Marine Hull & Liability Insurance Company Ltd v. Hurford, C. & Anor [1985] FCA 548

FLA.D. Ineurances Limited 7. Winneke 11282: 151 C.L,.P. 3242, Commissioner of Police v. Tanos (1459) 98 C.L.P. 283, Trraet cv, Pandwick Muntcinpal Council (1976) 136 C.L.RB Fernande £19679 2 A.C. 737, The Ojeen v. Ma

ia Augtcablian Eurlding Construction Emplovees B Federation (1981) 147 C.L.R. 471 applied. = &: Yr

iz. (1977) 137 C.L.P , The King v. Arundel (1906) ? C.L.R. S57 nrities Commiss2zon (1953) 41 D.L.B.fid) 2

distinguished. White v. Redfern (1879) 5 9.8.D. 15, The 'ueen +.Tt

Davey £12997 2 9.B. 2901, De Verteurl v. Knagags [19187 A.C. S57, P.a. Holman and @c. Inc. v. Securitisas and Exchange Cemmicsion (1962) 299 FY td 127, Purneil +7. Whangarei Hidh Schools Zaarad C1972] 3.0, 560, Commissioner of Police v. Gorden £1941] 1 N.S... LP, 675 referred to.

MAPINF HULL 7 LIABILITY INSUPANCE CO,LIMITED -7, CHPIS HUPFORD

NEW SOUTH WALES DISTRICT REGISTPY ) NO. G343 OF 1984

BETWEEN: MARINE HULL AND LIABILITY INSURANCE COMPANY LIMITED

Applicant AND: CHRIS HURF'ORD First Respondent THE INSURANCE COMMISSIONER Second Respondent WILCOX J.

e applicant pay to the respondent their costs of the proceédings including all reserved costs.

Settlement and entry of orders is dealt with in Qrder 36 of the Pederal Court Rules.

BETWEEN: MARINE HULL AND LIABILITY INSURANCE COMPANY LIMITED

CORAM: WILCOX 7. Bare: 21 OCTOBEP 12385 PLACE: SYDNEY

This Application, vhich is brought under s., Filial

or the Administrative Decisions 'Judicial Review) Act 1977,

raises an important question relating to the operation of the Insurance Act 1373. Part V of that Act relates to investigations into the affairs of bodies corporates which are authorized insurers. It concludes with a provision, s. 62, empowering the Treasurer, under certain circumstances, to give

fo an insurer subject to investigation, and thereafter to

gazette, written directions as to the conduct of the business

of the insurer which it 1s an offence to disobey. The question 1s whether directions given by the Treasurer without first according to the insurer an opportunity to be heard are void. The evidence in the case 18 extremely sparse, being confined to the directions of the Acting Treasurer, the first respondent, in relation to the applicant dated 23 September

respondents that, ne1lther before nor after making the decisto

ta give those directions, did the Acting Treasurer give to th

The applicant, Marine Hull and Liability Insurance Company Limited, was authorized under the Act - whether under =. 23, s. 24, 3. 25 or 3. 2€ does not, of course, appear - to carry on insurance business. I infer that at some stage, the Insurance Commissioner, the second respondent, appointed an inspector to make an investigation in respect of the company. This appointment presumably was made pursuant to s. 52 of the

Act, which 18 within Part V. and which 1s as follows:

"62. (1) Where 1t appears to the Commissioner that a body corporate authorized under this Act to carry on insurance

(a) is, or is about to become, unable to meet its liabilities; or

(b) has contravened or failed to comply with a provision of this Act or a condition or direction applicable to 1t under this Act,

he may, by notice in writing served on the body corporate, require it to show cause within such period after service of the notice, being not less than 14 days, as he specifies in the notice, why, on such grounds as he so speciries, an inspector should not be appointed in respect of the body corporate.

'2) If the body corporate fails, within the period specified in the notice, to show cause to the satisfaction of the Commissioner why an inspector should not be so appointed in vespect or the bedy corporate, the Treasurer may, if he 1s satisfied that, in relation to the insurance business carried on by the body corporate, it 1s in the public interest that an inspector be so appointed, by instrument in vriting, appoint an inspector to make an investigaticn in respect of the bedy

2. An inspectar so appointed may be the Commissioner or scme other person resident in Australia.

'4. The Treasurer shall, in the instrument appointing an inspector, specify the matters into which the investigation is to be made, being the whele or some part or the affairs of the body ccrporate.

