FEDERAL COURT OF AUSTRALIA D'Angiolillo v Australian Securities & Investments Commission [2003] FCA 665 Administrative Appeals Tribunal Act 1975 (Cth) Australian Securities & Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Federal Court Rules ANTONIO D'ANGIOLILLO V AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION N 645 OF 2003 HELY J 1 JULY 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 645 OF 2003 BETWEEN: ANTONIO D'ANGIOLILLO APPELLANT AND: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION RESPONDENT JUDGE: HELY J DATE OF ORDER: 1 JULY 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 645 OF 2003 BETWEEN: ANTONIO D'ANGIOLILLO APPELLANT AND: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION RESPONDENT JUDGE: HELY J DATE: 1 JULY 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Hely J: 1 On 29 January 2003 the appellant lodged a complaint with the Australian Securities and Investments Commissions ("ASIC"). The appellant told ASIC that he wanted to complain about a company, TNT Limited, and about Mr R. J. L. Hawke and Mr Peter Abeles. 2 The events which led to the complaint are alleged to have occurred in 1989, almost 14 years earlier. In 1989 the appellant claimed that he misplaced a manuscript containing his essays on themes involving ancient history and economics at a late night chemist near the Australian National University. The appellant asserts that he has good reason to believe that the chemist handed the manuscript to the Federal Government who passed it on to Mr Abeles, the then head of TNT Limited, and that Mr Abeles gave the manuscript to the United States Government. 3 On 4 February 2003, ASIC advised the appellant that the conduct he had reported did not contravene a law regulated by ASIC. ASIC suggested that the Commonwealth Ombudsman might be able to help the appellant or perhaps the Australian Federal Police whom the appellant had already contacted about his complaint. It is at least implicit in ASIC's advice to the appellant that it declined to investigate his complaint. 4 On 21 February 2003, the appellant applied to the Administrative Appeals Tribunal ("the AAT") for a review of that decision. On 21 February 2003, the AAT wrote to the appellant inquiring as to the source of the AAT's power to review ASIC's decision. 5 On 27 February 2003, the appellant responded to the AAT's inquiry. He said that he had requested ASIC to investigate the alleged criminal and illegal withholdings of his private essays by TNT Limited for profit and he referred to sections 1317A to 1317D of the Corporations Law. 6 On 14 April 2003, ASIC submitted to the AAT that the application should be dismissed forthwith as the AAT lacked jurisdiction to entertain the application. 7 On 1 May 2003, the AAT made a determination pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the Act") that the AAT does not have power to review the decision referred to in the application for review. Senior Member Allen directed the Registrar of the AAT to take no further action with respect to listing the matter for hearing. I should say that it is not clear to me why Senior Member Allen did not simply dismiss the application. 8 By letter of 1 May 2003, the AAT notified the appellant of the AAT's determination that it had no power to review ASIC's decision and drew the appellant's attention to the limited right of appeal to the Federal Court of Australia under s 44 of the Act, if the AAT made an error of law in reaching its decision. 9 On 29 May 2003, the appellant lodged a notice of appeal in this Court against the AAT's decision. The notice of appeal is both hard to read and hard to comprehend but it asserts that it is well within the AAT's power to overturn a decision of ASIC not to investigate an alleged major corporate crime. Order 1 of the relief sought makes it clear that the appellant wants an investigation by ASIC into whether TNT Limited profited from the use of the appellant's papers. 10 On 30 June 2003, ASIC applied by notice of motion for an order that the proceedings be dismissed under Order 20 rule 2 of the Federal Court Rules ("the Rules"). 11 The application which the appellant made to ASIC was to investigate a suspected contravention of the corporations legislation. ASIC has jurisdiction under s 13 of the Australian Securities & Investments Commission Act 2001 (Cth) ("the ASIC Act") to conduct such investigation as it thinks expedient for the due administration of the corporations legislation where it has reason to suspect that there may have been committed a contravention of the corporations legislation. The corporations legislation is defined in the ASIC Act as meaning the ASIC Act and the Corporations Act 2001 (Cth). ASIC is not obliged to investigate every matter where a complaint is made to it and it was entitled to decide, as it did, not to investigate the appellant's complaint. 12 The AAT only has power to review a decision where an enactment provides for that review (see section 25 of the Act). The AAT has power to review an ASIC decision made under the Corporations Act (see s 1317B) subject to specified exceptions. The impugned decision was made under s 13 of the ASIC Act, rather than under the Corporations Act. Section 244 of the ASIC Act specifies which decisions made under that Act are reviewable by the AAT. A decision under s 13 not to conduct an investigation is not within the class of decisions referred to in s 244. 13 Whether the AAT does have jurisdiction to entertain an application for review will often involve a question of law. Of course, there is an "appeal" to this Court from decisions of the AAT involving a question of law. The AAT's decision that it had no jurisdiction to entertain the application was, in my view, clearly correct and no arguable case to the contrary has been advanced by the appellant. In the submissions which he put to me this morning, the appellant referred to s 233 of the Corporations Act but that is not relevant to the present case. 14 It seems to me that Order 20 rule 2 of the Federal Court Rules applies to these proceedings, as the proceedings, although styled an "appeal", are within the original jurisdiction of the Court. The "appeal" is, in my view, frivolous or vexatious because it is without any arguable foundation. It should be dismissed for that reason. ORDERS 15 The order which I make is that the appeal be dismissed. 16 I will have it noted that the Commission does not seek an order for costs. Accordingly I will order that the appeal be dismissed and I make no order as to costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 2 July 2003 Solicitor for the Appellant: The appellant appeared in person Solicitor for the Respondent: Mr G Donovan Australian Securities and Investments Commission Date of Hearing: 1 July 2003 Date of Judgment: 1 July 2003