BUSS (Queensland) Pty Ltd atf The Building Unions Superannuation Scheme (Queensland) v Australian Prudential Regulation Authority

Federal Court of Australia|2025-01-31|Before: Ms J, Derrington J

THE COURT ORDERS THAT:

The application is dismissed.
The parties are to be heard on the question of costs.
The respondents are to file and serve any material and submissions on the question of costs (such submissions to be limited to five pages) within one week of the date of this order.
The applicant is to file and serve any material and submissions on the question of costs (such submissions to be limited to five pages) within two weeks of the date of this order.
The respondents are to file and serve submissions in reply on the question of costs (such submissions to be limited to three pages) within three weeks of the date of this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J:

Introduction

On 13 August 2024, a delegate of the Australian Prudential Regulation Authority (APRA) made a determination, pursuant to s 29EA(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act), to impose additional conditions on the registrable superannuation entity licence (RSE licence) of the applicant, BUSS (Queensland) Pty Ltd as trustee for the Building Unions Superannuation Scheme (Queensland) and the BUSS (Queensland) Pooled Superannuation Trust (BUSSQ). In broad terms, those additional conditions require that BUSSQ engage an independent third party to review (and, if necessary, assist with improving) its systems and processes with respect to: first, the fitness and propriety of its responsible persons and secondly, its management of expenditure in compliance with its best financial interests duty. By the present application for judicial review, BUSSQ asserts through grounds one to five that the imposition of the conditions was beyond APRA's power, that the decision was legally unreasonable, and that it was denied procedural fairness.

