FEDERAL COURT OF AUSTRALIA

Hutchison v Australian Securities and Investments Commission [2018] FCA 1002

ORDERS

THE COURT ORDERS THAT:

1.    The purported appeal be dismissed as incompetent.

2.    The applicant pay the respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    These reasons concern the competency of an appeal lodged in this Court by Mr Hutchison from the decision of the Administrative Appeals Tribunal (Tribunal) to refuse to order the production of certain documents. The application for production was made in the context of a broader review by the Tribunal of a decision made by the Australian Securities and Investments Commission (ASIC) to ban Mr Hutchison from the financial services industry.

2    Section 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that a party to a proceeding before the Tribunal may appeal to the Federal Court of Australia on a question of law, from any decision of the Tribunal in that proceeding.

3    ASIC contends that no appeal under s 44 of the AAT Act can lie to this Court because the Tribunal's decision is not a 'decision' within the meaning of that word in s 44.

4    ASIC relies on the Full Court decision in Director-General of Social Services v Chaney [1980] FCA 108; (1980) 47 FLR 80 where the majority held that an appeal under s 44(1) of the AAT Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review.

5    For the reasons that follow, the Tribunal's decision to refuse to order the production of documents was not an effective decision or determination of the application for review, and the appeal is incompetent.

Banning order

6    In 2012 Mr Hutchison was operating a financial advice business through a company known as WAWM Holdings Pty Ltd (WAWM). WAWM was the authorised representative of RI Advice Group Pty Ltd (RI).

7    RI became concerned as to the conduct of WAWM and Mr Hutchison. In August 2012 RI informed Mr Hutchison of its concerns, including as to alleged double charging of certain clients.

8    On 29 November 2016 ASIC examined Mr Hutchison under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) with respect to alleged contraventions, including contraventions of provisions of the ASIC Act and the Corporations Act 2001 (Cth).

9    On 26 May 2017 Mr Hutchison appeared at a hearing before ASIC held under s 920A of the Corporations Act. That provision grants to ASIC the power in certain circumstances to ban or disqualify persons from providing financial services.

10    On 2 June 2017 ASIC made a banning order under ss 920A and 920B of the Corporations Act to permanently prohibit Mr Hutchison from providing any financial services.

Application to the Tribunal for review

11    On 22 June 2017 Mr Hutchison lodged an application for review of ASIC's decision in the Tribunal.

12    On 7 September 2017 the Tribunal granted a stay of the operation of the banning order pending the final hearing of the application for review: Hutchison and Australian Securities and Investments Commission [2017] AATA 1419.

13    The final hearing of the application for review was conducted before the Tribunal over 5 hearing days in December 2017. The decision of the Tribunal is reserved. The Tribunal made orders for the filing of closing submissions after the hearing, the last date for submissions being 5 February 2018 (taking into account extensions). Mr Hutchison was due to file any reply submissions by that date.

14    It follows that there has been no final determination of the Tribunal review.

Application to Tribunal after hearing but before determination for documents

15    By email letter to the Tribunal Registry dated 5 February 2018 the applicant relevantly sought the following orders (without alteration):

1.    Pursuant to s 37 of the AAT Act, within 14 Days ASIC to Produce all documents, the subject of the FOI request, as set out in JX9 and further copies of any commission reports or documents provided by ANZ/RI Advice;

2.    In the alternative to 1, within 14 Days ASIC to permit the applicant's solicitors or their agents, to inspect the above documents at ASIC's premises in Perth, and to obtain copies of the same, at ASIC's expense;

3.    The time for the applicant to file and serve his replying submissions, be extended from 5 February 2018, to a date to be fixed;

4.    The applicant have leave to apply to re-open his case and further, have leave to apply to adduce into evidence any further documents relevant to this appeal[.]

16    It is desirable at this point to set out the relevant parts of s 37 of the AAT Act:

37    Tribunal may require other documents to be lodged

…

Decision-maker must lodge material documents

(1)    Subject to this section, a person who has made a decision that is the subject of an application for review (other than second 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 a copy 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)    subject to any directions given under section 18B, every other 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.

