FEDERAL COURT OF AUSTRALIA
APRA v VBN [2005] FCA 1868
APRA -v- VBN, VBT and VBV
VID 1493 of 2005
RYAN J
22 DECEMBER 2005
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1493 of 2005 |
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BETWEEN: |
APRA Applicant
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AND: |
VBN First Respondent
VBT Second Respondent
VBV Third Respondent
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RYAN J |
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DATE OF ORDER: |
22 DECEMBER 2005 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. It is DECLARED THAT the direction as amended which was issued by the Administrative Appeals Tribunal (“the Tribunal”) on 10 November 2005 was beyond the power of the Tribunal.
2. The applications by John Fairfax Publications Pty Ltd be refused.
3. The costs of all parties of the proceedings herein be reserved.
4. Any party (“the first party”) desiring to contend that an order should be made for payment by some other party or parties of the whole or part of the first party’s costs, file and serve by 2 February 2006 written submissions in support of that contention.
5. Any submissions in answer to the written submissions referred to in paragraph 3 of this Order be in writing and filed and served by 9 February 2006.
6. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 1493 of 2005 |
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BETWEEN: |
APRA Applicant
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AND: |
VBN First Respondent
VBT Second Respondent
VBV Third Respondent
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JUDGE: |
RYAN J |
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DATE: |
22 DECEMBER 2005 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 There is before the Court an application pursuant to ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”) and s 39B(1A)(a) and (c) of the Judiciary Act 1903 (Cth) for review of a decision or conduct of the Administrative Appeals Tribunal (“the Tribunal”) in making a direction dated 21 October 2005 as amended on 10 November 2005 (“the direction”).
The making of the direction
2 The Tribunal is in the course of conducting a hearing on the application of an applicant designated by the acronym “VBN” for review of a decision by the Australian Prudential Regulation Authority (“APRA”) made on 9 June 2005 and confirmed on 3 August 2005 to disqualify VBN from being a trustee, investment manager or custodian of a superannuation entity or a responsible officer of a trustee, investment manager or custodian of a superannuation entity. APRA’s decision was made under s 120A(2) and (3) of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the SIS Act”). The application which resulted in the Tribunal making the decision had been made by VBN with, as the Tribunal noted in its reasons “the support” of the third abovenamed respondent, VBV. A third person designated by the acronym “VBT” is a “party joined” in the proceedings before the Tribunal.
3 During the proceedings before the Tribunal, Counsel for VBN, supported by Counsel for VBT, sought an order requiring APRA to produce ten categories of documents including, amongst others, all advices provided by APRA’s Counsel relating to the interpretation of the relevant law and APRA’s procedural obligations, all instructions given to Counsel in relation to those advices, file notes of conversations, emails and other correspondence between officers and employees of APRA and two named delegates of APRA, a draft statement of reasons (“SoR”) provided by APRA to APRA’s Counsel and “all documents relating to earlier oral and written advice and to relevant administrative law principles governing the administrative process with which the SoR is concerned referred to in Counsel’s Advice”.
4 In the course of her reasons for making the direction, the learned Senior Member of the Tribunal referred to s 37 of the Administrative Appeals Tribunal Act 1975 (“theAct”) which provides, so far as is relevant;
‘(1) Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a) a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b) every other document or part of a document that is in the person’s possession or under the person’s control and is relevant to the review of the decision by the Tribunal.
…
(1AE) A person who is required under subsection (1) or (1AB) to lodge 2 copies of a statement or other document or part of a document with the Tribunal under this section within a particular period must also give a copy of the statement or other document or part of a document within that period to each other party to the proceeding.
When document not required to be lodged
(1AF) If:
(a) a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) to lodge 2 copies of a document or a part of a document with the Tribunal in respect of the application; and
(b) within the period applicable under subsection (1) the person:
(i) applies to the Tribunal for a direction under subsection 35(2) in relation to the document or part of the document and lodges with the Tribunal, together with the application for the direction, 2 copies of the document or part of the document; and
(ii) gives a copy of the application for the direction to each party to the application for review:
the person is not required to comply with paragraph (1)(b) in relation to the document or part of the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.
…
(2) Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.
Privilege and public interest
(3) This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.’
5 Sub-section 35(2) which is referred to in s 37(1AF) of the Act provides;
‘(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a) direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa) give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b) give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.’
6 In the course of discussing those provisions the learned Senior Member noted that, before its amendment, s 37(1)(b) had required production of;
‘every other document or part of a document that is in his possession or under his control and is considered by him to be relevant to the review of the decision by the Tribunal.’ (Emphasis added by the Senior Member)
‘When ss. 37(1)(b) and 37(2) are read together, it becomes apparent that it would be difficult for a decision-maker to hold a position that he or she did not consider documents relevant to the review of a decision in circumstances in which any reasonable decision-maker would have considered them to be relevant.’
