FEDERAL COURT OF AUSTRALIA

Saraceni v Australian Securities and Investments Commission [2012] FCA 688

THE COURT ORDERS THAT:

1.    The proceedings be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The notice of objections to competency of the second, third and fourth respondents be dismissed.

3.    The Court will hear from the parties as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

summary

1    In August 2011, the applicant commenced judicial review proceedings in the Federal Court of Australia seeking an order quashing authorisations given by the first respondent, the Australian Securities and Investments Commission (ASIC), to the second, third and fourth respondents, and the receivers and managers of companies associated with him. In July 2011, ASIC had authorised each of the receivers and managers as “eligible applicants” to apply for examination orders under Div 1 of Pt 5.9 of the Corporations Act 2001 (Cth) (Corporations Act). Pursuant to the authorisations the receivers and managers successfully applied for examination summonses against the applicant, which were served on him on 15 August 2011.

2    The applicant claimed that, in granting the authorisations, ASIC had denied him natural justice and had improperly exercised power. The applicant complained, first, that ASIC had failed to accord him natural justice by not giving him notice of its intention to grant the authorisations, and, secondly, that in granting the authorisations ASIC improperly exercised its power in that it failed to take into account relevant considerations or took into account irrelevant considerations by not regarding issues he would have raised for consideration by ASIC before it decided to grant the authorisations. The applicant also raised a constitutional issue concerning the validity of the examination summons process under Pt 5.9 of the Corporations Act.

3    The receivers and managers, supported by ASIC, applied by interlocutory application to dismiss the judicial review proceedings commenced by the applicant on the basis that ASIC was not obliged to give the applicant notice or consider his submissions before deciding to grant the authorisations and there was no demonstrable basis to the claim it had improperly exercised its powers in deciding to grant the authorisations.

4    The Court upheld the respondents’ submissions and dismissed the applicant’s judicial review proceedings, ruling that:

(1)    Each of the receivers and managers was a member of a category of persons able to be authorised by ASIC as an “eligible person” to make an application for an examination summons under Pt 5.9 of the Corporations Act;

(2)    ASIC was not obliged to notify the applicant of its intention to grant such authorisations before doing so;

(3)    Similarly, ASIC was not obliged to take into account any particular views of the applicant before granting the authorisations and so its failure to consider any such views did not involve any improper exercise of power;

(4)    In light of the decision of the Court of Appeal of the Supreme Court of Western Australia in Saraceni v Jones [2012] WASCA 59; (2012) 287 ALR 551 (Saraceni v Jones) upholding the constitutionality of Pt 5.9 of the Corporations Act, which bound the Court, the applicant was unable to maintain the constitutional issue in the Court;

(5)    In these circumstances, the judicial review proceedings commenced by the applicant under the general law or under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) did not disclose any reasonable prospects of success and so should be dismissed with costs.

5    The Court dismissed an alternative argument put on behalf of the receivers and managers that the judicial review proceedings, to the extent they were made under the ADJR Act, lacked competence.

Interlocutory application for summary judgment

6    By interlocutory application filed 2 November 2011 the second, third and fourth respondents (respectively (1) the receivers and managers of Seaport Pty Ltd; (2) the receivers and managers of Newport Securities Pty Ltd and agent of the mortgagee in possession of property the subject of certificate of title vol 2069 folio 895, known as 3517 Caves Road, Wilyabrup, Western Australia; (3) the receivers and managers of Mayport Nominees Pty Ltd; referred to collectively as “the receivers”) seek orders in the alternative in relation to the primary proceedings for judicial review commenced by the applicant that:

1.    The proceedings be dismissed in their entirety under:

(a)    section 31A(2) of the Federal Court of Australia Act 1976 (Cth); and/or

(b)    rule 26.01(1) of the Federal Court Rules 2011.

2.    Alternatively,

(a)    Grounds 1 and 2 of the Applicant's Originating Application for Judicial Review be dismissed as aforesaid; and

(b)    Ground 3 of the Applicant's Originating Application for Judicial Review be:

(i)    struck out; or

(ii)    permanently stayed,

    pursuant to the inherent or implied jurisdiction of the Court.

3.    Alternatively, the Applicant's Originating Application for Judicial Review be set aside pursuant to rule 13.01 of the Federal Court Rules 2011.

7    The applicant resists the interlocutory application.

summary judgment power

8    Section 31A(2) of the FCA Act provides as follows:

31A     Summary judgment

(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is prosecuting the proceeding or that part of the proceeding; and

(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)     hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

(4)     This section does not limit any powers that the Court has apart from this section.

(5)     This section does not apply to criminal proceedings.

9    In Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ in a joint judgment noted the difference between a determination that a proceeding has no reasonable prospects of success and a final view that a proceeding would necessarily fail. Earlier tests for summary judgment relied more on the latter than the former. At [59]-[60] their Honours said:

59    In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.

60    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

10    Chief Justice French and Gummow J, in a joint judgment, related the history of the amendment containing s 31A and referred to the caution which should be exercised before applying it, particularly in cases involving complex questions of fact.

originating application for judicial review

11    By the amended originating application for judicial review the applicant has applied to the Court to review decisions of the first respondent (ASIC) to authorise the receivers to make applications under Div 1 Pt 5.9 of the Corporations Act for examination summonses in relation to the applicant.

12    The applicant says the decisions are purported to have been made under powers conferred on ASIC by Div 1 Pt 5.9 of the Corporations Act and all other enabling powers of ASIC.

13    The originating application is made under s 5(1)(a) of the ADJR Act, s 39B of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

14    The grounds of the originating application are that: (1) ASIC breached the rules of natural justice; (2) improperly exercised power in purporting to make the decisions; and (3) purported to exercise a power that is beyond the constitutional power of the Commonwealth to grant.

15    As to the third ground, the constitutional challenge, that ground has effectively been determined by the Court of Appeal of the Supreme Court of Western Australia in Saraceni v Jones contrary to the applicant’s contentions. As that decision is one of an Australian intermediate court of appeal I am bound by it and so this ground cannot succeed before this Court and should be struck out.

16    That leaves for consideration the question whether either of the first two grounds have any reasonable prospects of success.

Circumstances in which receivers appointed

17    Introduction: The applicant is the sole director of Westgem Investments Pty Ltd (receivers and managers appointed) (administrator appointed) (Westgem).

18    Westgem is responsible for a major commercial property development in the Perth CBD known as Raine Square. The Raine Square project, amongst other things, is designed to provide office space to house the global headquarters of Bankwest in Perth, Western Australia.

19    By written agreement made on or about 23 April 2008, to which Westgem and others were a party, Bankwest and BOS International (Australia) Limited, agreed to provide financial accommodation to Westgem for the Raine Square project.

20    Seaport Pty Ltd (as trustee for the Seaport Trust) was a guarantor of the 23 April 2008 agreement, and it entered into a debt of guarantee and indemnity to guarantee the funds owed by Westgem to the financiers up to a certain amount.

21    In 2009 and 2010, the financiers alleged default under the 23 April 2008 agreement. The applicant says they wrongly made this claim. On 22 September 2010, the financiers required Westgem and various related parties including Seaport, Newport Securities Pty Ltd and Mayport Nominees Pty Ltd to enter into a deed of amendment and restatement multi-option facility agreement – Raine Square.

22    At the same time Seaport, Newport and Mayport gave additional securities to the “Finance Parties” as described in that facility agreement to guarantee the funds owed by Westgem (including but not limited to):

(1)    Seaport as trustee of the Seaport Trust provided a deed of guarantee and indemnity unlimited;

(2)    Newport as trustee for the Newport Family Trust provided a deed of guarantee and indemnity–limited; and

(3)    Mayport as trustee for the Mayport Unit Trust provided a deed of guarantee and indemnity–limited.

23    Seaport Pty Ltd: The second respondents were (purportedly) appointed as receivers and managers of specified property of Seaport Pty Ltd held in Victoria.

24    On 20 January 2011, the second respondents were (purportedly) appointed as receivers and managers with respect to the property known as the Bayside City Plaza, Warrnambool, Victoria, pursuant to a registered limited fixed and floating charge dated 17 August 2006.

25    On 28 March 2011, the second respondents were (purportedly) appointed as receivers and managers with respect to the property the subject of certificate of title volume 10411, folio 949, also known as Unit 5, 36 Fairy Street, Warrnambool, Victoria, pursuant to a registered mortgage dated 20 November 2006.

26    Newport Securities Pty Ltd: The third respondents were (purportedly) appointed as receivers and managers, and agents for the mortgagee in possession, with respect to specified property of Newport Securities Pty Ltd.

27    On 20 January 2011, the third respondents were (purportedly) appointed as receivers and managers with respect to all assets and undertakings held by Newport Securities Pty Ltd in its own capacity or as trustee for the Newport Family Trust (but not in respect of property held by Newport Securities Pty Ltd in its capacity as trustee of other trusts) pursuant to a registered fixed and floating charge dated 18 November 1999.

28    On 1 March 2011, the third respondents’ (purported) appointment as receivers and managers was discharged with respect to the property the subject of certificate of title volume 2069, folio 895 pursuant to registered mortgage dated 20 December 2002, but otherwise continued with respect to the other specified assets and undertakings of Newport Securities Pty Ltd.