…

Tribunal may require other documents to be lodged

(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.

17    The Tribunal heard the s 37 production application on 21 February 2018.

18    On 4 April 2018 the Tribunal refused the application and provided written reasons: Hutchison and Australian Securities and Investments Commission [2018] AATA 760.

Appeal to this Court

19    On 13 April 2018 the applicant filed a notice of appeal in this Court, stating that the appeal was from the refusal of the 'applications' under s 37 of the AAT Act for disclosure of documents. The questions of law as set out by Mr Hutchison in the notice of appeal and said to arise are (again without alteration):

Whether the learned Deputy President committed jurisdictional error in refusing to accede to the applicant's several s 37 AAT Act applications and/or erred in the exercise of his discretion?

Whether the Reasons of the learned Deputy President disclose a formulaic restatement of ASIC's ipse dixit position and not the product of 'an active intellectual process' (cf Sharma v Minister for Immigration and Border Protection [2015] FCCA 2669 (at [44], [46] and [47]); MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 (at [19])).

Whether the Reasons of the learned Deputy President reveal 'unreasonableness' and/or even lack of 'proportionality' in a post-Li sense (cf Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332).

20    The notice of appeal was supported by an affidavit of Mr Hutchison's solicitor, Mr James Xenidis, on 13 April 2018. The affidavit attached the letter application of 5 February 2018. It also attached an affidavit of Mr Xenidis of 5 February 2018 and submissions, both filed on behalf of Mr Hutchison in support of the production application. The reference to 'JX9' in the letter application of 5 February 2018 is a reference to attachment 'JX9' to Mr Xenidis' affidavit of the same date.

21    ASIC (as respondent) filed a notice of objection to competency of the appeal under r 33.30(1)(a) of the Federal Court Rules 2011 (Cth). Rule 33.30(2) provides that the applicant carries the burden of establishing the competency of an appeal.

The relevant application and decision

22    As a preliminary point, it is to be noted that Mr Hutchison refers in his notice of appeal to 'applications' under s 37 although the Tribunal's reasons relate only to the letter application of 5 February 2018. The particulars of the appeal grounds refer to three purported applications: an oral application on an unknown date but during the hearing and between 4 and 8 December 2017; an oral application on 6 December 2017; and the letter application of 5 February 2018. Mr Hutchinson's counsel clarified during the course of the hearing before me that the decision from which Mr Hutchison seeks to appeal is the decision the subject of the Tribunal's written reasons. To the extent other oral applications were made, they were superseded by that application.

The Tribunal's reasons

23    The Tribunal published detailed reasons for its refusal to direct production of the requested documents. It is apparent from the reasons that well before the review hearing ASIC had identified and disclosed clients and transactions where double charging was alleged.

24    In summary, the Tribunal refused to order production because there was no evidence further relevant documents existed and there had been ample opportunity for evidence to be obtained by Mr Hutchinson for the purpose of the hearing.

25    The Tribunal determined the production application as follows (at [31], [32], [36]–[40], references to ‘the applicant’ being references to Mr Hutchinson and references to ‘the respondent’ being references to ASIC):

… As with the submissions made at the [review] hearing in the cross-examination of Mr Chau, it appears to the Tribunal that Mr Xenidis is trying to run an argument of some improper conduct on the part of Mr Chau (see Hearing Transcript, pages 382 at [39]), and presumably the respondent, in not including notes of conversations that Mr Chau may have had with clients and former clients of the applicant in preparing the respondent's case. Such a claim is unfounded. As Mr Chau explained when cross-examined, the documents produced by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) were those that were relevant to the decision under review and which would be relevant to the Tribunal in reaching its preferred decision on the matters in issue.

On the basis of the applicant's conduct since August 2012, through the s 19 Examination, the s 920A hearing, the stay application and right up to the filing of the applicant's SFIC a matter of weeks before the hearing in December 2017, the respondent was entitled to assume that the applicant agreed that the double-charging had occurred, including the double-charging of the Dadds. The document produced by the respondent under s 37 of the AAT Act reflected that position.

