Bittmann v ASIC & Ors [2008] HCATrans 2 (24 January 2008)

Last Updated: 1 February 2008

[2008] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M136 of 2007

B e t w e e n -

ANTAL BITTMANN

Plaintiff

and

AUSTRALIAN SECURITIES & INVESTMENT COMMISSION

First Defendant

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Second Defendant

ADMINISTRATIVE APPEALS TRIBUNAL

Third Defendant

FEDERAL COURT OF AUSTRALIA

Fourth Defendant

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 JANUARY 2008, AT 10.04 AM

Copyright in the High Court of Australia

__________________

MR A. BITTMANN appeared in person.

MR D.P. GILBERTSON: If the Court pleases, I appear on behalf of the first defendant. (instructed by Australian Government Solicitor)

MR S.P. DONAGHUE: If the Court pleases, I appear on behalf of the second, third and fourth defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Bittmann, you appear on your own behalf, do you?

MR BITTMANN: Yes, your Honour.

HIS HONOUR: Yes, thank you. Mr Gilbertson, it is your application, is it not, your application by summons of 2 January 2008? I understand you wish to amend your summons. We will come to that in a moment but if we could begin. It is your summons of 2 January 2008. There is an affidavit of Mr Mazurkiewixcz in support of that which is the affidavit of 2 January, is that right?

MR GILBERTSON: Yes, your Honour. That is so, your Honour.

HIS HONOUR: You rely on that. You seek to amend your summons in the manner indicated in the amended summons filed on 23 January, is that right?

MR GILBERTSON: That is so, your Honour.

HIS HONOUR: Yes. Now, Mr Bittmann, first, do you have any objection to the affidavit of Mr Mazurkiewixcz?

MR BITTMANN: Yes, your Honour.

HIS HONOUR: Yes. What are the objections you make to that affidavit? The question as the moment is directed to whether any of that evidence should be received. It is not a question of whether you dispute the propositions that are advanced in it, but do you have any objections to my receiving and reading the affidavit of Mr Mazurkiewixcz?

MR BITTMANN: I wish to reserve the right to test that affidavit on the basis that it has.....sections of error, in my opinion.

HIS HONOUR: Yes. That is a matter to which we may have then to return, Mr Bittmann. In the meantime, Mr Gilbertson, I would understand that you may rely on the affidavit of Mr Mazurkiewicz. Mr Bittmann, do you have any objection to the amendment of the summons in the fashion described in the amended summons? They want to cut bits out of it.

MR BITTMANN: Same view as the - - -

HIS HONOUR: Yes. I understand you dispute the matters that they say but - - -

MR BITTMANN: Yes.

HIS HONOUR: Yes. You may have leave, Mr Gilbertson, to amend the summons and rely on that.

MR GILBERTSON: As your Honour pleases.

HIS HONOUR: Can I just understand what the position of the defendants is. You move on this summons, Mr Gilbertson, for summary termination. Do you seek summary termination as against your client only?

MR GILBERTSON: Yes, your Honour.

HIS HONOUR: Dr Donaghue, what is the attitude of respondents two to four?

MR DONAGHUE: Your Honour, saving one limited respect, those defendants consent to any order the Court might make save as to costs. The limited respect relates to one of the orders that is sought in each of four summonses that Mr Bittmann has filed, each of which seek orders that various officeholders show cause why they should not be removed from office. We had understood that today was not just the return of the first
defendant’s summons but also the show cause hearing under rule 25.03. We may be wrong in that.

HIS HONOUR: It is at least the question of what further steps are to be taken in the proceeding and the immediate question is if the action or the proceeding as against ASIC goes, then what consequences follow from that with respect to defendants two to four are matters about which I would then hear argument, I think, in the light of what disposition we make of this first summons about summary termination. It would seem to me that the matter may take a different complexion according to what happens in this first summons.

MR DONAGHUE: Yes, we are content with that, your Honour.

HIS HONOUR: Yes, thank you. Yes, Mr Gilbertson.

MR GILBERTSON: I should say, your Honour, that in relation to the affidavit material I put the application in two ways. One is that it is permissible for the Court on hearing of this application to have regard to the material and I rely in particular on the decision of Chief Justice Barwick in General Steel Industries.

HIS HONOUR: At [1964] HCA 69; 112 CLR 125, I think.

