FEDERAL COURT OF AUSTRALIA

Fiorentino v Administrative Appeals Tribunal [2014] FCA 735

THE COURT ORDERS THAT:

1.    The Applicant’s application for interlocutory relief is refused.

2.    The Applicant is to pay the costs of the Australian Securities and Investments Commission as agreed or assessed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1    This is an urgent application for interim relief to ‘stay’ a decision of the Companies Auditors and Liquidators Disciplinary Board (Board) given on 24 June 2014 to cancel the applicant’s registration as a liquidator (the cancellation decision) and to restrain the Board from publishing that decision in the Commonwealth of Australia Gazette and elsewhere. Under s 1296(1)(c) of the Corporations Act 2001 (Cth), the Board has an obligation to cause to be published in the Gazette, notice in writing setting out any decision made under s 1292 within 14 days after the decision. The part of the Gazette in which such notices are ordinarily published is managed by the Australian Securities and Investments Commission (ASIC). The 14 day period in question expires tomorrow on 8 July 2014.

BACKGROUND

2    The applicant, who has been registered as an official liquidator since January 1997, applied for review of the cancellation decision to the Administrative Appeals Tribunal (AAT) on 26 June 2014. That application for review has been listed for telephone conference in September 2014.

3    In his application for review to the AAT, the applicant gave the following reasons for challenging the cancellation decision: “the decision is wrong, should not have been made, defies logic, sense, and any semblance of justice, and should be overturned and no publicity be effected in the interim”. The applicant sought as a part of that application, interim orders staying, in his words, “the entering of, publication of gazetting of, or giving effect to” the decision of the Board pending the final determination of the matter by the AAT.

4    On 3 July 2014, the AAT refused the applicant’s application for interim orders for a stay under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Court was informed that written reasons for the decision have not yet been provided by the AAT.

5    By an application filed this afternoon under 39B of the Judiciary Act 1903 (Cth), the applicant seeks to quash the AAT’s decision to refuse to grant him a stay by an order in the nature of certiorari and an order that the decision of the Board be stayed until final determination of the application for review before the AAT.

6    The applicant also claims interlocutory relief and, in particular, orders:

2.    …enjoining the [Board and ASIC] from publishing, gazetting, entering or in any way giving effect to the Decision of the [Board] to cancel the registration of the Applicant as Liquidator until final determination of this matter.

3.    …staying the Decision of the [Board] made on 24 June 2014 to inter alia cancel the registration of the Applicant as a Liquidator until final determination of this matter.

7    The application for interlocutory relief was brought on urgently before me this afternoon initially as an ex parte application. The AAT indicated that it intended to file a submitting notice and did not request to be heard in relation to Mr Fiorentino’s application. However, a communication was received from ASIC which sought to be heard on the application. As a result, the Court adjourned briefly and counsel for ASIC attended by telephone conference, together with legal representatives from ASIC. In the circumstances, ASIC did not have an opportunity to lead evidence with respect to the application for interim relief. However, certain of the materials on which ASIC sought to rely had already been placed before me appropriately by the applicant. In particular, I refer to the decision of the Board to cancel the applicant’s registration, the decision of Brereton J in Re ERB International Pty Ltd (deregistered) [2014] NSWSC 200 and the decision of the Federal Court in Fiorentino v Companies Auditors and Liquidators Disciplinary Board [2014] FCA 641. Prior to ASIC being joined via teleconference at the hearing, Mr Fiorentino also properly put before me a number of documents which on their face appear to be publicly available and indicate some of the prior litigation involving the applicant and the findings made against him. Those findings included, relevantly, the fact that Mr Fiorentino was facing cancellation of his registration certificate following the findings of the Federal Court in June 2014.

8    ASIC explained that the Board had not yet published the decision on the website. However, notwithstanding ASIC’s best endeavours to confirm whether or not publication of the decision in the Gazette could be recalled before tomorrow, ASIC was unable to obtain that information this evening given the lateness of the application and their notice of it.

CONSIDERATION

9    While this Court has power under s 44A of the AAT Act to stay a decision of the AAT, that power exists only where an appeal has been brought against the decision of the AAT under s 44 of the AAT Act, which has not occurred in this case. No such power exists in an application under s 39B of the Judiciary Act. However, this Court does have power to grant an interim injunction where that is appropriate. The power to grant injunctive relief does not, however, seem to provide a mechanism for granting interim relief with respect to the Board’s decision itself as there are no further steps to be taken with respect to the decision, which is in effect to cancel the applicant’s statutory permission to practice as a liquidator. However, that still leaves open the question of whether an injunction should be granted to restrain ASIC from gazetting the decision and publishing the decision on its website, in a media release or otherwise.

10    The test which the Court must apply in determining whether an interim injunction should be granted is well settled: see, eg, Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398 (Gibbs CJ); Epitoma Pty Ltd v Australiasian Meat Industry Employees’ Union (No 2) (1984) 54 ALR 730 at 734 (Full Court). The proper approach is first to enquire whether there is a serious question to be tried, and then to determine the matter on the balance of convenience. It is sufficient to show a serious question to be tried if the applicant demonstrates a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. This threshold is not particularly onerous: Cahill v Construction Forestry Mining and Energy Union (2006) 151 IR 41. In considering the balance of convenience and the justice of the case, the Court must assess and compare the prejudice and hardship likely to be suffered if an injunction is granted with that which is likely to be suffered if one is not granted.

