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[2023] FCA 1340
Federal Court of Australia
2023-11-03
Mr J, Mr P, Commission J, Kenny J
Original judgment source is linked above.
The Applicant's Submissions 12 The applicant submitted that the proposed declaration would produce foreseeable consequences for the parties for three reasons, and that therefore the proposed declaration should be made. 13 First, the applicant submitted that the proposed declaration was "necessary to protect the utility of [his] appeal rights, by allowing his appeal to focus solely on the instrument in respect of which his challenge was unsuccessful at first instance". He submitted that, if the declaration was not made, he would "once again bear the onus of persuading the Full Court [on appeal] that the First Designation Instrument was [] vitiated by jurisdictional error", notwithstanding that his submissions to this effect had been accepted by the Court at first instance. He submitted: The first instance proceeding concerned the validity of two instruments: the First Designation Instrument and the Second Designation Instrument. This Court concluded that the decision to make the First Designation Instrument was affected by jurisdictional error ... The effect of declining to make the proposed declaration is that there would be no order formally giving effect to that conclusion. That would have the consequence that, although success on an appeal would invalidate the Second Designation Instrument, it would still leave in place the First Designation Instrument if no declaratory relief were granted in respect of it. ... The applicant submitted that the making of the proposed declaration avoided such "anomalous and unreasonable consequences". 14 Second, the applicant submitted that the proposed declaration would "redress the harm done to [his] reputation by the making of the First Designation Instrument". He submitted that the damage to his reputation was caused by certain public statements made by the Minister on the day she made the First Designation Instrument: see PJR, [99]-[105]. Referring to Ainsworth and other authorities and Moodie v Racing Integrity Commissioner [2017] VSC 693 in particular, the applicant contended that this was sufficient to justify the making of the proposed declaration. The applicant submitted that the possibility that he may also have suffered reputational damage by reason of the Second Designation Instrument (which survived legal challenge) did not preclude the making of the proposed declaration, because the reputational damage associated with the First Designation Instrument could not be equated with any reputational damage associated with the Second Designation Instrument, since only the First Designation Instrument was the subject of the Minister's prejudicial statements. 15 Third, the applicant submitted that the proposed declaration should be made because "at all material times" he had had standing to seek the proposed declaratory relief "by reason of the First Designation Instrument explicitly operating in relation to him in a manner that directly and adversely affected his legal rights and obligations". The applicant submitted that "[t]he failure of his challenge to the Second Designation Instrument… does not affect his standing to seek, or his interest in seeking, that relief, nor does it affect the adverse consequences of the First Designation Instrument in relation to his legal rights and obligations".
The Minister's Submissions 16 The Minister submitted that the Court should conclude that the proposed declaration would produce foreseeable consequences for the parties. The Minister submitted that the proposed declaration would have foreseeable consequences because of "the prospective nature of the Revocation Instrument". That is, in the Minister's submission, "[t]he legal effects of the First Designation Instrument, in the period prior to the Revocation Instrument, were not removed by the revocation". This was, so the Minister submitted, the basis on which the applicant's challenge to the First Designation Instrument was capable of being heard and determined. The Minister further submitted that the proposed declaration will produce foreseeable consequences as to the applicant's rights "in the period during which the First Designation Instrument operated". In this connection, the Minister contended that the legality of any dealings the applicant may have had during that period would depend on the validity of the First Designation Instrument. Thus, so the Minister submitted: Prohibited dealings extend to those which "indirectly" make an asset available "for the benefit of" a designated person and strict liability applies (reg 14). The width of the prohibitions means that it is foreseeable that the First Designation Instrument concretely affected the applicant's rights, as well as the rights of third parties who might even unknowingly have indirectly made an asset available for the benefit of the applicant. 17 Accordingly, in the Minister's submission, there was sufficient utility in a declaration; and further, that "discretionary considerations weigh in favour of making the declaration at least so that the Court's finding of invalidity is not rendered unappealable".
consideration 18 First, I accept the Minister's submission that the First Designation Instrument was effective from 8 April 2022 until 21 September 2022, when the Revocation Instrument came into effect. It follows, so it seems to me, that the proposed declaration may produce foreseeable consequences affecting the applicant's rights in that period. For example, as previously noted (at PJR [21]), reg 14 of the Sanctions Regulations prohibited an asset being directly or indirectly made available to, or for the benefit of, a designated person, other than as authorised by a permit under reg 18. I accept that, as the Minister submitted, the breadth of this prohibition means that it is foreseeable that the First Designation Instrument affected the applicant's rights, as well as the rights of third parties. Similarly, given the broad terms of reg 15, it is foreseeable the First Designation Instrument operated to affect the applicant's as well as others' rights. 19 This is sufficient, so it seems to me, to overcome my concerns about making the proposed declaration in the present case. It is unnecessary to address the other submissions advanced in support of the declaration. Accordingly, I would declare that: Item 103 of s 2 of Schedule 1 to the Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Russia and Ukraine) Amendment (No 11) Instrument 2022 (Cth) is void and of no effect. 20 Further, I would order that the Amended Originating Application is otherwise dismissed; and that there be no order as to costs, with intent that each party bear its own costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny.
Abramov
Minister for Foreign Affairs
KENNY J 1 On 15 September 2023, the Court published reasons addressing the matters in dispute between the parties in this proceeding: see Alexander Abramov v Minister for Foreign Affairs (No 2) [2023] FCA 1099 (PJR). At the same time, the Court made the following orders: 1. Unless a party notifies the Court in writing within 7 days of today that orders to give effect to these reasons have been agreed between them, then the parties are to file and serve submissions (limited to 2 pages) in support of such orders as they propose to give effect to these reasons, together with a minute of order, by 4 pm on 29 September 2023. 2. Unless a party notifies the Court in writing within 7 days of today that an order as to costs has been agreed between them, then the parties are to file and serve submissions as to costs (limited to 3 pages) by 4.00 pm by 4 pm on 29 September 2023 3. The parties have liberty to apply on reasonable notice. 2 On 29 September 2023, the parties provided the Court with a draft minute of agreed orders in the following form: THE COURT DECLARES THAT: 1. Item 103 of s 2 of Schedule 1 to the Autonomous Sanctions (Designated Persons and Entities and Declared Persons - Russia and Ukraine) Amendment (No 11) Instrument 2022 (Cth) is void and of no effect. AND THE COURT ORDERS THAT: 2. The Amended Originating Application is otherwise dismissed. 3. There be no order as to costs, with the intent that each party bear its own costs. 3 By email dated 10 October 2023, the Court advised the parties that it was concerned that it could not make the proposed declaration on the material presently before the Court, having regard to the High Court's observations in Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69 and 71, approved in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582. The parties were also informed that they might file submissions in support of the proposed declaration or provide the Court with a different minute of order. On 16 October 2023, the parties were given leave to file submissions to address the Court's concerns. Having considered the matter further, I would make the declaration and orders the parties sought. 4 The following discussion assumes that the reader is familiar with the facts and matters set forth in the reasons delivered on 15 September 2023.
[2017] VSC 693
(1992) 175 CLR 564
(1977) 18 ALR 55