Background

The evidence in relation to the relevant factual background was not controversial in this matter and is capable of being briefly stated for the purposes of giving context to the issues requiring determination.
Over a number of months prior to 26 July 2024, APRA had engaged with BUSSQ for the purposes of ascertaining whether BUSSQ's systems and processes relating to its assessment of the fitness and propriety of its officers in compliance with Prudential Standard SPS 520 Fit and Proper and Prudential Standard SPS 510 Governance, were being appropriately implemented in the course of its day-to-day operations.
In particular, from 19 July 2024, APRA had engaged with BUSSQ in relation to what steps, if any, it had taken to assess its governance arrangements given that the CFMEU Queensland Branch (CFMEU-Q) is a shareholder in BUSSQ and four of its eight directors must be appointed by CFMEU-Q, as well as the fact that some of the then current directors had associations with the CFMEU. In particular, there had been a number of serious misconduct allegations made in relation to CFMEU branches, and the Commonwealth Government had stated its intention to place the CFMEU into administration, with the consequence that CFMEU-Q might also be placed into administration.
On 23 July 2024, APRA issued notices for information and books relating to large payments made by BUSSQ to the CFMEU. Those notices were sent following developing concerns relating to whether those payments complied with BUSSQ's duty to act in the best financial interests of its members as required by s 52(2)(c) of the SIS Act and Prudential Standard SPS 515 Strategic Planning and Member Outcomes.
On 26 July 2024, a show cause notice was issued to BUSSQ, putting it on notice that APRA was considering imposing additional conditions on BUSSQ's RSE licence pursuant to s 29EA of the SIS Act. Accompanying the notice was an extensive statement articulating APRA's reasons for imposing the proposed conditions, copies of the documents referred to in the reasons, and a copy of the then-proposed additional conditions. BUSSQ was invited to make submissions with respect to APRA's proposed action by 2 August 2024 and to contact APRA if it "require[d] any further information".
On 2 August 2024, BUSSQ provided submissions in response to the show cause notice. It did not suggest that it did not have sufficient time in which to respond to the notice. However, it did make submissions concerning the consequences for it if the conditions were imposed. In part it submitted: … we would anticipate that the preparation of documents and coordination of resources would incur significant additional costs. Ultimately, this is a financial burden that will be felt by the members of the Fund. In addition to these costs, there is a real risk that the imposition of additional licence conditions, if publicised, will create unwarranted concern amongst Fund members which could lead to additional queries and potential exits from the Fund. … [and on that basis] … going forward, should APRA wish to proceed, and should the Trustee not wish to challenge, it would be fair that this matter is maintained under confidentiality.
APRA responded to BUSSQ's submissions on 6 August 2024, and in its letter of response it attached an amended version of the proposed conditions. It invited BUSSQ to respond to the amended proposed conditions by 8 August. In relation to the possible publication of any proposed amended conditions, it stated that it took into account any possible risks to financial stability but indicated that, unless there were likely to be risks to the interests of the beneficiaries and/or financial stability, its practice was to make public its administrative enforcement action. At that time, APRA clearly indicated that it did not perceive any reason why it would not make public any conditions which it might impose on BUSSQ's RSE licence.
Following some further correspondence, APRA agreed to extend BUSSQ's opportunity to respond to its latest proposed conditions to 12 August 2024.
On 12 August 2024, BUSSQ provided further lengthy submissions to APRA in relation to the proposed imposition of conditions. Again, it did not suggest that it did not have sufficient time to respond to the matters which arose from APRA's indication of the proposed additional conditions, nor did it make any further substantive submissions about the consequences of publication by APRA of its decision.
On 13 August 2024, a Mr Adrian Rees of APRA made the first decision which purported to impose conditions on BUSSQ's RSE licence, and also determined to publicise that decision. In relation to that latter decision, his reasons identified that he had considered and rejected BUSSQ's first submissions to the effect that there ought not to be any publication of the decision to impose conditions. He concluded that: … there [is] no reason to depart from APRA's standard approach to make public the imposition of additional licence conditions on the RSE Licensee and I consider that decision and a summary of the additional conditions should be made public via media release.
On the making of those decisions, notice of them was immediately given to BUSSQ.
Over the subsequent further objection of BUSSQ, APRA published its decision to impose conditions on 14 August 2024 by the issuing of a media release which summarised the nature of the conditions imposed and the reasons for their imposition. It also issued an email release about the decision on the same day.
On 16 August 2024, BUSSQ indicated its intention to commence the current proceeding to seek judicial review of APRA's decisions.
Of relevance to what has become the pivotal issue on the application, on 19 August 2024, APRA put BUSSQ on notice that it would oppose any application for judicial review on the ground that BUSSQ had alternative avenues of relief available by way of an entitlement to seek internal merits review of the decisions pursuant to s 344 of the SIS Act and to subsequently seek review of that decision by the then Administrative Appeals Tribunal. It further indicated that it would rely upon the rule expressed in s 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in relation to any relief pursued by BUSSQ under that Act. In relation to this issue, APRA offered to partially stay the effect of the conditions decision to allow BUSSQ to exercise its rights to internal review under the SIS Act.
Despite the above, no application for internal merits review was made by BUSSQ, which then pursued the current application.

