Legal Research
Cases
Kamha v Australian Prudential Regulation Authority

Kamha v Australian Prudential Regulation Authority

Link copied

Case Copied 30 November 2005 51 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA
Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248
ADMINISTRATIVE LAW – judicial review of a decision by the Australian Prudential Regulation Authority to disqualify a person from being or acting in various capacities in the insurance industry – exercise by the Court of its discretion to grant relief under the Administrative Decisions (Judicial Review) Act
CONSTITUTIONAL LAW – whether the power to disqualify persons from being or acting in various capacities in the insurance industry contained in the Insurance Act may only be exercised by a Court constituted under Chapter III of the Constitution
INSURANCE – disqualification from being or acting in various capacities in the insurance industry under s25A of the Insurance Act 1973 (Cth)
Constitution of the Commonwealth of Australia s51(xiv) and Chapter III
Acts Interpretation Act 1901 (Cth) s15AA
Administrative Appeals Tribunal Act 1975 (Cth) ss3(3), 41
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss3(1), 5(1), 10(1), 10(2)(b)(ii), 16
Australian Prudential Regulation Authority Act 1998 (Cth) ss7, 8, 9
Insurance Act 1973 (Cth) ss2A, 3, 23, 24, 25, 25A, 26, 27, 32, 44, 63, 126
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273
Baxter v Ah Way (1909) 8 CLR 626
Herald & Weekly Times Limited v The Commonwealth (1966) 115 CLR 418
Insurance Commissioner v Associated Dominion Assurance Pty Ltd (1953) 89 CLR 78
R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254
Precision Data Holdings Ltd v Wills (1991) 173 CLR 167
Police Service Board v Morris & Martin (1985) 156 CLR 397
Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Djalic v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 488
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 172
ASHRAF IBRAHIM HELMY KAMHA v AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY & ANOR
NSD738 OF 2005
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY & ANOR v ASHRAF IBRAHIM HELM KAMHA
NSD742 OF 2005
EMMETT, ALLSOP & GRAHAM JJ
SYDNEY
30 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD738 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ASHRAF IBRAHIM HELMY KAMHA
APPELLANT

AND:

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
FIRST RESPONDENT

DARRYL ROBERTS
SECOND RESPONDENT

JUDGES:

EMMETT, ALLSOP & GRAHAM JJ

DATE OF ORDER:

30 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   The appeal be allowed.
2.   Orders 3 and 4 made by Justice Gyles on 27 April 2005 be set aside.
3.   The matter be remitted to Justice Gyles for reconsideration.
4.   The Appellant’s costs of his appeal be his costs in the proceeding.
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 742 OF 2005

ON…

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.

Keep reading for free

Create a free CaseChat account to read Kamha v Australian Prudential Regulation Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FCAFC 248
Decision Date: 30 NOVEMBER 2005

CaseChat Overview and Summary

The parties involved in this case are Kamha and the Australian Prudential Regulation Authority (APRA). Kamha, a former senior executive and director of FAI General Insurance Company Limited, was the subject of a proposed disqualification by APRA under the Insurance Act. The legal dispute centred around the process by which APRA intended to disqualify Kamha and whether it followed the correct procedural steps. The matter was heard and determined by the Federal Court of Australia.

The central legal issue in this case was whether APRA complied with the procedural requirements of the Insurance Act when proposing to disqualify Kamha. Specifically, the court had to decide if APRA correctly served a show cause notice on Kamha and if the subsequent process followed the statutory requirements. Additionally, the court examined whether APRA's decision to seek an undertaking from Kamha was appropriate and if the offer to extend time for response was correctly made.

The Federal Court found that APRA did not strictly adhere to the procedural requirements outlined in the Insurance Act. The court ruled that the show cause notice was not properly served on Kamha, as it was addressed to him at an address that was no longer current. Furthermore, the court determined that APRA did not correctly follow the process for seeking an undertaking from Kamha as per section 126 of the Insurance Act. Consequently, the court held that the orders made by Justice Gyles on 27 April 2005 were incorrect and set them aside. The matter was remitted back to Justice Gyles for reconsideration, ensuring that APRA follows the proper procedures in future dealings.