29    On 1 March 2011, the third respondents were (purportedly) appointed as agents for the mortgagee in possession of the property the subject of certificate of title volume 2069, folio 895 pursuant to registered mortgage dated 20 December 2002.

30    Mayport Nominees Pty Ltd: On 20 January 2011, the fourth respondents were (purportedly) appointed as receivers and managers with respect to all assets and undertakings of Mayport Nominees Pty Ltd pursuant to a registered fixed and floating charge dated 14 December 2001.

31    Generally: Since the purported appointment of the second, third and fourth respondents there have been numerous other proceedings against the applicant and entities related to Seaport, Newport and Mayport.

32    Bankwest commenced proceedings in the Supreme Court of Western Australia against three guarantors of Seaport, including the applicant and two related entities. Newport is also involved in those proceedings.

33    Bankwest also commenced proceedings against a lessee of the land mortgaged by Newport. As noted above, the third respondent acts as agent of the mortgagee in possession in relation to that land.

Immediate background to judicial review proceedings

34    On 15 July 2011, the receivers, pursuant to authorisations granted by ASIC on 4 July 2011, made an ex parte application in the Supreme Court of Western Australia by originating processes for the issue of examination summonses against the applicant pursuant to s 596A of the Corporations Act.

35    On 28 July 2011, the Supreme Court of Western Australia made orders pursuant to s 596A of the Corporations Act for the issue of examination summonses to the applicant in relation to the examinable affairs of Newport, Seaport and Mayport. These orders were made in actions COR 120 of 2011, COR 121 of 2011 and COR 122 of 2011. On 12 August 2011, the Supreme Court of Western Australia issued summonses pursuant to s 596A of the Corporations Act for the examination of the applicant pursuant to those orders. The examination summonses were served on the applicant on 15 August 2011.

36    The applicant made application to the Supreme Court of Western Australia in each of the proceedings concerned soon thereafter to discharge the examination summonses.

37    Among other things, the applicant raised a constitutional challenge as to the validity of the provisions of the Corporations Act that provide for the examination of the applicant in relation to the examinable affairs of Newport, Seaport and Mayport. As noted above, the Court of Appeal of the Supreme Court of Western Australia in Saraceni v Jones has dismissed that constitutional challenge.

The authorisations

38    Section 596A of the Corporations Act, which is in Div 1 of Pt 5.9 of the Act, provides for what the heading to the provision describes as “Mandatory examination”, in the following circumstances:

596A     Mandatory examination

The Court is to summon a person for examination about a corporation’s examinable affairs if:

(a)     an eligible applicant applies for the summons; and

(b)     the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

(i)     if the corporation is under administration—on the section 513C day in relation to the administration; or

(ii)     if the corporation has executed a deed of company arrangement that has not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or

(iii)     if the corporation is being, or has been, wound up—when the winding up began; or

(iv)     otherwise—when the application is made.

39    Section 596B, also in Div 1 of Pt 5.9, further provides for what the heading to the provision describes as “Discretionary examination”, as follows:

596B     Discretionary examination

(1)     The Court may summon a person for examination about a corporation’s examinable affairs if:

(a)     an eligible applicant applies for the summons; and

(b)     the Court is satisfied that the person:

(i)     has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii)     may be able to give information about examinable affairs of the corporation.

(2)    This section has effect subject to section 596A.

40    The power of the Court to summons a person for examination about a corporation’s examinable affairs under either s 596A or s 596B is dependent on the applicant for the summons being an “eligible applicant”.

41    An “eligible applicant” is defined by s 9 of the Corporations Act as follows:

eligible applicant, in relation to a corporation, means:

(a)     ASIC; or

(b)     a liquidator or provisional liquidator of the corporation; or

(c)     an administrator of the corporation; or

(d)     an administrator of a deed of company arrangement executed by the corporation; or

(e)     a person authorised in writing by ASIC to make:

(i)     applications under the Division of Part 5.9 in which the expression occurs; or

(ii)     such an application in relation to the corporation.

42    Thus, a person who is a “receiver and manager” is not by that status alone an eligible applicant and may not as of right make an application for an examination summons under Pt 5.9. However, on the face of it, a person who is a receiver and manager may seek authorisation in writing by ASIC in terms of para (e)(i) or (ii) of the s 9 definition of eligible applicant. An issue raised by the applicant, to which I will return, is whether a person who is a receiver and manager of only part of a corporation’s assets may be authorised for the purposes of Pt 5.9.

43    It appears that on 18 April 2011 and then on 9 June 2011, the third respondents as receivers and managers and controllers appointed for Newport, by correspondence from Mr Martin Jones of Ferrier Hodgson to ASIC, sought authorisation from ASIC as “eligible applicants” for the purposes of Div 1 of Pt 5.9 of the Corporations Act. By letter dated 4 July 2011, ASIC gave such authorisation in respect of Newport in the following terms:

ASIC authorises you [Mr Martin Jones], Mr Weaver and Mr Saker, the Receivers and Managers and Controllers in respect of the Company as eligible applicants for the purposes of Division 1 of Part 5.9 of the Act in relation to the Company [Newport].

44    An identical authorisation was given by ASIC by its letter dated 4 July 2011 to the receivers and managers of Mayport, the fourth respondents.

45    ASIC gave an authorisation in similar terms by letter dated 4 July 2011 to Mr Martin Jones and Mr John Ross Lindholm as receivers and managers of Seaport, the second respondents.

46    There is no statutory procedure laid down under the Corporations Act or elsewhere as to how a person wishing to obtain ASIC’s authorisation of them as an “eligible applicant” for the purposes of Div 1 of Pt 5.9 should go about getting that authorisation. Nor is there anything in the Corporations Act or other statute that states expressly what factors, if any, ASIC should address before granting such authorisation.

47    In this case, there is little evidence before the Court, apart from the three letters of ASIC dated 4 July 2011, that evidences the consideration given by ASIC to the eventual grant of the authorisations of the receivers and managers in each case. Nor is there any material to show what information if any was put forward on behalf of the receivers to gain the authorisations.

48    What may be inferred from the materials before the Court is that Mr Jones of Ferrier Hodgson wrote to ASIC by letters dated 18 April 2011 and 9 June 2011 requesting authorisation for each of the second, third and fourth respondents. The letters are not before the Court. It may or may not be that information was provided in or with those letters sufficient to satisfy ASIC that it was appropriate for it to grant the authorisations in each case. It is possible, of course, that ASIC had been apprised of information prior to the correspondence from Mr Jones and that very little additional information was provided in these letters and that they were merely formal requests for the relevant authorisations. The fact that Mr Jones wrote on 9 June 2011, having earlier written on 18 April 2011 may, however, suggest that some further information was provided to ASIC in the second letter that ultimately led to ASIC giving the authorisation in each case by the letters dated 4 July 2011.

grounds of judicial review

49    Breach of natural justice: The decision or action of ASIC to grant or in granting the authorisation in each case is challenged in the originating application for judicial review, first on the basis of breach of natural justice. The applicant says that in doing so, under s 5(1)(a) of the ADJR Act, ASIC breached the rules of natural justice in making each of the “decisions”, in that:

(1)    At no time did it give notice to the applicant that it was considering applications made on behalf of the receivers.

(2)    Prior to making the decisions ASIC did not at any time provide the applicant with any information or document provided in support of the applications made on behalf of the receivers.

(3)    Prior to making the decisions, ASIC did not at any time provide the applicant with any opportunity to make submissions, comment or otherwise be heard on the applications before the decision was made.

50    The applicant adds that the matters of which he complains occurred in circumstances: where each of Seaport, Newport and Mayport was “fully cooperating” with the second, third and fourth respondents by providing them information as requested; where the applicant had challenged the validity of the appointment of each of those respondents, where none of Seaport, Newport or Mayport were in external administration; where the second and third respondents are appointed only over certain assets of Seaport and Newport; and where the applicant, Seaport and Newport were already involved in a number of court cases involving Bankwest, it being the appointor of the second, third and fourth respondents.

51    In short, the applicant says that taking into account the commercial disputation between the applicant, Bankwest and various agents appointed by Bankwest to Seaport, Newport and Mayport, it behoved ASIC, before granting any authorisations to the second, third or fourth respondents for the purposes of Div 1 of Pt 5.9 of the Corporations Act, to notify the applicant of the applications made and to hear from him before granting the authorisations.

52    The applicant puts that submission on the basis that, if ASIC had heard the applicant’s side of the commercial dispute between the various parties, it might have decided to withhold any such authorisation.

53    That of course is possible, but the question is whether ASIC laboured under any legal obligation to the applicant at material times to afford him natural justice or procedural fairness either at all or in the practical circumstances of each case.