Nature of the review sought by BUSSQ

BUSSQ advanced its case as to the invalidity of both the conditions decision and the disclosure decision on a number of grounds. The first, which itself was extensive, was that the conditions which APRA sought to impose were insufficiently certain to be valid. This was advanced on several bases, and attacked the terms of the conditions sought to be imposed in a variety of ways. In some respects the conditions were said to grant to APRA powers of approval which lacked any objective criteria on which they might be assessed, or were uncertain as to the time periods in which steps were to be taken, or granted to APRA powers which were able to be exercised in its absolute discretion, or the content of which was vague and rendered BUSSQ incapable of knowing whether it had complied with a condition, or which were dependent upon the actions of third parties. The specific matters relied upon by BUSSQ were set out at length in its extensive written submissions and, whilst some complaints may have merit, it is fair to observe that the submissions were developed with an eye attuned to the identification of error rather than one which sought to objectively consider the nature and effect of the conditions in a reasonable manner. Nevertheless, the submissions in this respect suggested an abundance of errors made by APRA in purporting to impose unclear conditions.
Ground two of BUSSQ's application was that APRA ought to have exercised the power to regulate it under s 131D of the SIS Act by the giving of directions. It was said that APRA's purported exercise of power under s 29EA(1) of the SIS Act was ultra vires, because it should have exercised its power under s 131D which would have provided additional protections to BUSSQ. In support of that proposition, reliance was placed, inter alia, on the observations of Hayne and Bell JJ in dissent in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514. The underlying rationale for the alleged jurisdictional error was that it was unreasonable for APRA to exercise the power under s 29EA(1) of the SIS Act, in circumstances where it had the power to give directions to BUSSQ which would have been sufficient to protect the interests of the members of the superannuation fund.
Ground three of the application asserted that APRA had acted in excess of its power by impermissibly delegating its powers of regulation. That, it was said, arose by reason of the conditions imposed on BUSSQ's licence which would empower an independent third party to, among other things, determine and ascertain whether BUSSQ has contravened any part of the regulating laws. It was also said that the third party was impermissibly delegated the task of monitoring compliance, including by directing an audit of the affairs of BUSSQ.
The subject of ground four was that the decision to impose conditions on BUSSQ's RSE licence was unreasonable. The substance of this ground appeared to be a generalised assertion that it was unreasonable to impose conditions on BUSSQ, particularly in light of the absence of the identification of any background circumstances which might justify that action, the failure to justify the exercise of power under s 29EA(1) when alternative measures may have been able to achieve compliance objectives, and where the timeframes for compliance imposed by the conditions were "onerous".
Ground five complained of an alleged lack of procedural fairness on the basis that APRA failed to give BUSSQ a sufficient opportunity to be heard. The substance of this complaint was that, whilst it was given notice of the making of a decision in general terms, it was not provided with sufficient detail of the matters on which APRA was relying as the foundation for the exercise of its power. It was said that the extent to which the person affected by a decision is to be informed of the matters of concern to the decision-maker corresponds to the seriousness of the decision to be made and that, as the decision in this case could have severe repercussions for BUSSQ's business, it was incumbent on APRA to provide it with full and complete information as to that which had prompted it to consider the exercise of its power. Further, it was said that APRA failed to afford BUSSQ a reasonable time to present a case against the proposed exercise of power and, finally, that it failed to disclose adverse information which was credible, relevant and significant.
Ground six was also concerned with a lack of procedural fairness afforded by APRA, but in respect of the disclosure decision.
Ground seven, which also concerned the disclosure decision, was directed to the second respondent, Ms Cole. Relevantly, this ground was to the effect that the actual act of disclosing the conditions decision by email and on APRA's website (which was said to have been done by Ms Cole) was contrary to s 56(7B)(c)(i) of the APRA Act.
It is not irrelevant that many of the foregoing grounds and their particulars are of a nature that the alleged defects could have been cured or ameliorated in the course of an internal merits review under the SIS Act or in the course of any subsequent review before the Administrative Appeals Tribunal (now the Administrative Review Tribunal). That is to say, the complaints relating to the uncertainty of the conditions could be overcome in the course of an internal review by their rewording and, indeed, the complaints that BUSSQ was not afforded procedural fairness on separate occasions would become irrelevant and be overcome by reason of the further hearings in respect of which it will have been fully informed.

Should the relief be refused as a matter of discretion?

There was no doubt about BUSSQ's entitlement to seek full merits review of the conditions decision. Section 344(1) of the SIS Act provides: Request for review (1) A person who is affected by a reviewable decision of the Regulator or the Registrar may, if dissatisfied with the decision, request the decision maker to reconsider the decision.
Provision is made in the subsequent subsections for the making of such a request and the obligation of the decision-maker to reconsider the decision. APRA must make a decision on the application for reconsideration within 60 days; if it fails to do so, the original decision is deemed to have been confirmed: see s 344(5) of the SIS Act. By s 344(8), a person dissatisfied with a decision which has confirmed (or varied) the decision under review may apply to the Administrative Review Tribunal for review of the decision. For convenience, the process by which BUSSQ might have obtained merits review will be referred to herein as "the merits review process".
It is undoubted that, in the circumstances of the present matter, BUSSQ could have sought the decision-maker's review of the conditions decision, which itself included reasons to publicise the decision. If it remained dissatisfied with the reviewed decision, it was entitled to seek a review before the Tribunal.
In relation to this, APRA submitted that the Court should not proceed to hear and determine the application for judicial review, in that it should refuse to consider granting the relief on the discretionary ground that BUSSQ is entitled to seek adequate relief in other forums. In relation to BUSSQ's grounds of review which rely on the ADJR Act, s 10(2)(b)(ii) of that Act affords a similar discretion not to grant relief under the Act where the applicant has other avenues by which suitable relief can be obtained. It relevantly provides: (2) Notwithstanding subsection (1): … (b) the Federal Court … may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: … (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
Relevantly, for the purposes of s 10(2), s 10(3) provides: (3) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.
In this case, the existence of adequate provision for review of APRA's conditions decision became a threshold issue to the exercise of discretion under the ADJR Act. Although there is no legislative requirement in relation to the exercise of discretion to grant prerogative relief, it is necessarily the case that the absence of an adequate alternative avenue of relief would weigh heavily against the exercise of a discretion to refuse it.