…

As far as the Tribunal can determine, the first time that the Applicant seems to have changed his position in relation to the previously admitted double-charging, was late on the fourth day of the hearing (at around 3.05 pm according to the Hearing Transcript, page 382). There was no mention by the applicant's original counsel in opening on the first day of the hearing, or even by Mr Xenidis in his opening on day two of the hearing (after the Applicant's dismissal of the original counsel), that the applicant had changed his position in relation to the previously admitted double-charges.

Also, significantly, the applicant had known the basis of allegations that had been made against him and upon which the Banning Order was based for over five years leading up to the hearing in December 2017. The application seeking review of the Banning Order was lodged with the Tribunal in June 2017. Mr Xenidis's firm has been acting for the applicant since at least that time as they lodged the application on behalf of the applicant. The Applicant has had ample opportunity to, firstly, consider the basis upon which he would run the application and then to gather and put on whatever evidence he or his legal advisers thought necessary to establish his case.

If it was going to be part of the applicant's case that there was no double-charge of the Dadds, or any of the other clients long-identified as having been double charged, then the applicant had ample time to contact those clients and get statements from them. Not only does it appear that no effort was made to get statements from these clients, but it does not even seem to have been raised as an issue for determination in the application.

On the face of it, the respondent complied with its obligation under s 37 of the AAT Act. The applicant has been legally represented throughout these proceedings and has had ample opportunity to state his case and present evidence to support that case. The fact that there has been an apparent change of heart by the applicant as to the basis upon which he seeks to run his case, manifested for the first time on the fourth day of the hearing, cannot, in the Tribunal's view, justify the orders sought by the applicant.

The applicant's application also appears to be based on the premise that Mr Chau's notes of conversation with relevant clients disclose that they were in fact not double-charged fees. Even in the face of the applicant's admission of double-charging, if such notes existed they would have been producible under s 37 of the AAT Act. There were none so produced and there is no evidence to support the applicant's underlying premise that such documents exist.

The decision in Chaney

26    Section 44 of the AAT Act provides relevantly as follows:

Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

(1)    A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

...

Appeal about standing

(2)    Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.

...

Jurisdiction

(3)    The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) ...

27    The question in Chaney was whether an appeal lay under s 44 from a ruling by the President of the Tribunal that the Tribunal had jurisdiction to review the decision of the Director-General of Social Services that Mrs Chaney was not entitled to a widow's pension. Deane J said (at 103):

The conclusion which I have reached is that, subject to the qualifications mentioned below, an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Ordinarily, such a decision will be the final decision formulated in accordance with the provisions of s 43 of the Act. The qualifications referred to are an appeal pursuant to s 44(2) from a decision that the interests of a person are not affected by a particular decision and the case where the proceeding before the Tribunal can properly be divided into two or more separate parts in respect of which independent “decisions” may properly be given.

28    Fisher J agreed and said (at 107):

Under the Act the statutory process is complete when the Tribunal either decides to refuse to review the decision of the administrator or makes a decision in writing affirming, varying or setting aside the decision (s 43(1)). In my opinion, it is such a decision as aforementioned which the legislature has in mind in conferring on this Court by s 44(1) a right to hear an appeal on a question of law “from any decision of the Tribunal in that proceeding”.

29    The appeal to the Federal Court from the ruling of the Tribunal was dismissed as incompetent.

30    In the context of considering the issue Deane J took into account the practical difficulties that would ensue from a different outcome, saying (at 102):

It would seem unlikely that it was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various 'decisions', involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision.

31    In Kishore v Tax Practitioners Board [2016] FCA 1328; (2016) 244 FCR 320 at [21], Robertson J collected numerous examples of cases where Chaney has been approved or applied by the Full Court, and I respectfully adopt that list: Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; (2000) 64 ALD 325; Australian Postal Corporation v Forgie [2003] FCAFC 223; (2003) 130 FCR 279; Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164; (2008) 48 AAR 559; Irwin v Military Rehabilitation & Compensation Commission [2009] FCAFC 33; (2009) 174 FCR 574; Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444; Rana v Repatriation Commission [2011] FCAFC 123; (2011) 196 FCR 137; Australian Postal Corporation v Sinnaiah [2013] FCAFC 98; (2013) 213 FCR 449; Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; (2013) 305 ALR 534 and Luck v Chief Executive Officer of Centrelink (No 2) [2015] FCAFC 112.