It 1s not necessary to set out at length the terms ail of the provisions in Part V. Section 50 1s a definition

section. Section 51 empowers the Insurance Commissioner,

where it appears to him that an authorized insurer is, or is likely to become, unable to meet its liabilities, by notice in writing to direct the insurer to provide to him information specified in the notice and not to dispose of, or otherwise deal with or remove from Australia, an asset specified in the notice during a period specified in the notice. Sections s3-59 relate to the conduct of investigations appointed under 5. 52. Section 52 permits the intpector, with the consent of the Treasurer, to extend his investigation to the affairs of

an associated corporaticn. Section 54 deals with the entry of

the inspector onto premises and his access to books. Section

19 7 permits the legal representation of a person being examined by an inspector and s. 58 requires notes of the examination to be

f. ection 59 permits certain delegations by an inspector.

ction 60 provides for the making of reports during the course of an investigation and requires the submission of a report - to the Commissioner or to the Treasurer, depending upon the identify of the inspector - upon completion or termination ot the investigation. Sections 56 and 61 create

"52. (1) Where an unvestigation into affairs of a body corporate is being or has been made

under this Part and it appears to the Treasurer that the body corporate is, or 18 about to become, unable to meet its Liabilities or has contravened or failed to

comply with a provision of this Act or a condition or direction applicable to 1t

under this Act, he may, by notice in writing served on the body corporate, give directions to the body corporate with respect to the carrying on of insurance

business by the body corporate and, without limiting the generality of the directions

that may be given, may give any one or more of the following directions:

fa) a darection that the body corporate shall not issue policies or undertake liapility under contracts of insurance;

'b' a direction that tha body corp shall not renew policies;

fe) a direction that the body corpor shall not 18sue policies in respe a class of insurance business specified in the direction or undertake liability under contracts of

insurance included in a class of contracts or insurance s0 specified

'd) a direction that the hody corporate shall not renery scolicies in respect a class of insurance business specified in the direction; Fh

a direction that the body corporate shall not dispose of or otherwise deal with an asset of the body corporates or Aan asset of the body corporate included ina class of assets specified in the direction;

ff' a direction that the body corporate shall dispose of an asset cf the kody corporate or assets of the body corporate included in a class of assets specified in the direction, in such manner and within such period after the giving of the direction, not being less than 21 days, as the Treasurer so sovecifies;

'g) a direction that the body corporate shall, within such period after the giving of the direction, not being less than 21 days, as the Treasurer specifies in the direction, make in its accounts such provision or further provision as he so specifies in respect of unearned premiums or claims or in respect of both unearned premiums and claims;

(h} a darection that the body corporate shall make, so far as 1t 1s able to do so, such arrangements with respect to reinsurance as he so specifies;

(1) a direction that the body corporate shall increase, so far as 1t is able to do so, its paid-up capital, whether by calling up such uncallea capital as as available to be called up or otherwise;

a direction that the body cerporate shall not, except with the consent of the Treasurer -

(1) enter into an arrangement or agreement for the sale or disposal of its business by amalgamation or otherwise or for the carrying on of 103 business in partnership with another body corporate; or

The Treasurer shall cause a copy of a notice of a direction of the kind referred to in paragraph (1)(a), (b}, fc) or (d} to be published in the Gazette.

Part VI applies to a decision of the Treasurer under this section.

Nothing in this section affects the validity of a transaction entered into by a body corporate in contravention of a direction given under sub-section (1'.

Where a direction has been given to a body corporate under this section and it appears at any time to the Treasurer that the direction 1s no longer necessary or should be varied, the Treasurer shall, by notice in writing served on the body corporate, revoke or vary the direction.

Where a bady corporate in respect of which a direction has been given under this section 1s commenced to he wound up, the direction ceases to have effect.

A body corporate that contravenes or fails to comply with a direction given to it undér sub-section (1), being a direction sot the kind ceoferred ta in paragraph flival,(b), 'c) or (d), 1s, in respect of aach dav during which it so centravenes or falls to comply with the direction (including the day of a conviction under this sub-section or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding $20,200.

A body corporate shall not contravene or fail to comply with a direction given to 1t under sub-section (1), not being a direction of the kind referred to in paragraph (1l)(a),{b),(c) ar (d).

