Motor Trades Association of Australia Superannuation Fund Pty Limited v Australian Prudential Regulation Authority

2 The Motor Trades Association is the Trustee of the MTAA Superannuation Fund. On or about 28 September 2006 the Second Respondent, who was then the Chairman of the Motor Trades Association, produced documents to the First Respondent, the Australian Prudential Regulation Authority. Those documents were produced pursuant to a notice issued under s 255(1) of the Superannuation Industry (Supervision) Act 1993 (Cth). That notice was addressed as follows:

TO: John Rickus (Chairman) of Motor Trades Association of Australia Superannuation Fund Pty Limited (L0001069), as trustee of MTAA Superannuation Fund (R1004373) (the Fund)

3 The Motor Trades Association sought the return of the documents produced. In August 2007 and December 2007 the Authority refused. The 29 August 2007 letter stated in part:

The basis for this refusal is that the documents are both the property of Mr Rickus and he has advised us that he does not consent to their release. … The 21 December 2007 letter from the Authority was more expansive and stated in part: Section 255 of the SIS Act is silent as to what APRA must do with documents produced in compliance with the notice. There may be an implied requirement that APRA return the items produced, which would be consistent with the provision of section 255(3) of the SIS Act which allows copies of items produced to be made by APRA. However, while the section 255 notice is addressed to the "relevant person", any requirement to return the document would in our view be to return them to the person who complied with the notice at the address where the notice was served. 4 Contrary to the position of the Second Respondent, the Motor Trades Association contends that "it was plain beyond doubt that the documents sought were the Trustee's own books and records". The Motor Trades Association contends that a notice addressed in that manner to Mr Rickus in his capacity as Chairman necessarily carries the consequence that the documents produced are its documents. 5 Judicial review is now sought of the decision or the decisions of the Authority. 6 The Application as initially filed sought to invoke the jurisdiction of this Court pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). The Application was filed out of time and, accordingly, the Notice of Motion sought an order under s 11 of the 1977 Act to extend time. No extension of time, it is contended, is necessary to invoke the Court's jurisdiction pursuant to s 39B(1A)(c). 7 On 14 March 2008 the Authority filed a Notice of Objection to Competency and also filed its own Notice of Motion seeking an order that judgment be entered in its favour pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), or an order that the Application be stayed or dismissed pursuant to O 54, r 7 and O 54A, r 3 of the Federal Court Rules. That Motion was listed for hearing on 4 April 2008, but the Court was advised that the Authority sought the vacation of that hearing date. It was the Authority's position that the date should be vacated to permit an opportunity to adduce such evidence as was considered appropriate. The hearing date accordingly was vacated. Costs were sought by the Applicant but were reserved. 8 At the outset of the proceedings on 28 April 2008 an application was made to further amend the Application for an Order of Review. That application was not opposed and the matter now before the Court is the Amended Application for an Order of Review as filed in Court on that day. The relief sought is, in summary form, an order setting aside the decision sought to be reviewed, consequential declaratory relief, and an order referring the request for the return of documents "to APRA for further consideration according to law".

(i) the Court has no jurisdiction; (ii) there is no merit in the grounds of review as set forth in the Amended Application; and (iii) an extension of time should, in any event, be refused in respect of the application made pursuant to the Administrative Decisions (Judicial Review) Act. 10 It has been concluded that this Court does not have jurisdiction to entertain the Amended Application and that it should be dismissed with costs. Neither s 5 of the Administrative Decisions (Judicial Review) Act nor s 39B(1A)(c) of the Judiciary Act confer jurisdiction.

A Decision under an Enactment? 11 Section 5 of the Administrative Decisions (Judicial Review) Act provides that a person who is "aggrieved by a decision to which this Act applies" may apply to this Court for an order of review. Section 3 relevantly defines this phrase as meaning "a decision of an administrative character made … under an enactment". 12 In the present proceedings, the principal contention advanced on behalf of the Respondents is that any decision made by the Authority was not made "under an enactment". 13 Considerable care, of course, needs to be exercised in too rigidly approaching the definition in s 3 as having three discrete elements, namely that there be a "decision", that that decision be of an "administrative character", and that it be made "under an enactment": Griffith University v Tang [2005] HCA 7, 221 CLR 99 per Gummow, Callinan and Heydon JJ. Their Honours there observed: [60] The cases, particularly in the Federal Court, have tended to see these as discrete elements. But there are dangers in looking at the definition as other than a whole. The interrelation between them appears from the following passage in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321 at 377] respecting the ADJR Act: It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment. The decision may be expressly or impliedly required or authorized. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment. (citations omitted) Their Honours later went on to conclude: [89] The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. 14 The "enactment" pursuant to which any decision made by the Authority has been taken is identified in the Amended Application as being either s 255 of the Superannuation Industry (Supervision) Act 1993 (Cth) or s 56(4) of the Australian Prudential Regulation Authority Act 1998 (Cth). Written submissions filed on behalf of the Applicant also placed reliance upon s 11 of the 1998 Act. The Respondents contend that there has been no decision "under an enactment"; any decision made, it is contended, does not "alter or otherwise affect legal rights or obligations". 15 No submission was advanced by the Authority contending that its August and December 2007 letters did not constitute a "decision" within the meaning of s 3(2) of the Administrative Decisions (Judicial Review) Act.