9 The Tribunal then went on to contrast the effect of s 37(1)(b) and s 37(2) of the Act, observing at [25] and [26] of its reasons;
‘25. Having regard to the whole of s.37 and to the amendments that have been made to it, it seems to me that documents required to be lodged under s.37(1)(b) must include those that are subject to legal professional privilege. Those documents must also be given to other parties to the proceeding under s.37(1AE) unless the Tribunal makes a confidentiality order under s.35(2). That confidentiality order would not be made as a matter of course on the basis that the document is subject to legal professional privilege. To do so would run counter to the express requirements of ss.37(1)(b) and 37(1AE) to produce and give documents and of s.37(3) that the section has effect notwithstanding any rule of law relating to privilege.
26. Section 37(2) raises different considerations. Documents lodged under s.37(2) must include those that are subject to legal professional privilege. They are not the subject of s.37(1AE). Having regard to the provisions of ss. 33, 35, 39 and 40 as well as of s.37(1AE), I have concluded that the Tribunal may not ignore a claim for legal professional privilege when making an order disclosing documents lodged in compliance with an order under s.37(2). In reaching that conclusion, I adopt the reasons I gave in Re Spicer Axle Structural Components Australia Pty Ltd and Secretary, Department of Industry, Tourism and Resources. If a claim for legal professional privilege is made out, the Tribunal may not order disclosure of that document to any party to the proceeding other than the decision-maker.’
10 The Tribunal next considered whether documents which had not been referred to in Counsel’s advice of 12 May 2005 (a copy of which advice had apparently been lodged with the Tribunal and supplied to each other party) were relevant or may have been relevant within the meaning of s 37(1)(b) or s 37(2) of the Act to the review of APRA’s decision. The Tribunal observed, in passing, of the advice of 12 May 2005;
‘32. As part of the Tribunal’s task is to identify and interpret the law, documents that are concerned with the interpretation or application of the pertinent law are relevant in reviewing the merits of the decision. That would lead to the conclusion that counsel’s advice dated 12 May 2005 is relevant to the review in so far as it relates to the interpretation of the relevant law. By its description, it must have been in APRA’s possession or under its control at the time it complied with its obligations under s.37(1) of the AAT Act. Even though it would have been subject to legal professional privilege, its production is required by virtue of s.37(3). APRA has correctly included it within the T documents.’
11 However, the Tribunal reasoned from that premise that, if APRA had in its possession or power at the time when it complied with its obligation under s 37(1) any other legal advice as to the interpretation of this applicable law, those advices should also be produced and given to VBN and VBT. “If they are relevant to the interpretation of the law, they are relevant to the review of the decision.” That was said to be the requirement of s 37(1) of the Act and to be consistent with the requirements of s 9(1) of the Freedom of Information Act 1982. A similar conclusion was said to be entailed in respect of written instructions from APRA to its Counsel who had furnished the advice in question including that of 12 May 2005. However, the obligation imposed by s 37(1) was held not to extend to advices or instructions related to the “process” to be followed by APRA as;
‘In this case there is no suggestion that the decision was not made at all. Even if the processes in making it were flawed, the flaws are not relevant to the review of the decision that was made and that affects VBN and VBT.’
12 The Tribunal next drew a distinction between advices and instructions of the kind earlier discussed which had been in APRA’s possession or power at the time when it lodged its documents in compliance with s 37(1)(b) of the Act and documents of the same kind coming into APRA’s possession or power after that time. In this context the Tribunal said, at [36] of its reasons;
‘If legal advices relating to the interpretation of the SIS Act or other applicable law came into APRA’s possession after it had prepared and lodged the T documents under s.37(1)(b), those advices could be documents that come within the ambit of s.37(2) of the Act. They may be relevant to the review of the decision. The Tribunal could order that they be lodged with it. As s.37(3) of the AAT Act does not abrogate the law relating to legal professional privilege in relation to the disclosure of such documents, it could not order that they be given to the other parties to the proceeding unless legal professional privilege has been waived. At this stage, it is premature to consider whether legal professional privilege has been waived.’
13 The Tribunal next ruled that, to the extent that material described in Counsel’s advice as “General Information” and “Specific Information” had not already been included in the “T” documents, “it should have been included in the documents lodged under s 37(1) and given to VBN and VBT”. Successive drafts of the SoR as settled by Counsel and “discussion drafts” were excluded from that ruling.
14 The Tribunal next considered whether it should make an order under s 35(2) in relation to “any of the documents that must be lodged under s 37”. Sub-section 35(2), it will be recalled, is reproduced at [5] of these reasons.
15 The Tribunal noted that a hearing in relation to a decision under the SIS Act must, by force of s 344(11) of that Act, be held in private. However, it considered that qualification not to impinge on the requirements of s 39 of the Act which provides, so far as is relevant;
‘(1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.’
16 In the last substantive paragraph of her reasons, the learned Senior Member concluded;
‘Apart from claims relating to legal professional privilege, no other grounds are advanced as to why documents that I have decided are relevant should be kept from the other parties. In relation to those that must be lodged under s.37(1), I am not satisfied that an order should be made under s.35(2) of the AAT Act. They should be given to VBN and VBT. In relation to those that must be lodged under s.37(2), I do make an order. That order is required to ensure that there is no breach of legal professional privilege. In doing that, I am acting consistently with the substantive law that has not been displaced by the AAT Act or the SIS Act.’