54    Improper exercise of power: Secondly, the applicant says that the making of the “decision” to authorise the second, third and fourth respondents for the purposes of Div 1 of Pt 5.9 of the Corporations Act, ASIC engaged in an improper exercise of power for the purposes of s 5(1)(e) of the ADJR Act or otherwise acted contrary to law for the purposes of s 5(1)(j) of the ADJR Act, in that:

(1)    ASIC failed to take into account a relevant consideration, namely, any material that “might have been provided” by the applicant;

(2)    failed to take into account a relevant consideration by failing to take account of the fact that each of Seaport, Newport and Mayport was not in external administration;

(3)    failed to take into account a relevant consideration by failing to take account of the fact that the applicant had challenged the validity of the appointment of the second, third and fourth respondents;

(4)    failed to take into account a relevant consideration by failing to take account of the fact that each of Seaport, Newport and Mayport were “fully cooperating” with the second, third and fourth respondents;

(5)    failed to take into account a relevant consideration by failing to take account of the fact that the second, third and fourth respondents “were only appointed over certain assets” of Seaport and Newport;

(6)    failed to take into account a relevant consideration by failing to take account of the ongoing litigation in the Supreme Court of Western Australia between the applicant and Bankwest;

(7)    took into account irrelevant considerations by apparently only considering material provided by the second, third and fourth respondents without any comment on that material from the applicant;

(8)    took into account irrelevant considerations by taking into account matters other than those set out in the preceding subparagraphs of this paragraph; and

(9)    failed to take any account of material or information that “might have been provided” by the applicant.

55    It may be seen that the material factors relied on in this second ground reflect those relied on in the first ground.

Respondents’ case for summary judgment

56    The position of the receivers, supported by ASIC, is that the power or function of ASIC in granting an authorisation is not reviewable on either the first or second ground alleged by the applicant. First, it is said there is no obligation for ASIC to give reasons for any decision to grant or withhold an authorisation and there is no obligation to give any other person who might be interested in the matter (because for example they may be the subject, or target, of a summons under s 596A of the Corporations Act) a hearing by ASIC before granting any authorisation. In essence, the respondents say that the power to issue an authorisation is purely an administrative function, not amenable to review in a judicial review proceeding such as the present, and for that reason should be dismissed, struck out or set aside.

57    Secondly, the respondents say ASIC has a broad power to authorise persons such as the receivers as “eligible applicants” and was not obliged to consider any particular disqualifying factor in the circumstances of the case.

58    In these circumstances, the respondents contend there are no reasonable prospects of the applicant’s judicial review application succeeding on any ground.

Operation of Div 1, Pt 5.9

59    The legislative histories of s 596A and s 596B of the Corporations Act and predecessor provisions have been traced in a number of decisions. I would mention for present purposes only the following decisions of this Court: Re Excel Finance Corporation Ltd (Receiver and Manager Appointed); Worthley v England (1994) 52 FCR 69 (Re Excel); Wainter Pty Ltd, in the matter of New Tel Limited (in liq) ACN 009 068 955 [2005] FCAFC 114; (2005) 145 FCR 176 (Re New Tel) and Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13; (2007) 156 FCR 501 (Highstoke).

60    In Re Excel, the Full Court of this Court (Gummow, Hill and Cooper JJ) had occasion to deal with s 597 of the former Corporations Law (Cth), a provision not dissimilar to s 596B of the current Corporations Act. The Court, at 81, pointed out that prior to the Uniform Companies Code 1981 (1981 Code) and the Corporations Law, the question of who should have standing to apply to the Court for an order was not specifically referred to by the legislation. The Court thereby inferred that the power (first contained in the 1981 Code and replicated in s 597 of the Corporations Law):

conferred upon the Commission [then the Australian Securities Commission or ASC] as an administrative matter to authorise a person to make an application reflected a legislative decision to move to the Commission the power to grant standing to apply to the Court, although without derogating from the discretion which was retained in the Court to grant or refuse an order on proper grounds.

61    As noted above, s 597 of the Corporations Law considered in Re Excel was in broad terms, similar to s 596B of the Corporations Act, in that:

    Subsection (1) in effect defined a “prescribed person” to include “any other person authorised by the Commission”.

    By subs (2), ASC or a prescribed person could apply to the Court for an order where it appeared to them that a person concerned in the operation, generally speaking, of a corporation may have been guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct and may be capable of giving information.

    By subs (3), the Court “may order” that the person attend to be examined on oath.

    By subs (4), an examination “shall be held in public” subject to the Court order.

    By subs (5), the Court on making an order for an examination may give directions as to the matters to be inquired into and the procedure to be followed.

62    The Court, at 81-82, considered the appropriateness of proceedings brought for judicial review of an authorisation of a person by Australian Securities Commission (ASC) for the purposes of s 597(1) and observed:

It is, if not explicit, certainly implicit, in his Honour's discussion of this question, both in Whelan [unreported, Federal Court, 11 May 1994] and in the present case, that the issues that would arise for decision on judicial review of an authorisation pursuant to s 597(1) and on a review of a Registrar's order under s 597(3) of the Corporations Law, would be identical. With respect, we do not agree. Section 597 envisages (where the applicant for an examination order is not one of the persons specifically granted standing to apply by the legislation) a two stage procedure culminating in an order of the Court for the examination, on oath, of a person on matters relating to the promotion, formation, management, administration, winding up or otherwise relating to the affairs of a particular corporation. The first stage in that procedure, where the prospective applicant for a Court order is not the Commission, official manager, liquidator or provisional liquidator of the corporation, is the authorisation by the Commission of the person to make an application to the Court under s 597(2).

63    The Court went on at 82 to note that in Hongkongbank of Australia Limited v Australian Securities Commission (1992) 40 FCR 402, a Full Court of this Court (Lockhart, Gummow and O'Connor JJ) held that the source of the power of ASC to authorise persons to make applications to the Court was to be found not in s 597(1) but in s 11(4) of the former Australian Securities Commission Act 1989 (Cth) (the ASC Act), a decision which was confirmed by another Full Court in Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409. The Court noted, however, that in Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723, a contrary view was taken to the effect that the power of authorisation was, by necessary implication, conferred by s 597(1) and vested in ASC by force of s 11(7) of the ASC Act.

64    In Re Excel, the Court then added, at 82, that the point of immediate significance was that it was for the ASC to make an administrative decision whether or not to authorise a person to apply to the Court under s 597(2). The Court added:

Once an authorisation has been made…the second stage of the procedure is an application by the authorised person…for an order for examination…. The result of the application to the Court is a decision whether or not to order an intended examinee to attend to be examined. Different matters will arise for consideration at each stage of this two stage process. The question at issue in the first stage would be whether the prospective application seeking authorisation is an appropriate person for the Commission to authorise to make the application to the Court. That question will require consideration of the relationship which that person has to the corporation in relation to which application to the Court will be made, although it may also encompass matters personal to that applicant, such as the applicant's relationship to the persons to be examined. The Court, in deciding whether to grant the examination order, may take into account different matters, specifically matters concerning the relationship between the examinee and the corporation as well, in an appropriate case, as the relationship between the applicant for the examination order and proposed examinee and the purpose of the applicant in seeking the examination order. (Emphasis added).

65    The Court then went on, at 82-83, to observe that were a question of standing to arise before the Court in a case where the applicant was a person authorised by the ASC, there would be practical difficulty in mounting a collateral attack upon the validity of the authorisation unless, on the face of that authorisation, it was apparent that it was outside power. Thus, a person seeking to challenge the validity of the appointment would not have available the specific provisions of the ADJR Act facilitating such a challenge. The Court observed that practically the fact of authorisation would preclude a collateral attack.

66    The Court then added, at 83, that once these matters are accepted, it becomes apparent that if a person seeks to challenge the validity of the ASC’s authorisation, that question will appropriately be decided in proceedings for judicial review of the authorisation. A challenge going to the appropriateness of an examination order, on the other hand, will be appropriately raised before the Court in the review of a decision to grant an examination order. It will ordinarily not arise for consideration in relation to the validity of the authorisation.

67    In Re Excel, the Court then dealt with an ADJR Act appeal in respect of the ASC’s authorisation. In this regard, s 597(1) of the former Corporations Law provided:

(1)    In this section, a reference, in relation to a corporation, to a prescribed person, is a reference to an official manager, liquidator or provisional liquidator of the corporation or to any other person authorised by the Commission to make applications under this section or to make an application under this section in relation to that corporation.

At 83-84, the Court noted that official managers, liquidators or provisional liquidators are, by virtue of their office, prescribed persons under this provision and thus have standing. The Court added that, what subs (1) does, in its reference to authorisation, is permit ASC to extend the class of persons who may, in a particular case, have standing through the grant by ASC of authorisation. The Court reinforced what it had stated earlier by noting that:

The Commission, in determining whether to grant authorisation, will consider the relationship which the person seeking authorisation has to the relevant corporation and the external management of that corporation which is in progress. Contributories and creditors would normally have the appropriate connection with the corporation (as the history of examination orders, already set out, demonstrates), although other factors relevant to a particular case may make the authorisation of such persons inappropriate. A receiver and manager might, as is conceded by the appellant also in an appropriate case, be authorised, that is to say given standing to apply to the Court under subs (2) for an order or orders under subs (3). (Emphasis added.)

68    The Court, at 85, went on to note that no criteria were expressed in s 597(1) to guide the exercise by the ASC of its power or function to authorise persons to make applications to the Court. At 86, having considered a range of authority, the Court concluded that reference to the subject matter, scope and purpose of subs (1) led to the conclusion that the decision-maker, in determining whether to authorise a particular person to make applications in relation to a particular corporation, will be required only to consider the relationship which that person has to the external administration and in a particular case the appropriateness of that person being given standing to apply to the Court.