MR GILBERTSON: Indeed, your Honour, at 130. However, if I am wrong as to that, then, in my submission, merely on the basis of the grounds stated in the application for an order to show cause there ought to be summary dismissal of the proceeding under rule 27.09.4.

HIS HONOUR: Yes.

MR GILBERTSON: I do not rely, your Honour, on the power to stay or dismiss a proceeding as an abuse of process that arises as “an attribute of the judicial power of the Commonwealth” which this Court said in Batistatos v The Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 at 266 was a question which this Court has yet to determine. The Commission, your Honour, does not take objection to the jurisdiction of this Court to hear and determine the proceeding. Although ASIC is not an officer of the Commonwealth within the meaning of section 75(v), ASIC does answer the description of the Commonwealth so as to enliven the jurisdiction under section 75(iii). So no objection is taken to the jurisdiction.

I have referred in the outline of submissions to the decision in Australian Securities and Investments Commission v Edensor Nominees Pty Limited (2001) 204 CLR 559 at 581 and 608. It is submitted, your Honour, that the application for an order to show cause does not disclose a cause of action against ASIC and each of the claims in the application is frivolous or vexatious and accordingly an abuse of process: Batistatos at 270. In my submission, this proceeding is productive of serious and unjustified trouble and harassment – Batistatos at 267 – and the authorities referred to therein which I have set out in paragraph 7 of the outline of submissions which has been provided to Mr Bittmann. This, it is submitted, is a clearest of case which permits the Court to determine it in a summary way: Batistatos at 275. It is not a case in which the plaintiff could by amendment improve his position; General Steel Industries at 137.

If I could turn to the grounds in the application for an order to show cause, your Honour, paragraphs 1 to 3 of the grounds do not point to any law of the Commonwealth which confers a function or power on ASIC in respect of which it is alleged that ASIC has failed to administer the law and even having regard to what is alleged in paragraph 2 of the grounds to be an “aim of the scheme” in Part 5.3A of the Corporations Act 2001. The grounds do not disclose that ASIC has failed in its functions as alleged in paragraph 2. Accordingly, in my submission, paragraphs 1 to 3 do not disclose a cause of action and are frivolous or vexatious.

The document which is labelled CR and SH1, in my submission, any claim under Part 5.8A of the Corporations Act in relation to employee entitlements is, as is apparent from that Part, a claim against a person who enters into a relevant agreement or transaction in contravention of section 596AB. Any such claim must comply with the provisions of that part, in particular, sections 596AF to 596AI. The claims in that document, that is the document CR and SH1, which are described as shareholders’ loss of their company and goodwill - - -

HIS HONOUR: Where in the application for an order to show cause do I find the significance of CR and SH1 identified or described?

MR GILBERTSON: In what is described as relief claim No 1, your Honour, it says, “Against the - - -

HIS HONOUR: At lines 77 and 78?

MR GILBERTSON: Yes.

HIS HONOUR: Yes.

MR GILBERTSON: The claims for shareholders’ loss of their company and goodwill and what is described as creditors’ relief claim similarly, in my submission, do not disclose any cause of action against ASIC. The orders sought in the plaintiff’s summons filed 22 November 2007 - - -

HIS HONOUR: Just a moment. Yes, which part of that affidavit?

MR GILBERTSON: The plaintiff’s summons, your Honour.

HIS HONOUR: The summons of 22 November. Yes, now I have it.

MR GILBERTSON: Order 2 that is sought in that summons, your Honour, is identical with the relief sought against ASIC in the application for an order to show cause, that is, ASIC to pay the relief claimed outlined by the document marked CR and SH1. Proposed order 1, similarly, in my submission, does not point to any law of the Commonwealth that confers a function or power on ASIC which it is alleged ASIC has failed to administer.

Paragraph 3, this reference to external administration appears to be a reference to the liquidation of Antal-Air Pty Limited, a company of which Mr Bittmann was a shareholder and former director. That company was ordered to be wound up in insolvency on 20 April 2004 by Registrar Connard in the Federal Court and, in my submission, paragraph 3 of the plaintiff’s summons does not disclose a cause of action and is frivolous or vexatious. They are the matters I wish to put, your Honour.

HIS HONOUR: Yes. Thank you, Mr Gilbertson. Dr Donaghue, do you claim any entitlement to be heard on this aspect of the matter?

MR DONAGHUE: No, your Honour.