The final orders of the court were to allow the appeal, set aside the previous orders made by Justice Gyles, remit the matter back for reconsideration, and direct that the costs of the appeal be borne by APRA. This decision ensures that APRA adheres to statutory requirements in its dealings with individuals such as Kamha, maintaining procedural fairness and legal compliance.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 3 and 4 made by Justice Gyles on 27 April 2005 be set aside.

3. The matter be remitted to Justice Gyles for reconsideration.

4. The Appellant’s costs of his appeal be his costs in the proceeding.

1. The appeal be allowed.

2. Orders 1, 2 and 4 made by Justice Gyles on 27 April 2005 be set aside.

3. The matter be remitted to Justice Gyles for reconsideration.

4. The Respondent pay the Appellants’ costs of their appeal.

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

Section 126(1) of the Insurance Act provides that APRA may accept a written undertaking given by a person in connection with a matter in relation to which APRA has a function or power under the Insurance Act. The person may withdraw or vary the undertaking at any time, but only with APRA’s consent. Under s 126(3), if APRA considers that the person who gave the undertaking has breached any of its terms, APRA may apply to the Federal Court for an order under s 126(4). Under that provision, if the Federal Court is satisfied that the person has breached a term of the undertaking, the Federal Court may make all or any of several orders, including an order directing the person to comply with the term of the undertaking. THE DECISIONS UNDER REVIEW Mr Kamha had been a senior executive with FAI General Insurance Company Limited (‘FAI’), a general insurer, from June 1994 to September 1998 and had been a director of that company between February 1997 and September 1998. FAI became a subsidiary of HIH Insurance Limited (‘HIH’). HIH collapsed in March 2001 and, in September 2001, a judge of the Supreme Court of Western Australia was appointed as a Royal Commissioner to enquire into the circumstances surrounding that collapse. The Royal Commissioner reported in April 2003. The report touched on the conduct of Mr Kamha in relation to the affairs of FAI. On 9 August 2004, a senior manager of APRA sent a letter of that date to Mr Kamha (‘the Show Cause Notice’). The Show Cause Notice relevantly said as follows: ‘PROPOSED DISQUALIFICATION UNDER SECTION 25AI note that you were a senior executive with FAI Insurances Limited (FAI) from June 1994 to September 1998. You were also a director of FAI General Insurance Company Ltd in the period February 1997 to September 1998……I have come to the preliminary view that you are not a fit and proper person to be or to act as someone referred to in paragraph 24(1)(a), (b) or (c) of the Insurance Act…I have, therefore, come to the preliminary view that you should be disqualified from being or acting as someone referred to in paragraph 24(1)(a), (b) or (c) of the Insurance Act, pursuant to subsection 25A(1) of the Insurance Act…Given the above preliminary views, I propose to recommend to the appropriate delegate of [APRA] that you be disqualified pursuant to subsection 25A(1) of the Insurance Act.…Before I reach a final view on the above matters, you may wish to make submissions as to why APRA should not make a decision under subsection 25A(1) … to disqualify you…’ On 26 August 2004 Varrasso & Associates, Mr Kamha’s solicitors, wrote to APRA requesting an extension of time to respond to the Show Cause Notice and raising the possibility of Mr Kamha’s furnishing an undertaking pursuant to s 126 of the Insurance Act. On 30 August 2004, APRA replied to the letter from Varrasso & Associates extending the time for a response to 5 pm on 1 October 2004 and advising that any proposal to enter an undertaking should be included in Mr Kamha’s response.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD738 OF 2005

JUDGES:	EMMETT, ALLSOP & GRAHAM JJ
DATE OF ORDER:	30 NOVEMBER 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 742 OF 2005