Federal Court of Australia

Shari v Commonwealth of Australia [2026] FCA 858

ORDERS

THE COURT ORDERS THAT:

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

2.    There be no order as to costs, save for the applicant pay the respondent’s costs thrown away by reason of the applicant’s non-appearance at the interlocutory hearing on 19 May 2026, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

HESPE J:

Introduction

1    On 18 September 2025, an application was made under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme) to the Minister for Financial Services, on behalf of a group of affected investors. The application was in relation to alleged defective administration by the Australian Securities and Investments Commission (ASIC) in respect of the Lion Property Group.

2    By a letter dated 22 October 2025, Acting General Counsel within the Department of the Treasury responded stating that neither the Minister for Financial Services nor the Treasury had power to determine CDDA Scheme claims relating to ASIC.

3    Following further correspondence, on 23 December 2025, Acting Chief Counsel and First Assistant Secretary within the Treasury decided that no amount is payable under the CDDA Scheme in relation to the application submitted on 18 September 2025.

4    By an originating application dated 12 January 2026, the applicant, Mr Shari, seeks a declaration that the Treasury has unlawfully failed to lawfully consider and deal with material placed before it and an order in the nature of mandamus requiring the Treasury to deal with his material within a timeframe fixed by the Court.

5    By an interlocutory application dated 30 March 2026, the respondent seeks orders amending the name of the respondent to the Commonwealth of Australia (on the basis that the Treasury is not a legal person) and summary dismissal of the proceedings.

6    When the interlocutory application was first called for hearing on 19 May 2026, Mr Shari did not attend. Nor did he respond to attempts by the Court to contact him by phone at the time of that hearing. The Court made orders amending the name of the respondent to the Commonwealth of Australia and dismissing Mr Shari’s originating application subject to Mr Shari filing an application for leave to reinstate the proceeding by 28 May 2026.

7    The following day, Mr Shari advised the Court that he intended to apply for reinstatement on the basis that he had misunderstood his need to attend the hearing and that he was suffering from Post-Traumatic Stress Disorder. The respondent consented to the reinstatement of the originating application. The summary dismissal application was relisted for hearing on 11 June 2026.

Background

CDDA Scheme

8    The CDDA Scheme is a non-statutory executive policy which is applied by various Commonwealth agencies. Its machinery is recorded in a document published by the Department of Finance entitled “Scheme for Compensation for Detriment caused by Defective Administration (RMG 409)” which describes the scheme in the following terms:

1.    The CDDA Scheme is a discretionary mechanism available to non-corporate Commonwealth entities. It allows an entity to pay compensation when a person or organisation has suffered detriment as a result of the entity’s defective administration, when there is no legal requirement to make a payment.

2.    The non-corporate Commonwealth entity which is the subject of a CDDA Scheme claim is the entity responsible for considering and making a decision on that claim.

3.    The Department of Finance does not manage CDDA Scheme claims relating to the actions of another entity, nor does it review CDDA Scheme decisions made by other entities.

4.    The Commonwealth Ombudsman reviews complaints about decisions made under the CDDA Scheme.

9    As discussed further below, the authority to decide claims made under the CDDA Scheme is purported to be provided to individual portfolio ministers under the executive power of s 61 and s 64 of the Constitution. The policy provides that portfolio ministers decide applications made under the CDDA Scheme and may specifically authorise an official in a portfolio entity to consider and decide applications made under the CDDA Scheme, as agent for the portfolio minister.

10    The CDDA Scheme is not available to an entity to approve a claim for compensation on any matter that relates to the defective administration of functions and performance of another entity or other body.

11    The CDDA Scheme requires that a claimant is afforded procedural fairness. Paragraph 39 of RMG 409 provides:

39.    Prior to a decision being made on an application, the entity must ensure that the claimant is afforded procedural fairness. This includes, but is not limited to:

•    providing an opportunity for the claimant to present their claims or allegations in writing

•    providing an opportunity for the claimant to view and comment on adverse material that will be considered by the decision-maker

•    making a decision that is free from bias.

Mr Shari’s application under the CDDA Scheme

12    An application under the CDDA Scheme was made by a representative on behalf of affected investors in the Lion Property Group. Mr Shari was one of those affected investors. The application was dated 18 September 2025 and was submitted to “The Hon Dr Daniel Mulino MP, Minister for Financial Services, C/o Treasury - CDDA Delegate”. The claim was titled “Lion Property Group Victims - ASIC Defective Administration” and stated that it was “[p]repared for submission to Treasury - CDDA Delegate (ASIC Portfolio Responsibility)”.

