Cohen and Australian Prudential Regulation Authority - [2006] AATA 512

CATCHWORDS – PRACTICE AND PROCEDURE – HEARING OF APPLICATION- whether review should be deferred pending resolution of criminal proceedings – deferred

Administrative Appeals Tribunal Act 1975 ss 25, 33, 35 and 37
Australian Securities and Investments Commission Act 2001 s 19
Corporations Act 2001 s 1309
Corporations Law
Insurance Act 1973 ss 25, 25A and 26
Supreme Court Act 1970 (NSW) s 23

Accident Insurance Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA)
Baker v Campbell (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749

Brebner v Perry [1961] SASR 177
Dolan and Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206; 114 ALR 231; 31 ALD 510
Duncan v Fayle (2004) 138 FCR 510; 38 AAR 541; [2004] FCA 723
Esber v The Commonwealth (1992) 174 CLR 430; 106 ALR 577; 66 ALJR 373

Hurley v Commissioner of Taxation (1992) 37 FCR 11

Lamb v Munster (1882) 10 QBD 110
Reid v Howard (1995) 184 CLR 1; 131 ALR 609; 69 ALJR 863
Sorby v The Commonwealth (1983) 152 CLR 281; 46 ALR 237; 57 ALJR 248
Street Nation Pty Ltd and Australian Communications Authority (2004) 40 AAR 68; 86 ALD 433; [2004] AATA 1251
The State of Queensland v The Australian Industrial Relations Commission (2000) 105 FCR 584; [2000] FCA 1654

DECISION AND REASONS FOR DECISION [2006] AATA 512

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2006/15
GENERAL ADMINISTRATIVE DIVISION     )

Re GEOFFREY ARTHUR COHEN

Applicant

AndAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  13 June 2006
Place:  Melbourne

Decision:Until further order the Tribunal:

1.defer hearing of the application filed in V2006/15 until after the conclusion of the criminal proceedings against the applicant under the Corporations Act 2001; and
2.adjourn further consideration to a telephone directions hearing on 9 October 2006 at 9.30am.
S A FORGIE
Deputy President

REASONS FOR DECISION

The applicant, Mr Geoffrey Arthur Cohen, has applied for review of a decision of the respondent, the Australian Prudential Regulation Authority (APRA), to disqualify him under s 25A(1) of the Insurance Act 1973 (Insurance Act). APRA’s decision, which was made on 26 September 2005 and confirmed on 9 December 2005, followed its finding that Mr Cohen is not a fit and proper person to act as a director or senior manager of a general insurer, foreign general insurer or authorised no-operating holding company. Mr Cohen has also been charged with two criminal offences arising out of the events leading to his disqualification. The committal hearing in relation to those charges is listed for hearing during the week commencing 25 September 2006 in the Magistrates’ Court in New South Wales. He has asked that the Tribunal defer hearing his application until after the resolution of the criminal charges but APRA wants the hearing to proceed in the normal course. I gave an oral decision to defer the hearing until after the conclusion of the criminal charges but to hold…

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: [2006] AATA 512
Decision Date: 13 June 2006

CaseChat Overview and Summary

Geoffrey Arthur Cohen applied for review of a decision of the Australian Prudential Regulation Authority (APRA) to disqualify him under s 25A(1) of the Insurance Act 1973. APRA's decision followed its finding that Mr Cohen is not a fit and proper person to act as a director or senior manager of a general insurer, foreign general insurer or authorised no-operating holding company. Mr Cohen has also been charged with two criminal offences arising out of the events leading to his disqualification. The committal hearing in relation to those charges is listed for hearing during the week commencing 25 September 2006 in the Magistrates' Court in New South Wales. He has asked that the Tribunal defer hearing his application until after the resolution of the criminal charges but APRA wants the hearing to proceed in the normal course.

The court held that the interests of justice are best served by deferring the Tribunal’s proceedings until the resolution of the criminal proceedings. The public is protected from any harm as Mr Cohen continues to be a disqualified person. Mr Cohen will be in a position in which he can take proper advantage of his privilege not to incriminate himself in the Tribunal’s proceedings. He will also be able to devote himself properly to the criminal proceedings. It would be an unreasonable burden to expect him to deal with both proceedings concurrently. The criminal proceedings will focus on one particular matter and will themselves be complex. The Tribunal’s will be more complex as they are likely to explore a broader range of issues and factual matters. Although the parties incur some costs by virtue of this adjournment application and future directions hearings relating to the outcome of the criminal proceedings, they will be of much lesser significance than those that would be thrown away if the parties were to prepare for hearing, the hearing were held and Mr Cohen were subsequently convicted of either or both of the offences.

The matter should not be deferred indefinitely. Consequently, there will be a further directions hearing so that Mr Moshinsky can advise regarding the outcome of the committal proceedings.

Until further order, the Tribunal:

1.defers hearing of the application filed in V2006/15 until after the conclusion of the criminal proceedings against the applicant under the Corporations Act 2001; and
2.adjourns further consideration to a telephone directions hearing on 9 October 2006 at 9.30am.

Orders