Legislative Provisions 16 Section 255 of the Superannuation Industry (Supervision) Act provides as follows: Regulator may require production of books (1) For the purposes of this Act, the Regulator or an authorised person may by written notice to a relevant person in relation to a superannuation entity, require the relevant person to produce to the Regulator or an authorised person, at such reasonable time and reasonable place as are specified in a notice, any books relating to the affairs of the entity. (2) If any book produced to the Regulator or an authorised person under subsection (1) is not in writing in the English language, the Regulator or an authorised person may require the relevant person to produce to the Regulator or an authorised person a version of the book that is in writing in the English language. (3) The Regulator or an authorised person may inspect, take extracts from and make copies of any book, or of any version of any book, produced to the Regulator or an authorised person under this section. (4) The powers of the Regulator or an authorised person under this section may be exercised in relation to a superannuation entity even though an investigation of the whole or a part of the affairs of the entity is being conducted under section 263. 17 Section 56(4) of the Australian Prudential Regulation Authority Act provides as follows: It is not an offence if the disclosure of protected information or the production of a protected document by a person: (a) is by an employee of the person to whose affairs the information or document relates; or (b) occurs after the person to whose affairs the information or document relates has agreed in writing to the disclosure or production. It is not an offence if the disclosure "is for the purposes of a prudential regulation framework law": s 56(3).

18 Section 11 of the 1998 Act provides: APRA's powers (1) APRA has power to do anything that is necessary or convenient to be done for or in connection with the performance of its functions. (2) APRA's powers include, but are not limited to, the following powers: (a) the power to acquire, hold and dispose of real and personal property; (b) the power to enter into contracts; (c) the power to lease the whole or any part of land or a building for the purposes of APRA; (d) the power to occupy, use and control any land or building owned or held under lease by the Commonwealth and made available for the purposes of APRA; (e) the power to do anything incidental to any of its functions. (3) APRA may enter into contracts in its own right. (4) Any real or personal property held by APRA is held for and on behalf of the Commonwealth. (5) Any money received by APRA is received for and on behalf of the Commonwealth. (6) To avoid doubt, a right to sue is taken not to be personal property for the purposes of subsection (4).

Section 255 19 Section 255 of the Superannuation Industry (Supervision) Act is a provision comparable to powers conferred upon a number of Commonwealth regulatory authorities. Reference may also be made, by way of example, to such other provisions as s 155 of the Trade Practices Act 1974 (Cth); s 264 of the Income Tax Assessment Act 1936 (Cth) and s 31 of the Australian Securities and Investments Commission Act 2001 (Cth). 20 Section 255 and other like provisions confer a power to require the production of documents. The exercise of powers requiring the compulsory production of books should be carefully scrutinised by the Courts: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543 at 596. Justice Callinan there observed: [143] … Creatures of the Executive of which this respondent is one are increasingly being armed with broader and more intrusive powers. That they are of these kinds requires, if anything, that the true and permissible ambit of the intrusion be carefully scrutinized and not be extended unnecessarily or in the teeth of unabridged (by legislation) fundamental, longstanding rights. … 21 But s 255 does not expressly authorise the return of documents so produced. Nor does it impliedly do so. What happens to documents produced pursuant to s 255 and their subsequent return is simply not a subject-matter dealt with by that provision. It may be that the legislature should direct attention to the return of documents compulsorily acquired. It is not considered, however, that s 255 is the source of any authority pursuant to which the present decision of the First Respondent was taken.