13    The cover letter to the claim included the following:

I lodge this claim under the Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme), in relation to defective administration by the Australian Securities and Investments Commission (ASIC).

1. Basis of Claim

The Supreme Court of Victoria has found that Lion Property Group operated an unlicensed Managed Investment Scheme, did not have an AFSL, yet ASIC repeatedly failed over multiple years to:

•    Investigate properly investor complaints;

•    Exercise its enforcement powers under the Corporations Act 2001; and

•    Prevent unlawful fundraising and securities misuse. This defective administration caused direct and foreseeable loss to investors.

2. Jurisdiction & Ministerial Authority

Subsection 12(3) of the ASIC Act 2001 prevents the Minister from directing ASIC in relation to “a particular case.” Treasury has previously confirmed that ASIC officers cannot determine or pay CDDA claims for this reason.

Accordingly, this claim is not made to ASIC itself, but to the Treasury portfolio Minister and authorised CDDA delegate.

As set out in Resource Management Guide 409 (RMG 409), CDDA claims may be considered where defective administration is attributable to a portfolio agency, including a Commonwealth entity such as ASIC.

The current CDDA arrangements create a “circle of denial”: ASIC denies responsibility under s.12(3), Treasury asserts it cannot authorise ASIC to determine a claim, and claimants are left without redress. Because ASIC refused or failed to discharge its statutory mandate, investors incurred losses that would have been avoided if regulatory powers had been exercised.

…

3. Request for Determination

I respectfully request that Treasury:

Accept and assess this CDDA claim on the Minister’s behalf, acting as authorised agent in relation to ASIC’s defective administration. Confirm that ASIC officers will not be involved in the determination to avoid conflict of 12(3).

Provide a decision in accordance with RMG 409.

The Treasury’s response to Mr Shari’s application under the CDDA Scheme

14    By a letter sent to Mr Shari’s representative dated 22 October 2025, the Acting General Counsel for the Treasury responded to the application, relevantly, in the following terms:

As your letter reflects, Minister Mulino does not have power to determine CDDA claims relating to the Australian Securities and Investments Commission (ASIC).

Although ASIC is a portfolio agency of the Treasury, the Treasury is also unable to determine CDDA claims relating to ASIC. Paragraph 15 of Resource Management Guide (RMG) 409 issued by the Department of Finance provides:

The CDDA Scheme is not available to an entity to approve a claim for compensation on any matter that relates to the defective administration of functions and performance of another entity or other body.

In these circumstances, it may be appropriate to submit your claim as an act of grace application to the Department of Finance. You can request act of grace consideration by completing the form on the following page: Application process for act of grace or waiver of debt.

15    By a letter dated 29 October 2025, the Acting Assistant Director, Discretionary Payments Section, Comcover and Discretionary Payment Claims Branch, Department of Finance, wrote to Mr Shari’s representative in terms including the following:

Thank you for your correspondence of 23 October 2025 to the Minister for Finance, …, concerning your attempts to make a claim under the [CDDA Scheme] to the Australian Securities and Investments Commission (ASIC) and to the Department of the Treasury (Treasury). Your correspondence has been referred to the Department of Finance (Finance) for reply.

We understand that following our correspondence to you on 17 September 2025, where we advised that ASIC is not authorised to consider claims made under the CDDA scheme, you directed your CDDA claim to Treasury. However, as outlined in their response to you dated 22 October 2025, Treasury is unable to accept a CDDA claim relating to the actions of another agency.

16    By a letter dated 23 December 2025, the Acting Chief Counsel and First Assistant Secretary of the Treasury wrote to Mr Shari in the following relevant terms:

ASIC is not subject to the CDDA Scheme, and Treasury is not able to make payments under the CDDA Scheme in relation to the administration of another Commonwealth entity nor determine whether ASIC or any other portfolio agency has engaged in defective administration leading to financial loss.

As an officer authorised to make decisions under the CDDA Scheme, I have determined that the facts and circumstances of your financial loss are not related to any administrative action taken or not taken by Treasury and therefore do not give rise to a basis for compensation under the CDDA scheme. As such, no compensation can be paid to you, or others affected by the collapse of the Lion Property Group, under the CDDA Scheme.

Mr Shari’s claim to relief in the originating application

17    By his originating application, Mr Shari seeks the following forms of relief:

(1)    A declaration that the Treasury has unlawfully failed to lawfully consider and deal with his materials placed before it.

