FEDERAL COURT OF AUSTRALIA Australian Securities & Investments Commission v Hallmark Gold NL [1999] FCA 373 CORPORATIONS LAW – application for declarations that persons not validly appointed as directors – persons appointed to fill casual vacancies – no election of directors to fill vacated offices at general meeting – whether persons continued as directors – construction of articles. Federal Court Rules O 32 r 2(d) ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v HALLMARK GOLD NL ACN 000 817 023 and DAVID JOHN MUIR WG 3005 OF 1999 LEE J 1 APRIL 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 3005 OF 1999 BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Applicant AND: HALLMARK GOLD NL ACN 000 817 023 First Respondent DAVID JOHN MUIR Second Respondent JUDGE: LEE J DATE OF ORDER: 1 APRIL 1999 WHERE MADE: PERTH THE COURT ORDERS AND DECLARES THAT: 1. The application be dismissed. 2. The second respondent pay the costs of the applicant and the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 3005 OF 1999 BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Applicant AND: HALLMARK GOLD NL ACN 000 817 023 First Respondent DAVID JOHN MUIR Second Respondent JUDGE: LEE J DATE: 1 APRIL 1999 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant ("ASIC") seeks a declaration that the second respondent ("Muir") was not a director of the first respondent ("Hallmark") on or after 18 December 1998. 2 The relevant facts are set out in the reasons delivered today in ASIC v Hallmark Gold NL, Forge, Muir and Clark [1999] FCA 360, an application for declaratory orders heard together with this application. 3 Muir, through solicitors then acting for him, had notice of the date of trial in this proceeding. He did not appear on the hearing and pursuant to O 32 r 2(d) of the Federal Court Rules the trial proceeded. 4 The declaration made in the above matter, that Muir ceased to be a director of Hallmark from 22 October 1998, makes any further declaration in this proceeding unnecessary. 5 The application will be dismissed with an order that Muir pay the costs of ASIC and Hallmark. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 1 April 1999 Counsel for the Applicant: M J Gething Solicitor for the Applicant: Australian Securities & Investments Commission Counsel for the First Respondent: M J McCusker QC N P Gentilli Solicitor for the First Respondent: Jackson McDonald No appearance for the Second Respondent. Date of Hearing: 15 March 1999 Date of Judgment: 1 April 1999