22 Some reliance was sought to be placed by the Applicant upon the decision of Hardie J in Collier Garland Properties Pty Ltd v O'Hair [1964] NSWR 775. In issue in that case was the following provision of the Companies Act 1961 (NSW):

171 … (2) Every officer and agent of a corporation the affairs of which are being investigated under this Division shall if required by an inspector appointed under this Division produce to the inspector all books and documents in his custody or power and shall give to the inspector all assistance in connection with the investigation which he is reasonably able to give. (3) An inspector may, by notice in the prescribed form, require any officer or agent of any corporation whose affairs are being investigated pursuant to this Division to appear for examination on oath or affirmation (which he is hereby authorised to administer) in relation to its business; and the notice may require the production of all books and documents in the custody or under the control of that officer or agent. … Of this provision Hardie J concluded at 780:

… The point is by no means free from doubt. On the whole I have come to the conclusion that s 171 (3) empowers the inspectors to inspect and examine the books at the place at which their production has been required and given, and contemplates that when such inspection and examination at that place is completed the books and documents shall remain there and revert to the possession and control of the person to whom the notice was given. … 23 For present purposes, it may be accepted that such power as may be conferred by statute to compel the production of documents may at some point in time become exhausted. An investigation, for example, may have concluded that thereafter there is no power to acquire further documents and (arguably) no power to retain documents previously acquired. Any statutory power is conferred for a purpose and, once that purpose has been fulfilled, questions inevitably arise as to the return of the documents previously produced. But the fact that such questions arise, it is considered, does not support any conclusion that any decision to return documents (or not to return documents) is a decision necessarily taken pursuant to the statutory provision authorising a regulator to compel production. Each decision must inevitably be considered in the statutory context (if any) within which it may be made. 24 In summary, the decision of the Authority not to return the documents in the manner sought by the Applicant is not a decision made under, or pursuant, to s 255. The decision of Hardie J in Collier Garland Properties is no authority to the contrary. 25 The decision of the Authority did not "alter or otherwise affect legal rights or obligations". Whatever legal rights that the Authority may have as against Mr Rickus in respect of the documents produced by him pursuant to the s 255 notice, and whatever may be his obligations vis à vis the Motor Trades Association, they remain. If the documents are the documents of the Trustee, any decision of the Authority has not affected that position.

Section 56 26 Section 56 of the Australian Prudential Regulation Authority Act does not expressly or impliedly require or authorise any decision to be made. It is a section which creates an offence for "protected information" or for a "protected document" to be disclosed (s 56(2)) and further sets forth those disclosures which are not an offence (s 56(3) and s 56(4)). Any decision not to return documents is not a decision made "under" this provision. 27 Reliance by the Applicant upon Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408 is misplaced. In issue in those proceedings was the disclosure of transcripts of examinations conducted pursuant to s 19 of the Australian Securities Commission Act 1989 (Cth). Section 25(3) authorised the Commission to give to persons a copy of a written record of an examination. Section 127(1) required the Commission to "take all reasonable measures to protect from unauthorised use or disclosure information given to it in confidence in or in connection with the performance of its functions or the exercise of its powers". Section 127(4)(b) authorised the disclosure of information where it would "enable or assist the government, or an agency, of a State or Territory to perform a function or exercise a power". These statutory provisions, it is considered, stand in contrast to s 56(4) of the 1998 Act. The provisions in issue in Johns authorised the giving to persons of written copies of an examination. There is no such counterpart provision in the 1998 Act. Although, as observed by Brennan J in Johns, s 25(3) and s 127(4)(b) were both relied upon "as alternative sources of authority to give copies of the transcripts to the Royal Commission", the "better view may be that s 25(3) was the source of the authority and s 127(4)(b) was a limitation on its exercise": (1993) 178 CLR 408 at 426. 28 Section 56(4) certainly does not expressly authorise the disclosure of information; nor can that provision be construed as impliedly authorising any such decision. The decision or decisions of the Authority were not made under s 56.

29 Nor can reliance be placed by the Applicant upon s 11 of the Australian Prudential Regulation Authority Act as the source of the authority pursuant to which the decision was taken. A power of the kind conferred by s 11 does not authorise or require the making of any decision: cf Hutchins v Commissioner of Taxation (1996) 65 FCR 269 at 272; Salerno v National Crime Authority (1997) 75 FCR 133. As observed by the Full Court in Salerno, at 143:

If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the court. The potential for massive disruption of the organisation's activities that would be the consequence of such a conclusion is manifest. Appl'd: Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission [2001] FCA 1296 at [70], 113 FCR 230 at 250-1 per Finn J. 30 Moreover, such power as is conferred by s 11 is a power for the Authority to do anything "necessary or convenient to be done for or in connection with the performance of its functions". The only relevant "function" in issue in these proceedings is the power to compel the production of documents pursuant to s 255. And the decisions of the Authority, it has been concluded, were not decisions made under s 255. Section 11, it is considered, cannot expand such power as is conferred by s 255, properly construed. 31 No jurisdiction is thus conferred on this Court by reason of s 5 of the Administrative Decisions (Judicial Review) Act.