A direction given under this section, being a direction of the kind referred to in paragraph (1)(a', (b), fc) or (d), has effect and shall he complied with notwithstanding anything in any law of a State or Territory.

In this section, unless the contrary untention appears, 'direction' zncludes, where a direction 1s yarled, the direction as varied."

The directions authorized by s. 62 include directions which may have a significant, indeed devastating, impact upon the business of an authorized insurer. This is particularly the case in relation to directions forbidding the insurer to 1ssue or renew policies. The directions issued in the present case included directions of that nature. On 23 September 1984 the Acting Treasurer issued directions pursuant to s. 62 (1)

fa) Marine Hull and Liability Insurance Company Limited shall not issue policies or undertake liability under contracts of

insurance on and from the date of receipt of this notice;

(b) Marine Hull and Liability Insurance Company Limited shall not renew policies on and from the date ct receipt of this notice; and

(e)} Marine Hull and Liability Insurance Company Limited shall not dispcse of sr otherwise deal with any asset.

Tore any notice thereof was published in the Commonwealth of Australia Gazette, the present Application was filed. Upon

the following day, pursuant to s. 15 of the Administrative

Decisions (Judicial Review) Act and having regard to certain undertakings given by the applicant in relation to future business, Morling J. made orders suspending the operation of the decision of the respondents to publish notice of the directions in the Gazette and restraining such publication.

Those orders were continued by consent until the hearing, an

event long delayed because the parties anticipated reaching some agreement which would obviate its necessity. In the

event, no agreement was reached but, in the meantime, the applicant decided to confine its grounds of attack usoon the

It seems to me that, subject to one matter, the power conferred by s. 62 should be regarded as a power the valid exercise of which requires adherence to the principles of natural justice. The general rule - in the absence of an indication of a contrary intent in the relevant legislation - is that a statutory authority having the power adversely to affect the rights or property interests of a person 1s bound to hear that person before exercising that power. In F.A.I. Insurances Limited v. Winneke (1982) 151 C.L.R. 342 the High Court of Australia applied that principle to hold void a decision of the Governor in Council for the State of Victoria refusing to renew approval for the appellant to carry on the business of insuring workers' compensation liability. F.A.I. had no legal right to an approval but it did have a legitimate axpectation that its approval would be renewed. At p. 348

"Tt is obvious that a company may, in reliance on an approval, set up an insurance business, or expand its existing business into another field of insurance, and that the refusal to renew an approval will mean that the business, or part of the business, of the insurer must immediately come to an end. A company does not

set up a business of insurance in the expectation that it will last for only one year

• that would be quite inconsistent with the

expectation is that the business will continue indefinitely, so long as it 1s properly

apparent that the refusal to renew an approval may have a seriously adverse effect ona company which was previously an approved insurer. In these circumstances, a company which becomes an approved insurer has a legitimate expectation that its approval will be renewed unless some good reason exists for refusing to renew it. It would not be fair toa deprive a company of the ability to carry on its business without revealing the reason for doing so, and, if the reason 1s one related to some alleged misconduct or deficiency in the conduct of the company's affairs, without allowing the company a full and fair opportunity of placing before the authority making the decision its case against the existence of the alleged misconduct or

circumstances such as the present, the exercise of the power to grant or refuse a renewal of an

whose effect is that a company that would he effected by a refusal to grant a renewal should

be given an oportunity to be heard befcre a decision 15 made, unless that rule 15 e1lther excluded by the Act on its proper construction, or 1s rendered inapplicable by the fact that

(Stephen, Mason, Aickin, Wilson and Brennan JJ) expressed

The argument for the application of the general rule to the present case 1s even stronger than in F.A.I.. This is not a case of a refusal to grant a fresh statutory approval,

the effect of which grant is to render lawful that which would

otherwise be unlawful. Directions made under s. 62 may render

Counsel for the respondent denies the prima facie application to this case of the principles of natural justice and seeks to distinguish F.A.I.. He puts two arguments: that the form of Part V indicates a legislative intention to excluae those principles from a decision to make directions under s. 62 and that the principles are inapplicable to such a decision because it is one which may sometimes need to be