(2)    An order in the nature of mandamus requiring the Treasury to lawfully consider and deal with his material according to law within a timeframe fixed by the Court.

(3)    Such further and other orders as the Court considers appropriate.

18    Mr Shari’s claim for relief in this Court is based on the Treasury’s alleged failure to “lawfully consider, process or otherwise deal with” the material submitted by Mr Shari to the Treasury concerning losses suffered as a result of alleged “serious regulatory failure” by ASIC, including by “failing to engage with [that material] in a meaningful way or within a reasonable time”. The claim was thus based on an alleged failure to exercise jurisdiction.

19    Mr Shari expressly disavowed any claim that he was seeking merits review or an order requiring the payment of compensation.

Grounds for the interlocutory application

20    The respondent seeks an order for summary dismissal on the basis that Mr Shari has no reasonable prospect of successfully prosecuting the proceeding.

Consideration

Tests for summary dismissal

21    The principles related to summary dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) are well established. They were recently summarised by Hill J in KTW25 v Minister for Immigration and Citizenship [2025] FCA 1391 at [26]–[30]. The Court must be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim.

22    As developed through submissions, Mr Shari’s argument before this Court essentially has two limbs:

(1)    The Treasury had power to consider a claim under the CDDA Scheme in respect of ASIC which it failed to exercise; and

(2)    The Treasury acted unreasonably by failing to consider the “extensive material” lodged by Mr Shari in support of his claim under the CDDA Scheme, including by failing to read and evaluate supporting material that had been provided on a USB which had not been put before the decision-maker. Because this material was not considered by the decision-maker, Mr Shari contends that the Treasury never considered the claim in fact made.

23    The respondent submits that Mr Shari’s claims for relief are bound to fail because:

(1)    Mr Shari’s CDDA Scheme application made to the Treasury had been dealt with lawfully;

(2)    Mandamus does not lie in relation to a CDDA Scheme claim because there is no legal duty on any person to consider a CDDA Scheme claim, as the CDDA Scheme is a discretionary executive policy; and

(3)    There is no person who is authorised to consider a CDDA claim relating to allegations of defective administration by ASIC.

Judicial review and the CDDA Scheme

24    The CDDA Scheme is an executive policy. Its administration is an exercise of non-statutory executive power. As Snaden J explained in Barnett v Minister for Health and Aged Care [2023] FCA 1139 at [26]:

The scheme operates wholly as a function of executive discretion, untethered from statutory or regulatory decree (and, therefore, on one view, unconstrained by any limits of a conferred jurisdiction).

25    It is well established that the CDDA Scheme is not an instrument made under an enactment and accordingly is outside the scope of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Court observes that the decision of Dowsett J in Smith v Oakenfull [2004] FCA 4 concerned an application for review under the ADJR Act which is not in issue in the present case. It is not disputed that the decision was not made “under an enactment”. The issue in the present case concerns a non-statutory executive power.

26    The respondent accepts that this Court is bound by the decision of the Full Court in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213; (2021) 288 FCR 23 (Kenny, Besanko, Griffiths, Mortimer and Charlesworth JJ) and as such, accepts that decisions made under the CDDA Scheme are amenable to judicial review under s 39B of the Judiciary Act 1901 (Cth), at least on the grounds of legal unreasonableness.

27    Legal unreasonableness can encompass unreasonableness in outcome or unreasonableness in process.

28    Following the decision of the Full Court in Davis, it is an implied condition of the exercise of executive power that it be exercised reasonably. In other words, based on the reasoning in Davis, an exercise of executive power that is legally unreasonable will be regarded as being made in excess of the power and therefore unlawful.

29    If it be necessary to apply a prism of legal unreasonableness, depending on the circumstances, a decision-maker vested with executive power to decide a CDDA Scheme claim might be said to act in a way that is legally unreasonable if the decision-maker proceeds to decide a claim without considering the material filed in support of the claim. The CDDA Scheme itself is expressed in terms that claims will be considered and applicants will be accorded an opportunity to make representations. The terms of the CDDA Scheme provide some support for the proposition that reasonableness requires an authorised decision-maker to be aware of the nature of the content of materials provided by an applicant in respect of an application for compensation under the CDDA Scheme.

30    The Treasury cannot be compelled to provide compensation under the CDDA Scheme, but following Davis, it is open to question whether an authorised decision-maker can be compelled to consider a claim for compensation under the CDDA Scheme in a manner which is legally reasonable. Once it is accepted that a decision is amenable to judicial review, it seems to this Court to be an open question as to which forms of prerogative relief may be sought.

