Visnic v Australian Securities and Investments Commission [2006] HCATrans 588 (30 October 2006)

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Visnic v Australian Securities and Investments Commission [2006] HCATrans 588 (30 October 2006)

Last Updated: 31 October 2006

[2006] HCATrans 588

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S350 of 2006

B e t w e e n -

MILAN VISNIC

Applicant

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

Application for removal

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 OCTOBER 2006, AT 9.30 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC: May it please the Court, I appear with my learned friend, MR G.D. WENDLER. (instructed by Van Houten Law)

HIS HONOUR: Yes, Mr Street.

MR STREET: Your Honour, can I indicate that initially when special leave was granted in Albarran, I communicated with Mr Gageler and he anticipated consent would be forthcoming in relation to the matter. Your Honour will see it is simply a submitting appearance, and to that extent I do not read that paragraph in the affidavit that suggested it was by consent. The initial communication had been that it would be consented to. That is the cause of the error.

HIS HONOUR: They have not opposed and they are not here to oppose.

MR STREET: That is so, your Honour. To the extent relevant, we seek to expand upon the argument that Mr Walker and Mr Perram are seeking to develop and we say this is a better vehicle to really explode the chameleon character of a judicial power argument that the Commonwealth seeks to develop because of the vesting of power under section 206E in the Federal Court. So there is an additional argument that arises in this case in the context of the Corporations Act which we say makes it not merely a more suitable vehicle but it has an additional argument.

HIS HONOUR: This is an argument that Mr Walker has not brought?

MR STREET: That is so, yes, nor could he because his provision was different. There was no vesting of power to disqualify an auditor in the Court in the same way as there was in this provision. In 206E one has a power to disqualify on grounds which include multiple contraventions. The disqualification in the present case includes in the reasoning process multiple contraventions, so we say it falls more clearly into throwing up whether in fact the Chapter III power is exclusive and exhaustive in the way we would seek to argue.

HIS HONOUR: Was that point that you have just mentioned the point of non – let me put it this way. In your written argument and I think your solicitor’s affidavit, there is reference to an overlap which implies something new, something different. Some things are the same; something is different. Is that point the different point?

MR STREET: It is the same issue as thrown up by Rich that we seek to develop and we say our case most closely reflects Rich because we are a penalty case in respect of a director. So the dicta squarely applies to the circumstances of this case. The additional argument is simply the statutory matrix in looking at the statutory framework to throw up whether in fact the character of the power is tested by its functionary performing it or whether one looks at the nature of it in terms of the penalty effect and its determination in this case based on multiple contraventions.

So that, your Honour, to that extent there is what I will call a gloss on the pure Albarran argument. It is otherwise the case that we see ourselves travelling with Mr Walker and Mr Perram and I do not anticipate that there would be any need for duplication of argument in relation to that part of the issue that they will be addressing that overlaps in respect of the pure argument founded on Rich.

HIS HONOUR: If you actually succeeded, you would simply want the Court to make the orders that are set out in one of the exhibits to Mr Van Houten’s affidavit, namely exhibit A, the amended application?

MR STREET: Yes. It would be prayers (b), (c), (d) and (e).

HIS HONOUR: Mr Street, when special leave was granted in Albarran’s Case and Gould’s Case, it was on the basis it was going to take one day and that there was to be no overlap in argument. I think I will have to leave you with the burden of persuading Mr Gageler on the one hand and the counsel for the appellants on the other hand to give you whatever period of time is necessary to develop your point in oral argument. If they are adamant, then you will be limited to written argument.

MR STREET: I think in terms of the oral presentation it would be relatively confined and I think I would not seek to overlap. To that extent, your Honour, I would have thought the matter should still be dealt with in the day.

HIS HONOUR: Very well. What is intended in terms of documents? Are you proposing to file an - - -

MR STREET: We will prepare an application book.

HIS HONOUR: If you can liaise with the Registry. There may not be much of a risk of it, but try and avoid overlap with anything that is in the appeal book or books.