In relation to legislative intention, counsel points out that s. 52(1) contains specific provision for an authorized insurer to be given an opportunity to be heard before an inspectcr 1S appointed to investigate its affairs. This circumstance, counsel argues, indicates that Parliament addressed itself, in enacting Part V, to the situations under that Part in relation to which there should be provided an opportunity to be heard. He says that the omission of such a provisicn in relation to s. 62 should be seen as reflecting a legislative oolicy that no such opportunity ought to be given in relation to decisions under that section; so that there 1s

inferring a legislative intention in relation to s. 62. It 41s

not uncommon for a statute to give special powers of

investigation to a person or body which are conditioned upon observance of particular requirements designed to ensure fairness to persons affected by their exercise. But I know of no case in which it has been held that the imposition of those requirements meant that, in the ultimate disposal of the matter, the person or body was free to ignore normal natural justice requirements. Those requirements are only to be

excluded by clear words. In Commissioner of Police v. Tanos

(1958) 98 C.L.R, 383 at p.396 Dixon C.J. and Webb J. said that the intention of the legislature to exclude the common law rule was "not to be assumed nor 1s 1t to be svnelled out from indirect veferences, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from

express words of plain intendment". In Twist v. Randwick

Municipal Council (1976) 136 CLR 106 Barwick C.J. described "the common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power" as "both fundamental and universal". He vent on, at pp 109-110: "But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by

insisting that the statutory powers are to be exercised only

after an appropriate opportunity has been afforded the subject

whose person or property is the subject of the exercise of the

It 1s true that, in two cases in which it was held that the power of deportation under s. 18 of the Migration Act

1958 was not subject to the requirements of natural justice,

Salemi v. MacKellar (1977)137 C.L.R. 396 and The Queen v.

MacKellar; ez parte Ratu (1977) 137 C.L.R. 461, a majority of the members of the High Court drev support for their conclusion by contrasting the provisicn for a hearing in s. 14 of that Act with the lack cf such a provision in s. 18: sae Barwick C.J. in Salemi at p. 402 and in Ratu at p. 466, Gibbs J. (with whom Aickin J. agreed) in Salemi at p. 421 and Mason J. in Ratu at pp. 479-480. That contrast was telling because 1t related to the exercise of an identical power in relation

to two different classes of persons. Even so, the justices

who relied upon the contrast also emphasised the special nature of s.18, which deals with the deportation of prohibited non-citizens. Reference was made to matters of national

interest such as security. Although, in the end, the matter

1s always one of legislative intention, Salemi and Ratu do not

support the ready application of the expressio unius principle

the respondents seeks to distinguish F.A.I.: the possibility

that directions under s. 62 would need to be made under

circumstances of such urgency as to preclude the giving to the authorized insurer of an opportunity to be heard. It is not suggested that there were circumstances of urgency in the

The necessity for prompt acticn is widely recognized as constituting an exception to the application to administrative decisions of the duty to afford a hearing to the affected party: see de Smith "Judicial Review of Administrative Action" (4th ed.) pp. 190-191, Flick "Matural Justice - Principles and Practical Application" (2nd ed.) pp.40-41, Halsbury "Laws of England" (4th ed.) vol.1l para 74. But the nature and extent of the exception is not well defined. There may exist statutory powers which, by their very mature, are inconsistent with an obligation to accord an cpportunity to be heard: for example, a power to destroy dangerous animals or forcibly to enter premises at a time of fire or natural disaster. It is not difficult to impute to the legislature, by the very specification of the power, intention to exclude a hearing in such cases. Upon such a

basis it was held, in White v. Redfern (1879) 5 Q.B.D. 15,

that there was no duty to afford a hearing before destroying diseased meat. A similar approach was taken in The Queen v. Davey C18991 2 Q.B. 301 in respect of the removal to hospital

oF a child suffering from a dangerous infectious disease.

More commonly there exist powers which may have to be exercised under circumstances of emergency but which will be often exercised in situations which would provide an opportunity to be heard. In respect of such cases there is,

in the authorities, a three way division of opinion.