69    After further discussion concerning the appropriateness of receivers and others to be so authorised, the Court, at 87, further noted that in an appropriate case the material before the decision-maker on behalf of the ASC may indicate that a person seeking authorisation “is in a difficult conflict situation”. Examples were given of a creditor who might be related to officers of the company who may seek authorisation to conduct an examination to forestall some other examination which may be in contemplation.

70    The terms of present s 596A of the Corporations Act concerning the Court’s power to issue an examination summons, are different from those found in the former s 597 of the Corporations Law considered in Re Excel which, as noted above, reflect the terms of the current s 596B. The definition of an “eligible applicant” provided by s 9 of the present Corporations Act is also a little different from the reference to a “prescribed person” found in the former s 597(1) of the Corporations Law dealt with in Re Excel.

71    Furthermore, the circumstances in which ASIC or an eligible person may now apply for an examination summons under s 596A and the powers of the Court in dealing with an application are different from those which applied under s 597(2) of the former Corporations Law dealt with in Re Excel.

72    Whether these changes are significant and whether it continues to be accurate to say that ASIC in determining whether to grant an authorisation “will consider the relationship which the person seeking authorisation has to the relevant corporation and the external management of that corporation which is in progress” is an issue.

73    Under s 596A the Court is effectively bound to issue an examination summons once an eligible applicant applies for it and the Court is satisfied that one of the matters mentioned in para (b)(i), (ii), (iii) or (iv) applies – no doubt that is why the heading to the section refers to “Mandatory examination”. The person who is to be summonsed under this section must be “an officer or provisional liquidator” at material times mentioned. The position that earlier prevailed under s 597(3) of the former Corporations Law considered in Re Excel, was that the Court had a discretion to order a broader range of persons to attend to be examined for the purposes described therein. This provision is now reflected by s 596B – the heading to which is “Discretionary examination”.

74    By s 596B the Court has a discretion to summons a person for examination if an eligible applicant applies for the summons and the Court is satisfied that the person has taken part or been concerned in the “examinable affairs” of the corporation and has been or may have been “guilty of misconduct” in relation to the corporation or may be able to give information about examinable affairs of the corporation. Thus, s 596B reflects the substance of the terms of s 597 of the former Corporations Law.

75    Nonetheless, it has been broadly accepted that the “two stage” analysis given in Re Excel remains of continued relevance to the workings of Pt 5.9 of the Corporations Act: see Soper v Australian Securities and Investments Commission [2004] FCA 854; (2004) 207 ALR 509 (Soper) at [32]; Woolfe v Australian Securities & Investments Commission [2004] FCA 1020 (Woolfe v ASIC) at [50]; Ryan v Australian Securities and Investments Commission; in the matter of Allstate Explorations NL (Subject to Deed of Company Arrangement) [2007] FCA 59; (2007) 158 FCR 301(Ryan v ASIC) at [40]-[41].

76    In Soper, at [32], Hely J plainly considered that the two stage process described in Re Excel continued to apply in respect of his consideration of s 596B of the Corporations Act as it then applied. His Honour confirmed the view that the question at issue in the first stage is whether the prospective applicant seeking authorisation is an appropriate person for ASIC to authorise to make the application to the Court. He said, conformably with Re Excel, that that question will require consideration of the relationship that that person has to the relevant corporation, although it may also encompass matters personal to that applicant.

77    His Honour also noted that a judicial review application based on a failure to take account of the relevant consideration will only be effective where, in the manner described in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, the consideration in question is one which a decision-maker was bound to take into account in order to validly exercise the power – that is to say, a mandatory relevant consideration. His Honour noted what are mandatory relevant considerations are to be determined by a construction of the statute. In particular, where the terms of the power are unconfined, the factors that may be taken into account are similarly unconfined; except in so far as there is found some implied limitation on the factors to which the decision-maker may legitimately have regard – with the existence of any implied limitation turning ultimately on the subject matter, scope and purpose of the statute. His Honour added, at [33], that:

Where a power is cast in very general terms, it is generally a matter for the decision-maker to decide what is relevant and what is not.

78    At [34], Hely J noted that, as Re Excel makes plain, the question for ASIC to determine is whether a person is an appropriate person to receive the relevant authorisation. His Honour noted that an applicant seeking a written authorisation does not have to show that he or she is the most suitable person in the circumstances to conduct an examination, although that is not to say that if some more suitable person was seeking to conduct examinations, that ASIC would not be entitled to take that matter into account, if it thought appropriate, in deciding whether or not to grant an authorisation.

79    In Woolfe v ASIC, RD Nicholson J similarly considered that the statutory approach had not changed in principle in respect of establishing a two stage process. Thus, at [51], RD Nicholson J considered that, that being the case, the issue of purpose will ordinarily not arise for consideration in relation to the validity of the authorisation, given that the Court may control improper purpose or abuse of power in exercise of its powers arising in relation to the issue of summonses for examination. His Honour therefore did not consider the grounds of improper purpose or abuse of power or unreasonableness properly arose for consideration in the ADJR Act review proceeding before him.

80    In Ryan v ASIC, at [41], Gyles J considered that what the Court said in Re Excel about the factors that would be taken into account by ASIC at the first stage of the process had not been rendered inappropriate by the amendments to the Corporations Act.

81    In Re New Tel, Wainter, a creditor of New Tel, which was in liquidation, applied for orders that summonses be issued directed to two persons pursuant to s 596A of the Corporations Act, and directed to another person pursuant to s 596B of the Corporations Act. Each of the appellants had issued interlocutory applications to set aside the orders made by a district registrar. The Full Court dismissed an appeal against the conclusion of the primary judge (RD Nicholson J in Woolfe v ASIC) that the examination summonses were not an abuse of process.

82    Justice Ryan agreed generally with the reasons of Lander J, although his Honour considered it unnecessary to enter into the controversy which has been generated “by some readings of” Flanders v Beatty (1995) 16 ACSR 324 (Flanders v Beatty) and Sandhurst Trustees Ltd v Harvey [2004] SASC 157; (2004) 88 SASR 519 (Sandhurst Trustees Ltd v Harvey) as to whether the changes to the Corporations Act Pt 5.9 were significant.

83    Justice Lander considered the relevant provisions of Pt 5.9 of the Corporations Act and something of its history. I should note in passing that s 596A considered in Re New Tel has since been amended so that the expression “examinable officer” is no longer used in para (b), but rather the expression, “an officer or provisional liquidator of the corporation”, is now used. The word “officer” is defined by s 9, which includes a receiver. He noted the definition of the expression “examinable affairs” in s 9 as extended by reference to other provisions.

84    Justice Lander, at [80], considered it was not necessary in that case to consider the precise ambit of an examination under the Corporations Act or under the Corporations Law after the Law was amended in 1992, except to observe that it is “extremely wide”. Justice Lander, at [81], said that an examination to determine whether the corporation would be likely to succeed in litigation against its officers, auditors or third parties would be within the examinable affairs of a corporation. Such an examination would assist an eligible applicant in identifying a chose in action which is an asset of the corporation. His Honour also considered, at [82], that an examination to determine whether any chose in action will ultimately be recoverable from any party or that party’s insurer is also within the contemplation of the section and that such an examination may be of a person against whom litigation is contemplated or even pending. His Honour further noted, at [83], that if the eligible applicant can satisfy the criteria in s 596A the Court has no discretion to refuse to issue the examination summons.

85    Justice Lander added, at [84], that s 596A is concerned with those persons who have had the responsibility of management of the corporation in the various capacities referred to in the definition of “examinable officer” (as the section then read). The eligible applicant, he said, is not obliged to establish that there has been any misconduct. The power must be exercised by the Court if the eligible applicant establishes that the proposed examinee is an examinable officer. The corporation may be in administration, subject to a deed of company arrangement, or being wound up. His Honour then added, at [84]:

However, that is not essential. ASIC, or a person authorised by ASIC, could apply to summon an examinable officer about the corporation’s examinable affairs even where the company is solvent and still trading provided that person is an examinable officer at the time of the application: s 596A(b)(iv). Because there is no limit as to whom ASIC might authorise as an eligible applicant under (e) of the definition of eligible applicant, a creditor of a corporation might be authorised by ASIC and could then require a Court to summon an examinable officer of that corporation if that person was an officer at the time of the application even where the corporation is still trading.

86    Justice Lander recognised, however, at [85], that the Court could refuse to issue an examination summons if the Court were satisfied that the eligible applicant had an improper purpose for seeking the summons, referring to Hamilton v Oades (1989) 166 CLR 486 (Hamilton v Oades) and Flanders v Beatty.

87    Justice Lander compared and contrasted s 596A with s 596B and said, at [89], that it is not difficult to understand why the power given in s 596B is discretionary rather than mandatory as in s 596A, as the class of persons who may be examined under s 596B is much wider, s 596A only applying to “examinable officers” as defined since amended and presently applying to “an officer or provisional liquidator”. His Honour noted that because the Court is given a discretion under s 596B it needs to be aware of the purpose and subject matter of the examination.

