Johns v Australian Securities Commission [1993] HCA 56

High Court of Australia Brennan, Dawson, Toohey, Gaudron and McHugh JJ. Johns v Australian Securities Commission [1993] HCA 56

ORDER

1. Appeal allowed in part.

2. Set aside the order of the Full Court of the Federal Court and in lieu thereof order:

(a) appeal to that Court allowed in part;

(b) set aside the order of Heerey J. and in lieu thereof:

(i) declare as against the first and third respondents that the following decisions by the third respondent in exercise of powers delegated to her under the Australian Securities Commission Act 1989 Cth were invalid on the ground that the powers were exercised in breach of the rules of natural justice, namely, the decisions to release to the fourth and fifth respondents transcripts of the appellant's examination before the third respondent held pursuant to s. 21 of the Act in circumstances which allowed the material or information contained in such transcripts to be published generally;

(ii) otherwise dismiss the application;

(c) otherwise dismiss the appeal to the Full Curt of the Federal Court.

3. Otherwise dismiss the appeal to this Court.

4. Liberty to each of the parties to file and serve on each of the other parties within 14 days written submissions as to the orders which should be made relating to

(a) the costs of the proceedings in the Federal Court;

(b) the costs of the application for special leave to appeal to this Court;

(c) the costs of this appeal.

5. Liberty to each of the parties to file and serve submissions in reply, if any, within 7 days from service of the submission to which the reply relates or, in the case of the submissions already failed by the fourth, fifth and eighth respondents, within 21 days of this order.

Cur. adv vult.

The following written judgments were delivered:—

1993, Oct. 13 Brennan J.

I take the facts of this case substantially from the judgment of Black C.J. and von Doussa J. in the Full Court of the Federal Court from which this appeal is brought [1] . The appellant (Mr. Johns) was the managing director of twenty-two companies comprising the Tricontinental group ("Tricontinental") at the time of the group's collapse. On 7 September 1990 the Victorian Government secured the appointment by the Governor-in-Council of a Royal Commission to inquire into the affairs of Tricontinental. The fourth and fifth respondents, the Hon. Sir Edward Woodward O.B.E., Q.C. and Mr. D. G. Williamson R.F.D., Q.C., are the two Commissioners who remained in office at the time of the appeal in this matter to the Full Court of the Federal Court. The terms of reference of the Royal Commission were, in general, to inquire into and report upon the affairs of and transactions engaged in by Tricontinental. Particular topics for investigation were, in summary, (1) whether any person had committed any criminal offence or breach of statutory duties; (2) whether any officer of Tricontinental had acted illegally, improperly or in breach of duty; (3) what matters and events caused the collapse; (4) whether any auditor, valuer or adviser had acted in breach of duty to Tricontinental or had given false or misleading information; (5) whether the affairs of Tricontinental were properly supervised by its own directors and managers, and by other nominated people; (6) whether any person was liable to make restitution or pay compensation to Tricontinental or the State Bank of Victoria; and (7) whether any changes to the law are necessary.