There are decisions which suggest that 1t is enough, to exclude the obligation to provide an opportunity to be

circumstances of emergency: see Th ung v. Arundel (1906) 3

C.L.R. 557 at pp. 572, 576 - 8, 582; Bishop v. Ontario

Securities Commassion (1963) 41 D.L.R. (2d) 24 at p. 20. However, nelther of those decisions can be regarded as satisfactory today. In both cases the adopted reasoning relied heavily upon the distinction between judicial and administrative acts; one of the "complexities" which Mason J., in F.A.T. at p.360, described as having been "banished from

The second view 1s that, in cases where the power may

• but not necessarily will - have to be exercised urgently, the general obligation to afford a hearing remains but that 1t is inapplicable to particular cases where urgency 1s proved. This was the approach adopted by the Judicial Committee of the Privy Council in De Verteuil v. Knaggs [19183 A.C. 557 at pp. 560-561, a case concerning the power of a Governor to transfer

from a plantation the indentures of immigrant workers, and by

the United States Court of Appeals in R.A. Holman and Co., Inc

v. Securities and Exchange Commission (1962) 299 F. 2d 127 at p. 130, a case - subsequently approved in the Supreme Court of the United States in Goldberg v. Kelly (1969) 397 U.S. 254 at

p. 263 - relating to the suspension of a broker's authority to

This approach was, however, rejected by the Judicial

Committee in Durayappah v. Fernando £1967] 2 A.C. 337, a case

concerning the dissolution by a Minister of a municipal council. The Minister conceded that he had given no opportunity for a hearing but explained his omission as stemming from the urgency of the case. Lord Upjohn, on behaif of the Committee, commented at p. 346 "... that while great urgency may rightly limit such opportunity timeously, perhaps severely, there can never be a denial of that opportunity 1f the principles of natural jutice are applicable". Significantly, the matters listed by him at p. 349, for determining whether the duty to afford a hearing applies,

contain no reference to the urgency of the situation.

In this conflict of authority it 1s appropriate for me to follow the most recent pronouncement of the Judicial Committee upon the question; that is Durayappah.

But, for present purposes, it would not matter if the decision in De Verteull were to be applied. There is in this case no

evidence that the directions under s. 62 had to be made as a

matter of urgency. The.-significant point is that the first of the three views to which I have referred, and upon which

counsel for the respondents necessarily relies in support of

this submission, cannot be regarded as expressing the relevant

I have indicated my view that, subject to one matter, the principle adopted in F.A.I. governs this case. That one matter is the circumstance that Part VI of the Insurance Act (ss. 62 and 63) contains provisions for appeal to the Administrative Appeals Tribunal against any directions of the Treasurer under s. 62. Section 63(2) provides that a person affected by a "reviewable decision of the Treasurer" who 15 dissatisfied with the decision may, by notice in writing given

to the Treasurer within 21 days after the decision comes to

the notice of the person or within such further time as the

Treasurer allows, request the Treasurer to reconsider the decision. The reasons for the request must be stated: s. 63(3). The term a 'reviewable decision of the Treasurer' is defined by s. $3(1) to mean a decision of the Treasurer to which Part V applies. By force of s. 62(3) a decision to give directions under s. 62 is such a decision. Upon receipt of a request for reconsideration, the Treasurer is bound to reconsider the decision and may confirm, revoke or vary the decision: s. 63(4). Reasons must be given: s. 63(6). If no decision, in relation to the reconsideration, is made within

21 days, the decision 1s deemed to be confirmed: ¢. 63(5).

Section 63(7) provides that applications may be made to the

Administrative Appeals Tribunal for review of decisions of the

Treasurer that have been confirmed or varied under s. 63(4). There is no right to obtain review by the Tribunal of an original decision. The reconsideration process must he completed before an appeal 15 competent. However, the Act does provide for interim orders by the Tribunal at an earlier stage. Once a request for reconsideration is made under s.

63(2) of the Insurance Act, s. 41 of the Administrativsa

Appeals Tribunal Act empowers the Tribunal to stay the

overation or implementation of the decision "as the Tribunal... considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review". In cases of urgency a stay order may be made ex parte: s.41(5). For the purposes of a review of a reviewable decision of the Treasurer - including, of course, of directions under s. 62 - the Administrative Appeal Tribunal must be constituted by a presidential member and two non presidential members each of whom have, in the opinion of the President, special knowledge or skill in relation to insurance business: Insurance Act s. 63(10),(11). Only a Tribunal so constituted may, in this instance, grant a stay under s. 41(2)

of the Administrative Appeals Tribunal Act: Insurance Act s.

In Twist the High Court considered the significance,

in a natural justice sense, of the existence of a right of

appeal to an independent tribunal against the relevant decision. That case involved a demolition order made by a

council in relation to a house owned by the appellant.