HIS HONOUR: Yes, Mr Bittmann, this is your opportunity to answer what Mr Gilbertson has said on behalf of ASIC. If you would be good enough to come to the central lectern that will assist transcription of what is said.

MR BITTMANN: Your Honour, the defendant is claiming that ASIC is not an officer of the Commonwealth. I have never made such a claim. It is the officers of ASIC who have taken the action against the companies. ASIC has determined in 2004 to wind up Antal-Air. It was ASIC’s delegate who claimed to be a creditor to Antal-Air, which by definition cannot possibly be. He is only a liquidator to another company. From that point on, when ASIC gets involved in any action ASIC becomes the appropriate officer of the company that is involved. At all times from the day that one files a company with ASIC, ASIC has jurisdiction of that company. At all times ASIC has reports coming to it to see if the company is solvent or not. In the bigger companies they have auditors who are also delegates of ASIC. So ASIC is therefore at all times aware and involved in companies that go into insolvency.

When ASIC took over and Registrar Connard issued a wind-up order, he did it by compounding with ASIC’s delegate to seek that order. The company could not be represented because it was disallowed because there was a liquidator already appointed by the Federal Court so therefore any arguments that I may have put as a director I could not because it was locked out. It was a decision made before the wind-up order was applied. In all companies and hence the reason why I started a representative proceedings, your Honour, was because I myself could not possibly carry this argument. This is an argument on behalf of all the creditors, shareholders who are affected by the kind of action that ASIC is taking, not only with Antal-Air but a lot of other companies.

HIS HONOUR: Yes. Are you able to say shortly, in a sentence or two, what it is exactly that you say ASIC failed to do?

MR BITTMANN: Failed to protect the assets of the companies that they are in charge of.

HIS HONOUR: Sorry? Failed to protect the assets of the companies - - -

MR BITTMANN: The companies they are in charge of. The effect of a wind-up order, your Honour, is for the benefit of all creditors and shareholders, all creditors and shareholders, where ASIC has exercised – where it is only of benefit to the appointed liquidator. The shareholders, creditors are locked out of the procedures.

HIS HONOUR: Yes. Is there anything else you would wish to say in answer to what Mr Gilbertson has said?

MR BITTMANN: Mr Gilbertson is questioning the jurisdiction of the High Court.

HIS HONOUR: No, I do not understand him to do that at all. On the contrary, I understand him to submit that the Court has jurisdiction. It has jurisdiction under one provision of the Constitution, section 75(iii), rather than under 75(v). So that the submission he makes is one about why the Court has jurisdiction rather than a submission that the Court has no jurisdiction. He accepts, as I understood him at least, that the Court does have jurisdiction to deal with the claims that you make. He says, however, that the claims you make are ones that have no chance of succeeding. That is as I understand what he says to me. This is your chance to answer that submission.

MR BITTMANN: The sections, your Honour, that I quote for – then if he is not questioning the jurisdiction of the Court, then he is certainly questioning the powers of Parliament because it is the Parliament that made the laws which are referred to as the Acts. All of the questions that I am putting to him which ASIC has jurisdiction and control over is within the Acts and they are not complying with sections of the Act, particularly when I refer to section 471 that gives the protection to creditors, that has not been applied.

HIS HONOUR: Yes. Is there anything else you wish to say?

MR BITTMANN: Does the Court recognise, and does ASIC recognise that this is a representative proceedings?

HIS HONOUR: I understand that that is what you seek to pursue. The question I have to decide immediately is the question presented by Mr Gilbertson’s submission. His submission is that your claims against ASIC have no chance of succeeding. Because they have no chance of succeeding, he says, I should stop the action you bring against ASIC at once. Now, that is what he says. Those are the questions I have to decide. This is your chance to say what you want to say in answer to that.

MR BITTMANN: If the Court accepts, and I think it ought to accept, that this is a representative proceedings because if the Court does not, obviously I will have to step aside because I could not carry it, your Honour, but if it is a representative proceedings, there is a saving of rights declared in the representative proceeding under section 33ZG.

HIS HONOUR: That is 33ZG of which Act?

MR BITTMANN: Of the Federal Court of Australia Act.

HIS HONOUR: Yes, which is an Act which would not seem to me to be engaged or applied in this Court. It concerns proceedings in the Federal Court of Australia. It does not apply, I think, immediately to proceedings in this Court.

