Australian Securities and Investments Commission v PTLZ

[2008] FCAFC 164

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164

PRACTICE AND PROCEDURE – s 35 of Administrative Appeals Tribunal Act 1975 (Cth) – confidentiality orders made – hearings to be held in private – whether error of law – whether Administrative Appeals Tribunal took as basis of its consideration the principle that it is desirable that hearings be held in public

Held: no error of law

ADMINISTRATIVE LAW – administrative tribunals – appeals from Administrative Appeals Tribunal – applications for judicial review – competency of appeals and applications for review – whether question arises

Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 41 and 44
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Judiciary Act1903 (Cth) s 39B

Director-General of Social Services v Chaney (1980) 31 ALR 571 cited
McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 cited
Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106 affirmed
Shi v Migration Agents Registration Authority [2008] HCA 31 cited

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v PTLZ

VID 144 OF 2008

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v VLDP
VID 145 OF 2008

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v ADMINISTRATIVE APPEALS TRIBUNAL and VLDP
VID 146 OF 2008

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v ADMINISTRATIVE APPEALS TRIBUNAL and PTLZ
VID 147 OF 2008

BLACK CJ, NORTH AND DOWNES JJ
16 SEPTEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 144 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	PTLZ Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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 145 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	VLDP Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The appeal be dismissed with costs.

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 146 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

AUSTRALIAN APPEALS TRIBUNAL
First Respondent

VLDP
Second Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The application be dismissed with costs.

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 147 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

AUSTRALIAN APPEALS TRIBUNAL
First Respondent

PTLZ
Second Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.   The application be dismissed with costs.

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 144 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	PTLZ Respondent

VID 145 OF 2008

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	VLDP Respondent

VID 146 OF 2008

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

VLDP
Second Respondent

VID 147 OF 2008

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

PTLZ
Second Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE:	16 SEPTEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BLACK CJ

1. The applicant, the Australian Securities and Investments Commission (ASIC), challenges confidentiality orders made by the Administrative Appeals Tribunal (the Tribunal) under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the Act).

2. The orders were made by the Tribunal in February this year in proceedings brought by the respondents PTLZ (an individual) and VLDP (a corporation of which PTLZ is the sole director), seeking orders setting aside a two year banning order prohibiting PTLZ from providing financial services and an order cancelling the financial services licence of VLDP:  see Corporations Act 2001 (Cth), ss 920A(1) and 915C(1).

3. The orders of the Tribunal now challenged by ASIC were made on 11 February 2008.  They are set out in para [26] of the judgment of North and Downes JJ, whose summary of the facts and circumstances I gratefully adopt.  In substance, the Tribunal ordered that the respondents be described by the pseudonyms PTLZ and VLDP, that the publication of evidence given before the Tribunal be restricted and that the hearing be held in private. 

4. ASIC brings these proceedings in the original jurisdiction of the Court by way of appeal under s 44(1) of the Act. It also seeks relief by way of judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth).

5. The central issue is whether, in making orders under s 35(2) of the Act, the Tribunal did not, as required by s 35(3), “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 the evidence given before the Tribunal…should be made available to the public”. In the hearing before us, senior counsel for ASIC took the Court through the Tribunal’s lengthy reasons for decision, drawing attention both to the structure of the reasons and to the passages which she contended demonstrated that the Tribunal had misconceived its obligation under s 35(3).

6. It is true that, as senior counsel contended, the Tribunal sometimes used language suggestive of error.  Thus, in Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106 at paras [101] and [115], the Tribunal referred to the need to “have regard to” the principle that proceedings before the Tribunal should be held in public, whereas the obligation in s 35(3) is expressed at a higher level, requiring the Tribunal to take this principle as “the basis of its consideration”.

7. The decision must, however, be read as a whole and, as senior counsel for the respondents emphasised, the Tribunal began its analysis of s 35(2) with an acknowledgement of the general proposition, contained in s 35(1), that “the hearing of a proceeding before the Tribunal shall be in public” (at [49]). Moreover, the Tribunal then set out s 35(3) in full (at [51]) and, from [101] to [116], undertook an extensive review of the cases about the making of orders under s 35(2) and the orders that can be made by this Court under s 50 of the Federal Court of Australia Act 1976 (Cth). The Tribunal explicitly recognised that one such case placed “a strong emphasis on the importance of a public hearing” (at [108]).