88    Justice Lander was also at pains to point out that the statutory position encapsulated in Pt 5.9 of the Corporations Act (as it then read ) had evolved since earlier cases that dealt with similar types of proceedings. He noted, for example, s 541 of the Companies (New South Wales) Code that was dealt with in Hamilton v Oades. Section 541 was similar to s 597 of the Corporations Law considered in Re Excel. In Hamilton v Oades, Mason CJ, at 497, said there were two public purposes that an examination serves. One is to enable the liquidator to gather information that will assist him or her in the winding up; that involves protecting the interests of creditors. The other is to enable evidence and information to be obtained to support the bringing of criminal charges in connexion with a company’s affairs. Those purposes were confirmed by Brennan CJ and Toohey J in Gould v Brown (1998) 193 CLR 346 at 387.

89    Justice Lander noted, however, at [116], that the two purposes identified by Mason CJ are not necessarily the only purposes for which s 596B had been enacted as the Chief Justice did not consider the section’s purposes in the circumstances of an official manager seeking an order. Justice Lander added:

Having regard to those who are now entitled to be an ‘eligible applicant’ under the Act, the first purpose identified by Mason CJ would not be limited to circumstances where a liquidator is gathering information to assist in the winding up and only protecting creditors.

90    In noting the legislative history of the current provisions of the Corporations Act Lander J, at [123], noted that prior to the 1992 Act, Pt 5.3 of the Corporations Law provided for a system of external administration by way of official management. His Honour noted, at [124], that the important point was that under the Corporations Law prior to the 1992 Act an official manager could apply for an order under the then s 597. Under the Corporations Law, however, the ASC could authorise a party or parties generally to make applications under s 597 or could authorise a particular party to make an application under the section. Thus, said Lander J, ASC could authorise a receiver (as it did in Re Excel) or a creditor (as was contemplated in Re Excel) to make application under the section. His Honour noted that the Corporations Law did not prior to the 1992 Act have an equivalent of s 596A.

91    Following those observations, Lander J at [126] then observed that:

If the prescribed person, for the purpose of s 597(1) of the Law, was an official manager or a person authorised by the Commission, that person could apply for an order under s 597 even though the corporation was not in liquidation or in the case of a person authorised by the Commission, in any form of administration. The corporation did not need to be in any form of administration for the Australian Securities Commission to make an application and obtain an order. The criteria that had to be satisfied were those in s 597(2) and, of course, paragraphs (a) and (b) were alternatives. The Australian Securities Commission could authorise a creditor to make an application. Again, if that had been done, there was no need for the corporation to be in any form of administration and, in particular, in liquidation.

92    His Honour noted, at [127], that in Re Excel the ASC had authorised the receiver and manager of the company, which had been appointed by the trustee of the debenture holders, to make application under s 597.

93    In Re Excel the issue that arose was whether the examination was an abuse of process because on the same day as an order for an examination was obtained, the trustee and debenture holders commenced proceedings against the examinee claiming damages for losses said to have been occasioned by reason of his negligent audit.

94    Justice Lander referred to circumstances identified in Re Excel that might be considered an abuse of process if examination proceedings were used as a “dress rehearsal” of cross-examination that might take place in a subsequent trial. Justice Lander, at [138], noted that in Re Excel, at 92-93, the Court had said that they were of the view that the use of the power to obtain an examination summons “for the principal purpose of furthering the cause of the applicant for the summons or, as in this case, appointor of the applicant in litigation against third parties, not for the benefit of the corporation, its contributories or creditors (other than in the most indirect way)” is an abuse of the power. Justice Lander noted, however, at [141], that Re Excel also decided that it was not necessarily an abuse of power for either an unsecured creditor or a secured creditor to use the procedure for the purpose of recovering the unsecured or secured debt.

95    Thus, Lander J considered, at [143], that Re Excel stands for the proposition that it is an abuse of process to use the Pt 5.9 procedure if the “predominant purpose” of the applicant is not for the purpose of benefiting the corporation, its contributories or its creditors. Justice Lander confirmed his view, at [151], that after the 1992 amendments the position under the Corporations Law as now under the provisions of the Corporations Act considered in Re New Tel, a creditor could become an “eligible applicant” if authorised by ASIC. At [152], Lander J noted that ASIC would only authorise creditors to be eligible applicants “if that were appropriate having regard to its own charter under the Act which constitutes it”.

96    Justice Lander then took issue with the observations of Ormiston J in Flanders v Beatty, where his Honour considered the Corporations Law provisions in s 596A and s 596B had introduced significant changes, compared with the earlier statutory provisions. Justice Lander, at [164], considered, however that the changes did not indicate so much an expansion of the class of persons who might seek an order under Pt 5.9 but merely recognised the different forms of external administration in the 1992 Act. His Honour, at [166], said therefore he could not agree that a “wider class” of persons had been identified so as to make the decisions and the dicta in previous cases under s 597 subject to any qualification.

97    Justice Lander dealt with other aspects of Flanders v Beatty, including Ormiston J’s further observation that the scope of the examination provisions was greatly expanded by the 1992 amendments, such that the statement in Re Excel, that the purposes to be served by examinations ought be limited by reference to the benefit of the company or its creditors or contributories, should no longer be considered relevant. Justice Lander disagreed that the scope of the examination provisions had been greatly expanded.

98    Ultimately, Lander J, at [194], expressed the opinion that nothing in the 1992 amendments derogated in any way from the underlying assumption in Re Excel that the purpose in seeking the examination summons must be the interests of the corporation, its creditors or its contributories.

99    To similar effect, Lander J did not agree with statements made in Sandhurst Trustees Ltd v Harvey.

100    Following reference to what Hayne J had observed in relation to earlier legislation in New Zealand Steel (Australia) Pty Ltd v Burton (1994) 13 ACSR 610 (New Zealand Steel), with which his Honour agreed, Lander J said, at [245], that the procedure in Pt 5.9 of the Corporations Law and the Corporations Act “is to aid persons who have the responsibility of the external administration of the company in carrying out their duties”.

101    His Honour added, at [246]-[247], that in his opinion those persons who had the responsibility of external administration owe duties to the creditors and contributories, and to the corporation which they are managing, and they are entitled only to seek an order for an examination summons where the purpose of the examination is for the benefit of the corporation, its creditors or its contributories.

102    Justice Lander added, at [248]:

So also ASIC is only entitled to authorise a person as an eligible applicant if that person’s purpose in seeking an examination summons is for the benefit of the corporation, its contributories or its creditors.

His Honour said that otherwise every corporation would be at risk of having its examinable officers or its officers or other witnesses examined to the possible detriment of the corporation. For example, a person claiming damages for a tort against a corporation could be authorised by ASIC as an eligible applicant and apply for an examination summons. His Honour added, at [251], that the purpose of Pt 5.9 is not to disadvantage corporations but to make the corporation’s examinable officers and other persons accountable to those who are obliged to act in the interests of the corporation.

103    His Honour, at [252], then set out a number of oft-quoted propositions that flowed from his analysis:

1.    The power given to the Court to summon a person for examination is a coercive power.

2.    The purpose of the power is to be gleaned from the legislation.

3.    The following legitimate purposes emerge:

3.1    First, an examination is designed to serve the purpose of enabling an eligible applicant to gather information to assist the eligible applicant in the administration of the corporation.

3.2    Second, it assists the corporation’s administrators to identify the corporation’s assets, both tangible and intangible. It also allows the corporation’s liabilities to be identified.

3.3    Third, the purpose is to protect the interests of the corporation’s creditors.

3.4    Fourth, it serves the purpose of enabling evidence and information to be obtained to support the bringing of proceedings against examinable officers and other persons in connection with the examinable affairs of the corporation.

3.5    Fifth, it assists in the regulation of corporations by providing a public forum for the examination of examinable officers of corporations.

4.    If an eligible applicant applies for an order for the examination of a person for a purpose unconnected with the purposes authorised by the legislation that will be an abuse of process and the order, if obtained, will be set aside.

5.    The procedure may not be used to allow a party to obtain a forensic advantage and, if it is, any order obtained will be set aside.

6.    The procedure may not be used as a dress rehearsal for the cross-examination of a person in a pending or subsequent action. However, it is not improper to seek an order of the Court to summon a person for examination whilst litigation is pending against that person or entities connected with that person.

7.    The question whether in any particular case the applicant has used the procedure abusively will depend upon the applicant’s purpose in seeking the order and all of the surrounding circumstances. It will not be an abuse unless an offensive purpose is at least the predominant purpose.

8.    It will be an offensive purpose if the application cannot be characterised as being for the benefit of the corporation, its contributories or creditors.

9.    A creditor may, if first authorised by ASIC, apply to the Court for an order to summon for examination a person for the purpose of obtaining information in relation to a debt owed to the creditor if such an examination would be in the interests of the corporation or its creditors as a whole.

10.    A creditor may not use the procedure for the purpose of obtaining a forensic advantage which would not have been available to the creditor if the corporation had not gone into administration.

104    Justice Crennan agreed with the orders proposed by Lander J and with his account of the history of legislative changes and conclusions that the findings of the primary judge were not affected by any error. However, as to his Honour’s consideration of Flanders v Beatty and Sandhurst Trustees Ltd v Harvey her Honour stated, at [269], that while she respectfully agreed that questions of whether or not the relevant amending provisions in the 1992 Act are “significant changes” were important, it was not necessary to determine the questions raised for the purpose of the appeal.

