Imaging Applications Pty Ltd & Anor v Australian Securities &Investments Commission M127/1999

[2000] HCATrans 774

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M127 of 1999

B e t w e e n -

IMAGING APPLICATIONS PTY LTD and MICHAEL IAN PETCH

Applicants

and

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 2.32 PM

Copyright in the High Court of Australia

MR M.I. PETCH:   If it please the Court, I am the second applicant and I appear for the applicant.  (instructed by Michael Petch)

McHUGH J:   Mr Petch, please come to the microphone, it is much easier to record.

MR PETCH:   My apologies.  I will repeat that if your Honours wish.

McHUGH J:   That is all right.  Yes, you might just repeat it just in case.

MR PETCH:   I am happy to do so.  I am the second applicant, and to that extent, what I heard Chief Justice call a LIP, a litigant in person, and I am also a lawyer who signed the roll quite some years ago and so I am appearing in that hybrid capacity for the applicants, your Honour.

MR K.H. BELL:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Belinda Johnson, Solicitor, Australian Securities & Investments Commission)

McHUGH J:   Yes, Mr Petch.

MR PETCH:   Your Honour, I read through the material in the applicant’s application, the answer of ASIC and the reply which I prepared on behalf of the applicants, and I vowed to come in here and not make the mistake of trying to repeat it because I do not know that, whatever the outcome is, I can put that case any better than what is there in writing and, assuming that your Honours are familiar with the material, I could almost take questions, as it were.

McHUGH J:   Can I ask you this question:  reading the transcript, it appeared to me that you gave up, in effect, in the Full Court of the Federal Court once you realised that it was a 102 point.  What do you say about that?

MR PETCH:   Well, what I say about that is what I have said in the reply and I have been handsomely candid in that and said that under the fierce questioning of Justice Merkel, I made a maladmission I wish I had not have and that was it.  The argument, as I understand, put against us was that if there was an assertion that the decision maker was not adequately or properly empowered, then, really, that was the end of the matter.  One was locked into this rather circuitous argument that there was no power and, therefore, that was the end of the matter, no power is no power is no power.  The difficulty that I had with that was that it resembled closely, it seemed to me, the arguments that this Court has transcended in the Waltons Stores and Verwayen Cases that even if there was no power, the representation that there was is sufficient to create, given the other requisite elements, an estoppel.

McHUGH J: But is not the problem that there can be, ordinarily, anyway, or in most cases, no estoppel against a statute and, in addition, this is a jurisdictional point? The reviewing court’s power is dependent upon there being a decision and it is said that there is no decision as a matter of objective fact. So, it is not merely a matter as between parties, but it is a question of the jurisdictional basis of the court to review it. Let me give you an illustration. For instance, our jurisdiction under the Constitution depends upon whether there is a judgment, decree, order or so on. Now, one party by a representation could not give us jurisdiction by holding out that there was a judgment if that was not the case, and, at the moment, that analogy seems to me to apply to your case. Have you any submission to make about that?

MR PETCH:   Yes, I think that the case of Kurtovic, if I understand it correctly, drew this distinction and said that there may be a circumstance where the decision maker, let us call it the authority ‑ ‑ ‑

McHUGH J:   That is No 6 on your list, I think, yes.

MR PETCH:   Yes, it is.  I think there is a comment by his Honour Justice Gummow in the Federal Court, as he then was, that the approach persisted with by Master of the Rolls Denning had not found favour in Australia.

McHUGH J:   That is so.

MR PETCH:   But there may well be a future case where it was to be looked at and, with fervour, I say this is that case. 

McHUGH J:   But, see, the point of distinction, perhaps, Mr Petch, is that whereas that concerned Kurtovic and the Minister in that case, here there is a third party involved, namely, the jurisdiction of the reviewing authority whose jurisdiction depends upon a decision.

MR PETCH:   Yes.

McHUGH J:   Your argument, I think, goes beyond anything so far suggested in the authorities, that by their acts and deeds or failing to act, parties can confer jurisdiction on a tribunal or court that it does not have.

MR PETCH:   I think that it flanks that somewhat because what it says is it asks the court, in the quest for its jurisdiction, to look at the decision which has been said to be a nullity, that is, ultra vires, I think, might be the right expression, and if the court finds that it is not, then, ergo, it has jurisdiction because there has been a decision.  There is a circuitry in here, there is a Gordian knot, and it seems to me that the Federal Court and Justice Goldberg, at first instance, were not able to cut through it, and I think that we are right at that point now, I think we are at the nub of it right now.