Section 39B(1A)(c) 32 No reliance is placed by the Applicant upon s 39B(1) of the Judiciary Act 1903 (Cth) conferring jurisdiction upon this Court. Reliance, however, is placed upon s 39B(1A)(c). That provision is as follows: (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. This provision is "relevantly identical to s 76(ii) of the Constitution": Transport Workers Union v Lee (1998) 84 FCR 60 at 65. Black CJ, Ryan and Goldberg JJ there observed that: … the identity of language suggests that the Parliament intended to exercise its power under s 77(i) of the Constitution to confer upon the Federal Court the same potential original jurisdiction as might be conferred upon the High Court of Australia under s 76(ii) [of the Constitution]. … 33 The term "matter" as used in s 39B has the same meaning that it has in ss 75, 76 and 77 of the Constitution: Commonwealth v Lyon [2003] FCAFC 284 at [24], 133 FCR 265 at 272 per Branson, Madgwick and Hely JJ. The term "matter", it has been said, "requires some immediate right, duty or liability to be established by the court": Griffith University v Tang [2005] HCA 7 at [90], 221 CLR 99 at 131 per Gummow, Callinan and Heydon JJ. 34 The jurisdiction conferred on this Court by s 39B(1A)(c), it may be accepted, is a wider jurisdiction than that conferred by s 5 of the Administrative Decisions (Judicial Review) Act. 35 It is thus recognised that "the notion of a 'matter ... arising under any laws made by the Parliament' … is wider than that of a 'decision ... made under an enactment'": White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [111], 160 FCR 298 at 319 per Lindgren J. A "matter", for example, may arise under a law made by Parliament and this Court may have jurisdiction, even though there is no "decision" which is sought to be reviewed. Section 39B(1A)(c) is a provision which "should not be given an unduly narrow interpretation": Saitta Pty Ltd v Commonwealth [2000] FCA 1546 at [89], 106 FCR 554 at 573. Justice Weinberg there observed that s 39B(1A)(c) "was intended to provide ample scope for judicial review" - but what was intended by this observation is, perhaps, not clear: McGowan v Migration Agents Registration Authority [2003] FCA 482 at [34], 129 FCR 118 at 128 per Branson J. 36 The conclusion that there has been no decision "under" s 255 of the 1993 Act thus does not dictate a conclusion that any decision to refuse to return documents is not a "matter … arising under" that provision, or one or other of the other provisions also relied upon by the Applicant. 37 If this Court is to have jurisdiction there must nevertheless remain a "matter" which it can be said arises under a law made by Parliament. A matter arises under a federal law "if the right or duty in question … owes its existence to Federal law or depends upon Federal law for its enforcement": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. 38 In the present proceedings it is not considered that there is any such "matter". The right asserted by the Applicant to have its documents returned by the Authority, if it exists at all, is separate and divorced from any of the statutory provisions it has identified. Section 255 of the 1993 Act confers no "right" upon the Applicant to have the documents returned and imposes no "liability" upon the Authority to do so. Section 255 is simply a provision, like other Commonwealth statutory provisions, which confers a power upon a regulator to require the production of books. Similarly, s 56(4) of the 1998 Act confers no "right" upon the Applicant, nor does s 11.

39 The fact that those statutory provisions must be construed does not of itself satisfy the requirement that the controversy or dispute between the parties must "arise under any law made by the Parliament": Felton v Mulligan (1971) 124 CLR 367. The then Chief Justice observed at 374:

The critical question in the case is whether the defence did involve the exercise of federal jurisdiction by the Supreme Court. It would do so if the matter before the Supreme Court became or involved by reason of the defence raised to the applicant's claim, either wholly or partly a matter arising under a law made by the Parliament, in this case the Matrimonial Causes Act: see Constitution s. 76(ii) and Judiciary Act s. 39(2). Further the matter arising under a law of the Parliament will have arisen if the suit could have been disposed of by deciding the matter, whether or not the suit was so disposed of : cf. Nelungaloo Pty. Ltd. v. The Commonwealth [(1952) 85 CLR 545]; The Commonwealth v. Bank of New South Wales [(1949) 79 CLR 497]. It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76(i.) and 76(ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. Justice Walsh further observed at 408-9:

A comparison between the terms of s. 76(i.) and those of s. 76(ii.) of the Constitution indicates that a distinction is to be drawn between a matter "arising under" a law of the Parliament and a matter which involves the interpretation of such a law. The fact that the interpretation of a law is involved does not necessarily mean that there is a matter arising under the law. But, in my opinion, there is a matter arising under the law if the source of the right claimed by the plaintiff or applicant or the source of a defence which asserts that the defendant or respondent is immune from the liability or obligation alleged against him is a law of the Parliament. I think that that view of what constitutes a matter arising under a law of the Parliament is in conformity with the statements made in R. v Commonwealth Court of Conciliation and Arbitration ; Ex parte Barrett [(1945) 70 CLR 141] by Latham C.J. and by McTiernan J. [(1945) 70 CLR, at p 173]. There Latham C.J. said: "If a right claimed is conferred by or under a federal statute, the claim arises under the statute" [(1945) 70 CLR, at p 154]. Likewise, in my opinion, if the answer made to a claim is that the defendant is free from the obligation asserted against him and that this freedom is conferred by an Act of the Parliament, the defence arises under that Act and the result is that there is before the Court a "matter" which arises under that Act. … And Gibbs J, as his Honour then was, observed at 416:

… I regard it as now settled that a matter cannot be said to arise under a law made by the Parliament within s. 76 (ii.) simply because to decide the matter it is necessary to consider or construe the law. To adapt some of the language used in James v. South Australia [(1927) 40 CLR 1 at 40], in relation to s. 30 of the Judiciary Act, it may be said that a matter arises under a law made by the Parliament when a right, title, privilege or immunity is claimed under that law. A right, title privilege or immunity may be claimed under a law, either because the law is the source of the right, title, privilege or immunity or because the right, title, privilege or immunity can only be enforced by virtue of the law.

40 The point at which interpretation of a federal statute may give rise to a matter arising under that statute is "not readily expressed in universally valid terms". But the distinction between the two situations, it has been said, must be maintained: Felton v Mulligan (1971) 124 CLR 367 at 374 per Barwick CJ. 41 Section 39B(1A)(c) does not confer jurisdiction on this Court to review the decisions of the Authority.

The Grounds of Review? 42 The conclusion that this Court has no jurisdiction to entertain the Amended Application renders it unnecessary to separately consider whether or not any Ground of Review has otherwise been established by the Applicant. As the question was briefly addressed, some limited comments may nevertheless be appropriate. 43 Reliance was placed by the Applicant upon the letters written by the Authority in August and December 2007 as disclosing, in particular, an error of law. Although it is unnecessary to resolve the submission, the view has been reached that those letters disclose no reviewable error. Even if s 255 is to be construed as conferring an implied authority to return documents, it is difficult to see how any such implied authority is other than an authority to return the documents to the person upon whom a notice has been served. The fact that s 255 authorises the giving of a notice to a "relevant person", it is considered, only delimits the class of persons who can be given such a notice; the authority to give such a person a notice requiring the production of documents says nothing as to the ownership or otherwise of documents produced. All documents falling within the terms of a notice are to be produced, no matter whose documents they may be. 44 No error of law, for example, is exposed by the Authority not returning the documents, produced by Mr Rickus, to the Applicant. 45 Moreover, the assertion of the Motor Trades Association that "it was plain beyond doubt that the documents sought were the Trustee's own books and records" is rejected. It is an assertion which, even if accepted, exposes no error of law in the approach adopted by the Authority and, in any event, is an assertion not established on the facts: Breen v Williams [1995] HCA 63, 186 CLR 71 at 88-9 per Dawson and Toohey JJ. 46 A further ground separately addressed in oral submissions (albeit frankly accepted by Counsel for the Applicant as not being the strongest of the Grounds of Review) was that of unreasonableness. Although it is a ground frequently relied upon, and perhaps has been given a more tightly confined application than it may legitimately have, it is nevertheless a ground which tends to be relied upon indiscriminately. To do so adds little to such prospects of success as a judicial review application may otherwise have and only invites consideration as to whether an applicant is essentially inviting the Court to embark upon an impermissible review of the merits of the decision. If unreasonableness is to be relied upon as a ground of review, careful consideration should be given by such an applicant as to whether it is a viable basis upon which a decision may separately be impugned. 47 Reliance upon the ground of unreasonableness in the present proceedings is but an instance of the Applicant seeking to propel the Court into a review of the merits of the decision of the Authority. The ground is rejected. It adds nothing and only detracts from the primary ground of review - namely error of law.