17 In its final form as amended on 10 November 2005 the direction was that;
‘1. the respondent lodge and give to the applicants and the party joined copies of:
(1) any legal advice given on or between 24 June 2002 and 21 October 2005 that:
(a) related to the interpretation and application of the law relating to the decision under review; and
(b) it had in its possession and control when it lodged documents under s.37(1) of the Administrative Appeals Tribunal Act 1975; and
(2) instructions given in relation to that legal advice;
2. the respondent lodge all “information and documents constituting the ‘General Information’ and the ‘Specific Information’ in … [counsel’s] discussion draft at paragraph 71.7-7.14” referred to in Counsel’s Advice at 3 of T4.14, except to the extent that the information and documents have already been provided in the T documents;
3. the respondent lodge copies of any legal advice and relevant instructions given on or between 24 June 2002 and 21 October 2005 that:
(1) related to the interpretation and application of the law relating to the decision under review; and
(2) came into its possession and control after it lodged documents under s.37(1) of the Administrative Appeals Tribunal Act 1975;
4. copies of any legal advice referred to in clause 3 of this order be restricted to the Tribunal and its officers and staff and the respondent and its officers and legal advisers; and
5. liberty to the parties to apply.’
The submissions on behalf of APRA
18 Mr Hanks QC, who appeared with Dr Donaghue for APRA, contended that, by requiring APRA to produce copies of all legal advice received by it between 24 June 2002 and 21 October 2002 and which related to the “interpretation of the law” which the Tribunal was required to apply in resolving the issues raised by VBN, VBV and VBT, the Tribunal had exceeded the power conferred on it by s 37 of the Act. It was contended, first, in support of this submission that the concept erected by s 37(1)(b), of a document that “is relevant to the review of the decision by the Tribunal”, should be strictly construed to avoid giving the abrogation of professional privilege effected by s 37(3) a wider effect than Parliament intended. On that construction, s 37(1)(b) requires a decision-maker to produce to the Tribunal and the other parties to the proceeding documents which contain factual or other material to which the Tribunal could properly have regard in arriving at the correct or preferable decision.
19 However, in Counsel’s submission, that requirement does not extend to expressions of legal opinion which are coincidentally in the possession or power of the decision-maker but were not referred to in making the impugned decision. To hold otherwise, it was said, would be to compel the production of advices or opinions containing confidential or sensitive information about persons entirely unrelated to the applicant’s before the Tribunal. That undesirable, and presumably unintended, result would be brought about simply because the extraneous advices or opinions happened to contain reflections about the law which the Tribunal might be required to consider in resolving the instant case.
20 Counsel for APRA also submitted that expressions of opinion on questions of law are as irrelevant and inadmissible before the Tribunal as oral opinion or expert evidence by lawyers, however eminent; see eg Re Filonis and Transport Accident Commission (2003) 20 VAR 96 at 98 and Re Thomas Cook Australia Pty Ltd v Collector of Customs (1994) 34 ALD 301 where Senior Member Handley observed, at 305;
‘The legal opinion of Mr Lynch is, in my opinion, not a document which records any fact relevant to the decision-maker in the making of his decision to refuse the claim for drawback.The circumstances of the importation of the traveller's cheques and all associated and relevant events, particulars, transactions, conduct and occurrences constitute the facts. These circumstances were or are within the responsibility or creation of the applicant, not Mr Lynch. His opinion was provided confidentially in relation to the powers, duties, obligations and functions of the Australian Customs Service in relation to claims made upon it for drawback, in the context of traveller's cheques.
It is not in the same category of documents which are sought to be tendered in evidence, either in substitution for or complementary to oral evidence. Nor could it be said that if Mr Lynch was called as a witness, his evidence, in so far as it related to the content of his opinion, would be relevant to the review by the tribunal of the decision being reviewed. The opinion has no weight, it would be inadmissible as irrelevant and could not be probative of any fact sought to be proved or established.’
21 In Re Spicer Axle Structural Components Australia Pty Ltd v Secretary, Department of Industry, Tourism and Resources (2005) 83 ALD 104, Senior Member Forgie (who also constituted the Tribunal in the present case) declined to apply the observations just quoted from Re Thomas Cook. After referring to the earlier case, the learned Senior Member concluded, at [21];
‘Returning to s 37(1)(b), determination of what is “… relevant to the review of the decision by the Tribunal” must be a reference to what is connected with or pertinent to the multi-faceted task, or part of it, that the tribunal must undertake. Part of that task is to identify and interpret the law. If it were not, the tribunal would not spend the time that it does listening to submissions by counsel and other legal representatives on matters of law. In light of that, it follows that a legal advice directed to that task would be relevant and so should be lodged with the tribunal under s 37(1)(b).’
22 It was submitted in the alternative on behalf of APRA that only legal advice that has been “before” the decision-maker is required to be lodged with the Tribunal pursuant to s 37(1)(b). It was on that basis that APRA had included in the “T” documents in the present case one memorandum of legal advice dated 12 May 2005.