105    In the event, the opinion of Lander J seems to stand alone, not being directly adopted by either Ryan J or Crennan J. I should note, however, that in Bridgeport – Advisers & Asset Managers Pty Ltd [2005] NSWSC 757; (2005) 221 ALR 146, Barrett J at [45] and [47] mentioned the distilled principles of Lander J at [252] with apparent approval, although without any need to consider the broader issues concerning the circumstances in which an examination may be sought.

106    In Highstoke, French J considered a circumstance where the trustee for debenture holders of a company, which had brought proceedings against the former trustee company claiming damages for breach of duties, obtained authorisation from ASIC to apply to the Court for the issue of summons for examination of a director of the former trustee company in respect of its insurance cover, to determine whether any judgment on damages was likely to be satisfied, the former trustee and its director challenged the issue of the summons on the basis that the power was to be exercised only in relation to a corporation in some form of external administration. Justice French reviewed the legislative history of the examination power and relevant judicial analysis. Amongst authorities his Honour considered were New Zealand Steel and Re New Tel.

107    In responding to a contention that a wide view should be adopted as to who might be authorised under s 596A, having regard to the use of the word “otherwise” in para (b)(iv), French J, at [82], observed that s 596A refers to examination of “a corporation’s examinable affairs”, and that it does not, by that language, limit the class of corporations to which it applies to those under some form of external administration. His Honour noted that the class of persons who may be subject to a mandatory summons is set out in s 596A(b). His Honour then said, at [83], that:

If ‘otherwise’ in s 596A(b)(iv) refers to other forms of administration then the section is properly construed as limited to corporations under one of the three specified forms of external administration and any other forms for which Ch 5 provides. If ‘otherwise’ refers to any other circumstance at all, then the section allows a summons to issue for examination of persons in respect of any corporation’s examinable affairs whether it is in external administration or not.

108    His Honour, at [86], said the ordinary meaning of the words of both s 596A and s 596B would permit their application to the examinable affairs of any corporation, whatever its status. But, his Honour observed, they are words found in a chapter dealing with arrangements and reconstructions, receiverships, administration with a view to execution of a deed of company arrangement and winding up in insolvency and otherwise. Not all of these parts seem to fall readily within the term “External administration”. His Honour considered that particularly so of arrangements and reconstructions. Nonetheless, he considered they were processes subject to court approval and supervision. In this regard his Honour further considered that “External administration” is not a term of particular statutory significance here beyond its use as the title to Ch 5. What his Honour considered to be of significance was the context provided by Ch 5, however it is described. His Honour considered, at [87], that:

The context in which Pt 5.9 of the Corporations Act appears, as a set of miscellaneous provisions in Ch 5, strongly suggests that the examination power is intended to be ancillary to the functions of the Court and/or the functions of external receivers, controllers or liquidators of corporations for which Ch 5 makes provision. In so far as Ch 5 validly confers judicial functions on the Court, the power to issue summonses for examination may be seen as incidental to such functions.

109    Justice French concluded that the context in which Pt 5.9 operates is inconsistent with the propounded construction of s 596A and s 596B as conferring a general power on the Court to issue summons for the examination of persons about the examinable affairs of any corporation whether or not affected by other processes for which Ch 5 provides. In other words, his Honour considered they and their predecessors have been considered as provisions “applicable to companies in one or other form of administration and not as applicable to companies at large”.

110    Justice French, at [89], said that it followed that he would not agree with the “obiter observations” at [84] of Lander J in Re New Tel “which would see the application of ss 596A and 596B extended to solvent corporations not under any form of external administration”. I should note, however, as explained above, that at [245] Lander J ultimately expressly considered that the procedure in Pt 5.9 of the Corporations Act is to aid persons who have the responsibility of the “External administration” of the company in carrying out their duties. While his Honour’s comments at [248] concerning ASIC’s authorisation power might be a little ambiguous, I read them as subject to a similar limitation.

111    Justice French, at [90], did not consider it necessary to extract from Ch 5 all of the conceivable classes of corporate circumstances covered by that chapter to which s 596A or s 596B may be incidental and applicable. His Honour said:

It is sufficient to say that they do not extend to the examinable affairs of a corporation which is not under any form of external administration nor subject to any other judicial or administrative process for which Ch 5 provides.

112    I note that in Ariff v Fong [2010] NSWSC 696; (2010) 79 ACSR 71 (Ariff v Fong) at [19]-[20] Barrett J considered the views of French J to be “compelling”.

113    Leaving aside the apparent difference of view between what Lander J observed in [84] (and at [245]-[248]) of Re New Tel and French J in Highstoke, the respondents do not suggest French J was wrong to find that for the purposes of s 596A an “eligible applicant” authorised by ASIC must be a person authorised in relation to the examinable affairs of a corporation which is under some form of external administration or a judicial administrative process for which Ch 5 provides. The receivers say they were receivers and managers at all material times, a recognised other form of external administration and a category of person recognised in Re Excel and in Highstoke as one capable of authorisation by ASIC to make application under Pt 5.9 with this proposition the applicant joins issue. I return to the issue below.

Natural justice ground

114    Accepting the two-stage operation of Div 1 of Pt 5.9 of the Corporations Act discussed above, a question remains whether, in addition to ASIC considering whether an applicant for consideration is an appropriate person, ASIC must provide a person, such as a potential examinee, with an opportunity to be heard before granting any authorisation. In practical terms, this raises the question whether a potential target of examination is entitled as a matter of law to have some input into ASIC’s decision-making at the first stage, the authorisation stage. This was in fact the issue in Ryan v ASIC where ASIC authorised shareholders to make an application for the examination of persons about examinable affairs in relation to a company which had been administered subject to a deed of arrangement. The shareholders applied for, and obtained, a summons for examination of the administrators. Before the decision there had been considerable communications between ASIC and the administrators but the administrators did not receive prior notice of ASIC’s intention to make the decision. The administrators applied for ASIC’s authorisation decision to be set aside. On behalf of the administrators it was argued that the shareholders had been given a new right or status that they did not previously have or enjoy and it was a right that would inevitably lead to a mandatory court order for compulsory public examination of the administrators under s 596A. Thus, the grant of the right necessarily had the potential to directly affect the rights and interests of the administrators. In circumstances where the decision was not appellable to the Administrative Appeals Tribunal, the only relief available was by way of judicial review.

115    Justice Gyles, however, at [60], considered the first stage authorisation had “no effect” upon any other person. His Honour observed:

The interests of other persons are not affected unless and until a summons is issued. The focus upon the Administrators in this case tends to distort perspective. It does not even follow that the issue of a summons for examination and the conduct of the examination will have an adverse impact upon all potential examinees. An examinee may be asked to give an account of what occurred in the affairs of the company without any reflection upon the examinee or the disclosure of any information personal to the examinee. Examinations may be conducted in order to obtain information without any defined target and, even if there is a defined target, many examinees will not be that target. Given the width of ss 596A and 596B, it is apparent that it would be quite impractical to give notice to all persons who might be conceivably affected by the appointment of a person as an eligible applicant in relation to the affairs of a particular corporation either as a potential examinee or a person potentially affected by evidence to be given by an examinee.

116    Justice Gyles, at [61], further considered that the circumstances of the case before him, where ASIC and the administrators had been in communication, did not affect this outcome. His Honour said:

Either the statutory power is subject to the obligation to afford prior notice or it is not. The circumstances of the particular application for exercise of the power do not affect the question as to whether the implied obligation has any operation in relation to the power in question. The decision to authorise the Evans did not itself directly adversely affect the interests of others in the manner required to bring the statutory presumption into play.

117    There may, of course, be circumstances where, in the exercise of a statutory power, a decision may create something in the nature of a legitimate expectation that the decision-maker will follow a particular decision-making process, including by receiving representations from a particular third party, the denial of which expectation may permit that third party to claim they have been denied procedural fairness in the exercise of that power –even though, on its strict construction, they would not ordinarily have standing to seek judicial review of that decision: see, for example Merman Pty Ltd v Parker, Minister for Minerals and Energy (1987) WAR 159. However, Gyles J analysed a range of precedent authority suggesting circumstances where a duty to accord natural justice or procedural fairness had been found in the exercise of particular statutes, as well as the existence of legitimate expectations to be so consulted. His Honour dealt with the question of legitimate expectation at [71] where he expressed the view that, in relation to the case before him, the discussion in the High Court decision of Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 was inconsistent with the features in the dealings between the parties before him that were identified as giving rise to or creating an obligation to give notice to the administrators before exercising the statutory power in question.

118    I consider the decision in Ryan v ASIC is based on sound reasoning with which, with respect, I agree. The proposition that, in effect, ASIC should consult with a range of potential examinees who may possibly be affected by the authorisation of a particular person to apply for an examination summons under the Corporations Act lacks coherence in policy terms. By that I mean the subject matter, scope and purpose of Pt 5.9 of Ch 5 of the Corporations Act does not seem to me to require such an outcome. The finding of a duty to consult would not only delay the sensible administration of that part of the Corporations Act by ASIC but would also conceivably provide a target examinee with two opportunities, at least, to challenge ASIC’s decision – both the first stage decision and in the course of resisting the second stage examination. In circumstances where questions of substance relating to any alleged improper purpose or other such grounds can be raised at the second stage examination by a directly affected person, the need for the law to impose a consultation obligation on ASIC to give notice to potential examinees (or other persons) at the first stage of the process identified in Re Excel does not commend itself in terms of practical administration or legal reasoning.