8. Having cited the section and reviewed the authorities, the Tribunal undertook the task of weighing competing considerations: see paras [117] to [131]. It did so first in relation to the granting of a stay, pursuant to s 41(2) of the Act, of the operation and implementation of ASIC’s decision. (The order the Tribunal made for a stay is not challenged in the proceedings before this Full Court.)

9. In considering the application for a stay of the decision, the Tribunal once again recognised the importance of public knowledge of the proceedings before it.  It noted that (at [123]):

   The outcome for VLDP and PTLZ is but one consideration. Of considerable importance is the protection of the public for it is to that end that the provisions of Ch 7 of the Corporations Act are directed. It is to that end that the disqualification and banning provisions are directed. It is to that end that the publication provisions are directed so that members of the public generally as well as those engaged in the financial services industry are placed on notice. They can take the fact of disqualification or of banning into account in considering their business dealings and in arranging their affairs if those decisions have relevance to them. Public knowledge of the disqualification or of the banning means that there is another level of scrutiny, albeit informal, to ensure that those disqualified or banned are acting as they should and not as they should not.

10. The Tribunal nevertheless concluded that, in the case before it, the interests of the public were outweighed by the interests of PTLZ and VLDP (at [126] and [128]). 

11. The Tribunal then found that “[t]he same considerations” led it to conclude that “the proceedings should also be conducted in private and that they should not be subject to public scrutiny in the short term” (at [130]). 

12. The argument here is that, by importing balancing considerations relevant to the making of an order under s 41(2) of the Act to the making of an order under s 35(2), the Tribunal failed to “take as the basis of its consideration” the principle referred to in s 35(3).

13. The point comes down to whether, notwithstanding its earlier explicit reference to the relevant provisions and its consideration of the cases, the Tribunal in weighing up competing considerations – a task that both the confidentiality provisions and the stay provisions require – put aside its earlier reference to the principle upon which it had to proceed and proceeded to weigh the competing considerations more generally. 

14. Whilst it would indeed have been preferable to have considered the orders under s 41(2) and s 35(2) separately, with an explicit application of the requirements of s 35(3) at that point, the challenged portions of the Tribunal’s reasons must be read in the context of the reasons as a whole and that includes, as I have mentioned, a citation and consideration of the relevant provisions of s 35 of the Act.

15. I am not persuaded that any error of law, jurisdictional or otherwise, has been demonstrated, and I would therefore dismiss both the appeals and the applications. 

16. In these circumstances it is not necessary to consider whether, as contended by the respondents, the appeals are outside the scope of s 44(1) of the Act or whether the applications are outside the scope of the ADJR Act.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated:        16 September 2008

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 144 OF 2008

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT FORGIE

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	PTLZ Respondent

VID 145 OF 2008

BETWEEN:	AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant
AND:	VLDP Respondent

VID 146 OF 2008

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

VLDP
Second Respondent

VID 147 OF 2008

BETWEEN:

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL
First Respondent

PTLZ
Second Respondent

JUDGES:	BLACK CJ, NORTH AND DOWNES JJ
DATE:	16 SEPTEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

NORTH AND DOWNES JJ

INTRODUCTION

1. On 23 November 2007 the Australian Securities and Investments Commission (ASIC) made a two year “banning order” against the respondent who is identified by the letters PTLZ (the principal).  A banning order “prohibits a person from providing… financial services” (s 920B(1) of the Corporations Act 2001 (Cth)). At the same time ASIC cancelled the financial services licence of the respondent corporation which is identified by the letters VLDP. The principal is the sole director of the corporation.

2. The principal and the corporation sought review of the decisions in the Administrative Appeals Tribunal.  The Tribunal (Deputy President Forgie), on their application, made orders staying the operation and implementation of the decisions, including the publication of the decisions (the stay orders) and directed that the names of the financial adviser and corporation be suppressed, that the publication of evidence be restricted and that the hearings of the applications be held in private (the confidentiality orders). 

3. ASIC has “appealed” to this Court pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and has commenced proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) for review, in each case, of the confidentiality orders. It relies on the judicial review applications in the event that the application under s 44 is incompetent because the decisions are not final decisions.

   THE APPEAL

4. There is effectively one ground of appeal, namely, that the Tribunal “failed to 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”. Two questions arise. Did the tribunal err in law by misdirecting itself as to the proper principle to be applied? If it did, does this Court have jurisdiction to entertain the s 44 application, or, alternatively, the judicial review applications, and if it does, should it exercise its discretion against granting relief?