32    Further, Robertson J explained the purpose served by the approach in Chaney as follows (at [19]):

In my opinion, the point of the decision in Chaney is to avoid judicial review by way of an appeal to this Court instanter and as of right from non-determinative steps, determinations or decisions of the Tribunal. This reflects the undesirability of fragmenting proceedings in the Tribunal by the making of applications to the Federal Court seeking to challenge intermediate directions, determinations or decisions of the Tribunal: see the judgment of the Full Court in Geographical Indications Committee v The Honourable Justice O’Connor [2000] FCA 1877; 64 ALD 325 at [26]-[28].

33    Robertson J's view was endorsed in Chief of Navy v Angre [2016] FCAFC 171; (2016) 244 FCR 457 at [47]–[49] and more recently in Commissioner of Patents v AbbVie Biotechnology Ltd [2017] FCAFC 129; (2017) 349 ALR 142 at [40]–[42]. The Full Court in Kowalski v Repatriation Commission [2009] FCAFC 107; (2009) 259 ALR 444 similarly adopted the rationale as explained in Geographical Indications Committee.

Other decisions involving production of documents/summonses

34    There are various examples where in the context of s 44 of the AAT Act the Court has considered Tribunal decisions about access to potential evidence by the production of documents or by the issue of summonses to witnesses during review proceedings.

35    In Alcoa of Australia Ltd v Swiss Aluminium Australia Ltd [1986] FCA 88; (1986) 9 ALD 345, the applicant had sought documents from the Commissioner's files under the Freedom of Information Act 1982 (Cth) that contained information about other taxpayers. The commissioner refused access, relying on various grounds. The applicant sought a review from the Tribunal. The Tribunal determined first that one ground relied upon by the Commissioner (by reference to a provision in the Income Tax Assessment Act 1936 (Cth)) as an exemption from production was not valid. The Court held, applying Chaney, that an appeal from the decision as to that one ground was incompetent, as that decision did not finally determine the issue before the Tribunal as to access under the Freedom of Information Act.

36    In Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18, the applicant sought a review by the Tribunal of a decision of the Social Security Appeals Tribunal upholding an internal review by Centrelink stopping the payment of his Newstart allowance. In the course of the review he asked the Tribunal to issue five summonses and it refused on the grounds of relevance. Perram J, applying Chaney, held that a decision not to issue the summonses to give evidence is not 'a decision constituting the effective decision or determination of the application for review', and determined that the appeal was incompetent (at [18]–[19]).

37    In Cremona v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] FCA 1003, the applicant had applied to the Tribunal for a review of a decision as to his allowance under the Social Security Act 1991 (Cth). The Tribunal refused to grant leave to the applicant to issue a summons to the Victoria Police to produce documents. It considered the documents were not relevant. The applicant sought to appeal the refusal to issue the summons. North J held that the decision of the Tribunal to refuse leave was an interlocutory decision which did not determine the application for review and the appeal under s 44 was therefore incompetent.

38    Douglass v Administrative Appeals Tribunal [2017] FCA 1105 is of particular relevance. The applicant sought a review by the Tribunal of amended assessments of his liability to pay taxation and penalties. In the course of the review proceedings the applicant sought to compel the Commissioner of Taxation to produce documents under s 37(2) of the AAT Act. The application was refused by the Tribunal on the grounds that the applicant failed to identify particular documents or a particular class of documents which may be relevant to the Tribunal's review of the objection decision. It is clear from the reasons that relevance was very much in issue. The applicant sought an extension of time to appeal to this Court under s 44 from the refusal of the Tribunal to exercise its powers under s 37(2), which was refused. Griffiths J said the following (at [19]–[21]):