If the notion of estoppel can most cautiously apply to the correct decision maker, that is, the correct authority, to a person who is senior, and then, unusually, that authority seeks to resile from it and that is challenged, surely the court can determine whether that decision is null and void or not.  If it determines that it is null and void, according to the principles of estoppel or otherwise ‑ ‑ ‑

McHUGH J:   But what has been held here against you, is it not, is that there is no decision and, therefore, the case falls at the threshold?  Ordinarily, estoppels operate as between parties.  Equitable estoppels operate on the conscience of parties.  Common law estoppels operate as between parties but are, in effect, universal statements from which a party cannot resile.  But once you introduce the third party into it, a public institution such as a court or a tribunal, you seem to have gone outside the doctrinal basis of estoppel.

MR PETCH:   Your Honours, if the estoppel question is decided first and the determination as to whether or not it applies is that it does apply, then my argument is there has been a decision and the court has jurisdiction to judicially review it. 

McHUGH J:   But you have an individual who, at the moment, on the evidence, had no authority to do what he did.  Now, you say because he was an officer of ASIC and because you were directed to apply to ASIC and he took it on, ASIC are estopped from denying that and it is possible in some private litigation as between you and ASIC that might be so.  But does it necessarily follow that you two parties can give the court a jurisdiction that it has not got?  That is the problem I see in your case.  See, you might well have rights against ASIC in one way or another, but it is a question of the court’s jurisdiction, as it seems to me, not a matter as between parties.

MR PETCH:   If the court cannot determine the issue of whether there is an estoppel, who can?

McHUGH J:   But that may not be the question.  The question may be, can a court be given jurisdiction by reason of the representation of one of the parties to the other which in equity or at common law the representer  cannot withdraw?  It seems to me you would be going a long, long way and nothing in the authorities supports the proposition that a court could get jurisdiction in that case.  It would have some extraordinary conclusions.  It might give a district court or a county court jurisdiction in matters that they have no jurisdiction in.  Supposing their jurisdiction depended upon geography, on boundaries, physical boundaries, or on sums of money, can they be given jurisdiction to make orders by reason of the private representations of parties?

MR PETCH:   Well, I would think not, unless there was enabling legislation such ‑ ‑ ‑

McHUGH J:   Exactly, but how do you differentiate your case from this particular case?

MR PETCH:   Because there is a right to have judicial review.

McHUGH J:   But of a decision, and if there is no decision then you are ‑ ‑ ‑

MR PETCH:   Yes.

McHUGH J:   But your rights are protected.  I know you want to run this application because you say, well, this decision “is plainly erroneous”, on your argument, and you would like advice on it.  But you have your rights to have the other decision reviewed and it is very worrying to any judge, and certainly worrying to me, anyway, that you are getting involved in this litigation.  You are in the High Court of Australia now and costs are being sought against you.

MR PETCH:   Yes, well, it is an application under an amending section of the Insurance Contracts Act, section 55A, in which the applicants as plaintiffs in the Supreme Court action are seeking a specific form of insurance assistance ‑ ‑ ‑

McHUGH J:   Yes.

MR PETCH:   ‑ ‑ ‑ in what Justice Hedigan described in our case as a world denuded of legal aid and, indeed, it is.

McHUGH J:   Master Evans found that you have an arguable case and it may be that you will be able to get a review of this decision.  Just refresh my recollection, what is the ‑ the second decision maker, has he made a decision?  Did he actually make a decision?  He did, did he not?

MR PETCH:   Yes.  Yes, he did, your Honour.

McHUGH J:   Yes.

MR PETCH:   After Justice Goldberg sat at first instance, round about 22 or 23 June 1999, when Master Evans had decided, but two days after Justice Hedigan gave his decision on something important, after that, a Mr Khoury, the Director of Infrastructure of ASIC, wrote to me saying “I have indubitable authority and would you like me to review the application again?” My attitude to that was, I have a decision, I have a nonsensical reason and that is the basis I would like to fight on, and so I simply did not reply and in vacuo, of his own volition, he made the decision and he gave us his reason for not providing assistance under section 55A, that it was inappropriate. So, there is that cryptic reason.

McHUGH J:   Yes.

MR PETCH:   That is probably a very long answer to a short question.

McHUGH J:   No.  Yes.  So, are you in time to challenge Mr Khoury’s decision?

MR PETCH:   Way, way out of time.

McHUGH J:   Yes.

MR PETCH:   Way out of time.  But putting that aside and knowing that I have a limited amount of time and the Court’s burden is heavy, I am enough of a realist to see that I think I am not making much headway on the estoppel argument.

McHUGH J:   That was the term that you used to Justice Merkel, if I remember rightly, you said you were a realist.

