DISCRETION TO REFUSE RELIEF
76 The third issue concerned the approach that the primary judge took to the claims made by Mr Kamha. Having concluded that one of the considerations taken into account by Dr Roberts in deciding to exercise the power to disqualify Mr Kamha was legally irrelevant, the primary judge set aside the decision to disqualify Mr Kamha. His Honour did not proceed to deal with the attack on the satisfaction decision. That attack, contained in the further amended application, was based on an asserted failure to accord procedural fairness, bias, an absence of evidence or material to justify making the decision, the reaching of the state of satisfaction unreasonably, the failure to take into account relevant considerations and the taking into account of irrelevant considerations.
77 The primary judge purported to exercise a discretion under s 16 of the ADJR Act for a number of reasons, including the proximate availability of full administrative merits review. It was submitted on behalf of Mr Kamha that, because of the terms and operation of s 10(2)(b)(ii) of the ADJR Act, in the circumstances here there was no discretion in the Court to refuse to hear those complaints. Also, it was said that if there were such a discretion, it miscarried.
78 The primary judge did not exercise the discretion provided for by s 10(2)(b)(ii) of the ADJR Act. It was argued that in the circumstances where s 10(2)(b)(ii) did not apply (for the reasons referred to below) there was no room for the exercise of any discretion (whether arising from s 16 of the ADJR Act, or otherwise) to decline to exercise the judicial power of the Commonwealth to quell the controversy raised by the claims concerning the satisfaction decision.
79 In the ordinary course, a decision to disqualify and any act of disqualification would take place virtually instantaneously: once a decision to disqualify had been made, the decision maker would manifest the decision in some way that would constitute the act of disqualification. While there is no requirement under the Insurance Act for a disqualification to be evidenced in writing, one would expect that good practice would require a written record of an act of disqualification.
80 While the Statement of Reasons is expressed to be Reasons for the proposed decision to disqualify, it is clear enough that Mr Roberts made a decision to disqualify. The Statement of Reasons might more accurately be referred to, or described as, reasons for proposed disqualification.
81 The language of s 25A(2) contemplates that an act of disqualification is something that can be 'made', since a disqualification is to take effect 'on the day on which it is made'. Under s 25A(6), Part VI applies 'to a disqualification' under s 25A. However, APRA and Dr Roberts accept that there has not to date been any disqualification of Mr Kamha as such. The proceeding has been conducted by both parties on the basis that Part VI of the Insurance Act was not enlivened by any of the steps that have been taken to date. That is to say, while there was a decision to disqualify, Part VI does not apply to a decision to disqualify. That is the basis upon which the primary judge made orders, in so far as his Honour ordered that the decision to disqualify Mr Kamha be set aside.
82 Once it is accepted that the act of disqualification is a separate juristic act following the making of a decision to disqualify, the distinction is a valid one. It may be that the making of the decision to disqualify is a subjective process in the mind of the decision maker, however it may be evidenced. The act of disqualification, on the other hand, must be manifested objectively by some conduct on the part of the decision maker, such as saying, either orally or in writing, 'I hereby disqualify X' or 'X is hereby disqualified'.
83 Whatever the position may be, at the time of commencement of the proceeding, there was no provision made by any law, other than the ADJR Act, under which Mr Kamha could seek review, within the meaning of s 10(2)(b)(ii), of either the satisfaction decision or the discretionary decision. On the other hand, a right to seek such a review would have arisen the moment that Dr Roberts gave effect to his decision to disqualify, by manifesting disqualification in some fashion. The only reason why no disqualification was 'made' is that Mr Kamha commenced this proceeding, having previously obtained the order from Madgwick J that APRA give two clear working days notice of any intention to disqualify. It is in that context that one must examine the question of whether the primary judge had a discretion to decline relief and, if so, whether he exercised that discretion properly.
