McLachlan, Malcolm Boyd v Australian Securities Comm [1998] FCA 952

McLachlan, Malcolm Boyd v Australian Securities Comm [1998] FCA 952

The application was dismissed because the issue of the Notice of Hearing and the alleged preliminary belief were not reviewable decisions under the ADJR Act, and the related reliance on the ASX Report was not reviewable conduct. The discovery and disclosure complaints were premature or misconceived because the s 837 hearing was the proper place to test and object to the use of material, natural justice did not require discovery as such, and s 829(f) did not oblige the ASC to consider or disclose all relevant or favourable information not relied on. The alleged grounds of apprehended bias did not establish that the delegate might not bring an impartial and unprejudiced mind to the s 837...

Jurisdiction
Australia
Judgment Date
31 July 1998
Procedural Posture
Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) Challenging ASC Decisions or Conduct Relating to Proposed Banning Order Proceedings / Hearing of Application, With Objection to Competency and Strike Out Motion in Relation to Part of the Application
Outcome
Application dismissed.
Legal Topics
['australian Securities Commission Banning Order Procedure' 'reviewable Decision and Reviewable Conduct Under the ADJR Act' 'natural Justice and Procedural Fairness' 'discovery and Disclosure in Administrative Hearings' 'apprehended Bias and Prejudgment' 'use of Information Allegedly Improperly Obtained by a Third Party']
['administrative Law' 'corporations Law'] ['australian Securities Commission Banning Order Procedure' 'reviewable Decision and Reviewable Conduct Under the ADJR Act' 'natural Justice and Procedural Fairness' 'discovery and Disclosure in Administrative Hearings' 'apprehended Bias and Prejudgment' 'use of Information Allegedly Improperly Obtained by a Third Party']

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Procedural Posture

Application Under the Administrative Decisions (judicial Review) Act 1977 (cth) Challenging ASC Decisions or Conduct Relating to Proposed Banning Order Proceedings / Hearing of Application, With Objection to Competency and Strike Out Motion in Relation to Part of the Application

Legal Issues

  1. 1 ['Whether the ASC decision to issue a Notice of Hearing under s 57(2) of the Australian Securities Commission Act 1989 (Cth) for a proposed s 829(f) Corporations Law banning order was a reviewable decision under the ADJR Act.' 'Whether the ASC engaged in reviewable conduct by relying on the ASX Report or ASX-origin material in deciding to issue the Notice of Hearing.' 'Whether refusals to give discovery or identify ASX-origin material would result in breach of natural justice at the s 837 Corporations Law hearing.' 'Whether s 829(f) Corporations Law required the ASC to consider all relevant information in its possession or disclose favourable information not relied on.' "Whether the delegate's refusal to disqualify himself gave rise to a reasonable apprehension of bias."]

Ratio Decidendi

The application was dismissed because the issue of the Notice of Hearing and the alleged preliminary belief were not reviewable decisions under the ADJR Act, and the related reliance on the ASX Report was not reviewable conduct. The discovery and disclosure complaints were premature or misconceived because the s 837 hearing was the proper place to test and object to the use of material, natural justice did not require discovery as such, and s 829(f) did not oblige the ASC to consider or disclose all relevant or favourable information not relied on. The alleged grounds of apprehended bias did not establish that the delegate might not bring an impartial and unprejudiced mind to the s 837...

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.']