Section 317B of the Local Government Act 1919 (NSW), under

which the order was made, conferred a right of appeal to the

District Court against such an order. The council gave to the

appellant no opportunity to be heard before 1t made the order. The appellant, having become out of time to apoeal, contended that the order was invalid because it was made in breach of the requirements of natural justice. The three members of the High Court who heard the appeal were unanimous that the order

was not invalid but there was not unanimity in their reasons.

Barwick C.J. saw the giving of a right of appeal as an expression of the intention of the legislature in relation to

"Tn the event chat the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property 1s the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation, even if the legislative provision 1s not as full and complete as the court might think appropriate. Thus, 1 the legislature has addressed itself to the question whether an opportunity should be

afforded the citizen to be relevantly heard and has either made it clear that no such

legislation, decided what opportunity should be afforded, the court, being bound by the

legislation as much as 1s the citizen, has no warrant to vary the legislative scheme. But, 1f 1t appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affected is ineffective."

At p. 111 his Honour commented - somewhat inconsistently, as it seems to me - that "the mere existence

of an appeal may not in some circumstances satisfy th

requirements of natural justice": but he held that it did so in the case of an appeal to a court with jurisdiction to examine the facts for itself and to exercise a orimary discretion whether or not an order for demolition should be made. In essence, his Honour's view was that the existence of an effective right of appeal operates as an implied exclusion by the legislature of the common law obligation to give

Mason J. also placed emphasis upon the nature of the appeal provided by s. 317B. At pp. 113-114 he said that "1f the appeal were less than a full and comprehensive appeal from council's order", "it could scarcely be said" that the appeal "1s an adequate safeguard for him or that 1t constitutes an indication that the duty of fairness is displaced". His Honour held that the appeal available to the appellant in that

"Even so, at first sight it is not easy to see why the appeal provides a clear indication of

legislative intention that the council is under no duty to give an opportunity to the owner to

imposes is not displaced by statute in the absence of express words or by necessary

implication. There is no mutual inconsistency between the imposition of such a duty on the council and the existence of the appeal. In some cases the existence of an appeal toa court or judge from an administrative decision or order may be an indication that the administrative authority is under a duty to hear a person who will be adversely affected by its decision."

At p. 116 Mason J. referred to a conflict of authority upon the question whether, where a right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice, the appeal may then be said to have 'cured' a defect in natural justice or fairness at first instance. Ina passage later approved by the Judicial Committee - in Calvin v. Carr £1980] AC 574 at p. 595 - his Honour answered this question affirmatively. Mason J. then turned to the specific question before the Court, noting that the relevant decision was one affecting public amenity and sometimes public safety, and said that there may be an element ef urgency in securing compliance with the order. Having regard to those matters, he said that ""s. 317B(5) should be read as the exclusive remedy available to an owner who wishes to challenge the validity or correctness of an order made under s.317(1)"". That conclusion was consistent with the view,

adopted by Barwick C.J., that the existence of the right of

appeal indicated a legislative intent to exclude the common law requirement of natural justice. It was also consistent with the view that the common law obligation remained but that the remedy otherwise available for breach was subsumed in the general right of appeal. Mason J. recognized the distinction but refrained, in Twist, from a final choice. He contented himself with a tentative view "that the function entrusted to the council imposed upon it a duty to act fairly, that in the circumstances this might well involve the council in giving the owner the opportunity to present his case before proceeding to the making of an order. However, as the only redress 18 by way

The third member of the Court, Jacobs J., expressed the firm view that the existence of a right of appeal in this case did not "exclude the right of an owner in natural justice to be heard by a council on the question whether an order ought to be made in the first place". This right he thought to he enforceable by mandamus. However, his Honour went on to consider whether an order made without giving an opportunity to

"Whether or not an order made without an opportunity to be heard will be wholly invalid

depends on the legislative provision read in the light of the nature of the subject matter

and the provisions for review. Though the nature of the subject matter would tend to support an intention of total invalidity, I regard the wide provision for appeal in sub-s.(5) as indicating a contrary legislative intention. The appeal is to a judicial body in

the fullest sense of that term. The determination must be made upon the evidence before the District Court. I do not think that it would at all accord with the legislative

intention that an owner should be able to ignore rights of appeal of the kind given by

invalidity in the order which a council had made. A different view might be open if the

appeal were to anything less than a court of the wide jurisdiction and consequent legal standing possessed by the District Court; but in my opinion it was not the legislative intention that an order under the section, subject to appeal to the District Court, should, without any resort to the right of appeal, be able to be treated for all purposes as void and of no effect upon the ground that the principle of natural justice had not been observed."

between natural justice and a right of appeal in The Queen v.

