Neate, David William v Australian Securities Commission [1995] FCA 853

CATCHWORDS ADMINISTRATIVE LAW - objection to competency of application for review under the Administrative Decisions (Judicial Review) Act - whether a "decision" of the Australian Securities Commission to issue a notice to show cause pursuant to s. 600(2) the Corporations Law is a "reviewable decision" under the Administrative Decisions (Judicial Review) Act - application for review dismissed CORPORATIONS LAW - proper construction of ss 600(2) and (3) considered Administrative Decisions (Judicial Review) Act 1977 (Cth) Corporations Law - ss 533, 600, 600(2), 600(3) Cases Considered Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 13 ACLC 161 Dwyer v National Companies and Securities Commission (1988) 6 ACLC 1182 Re Gem Exploration & Minerals NL [1975] 2 NSWLR 584 Salter v National Companies and Securities Commission [1989] WAR 296 David William Neate v Australian Securities Commission VG 734 of 1995 Drummond J Brisbane (Heard in Melbourne) 26 October, 1995

IN THE FEDERAL COURT OF AUSTRALIA) No. VG 734 of 1995 VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: DAVID WILLIAM NEATE Applicant AND: AUSTRALIAN SECURITIES COMMISSION Respondent MINUTES OF ORDERS JUDGE MAKING ORDER: Drummond J DATE OF ORDER: 26 October, 1995 WHERE MADE: Brisbane (Heard in Melbourne) THE COURT ORDERS THAT: 1. The applicant's application for review is dismissed. 2. The applicant pay the respondent's costs of and incidental to the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) No. VG 734 of 1995 VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: DAVID WILLIAM NEATE Applicant AND: AUSTRALIAN SECURITIES COMMISSION Respondent Coram: Drummond J Date: 26 October, 1995 Place: Brisbane (Heard in Melbourne) REASONS FOR JUDGMENT This is an application by the respondent for the summary dismissal of proceedings brought by the applicant under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for judicial review of a decision by the respondent. The respondent has also objected to the competency of the proceedings on the ground that the decision challenged is not one that is reviewable under that Act. The applicant, by his originating proceeding, sought relief which was expressed to be limited to the review of "the decision of the Respondent to give a Notice under s. 600(2) of the Corporations Law ... to the Applicant requiring the Applicant to show cause why an order not to manage corporations should not be made against the Applicant under s. 600(3) of the Law ...". Argument at the hearing was confined to whether the applicant's claim to relief, so framed, should be struck out. Apart from its objection to competency, the grounds on which the Australian Securities Commission ("the Commission") relies to justify the dismissal of the proceedings comprise its detailed reasons for saying that the applicant cannot make out any of the grounds of review relied on in his originating application. I do not think that the case advanced by the Commission with respect to all of these matters is so clear as to justify the summary termination of the proceedings now. I am of the opinion, however, that the Commission's objection to competency is well-founded. In broad terms, s. 600 the Corporations Law empowers the Commission to take action to prohibit a person from managing any corporation for a period not exceeding five years, provided that person was a director of at least two companies at any time in the period of 12 months prior to the winding up of each of those companies, and further provided that each is a company in respect of which the liquidator has reported under s. 533 the Corporations Law that it may be unable to pay its unsecured creditors more than $0.50 in the dollar. Section 600 the Corporations Law relevantly provides: "(1)[Interpretation] For the purposes of this section: (b) ...