31    In this respect, the Court notes that s 39B of the Judiciary Act vests this Court with jurisdiction equivalent to that vested in the High Court by s 75(v) of the Constitution, which necessitates the existence of a “matter”, which in turn requires the existence of an immediate right, duty or liability susceptible of relief: Davis at [246]–[252] (Charlesworth J). Mandamus may lie to compel compliance with discernible and inviolable restraints on non-statutory executive power: Davis at [286] (Charlesworth J). The restraint is legal unreasonableness.

32    At the same time, the High Court has said that, absent a duty on a decision-maker to consider to exercise a power, mandamus will not issue to compel the decision-maker to consider, or reconsider, the exercise of that power, except where an exercise of that power has miscarried: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [99].

33    The position was helpfully articulated by Snaden J in Barnett at [26]–[29] in the following terms:

There is at least some reason to query whether decisions made under the CDDA Scheme are amenable to prerogative relief. As has been noted, the scheme operates at the discretion of those whom it authorises to make decisions. Save for the aspiration that such decisions “…must be publicly defensible”, the discretion to grant compensation in respect of defective administration appears otherwise to be unconstrained. The scheme operates wholly as a function of executive discretion, untethered from statutory or regulatory decree (and, therefore, on one view, unconstrained by any limits of a conferred jurisdiction).

Nonetheless, there is reason to suppose that decisions made under the CDDA Scheme might be amenable to prerogative relief. Under the heading “Judicial Review”, RMG 409 makes the following observation:

    As CDDA Scheme decisions are not made under an enactment or law, decisions are not amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977. However, they may be subject to judicial review under section 75 of the Constitution or section 39B(1) of the Judiciary Act 1903.

Whether or not the exercise of non-statutory executive power is amenable to prerogative relief is “a very large question”: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214, 223 [7] (Kiefel CJ, Gageler and Gleeson JJ). Fortunately, it is not one upon which the court need here venture an opinion. … [T]he respondent accepts that the court as presently constituted will find otherwise on the strength of the full court’s reasoning in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 23 (Kenny, Besanko, Griffiths, Mortimer, Charlesworth JJ).

… If it is the case that the CDDA Decision was tainted in ways warranting prerogative relief, the court may proceed on the basis that it has jurisdiction to grant it under s 39B of the Judiciary Act 1903 (Cth).

34    This approach may be contrasted with the approach adopted in KTW25 v Commonwealth of Australia (Summary Judgment) [2026] FCA 114 at [41] (Dowling J) where the Court was satisfied that there was no legal duty on an officer to consider an application made under the CDDA Scheme.

35    On balance, having regard to the express terms of the CDDA Scheme and the state of the authorities, it is at least arguable that an authorised decision-maker under the CDDA Scheme may be compelled to consider an application in a way that lies within the bounds of legal reasonableness.

36    The decision-maker in the present case reviewed the application made under the CDDA Scheme and considered that it did not disclose an allegation that related to any administrative action taken or not taken by the Treasury. The application was not considered in so far as they purported to raise a claim concerning administrative action taken by ASIC. There was also evidence that Mr Shari’s CDDA Scheme claim application included annexures that were not at any time received by the decision-maker.

37    If the decision-maker was vested with executive power to decide a claim under the CDDA Scheme in respect of ASIC, it is at least arguable that the decision-maker was under a duty to exercise that power in a manner that is legally reasonable. In the present case, it is at least arguable that the decision-maker failed to exercise that power in a way which complies with a duty to exercise executive power in a manner that is legally reasonable in circumstances where the decision-maker did not look at or read the basis for the claim.

38    The real issue is whether there was a person authorised to exercise the executive power to decide a claim under the CDDA Scheme in respect of ASIC.

Power to make a decision under the CDDA Scheme

39    Much of the confusion in the present case arises from the terms of the responses provided to Mr Shari (or his representative).

40    Mr Shari accepts, and as the face of the complaint submission discloses, that his complaint concerns ASIC, and not any other agency within the Treasury portfolio or the Treasury. Mr Shari’s application to this Court relates to his perception of how his complaint in relation to ASIC has (or more accurately, has not) been addressed.

Application of the CDDA Scheme to ASIC

41    RMG 409 is not drafted with the precision of legislation or a legislative instrument. RMG 409 records that the CDDA Scheme is available to non-corporate Commonwealth entities and is not available to departments of the Commonwealth Parliament or corporate Commonwealth entities.

