Bourke, Michael Vincent v Companies Auditors & Liquidators Disciplinary Board [1998] FCA 742

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW – appeal from AAT – denial of natural justice – refusal to adjourn where unrepresented litigant was too ill to attend – reliance on matters the litigant had no opportunity to address – dismissal of substantial application without affording the applicant an opportunity to be heard – significance of a representation and assurance by a solicitor for the other side not being adhered to – discretion under s 1292 of the Corporations Law.

Administrative Appeals Tribunal Act 1975, s 42A Corporations Law, ss 1288, 1292 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 referred to Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 referred to Taylor v Taylor (1979) 143 CLR 1 applied Re Anasis; Ex parte Total Australia Ltd (1985) 11 FCR 127 applied Re Baker; Ex parte Baker v Pioneer Industries Pty Ltd (unreported, Kiefel J, 11 August 1995) applied Re Faour; Ex parte NEC Home Electronics Australia Pty Ltd (unreported, Beaumont J, 2 April 1996) applied Guse v Comcare (1997) 25 AAR 477, affirmed on appeal, Guse v Comcare (1998) 47 ALD 495 referred to Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110

MICHAEL VINCENT BOURKE v COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD NG 388 of 1997 Burchett J Sydney 26 June 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 388 of 1997

on appeal from the administrative appeals tribunal

BETWEEN: MICHAEL VINCENT BOURKE

Applicant

AND: COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD

First Respondent

AUSTRALIAN SECURITIES COMMISSION

Second Respondent

JUDGE: BURCHETT J

DATE: 26 june 1998

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be allowed; 2. The decision of the Administrative Appeals Tribunal be set aside; 3. The matter be remitted to the Tribunal, differently constituted, to be dealt with according to law; 4. The second respondent pay the costs of the applicant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.