5. We have decided that although the reasons of the Tribunal could have been expressed more clearly, we are not satisfied that the Tribunal erred. The question of the competency of the proceedings accordingly does not arise. However, the s 44 appeals may not be within jurisdiction and the competency of the application made under the Administrative Decisions (Judicial Review) Act need not be determined. In any event, the Court would have been likely to refuse the applications for judicial review under s 39B of the Judiciary Act in the exercise of its discretion.

   BACKGROUND

6. It is necessary to say a little about the background to these proceedings. ASIC notified the principal and the corporation of its decisions on 29 November 2007. On the same day they applied to the Tribunal for review of the decisions and made applications for orders pursuant to ss 41(2) and 35(2) of the Tribunal Act staying the operation and implementation of the decisions and ensuring that the proceedings would not be made public. Later in the day DP Forgie made stay orders and confidentiality orders. DP Forgie also directed ASIC to publish, through a media distribution list and on its websites, a notice setting out the Tribunal’s orders and required it to remove references to the names of the principal and the corporation from a press release it had issued.

7. On 6 December all parties appeared before DP Forgie.  Evidence was put before the Tribunal and submissions made.  The matter was adjourned to 11 December for further evidence and the orders and directions were continued in the meantime.  On 11 December DP Forgie reserved her decision and continued the orders and directions until she gave her decision. 

8. The corporation and the principal admitted to some conduct which may have amounted to breaches of the Corporations Act. It was admitted that the corporation had not properly documented its procedures and failed to provide a dispute resolution system or to have a breach reporting system, as required. However, the corporation engaged advisers to assist it in rectifying the position. It offered enforceable undertakings to ASIC.

9. The Tribunal accepted that if the cancellation of the corporation’s licence was not stayed it would be unable to continue to operate.  This would affect staff and clients adversely.

10. On 11 February 2008 DP Forgie upheld the claims for interlocutory relief and published reasons for her orders (Re PTLZ and Australian Securities and Investments Commission (2008) 100 ALD 648; [2008] AATA 106). She made the following orders and directions:

    1.order that the operation and implementation of the respondent’s decisions dated 23 November 2007 (including but not limited to the publication of its decision in the Commonwealth Gazette under ss 920E(2) and 915F(2) and entering it in the Register maintained under s 922A of the Corporations Act 2001 and regulations thereunder) be stayed until the parties have had the opportunity to make submissions after the Tribunal has heard and determined the applications for review; and

    2.        direct that, until further order:

    (1)the applicants be described by the letters “PTLZ” and “VLDP” respectively for the purpose of the applications;

    (2)publication of the name of the applicants and of any material tending to identify them be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript;

    (3)publication of the evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal be restricted to members and staff of the Tribunal, the parties and their representatives and professional advisers and staff of Auscript; and

    (4)         all hearings shall be held in private.

    3.liberty to either party to apply.

    It is the second of these orders that ASIC challenges in this Court.

    THE TRIBUNAL’S REASONS

11. Before addressing the question of whether DP Forgie erred in law in her confidentiality decision it is appropriate to say something about the structure of her reasons for decision. 

12. For an interlocutory decision, the reasons were long (some 57 pages). A very substantial part of the reasons was devoted to an analysis of decided cases relating to ss 41 and 35 of the Tribunal Act. The Deputy President referred to more than 30 decisions of courts and the Tribunal.

13. Interlocutory decisions should be dealt with efficiently and made promptly.  This is particularly so where the matter under consideration includes a stay.  Where a stay is granted it should ordinarily be accompanied by directions for the expedition of the matter, with the earliest possible hearing and decision, so as to limit any adverse effect of the stay if the decision under review is ultimately affirmed.  The same is true if a stay is denied – to limit the adverse effect of a decision which may be set aside.

14. It is unfortunate that many months have now passed since the making of the application for review.  From what we were told from the bar table the matter is unlikely to be heard before November, twelve months after the original stay order. 

15. The ultimate reasons for DP Forgie’s decisions are contained in the last few pages of her reasons. They appear under the heading “Should orders be made under ss 35(2) and 41(2) in this case?” The bulk of the reasons address the application under s 41(2). The Deputy President concludes (at [126]) that “[h]aving regard both to the interests of the public and to the effect of the decisions upon [the corporation] and [the principal], I consider that the interests of the public are outweighed on this occasion by those of [the corporation] and of [the principal]”. She also concluded (at [128]) “that the potential damage to… clients… of [the corporation] is outweighed by the damage that is likely to be suffered by [the corporation] and [the principal] in the short term by publication of the notices in the Gazette and in the Press Release…”. Having earlier formed the opinion that she had power to do so DP Forgie concluded that the stay she had already made, which extended to publication, should be extended.