The authorities concerning adequate provision for review

In exercising its discretion to refuse to grant relief by way of judicial review or under the ADJR Act, it is accepted that the Court must consider all the relevant circumstances in which the discretion is to be exercised. That being so, much will turn on the nature of the case before the Court.
Whilst it has been recognised that the untrammelled discretion is not to be fettered by judge made rules, its exercise under s 10(2)(b)(ii) of the ADJR Act, or more generally in relation to prerogative relief, will often be informed by common approaches and considerations: see Duncan v Fayle (2004) 138 FCR 510, 518 - 519 [26] - [27]. Those approaches reflect the exercise of power in a principled manner.
It is well accepted that it is not a requirement that "special circumstances" need to be shown before an applicant will be entitled to prerogative relief or to relief under s 10(2)(b)(ii) of the ADJR Act, where they have available to them some other form of review: Cremona v Administrative Appeals Tribunal (2015) 230 FCR 1, 12 - 13 [48] - [50]. In that case, the Full Court observed the following (at 13 [52]) in relation to the decision to refuse to exercise the discretion under s 10(2)(b)(ii) of the ADJR Act: Properly construed, if it is satisfied another law makes "adequate provision" for review, s 10(2)(b)(ii) requires the Court to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding. That exercise is not to be confined by simply asking, as the FCCA did here, whether there are "special circumstances". That constitutes acting upon a wrong principle, which is an appellable error (see House v The King (1936) 55 CLR 499 at 505).
It is to be kept in mind that the concept of "adequate provision" is taken to mean, adequate, in the sense that there is suitable or sufficient provision for review: Edelsten v Minister for Health (1994) 58 FCR 419, 424.
On the other hand, it appears that some authorities suggest that where legislation makes provision for internal review of an administrative decision, there is a preference for requiring a dissatisfied applicant to pursue that course rather than seek judicial review. Some relevant decisions were assayed by Dowling J in Luck v Secretary, Services Australia [2024] FCA 1158, where, in relation to the application of s 10(2)(b)(ii) of the ADJR Act, his Honour observed: 21 Once the Court is satisfied that another law makes adequate provision for review pursuant to s 10(2)(b)(ii), the Court is required to consider and weigh all relevant circumstances in determining whether or not to exercise the discretion to dismiss the proceeding: Cremona v Administration [sic] Appeals Tribunal [2015] FCAFC 72; 230 FCR 1 (Tracey, Griffiths and Mortimer JJ) at [52]. 22 In Murphy v Secretary, Department of Social Services [2022] FCA 1605; 180 ALD 347, Logan J upheld a decision of the Federal Circuit Court dismissing an application for review because there were modes of adequate alternative review which remained available under the social security legislation. At [19], Logan J extracted with approval the Full Federal Court in Swan Portland Cement Ltd v The Comptroller-General of Customs (1989) 25 FCR 523 at 530 (per Morling, Pincus and O'Loughlin JJ): The learned primary judge pointed out that the legislation provided 'its own method of review', referring to the applicant's right to go to the Anti-Dumping Authority referred to above. His Honour also remarked that, 'it should not be thought that it is always appropriate to bring a matter of this kind before the court.' We agree and express the view that in many (perhaps most) circumstances, the Court's proper response to an application of this particular sort should not be to embark upon a full hearing, but rather to exercise the discretion under s 10(2)(b)(ii) adversely to the applicant. 23 More recently in Haque v Secretary Department of Social Services (Centrelink) [2024] FCA 295, Wheelahan J said (as obiter) at [74] that "generally speaking, unsuccessful claimants for payments under the Social Security Act should pursue" the internal and AAT review "remedies rather than approaching the Court seeking judicial review".
Here it is not necessary to consider whether it might be that, generally speaking, parties dissatisfied with a decision by APRA should pursue internal merits review rather than seeking judicial review from the courts. As the matters discussed below indicate, the review available to BUSSQ under the SIS Act is more than adequate and would be capable of curing or resolving the majority if not all of the issues between the parties, whereas an application for judicial review is substantially more limited. For those reasons, on any view, the Court should exercise the discretion to refuse relief.
