McLachlan, Malcolm Boyd v Australian Securities Comm [1998] FCA 952

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - CORPORATIONS LAW - Australian Securities Commission - procedures relating to making a banning order under s 829(f) Corporations Law– reason to believe a person has not performed honestly, efficiently and fairly the duties of a representative of a dealer - whether the Australian Securities Commission decision to issue a Notice of Hearing under s 57(2) Australian Securities Commission Act (1989) (Cth) constitutes a reviewable decision - whether the Australian Securities Commission engaged in reviewable conduct in deciding to issue a Notice of Hearing. ADMINISTRATIVE LAW - CORPORATIONS LAW - duty to observe the rules of natural justice - whether the Australian Securities Commission is precluded on grounds of procedural unfairness from making use in decision making of information improperly obtained by a third party. ADMINISTRATIVE LAW - CORPORATIONS LAW - whether s 829(f) Corporations Law creates an obligation that the Australian Securities Commission take into account all information it possesses relevant to a particular decision - whether the Australian Securities Commission is under an obligation to disclose information favourable to the applicant not relied on in making a decision. ADMINISTRATIVE LAW - CORPORATIONS LAW - whether a reasonable apprehension of bias was raised by the decision maker having a preliminary view concerning issues to be decided - whether a reasonable apprehension of bias or prejudgment of the issue is raised by the same Australian Securities Commission delegate making decisions both to issue a Notice of Hearing under s 829(f) and to conduct a hearing under s 837 Corporations Law - refusal by the decision maker to disqualify himself. Corporations Law, s 600, s 600(2), s 600(3), s 784, s 829, s 829(f), s 830, s 837, s 1323 Australian Securities Commission Act 1989 (Cth), s 1(2)(c), s 57, s 59(2), s 60, s 102, s 102(6) Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, s 6 Evidence Act 1995 (Cth), s 138(1) Story v National Companies and Securities Commission (1988) 6 ACLC 560 (Applied) Winter v Australian Securities Commission (1995) 16 ACSR 61 (Distinguished) Tobacco Institute v National Health & Medical Research Council (1996) 142 ALR 1 (Applied) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Applied) Neate v Australian Securities Commission (1995) 60 FCR 518 (Followed) Collie v Behan (1997) 25 ACSR 644 (Followed) Rose v Bridges (1997) 149 ALR 710 (Applied) Schokker v Commissioner, Australian Federal Police (1997) 73 FCR 279 (Applied) Vinton Smith Dougall Ltd v Australian Securities Commission (1997) 23 ASCR 567 (Applied) Laycock v Forbes (1997) 25 ACSR 659 (Applied) Re Polites; Ex parte Hoysts Corporation Ltd (1991) 173 CLR 78 (Applied) Livesey v New South Wales Bar Association (1983) 151 CLR 288 (Applied) Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (Applied) R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, (1969) 122 CLR 546 (Applied) MALCOLM BOYD MCLACHLAN (Applicant)v AUSTRALIAN SECURITIES COMMISSION (Respondent)