Marks; ex parte Australian Building Construction Employees

Builders Lanourers' Federation -" the B.L.F."" - (1981) 147

C.L.R. 471. THE B.L.F. complained of a denial of natural Justice in a hearing before a Deputy President of the Conciliation and Arbitration Commission, Marks J. The Union had appealed from the decision of Marks J. to the Full Bench or the Commissicn; unsuccessfully, but no complaint was made that the Full Bench had denied natural justice. At pp. 484-485 Mason J. repeated, 1n less tentative form, the view he

"In any event, what happened before Marks J. cannot constitute a basis for prohibition on the ground that there was a denial of natural justice. The B.L.F. exercised its right of appeal to the Full Bench. On an appeal the

Full Bench may admit further evidence and it may confirm, quash or vary the award or decision under appeal or make an award or decision dealing with the subject matter of the decision under appeal (s.35(9)(a),(c) and (d)). In Twist v. Randwick Municipal Council, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen's only right of redress against the council's failure to give him an opportunity to be heard before making a demolition order was

The present case has some similarities to Twist. There is here a full appeal on fact ana

law under s. 35. Moreover, s.35(9)(a) enables the Full Bench to admit further evidence.

their capacity to create unemployment, to dislocate industry and to disturb the life of

the community including the essential services on which the community depends, industrial disputes call for speedy and final determination, an object which is best achieved by recognising that the remedy of a party compiaining that he has been denied natural justice at first instance is to exercise his

right of appeal under s. 35 to the exclusion of pursuing relief by way of prerogative writ.

There 15 a problem in saying that a member of the Commission is not under a duty to observe the rules of natural justice and there is a further problem in saying that the Parliament can oust the jurisdiction of this Court under s.75(v) of the Constitution to gcant relief against an officer of the Commonwealth by way of prohibition for denial of natural. justice. Even so, the B.L.F. exercised its right of appeal under s. 35 and the Full Bench examined the matter for itself... In my opinion the B.L.F. received a full and fair hearing in the appeal and in those circumstances any denial of natural justice before Marks J. was irrelevant (Calvin v. Carr).""

agreement with this aspect of the judgment of Mason J. The

decision, therefore, stands as authority for the view that the effect of a full right of appeal is not - as Barwick C.J. suggested - to exclude the obligation to give natural justice but rather to limit the available remedies for breach to a

There may, of course, be cases where the legislation contains such a comprehensive code for the conduct of the decision maker that it must be concluded from that fact that the legislature intended to exclude the addition to those requirements of the common law rules: ses Furnell v. Whangarei

Commissioner of Police v. Gordon £19813 1N.5.W. LR 675 at pp.

683 - 685. But, more frequently, a right of appeal will be provided without it being clear upon the face of the legislation that this is intended as a complete code. Under what conditions, then, should the provision of a right of subsequent appeal be regarded as an acceptable substitute for & prior opportunity to be heard. de Smith, at p. 193, nominated three criteria: "Where the original decision does not cause sericus detriment to the person affected, or where there 1s also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings". In an article written before the decision of the High Court in Twist, but after the decision of Helsham J. at first instance, reported at (1975) 28 L.G.R.A. 346, Katz (Vol. 12 University

of Western Australia Law Review 535 at p.542) suggested four

situations in which a right of appeal was less useful to an affected person than a right of prior hearing: when the power of the appellate body 1s not as comprehensive as that of the original decision-maker, when the decision becomes irremediably effective immediately on its making, when the

burden of persuasion in an appeal from a decision rests on the appellant, whereas, 1f that person had been given a hearing prior to the making of the decision, the burden of persuasion would not have rested on him and when the cost of appeal exceeds the cost of accepting the decision."

Both of these zummaries appsar to be ner ineonsiztent

Those decisions govern the present case. zrrections under $.62 relate to matters of public interest. They may need to be made urgently. There 1s a full right of appeal provided by the legislation. Only one question arises concerning the efficacy of the right of appeal. The right given by s. 63 of the Insurance Act 1s a right to have reviewed by the Administrative Appeals Tribunal a decision to confirm or to vary any directions given by the Treasurer under s. 62. The affected insurer, as a person entitled to apply for review, may obtain from the Treasurer a statement in writing setting out material findings of fact, with reference to the evidence

upon which those findings were based, together with reasons

for the decision: see Administrative Appeals Tribunal Act s.