It was submitted that there was no set rule to the effect that merely because the applicant has alternative avenues of relief through internal review and the like, that the Court should refuse to give relief on an application for prerogative relief. Whilst it can be accepted that the Court's discretion is not limited by any such rule, the fact that there is an alternative avenue of relief which is likely to be cheaper and more efficient is a not insignificant consideration. Indeed, it has long been recognised that where a more convenient and satisfactory remedy exists, the Court has a discretion to refuse to grant a prerogative writ which will usually be exercised against the applicant: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 108 [56]; Bechara v Bates (2021) 286 FCR 166, 203 [159], [161].
It can be observed that there is dicta to the effect that the proper response to a submission that the court should refuse to exercise jurisdiction to grant relief, is to determine that issue before undertaking a full hearing of the matter: see, for example, Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523, 530. Whilst that statement might identify the preferable course, it is a matter of practice and not one which must invariably be followed.
Here, APRA raised in its submissions that the Court should exercise its discretion to refuse to grant relief, and that was the first occasion on which it could do so before the Court. Very properly, it had raised this issue with BUSSQ prior to the proceedings being instituted. It is not to the point in the circumstances of this case that neither party sought a separate hearing of the issue before the application was fully heard. The point does not lose value or import merely because it was not addressed until the hearing of the application proper. It may be that, where the application for judicial review is concerned with a single alleged jurisdictional error of limited scope, the fact that the issue of the court's discretion is not addressed until the hearing will have the consequence that the court is more likely to proceed to determine the sole issue in dispute. However, where, as here, there are multiple grounds of review and myriad issues contained in them, the effect of the preliminary point not being determined separately and earlier is substantially minimised.
It should be noted that, any application for internal review under s 344(1) of the SIS Act was to be made within 21 days after receipt of the notice of decision, which time has long since expired. However, that provides no impediment in this case given that APRA has indicated that it is prepared to extend the time for BUSSQ to make such an application. That being so, there is no need to consider whether the fact that a dissatisfied party has not pursued an appropriate avenue of relief within the requisite time has the result that there is no relevant discretion to refuse to exercise jurisdiction.
APRA also quite properly indicated that it would extend the time for compliance with the conditions which it has purported to impose, so as to allow review proceedings to be completed. That is appropriate and, one would expect, axiomatic.
The nature of the alleged error or errors made by the initial decision-maker is also relevant to the Court's discretion. Where what is sought is obviously merits review, the dissatisfied party should usually be expected to pursue the avenue of relief which best accommodates their complaint. However, it does not follow that, merely because the alleged errors made by the initial decision-maker are said to constitute jurisdictional errors, that judicial review is the only remedial course. That is particularly so where the alleged jurisdictional error has a factual, rather than a legal, foundation. For instance, in this case the alleged procedural errors have the factual underpinning that BUSSQ was not allegedly informed of the precise nature of the conditions which APRA envisaged imposing. That alleged legal error has a factual foundation and could easily be cured were BUSSQ to pursue internal review, as it has now become aware of the precise nature of those conditions. Similarly, the alleged uncertainty in the terms of the conditions arises from their manner of expression, which is also a factual issue. Such matters can be rectified in the course of the merits review process.
Though it is rarely likely to be decisive, it might be assumed that the onus on this question rests upon the party who requests the Court to refrain from exercising its undoubted jurisdiction: see, for example, Kelly v Coats (1981) 35 ALR 93, 94. As a general proposition, a party may seek to pursue whatever rights and entitlements are available to them.