11    The first question that I must consider is whether there is a serious question to be tried.

Is there a serious question to be tried with respect to the alleged breach of procedural fairness?

12    For the reasons already given, I do not consider that the Court has power to grant a stay of the decision of the AAT on an application under s 39B of the Judiciary Act. The only other substantive relief sought is a writ of certiorari to quash the adjournment decision. None of these are remedies for which s 39B(1) of the Judiciary Act provides, in common with s 75(v) of the Constitution which it mirrors. As relief founds the jurisdiction under those provisions in line with established authority, it follows that the applicant has failed to identify relief sufficient to attract the jurisdiction of this Court: R v Bowen; Ex parte Federated Clerks Union of Australia (1984) 154 CLR 207 at 211. However, as this matter was not raised during argument and may have been curable by amendment to the application, I have continued in any event to consider whether the application otherwise raises a serious question to be tried.

13    The affidavit in support of the application complains that the applicant was not afforded procedural fairness by reason of the AAT failing to grant him an adjournment in February 2014. He contended that if the adjournment had been granted, he would have been able to prepare his case properly in response to ASIC’s application and, if he could have afforded it, provided proper instructions to legal representatives to appear on his behalf. He also contended that he would have been able to locate, organise and otherwise properly consider further evidence in support of his case.

14    As the applicant explained at the hearing, there had in fact been a number of applications for an adjournment of the proceedings before the Board.

15    Shortly before the hearing before the Board which was initially listed in November 2013, Mr Fiorentino applied for an adjournment on the basis that his insurers had agreed to pay his legal costs and the adjournment was required in order to allow him to engage legal representation to appear on his behalf. The Board granted that adjournment until 3 February 2014 when the matter was relisted.

16    The applicant again applied for an adjournment on 30 January 2014 after the insurer withdrew its support in order to enable him to seek specific performance against the insurer. That application was refused by the Board.

17    Finally, on 3 February 2014, the applicant’s further application for an adjournment for two months for the same purpose was again refused by the Board (the adjournment decision). Mr Fiorentino then declined to appear before the Board on the hearing of the application by ASIC which proceeded to a conclusion with the decision being reserved.

18    The applicant sought review of the adjournment decision on 3 February 2014 in the AAT. That application was dismissed by the AAT on the basis that the adjournment decision by the Board was not reviewable by it.

19    He then instituted proceedings in the Federal Court challenging the adjournment decision which were heard in May 2014. Significantly, he did not seek interim relief in those proceedings. That application was dismissed on 19 June 2014, some five days before the Board delivered its decision on the substantive application for deregistration. His Honour found that there was no denial of procedural fairness and that the decision to refuse the adjournment was not unreasonable. His Honour also found that the applicant’s decision not to remain for the substantive hearing before the Board was “his own forensic decision”, a finding which was in fact confirmed by the applicant. As has often been said, the obligation to provide procedural fairness requires the extension to an affected person of an opportunity to be heard; it does not require that the person in fact take up that opportunity: see, eg, Sullivan v Department of Transport (1978) 1 ALD 383 at 403 (Deane J). No appeal from the Federal Court’s decision has yet been instituted.

20    In these circumstances, I do not consider that it is open to the applicant to seek to re-open the question of whether the Board acted in breach of procedural fairness in refusing the adjournment through these further and separate proceedings. As counsel for ASIC submitted, the existence of the judgment in the earlier proceedings gives rise to a res judicata, or alternatively issue estoppel or Anshun estoppel, which would preclude Mr Fiorentino from seeking the final relief sought in these proceedings. As a result, I do not consider that the application gives rise to a serious question to be tried.

21    In his oral submissions, the applicant explained that he took issue strongly with the findings of the Board and submitted that if he were permitted a further opportunity to lead evidence and cross-examine, he would have been able to demonstrate that the conclusions reached by the Board were in error. However, that does not provide an answer to the question of whether he was afforded an opportunity to be heard in accordance with law in the first place. As I have explained, all that is required is an opportunity to be heard and not that the person concerned in fact take advantage of that opportunity.

22    The applicant also deposed to the significant prejudice that he said he would suffer if his registration was cancelled particularly before any rehearing was concluded in the AAT. In particular in his affidavit he said that “[m]y rights to appeal the decision of [the Board] before the AAT, or before this Court or any other Court would be rendered nugatory and meaningless on the basis that my career and finances would be destroyed irrespective of the outcome of any rehearing or appeal.” He further deposed that he considered his reputation would be irreparably damaged causing prejudice to his ability to pursue his career and effectively conduct the application for review.

23    These are matters which would have been relevant to the exercise of my discretion if I had determined that there was a serious question to be tried. However, having reached the conclusion that I have, I do not need to consider these aspects of his claim for interim relief further. However, I consider there is some force in the submission for ASIC that there are already published judgments of the New South Wales Supreme Court and Federal Court which expose his involvement in certain of the activities leading to the application for deregistration and which have also made public the risk that he faced of deregistration by reason of his involvement in those activities.

24    In my view, the application must be refused on the basis that the applicant has failed to establish the existence of a serious question to be tried. For these reasons, I order that the applicant’s application for interlocutory relief be refused. The applicant is to pay the costs of the Australian Securities and Investments Commission.

Associate:

Dated:    9 July 2014