Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747

FEDERAL COURT OF AUSTRALIA

Duncan v Companies Auditors Liquidators Disciplinary Board [2006] FCA 1747

STATUTORY INTERPRETATION – proper construction of s 41 of the Administrative Appeals Tribunal Act 1975 (Cth) in a review by the Tribunal of a decision of the Companies Auditors Liquidators Disciplinary Board – whether the Tribunal has the power to order decision and reasons for decision not be published Administrative Appeals Tribunal Act 1975 (Cth) s 35, 41 Administrative Decisions (Judicial Review) Act 1977 (Cth) s Australian Securities and Investments Commission Act 2001 (Cth) ss 213, 216 Companies Act 1981 s 30M Corporations Act 2001 (Cth) ss 1286, 1292, 1296, 1297, 1317B Judiciary Act 1903 (Cth) s 39B Allied Asia Holdings (Aust) Pty Ltd v Australian Securities & Investments Commission [2002] FCA 566 referred to Macquarie Dictionary, 4th ed, The Macquarie Library Pty Ltd, Macquarie, 2005 Shorter Oxford English Dictionary, 5th ed, Oxford University Press, Oxford, 2002 ADRIAN STEWART DUNCAN v COMPANIES AUDITORS LIQUIDATORS DISCIPLINARY BOARD & ORS NSD2366 OF 2006

EMMETT J

15 DECEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 2366 OF 2006

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ADRIAN STEWART DUNCAN

Applicant

AND: COMPANIES AUDITORS LIQUIDATORS DISCIPLINARY BOARD

First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Third Respondent

JUDGE: EMMETT J DATE OF ORDER: 15 DECEMBER 2006

WHERE MADE: SYDNEY

THE COURT:

1. DECLARES that the Administrative Appeals Tribunal has the power under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the Act') to make an order restraining the first respondent from giving to the applicant any notice setting out the decision and reasons for the decision of the first respondent of 20 November 2006, from lodging with the second respondent a copy of any such notice and from causing to be published in The Gazette a notice in writing setting out that decision, pursuant to s 1296(1) of the Corporations Act 2001 (Cth). 2. ORDERS that the decision of the Tribunal made on 4 December 2006 not to make the Orders sought by the Applicant set out in paragraphs 1 and 3 of the annexure to his Amended Request for Orders ('the Application") filed 4 December 2006 be and is hereby set aside. 3. ORDERS that the matter be remitted to the Tribunal for reconsideration and determination according to law; 4. ORDERS that Order 5 made on 4 December 2006 be continued until determination by the Tribunal of the Application. 5. ORDERS that until determination by the Tribunal of the Application, the Second Respondent be and is hereby restrained from publishing these Orders or in any other way identifying the Applicant as being a party to this proceeding or those commenced by him in the Tribunal.` 6. ORDERS that ASIC pay the Applicant's costs of this proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA