Donald v Australian Securities & Investments Commission [2000] FCA 1142

FEDERAL COURT OF AUSTRALIA Donald v Australian Securities & Investment Commission [2000] FCA 1142 SECURITIES – creating a false or misleading appearance with respect to the price of securities – purchase by securities dealer at a higher price than available on the market – banning order by Australian Securities and Investment Commission – review by Administrative Appeals Tribunal – whether no evidence of contravention – whether mens rea a necessary element – whether proof of likely repetition needed – relevance of brokers' lack of authority from client

Corporations Law ss 829(d), 998(1) North v Marra Developments Ltd (1981) 148 CLR 42 applied Fame Decorator Agencies Pty Ltd v Jeffries Industries Ltd (1998) 28 ACSR 58 at 62-63 applied Australian Securities Commission v Nomura International plc (1998) 29 ACSR 473 at 556 applied He Kaw Teh v The Queen (1985) 157 CLR 523 applied Alphacell Limited v Woodward [1972] AC 824 mentioned

ANDREW WILLIAM DONALD v AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION NO. V 44 of 2000 HEEREY J 10 OCTOBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 44 of 2000

BETWEEN: ANDREW WILLIAM DONALD

APPLICANT

AND: AUSTRALIAN SECURITIES AND INVESTMENT COMMISSION

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 10 OCTOBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The decision of the Administrative Appeals Tribunal made on 21 January 2000 is set aside. 3. The application of the applicant for review of the decision of the delegate of the respondent made on 25 July 1999 is remitted to the Administrative Appeals Tribunal differently constituted for rehearing according to law. 4. The respondent pay the applicant's costs to be taxed, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.