MR BITTMANN: This action has been on foot since 2004, your Honour, and in 2004 at the Federal Court, and it is one of the arguments, it was a representative proceeding then and the arguments of vexatious proceedings and not disclosing any cause was argued then and a grant was given. So the precedent was set in the Federal Court and section 33ZG clearly says that:

Except as otherwise provided by this Part, nothing in this Part affects:

(a) the commencement or continuance of any action of a representative character commenced otherwise than under this Part; or

(b) the Court’s powers under provisions other than this Part, for example, its powers in relation to a proceeding in which no reasonable cause of action is disclosed or that is oppressive, vexatious, frivolous or an abuse of the process of the Court –

is not to be run. In the Federal Court also Order 20 rule 2 is their constant use of ASIC which also applies that you are vexatious, but that rule has also been changed in the Federal Court to suggest that you cannot run that kind of argument in a proceedings. That was brought out in the changes of the Act whereby you can only run these kinds of arguments in actions that are done before 2005.

So the Parliament is certainly conscious of the actions that are being taken and they are gradually removing these kind of tactics that is used by ASIC whereby victims of insolvency and particularly creditors – and now, of course, it is very relevant of all the superannuation funds that are losing their money, only because ASIC is not protecting the companies and.....assets are being protected by ASIC in favour of secured creditors and the intangibles, which is the superannuation fund for shares, and they are rapidly losing their money, and the Court ought to be conscious of the fact that simply making an argument to say that in their opinion, not supported by any fact, just their opinion that the argument is vexatious.

HIS HONOUR: Yes. Is there anything else you wish to add?

MR BITTMANN: Not at the moment.

HIS HONOUR: Yes, thank you, Mr Bittmann.

On 22 November 2007 Mr Antal Bittmann commenced proceedings in this Court by filing an application for an order to show cause. The application identified Mr Bittmann as plaintiff but went on to say that he sued as a group member under Part IVA in a representative proceeding requesting constitutional relief against officers of the Commonwealth as set out in section 75(v) of the Constitution. It would seem that the reference to Part IVA in this designation of the plaintiff was intended as a reference to the relevant part of the Federal Court of Australia Act 1976 (Cth).

Four defendants were named in the application for an order to show cause: the Australian Securities and Investments Commission, the Australian Industrial Relations Commission, the Administrative Appeals Tribunal and the Federal Court of Australia. The first of those defendants, Australian Securities and Investments Commission, now seeks orders terminating the proceeding against it summarily on grounds including that the application for an order to show cause discloses no arguable cause of action against it and that the proceedings, at least as against ASIC, are frivolous or vexatious.

Although not immediately apparent from the text of the application for an order to show cause, proceedings which have been instituted in this Court stem ultimately from the winding up by the Federal Court of Australia by order made on 20 April 2004 of a company called Antal-Air Pty Limited of which, at least at one time, Mr Bittmann was a director and shareholder. Since the winding up of the company, Mr Bittmann has taken a number of steps in the Federal Court of Australia and, it would seem, in the Australian Industrial Relations Commission, as well also as the Administrative Appeals Tribunal, concerning the consequences for him of the winding up of the company. It is, however, not necessary to trace the history of those proceedings in any detail. Rather, it is appropriate to return to the application for an order to show cause.

The relief claimed against ASIC is described in the application in the following terms:

ASIC is a body corporate, section 8 of the ASIC Act:

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

(b) may acquire, hold and dispose of real and personal property; and

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

The relief is claimed by the creditors, shareholders and employees of Antal-Air Pty Limited for the sum of $1,811,326.64 as set out in the document marked CR and SH1.

The document described as CR and SH1 is entitled “Creditors and Shareholders Relief Claim” and has a number of elements summarised as being employee entitlements, claims for relief of shareholders and claims for relief in favour of creditors.

The grounds on which the relief sought in the application for an order to show cause is claimed are described in four paragraphs which should be set out in full. They are as follows:

1. ASIC has failed to administer the laws of the Commonwealth to meet the objectives of the ASIC Act.

Section 1 of the ASIC Act is then set out.

2. ASIC and the courts failed in their functions. The new voluntary administration scheme set out in Part 5.3A, Chapter 5, External Administration, “The aim of the scheme is to save companies and businesses which are experiencing solvency difficulties rather than destroy them in the way the law all too often does” - paragraph 15 of the Corporate Law Reform Bill (1992) Explanatory Memorandum.

