FEDERAL COURT OF AUSTRALIA Filipowski v Australian Securities & Investment Commission [2004] FCA 1129 CORPORATIONS – reinstatement – ability of Court to reinstate for a limited purpose Corporations Act 2001 (Cth) s 601AH Marine Pollution Act 1997 (NSW) Re Future Life Enterprises Pty Limited (1994) 33 NSWLR 559 referred to BARBARA FILIPOWSKI v AUSTRALIAN SECURITIES & INVESTMENT COMMISSION N 1009 OF 2004 HELY J 17 AUGUST 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1009 OF 2004 BETWEEN: BARBARA FILIPOWSKI PLAINTIFF AND: AUSTRALIAN SECURITIES & INVESTMENT COMMISSION DEFENDANT JUDGE: HELY J DATE OF ORDER: 17 AUGUST 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Australian Securities & Investment Commission ('ASIC') reinstate the registration of Cadem Shipping Pty Limited (ACN 079 666 247). 2. Reserve liberty to ASIC to apply. 3. Direct the plaintiff's solicitors to give notice of these orders to ASIC. 4. Reserve liberty to the plaintiff to apply, including if so advised liberty to file an amended Originating Process seeking a validation order. 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 1009 OF 2004 BETWEEN: BARBARA FILIPOWSKI PLAINTIFF AND: AUSTRALIAN SECURITIES & INVESTMENT COMMISSION DEFENDANT JUDGE: HELY J DATE: 17 AUGUST 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 601AH of the Corporations Act 2001 (Cth) ('the Corporations Act') for an order that the Australian Securities & Investment Commission ('ASIC') reinstate the registration of Cadem Shipping Pty Limited (ACN 079 666 247) ('the company'), which was deregistered on 17 April 2004. Cadem Shipping was the owner of a ship known as the 'Tavake Oma' which was involved in an oil discharge in White Bay, Port Jackson on 11 October 2001. As I have said, the company was deregistered on 17 April 2004 and on 10 May 2004 Class 5 proceedings were commenced against the company in the Land and Environment Court of New South Wales (see proceedings 50049 and 50045 of 2004). 2 Ms Filipowski is the Secretary and General Counsel of Sydney Ports Corporation and in that capacity is responsible for prosecuting companies for contraventions of the Marine Pollution Act 1997 (NSW) ('the Marine Act'). The purpose of the reinstatement of the company's registration is to enable a prosecution to proceed. To this end, the application to this Court initially sought an order that the registration of the company be reinstated for the limited purpose of enabling the plaintiff to commence/continue whatever proceedings as may be necessary to prosecute the company. 3 When the matter came on for hearing this morning, my attention was drawn to authorities that indicate that an order for reinstatement cannot limit the purpose for which the company is reinstated: see, for example, Re Future Life Enterprises Pty Limited (1994) 33 NSWLR 559. The solicitor for the plaintiff thereafter spoke to a Mr Patra of ASIC and informed him that the plaintiff proposed to seek an order simply for the reinstatement of the company pursuant to s 601AH without any limitation on the purpose for which that reinstatement was made. 4 The conversation with Mr Patra was a little confusing, but two things at least emerged from it. First, that Mr Patra was informed of the amendment that the plaintiff proposed to make in the orders which it sought, and second, that Mr Patra appeared to agree that as a matter of law it would not be appropriate for an order to be made in the terms that the plaintiff originally sought, and to which ASIC originally gave its consent. 5 In my view, the present plaintiff is a person aggrieved by the deregistration of the company and I am satisfied that it is just that the company's registration be reinstated. I therefore order pursuant to s 601AH(2) of the Corporations Act, that ASIC reinstate the registration of the company. I should add that ASIC is the only party which was joined as a defendant to these proceedings. However, I am satisfied that notice of the proceedings was given to the four persons who were directors of the company at the point of its de-registration, and they have not either sought to appear or to convey to the plaintiff's solicitors any opposition which they might have to the reinstatement of the company. 6 There was an issue as to whether I should make an order under s 601AH(3) of the Corporations Act validating the prosecution which has been instituted against the company. I indicated that I was not prepared to make such an order unless ASIC was notified that an order to that effect would be sought, and the company was joined as a defendant to any proceedings in which such an order was sought. Once I indicated that that was my position, the plaintiff did not press for a validation order. 7 What I think I should do is direct that the plaintiff's solicitors should give notice of the orders which I have made this morning to ASIC. I will reserve liberty to apply to ASIC in relation to those orders. I also reserve liberty to the plaintiff to apply, including, if it should be so advised, to apply to lodge an amended application, or an amended originating process seeking a validation order. However, I would indicate that I would not contemplate making such an order unless at least the company was joined as an additional defendant. I say at least the company, because I really have not thought through the proposition as to whether the directors should be joined as defendants or whether notice of any amended application should be given to them. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 31 August 2004 Counsel for the Plaintiff: J M White Solicitor for the Plaintiff: Dibbs Barker Gosling Counsel for the Defendant: No appearance Date of Hearing: 17 August 2004 Date of Judgment: 17 August 2004