An Extension of Time? 48 Given the conclusion that this Court does not have jurisdiction to entertain the Amended Application, it is unnecessary to consider the Applicant's Motion seeking an extension of time within which it should be granted leave to commence proceedings under the Administrative Decisions (Judicial Review) Act. 49 Had it been necessary to consider that Motion, however, an extension would have been granted. The principles to be applied in considering any such application have been previously identified by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9. 50 Notwithstanding the fact that no satisfactory explanation has been advanced as to why these proceedings were commenced approximately five months out of time, the fact remains that, prior to the commencement of these proceedings, the Applicant had repeatedly asserted its entitlement to have the documents returned to it. The Authority could have been under no impression that the issues arising from its service of the s 255 notice had been finally resolved. No prejudice was raised by the Authority in opposition to any extension of time being granted.

Relief To Be Granted 51 The appropriate order to be made is that the Amended Application for an Order of Review be dismissed.

52 Limited comment should, however, be directed to one of the claims for relief previously made by the Applicant, and an order no longer sought in the Amended Application, namely:

… an order that APRA return the Documents to the Trustee. 53 The consequence of such an order, if made, would have been to order that the documents produced by the Second Respondent to the Authority under compulsion of law were not to be returned to the Second Respondent but to the Applicant. This may have been a reason why the Second Respondent was joined as a party to the present proceedings. In most cases it will be the party upon whom a notice has been served requiring the production of documents who will be the party seeking that the notice be set aside: Australian Competition and Consumer Commission v George Weston Foods Limited [2003] FCA 601, 129 FCR 298. Similarly, an applicant will be the entity whose premises are being compulsorily accessed: see, eg, Citibank Ltd v Federal Commissioner of Taxation (1988) 83 ALR 144; on appeal, see Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403. 54 In some circumstances it may be that this Court will be persuaded to make such an order as was initially sought by the Applicant. The normal order which is made in favour of a successful applicant in judicial review proceedings, however, is that the impugned decision is set aside and the matter is remitted to the decision-maker for reconsideration in accordance with law. If successful, that would in all likelihood have been the order made in favour of the Applicant in the present proceedings.

Costs 55 Section 43 of the Federal Court of Australia Act confers discretion upon the Court to make an order for costs. That general discretion is "absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously": Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219. The general approach is that costs should follow the event: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136 per Toohey J. 56 The Motor Trades Association has filed its Application for an Order of Review and more recently its Amended Application and has been unsuccessful. There is considered to be no reason why the general approach should not also prevail in the present proceedings and that it should pay the costs of the Respondents. 57 Two specific matters require separate consideration. 58 First, the costs occasioned by the vacation of the hearing date on 4 April 2008 were reserved. Prior to that date, the Authority had been active in seeking an early resolution of its Objection to Competency and its application for summary relief. It is considered, however, that there should be no separate order made for costs arising in respect to 4 April 2008. Whatever else may have happened, the Motor Trades Associations thereafter supplemented the evidence previously relied upon and amended its original Application. 59 Second, the Second Respondent contended from the outset that he was not a necessary party to the proceedings and accordingly sought to be released from the proceedings. Indeed, the Application for an Order of Review sought no relief as against the Second Respondent; nor did the Amended Application. The Second Respondent could have filed a submitting appearance, had he seen it as appropriate to do so. In the circumstances, there is no reason why the Applicant should not pay the costs of the Second Respondent; but there is no reason why any further order should be made, including the payment of the costs of the Second Respondent on an indemnity basis. 60 Consideration has been given to whether costs on an indemnity basis should be ordered in respect of the final day of the hearing, given the fact that an order was no longer sought that the documents be produced to the Trustee. That may have been a matter that the Second Respondent previously wished to agitate in submissions separate from those advanced on behalf of the Authority. On balance, however, it is considered that no such indemnity costs order should be made.

Orders 61 The orders of the Court are:

1. The Amended Application for an Order of Review as filed on 28 April 2008 be dismissed.
2. The Applicant to pay the costs of the Respondents, including costs reserved. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 5 June 2008 Counsel for the Applicant: F M Douglas QC with F Assaf

Solicitor for the Appellant: M Webeck (Home Wilkinson Lowry)

Counsel for the First Respondent: N Hutley SC with M Izzo

Solicitor for the First Respondent: T Galloway (Australian Prudential Regulation Authority)

Solicitor for the Second Respondent: L Walsh (DMAW Lawyers)