119    It also seems to me irrelevant, in the circumstances of this case, that the receivers had requested and received from or on behalf of Newport, Seaport and Mayport information supplied by Mr Wheeler, a person associated with the applicant at material times. That conduct did not in any way bind ASIC.

120    The respondents contend that it is clear, based on authority, that not every decision of an administrative character must have attached to it a duty to accord procedural fairness, although most will be subject to such duty. In this the respondents refer to what Mason J said in Kioa v West (1985) 159 CLR 550 at 584:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention…. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does

not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:

... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.

121    I accept the respondents’ submission that the applicant’s contentions of failure to accord natural justice cannot succeed, or at least has no reasonable prospect of success, in this case because:

(1)    the statute provides no requirement to give any notice to any potential examinee at the stage of authorisation as an eligible applicant;

(2)    the conferral of eligible applicant status does not affect the legal interests of any of the potential examinees, which constitutes a large and quite possibly indeterminate class;

(3)    on the contrary, the authorisation as eligible applicants is but the first stage of a two stage process and that the first stage does not affect the interests of a potential examinee “in a direct and immediate way”;

(4)    the focus of that first stage is on a relationship between the applicant and the corporation. Here, the applicant was a receiver/manager; a person ordinarily entitled to be granted status as an eligible applicant. The challenge is relating to the position of the potential examinee fall to be dealt with at the second stage of issuing the examination summons;

(5)    in the circumstances there was no requirement for ASIC to afford the applicant natural justice in the manner contended for.

122    In these circumstances I consider the applicant’s first ground of judicial review specified in the originating application has no reasonable prospects of success and should be struck out.

Improper exercise of power

123    The respondents similarly argue that the applicant cannot succeed either under the general law or under s 5(1)(e) of the ADJR Act on the ground that the authorisations were an improper exercise of power conferred on ASIC, because irrelevant considerations were not taken into account or because irrelevant considerations were taken into account, when, on a proper construction of the Corporations Act (and the Australian Investments and Securities Commission Act 2001 (Cth) (ASIC Act)), ASIC was not bound to take account of submissions or comments that might have been made by the applicant, or of pending litigation between the applicant and related parties and the respondents in this proceeding and Bankwest.

124    My findings in relation to the duty – or absence of one – upon ASIC to canvas the views of the applicant before granting the respondents’ authorisations for the purposes of Pt 5.9 of the Corporations Act, bear on this ground to an extent and suggest there are no reasonable prospects of such an argument succeeding. If ASIC did not labour under a duty to consult the applicant it can hardly have acted improperly by not seeking out and regarding his views.

125    In any event, I do not consider ASIC was bound to consider the particular matters mentioned in this ground of the applicant’s judicial review application and I mostly accept the respondents’ further submissions in this regard. As discussed further below, receivers are generally appropriate candidates for authorisations as noted above. As a result the pending litigation referred to by the applicant could only be relevant to the secondary consideration applicable at the authorisation stage, namely, whether there was anything personal to the respondents, such as the applicant’s relationships to persons to be examined. Thus, had the pending litigation been brought to its attention, ASIC would have been required to consider whether that ought to have disqualified the respondents from receiving authorisation, notwithstanding the general appropriateness of their candidature as receivers.

126    The material before the Court does not disclose whether the pending litigation was brought to ASIC’s attention and, if it was, whether ASIC took it into account. Putting the applicant’s case at its highest, that is to say assuming that the litigation was not brought to ASIC’s attention, or if it was and was not taken into account, the applicant nonetheless has no reasonable prospects of success for the following reasons. First, in Re Excel, at 87, the Court noted that in an appropriate case the material before the decision-maker may indicate that a person seeking authorisation is in a difficult conflict situation. The examples given, as noted above, are of the creditor related to officers of the company to the knowledge of the decision-maker. However, the Court in Re Excel then went on to note:

If facts such as those were known to the decision-maker, it might be necessary to take them into account. But that is not the present case.

Similarly, in the present case, there is no foundation for an assertion of this nature. There is no suggestion, let alone evidence of something personal to these respondents in their relationship with the applicant or the subject corporations which ASIC was required to consider but failed to consider.

127    As to the pending litigation, the litigation was not at material times between the applicant and the respondents, but rather between the applicant and the respondents’ appointor. There is nothing to suggest (as in Re Excel at 92) that the respondents were or are seeking to conduct the examination in the interests of a creditor who appointed them, rather than in the interests of other creditors or for the purpose of finding out the circumstances which led the company into financial difficulties. In any event, as Re Excel itself makes clear, even if the receivers were in this position, that would not of itself render them unacceptable candidates for authorisation.

128    Further, RD Nicholson J held in Woolfe v ASIC, at [51], that the issue of improper purpose will ordinarily not arise for consideration in relation to validity of the authorisation. In Woolfe the applicant challenged the authorisation of the receiver on the basis, amongst others, that the decision-maker had failed to consider matters relating to the relationship between the receiver and his appointor and had failed to take account of the receiver’s intention to obtain evidence for use in proceedings to be brought by his appointor against the proposed examinee.

129    Finally, there is the question of whether the receivers were capable of being authorised as “eligible applicants”. The applicant further contends, as part of the improper exercise power ground, that in the circumstances of this case, ASIC did not appropriately take into account the fact that Seaport, Newport and Mayport were not in external administration; alternatively ASIC considered the receivers were acting in a capacity equivalent to a liquidator or administrator.

130    The applicant says it has never been judicially determined that an application can be made under s 596A where the relevant company is not under administration of one of the types specifically referred to in s 596A(b)(i)-(iii), or an analogous administration. On behalf of the applicant it is submitted that in almost all cases, the triggering administration is winding up. The applicant says that in Re Excel the company was not in external administration and the point it seems is not taken or argued.

131    The applicant also says that Lander J in Re New Tel considered that it was not necessary under s 596A for the corporation to be under any administration at all, only that the examination be for a proper purpose, for the benefit of the corporation, its contributories or its creditors.

132    The applicant refers, however, to Highstoke and the holding of French J that in the absence of any form of Ch 5 administration, ASIC could not authorise a person to apply for a summons.

133    The applicant also draws attention to Ariff v Fong at [19]-[20] where Barrett J considered the reasoning of French J in Highstoke as “compelling”. As a result, Barrett J held that, in the absence of any administration, an administration under a deed of company arrangement having ceased, the summons and order for production should be discharged.

134    The receivers acknowledge that Mayport is the only corporation in respect of which there is what might be called a full receivership. However, the respondents say a distinction between the receivership over the whole of the assets of the corporation does not place a person applying for “eligible applicant” status in any different position from a person who is a receiver of only some of the assets of the corporation.

135    Counsel on behalf of the receivers says a receiver is always appointed a receiver over company assets. The fact that the receivership may be in respect of all the assets or only some of the assets of the company is irrelevant.

136    Counsel for the receivers also draws attention to the definition of “controller” that appears in s 9, to the effect that, in relation to property of a corporation, means:

(a)     a receiver, or receiver and manager, of that property; or

(b)     anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;

and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).

Counsel submits that this definition does not say anything about “all the property” of the company – simply “property of the corporation”.

137    On behalf of the receivers, counsel also draws attention to the definition of the expression “externally-administered body corporate” in s 9, as follows:

Externally-administered body corporate means a body corporate:

(a)     that is being wound up; or

(b)     in respect of property of which a receiver, or a receiver and manager, has been appointed (whether or not by a court) and is acting; or

(c)     that is under administration; or

(ca)     that has executed a deed of company arrangement that has not yet terminated; or

(d)     that has entered into a compromise or arrangement with another person the administration of which has not been concluded.

So far as para (b) of this definition is concerned, counsel notes the property referred to is “property of which a receiver…has been appointed (whether or not by a court) and is acting” and it matters not whether the receiver was appointed by private instrument or by the court. The definition includes both. Additionally, there is no suggestion that the receiver must be one who has been appointed over all of the property of the company.

138    It may also be noted that the word “property” is defined by s 9 as follows:

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes a thing in action, and:

(a)     in Part 5.3A (administration)—has a meaning affected by section 435B; and

(b)     in Part 5.4B (winding up in insolvency or by the Court)—has a meaning affected by section 465; and

(c)     in Part 5.5 (voluntary winding up)—has a meaning affected by section 489F; and

(d)     in Part 5.6 (winding up generally)—has a meaning affected by section 513AA; and

(e)     in Part 5.7B (recovering property or compensation for creditors of insolvent company)—has a meaning affected by section 588C; and

(f)     in Part 5.8 (offences relating to external administration)—has a meaning affected by subsection 589(5); and

(g)     in Part 5A.1 (deregistration, and transfer of registration, of companies)—has a meaning affected by section 601; and

(h)     in Part 5B.2 (registrable bodies)—has a meaning affected by section 601C.