MR PETCH:   I am not that much of a realist, or I think I would have gone to Daintree Rainforest years ago.  But this Supreme Court action started in 1990 in the commercial list before his Honour Justice Hayne cut a swathe through it the year after, I recall, so it goes back a bit and may I move to another argument?

McHUGH J:   Yes, certainly.

MR PETCH:   Your Honours, we have the right authority and we have a senior officer who has made a decision and we have an ability in that authority without doubt to – I will use the word in its loose sense – ratify a defect in the ambit of the decision.

McHUGH J:   Who are you talking about as the ratifier?

MR PETCH:   I am talking about, I suppose, the Commissioner himself or whatever is the ultimate ‑ ‑ ‑

McHUGH J:   That is ASIC, is it?

MR PETCH:   Yes, that is ASIC, I think, yes.

McHUGH J:   But is that not part of the problem?  Thinking about this case through the week, one of the problems, it seemed to me, about your argument was that ASIC itself has no power to make representations to found an estoppel in respect of this sort of matter.  Do you follow the point?  It is a creature of statute itself and it can only delegate jurisdiction in certain respects.

Now, in the end, you have to say it is ASIC that is responsible for this.  You cannot pull yourself up by the bootstraps and say, Grayson ‑ the representation itself.  You really got to sheet it home to ASIC as being responsible, either by its system or somehow or other assigning the matter to him.  But can ASIC itself, having regard to its statute, by its representations authorise its officers to do something which they cannot do and which it cannot do?  I mean, supposing the statute said they can only delegate to somebody experienced in the insurance field.  Could they delegate to somebody else and then be held to that by reason of a representation?

MR PETCH:   I hope you do not think I am going to duck that.

McHUGH J:   No.

MR PETCH:   But I really think it is a bit hypothetical.  Justice Weinberg raised the spectre of the cleaner who comes along and makes the decision.  But, with all respect, we are dealing with a very senior officer here.

McHUGH J:   Yes, you have a man that is here and obviously makes decisions of a similar nature.

MR PETCH:   Under that very Act.

McHUGH J:   Yes.

MR PETCH:   Yes.

McHUGH J:   But, in the end, he himself cannot pull your case up from his bootstraps.  You have to be able to sheet it home to ASIC and, as I understand your argument, it is because ASIC accepts your application and

then directs it to him that ASIC has to be responsible in that way for his representation to you.  Is that the way you put it or ‑ ‑ ‑

MR PETCH:   Yes, but in the reply to the answer I did say that it was rather a matter, I felt, of semantics on the part of ASIC to say this is a Grayson representation and it is a Grayson decision.  He is there on ASIC letterhead.  All the indicia of ASIC is representing that this person has the power to make the decision.  Your Honour, I feel we are coming back on the estoppel point.

McHUGH J:   I think we are.

MR PETCH:   Yes.

McHUGH J:   I think you cannot get away from it on your case.

MR PETCH:   Well, could we get away from it to this extent ‑ ‑ ‑

McHUGH J:   Yes certainly.

MR PETCH:   ‑ ‑ ‑ that it lies within the power of the delegator – let us assume it is the Commissioner himself – to say, “I gave you a tram ticket to St Kilda Junction. I meant to give you one to Elsternwick. You have gone and made a decision on the basis you were catching the tram to Elsternwick. That is okay. I will give you an extra ticket. Now, we can fix it up”. Now, that would be a very easy thing to do if it came from the Commissioner and, of course, if they wanted this matter to be determined on the merits, they could well say, “Let us, ex post facto ratify that. Let us treat it as being a ticket to Elsternwick which embraces section 55A and let us have it out on the merits”.

I think there is authority for the proposition that where you have the right decision maker – you know, we not in Customs.  We have the right regulatory authority.  It is possible, indeed, there is a duty to regularise these things where through inadvertence ‑ ‑ ‑

McHUGH J:   I know you rely on the presumption of regularity and ‑ ‑ ‑

MR PETCH:   Yes.

McHUGH J:   But, Mr Petch, I see your time is up.

MR PETCH:   It is.

McHUGH J:   Thank you very much.  Thank you, Mr Petch.  We do not need to hear you, Mr Bell.

The Court is of the view that the Full Court was right to hold that there was no decision made within the meaning of section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). In those circumstances, the application must be dismissed.

MR BELL:   We do ask for costs, your Honour.

McHUGH J:   Do you press that?

MR BELL:   We do not press it, your Honour.

McHUGH J:   The application will be dismissed.  There will be no order as to costs.

The Court will now adjourn to reconstitute.

AT 2.55 PM THE MATTER WAS CONCLUDED