The applicant’s proposed appeal, for which he requires an extension of time, is plainly misconceived having regard to the now well settled view that the word “decision” in s 44 of the AAT Act refers to decisions which constitute the effective decision or determination of an application for review in the AAT. This view has been repeatedly applied in the Court, including in other Full Court decisions, such as Kowalski v Repatriation Commission [2009] FCAFC 107; 259 ALR 444 at [18]–[23] per Spender, Graham and Gilmour JJ and Director-General of Social Services v Hales [1983] FCA 81; 47 ALR 281 at 305 per Lockhart J and at 325 per Sheppard J). This view was also adopted and applied by Perram J in Yao in which his Honour highlighted the differences between an appeal under s 44 and judicial review proceedings under either s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth). (See also Mahaffy v Administrative Appeals Tribunal [2015] FCA 251).

There are evidently four exceptions to the general principle established in cases such as Chaney. First, an appeal lies under s 44(2) from a decision holding that the interests of a person are not affected by a particular decision. Secondly, where the proceedings before the AAT can be divided in two or more separate parts involving the giving of independent decisions (see Chaney at 103). Thirdly, s 36D of the AAT Act makes specific provision for specified interim decisions to be a decision for the purposes of s 44, including decisions under ss 36(3), 36B(3), 36A(2)(b) and 36C(2)(b). Fourthly, Ryan J found in APRA v VBN [2005] FCA 1868 at [39] that a decision of the AAT which required the primary decision-maker to lodge documents under s 37(2) of the AAT Act was “final or operative and determinative in a practical sense” where the order “impinges on the decision-maker’s right to preserve undisclosed documents to which legal professional privilege attaches”. This is because such a requirement has a final impact on legal professional privilege, which the High Court identified in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [11] as a substantive common law right or immunity. This exception has no relevance here, in circumstances where the AAT has declined to make the order sought by the applicant and, in any event, there is no suggestion that legal professional privilege is involved.

The Tribunal’s decision to refuse to exercise its powers under s 37(2) (as modified by s 14ZZF) is not a “decision” for the purposes of s 44 of the AAT Act. Rather, it is an intermediate decision which has been made by the Tribunal in the course of the broader review proceeding relating to the Commissioner’s decision concerning the applicant’s objection to certain amended assessments and penalties.

39    The circumstances in this appeal are closely analogous to those in Douglass. Both matters concern applications for production of documents under s 37 of the AAT Act prior to determination of the review proceedings, and where relevance or the existence of documents is in issue.

40    Also important is the decision of the five member Full Court in Chief of Navy v Angre. The broader application was brought by ABMT Angre for leave to appeal to the Defence Force Discipline Appeals Tribunal (DFDA Tribunal) against convictions entered by a General Circuit Court Martial. Prior to the hearing of the leave application, the DFDA Tribunal granted leave to ABMT Angre to adduce certain new evidence. The Chief of Navy filed an appeal in this Court under s 52 of the Defence Force Discipline Appeals Act 1955 (Cth) (DFDA Act) challenging that evidentiary ruling.

41    Section 52(1) of the DFDA Act provides that:

(1)    An appellant or Chief of the Defence Force or a service chief may appeal to the Federal Court of Australia on a question of law involved in a decision of the Tribunal in respect of an appeal under this Act, not being a decision given by a single member exercising the powers of the Tribunal.

42    One of the questions addressed by the Full Court was whether the principles set out in Chaney as to a 'decision' are applicable to the terms of s 52 of the DFDA Act.

43    After a detailed analysis of the proper construction of s 52 of the DFDA Act including a comparison with, relevantly, s 44 of the AAT Act, Mortimer J confirmed that the general principles of Chaney also applied with respect to s 52, holding that an appeal under s 52 could only be brought from the effective or final decision of the DFDA Tribunal, and not from non-determinative steps (at [47]–[79]), Allsop CJ, Griffiths, Perry and Gleeson JJ agreeing).

Mr Hutchison's contentions as to Chaney

44    Counsel for Mr Hutchison contends that there are two arguments that support a finding that the decision of the Tribunal in this case falls within s 44, despite Chaney. The first argument is that as Griffiths J noted in Douglass, there are qualifications to the general principle established in Chaney. Counsel contends that there should be a qualification in the case of an alleged denial of procedural fairness. The second argument is that Chaney is distinguishable.