23 The final submission on behalf of APRA was that s 37(1)(b) of the Act does not confer power on the Tribunal to compel a decision-maker to produce any documents. The sole source of power in the Tribunal to compel production of documents was said to be s 37(2) as was implicitly acknowledged by the fact that the direction had been made in response to an application made or supported by the respondents for an order under s 37(2). The distinction between the two sources of power is important because a notice under s 37(2) does not create any entitlement in any other party to the proceedings before the Tribunal to receive copies of the documents specified in the notice. The sole obligation of a recipient of such a notice is to lodge with the Tribunal copies of the specified documents or of documents included in the specified class. Only when that has been done may the Tribunal order the release to the other parties of some or all of the documents so lodged. The power to make such an order is conferred, not by s 37(2) itself, but by one or other of ss 33, 35, 39 or 40 of the Act.
24 Against the possibility that s 37(1)(b) might be identified as a source of power to compel a decision-maker to make directions, it was further argued in this context that the Tribunal had erred in failing to consider whether it should have made a confidentiality order under s 35(2) in respect of the documents which APRA was required, purportedly under s 37(1)(b), to produce. It was submitted that the Tribunal erroneously regarded itself as precluded from that exercise of discretion because the documents in question were presumptively protected by legal professional privilege which had been “abrogated” by s 37(3).
The submissions on behalf of VBN and VBT
25 Counsel for these parties contended, first, that the direction, properly understood, is confined to legal advice “given in connection with the decision to be reviewed at the Tribunal.” That interpretation was said to be borne out by the application for the documents which had been made on 21 October 2005, the later, narrowing, amendment of the Tribunal’s order on 10 November 2005, the submissions on behalf of VBT on 24 November 2005 and subsequent correspondence from the solicitors for VBN to the solicitors for APRA.
26 Because the Tribunal is required to make the correct or preferable decision on the material before it, Counsel for VBN contended that the Tribunal is required to deal with all issues, legal as well as factual, that were before the original decision-maker. That feature of the legislation is impliedly recognised by s 37(3) which would be unnecessary if privileged documents were not made relevant by one or other of the preceding sub-sections of s 37.
27 In a related way, it was contended that it is to be expected that legal advice in the possession of the original decision-maker should be made available to the Tribunal. That expectation was said to flow from the Tribunal’s obligation to arrive at the correct or preferable decision and from the likelihood that legal advice directed to the making of the decision, even if not taken into account by the original decision-maker, might assist the Tribunal in its deliberations. That is especially so when the applicant for review by the Tribunal is unrepresented.
28 As to the power of the Tribunal to compel production of relevant legal advice under s 37(1), it was said that it was necessary to prevent decision-makers subverting the review process by withholding relevant documents or insisting that they be produced only to the Tribunal and not to the other parties. In this case, it has not been shown that the power has been improperly exercised or that the Tribunal has erred in failing to exercise its discretion to make a confidentiality order under s 35(2). The fact that the legal advice in the documents in question may have been relied upon by the original decision-maker in deciding to disqualify VBN would sufficiently connect it with the review by the Tribunal to make the document “relevant” in the sense in which that term is used in s 37(1).
29 Finally, Counsel for VBN disavowed any intention that APRA should be compelled to examine all its records containing legal advice or opinions to identify any document which might be relevant to a question of law before the Tribunal or should be required to disclose confidential factual material contained in those advices or opinions which is unrelated to the subject matter of the instant review.
30 Counsel for VBT specifically contended that this Court has no jurisdiction under the AD(JR) Act to review the direction because the direction lacked the quality of finality to be a decision “made under an enactment”; see Commissioner of Taxation v Beddoe (1996) 68 FCR 446 at 452. Nor was the making of the direction reviewable conduct within the meaning of s 6 of the AD(JR) Act; (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 324.) In a related context it was submitted that the Court should decline to exercise the jurisdiction conferred by s 39B of the Judiciary Act in relation to a procedural direction of the kind given by the Tribunal in respect of the contested documents.
Resolution of the issues
(i) The meaning and effect of the direction
‘If APRA had any other legal advice relating to the interpretation of the law in its possession or under its control at the time that it complied with its obligation under s. 37(1), those advices should also be produced and given to VBN and VBT. It matters not whether the delegates actually referred to them. If they are relevant to the interpretation of the law, they are relevant to the review of the decision. This is the requirement of s. 37(1) of the AAT Act and I note that it is also consistent with the less well known requirements of s. 9(1) of the Freedom of Information Act 1982.’
(ii) Are documents containing legal advice or opinions “relevant to the review” within the meaning of s 37(1)(b) of the Act?
32 I am prepared to assume that a document of this kind which bears on one of the issues which the original decision-maker had to resolve in arriving at the decision and which was considered by the decision-maker is relevant in this sense. That is so whether the original decision-maker acted on, or adopted, the advice or opinion or rejected it. However, the reach of the sub-section does not extend to expressions of legal opinion or advice which may have been available to the decision-maker but were not considered in the course of arriving at the impugned decision. To hold otherwise would be to oblige the decision-maker to search out and lodge with the Tribunal and supply to the other parties, copies of every document containing a pertinent expression of legal opinion in the decision-maker’s possession or power even if the existence of the document had not been present to the mind of the decision-maker when making the decision under review. That obligation would extend to legal texts or journals which had been available to the decision-maker but not consulted by him or her.