3. ASIC has failed to support the new external administration contained in Chapter 5, Part 5.3A of the Corporations Act where the objective is to save companies rather than destroy them.

4. When the court, a tribunal or commission during a wind up of the company compound with creditors or make assignment of remuneration for their benefit they face termination of appointment as per section 18K of the Federal Court of Australia Act 1976, section 13 of the Administrative Appeals Tribunal Act 1975, section 82 Workplace Relations Act 1996, section 86 Workplace Relations Act 1996, section 140 Workplace Relations Act 1996.

It is convenient to mention at this point the last of the matters identified in the grounds on which relief is claimed in the application to show cause if only to put it to one side for present purposes. It is apparent from summonses filed by Mr Bittmann together with the application for an order to show cause that he seeks removal from office of certain officeholders and claims that relief on account of what are said to have been deficiencies in the administration of their offices in connection with the claims he makes for the winding up of the company. It is, however, not necessary to consider those matters at this point of the proceedings. They are matters which will arise after consideration of ASIC’s claim for summary disposal of the proceedings.

The central proposition made by ASIC in support of its claim for summary termination proceedings is that nowhere in grounds 1 to 3 of the application for an order to show cause is there identified any respect in which there has been some relevant failure by ASIC. In particular, although allegations are made of failure on the part of ASIC, there is no identification of the particular functions which it is said have not been performed and ASIC submits that examination of the Act demonstrates that it would not be possible by amendment to remedy the defect thus identified.

In oral argument Mr Bittmann contended that the essence of his complaint against ASIC was that it had failed to protect the assets of companies of which ASIC was, as he put it, “in charge”. He submitted that ASIC had “jurisdiction and control over” companies and that ASIC had not in the particular case of Antal-Air, or more generally, not fulfilled its function which he described as being “protecting creditors”.

It may readily be accepted that ASIC has various functions to perform both under the Corporations Act and under the Australian Securities and Investments Commission Act 2001 (Cth) which are functions intended to, amongst other things, work for the protection of creditors. That is to say, at a level of generality or abstraction ASIC’s functions may be described as the functions of a regulator of corporations and of securities and investments markets under regulatory arrangements provided in the legislation that are intended to afford various forms of protection to creditors and investors. But the claims which Mr Bittmann would seek to propound in this Court are claims which require a degree of specificity far greater than the generalised and abstract description of functions which I have proffered.

The application for an order to show cause which Mr Bittmann has filed in this Court seeks specific forms of relief which, if they are to be granted, would require demonstration of specific failures to comply with identified statutory obligations imposed on ASIC under relevant laws and when it is recognised, as Mr Bittmann emphasised, that the claims which he makes he would seek to make as representative of other companies and other creditors of companies which are insolvent or otherwise in financial difficulty, it becomes readily apparent that the absence of specificity of failures proffered in the grounds on which relief is claimed in the present proceeding are not deficiencies which could be remedied by amendment.

The application as it presently stands does not disclose any arguable cause of action. The application as described by Mr Bittmann is one which could not be put into proper order by amendment. Moreover, the attempt to commence the proceeding in this Court as a representative proceeding apparently in reliance upon provisions of the Federal Court of Australia Act is, of course, misplaced and it is not apparent that the claims which Mr Bittmann would seek to propound even if otherwise maintainable which in my view they are not, against ASIC are not claims of a kind that would fall within rule 21.09 of the High Court Rules 2004.

Because no arguable cause of action is alleged against ASIC and because, in my opinion, it would not be possible by amendment to formulate an arguable cause of action of the kind which Mr Bittmann seeks to propound against ASIC, it follows that the proceeding against ASIC should stand dismissed. There will be an order to that effect.

Yes, Mr Gilbertson.

MR GILBERTSON: Yes, I seek the first defendant’s costs of the proceeding, your Honour.

HIS HONOUR: Yes. Are you able to resist that, Mr Bittmann?

MR BITTMANN: Yes, your Honour, on the same grounds as on a representative agreement. The court should not afford costs against a group member is under Federal Court Rule 43, I think.

HIS HONOUR: Yes, thank you. The proceeding against ASIC will be dismissed. It will be dismissed with costs.

