Soper v Australian Securities & Investments Commission [2004] FCA 854

Soper v Australian Securities & Investments Commission [2004] FCA 854

ASIC was required to decide whether Mr Carpenter was an appropriate person to be authorised as an eligible applicant, not whether the liquidator had acted properly or should himself institute proceedings or examinations. The liquidator's detailed attitude to the proposed proceedings or examinations and the findings in Domino Hire were not mandatory relevant considerations, and there was no implied duty requiring ASIC to enquire of the liquidator before granting authorisation. In any event, information about the relevant relationships, the liquidator's position, and Domino Hire was before the Delegate, and the applicants did not establish that the Delegate failed to consider it. ASIC's...

Jurisdiction
Australia
Judgment Date
05 July 2004
Procedural Posture
Application for Judicial Review Under S 5 of the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B(1) and 39 B(1 A)(c) of the Judiciary Act 1903 (cth) / Final Hearing of Second Further Amended Application
Outcome
Application dismissed with costs.
Legal Topics
['judicial Review of ASIC Decision' 'authorisation as Eligible Applicant' 'examination Orders Under S 596 B of the Corporations Act 2001 (cth)' 'mandatory Relevant Considerations' 'wednesbury Unreasonableness' 'inference From Evidence']
['administrative Law' 'corporations Law' 'evidence'] ['judicial Review of ASIC Decision' 'authorisation as Eligible Applicant' 'examination Orders Under S 596 B of the Corporations Act 2001 (cth)' 'mandatory Relevant Considerations' 'wednesbury Unreasonableness' 'inference From Evidence']

Case Brief

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Procedural Posture

Application for Judicial Review Under S 5 of the Administrative Decisions (judicial Review) Act 1977 (cth) and S 39 B(1) and 39 B(1 A)(c) of the Judiciary Act 1903 (cth) / Final Hearing of Second Further Amended Application

Legal Issues

  1. 1 ['Whether ASIC failed to take into account mandatory relevant considerations when authorising Mr Carpenter to be an eligible applicant for an application under s 596B of the Corporations Act 2001 (Cth).' 'Whether the attitude of the liquidator of Pioneer to proposed proceedings or examinations was a mandatory relevant consideration for ASIC.' 'Whether ASIC was required to enquire of the liquidator before granting the authorisation.' "Whether ASIC's decision was so unreasonable that no reasonable person could have exercised the power in that way." 'Whether an inference could be drawn that the Delegate failed to consider relevant matters where the documents containing those matters were before him.']

Ratio Decidendi

ASIC was required to decide whether Mr Carpenter was an appropriate person to be authorised as an eligible applicant, not whether the liquidator had acted properly or should himself institute proceedings or examinations. The liquidator's detailed attitude to the proposed proceedings or examinations and the findings in Domino Hire were not mandatory relevant considerations, and there was no implied duty requiring ASIC to enquire of the liquidator before granting authorisation. In any event, information about the relevant relationships, the liquidator's position, and Domino Hire was before the Delegate, and the applicants did not establish that the Delegate failed to consider it. ASIC's...

Court Disposition

Application dismissed with costs.

Orders

  • ['The application be dismissed with costs.']