The Applicant opposed the application on several grounds. His written submission is extracted in full below.
[2]
(i) 'The complaint to the ART relates to the decision made by the Respondent who does not need any support from CA ANZ.
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> (ii) The involvement by CA ANZ is likely to obfuscate/complicate the proceedings to befuddle the ART, as CA ANZ succeeded in doing with the Respondent.
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> (iii) CA ANZ's track record points to a significant lack of bona fides, including colluding with the Respondent to hide information from both the public and the complainant/applicant.
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> (iv) CA ANZ's involvement would give rise to a double breach of directors' fiduciary duties (i.e. the duty to be free of conflict (since the privacy breach was driven by the CA ANZ board which continues to have the same chair) and the duty to use the corporation's resources for a proper purpose (since members have not ratified use of expensive lawyers by the directors to protect their personal interests)).
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> (v) Any action by the CA ANZ controlling officers to hinder or quash a proper investigation would be ultra vires the purpose of the corporation which is to uphold the highest standards of transparency, accountability and integrity as a self-regulated conduct review body.
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(vi) The HSF lawyers used by the controlling officers are also not free of personal conflict since they were involved in supporting the directors to (alleged unlawfully) quash the 38 member requisitions at the heart of the dispute.
(vii) The allegations against the Respondent include a failure to recognise and properly deal with the misleading nature of the information provided by CA ANZ and its lawyers which is now exacerbated through the conspiracy of secrecy which has come to light during the preliminary stage of this ART proceeding.
(viii) Further to point 7, I suspect that the secret information includes information which is misleading and this may be exposed through revealing that information (noting that misleading the Privacy Commissioner is a criminal offence under section 65(3) of the Privacy Act). In other words, the participation by CA ANZ in this
proceeding may be motivated by a desire to continue hiding incriminating material.'
[3]
Section 22(1)(c) of the ART Act requires the Tribunal to consider two factors. The first is whether the Joinder Applicant has an interest affected by the decision. The second, which only comes into play if the Joinder Applicant has interests affected, is whether it is appropriate to exercise the discretion to add the person as a party to the proceeding.
[4]
Whether CA ANZ is a person whose interests are affected by the decision under review
[5]
Previous Tribunal decisions have held that it is not necessary for the Joinder Applicant to show that their interests may be adversely affected by the decision under review.[2] As noted by Deputy President Constance in Nguyen and Australian Community Pharmacy Authority the word 'interests' is not qualified in any way and, in reference to s 30(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), he concluded that there is nothing in the words of the section to suggest that it should be read down.[3]
The application to the Tribunal in that decision was made under s 30(1A) of the AAT Act rather than s 22(1)(c) of the ART Act but the wording of each section is essentially the same. This conclusion is supported by the Revised Explanatory Memorandum to the Administrative Review Tribunal Bill 2024 which explains that s 22 is equivalent to s 30 of the AAT Act with minor updates made to reflect modern drafting practices which do not affect the operation of the provision.[4]
I have also considered the views of Deputy President McDermott in Sanwa Pty Ltd, Comptroller-General of Customs, Austube Mills Pty Ltd[5] (Sanwa) and concur with the view expressed that for the purpose of s 22(1)(c) a person whose interests are affected would be a person who may have an interest in the outcome of the review and would be seeking to influence the Tribunal's decision to either affirm, vary or set aside the decision under review pursuant to s 105 of the ART Act.[6] I gleaned from the oral submissions presented at the hearing, that the Joinder Applicant is seeking to influence the Tribunal's decision to affirm the decision under review.
I consider that none of the Applicant's objections above go to the issue of whether CA ANZ is not a person whose interests are affected by the decision under review. The Applicant's objections relate more to the exercise of discretion which I consider next. However, at the hearing the Applicant made the claim that it is the directors of CA ANZ who are seeking to influence the Tribunal's decision and not the entity itself. It was further contended that it was not appropriate that corporate funds are being used to protect those private interests. In essence the Applicant is asking the Tribunal to look behind the corporate veil.