MR STREET: If your Honour pleases. There is one matter I should have drawn your Honour’s attention to. That was the 78B issue. When the proceedings were originally commenced there was in fact served a 78B notice in respect of the proceedings in this Court. Although no affidavit was filed, my instructing solicitor has confirmed that all Attorneys indicated that at that stage they did not seek to intervene but may if the matter
continued. When the matter was in the Federal Court, your Honour will have seen a fresh 78B notice was served and I am informed that the response has been likewise. We would obviously issue a fresh 78B notice but to the extent relevant, your Honour, we would have said either. Because we are in essence in the same proceedings that were originally commenced, there is no need for a further one before the hearing before your Honour today, or else we rely on subsection (5).

HIS HONOUR: It is so urgent we will dispense with it, but it is appropriate that a new one be filed.

MR STREET: Yes, your Honour.

HIS HONOUR: On 27 March 2006 Justice Kirby ordered that the proceedings in this Court in relation to the present matter be removed into the Federal Court. He concluded in [2006] HCATrans 158, lines 661 to 676:

because this Court has been informed that certain common issues may be raised in this case and in Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248, already decided, and in Albarran v The Members of the Companies Auditors & Liquidators Disciplinary Board . . . and Gould v Donald Magarey and Others of the Companies Auditors & Liquidators Disciplinary Board . . . it is appropriate to note that, if those matters come to this Court, an application for removal under section 40 of the Judiciary Act 1903 (Cth) might be made on behalf of the plaintiff, Mr Visnic. In that event, the defendant in these proceedings has indicated that it would co-operate in an application for removal of those proceedings into this Court so that any common constitutional or other issues that arise might be determined in these proceedings in the light of any decisions made in the others.

Since then the Full Court of the Federal Court of Australia has found against Messrs Albarran and Gould. In these proceedings a hearing in the Full Court of the Federal Court of Australia has been fixed. On 29 September 2006 special leave to appeal to this Court was granted in relation to the Full Federal Court’s decision in Albarran’s Case and Gould’s Case. The applicant applies for an order that these proceedings be listed for hearing concurrently with the appeal in Albarran’s Case. The respondent has not opposed this order.

The solicitor for the applicant says that there is a substantial overlap of issues between Albarran’s Case and the present case. The extent to which there is not identity rests on a fresh point available to the present applicant but not available to the appellants in the existing appeals. It is said that any additional oral argument would be relatively brief.

When special leave was granted in Albarran’s Case and Gould’s Case the Court made it plain that the matter was to be heard in one day only and that there was to be no duplication of oral argument. If the order now sought is made, the same condition must apply. It follows that it will be for the applicant through his counsel to seek to persuade counsel for the three parties in the existing appeals to allow him whatever time he seeks for oral argument. If they will permit only a limited time or no time, argument on behalf of the applicant will be restricted to written submissions. The legal advisers of the applicant should liaise with the legal advisers of the respondent and those of the parties in the two appeals on the question of what documents should be available to the Full Court with a view to avoiding duplication with the appeal book or books in those appeals.

I order:

1. That these proceedings be listed for hearing concurrently with the appeals in Albarran v The Members of the Companies Auditors and Liquidators Disciplinary Board and Gould v Donald Magarey and Others;

2. That costs be costs in the proceedings;

3. That the applicant serve fresh notices under section 78B of the Judiciary Act 1903 (Cth).

Are those orders satisfactory?

MR STREET: Yes, your Honour.

HIS HONOUR: Anything else you require?

MR STREET: No, your Honour.

HIS HONOUR: Thank you, Mr Street.

AT 9.40 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.51 AM:

MR STREET: I failed to ask your Honour for the order under section 40 which was referred to in the application for removal. Could I ask your Honour to make an order under section 40 in terms as identified in the face of the application for removal removing the whole of the cause now pending in the Federal Court of Australia which is proceeding NSD692 of 2006 between Milan Visnic and ASIC into this Court. If the Court pleases.

HIS HONOUR: I order additionally to the orders made earlier this morning the following order:

4. The whole of the cause now pending in the Full Court of the Federal Court of Australia in Milan Visnic v Australian Securities and Investments Commission NSD692 of 2006 be removed into the High Court of Australia.

The Court will now adjourn.

AT 9.52 AM THE MATTER WAS CONCLUDED