33 It may be, as Counsel for VBN and VBT argued, that the direction is not to be understood as being so wide as to include documentary legal advice or opinions of the kind just indicated. However, for the reasons explained at [31] above, I am unable to read down the direction in that way in the face of the reasons articulated by the learned Senior Member. In any event, having regard to the course which I propose to take, there will be an opportunity to recast the direction to make express the limitation for which Counsel for VBN and VBT have contended.
(iii) Does s 37(1)(b) confer power on the Tribunal to compel a decision-maker to lodge documents and make them available to other parties?
‘… a decision-maker can refuse to give the Tribunal a document in his or her possession on the basis that, in his or her subjective opinion, the document is not relevant to the decision under review. It is intended that under new paragraph 37(1)(b) of the Act, a decision-maker must give the Tribunal a document in his or her possession if a hypothetical decision-maker would consider that the document is relevant to the decision that is under review.’
35 However, that change in the nature of the obligation imposed on the decision-maker did not create a new source of power by which the Tribunal could enforce the obligation. As the learned Senior Member correctly observed in the passage from her reasons noted at [7] above, s 37(1)(b) and s 37(2) have to be read together. When that is done, it becomes apparent that, even after the recent amendment, s 37(2) remains the sole relevant source of power whereby the Tribunal can compel a decision-maker to lodge with the Tribunal “particular other documents” or “other documents included in a particular class of documents” that “may be relevant to the review of the decision by the Tribunal.” The words “may be” to which I have added emphasis are significant because they reflect the fact that, when forming the opinion as to relevance, the Tribunal will not be apprised of the contents of the presumptive documents. As well, the expression “other documents”, which occurs in three places in s 37(2), clearly refers to documents “other than” those lodged with the Tribunal as contemplated by s 37(1)(b).
‘But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.’
(iv) Did the direction involve a decision to which the AD(JR) Act applies or conduct within s 6 of the AD(JR) Act?
37 Because of the availability of relief under the alternative source of jurisdiction conferred by s 39B of the Judiciary Act, it is strictly unnecessary for me to resolve this controversy which has been raised by a notice of objection to competency filed on behalf of VBT. However, out of deference to the careful arguments addressed to the point, I shall indicate my provisional views as to how the direction should be characterised.
38 In Commissioner of Taxation v Beddoe (1996) 68 FCR 446 Spender J observed, at 452;
‘Notwithstanding the views which I expressed as a member of the Full Court in Hutchins v Deputy Commissioner of Taxation (1996) 65 FCR 269, consistent with authority binding on me, I conclude that a direction pursuant to s 33(2A) of the AAT Act as to the procedure to be followed in connection with the hearing of a proceeding before the Tribunal, requiring any person who is a party to the proceeding to provide further information in relation to the proceeding, lacks that quality of finality or ultimate determination which the authorities say is necessary before any particular decision can be a decision "made under an enactment".
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ (with whom Brennan and Deane JJ agreed) said (at 337):
" ... a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination."
Mason CJ said later (at 337):
"If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the `conduct' of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of `conduct' than with the notion of `decision under an enactment'."’
39 If I am right in the analysis undertaken at [34] to [36] above that the sole source of power in the Tribunal to require a decision-maker to lodge documents with the Tribunal is s 37(2) of the Act, a decision to impose such a requirement is expressly provided for by the Act. It is final or operative and determinative in a practical sense in that it impinges on the decision-maker’s right to preserve undisclosed documents to which legal professional privilege attaches. In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 it was observed in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ at 553 [11];
‘Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect. That rule, the expression of which in this Court can be traced to Potter v Minahan [(1908) 7 CLR 277 at 304, per O'Connor J], was the foundation for the decision in Baker v Campbell [(1983) 153 CLR 52]. It is a rule which, subject to one possible exception, has been strictly applied by this Court since the decision in Re Bolton; Ex parte Beane [(1987) 162 CLR 514]. Cases in which it has since been applied include Bropho v Western Australia [(1990) 171 CLR 1], Coco v The Queen [(1994) 179 CLR 427] and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [(1997) 188 CLR 501].’
40 I have already indicated at [8] above my tentative view that s 37(3) of the Act does not “abrogate” privilege, including legal professional privilege. If, as I think, scope remains for the Tribunal to give effect to legal professional privilege attaching to documents required to be lodged by a decision-maker, a decision which denies that effect has a final impact on what the High Court has identified as a substantive common law right or immunity. It is therefore a decision under an enactment notwithstanding that it is procedural in the sense of being made on the way to arriving at the ultimate decision entrusted to the Tribunal.
41 It follows from the conclusion just reached that the decision to give the direction was a decision under an enactment that the making of the direction could not also amount to “conduct within the meaning of s 6 of the AD(JR) Act.” As Mason CJ pointed out in Australian Broadcasting Tribunal v Bond (supra) at 341;
‘The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s 6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. Accordingly, s 3(5) refers to two examples of conduct which are clearly of that class, namely, "the taking of evidence or the holding of an inquiry or investigation". It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.’