The exercise of the discretion

Given the foregoing discussion, it is appropriate to turn to the exercise of discretion in the present case.

The merits review process makes adequate provision for review

As a starting point, it can be presumed that s 344(1) of the SIS Act provides adequate provision for the review of the conditions decision which is the primary subject of the present application. The section provides for full merits review of the initial decision and there are no relevant limitations on the process. A person dissatisfied with a decision of APRA is entitled to full procedural fairness in relation to the internal review, and has the ability to make all submissions relevant to the power to make the decision and to the nature and extent of the conditions which might be imposed. If a party is dissatisfied with the internal review, they are entitled to seek further review before the Tribunal with the same entitlements. It was not seriously suggested in this case that these avenues of relief did not make adequate provision for review.
It follows that, in respect of both the relief sought under the ADJR Act and the prerogative relief, the Court's discretion to refuse to grant the relief is enlivened.

The existence of an administrative decisional scheme provided by the SIS Act

It is important in the exercise of the discretion that the structure which the legislature has put in place in respect of APRA's decisions expressly incorporates an initial internal merits review followed by an external merits review before the Tribunal. It is axiomatic that the inclusion of an expressly created avenue of review, carries with it the implication that it was intended to be used and, it might be said, that it was intended to be the preferred method of correcting any administrative error to the alternative seeking of a review before the Court.
It should also be kept steadily in mind that each of the reviews within the merits review process are full merits review. In each step of that process, the applicant is able adduce further material which was not before the initial decision-maker. This not only gives the dissatisfied applicant additional opportunities to provide material, but has the consequence that any deficiency in the evidence before the initial decision-maker can be rectified. In this respect, the merits review process may be favourably compared to a fast-track review regime in which an applicant's procedural rights are curtailed: see, as an example, the former regime for fast-track reviews in relation to certain visa protection decisions under the former Pt 7AA of the Migration Act 1958 (Cth). It may also be favourably compared to the necessarily narrower form of proceedings for a prerogative writ, in respect of which only errors which amount to jurisdictional errors will be sufficient to generate relief.
Apart from those obvious advantages, an additional derivative advantage is that the merits review process will ensure that the parties have ample opportunity to adduce all the information relevant to the decision which they desire. That will have the result that, were the matter to subsequently come before a court, there is unlikely to be any issue that will fail for want of evidence.
Similarly, the merits review process affords the applicant the opportunity to rectify any issues which might have occurred in the process by which the original decision was made. Concerns about breaches of procedural fairness offer a paradigm example. Here, one of BUSSQ's main complaints was that a decision was made without it being aware of the particular basis for the imposition of the conditions which APRA had in contemplation. Were BUSSQ to seek merits review of the initial decision, it would do so as an applicant which is acutely aware of the nature and extent of the contemplated conditions, and it would then be able to address them with specificity. In this way the merits review process is superior, and one which can alleviate any procedural defects rather than merely negate the conclusion reached at the end of the process. Similar observations apply to the allegation that some of the conditions are invalid by reason of the lack of certainty in their expression or operation. Again, on an internal merits review, BUSSQ would be entitled to identify any alleged uncertainty and have that addressed by the reviewer who might reword or clarify any condition sought to be imposed. Alternatively, the reviewer may accept a submission that a particular condition is of a type that cannot be imposed, such that any further decision would not include one of that nature. Again, the curative effect of the merits review process is preferable to the impact of judicial review.
To the extent to which an applicant is not satisfied of any of these matters by the internal review, it will have a second opportunity to seek a review before the Tribunal. Again, it will have the full panoply of rights in relation to the making of the decision.
