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

Motor Trades Association of Australia Superannuation Fund Pty Limited v Australian Prudential Regulation Authority - [2008] FCA 828 - FCA 2008 case summary — Zoe

[5]

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".

[7]

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.

[13]

… 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.

[14]

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.

[17]

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.

[23]

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.

[28]

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.

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