FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Beekink (No 2) [2007] FCAFC 45

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v PETER CORNELIUS BEEKINK, HERSCH SOLOMON MAJTELES AND GREGORY PHILLIP GAUNT

WAD 115 OF 2006

MANSFIELD, JACOBSON & SIOPIS JJ

28 MARCH 2007

PERTH

THE COURT ORDERS THAT:

1.                  The motion be refused.

2.                  The respondents pay the costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MOTION TO RE-OPEN APPEAL

THE COURT:

1                     By Notice of Motion filed on 7 March 2007, the respondents seek leave to re-open and to set aside the judgment and orders of the Court made on 7 February 2007 insofar as they relate to the question of pecuniary penalty.  The orders have not yet been entered.

2                     The respondents submit that the power should be exercised because they contend that the Court misapprehended certain facts put forward by them in support of their notice of contention.  It is unnecessary for us to consider the authorities which support the exercise of the power because in our view the particular reasons relied upon by the respondents for the exercise of the power are not made out.

3                     The notice of contention challenged the primary judge’s finding that admissions of breaches of the Corporations Act 2001 (Cth) were made late.

4                     In the hearing before the primary judge, senior counsel for the respondents outlined the course of events from the bar table relating to the timing of the respondents’ admissions.  There was no dispute before the primary judge or on appeal as to the accuracy of what was said by senior counsel.

5                     For convenience, we will set out the relevant findings which we made on appeal:

“[139]  We do not consider that any error has been shown in his Honour’s finding.  His Honour was the docket judge who case managed the matter to the hearing.  He was in a better positionthan us to determine that question.

[140]  In any event, it would be inappropriate to find error on the basis of what was said from the bar table.  At very least, what would have been required was evidence as to the whole of the negotiation process, assuming that the directors were prepared to put it forward.  Without that, it is impossible to say that his Honour’s finding as to the lateness of the admission was wrong.”

6                     The respondents submit that in our reasons at [140] we declined to find error by the trial judge because the relevant facts had been outlined from the bar table and were not the subject of evidence.

7                     They submit that our approach overlooked the fact that in the argument on appeal, the explanation given from the bar table was accepted as an accurate explanation of the course of events.

8                     What underlies these submissions is the apparent suggestion that the Court did not accept the accuracy of what senior counsel said and that this is the reason we rejected the notice of contention.  That is not correct.

9                     The Court did not dismiss the notice of contention because the events were stated from the bar table.  Rather, we found that the material advanced from the bar table was not sufficiently detailed to make the required assessment.  We found that an attack on the primary judge’s finding that the admissions were late would require evidence as to the whole negotiation process.  We found at [140] that the respondents did not lead this evidence.

10                  Moreover, the primary reason we dismissed the notice of contention was stated at [139].

11                  There we found that the trial judge, as docket judge, was in a better position than the Full Court to determine whether the admissions were late.  This was based upon his knowledge of the entire history of the matter.

12                  The order we will make is that the motion be refused with costs.

Associate:

Date:                28 March 2007