Reliance on APRA v VBN

45    The first argument is asserted by way of analogy with APRA v VBN [2005] FCA 1860. In APRA v VBN, the Tribunal was in the course of conducting a review of a decision by the applicant to disqualify VBN from being a trustee or custodian of a superannuation entity. In the course of the hearing the Tribunal made an order under s 37(2) of the AAT Act that the decision-maker lodge certain documents, including 'legal advice' and 'relevant instructions' relating to the 'interpretation and application of the law relating to the decision under review'. In its reasons for making the order the Tribunal observed that s 37(3) of the AAT Act 'expressly abrogates legal professional privilege in relation to documents that must be lodged with the Tribunal under ss 37(1) or 37(2)'. The applicant brought an application pursuant to s 5 and s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and s 39B(1A)(a) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth) for review of the Tribunal's decision or conduct in making the production order.

46    In this context Ryan J considered the issue of whether the direction to produce involved a 'decision under an enactment' to which the ADJR Act applies or conduct within s 6 of the ADJR Act. It was submitted by an interested party that the direction to produce lacked sufficient finality to be a 'decision made under an enactment'. Because the Court considered relief was available under s 39B of the Judiciary Act, it did not need to resolve that question but considered that the effect of the direction was to determine in a practical sense the decision maker's right to preserve undisclosed documents to which legal professional privilege attaches, stating (at [40]):

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.

47    Counsel for Mr Hutchinson submitted that similarly the Tribunal's decision to deny production of the requested documents comprises a denial of procedural fairness and that further, it was a decision that will be determinative of the substantive review application.

48    In my view, the nature of the particular decision of the Tribunal in this case is distinct from one (such as that considered in APRA v VBN) that has the practical effect of irreversibly disclosing information that might otherwise be the subject of legal professional privilege.

49    The better analogy is with those cases set out above that have considered decisions refusing production of documents under s 37 of the AAT Act and refusing the issue of summonses to witnesses, including where relevance is in dispute, and other evidentiary decisions such as in Chief of Navy v Angre. Such decisions have the potential to affect evidence that might otherwise be available for the review. Despite that, the Courts have consistently followed Chaney. I do not consider there are distinguishing features of this case that justify any departure from the approach of the Courts in those decisions.

50    I note, for completion, that it is not in issue that the Tribunal has an obligation to afford procedural fairness, although the content of that duty is to be assessed in the statutory context. Such obligation on the part of the Tribunal has been recognised since before the decision in Chaney: see, for example, O’Sullivan v Repatriation Commission [2003] FCA 387, citing, (at [44]) amongst other cases, Sullivan v Department of Transport (1978) 20 ALR 323, 342. However, when considering the narrow meaning of 'decision' for the purpose of s 44, it is important to recall both the rationale for the decision in Chaney and also that, depending upon the circumstances, it is open to raise issues of procedural fairness on an appeal from the decision that determines the review. See, for example, Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 at [6], [8]; Cremona v Administrative Appeals Tribunal [2015] FCAFC 72; (2015) 230 FCR 1 at [12]; Kishore at [31]; News Corporation Ltd v National Companies and Securities Commission [1984] FCA 446; (1984) 5 FCR 88 at 95, 103, 122.

Distinguishing Chaney

51    Counsel for Mr Hutchinson sought to distinguish Chaney on the basis of the nature of the intermediate decision made by the Tribunal in that case, but the submission did not take into account that the principle has been applied to a range of decisions that form part of broader review proceedings, as is apparent from the numerous cases in which the principle has been applied and followed. As I have already noted, the facts of this case are in fact similar to those in (at least) Douglass.

Determination

52    The Tribunal's decision made 4 April 2018 to refuse to exercise its power under s 37 is not a 'decision' for the purpose of s 44(1) of the AAT Act. The objection to competency is upheld and the proceedings are dismissed with costs.

Associate:

Dated:    3 July 2018