Case: Bittmann v Australian Securities and Investments Commission [2006] FCA 1532
Outcome: referred to
The background to this matter is set out in the judgment of Jessup J in Bittmann v Australian Securities &amp; Investments Commission [2006] FCA 1532 (' Bittmann v ASIC '). For clarity here, some elements of the procedural history are worth setting out again. 2 The applicant appeals from a decision of the Administrative Appeals Tribunal ('the Tribunal') given on 21 August 2006. The nature of the applicant's complaint is set out in the decision of the Tribunal at [1]-[2]: "Mr Bittmann was the secretary and director of Antal Air Pty Ltd (Antal Air). He complained to the respondent about the manner in which controllers and liquidators of an unsecured creditor of Antal Air discharged their functions. In letters to Mr Bittmann dated 22 September 2003, 14 June 2004 and 14 June 2006 the respondent stated that it did not intend to take any action on his complaint. Mr Bittmann sought review of the decisions on the basis that Part 5.3A of the Corporations Act 2001 (the Corporations Act ) deals with voluntary administration and should be applied to all controllers and liquidators." The Tribunal determined (at [8]) that the respondent's decisions to take no action in relation to the applicant's complaint did not come within the scope of s 244 of the Australian Securities and Investments Commission Act 2001 (Cth) ('ASIC Act') and were not reviewable by the Tribunal under that provision. The Tribunal decided that it did not have jurisdiction to determine the application that the applicant sought to make, because it was unable to identify any other statutory basis permitting it to review the decisions that the applicant attributed to the respondent. 3 The applicant appeals from the Tribunal's decision that it does not have jurisdiction to review the respondent's decisions that are the subject of the applicant's complaint. Appeals to this Court from the Tribunal can only be brought on questions of law: see s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act'). 8. Such further or other orders as the Honourable Court deems appropriate." 5 The applicant has also provided to the Court a document that sets out the orders that he seeks. Amongst others, he seeks orders in the following terms: "ASIC/Liquidators have used their position to defeat creditors, employees and shareholders from the companies that they control. ASIC/Liquidators do not have judicial powers in S 536. That power is conferred to the Court. (ASIC's submission to the Tribunal on 21 August 2006 was misconceived re S 536.) The applicant have leave to make application to the Administrative Appeals Tribunal pursuant to S 1317E(1) to demonstrate contravention of the Act." 6 By way of motion, notice of which was given on 10 October 2006, the respondent sought to have the notice of appeal struck out. The matter came before me for directions on 12 October 2006. On that date, I ordered (amongst other things) that the respondent's motion be adjourned for hearing to 13 November 2006 and that the respondent file and serve a short outline of submissions. Jessup J kindly heard the motion on that date, as I was engaged in another hearing. 7 In written submissions filed prior to the hearing before Jessup J, the respondent referred to s 44 of the AAT Act. The respondent noted that a question of law must arise from the decision of the Tribunal from which the applicant appeals and that O 53 r 3(2) of the Federal Court Rules ('the Rules') requires that the question of law be set out in the notice of appeal. Additionally, the notice of appeal must set out the orders sought and the grounds relied upon in support of the orders. The notice of appeal filed by the applicant, so the respondent said, did not state a question of law and contained irrelevant assertions and argument. 8 On 13 November 2006, counsel for the respondent sought to rely on O 9 r 7 of the Rules in support of the strike out motion. In so doing, counsel relied on a decision of Ryan J in Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 (' Lambroglou '): see Bittmann v ASIC at [11]. As Jessup J noted subsequently, Lambroglou did not assist the respondent on the application of O 9 r 7, which, as his Honour noted, is directed towards setting aside originating process in circumstances where there is some procedural deficiency or irregularity: see Bittmann v ASIC at [11]-[12]. Here, the respondent does not point to any procedural defect in the notice of appeal. Instead, it seeks to have the notice of appeal struck out on the ground that it fails to identify a question of law that might form the subject of the appeal. In the result, Jessup J ordered that the respondent's motion be dismissed, but that the respondent have leave to make further application in relation to the applicant's notice of appeal: see Bittmann v ASIC at [13].