Australian Prudential Regulation Authority v TMeffect Pty Ltd

INTRODUCTION 1 By a decision made on 22 June 2017, the Administrative Appeals Tribunal (Tribunal) set aside a decision by the applicant, the Australian Prudential Regulation Authority (APRA). By its decision, APRA had confirmed an earlier decision by it pursuant to s 66 of the Banking Act 1959 (Cth) (Banking Act) refusing to consent to the assumption or use by the respondent, then TMeffect Pty Limited, of the restricted word "bank" in the proposed company name "Bankrolla". As a result of the Tribunal's decision, the respondent changed its name to "Bankrolla Pty Ltd" and began operating complementary social media pages using the name "Bankrolla". 2 On 13 April 2018, I made orders allowing an appeal by APRA under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) against the Tribunal's decision and remitting the matter to a differently constituted Tribunal for reconsideration according to law: Australian Prudential Regulation Authority v TMeffect Pty Ltd [2018] FCA 508 (TMeffect (No. 1)). At the same time, I made orders for the parties in the absence of agreement to file and serve submissions in respect of any further orders required to give effect to my reasons and/or as to costs. 3 I note that while TMeffect had legal representation at the trial, its solicitors provided to my Associate a notice of intention to cease to act shortly before judgment, which was filed following judgment. In the circumstances, on 13 April 2018 I granted leave to Mr Pinter, the sole director of the respondent, to proceed in the Court on behalf of the respondent without a lawyer, thereby dispensing under rule 1.34 with rule 4.01(2) of the Federal Court Rules 2011 (Cth) requiring a corporation to proceed in the Court by a lawyer. 4 The parties reached agreement as to the appropriate order as to costs, namely, that the respondent is to pay the applicant's costs of and incidental to the proceeding in the Federal Court of Australia in an amount as agreed or taxed. However APRA also sought an order that the Tribunal's decision be set aside. This was said to be necessary for the avoidance of doubt, given that correspondence between the parties following judgment disclosed a disagreement between them as to the effect of the Court's orders on the Tribunal's decision.

SHOULD AN ORDER BE MADE SETTING ASIDE THE TRIBUNAL'S DECISION? 5 Subsections 44(4) and (5) of the AAT Act confer power on this Court to make such orders as it thinks appropriate by reason of its decision, including orders setting aside the Tribunal's decision and remitting the matter to be heard and decided again. 6 As APRA submits, it is appropriate for the final orders also to provide expressly that the Tribunal's decision made on 22 June 2017 is set aside. The appropriateness of that order follows from the findings made in TMeffect (No. 1) that the Tribunal's decision is tainted by errors of law. The order sought is also implicit in the order already made that the matter be remitted to the Tribunal for reconsideration according to law. In this regard, the respondent's submissions appeared wrongly to assume that the Court could, in the exercise of discretion, permit the continued use of the restricted word "bank" by the respondent in what were described as limited or non-trading uses (pending reconsideration of the matter by the Tribunal). However, as APRA submits, this Court has no power to consent to any such use. That power is vested relevantly in the Tribunal; hence the orders remitting the matter to the Tribunal for reconsideration. 7 The respondent also submitted that APRA ought to have disclosed amendments to s 66 of the Banking Act. The amendments in question were made by Schedule 3 of the Treasury Laws Amendment (Banking Measures No. 1) Act 2018 (Cth) (the amending Act). Relevantly, item 4 of Schedule 3 to the amending Act repealed s 66(2C) of the Banking Act with effect from 5 May 2018, and consequently after judgment was delivered in TMeffect (No. 1). As a consequence of that amendment, a decision to refuse consent to a particular person is no longer a decision to which Part VI (providing for reconsideration and review of decisions made by APRA) of the Banking Act applies. 8 However, it is not suggested that that repeal has any retrospective application and bears upon the respondent's circumstances. Nor, as APRA submits, could the impending repeal of that provision about which the respondent complains, have had any impact on the utility of these proceedings. Finally, I note that APRA conceded in its written submissions that "there remains in respect of the respondent, in fact, a decision of APRA that has been confirmed under subsection 51B(3) that can therefore properly be the subject of review by the [Tribunal] notwithstanding the repeal of s 66(2C)." I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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