Gerhardt v Godfrey
[2007] FCA 1516
•25 September 2007
FEDERAL COURT OF AUSTRALIA
Gerhardt v Godfrey [2007] FCA 1516
HANS-PETER GERHARDT v MARK GODFREY AND AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
NSD 1801 OF 2007ALLSOP J
25 SEPTEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1801 OF 2007
BETWEEN:
HANS-PETER GERHARDT
ApplicantAND:
MARK GODFREY
First RespondentAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Second Respondent
JUDGE:
ALLSOP J
DATE OF ORDER:
25 SEPTEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The respondents be restrained from any further reliance on the letter sent by the first respondent to the applicant dated 30 May 2007, or on the second letter sent by the second respondent to the Freehills as solicitors for the applicant on 2 August 2007.
2.The second respondent pay the applicant’s costs of the proceedings to date, including the costs of today.
3.The matter is stood over for any further hearing on the claim for interlocutory relief to a date to be fixed.
4.On the assumption that the application for interlocutory relief is to be pressed, the applicant file and serve on or before 5 October 2007, written submissions no longer than 10 pages, identifying the arguments in support of the orders contained in the schedule to the reasons of Allsop J delivered on 25 September 2007.
5.If the applicant decides not to press the interlocutory application, the parties have leave to file short minutes of order disposing of the proceedings. If the applicant elects to proceed, such election is to be made by filing submissions within time in accordance with order 4 above.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1801 OF 2007
BETWEEN:
HANS-PETER GERHARDT
ApplicantAND:
MARK GODFREY
First RespondentAUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
Second Respondent
JUDGE:
ALLSOP J
DATE:
25 SEPTEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This matter came before me last week as the duty judge. The substance of the application made by the applicant was that, in circumstances detailed in his application, the respondents (principally the second respondent) were threatening to deny him procedural fairness in the making of a decision potentially to disqualify him under s 25A of the Insurance Act 1973 (Cth).
Interlocutory relief was sought last week. The matter proceeded to a point where there was some dialogue between myself and Mr Gleeson, Senior Counsel appearing for the applicant, and Mr Stevenson, Senior Counsel appearing for the respondents.
The respondents have considered their position and are prepared to submit to orders restraining them from any further reliance upon two letters, one of 30 May 2007 and another of 2 August 2007, which letters provided the substance of the material that was put to the applicant for him to consider in answer as to why he should not be disqualified. One of these letters was in terms of a “show cause notice”. The other was an elaboration of that show cause notice. There is no provision in the Insurance Act or Regulations for such a document. However, the second respondent, in its conduct of its responsibilities, has set out a publicly-known procedure for dealing with these matters, and it prescribes for itself the requirement to give a “show cause notice” before acting.
In effect, the respondents will accept from the court a restraint on their acting on these two letters and are prepared to submit to an order that they pay the applicant’s costs of the proceedings to date. The respondents say that this, in effect, deals with the totality of the proceedings and submit that the proceedings should be otherwise dismissed.
The applicant is content with the first two orders, but wants to press on with an interlocutory application seeking orders in a schedule attached to draft short minutes of order proposed by the applicant. I will set out in a schedule to these reasons those four matters proposed by applicant.
The orders that I make are:
1.The respondents be restrained from any further reliance on the letter sent by the first respondent to the applicant dated 30 May 2007, or on the second letter sent by the second respondent to the Freehills as solicitors for the applicant on 2 August 2007.
2.The second respondent pay the applicant’s costs of the proceedings to date, including the costs of today.
3.The matter is stood over for any further hearing on the claim for interlocutory relief to a date to be fixed.
4.On the assumption that the application for interlocutory relief is to be pressed, the applicant file and serve on or before 5 October 2007, written submissions no longer than 10 pages, identifying the arguments in support of the orders contained in the schedule to the reasons of Allsop J delivered on 25 September 2007.
5.If the applicant decides not to press the interlocutory application, the parties have leave to file short minutes of order disposing of the proceedings. If the applicant elects to proceed, such election is to be made by filing submissions within time in accordance with order 4 above.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop J. Associate:
Dated: 17 October 2007
Counsel for the Applicant: Mr J Gleeson SC and Mr T Brennan Solicitor for the Applicant: Freehills Counsel for the Respondents: Mr J Stevenson SC and Ms J Gleeson Solicitor for the Respondents: Mr T Galloway of Australian Prudential Regulation Authority Date of Hearing: 25 September 2007 Date of Judgment: 25 September 2007 SCHEDULE
1.The Second Respondent be restrained from disqualifying the Applicant under s 25A of the Insurance Act 1973 (Cth) unless the Applicant is first given at least 60 days notice of any proposal that the Second Respondent considers so disqualifying the Applicant.
2.Any notice referred to in paragraph 1 (New Show Cause Notice) must identify with particularity:
(a) the aspect of impropriety, if any, which it is said any particular transaction exhibited and why it is said that the Applicant knew or should have known of that matter;
(b) any matter relied upon for the proposed exercise of the discretion to disqualify the Applicant; and
(c) whether the whole or any part of Part 1 of the Report of the Inspector appointed by the Second Respondent to inquire into General Reinsurance Australia Limited (Inspector’s Report), is relied on against the Applicant.
3.Any New Show Cause Notice must be accompanied by the following documents:
(a) all documents referred to in the New Show Cause Notice;
(b) all documents relating to the Applicant’s roles and responsibilities within the General & Cologne Re group;
(c) all documents, relating to any one or more of the transactions referred to in the New Show Cause Notice (Transactions), to which the Applicant was a party;
(d) all transcripts of conversations, relating to any one or more of the Transactions, to which the Applicant was a party;
(e) all transcripts of interviews or examinations conducted by the Second Respondent, relating to any one or more of the Transactions, in which the Applicant’s role, or his knowledge of the Transactions, was referred to;
(f) all documents referred to for the purposes of preparing the New Show Cause Notice;
(g) all documents bearing upon the propriety or otherwise of any one or more of the Transactions;
(h) a copy of Part 2 of the Inspector’s Report.
4.Any decision whether or not to disqualify the Applicant (and any internal review of such decision) will be considered and made in each case by a person (delegate) with no prior involvement in investigating or decision-making concerning the conduct of any person relating to the Transactions.
5.The delegate will, prior to taking into account any material other than the New Show Cause Notice, documents provided to the Applicant, any and submission made by the Applicant, notify the Applicant of such material and provide a reasonable opportunity to make submissions in relation to such material.
0
0
0