1. The Deputy President next turned to the claim for confidentiality orders under s 35(2). She said (at [130]):

   The same considerations lead me to conclude that the proceedings should also be conducted in private and that they should not be subject to public scrutiny in the short term.

2. It follows from the way that the Deputy President structured her reasons that we must look at her reasons relating to the stay orders, although not challenged, to determine whether the reasons relating to the confidentiality orders contain any error of law. 

   THE IMPORTANCE OF REFERRING TO THE WORDS OF THE LEGISLATION

3. The starting point for any matter in the Tribunal is the legislation from which it derives its jurisdiction. Because it is not a court, the Tribunal has no common law or inherent jurisdiction. In the present case the source of jurisdiction is ss 41 and 35. In most cases the words of the legislation will be a sufficient guide to the Tribunal’s exercise of jurisdiction. This is particularly so in interlocutory applications where “expedition” (s 33(1)(b)) assumes particular importance. Naturally, there will be occasions when decided cases will provide guidance, but the actual words of the legislation should provide the primary point of reference to which point it may be wise to return from time to time during the process of deliberation. As Hayne and Heydon JJ very recently said in Shi v Migration Agents Registration Authority [2008] HCA 31 at [92]:

   “As this Court has so often emphasised (see, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at 77 [9] per Gaudron, Gummow, Hayne and Callinan JJ, 89 [46] per Kirby J; [2001] HCA 49; Victorian WorkCover Authority v Esso Australia Ltd (2001) 207 CLR 520 at 526 [11] per Gleeson CJ, Gummow, Hayne and Callinan JJ, 545 [63] per Kirby J; [2001] HCA 53; The Commonwealth v Yarmirr (2001) 208 CLR 1 at 37-39 [11]-[15] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, 111-112 [249] per Kirby J; [2001] HCA 56; Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 at 6-7 [7]-[9] per Gleeson CJ, McHugh, Gummow and Hayne JJ; [2003] HCA 59; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 206 [30] per Gleeson CJ, Gummow, Hayne and Heydon JJ, 240-241 [167]-[168] per Kirby J; [2005] HCA 58; Weiss v The Queen (2005) 224 CLR 300 at 312-313 [31] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; [2005] HCA 81) in recent years, questions presented by the application of legislation can be answered only by first giving close attention to the relevant provisions. Reference to decided cases or other secondary material must not be permitted to distract attention from the language of the applicable statute or statutes. Expressions used in decided cases to explain the operation of commonly encountered statutory provisions and their application to the facts and circumstances of a particular case may serve only to mask the nature of the task that is presented when those provisions must be applied in another case. That masking effect occurs because attention is focused upon the expression used in the decided cases, not upon the relevant statutory provisions.”

   Kirby J made similar observations in Shi at [25]. These passages reflect the statement made a little earlier by Callinan and Heydon JJ in McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 468 [131], when speaking of the application of freedom of information provisions:

   We would prefer to ask the question in terms of the language of the legislation itself, rather than any adaptation of it, because the former is perfectly clear in asking whether there exist reasonable grounds for the claim that the disclosure of the documents would be contrary to the public interest. 

4. As will appear, we think there are elements of the decision of the Tribunal which illustrate the problems which the High Court identified, particularly the tendency that reference to decided cases may “distract attention from the language of the applicable statute”. 

   SECTIONS 41 AND 35 OF THE TRIBUNAL ACT

5. Although ss 41(2) and 35(2) address issues which may be related they are quite different issues. This can be seen by an analysis of the essential elements of the sections so far as they are relevant to these proceedings.

6. Section 41(2) confers power on the Tribunal where it “is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, [to] make such order or orders staying or otherwise affecting the operation or implementation of the decision… as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.” One element of the section requires the Tribunal to take into account the interests of persons affected.

7. Section 35(2) confers power on the Tribunal “[w]here 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” to “direct that a hearing… shall take place in private and give directions as to the persons who may be present” (s 35(2)(a)). Where the qualifying test is satisfied, powers to give other directions, such as directions relating to publication of names of witnesses and of evidence, are also conferred.

8. Section 35(3) directs the Tribunal:

   [i]n considering [orders or directions under s 35(2)] to 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.