Dr Donaghue, this leaves open the summonses which Mr Bittmann filed with his application for an order to show cause which were summonses directed to, I think I am right to say - - -

MR DONAGHUE: Your Honour, if I could hand you up a short outline that might help your Honour with this because I have identified them.

HIS HONOUR: Yes. Has Mr Bittmann seen this?

MR DONAGHUE: Yes, he has. It was given to him this morning.

HIS HONOUR: Yes.

MR DONAGHUE: Your Honour will see it is a short outline. It has a bundle of statutory provisions on the back which are the provisions to which Mr Bittmann has referred and the four summonses your Honour was just referring to are listed at paragraphs 2.1 to 2.4.

HIS HONOUR: Am I right to understand it to be your submission that the removal from office of the persons whose removal Mr Bittmann seeks is a step that can be taken only by Governor-General on an address at both Houses?

MR DONAGHUE: That is correct in relation to all of the statutory officeholders other than Registrar Connard. He could be removed only by the Governor-General. No need for an address - - -

HIS HONOUR: Without the necessity of an address.

MR DONAGHUE: That is right, and, in any event, he no longer holds office.

HIS HONOUR: Yes, I understand that. Is there anything you need to add, Dr Donaghue?

MR DONAGHUE: Your Honour, that will dispose of the identified order in each of the summonses but would not otherwise dispose of the proceedings.

HIS HONOUR: No, that you are a submitting party otherwise and it would then be a question of what directions I gave, if any, for the further conduct of the matter or whether I terminated the matter summarily.

MR DONAGHUE: That is right, your Honour. We are in the Court’s hands in that regard. The only point I would wish to make in that regard is, while making it clear that I do not have instructions to argue that the Court does not have jurisdiction, the Court may nevertheless wish to satisfy itself as to its jurisdiction and the relief claimed while purportedly based on section 75(v) may be of a kind that – the orders are to set aside various decisions and accepting that they are orders in the nature of certiorari, we submit that the Court may nevertheless wish to satisfy itself that 75(v) is not engaged but, as I say – we do not seek to say anything further.

HIS HONOUR: Yes. Mr Bittmann, what is it that you would seek to do with the claims as against the Australian Industrial Relations Commission, the AAT and the Federal Court of Australia?

MR BITTMANN: Your Honour, the Industrial Relations Commission I think has waived its right and put it into the hands of the Court. Nevertheless, the decision of the Industrial Relations Commission was based on the fact that because ASIC – and when I say ASIC it is ASIC’s delegate – if ASIC’s delegate is in charge, therefore the dismissal of all employees without pay is justified and I submit to the Court that the fact as to who is doing the dismissal should be inconsequential as to the act of the crime. The crime was that all of the employees of Antal-Air were dismissed without any pay whatsoever. The defence to that is that it was done by ASIC’s delegate.

HIS HONOUR: Yes. Now, as to AAT and the Federal Court, what do you say I should do with respect to those two claims?

MR BITTMANN: The AAT received submissions from ASIC to say that the AAT has no jurisdiction over decisions that ASIC makes – decisions that they make where they say that they can do whatever they like in relation to carrying out their duties of investigation. But in this case what the decision was, to wind up Antal-Air and by law they are supposed to advise Antal-Air if they intend to make such an action. They did not. That
is a reviewable position by the tribunal but ASIC argued to say that the tribunal has no jurisdiction and for that reason I am saying that Freedman should be dismissed because he should not have accepted the argument that ASIC decides the jurisdiction of the tribunal and not the Parliament.

HIS HONOUR: Yes, and as to the Federal Court?

MR BITTMANN: And the Federal Court, they clearly compounded with ASIC when they wound up the company. There was a total denial of any representation by the company because ASIC appointed a provisional liquidator before the wind-up order was made and immediately when the wind-up order was made they closed the bank account and sacked all the workers. We do not.....and I am saying that is a clear compounding with an insolvent because it was their action that caused the insolvency. Your Honour mentioned, we submit, to suggest that the company was wound up in insolvency. That is incorrect.

HIS HONOUR: I said it was wound up by the court.

MR BITTMANN: By the court on the basis of insolvency.

HIS HONOUR: No, I said it was wound up by order of the court.