42    Section 8 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) relevantly provides:

ASIC is a body corporate

(1)    ASIC:

(a)    is a body corporate, with perpetual succession; and

(b)    has a common seal; and

(c)    may, subject to subsection (5), acquire, hold and dispose of real and personal property; and

(ca)    may enter into contracts; and

(d)    may sue and be sued in its corporate name.

Note:    ASIC was established by section 7 of the Australian Securities and Investments Commission Act 1989 and is continued in existence by section 261 of this Act.

(1A)    However, ASIC is taken, for the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):

(a)    to be a non-corporate Commonwealth entity, and not to be a corporate Commonwealth entity; and

(b)    to be a part of the Commonwealth; and

(c)    not to be a body corporate.

43    Section 8 of the Public Governance, Performance and Accountability Act 2013 (Cth) (PGPA Act) defines “finance law”. The CDDA Scheme is not a finance law within that definition.

44    At hearing, the respondent submitted that ASIC is not subject to the CDDA Scheme because it is a body corporate. That submission is not consistent with representations that appear on ASIC’s own website which states the following:

The Scheme for Compensation for Detriment caused by Defective Administration (CDDA Scheme) permits individuals to apply for compensation from non-corporate Commonwealth entities (NCCEs) in certain circumstances. However, while ASIC is an NCCE, it is unable to consider applications made to it under the CDDA Scheme. This is because only Portfolio Ministers and officials authorised by the Portfolio Minister can decide applications made under the CDDA Scheme. ASIC has not been authorised to decide applications under the CDDA Scheme since September 2015.

45    The submission is also not consistent with prior authorisations (since expired) that were conferred on holders of named positions in ASIC to “mak[e] decisions and approv[e] payments under the CDDA Scheme”.

46    RMG 409 contains no definition of “non-corporate Commonwealth entity”. It appears that at least ASIC considered that term to refer to a body that is taken to be a non-corporate Commonwealth entity for the purposes of the finance law (within the meaning of the PGPA Act). In post-hearing submissions, the respondent accepted that there is at least an arguable case to be made that ASIC is subject to the CDDA Scheme.

47    Even if ASIC is subject to the CDDA Scheme, there is an issue in this case as to who has authority to make decisions under the CDDA Scheme in relation to complaints relating to ASIC.

Authority to make decisions

48    Under a heading “Who decides? Authority of decision-makers”, RMG 409 states:

6.    The CDDA Scheme operates on the basis of authority provided to individual portfolio ministers under the executive power of sections 61 and 64 of the Constitution.

7.    Portfolio ministers decide applications made under the CDDA Scheme. A portfolio minister may authorise an official in a portfolio entity to consider and decide applications made under the CDDA Scheme.

8.    The minister’s authority is to be conferred expressly and must be given separately from the minister’s general authorisations to incur expenditure. This requirement is in recognition of the special and potentially sensitive nature of decisions made under the CDDA Scheme for which the entity and its minister may be held accountable.

9.    Where a decision-maker is a person other than a portfolio minister, the decision-maker acts for and on behalf of the relevant minister; that is, the decision-maker is an agent of the minister and not a delegate. Only the portfolio minister or authorised official can decide claims under the CDDA Scheme.

10.    A finding of no defective administration can only be reached by an authorised decision-maker.

11.    Where a portfolio minister has responsibility over multiple entities, an authorisation will generally need to be provided by the relevant portfolio minister to a relevant official in each entity.

49    Responsibility for ASIC is with the Treasury portfolio. The Treasurer, Minister for Housing, Homelessness and Cities, Minister for Small Business, Minister for International Development, and Multicultural Affairs, Assistant Treasurer and Minister for Financial Services, and Parliamentary Secretary to the Treasurer are Treasury portfolio ministers.

50    RMG 409 envisages that, given that a portfolio minister has responsibility over multiple entities, an authorisation will generally need to be provided by the minister to a relevant official in each entity in the portfolio. However, that is not the form in which current authorisations have been granted by the Treasurer, or any other portfolio minister.

51    By an instrument entitled Scheme for Compensation for Detriment Caused by Defective Administration (Treasury—General) Authorisation 2023, signed by the Treasurer on 16 June 2023, each person holding, occupying or performing the duties of each of the following offices or positions in the Treasury is authorised to exercise the Treasurer’s power to consider and decide applications under the CDDA Scheme, for and on behalf of the Treasurer, in relation to “general Treasury matters”:

(a)    the Secretary;

(a)    a Deputy Secretary;

(b)    an SES Band 2 employee.

