Case: Laycock v Forbes (1997) 150 ALR 186
Outcome: cited
Moreover, once the preconditions are met, ss 206F(1)(b) of the Act specifies what ASIC must then do. It requires ASIC to give the person a notice in the prescribed form requiring them to demonstrate why they should not be disqualified. In the present case, the notice was in the form set out in [3] above. Prior to reaching a decision, ASIC, in addition to giving the notice, must also make available to the person all the material available to ASIC on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock v Forbes (1997) 150 ALR 186 at 193-94. That does not necessarily mean an oral hearing: Jorgensen at 486. 41 Before reaching a decision, the decision-maker must make available to the person all the material available to it on which the decision will be based and provide the person with an opportunity to respond to, make submissions and call evidence in relation to the material before ASIC: Laycock . Provided that proper notice and opportunity to be heard are given, the fact that a relevant matter is not stated in the initial s 206F notice will not in itself provide a basis for consideration of that matter to be excluded. That obligation to provide due process is an obligation which exists separately from (though it is not unrelated to) the requirement to issue the notice. A s 206F(1)(b) notice is merely the initial way in which ASIC puts certain of those matters before the person in respect of whom a disqualification order is being considered. That view is fortified by the fact that s 206F(2) provides that ASIC is to proceed to determine whether the disqualification is justified by reference to prescribed and authorised matters including the following authorised matters: (i) the person's conduct in relation to the management, business or property of any corporation; and (ii) whether the disqualification would be in the public interest; and (iii) any other matter that ASIC considers appropriate. As s 206F(2)(i) expressly provides, ASIC is authorised to have regard to a person's conduct in relation to any corporation, whether or not that corporation is listed in the notice. Murdaca's complaint about the form of the notice is also without foundation. 42 Murdaca's third contention was that ASIC had to satisfy itself as to the merits of the matters contained in the s 553 reports as a precondition to the exercise of the power to disqualify Murdaca from managing a corporation. That contention is also rejected. As noted earlier (see [17]), s 206F has a structural logic and operation pursuant to which the jurisdictional analysis and merits analysis are separate. 43 Section 206F(1)(a) provides the filter if a person has been an officer of two or more corporations within the last seven years where the liquidator of each company has filed a s 533 report - then ASIC is entitled to serve a notice on that person requiring them to demonstrate why they should not be disqualified. The person served with such notice has a choice. They may take the opportunity (see [16]) to demonstrate why they should not be disqualified or they may choose to stand silent. The contents of the s 533 reports will be before ASIC. Absent a challenge to the contents of a s 533 report (in whole or in part) or material in the possession of ASIC casting doubt on the veracity of a s 533 report, I can identify no reason why ASIC should be required to conduct some further or separate enquiry to verify the matters contained in a s 533 report prepared by a liquidator of a company. If there are matters contained in a s 533 report that a person subject to a possible disqualification order seeks to challenge, then the person will have notice of those matters and an opportunity to address them.