MR BITTMANN: But the order will suggest that it was wound up on the insolvency, but it is done on a presumption of insolvency and the Federal Court seems to have two views about presumption. In some areas they call it presumption as to their benefit, in other areas they can use – all companies get wound up on a presumption of insolvency. There is no proof of insolvency. Whether the company could pay that debt was up to me to decide. I was the guarantor of that company. I was the one that said we would not pay that particular bill because it was sought by ASIC as a preferential payment to another company that ASIC was in charge of. So it is a clear case of compounding by the courts with ASIC.

HIS HONOUR: Yes, thank you, Mr Bittmann.

As I have indicated in reasons I gave earlier in connection with an application by ASIC for summary termination of the proceedings brought against it, on 22 November 2007 Mr Antal Bittmann commenced proceedings in this Court by an application for an order to show cause directed to ASIC, Australian Industrial Relations Commission, Administrative Appeals Tribunal and the Federal Court of Australia and the reasons I gave in relation to ASIC’s application, I have described shortly some of the background to the proceeding which Mr Bittmann instituted in this Court.

This is the first return of the proceeding instituted in this Court and it is therefore at this point that I am called on to decide what, if any, further steps should be taken in the proceeding. So much follows from rule 25.03 of the Rules of Court.

The defendants, Australian Industrial Relations Commission, Administrative Appeals Tribunal and Federal Court of Australia, submit to any order the Court may make save as to costs subject, however, to one exception. The exception arises from the fact that although no relief of this kind is claimed in the application for an order to show cause, Mr Bittmann by the summonses he filed at the time of filing his application for an order to show cause has made application that Vice President Lawler of the Australian Industrial Relations Commission, Senior Member G.D. Freedman of the Administrative Appeals Tribunal and Registrar Connard then of the Federal Court of Australia show cause why their respective appointments should not be terminated. The second, third and fourth defendants appear to the extent necessary to contest the grant of relief of the kind sought in the summonses.

As to that set of claims for relief, it is enough to make two points. First, relief of that kind is not sought in the originating process. That may itself suffice to refuse the claims made in the summons. The second point is more fundamental. It is that the particular officeholders may be removed from office by the Governor-General. In two cases the Governor-General may act only upon an address of both Houses of the Parliament and in the other case a Registrar of the Federal Court no address of both Houses is required.

In the face of that, relief of the kind which Mr Bittmann seeks in his summonses calling on those officeholders to show cause why they should not be removed from office should not be granted. Those summonses are accordingly dismissed.

As for the balance of the application for an order to show cause remaining after its dismissal as against ASIC, it may be noted that the relief which is claimed against the Australian Industrial Relations Commission, Administrative Appeals Tribunal and the Federal Court of Australia is in each case directed to a specific order of the relevant body and it is said in the application for an order to show cause that the order in question should be set aside “as the decision was obtained by fraud”. This allegation of fraud is not developed in any respect or amplified in any respect in the material which Mr Bittmann has filed. That being so, it would not be right to require those defendants to show cause in respect of those orders and it follows that the application for an order to show cause as against those defendants should also stand dismissed.

Yes, Dr Donaghue.

MR DONAGHUE: Two matters, your Honour. The first is that there is a fourth summons directed to the removal of Justice Goldberg of the Federal Court of Australia.

HIS HONOUR: I omitted that fact and my reasons for judgment will require consequent amendment to take account of that fact.

MR DONAGHUE: Thank you, your Honour. The second matter is that I am instructed to seek the costs only of the summons in relation to - - -

HIS HONOUR: Yes. Are you able to resist paying the costs of the summons, Mr Bittmann?

MR BITTMANN: Yes, your Honour. It is based on the same thing as I keep reiterating and it is specifically in relation to Justice Goldberg. I have his case there and also the appearances of all of the creditors that appeared in that judgment of Justice Goldberg where again he dismissed it as being a representative proceedings and he issued costs against myself instead of all of the members that were there and on that ground I am saying that – and the costs should not be awarded in that – but if I may, your Honour, I would like to state it only takes me 90 seconds and that might give you background as to why indeed I am here.

HIS HONOUR: No, Mr Bittmann. I have given my judgment and I will not permit you to do other than deal with this question of costs. Is there anything further you wish to say about the question of costs?

MR BITTMANN: The question of costs is as according to the rules of the court, the Federal Court, that it should not be made.

HIS HONOUR: Yes. The several summonses of the plaintiff filed on 22 November 2007 are dismissed with costs. The balance of the application for an order to show cause otherwise is dismissed.

AT 11.05 AM THE MATTER WAS CONCLUDED