The merits review process is directed to the production of the more correct and preferable decision, to the extent to which APRA intends to maintain its position. Whilst offering BUSSQ two additional opportunities to advance material and make submissions, it also allows APRA the ability to consider the content of its decision, and the opportunity to rectify it to the extent to which it is able or prepared to do so. The result is that any decision which may become the subject of judicial review, is one which is likely to be as correct as the decision-maker can make it. If, conversely, the matter is taken directly to the Court by the applicant, these intermediate avenues of review in which the decision is refined, will be lost.
The circumstances of this case highlight the benefits of successive reviews prior to the matter coming before the Court. As indicated, BUSSQ has asserted the existence of multiple errors by the original decision-maker. Though there are seven grounds of review, the particulars of the grounds are manifold, and the breadth of the complaints is reflected in the nearly 100 pages of submissions which BUSSQ, alone, filed to address them. Nevertheless, a large number of the concerns are directed to issues which might be rectified in the course of the merits review process. That is particularly so in relation to the complaints of a lack of procedural fairness or the alleged lack of certainty of the manner in which the conditions have been expressed. The obviously prudent approach in this case would have been to follow the merits review process in which many of the factually based issues would or could be resolved. If there were any remaining issue of the legality of APRA's ability to impose the conditions, that matter alone could be agitated before the Court.
On the assumption that litigation in the Federal Court is more expensive than conducting an internal review or a hearing before the Tribunal, the merits review process is likely to be a cheaper option for the resolution of all issues between the parties. That factor should neither be forgotten nor underestimated, particularly where the bringing of the matter to the Court impinges upon its ever-diminishing resources.
A recurrent theme of BUSSQ's submissions was that it was not interested in seeking merits review of the decisions, as its concern was that APRA's decisions were beyond power. Specifically, in relation to the conditions decision, it submitted that, whilst it was concerned with the legality of the conditions, including on the ground that they were uncertain, it was not concerned to have more precisely defined conditions imposed upon it. Rather, it was concerned to have no conditions at all imposed. On this basis, it submitted that it was entitled to by-pass the avenue for relief provided by s 344 of the SIS Act, and proceed directly to seeking judicial review.
The fallacy of that submission is that the reviews offered by s 344 of the SIS Act and subsequently the Tribunal, are both full and ample. On review under the SIS Act, the decision-maker is obliged to undertake a complete and "real" review of the matter under consideration by determining it afresh. The same applies to the determination of an application made to the Tribunal. Before either the original decision-maker or the Tribunal, BUSSQ is entitled to submit that no conditions ought to be imposed on its licence at all. That may be because, so BUSSQ might submit, the occasion for the imposition of conditions has not arisen or, alternatively, that those sought to be imposed lack sufficient certainty to be lawful. Indeed, in accordance with the submissions on which it now relies, it might also be that the making of the decision is beyond the lawful exercise of power. If it were able to convince either the decision-maker on review or the Tribunal of any of those matters, the resultant decision would necessarily be that no conditions would be imposed. This being so, it is insufficient for it to claim in response to the suggestion that it should have followed the merits review process that it is not desirous of any conditions being imposed at all.
Though it was not specifically acknowledged, it appeared that BUSSQ was seeking some broad tactical advantage by seeking judicial review rather than merits review. In part, that would seem to involve preventing APRA from confronting and rectifying allegations of a failure to accord natural justice or imposing conditions which were uncertain. There is no need to reach any final conclusion in relation to that, though it is apt to observe that the Court is concerned with matters such as efficiency, costs and expedition, rather than the perceived benefits of one party securing some temporal or limited success in a curial proceeding.
BUSSQ's submission in this respect tends to assume the general correctness of its contention that, as a matter of law, APRA's powers to consider imposing conditions on its licence were not enlivened at all. Were it the case that such a question of law was the only live issue, it may have been appropriate that the matter be disposed of on the current application. However, that is clearly not the case. As indicated, BUSSQ raised myriad other contentions which were generally factually based, and which were capable of being cured in the course of the merits review process.

