FEDERAL COURT OF AUSTRALIA

Auton v Australian Prudential Regulation Authority (No 2) [2003] FCA 408

ROGER AUTON v AUSTRALIAN PRUDENTIAL REGULATION

AUTHORITY AND ANOR

N 77 OF 2003

LINDGREN J

2 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT (No 2)

1                     I published reasons for judgment on 17 April 2003.  It follows from them that the application must be dismissed.  The remaining issue, now before the Court, is that of costs.

2                     I will take my earlier reasons for judgment as read and will use the abbreviated forms of reference that were used in them.

3                     On 11 March 2003 APRA stated that it would not press material in Attachment B to the Show Cause Letter relating to the CNA matter.  Mr Auton submits that this shows that he achieved some success in the proceeding.

4                     It is pointed out on behalf of Mr Auton that the facts which apparently led to APRA’s decision no longer to rely on the CNA allegations, had been drawn to its attention in DBG’S letter to APRA dated 31 October 2002 and again at a meeting on 7 January 2003. 

5                     It is not possible to be certain one way or the other as to whether APRA would have abandoned reliance on the CNA allegations if the proceeding had not been instituted, or whether it would have done so but not as early in time as 11 March 2003.  There is, however, some reason for thinking that the commencement of the proceeding did focus APRA’s attention on the fact that Mr Auton had not been a director of CNA during much of the relevant period, and that he had, shortly after resuming the office of director of CNA on 10 March 2000, himself, drawn to APRA’s attention the very circumstances on which Mr Burgess subsequently relied to found his preliminary findings against Mr Auton in respect of CNA. 

6                     On the other hand, it is put for APRA that even if APRA had never withdrawn the CNA allegations, it would have succeeded in the proceeding because the proceeding was premature.  It was the very object of the Show Cause Letter to give an opportunity to Mr Auton to make submissions of the kind that he has made.  It was premature, according to the submission, for Mr Auton to have commenced a proceeding before the taking of a decision by the delegate pursuant to any recommendation made by Mr Burgess, if one is ever made. 

7                     I listed the issue of costs for debate because I thought that Mr Auton may wish to submit he should receive some allowance on the footing that by commencing the proceeding he had achieved the benefit to which I have referred.  If a special order were to be made rather than the usual one, it would be an order of the kind that he pay perhaps 80 per cent or 90 per cent of APRA’s costs. 

8                     I do have some sympathy with Mr Auton in regard to the CNA matter, but I think a correct application of principle does not call for a special order.  Even if Mr Auton has obtained, as a result of commencing the proceeding, the withdrawal of APRA’s reliance on the CNA allegations, and would not have achieved that withdrawal in the absence of litigation, nonetheless, that has been a collateral advantage.  It remains the position that the commencement of the proceeding was premature.  Taking the best view of it that I can, without having explored the CNA matter finally (because APRA abandoned it), I think Mr Auton’s application to the Court would have been dismissed even if the material in Attachment B to the Show Cause Letter relating to CNA had not been abandoned.

9                     Accordingly, the application should be dismissed with costs.

Associate:

Dated:              6 May 2003