Note:     A reference in this Act to the property of a corporation does not include a reference to any PPSA retention of title property of the corporation, unless provided otherwise expressly or by necessary implication (see section 51F). The sections mentioned in paragraphs (a) to (h) extend references to property of a corporation in Parts of this Act to PPSA retention of title property (or to certain PPSA retention of title property).

Counsel for the receivers submits that definition means any property.

139    On behalf of the receivers it is submitted that none of the cases relied upon by the applicant draws any distinction whatsoever between a receiver to part of the company’s assets and all of them.

140    I generally accept the submissions on behalf of the respondents about the ability of ASIC to appoint receivers such as the second, third and fourth respondents in this case as “eligible applicants” for the purposes of Pt 5.9 of the Corporations Act. The fact that a receiver of property of a corporation is a receiver (or a receiver and manager) for only some, but not all of the property of the corporation appears to me, with respect, to be an irrelevant consideration. That person, as a receiver or as a receiver and manager, is on any proper view a person engaged in some form of external administration of the company. As the respondents submit, authorities such as Re Excel and Highstoke clearly support the view that ASIC has the power to authorise a receiver or receiver and manager as an “eligible applicant” for the purposes of Pt 5.9 of the Corporations Act.

141    Once it is accepted that the respondents were receivers of assets of the relevant corporations it is immaterial whether they were only appointed, in some cases, as receivers of some, but not all, of the secured property. In that regard I reject the argument to the contrary put on behalf of the applicant. I can see nothing in Re Excel, for example, which qualifies the proposition that the only type of receiver who may be authorised is one who holds security over the entirety of the corporation’s assets. In my view the distinction contended for is one without a difference. The interests of the “eligible applicant” in the case of a “full” receivership are the same as in a “partial” receivership. On an inquiry into the “examinable affairs” of the corporation, the purpose is the same. The examiner wants to discover from the examinee, on behalf of the creditor, what the asset position of the corporation truly is in the interests of their appointor.

142    For these reasons, I consider the second ground advanced in support of the judicial review application has no real prospect of success and should be struck out.

objection to competency

143    The receivers also filed an objection to jurisdiction in the proceeding on the basis that ASIC’s decision to authorise each of them as an “eligible applicant”, is not a “decision…under an enactment” and that the applicant is not a “person aggrieved” by any such decision, for the purposes of the ADJR Act. The issue is pressed on the interlocutory application.

144    The receivers rightly note that under s 5(1) of the ADJR Act, an applicant can only challenge a “decision to which this Act applies” although s 3(1) clarifies that the expression means “a decision of an administrative character made…under an enactment”.

145    The receivers point to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) where the Court held that for a determination to be a reviewable decision under the ADJR Act it will generally, but not always, entail a decision required by or authorised by a statute which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. Thus, a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision will not ordinarily be a reviewable decision unless the statute provides for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. What Mason CJ said to that effect, at 337-338, was the subject of agreement by Brennan J. Generally speaking, Deane J also agreed with the judgment of the Chief Justice.

146    The receivers submit that the ASIC authorisation decision is “insufficiently” final or operative and determinative to constitute a decision by which the applicant is aggrieved. It is contended that the decision merely confers standing on the appointee to approach a court to seek the issue of a summons. It is for the Court to determine whether or not to issue a summons to permit the examinations to take place, and that latter determination is the point in time at which the decision becomes operative and determinative as far as the applicant is concerned.

147    The receivers argue that the point they wish to make is illustrated by the decision of Lindgren J in Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 (Deloitte), where the Court considered a challenge to a determination by the ASC that it was in the “public interest” to commence proceedings against the applicant in the name of a corporation under s 50 of the ASC Act, as it then stood. The issue was whether the prior determination as to the “public interest” was reviewable under the ADJR Act, once the ASC had already commenced proceedings.

148    Justice Lindgren concluded that the public interest determination was not reviewable because it had no final or operative and substantive effect or at least ceased to have that effect once consequential proceedings had been commenced.

149    The receivers also seek to dispose of an argument that ASIC’s authorisation might be viewed as “an intermediate decision” as described by Mason CJ in Bond. However, it should not be because the authorisation arises from the general incidental powers bestowed on ASIC by ASIC Act s 11, read with the Corporations Act and does not involve the exercise of powers “creating rights or reposing powers”.

150    Viewed more generally the receivers argued that an ASIC authorisation has of itself no impact on the rights of an examinee, as generally not granted in terms that affected any particular person and is not undertaken pursuant to an express or independent legislative provision which proposes power, but rather is derived from a provision that confers incidental and general power.

151    In my view, these contentions must fail. Apart from anything else, decisions such as Re Excel and the others cited above, all go to show that an ADJR judicial review proceeding might be brought in respect of the exercise of the authorisation power function by ASIC by an aggrieved examinee. Plainly, a decision is taken at some point to authorise a person as an “eligible applicant” where they have applied for that status. The grant of that authorisation bespeaks a decision. The decision so made is pursuant to s 11 of the ASIC Act, when read with the relevant provisions of the Corporations Act, as initially explained in Re Excel and accepted in this Court ever since: see for example Soper at [31], (Hely J).

152    Further, the grant of the authorisation is the result of a clear and distinct process. Once done, a person granted the status of eligible applicant may or may not act on it. But the administrative process in granting the authorisation is complete. It is not to be compared with a step along the way, as discussed in Bond. It is not something that raises an issue as to the “public interest” which must then be considered in more detail in subsequent court proceeding, as discussed by Lindgren J in Deloitte. Indeed, the authorisation is the “ticket” that gives the “eligible applicant” standing to enter the Court to ask for an examination summons. Without it, a person in the position of the receivers has no capacity to seek an examination order.

153    While it is true, as I have found, that the grant of the authorisation does not have any immediate impact on the rights of any particular prospective examinee or target, that does not mean the grant of the authorisation did not involve a decision. The question of who may have standing to challenge the decision in a judicial review proceeding under the ADJR Act, should not be confused with the question whether or not there has been a decision.

154    I therefore reject this first plank of the competency argument.

155    The second plank of the competency argument is that there is no decision made “under an enactment”. Here, the receivers rely on what was said in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 (Griffith University v Tang) where Gummow, Callinan and Heydon JJ at [89] said a decision will only be taken to be a “decision…under an enactment” if:

(1)    “the decision must be expressly or impliedly required or authorised by the enactment”; and

(2)    the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense derives from the enactment.

156    The receivers argue that the authorisations are expressly or impliedly required or authorised by the Corporations Act, but as explained by Gyles J in Ryan v ASIC, do not themselves confer, alter or otherwise affect the applicant’s legal rights or obligations. Therefore, it follows that the authorisation does not derive from the enactment. The applicant’s rights or obligations are only capable of being affected by a later step in the statutory scheme being the issue of a summons by a court.

157    In my view, this particular argument is wrong. The circumstances in Griffith University v Tang bear no real relationship to the current circumstances. In Griffith University v Tang the university excluded a post-graduate student from further participation in its degree program after finding she had engaged in academic misconduct. The university was established under statute, a provision of which declared the council of the university to be the governing body and another provision provided for the council to exercise the power to “manage and control the university’s affairs and property”. The council formulated policies on enrolment and academic misconduct under that power and, applying those policies excluded the student after inquiries and a hearing. It was in respect of the application of those policies that the Court concluded that decisions taken were not to be regarded as having been made “under an” enactment.

158    There has been much academic criticism, in particular, of the decision in Griffith University v Tang because of a perceived failure by the Court to accept the simple analytical argument that the disciplinary procedures were created pursuant to a course of action made permissible by the statute (as to which criticism see Keane, Chief Justice The Hon PA, “Democracy, Participation and Administrative Law” (2012) 68 AIAL Forum, pp 1-18 at pp 8-12, but as I have said, that case is entirely different from the position here. Here, ASIC have the power to authorise a person as an “eligible applicant”. That power was exercised. The authorisation decision was plainly and directly made “under” s 11 of the ASIC Act when read with the relevant provisions of the Corporations Act. Unlike the decision in Griffith University v Tang, it was a decision precisely provided for by the Corporations Act.

159    It is unhelpful in such circumstances to focus on the question, as the submissions of the receivers do, whether the decision to grant the authorisations affected the rights of the applicant; that is not the question. As pointed out above, the question whether a person is a “person aggrieved” for the purposes of the ADJR Act is an entirely different question.

160    So far as the “person aggrieved” test is concerned, the authorities again support the view that, albeit after the event, a person such as the applicant has standing to seek judicial review under the ADJR Act under this test: Re Excel; Ryan v ASIC; Re New Tel.

161    For these reasons, the notice of objection to competency filed by the receivers on 12 September 2011 should be dismissed.

conclusions

162    Having regard to the findings I have made above, there are no complex issues of fact which suggest the Court should be particularly cautious before concluding, as I have, that there are no reasonable prospects of the grounds of judicial review advanced by the applicant in the judicial review proceedings succeeding. In these circumstances, the receivers’ application for summary judgment should be granted. However, the receivers’ objection to competency fails.

163    I will hear from the parties on the question of costs, given that the receivers have failed on their objection to competency.

orders

164    The Court orders that:

1.    The proceedings be dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth).

2.    The notice of objections to competency of the second, third and fourth respondents be dismissed.

3.    The Court will hear from the parties as to costs.

Associate:

Dated:    28 June 2012