Australian Securities & Investments Commission v Loiterton [2000] FCA 973

FEDERAL COURT OF AUSTRALIA

Australian Securities & Investments Commission v Loiterton [2000] FCA 973

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION – whether during the course of an inquiry under s 13(1) of the Australian Securities and Investments Commission Act 1989 (Cth) inspectors can require an examinee to answer questions put to the examinee by counsel retained on their behalf – retaining of counsel to ask questions on behalf of inspectors is not a delegation of the inspectors' statutory functions. Australian Securities and Investments Commission Act 1989 (Cth) ss 13(1), 19(2)(b), 21(3), 22, 23(1), 70, 102 Dunkel v Commissioner of Taxation (1990) 27 FCR 524 followed Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 referred to Bropho v State of Western Australia (1990) 171 CLR 1 referred to Coco v R (1993) 179 CLR 427 referred to O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 applied AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v JOHN BARRIE LOITERTON N 742 of 2000 MATHEWS J 20 JULY 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 742 OF 2000

BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

APPLICANT

AND: JOHN BARRIE LOITERTON

RESPONDENT

JUDGE: MATHEWS J

DATE OF ORDER: 20 JULY 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. A declaration that a specified member or staff member within the provisions of section 19(2) of the Australian Securities and Investments Commission Act 1989 (Cth) ("the Act") is empowered to require, under section 21(3) of the Act, the person appearing to answer questions relevant to a matter that the Australian Securities and Investments Commission ("the Commission") is investigating put by Counsel on his or her behalf. ("the Requirement") 2. A declaration that the fact that a question is put to an examinee under section 21(3) of the Act by Counsel on behalf of the inspector is not reasonable excuse within the meaning of section 70(1) of the Act for failing to comply with a requirement by the inspector that the question be answered. 3. An order that the respondent comply with the Requirement. 4. The respondent is to pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.