84 The approach of the primary judge was as follows: though there was no disqualification yet and though Part VI of the Act did not yet apply, it would upon disqualification; there was no prejudice to Mr Kamha awaiting merits review if, on a reconsidered exercise of discretion, disqualification took place; there was full merits review in those circumstances, including the opportunity to apply to the Tribunal (with the possible co-operation of APRA) for a stay of the disqualification; the desirability of the exhaustion, as quickly as possible, of the full administrative procedure before intervention of judicial review; and the possible irrelevance of the existing state of satisfaction given that upon reassessment the decision to disqualify might not be made.
85 The conclusion that there was no detrimental effect on Mr Kamha's livelihood might be debateable. However, what has not yet occurred is an act of the Commonwealth Executive disqualifying Mr Kamha from taking certain positions for dishonesty found by the Commonwealth Executive. It is true that Mr Kamha will, upon that act occurring, have two levels of merits appeal. It is true that the operation of the disqualification may be stayed. But he will be subject to that status (though perhaps suspended) by reason of his found dishonesty and lack of propriety and hence lack of fitness and propriety within the meaning of s 25A(1). That may be a matter of prejudice, even if there has been a degree of publicity already about this case. As yet the Commonwealth has not acted to disqualify him. On his case, it was not open for that finding to be made. He said that APRA, acting lawfully, not arbitrarily or capriciously, could not make that finding. Other serious complaints are made about the approach of APRA. While the Full Court has not heard substantive submissions from either party on that question, it can be seen as not speculative, by any means.
86 In circumstances where Mr Kamha will be the subject of a formal act of the Commonwealth Executive disqualifying him in the relevant respects for dishonesty, it cannot be said with certainty that he suffers no real prejudice in being required to pursue merits appeals, in particular when his not speculative complaint is that the finding of dishonesty and lack of propriety and hence lack of fitness and propriety within the meaning of s 25A(1) was simply not open on the material before APRA. Though the finding has been made (wrongly it is asserted) it has not yet been consummated by the act of disqualification. The act of disqualification, in the circumstances of this case, is capable of constituting a matter of serious prejudice, if Mr Kamha is correct in his claims. Thus, he can be seen to suffer a real and non speculative risk of serious prejudice, at the least.
87 The grant of relief under the ADJR Act is discretionary. That is consistent with the principles concerning the grant of relief under the prerogative writs. There was a discretion for a court to refuse prerogative relief where an alternative remedy was available. That principle is also the origin of the express discretion conferred by s 10(2)(b). Nevertheless, that express discretion does not derogate from the general discretion arising under s 16. Section 16 undoubtedly reserves a discretion to the Court as to whether to grant relief in a particular case. While s 10(2)(b) is directed to the specific circumstance where adequate provision is made by another law for an applicant to seek review of a decision and giving rise to an express discretion to refuse relief, the absence of engagement of that provision does not preclude the exercise of the residual discretion conferred on the Court by s 16.
88 Having regard to the conclusion reached above concerning the defect that his Honour found, his Honour's exercise of discretion requires re-examination. In so far as his Honour took into account the possibility that reconsideration of the disqualification decision by APRA might lead to a different result, his Honour erred. Because his Honour erred in concluding that Dr Roberts had taken into account an irrelevant consideration, there will be no reconsideration of the disqualification decision by APRA. Therefore, it will be necessary to consider the other matters relied on by Mr Kamha to impugn the Satisfaction Decision.
89 The primary judge has heard all of Mr Kamha's submissions on the attack on the satisfaction decision. While senior counsel for Mr Kamha outlined the nature of that attack, the Full Court has not had the benefit of detailed submission on those questions.
90 In the circumstances, while it is in no one's interest to prolong the proceeding any further than is necessary, the appropriate course is to remit the proceeding to the primary judge for the purpose of reconsidering the exercise of the residual discretion that arises under s 16 of the ADJR Act to refuse relief, even though s 10(2)(b) is not yet engaged.