42 Ordinarily, as Spender J pointed out in Beddoe, a direction such as one pursuant to s 33(2A) of the Act as to the procedure to be followed in a hearing before the Tribunal is essentially procedural and will amount to conduct only where it affects the way in which the proceedings have been conducted and is not merely a step in the deliberative or reasoning process on the way to the ultimate or determinative decision. In the present case, by contrast, the direction, as I have endeavoured to explain, was, although intermediate, determinative of a common law right or immunity asserted by APRA.
(v) Should relief be refused in the exercise of the Court’s discretion?
43 It was submitted, particularly on behalf of VBT, that the Court should exercise its discretion against granting relief to APRA because to do so would be to encourage “fragmentation” of the Tribunal’s process. Support for that approach was sought from this observation of Spender J in Beddoe (supra) at 453;
‘It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the Tribunal, in the same way that this Court should be reluctant to fragment the criminal process by entertaining applications under the ADJR Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit.’
44 However, I consider the present case to be distinguishable from that outlined by his Honour. In the first place, the supervisory jurisdiction of the Court has been invoked by the decision-maker, not by an applicant whose rights will presumably be fully protected and vindicated if the Tribunal’s ultimate decision is favourable to the applicant. By contrast, APRA’s common law right or immunity protected by legal professional privilege, which is discussed at [39] above, will be lost once and for all when the documents are provided to the other parties, even if the Tribunal ultimately affirms the decision to disqualify.
45 In a related way, Counsel for VBT pointed out that APRA did not begin the proceedings in this Court until almost a month after the direction was issued and a week after it emerged in its final form. Similarly, it was said that a grant of relief would be inimical to the policy evinced by s 2A of the Act that the Tribunal is to provide “a mechanism of review that is fair, just, economical, informal and quick.” That policy would be defeated “if the review process could be intercepted by any decision-maker who disputed the Tribunal’s view of what was relevant to the review and contended that the Federal Court should form a different view.” However, the vice in the direction is not that it rests on a different view from that which might be taken by the Court of what documents are relevant to the review. Rather, the Tribunal has considered that its view of relevance not only requires the lodgement with it of legal advices and opinions (which could as readily be achieved under s 37(2)) but, in the events that have happened, compels the provision of those documents to the other parties without APRA having any opportunity to invoke s 35(2)(c) in the way contemplated by s 35(1AF). That the Tribunal took that view is made clear by the different treatment which the direction accords to legal advice in APRA’s possession when it lodged its documents under s 37(1) and legal advice and instructions coming into its possession after that date. Access to material in the latter category is denied to the applicants and the party joined although there is no suggestion that it is more amenable to a claim of privilege or more confidential than the material identified in cl 1 of the direction.
46 I am not persuaded that the relief which I propose to grant will unduly fragment or obstruct the continued hearing by the Tribunal of the subject application for review. My order will enable the Tribunal to frame a direction within the power conferred by s 347(2) expressly limited in the way Counsel for VBN and VBT contend the present direction should be read. Moreover, having given such a direction under s 37(2), the Tribunal can then, with the advantage of recourse to the actual documents lodged with it, consider in the exercise of the discretion conferred by s 35(2) whether any and what documents so lodged or parts thereof should be provided to the applicants and the party joined.
The application by John Fairfax Publications Pty Ltd
47 On 24 November 2005 in these proceedings Weinberg J made by consent of APRA, VBN, VBT and VBV, orders which included the following;
‘2. Until further order, and subject to order 2A, there be no publication of, or access to:
(a) the name of the Respondents;
(b) any material filed in this proceeding that tends to identify the Respondents or any entities in which they have an interest or by which they are employed;
(c) any material filed in this proceeding, other than exhibits MN-1 and MN-2 to the affidavit of Merinda Northrop sworn on 24 November 2005, that tends to identify the facts or nature of the applications for review in proceedings V2005/686, 793, 821 and 906-909 before the Administrative Appeals Tribunal;
except to:
(i) the parties and their legal representatives and professional advisers;
(ii) the parties to any matter in the Administrative Appeals Tribunal that is to be heard together with the AAT proceeding, and the legal representatives and professional advisers of those parties.
2A.The Applicant is not constrained by order 2 from communicating to its legal representatives and professional advisers material that identifies the nature of the application for review in proceedings V2005/686 and 793, for the purpose of:
(a) giving instructions and seeking advice in relation to any other proceedings before the Administrative Appeals Tribunal or the Federal Court of Australia in which the extent of the Tribunal’s powers under s 37 of the Administrative Appeals Tribunal Act 1975 arises for determination; or
(b) allowing submissions to be made to the Administrative Appeals Tribunal or the Federal Court of Australia in those other proceedings;
provided that the material so communicated does not tend to identify the Respondents or any entities in which the Respondents have an interest or by which the Respondents are employed.
