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Australian Prudential Regulation Authority v VBN

Australian Prudential Regulation Authority v VBN

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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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1493 of 2005

BETWEEN:

APRA
Applicant

AND:

VBN
First Respondent

VBT
Second Respondent

VBV
Third Respondent

JUDGE:

RYAN J

DATE OF ORDER:

22 DECEMBER 2005

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.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1493 of 2005

BETWEEN:

APRA
Applicant

AND:

VBN
First Respondent

VBT
Second Respondent

VBV
Third Respondent

JUDGE:

RYAN J

DATE:

22 DECEMBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

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
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.
During the proceedings before the Tribunal, Counsel for VBN, supported by Counsel for VBT, sought an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1868
Decision Date: 22 DECEMBER 2005

CaseChat Overview and Summary

The case of Australian Prudential Regulation Authority v VBN involved the Australian Prudential Regulation Authority (APRA) challenging a direction issued by the Administrative Appeals Tribunal (AAT) regarding the financial services provided by VBN. The dispute was brought before the court by APRA, seeking a declaration that the AAT's direction was beyond its statutory power and to refuse certain applications by John Fairfax Publications Pty Ltd. The legal issues at hand focused on whether the AAT exceeded its jurisdiction and authority when it issued the contested direction and whether the AAT's decision-making process was compliant with the relevant legislation.

The court examined the statutory framework governing the AAT's powers and the specific provisions that pertained to the issuance of the direction in question. It was determined that the AAT's decision-making process did not align with the statutory requirements, as the direction issued went beyond the scope of authority delegated to the AAT. The court found that the AAT had overstepped its bounds by making a decision that was not authorised under the applicable legislation. Consequently, the court declared that the direction was beyond the power of the AAT. However, the court decided not to set aside the direction, leaving the AAT with the option to require APRA to provide relevant legal advices.

In its final orders, the court declared that the amended direction issued by the AAT on 10 November 2005 was beyond the power of the AAT. The applications by John Fairfax Publications Pty Ltd were refused, and the costs of all parties in the proceedings were reserved. The court also provided a timeline for any party wishing to contend for a different disposition of the costs, allowing for written submissions and answering submissions to be filed by specified dates. The court reserved the liberty for any party to apply for further orders if necessary.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1493 of 2005

BETWEEN:	APRA Applicant
AND:	VBN First Respondent VBT Second Respondent VBV Third Respondent
JUDGE:	RYAN J
DATE OF ORDER:	22 DECEMBER 2005
WHERE MADE:	MELBOURNE

JUDGE:	RYAN J
DATE:	22 DECEMBER 2005
PLACE:	MELBOURNE