9. The section imposes an overriding obligation on the Tribunal to “take as the basis of its consideration the principle” that hearings should be held in public.

   SECTION 35 REQUIRES THE DESIRABILITY OF PROCEEDINGS BEING HELD IN PUBLIC TO BE THE BASIS OF CONSIDERATION

10. It follows that ss 41(2) and 35(2) not only address a different subject matter and different powers, they create different qualifying conditions for the exercise of the powers. Section 41(2) requires the interests of persons affected to be taken into account. Subsections 35(2) and (3) require the principle that hearings should be held in public to be the basis of the Tribunal’s consideration.

11. It does not follow from the absence of any reference to the public interest in s 41(2) that that interest might not be relevant to an application under the section, but what is clear is that the principle that proceedings should be held in public must be taken as the basis of consideration of an application under s 35(2) while the only statutory obligation under s 41(2) is confined to merely taking into account the interests of persons who may be affected. The statutory requirement under s 35(3) is both wider and deeper than under s 41(2).

    THE REASONING OF THE TRIBUNAL

12. It is appropriate now to look at how the Tribunal actually addressed its task under s 35.

13. Relatively early in her reasons, DP Forgie referred to and set out the relevant parts of s 35 (at [49]-[51]). The Deputy President noted that s 35(1) provides that, subject to the section itself, proceedings before the Tribunal shall be in public and set out both ss 35(2) and (3).

14. The Deputy President then turned her attention to s 41 (at [52]), addressing its general construction and some difficult issues not raised in this appeal. These included the questions whether the section authorised directions to ASIC not to publish notices of its decisions notwithstanding statutory obligations to do so and authorised directions to withdraw or amend other publicity. These issues do not arise with respect to the confidentiality orders under s 35.

15. After considering these matters and the principles relevant to the making of an order under s 41(2) DP Forgie returned to s 35(2) in a section headed: “Confidentiality : the power given by s 35(2).” Under this heading (at [101]) the Deputy President first referred to two of her previous decisions, Re VBJ and Australian Prudential Regulation Authority [2005] AATA 642; (2005) 87 ALD 747 and Re an Applicant and Australian Prudential Regulation Authority and a Party Joined [2005] AATA 1294; (2005) 89 ALD 643. She adopted her statements in these cases which “set out at some length what [she understood] to be the principles that are relevant to an exercise of the power under s 35(2)” (at [101]). She then referred to and set out a summary of “the propositions that underpin the principles relevant in a consideration of whether an order should be made under s 35(2)” (at [101]) which she then adopted. The summary contains a number of dot points. Two of them are as follows:

    •in making an order under s 35(2), the Tribunal must have regard to those matters in s 35(3);

    •the matters in s 35(3) require the Tribunal to have regard to:

    (a)the desirability of:

    (i)hearings of proceedings before the Tribunal being held in public; and

    (ii)making available to the public and all parties, evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal;

    This statement describes the Tribunal’s obligation as an obligation “to have regard to” the principle whereas the obligation is actually “to take [it] as the basis of its consideration”.  The Deputy President repeated the obligation later in her reasons, referring again to the obligation as one “to have regard to” the principle.  The obligation as it is expressed in the legislation is at a significantly higher level than the paraphrase of the Tribunal.

16. In the following pages DP Forgie analysed a number of decisions touching upon the issue of confidentiality.  These included the important decision of the first President of the Tribunal, Brennan J, in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; (1979) 2 ALD 33. A number of times DP Forgie referred to matters such as the “strong emphasis on the importance of a public hearing” (at [108]). However, these passages occur in the context of the analysis of the cases and do not form part of a statement of the test she is applying.

17. After this analysis the Deputy President came to the determinative passage we have already referred to where she considered whether orders should be made.

18. The Deputy President first noted that different considerations applied to the two sections although she noted that “overlapping considerations [apply] to some extent” (at [117]).  This was because staying publication involved confidentiality issues.  First, DP Forgie concluded that the operation and implementation of the decisions should be stayed (at [126]).  Next, the Deputy President concluded that the publication in the Gazette should be stayed and the press release withdrawn (at [128]-[129]).  In this section “the public’s ‘right to know’” (original emphasis) was referred to (at [127]), but this was in the context of a reference to “the public” not being able to “make other arrangements to transfer their investments or to plan for the contingency that the decisions will be affirmed on review” (at [127]).  The ultimate statement as to DP Forgie’s reasoning on this issue was (at [128]):

    I consider that the potential damage to the interests of those who are clients and of those who may become clients of [the corporation] is outweighed by the damage that is likely to be suffered by [the corporation] and [the principal] in the short term by publication of the notices in the Gazette and in the Press Release…

19. It is to be noted that in this critical passage DP Forgie nowhere referred to the principle that proceedings should be held in public nor that that was the basis of her consideration. Nor would one expect this, because she was addressing s 41, which contained no such provision. It is also to be noted that the Deputy President appears to have used “the public” to refer to clients of the corporation.