52    The instrument defines “general Treasury matters” to mean:

all policies, programs or other matters relating to any matter that is referred to in the Part of the Schedule to the Administrative Arrangements Order relating to the Treasury other [than] the following:

(a)    housing matters; and

(b)    small business matters.

53    The Administrative Arrangements Order signed by the Governor-General on 13 May 2025 was in force at the time the CDDA application was determined. In so far as the Administrative Arrangements Order relates to the Treasury, it identifies the ASIC Act as legislation administered by the Minister, ie the portfolio ministers, and corporate, financial services and securities law as matters dealt with by the Treasury.

54    There is no officer of ASIC currently authorised to consider and decide applications under the CDDA Scheme. As such, even if it be accepted that ASIC is an entity subject to the CDDA Scheme, ASIC has no authority to determine CDDA Scheme claims.

55    Mr Shari’s claim was not, and could not be, made to ASIC itself. Therefore, the claim relating to ASIC was submitted for consideration to the “Treasury CDDA Delegate”.

56    Although ASIC falls within the Treasury portfolio, s 12 of the ASIC Act provides (emphasis added):

(1)    The Minister may, by legislative instrument, give ASIC a direction about policies it should pursue, or priorities it should follow, in performing or exercising any of its functions or powers under the corporations legislation (other than the excluded provisions).

(2)    The Minister must not give a direction under subsection (1) unless he or she has:

(a)    notified ASIC in writing that he or she is considering giving the direction; and

(b)    given the Chairperson an adequate opportunity to discuss with the Minister the need for the proposed direction.

(3)    The Minister must not give a direction under subsection (1) about a particular case.

(4)    ASIC must comply with a direction under subsection (1).

57    The evident legislative purpose of s 12 is to set limits on government interference with the performance of ASIC’s functions. Section 12 is a statutory code (in the sense of an exclusive and exhaustive basis) for ministerial intervention with ASIC. ASIC is thereby accorded independence from the Minister in respect of any particular case. It would be inconsistent with s 12 for the Minister or their authorised agent to purport to direct ASIC in relation to a claim for defective administration that relates to ASIC’s administration.

58    As a result, although under the terms of the CDDA Scheme the portfolio minister (including authorised agents) are the only individuals authorised to make decisions in relation to CDDA Scheme claims relating to ASIC, the ASIC Act precludes the Minister from making those decisions.

59    Because there is no official within ASIC who is authorised to make a decision regarding a CDDA Scheme claim and because the portfolio ministers cannot make a determination for ASIC, there are no authorised decision-makers who can make determinations relating to a CDDA Scheme claim in respect of ASIC.

60    Paragraph 15 of RMG 409 relevantly states that:

The CDDA Scheme is not available to an entity to approve a claim for compensation on any matter that relates to the defective administration of functions and performance of another entity or other body.

61    That paragraph is to be read in the context of para 11 of RMG 409, set out above at [48]. When it is understood that the CDDA Scheme envisaged separate authorisations being granted to a relevant official in each Treasury portfolio entity, para 15 explains that a relevant official authorised to consider and approve claims for one entity in the Treasury portfolio cannot rely on that authorisation to approve a claim in relation to a different entity in the Treasury portfolio.

62    Given the form of authorisation currently in force, it is more difficult to see how para 15 of RMG 409 has any potential relevance in the present case.

Conclusion

63    In so far as ASIC is concerned, even if it technically is within the scope of the CDDA Scheme, there is no mechanism by which a claim under that scheme concerning actions by ASIC can be evaluated or considered. The CDDA Scheme cannot be invoked to address a claim in relation to ASIC.

64    It is for this highly technical reason specific to ASIC’s circumstances that Mr Shari’s claim for judicial review enjoys no realistic prospect of success and must be summarily dismissed under s 31A(2) of the FCA Act.

65    The communications the Treasury provided to Mr Shari and his representative in response to his claim were confusing. The CDDA Scheme in so far as it operates in respect of ASIC can be perceived to be, as Mr Shari described it, convoluted. Some of the submissions made on behalf of the respondent were also inconsistent with the published position of ASIC. In all the circumstances, aside from Mr Shari being required to pay the costs of the respondent thrown away by reason of Mr Shari’s non-appearance on 19 May 2026, there will be no order as to costs.

66    As a general observation, it may be that the terms of RMG 409 could benefit from clarification in terms of the intended scope of the CDDA Scheme and its intended authorisation processes in light of current authorisation practices.

Associate:

Dated:    3 July 2026