However, I have no evidence before me to verify this claim. The evidence I do have displays that the joinder application was made to the Tribunal by CA ANZ. The Respondent to the Reviewable Decision was CA ANZ.[7] The IC was satisfied in its decision that CA ANZ was an APP entity for the purposes of the Privacy Act 1988 (Cth).[8] The Directors are a separate legal entity to CA ANZ.
I am satisfied that the Joinder Applicant being the entity CA ANZ has a direct interest in the Reviewable Decision being affirmed. The scheme established by the Act also supports the Joinder Applicant participating as a party.[9]
[6]
Whether it is appropriate for CA ANZ to be made a party to the proceedings
[7]
The Joinder Applicant's Counsel referred the Tribunal to Peters and Department of Health and Aged Care[10] where the Court found that the test focuses on the effect of the reviewable decision on the Joinder Applicant:
[8]
It is appropriate to approach the present matter on the basis that if it is found that the interests of a person seeking to join are affected by the decision under review, then "ordinarily" there will arise a duty to make an order joining that party. But a discretion remains, and in its exercise it is relevant to take into account matters which bear on the interests of the other parties in the fair, efficient and timely hearing and determination of this proceeding, and in the minimisation of the costs of the proceeding.
[9]
I have considered the Applicant's objections including that the CA ANZ is likely to obfuscate/complicate the proceedings. The Applicant claims that this is what occurred when the matter was before the IC. The Applicant has also made several other claims of collusion with the IC and that misleading information was provided to the IC. A further claim was made that the motivation behind the joinder application could be to prevent the revealing of incriminating material. I have looked at the material the Applicant has filed with the Tribunal which also go to these claims.
The Applicant has put no evidence before the Tribunal to support the assertions being made. I am unable to conclude that there could be an ulterior motive at play. The Applicant's concern regarding the likelihood that adding CA ANZ risks complicating proceedings I consider to be a legitimate risk. Previous Tribunal decisions have considered the need for the Tribunal to take into account the inevitable increase in cost and likely delay that could result from the adding of a party.[11] I considered if it was possible to limit the participation of the Joinder Applicant to the making of a written submission on a particular issue, however given the Joinder Applicant's broad interest in the issues before the Tribunal this does not seem possible. The Tribunal was not provided with any submissions from the parties to assist with narrowing the scope of CA ANZ's involvement.
Like in Sanwa my foremost reason for exercising the discretion in favour of adding CA ANZ as a party to the proceeding is the assistance it could provide in the Tribunal reaching the correct and preferable decision by hearing its perspective on the submissions and evidence.[12] Another factor which weights in favour of adding CA ANZ is, as submitted by its Counsel, to ensure that its interests can be adequately protected.[13] Given the claims that have been made by the Applicant this presents as an important consideration.
I also considered whether the Joinder Applicant's interests could be adequately represented by the parties to the Reviewable Decision. However, I consider given the direct effect of the application on its interests it is necessary for the Joinder Applicant to be joined to make its case.[14]
[10]
For the reasons above, I am satisfied that the interests of CA ANZ are affected by the decision under review, and in my discretion, I am satisfied that CA ANZ should be joined to the application.
[11]
Solicitor for the Respondent: Laura Butler, Australian Government Solicitor
[12]
Solicitor for the Joinder Applicant: Major Zhang, Herbert Smith Freehills Kramer
[3] Ibid at [11] with reference to the Full Court of the Federal Court's decision in United States Tobacco Company v Minister for Consumer Affairs and Ors [3] and in particular to the following at [527]: 'The term "interest" has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the Act is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person.'
[16]
[4] Administrative Review Tribunal Bill 2024, Revised Explanatory Memorandum at [323].
[9]Nguyen and Australian Community Pharmacy Authority[2015] AATA 555 at [15] with reference to the judgement of Gummow J in Alphapharm Pty Limited v Smithkline Beecham (Australia) Ptd Limited and Anor where in relation to the issue of standing regard was had to the object of the relevant Act.