired. Clearly, if any material were available to the decision-maker showing particular prejudice to the alleged offender on this account, the decision-maker would, in my view, be bound to take that prejudice into account. Reason and experience of human affairs suggests that, at least where the delay is substantial, the alleged offender would { be likely to suffer some prejudice and the likelihood that this would be so is yet another matter that the decision-maker is bound to take into account. With the above considerations in mind it is necessary to examine so much of the submission dated 939 September 1986 made by the Commissioner for Corporate Affairs (A.C.T.) to the respondent as is before the Court. In doing so, due regard must be had to the admission made on behalf of the respondent that what was produced to the Court 1s the only part of the submission that refers to the question of delay. The delay is substantial. The first of the offences alleged is said to have been committed between 3 August 1976 and 25 June 1980, that is in a period which began more than ten years and ended more than six years before the document of consent was signed on 16 September —-.- => —_ es 20. 1986. The second of the offences is alleged to have been committed between 25 June 1978 and 25 June 1980, the third on or about 31 December 1979 and the fourth on or about 17 October 1979. The date of institution of the proceedings for the prosecution of the offences does not appear in the evidence before the Court. Attachment 8 to the submission is described (see the submission, par.7) as outlining the "specific reasons in support" of the recommendation that "it would be reasonable" for consent to be given. True to that description, Attachment 8 does not refer the decision-maker to any factors which might be thought to militate against giving consent and those matters are not addressed elsewhere. The only concession which the document makes to the question of delay is the reference in the third of the considerations there set forth to the circumstance that the company's failure to keep proper accounting records had ! hindered investigations into its affairs, particularly into houses built by the company for its directors, a matter the subject of one at least of the offences alleged against the applicant. The only paragraph of the submission itself which refers to the delay is par.5, the text of which has already been set out. The primary concern of that paragraph is to identify three periods of delay. | oO 21. The first is a period of approximately five years after the first of the alleged offences was committed, which I take to be a reference to 3 August 1976. It is said that the matter did not come to the notice of the Corporate Affairs Commission (A.C.T.) until the expiration of that period. No doubt, the circumstance that the matter had not come to the attention of the Commission until the expiration of the first period mentioned was a relevant matter for the respondent to consider and one may infer, although there is no reference to it in the submission, that that was brought about because the company did not go into liquidation until 27 dune 1980 and some time necessarily elapsed thereafter before the liquidator, after making enquiries into the company's affairs, was in a position to report to the Commission that offences may have been committed. It appears, however, to be implicit in the submission that to assign as the reason for a period of delay, however long, the Commission's lack of knowledge of the matter is at once to provide a sufficient justification for treating that period of delay as providing no ground for refusing to give consent under s.381(4). That, in my opinion, cannot be regarded as a correct approach. The second period of delay referred to in par.5 of the submission is a period of approximately three years commencing at the expiration of the first period. During this period (presumably from 1981 to 1984), the Commission appears to have made enquiries into the matter though no details are given as to what those enquiries were nor is any mire mn mete + 22. ' indication given as to the length of time that they necessarily required for their completion. There is a general reference to "workloads" as having prevented those enquiries being completed earlier but, again, no details are given. The third period is a period of 14 months from May 1985 to July 1986 when the matter was with the Director of Public Prosecutions. No explanation, let alone justification, for this period of delay is proferred to the respondent for his consideration. Paragraph 5 of the submission also contains a general statement that enquiries into the affairs of Kentucky Homes (Canberra) Pty Limited were prolonged by "lack of co-operation on the part of company officers and the large volume of company records to be examined". It does not appear whether the applicant is included in the company's officers of whom this complaint is made. On the view which I have taken of the matters which the legislative provision requires to be taken into account in relation to the question of delay, it is demonstrable that the material which was before the respondent and upon which the decision to give consent was taken was manifestly inadequate. It was, inmy opinion, so inadequate as to warrant the conclusion that the respondent failed to take into account relevant considerations. In particular, the material before the respondent failed to direct any TN 'rosé 23. attention to the question whether the delay was, in all the circumstances, to be considered inordinate and unjustifiable and failed to consider whether any and, if so, what prejudice in the preparation and conduct of his defence would be likely to be suffered by the applicant by reason of the delay. The terms of the recommendation put, to the respondent also appear to me to be of some significance in this regard. It is expressed in terms of what would be reasonable. A recommendation that consent be given should, more appropriately, be expressed in terms of a conviction as to what the proper administration of justice requires in the particular circumstances of the case. For the above reasons, I order that the decision under review be set aside. I further order that the respondent pay the applicant's costs. It is hardly necessary to add that whether further proceedings are to be taken against the applicant in respect of the offences which he 1s alleged to have committed will be a matter for consideration by the respondent and those advising him. I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment perein of the Honourable Justice Neaves. al Associate /— Dated: 4 February 1988 wen corny eon mae oe a ay k Counsel for the applicant Solicitors for the applicant Counsel for the respondent Solicitor for the respondent Date of hearing 24. Mr R.C. Refshauge Macphillamy Cummins and Gibson Mr A. Robertson Australian Government Solicitor 23 November 1987 ony eee or ' ? 4. a Lot 7 ad