ASIC - Full federal court dismisses challenge to disciplinary board powers

The Australian Securities and Investment Commission announced that the Full Court of the Federal Court of Australia dismissed applications by two Sydney liquidators challenging the power of the Companies Auditors and Liquidators Disciplinary Board (CALDB) to cancel or suspend the registration of company liquidators.

Mr Richard Albarran, of Hall Chadwick, and Mr Vanda Gould, a sole practitioner, lodged applications with the High Court challenging the power of the CALDB to review the registrations of company liquidators.

These applications followed referrals by the Australian Securities and Investments Commission (ASIC) to have the liquidators’ registrations reviewed after concerns they had failed to adequately and properly carry out their duties.

Mr Albarran and Mr Gould contended that the power by the CALDB to suspend or cancel registrations involves the exercise of judicial power contrary to the constitution, as the CALDB is not a court and its members are not judges.

The High Court remitted the applications to the Federal Court, where the matters were heard together.

The Full Court of the Federal Court found that:

the exercise of power by the CALDB to terminate or suspend a right or status created by statute, partly by reference to past conduct is not a power which is inherently judicial;

the function of the CALDB is to assess whether an individual should continue to occupy a statutory position involving skill and probity in circumstances where it is satisfied that the person has failed in the performance of his or her professional duties in the past.

Such a function, the court held, did not constitute the exercise of judicial power. Accordingly, both applications were dismissed and Messrs Gould and Albarran were ordered to pay ASIC’s costs.

"ASIC is pleased the Court has confirmed the power and authority of the CALDB to hear and determine disciplinary applications against auditors and liquidators made by ASIC," ASIC Executive Director of Enforcement, Ms Jan Redfern said.

23 May, 2006
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