3. The order made by Justice Weinberg on 21 November 2005 be varied by deleting paragraph 5 and substituting the following paragraph:
“Until further order, publication and access to the affidavit of Isaac Gotlieb sworn on 18 November 2005 together with confidential exhibits “IG1” – “IG6” be confidential and not be disclosed to any person other than:
(i) the parties and their legal and professional advisers; and
(ii) officers of this Court.”’
48 At the end of the hearing on 1 December 2005, application was made on behalf of John Fairfax Publications Pty Ltd (“Fairfax”), the publisher of the Australian Financial Review,for a variation or discharge of those orders. Counsel for Fairfax also sought leave pursuant to O 46 r 6 of the Rules of this Court, to inspect exhibits MN-1 and MN-2 to the affidavit of Merinda Northrop which had been excepted from the prohibition on publication effected by par 2 of Weinberg J’s order of 24 November. Order 46 r 6(3) provides;
‘(3) Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:
(a) an affidavit (other than an affidavit mentioned in subparagraph (2)(l)(i));
(b) an unsworn statement of evidence filed in accordance with a direction given by the Court or a Judge;
(c) interrogatories or answers to interrogatories;
(d) a list of documents given on discovery;
(e) an admission;
(f) evidence taken on deposition;
(h) a subpoena or document lodged with the Registrar in answer to a subpoena for production of a document;
(i) a judgment, order, or other document that the Court has ordered is confidential.’
49 The power of this Court to make orders of the kind made by Weinberg J on 24 November 2005 is conferred by s 50 of the Federal Court of Australia Act 1976 (Cth) which provides;
‘The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.’
50 Mr McEvoy of Counsel for Fairfax pointed out that Weinberg J’s orders had been made by consent and had not been supported by any material on affidavit from VBN, VBT or VBV, the public identification of whom was precluded by the orders.
51 Counsel referred also to the general presumption in favour of open justice endorsed by high authority including Scott v Scott [1913] AC 417 and Russell v Russell (1976) 134 CLR 495. Particular reliance was placed on the judgment of a Full Court of this Court in Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 where Merkel J observed, at 444 [34]-[35];
‘34 It was likely Williams would be the subject of embarrassing and damaging publicity if the suppression order was not made. However, as was pointed out by Kirby P in John Fairfax v Local Court [(1991) 26 NSWLR 131] (at 142):
“It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: see, eg, David Syme & Co Ltd v General Motors-Holden’s Ltd [[1984] 2 NSWLR 294] (at 307); Raybos Australia Pty Ltd v Jones [[1985] 2 NSWLR 47] (at 58); R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235; R v Bromfield, Malcolm CJ [(1991) 6 WAR 153] (at 22); Rockett v Smith [[1992] 1 Qd R 660], per Derrington J (at 7). A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.”
See also J v L & A Services Pty Ltd [1995] 2 Qd R 10 at 45; The Herald and Weekly Times Ltd v The Magistrates’ Court of Victoria [1999] 2 VR 672 at 679 [56]; and The Herald and Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 at 295 [93].
35 The policy reasons for adhering to an open system of justice were explained in Scott v Scott [1913] AC 417 where Lord Shaw observed at 484-485:
“may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure”.
Lord Atkinson observed at 463:
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses … but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”’
52 However, it should be remembered that the present proceedings have been brought by APRA seeking the exercise of this Court’s supervisory jurisdiction over the Tribunal. Orders corresponding with those made by Weinberg J had previously been made by the Tribunal as part of its conduct of the review of APRA’s decisions. The Tribunal’s orders were presumably pursuant to s 35(2) of the Act which has been reproduced at [5] of these reasons. The principles which are to guide the Tribunal in exercising its discretion under s 35(2) are set out in these terms in s 35(3);
‘In considering:
(a) whether the hearing of a proceeding should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.’
53 I infer that the Tribunal’s orders were made in recognition of the anonymity which s 344(11) of the SIS Act was concerned to ensure. That sub-section provides;
‘The hearing of a proceeding relating to a reviewable decision is to take place in private and the Administrative Appeals Tribunal may, by order:
(a) give directions as to the persons who may be present; and
(b) give directions of a kind referred to in paragraph 35(2)(b) or (c) of the Administrative Appeals Tribunal Act 1975.’
54 In Herald & Weekly Times Ltd v Williams (supra) Merkel J acknowledged, at [36];
‘A different situation might arise, for example, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the Court, or “if there was a real risk as opposed to a remote possibility that this would occur”: see Johnston v Cameron (2002) 195 ALR 300 at 319. If that situation arises it can be weighed in the discretionary balance that is to be struck between the public interest of open justice and preventing prejudice to the administration of justice. However, that situation has not arisen in the present matter.’