The timing of the raising of the exercise of the Court's discretion

The fact that BUSSQ's application was fully argued before the Court is of some, but not great, relevance. Were it to be in any way decisive, it would tend to negate the Court's discretion. Though it might be accepted that, where the issue of discretionary refusal to determine a matter is raised, it is preferable that it be determined prior to the full hearing of the application, the fact that it has not been does not diminish the Court's power to exercise the discretion.
Moreover, BUSSQ was given a clear intimation prior to commencing the current proceeding that it should not do so and that it ought to seek internal review. It was further advised that, if judicial review proceedings were brought, APRA would ask that the Court exercise its discretion to refuse to grant relief. That was a salutary warning, albeit one that was rejected. In such circumstances, BUSSQ is not in a position to complain that the Court has been asked to refuse relief on discretionary grounds at this point in the proceeding. It was acutely aware that APRA would make such an application or a submission to that effect, and it nevertheless proceeded with its claim. It having done so, APRA was entitled to ask the Court to determine, as a preliminary matter, whether the discretion to refuse to grant relief should be exercised. Ultimately, there will be some wasted costs as a result of the issue being raised only at the hearing of the application, however, that is merely the consequence of BUSSQ's actions. In the circumstances, it is not a consequence for which APRA has any responsibility.
In these circumstances, the fact that the parties have addressed the Court on all issues does not significantly affect the exercise of the discretion.

The merits of BUSSQ's claim

There is danger in attempting to assess the merits of BUSSQ's application, even though the parties have addressed the Court on all matters. All that is necessary to observe is that there is some prima facie merit in a number of the grounds advanced by BUSSQ. That is not to say that they would have succeeded had they been fully determined. Of course, had they been seen to be of no merit it would have been appropriate to have so concluded and dismissed the application for review on that basis. Alternatively, had they been undoubtedly correct, it might have been appropriate to set aside APRA's decision regardless of the existence of the merits review process. However, as mentioned, the claims are arguable and the result might ultimately go either way. In those circumstances, there is no pressing reason not to exercise the discretion to refuse to determine the application at this time.

Conclusion in relation to the discretion

It was substantially more appropriate for BUSSQ to pursue the merits review process rather than seek judicial review. All of the mentioned factors weigh in favour of refusing to exercise power under the ADJR Act and the prerogative power. The application made is substantial and complex, perhaps overly so, and contains numerous alleged deficiencies in the decision-making process and the resultant decision; all of which might be resolved during the merits review process at far less cost and with greater expediency. That is the course which should have been taken and it is the one which BUSSQ should pursue if it wishes to maintain its assertions as to the invalidity of APRA's decisions.
Consequently, in respect of the conditions decision, the prerogative relief sought should be refused as a matter of discretion, and the relief under the ADJR Act should be refused on the basis of the discretion in s 10(2)(b)(ii) of the ADJR Act.

Policy considerations

In the course of the parties' submissions, reference was made to certain policy considerations connected with the exercise of the Court's discretion. Given the foregoing, they need not be addressed in this case. Nevertheless, it is appropriate to observe that, were the Court to adopt a liberal attitude to parties bringing proceedings for judicial review despite the existence of alternative avenues of relief which would provide them with adequate remedies, there is a real risk that the courts would become overburdened with the complaints of dissatisfied persons. That would tend to negate the relevance of the legislated processes which provide for full merits review by persons with expertise in administrative decision making. Nevertheless, this issue has not been weighed in consideration in this case.

Remainder of the application

As APRA's submissions that the Court ought exercise its discretion to refuse relief in the circumstances of this case are correct, there is no need to consider the remainder of the parties' submissions any more than has been mentioned above. That is true also of those referable to the decision to publicise the conditions decision. If BUSSQ is successful in obtaining relief in respect of the conditions decision through the merits review process, the decision to publicise the conditions decision would necessarily be set aside. In that case, it may then follow that it would be appropriate to grant certain declarations or other relief in respect of the "disclosure decision" which is challenged by grounds six and seven of the present application. This being so, it is preferable not to embark upon a consideration of the arguments advanced in relation to the disclosure decision by grounds six and seven, until the substratum of circumstances which might affect their validity, is fully known.

Costs

The parties should be heard on the question of costs unless they are unable to agree on the appropriate order. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (14)