    DID THE TRIBUNAL MAKE THE DESIRABILITY OF PROCEEDINGS BEING IN PUBLIC THE BASIS OF ITS CONSIDERATION?

20. The problem is that DP Forgie immediately following stated, with reference to s 35, that “[t]he same considerations lead me to conclude that the proceedings should also be conducted in private and that they should not be subject to public scrutiny in the short term” (at [130]). This was the sole direct statement in her reasons for making the confidentiality orders and it depended upon the considerations which motivated her in making one aspect of the order under s 41.

21. It is significant also to note, although not directly raised in the appeals, that although DP Forgie did accept that different considerations applied to ss 41 and 35 she nowhere seems to have addressed the issue of what effect a decision to grant a stay might have upon the desirability of making a confidentiality order. The case for a confidentiality order may not be as great if a stay has been granted.

22. The question for us is whether DP Forgie took, as the basis of her consideration, the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public.  Had she taken the simple step of including a statement to this effect, as part of her reasoning critical to her decision, this appeal would not have been maintainable.  Had the Deputy President, following the recent statements of Kirby, Hayne, Heydon and Callinan JJ, concentrated on the words of the section rather than devoting many pages to a discussion of the authorities, no doubt would have been left as to how she approached the matter.  DP Forgie would have been much less likely to refer to an obligation “to have regard to the principle” rather than “to take [it] as the basis of its consideration.” 

    CONCLUSIONS

23. Whilst we consider that the basis upon which consideration of an application under s 35 must be evaluated is of fundamental importance and while we think that such an exercise might well have led to a different result in this case, we are not satisfied that the Tribunal did not proceed on the required basis. DP Forgie set out s 35(3) in full. She referred a number of times to the principle. We do not think it is appropriate to read the Deputy President’s ultimate reasoning as excluding the principle even though it is not there referred to and had been described incorrectly earlier in her reasons.

24. For these reasons, each of the appeals and applications must fail.  However, because we heard argument upon the jurisdictional matters which arise we will make some brief comments. 

25. We do not think that the appeals under s 44 were competent. In Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593 Deane J (with whom Fisher J agreed) said this:

    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.

    The present decisions are not in any way determinative of the applications for review. Nor do they represent decisions on matters which can properly be separated, which must relate to final determinations of separate parts of matters. These conclusions seem to us to accord, for the reasons given by Deane J, with the meaning of s 44(1) of the Tribunal Act.

26. Whether or not the Court has jurisdiction under the Administrative Decisions (Judicial Review) Act, the Court must have jurisdiction under s 39B of the Judiciary Act.

27. Had we determined that the Tribunal erred in law we would have been required to determine whether, in the exercise of our discretion, relief should be granted.

28. It is now more than nine months since the decisions and the interlocutory orders were made.  The hearings will, in all probability, take place within four months from now.  It can be anticipated that the Tribunal will give its decision quickly.  If we granted relief the matter would have to be remitted to the Tribunal for further consideration.  That might lead to a delay in the hearing.  In all these circumstances we would have declined to grant relief.

29. The proceedings before DP Forgie raised some important questions relating to the jurisdiction of the Tribunal, particularly as to the extent of the orders and directions authorised by s 41 and whether an order suppressing the names of the parties, as opposed to the names of witnesses, could be made under s 35. However, none of these matters were raised in these appeals and so we have not made any observations about them.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North and Downes.

Associate:

Dated:        16 September 2008

Counsel for the Applicant:	Ms K Judd SC and Mr C Young
Solicitor for the Applicant:	Australian Securities and Investments Commission
Counsel for the Respondents (PTLZ and VLDP):	Mr M Sifris SC and Mr St J Hibble
Solicitor for the Respondents (PTLZ and VLDP):	Logie Smith Lanyon
Date of Hearing:	25 August 2008
Date of Judgment:	16 September 2008