28. The procedures and powers of the Tribunal are very

similar to those of a court: a party may be legally represented ( s.32), evidence may be taken on oath or affirmation (s.40), documents may be required to be produced (s.37), the parties may have access to the relevant documents and may make submissions (s.39). The review is a full review on both the facts and the law in which the Tribunal may exercise all the powers and discretions conferred by the relevant legislation upon the primary decision-maker (s. 42). There 1s a right of appeal upon a question of law to this Court (5.44) and, by special leave of the High Court, thence ta that Court (Pederal Court of Auatralia Act 1975 3. 33). In shert, the rights of an insurer to have ceview upon 1ts merits of the Treasurer's decision upon reconsideration of his directions are at least as extensive as the rights of appeal

Counsel for the applicant submit, however, that Twist and BLF cannot be applied to the present case because, unlike in those two cases, it would be possible for the person affected by the statutory decision to be irretrievably damaged by the implementation of the decision before the appeal could be determined. Counsel point out that the gazettal, pursuant to s. 62(2) of the Insurance Act, of directions under s. 62(1)(a), (b),(c) or (d) is likely seriously to damage the financial reputation of an insurance company. That damage may be such as to destroy the business of the company, regardless

of the outcome of its appeal. Counsel concede that it would

be competent for the Administrative Appeals Tribunal to make an order under s. 41(2) of the Administrative Appeals Tribunal Act restraining the gazettal of the directions pending the determination of the appeal but they say that, in practice, it may not be possible for an appropriate board to be constituted in time to prevent the gazettal. They criticize the fact that 1£ 1s necessary to assemble two non presidential members to sit with a presidential member even for the purpose of making

Upon the approach taken by Barwick C.J. in Twist any

deficiency in the rights given to the affected person in celation to the appeal would not matter. It would be enough that the legislature has, by providing a full appeal, addressed itself to the matter of a hearing. However, the view esroused by Mason J., and widely adopted in BLF, does direct attention to the adequacy of the rights given to the affected person. Upon that approach, the complaint - if made out - 1S an answer to the respondents' reliance upen those

It 1s not difficult to see why 1t was thought to be desirable to require the participation of two specially qualified non-presidential members of the Tribunal in the ultimate review of decisions made under Part V of the Insurance Act by the Treasurer or by the Insurance

Commissioner. It is difficult to understand the advantage in

imposing a requirement that such members participate ina decision upon an application for a stay order. It might have been thought that such an application would adequately be handled by a presidential member, who must be a judge or other qualified lawyer, by applying familiar principles relating to interim relief. Inconvenience and delay may be occasioned by the need to constitute a Tribunal consisting of a presidential member and two appropriately qualified non-presidential members to deal with such an application. However, so far as I am aware, there has not yet been an occasion upon which this requirement has caused prejudice t9% an insurer. Nor is this likely to occur. aAs 1s well known, the President maintains panels of members having particular expertise, including in relation to insurance. Whilst 1t may cause some personal inconvenience to those involved, it would appear always to be practicable to maet a request for a prompt hearing of an application for a stay of implementation of directions under s.62. The Tribunal has power over its own procedures and it 18 accustomed to dealing with urgent, interlocutory or short matters by telephone conference. If, for any reason, it was not possible physically to assemble a board this method of communication could be used. There 15 no justification for the assumption that the President would not be able to appoint a board able to deal with an application for a stay in

making directions under s. 62 of the Insurance Act, is bound

to accord natural justice to the relevant insurer, that 1s to

act fairly towards 1t. However, by providing as it has in s. 63 for review of such a decision by the Administraive Appeals Tribunal,the legislature must be taken to have evinced an intention that, in the event of the Treasurer failing to so

act, the directions are not to be regarded as being invalid in

law. They are merely susceptible of challenge before the

Treasurer to make the directions affecting the present

applicant is not invalidated by his failure to give to the

applicant a prior opportunity to be heard. No other ground of

alleged invalidity having been pressed, the interim orders

must be dissolved and the application must be dismissed with

preceding pages are a true copy of the Reasons for Judgment herein of