55 By contrast with Williams where the person seeking to preserve his anonymity was the moving party in this Court, the present proceedings were initiated by APRA to rectify what it saw as an excess of power by the Tribunal. Had an order like that of Weinberg J not been made, there was a real risk that VBN, VBT and VBV would have been deterred from seeking to uphold the validity of the direction for fear of having their identities publicly revealed contrary to the manifest policy of s 344(11) of the SIS Act. See also Applicant Y v Australian Prudential Regulation Authority [2005] FCAFC 222 (28 October 2005). That was a case where the individuals whose identity had been suppressed were themselves the moving parties before the Court. Nevertheless, the Full Court (Emmett, Allsop and Edmonds JJ) observed, at [13]-[16];
‘The primary contention of the appellants is that APRA lacks power under the Insurance Act to disqualify X and Y. Lindgren J accepted that the questions of construction involved in the preliminary questions are not free from difficulty. If APRA purported to disqualify X and Y in circumstances where it has no power to do so, irreparable damage could be suffered by X, Y and Z Co that could not be remedied by the quashing, on appeal, of the decision to do so. For that reason, X, Y and Z Co made applications at the commencement of each of the proceedings to suppress their identities. If the s 50 Order had not been made, Z Co would not have authorised the continuation of the proceedings because of the potential damage from publication of the findings made by Mr Godfrey.
The public interest, that the Court should effectively endeavour to achieve in considering the exercise of power under s 50, is the object of doing justice between the parties. That is the function that the Court is appointed to discharge. Where refusal to make an order might well undermine or defeat the purpose of achieving justice between the parties, and disappoint the public interest in having the Court deal responsibly with the affairs of citizens, it may be appropriate to make an order pursuant to s 50 – see Australian Broadcasting Commission v Parish & Ors (1980) 49 FLR 129 at 133.
The Court must, however, take into account what s 50 does not explicitly state, but is the underlying assumption upon which it is based, namely, the principle of open justice. The importance of the principle of open justice is not in doubt. On the other hand, the possibility of prejudice to the administration of justice must be weighed against the public interest in maintaining open justice. Although the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that must be placed on the scales. The derogation from the principle that might be involved in making an order under s 50 may be very great, or it might be very small. The degree of derogation from the principle involved in the proposed order is an important matter to be considered in balancing the principle against possible prejudice to the administration of justice – see Australian Broadcasting Commission v Parish & Ors at 136.
Certainly, it was within the power of X, Y and Z Co to refrain from commencing the proceedings. However, they would not have commenced the proceedings or continued them, if the s 50 Order had not been made. In circumstances where Lindgren J accepted that the questions of construction involved in the preliminary questions were not free from difficulty, and his Honour granted leave to appeal from the orders that he made, there would be a real prejudice to the administration of justice if the appellants succeeded in their appeals and established that APRA has no power to disqualify X or Y, but suffered irreparable damage from the publication of the Reasons and the disclosure of the adverse findings made by Mr Godfrey.’
56 In these circumstances, it was open to Weinberg J to consider that the orders which he made were necessary in terms of s 50 of the Federal Court of Australia Act 1976 to prevent prejudice to the administration of justice in the conduct of the proceedings in this Court. That was particularly so when, as will be apparent from the foregoing reasons, disclosure of the full or real names of VBN, VBT and VBV was not necessary to prevent a full understanding of the issues and arguments raised by APRA’s application or the Court’s resolution of them. At all events, I am not persuaded that Weinberg J’s orders were not open to him or that his Honour’s discretion miscarried in any relevant respect. Accordingly, the application by Fairfax for variation or discharge of those orders is refused.
57 Exhibits MN-1 and MN-2 to the affidavit of Ms Northrop consist of a redacted version of the direction and the version of its reasons which the Tribunal has ordered is available for general release. Extracts from each of those documents have been set out in these reasons to the extent necessary to permit a full understanding of the issues agitated in the present proceedings and the Court’s resolution of those issues. I therefore decline to make an order under O 46 that Fairfax have access to either of those exhibits.
Conclusion
58 For the reasons which I have explained, I have concluded that the direction is beyond the power of the Tribunal. I shall make a declaration to that effect. However, in the circumstances I shall not make an order setting aside the direction. As noted earlier in these reasons, the Tribunal retains the facility, pursuant to s 37(2), to require APRA to lodge with the Tribunal copies of legal advices which may be relevant to the review. In case any difficulty arises in the application of these reasons to the framing of any such a requirement, I shall reserve liberty to apply. The applications on behalf of Fairfax will be refused. My present inclination is to make no order as to the costs of any party to, or participant in, the present proceeding. Should any party or participant wish to contend for any different disposition of the question of costs, written submissions in support of that contention should be filed and served by 2 February 2006 with answering submissions (if any) to be filed and served by 9 February 2006.
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I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 22 December 2005
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Counsel for the Applicant: |
Mr P Hanks QC with Dr S Donaghue |
|
Solicitor for the Applicant: |
Australian Government Solicitor |
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Counsel for the First Respondent: |
Mr P J Cosgrave SC |
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Solicitor for the First Respondent: |
Corrs Chambers Westgarth |
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Counsel for Second Respondent: |
Mr R Macaw QC with Ms M A Tran |
|
Solicitor for Second Respondent: |
Freehills |
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Counsel for Intervenor John Fairfax Publications Pty Ltd: |
Dr T J McEvoy |
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Solicitor for Intervenor John Fairfax Publications Pty Ltd: |
Richard Coleman |
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Date of Hearing: |
1 December 2005 |
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Date of Judgment: |
22 December 2005 |
