Masu Financial Management P/L v FICS and Julie Wong (No 2)

[2004] NSWSC 829

Reported Decision: 50 ACSR 554
(2005) 23 ACLC 215

Supreme Court

CITATION:	Masu Financial Management P/L v FICS and Julie Wong (No 2) [2004] NSWSC 829
HEARING DATE(S):	15/06/04, 16/06/04
JUDGMENT DATE:	15 September 2004
JUDGMENT OF:	Shaw J
DECISION:	Accordingly, I propose that an order should be framed in terms which would remit the matter to a differently constituted panel in accordance with the law set out in this judgment. Subject to any further argument, having regard to the non-active role played by the second defendant and the nature of the first defendant, I propose that no order for costs be made in relation to these proceedings, including the argument as to the constitutionality of FICS. The plaintiff must provide short minutes of order within seven days. In the absence of disagreement as to the form of such orders, they can be entered without the need for any further proceedings in court.
CATCHWORDS:	Administrative law - Whether the plaintiff is correct in asserting that FICS is amenable to judicial review or, in the alternative, whether FICS is contractually bound to the plaintiff (Masu) in a way which gives rise to similar duties - Whether FICS bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which used to be called natural justice.
CASES CITED:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 Bromley v South Australia (1990) 55 SASR 309 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Dorf Industries Pty Ltd & Box Emery & Partners (a firm) v The Honourable P B Toose CBE QC (1994) 54 FCR 350; (1994) 127 ALR 654 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451 McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 [115]-[117] at 790-791 Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 Nardell Colliery Pty Ltd v New South Wales Coal Compensation Review Tribunal [2003] NSWSC 462 Pettitt v Dunkley [1971] 1 NSWLR 376 Potts v Miller (1940) 64 CLR 282 Public Service Board (NSW) v Osmond (1985) 159 CLR 656 R v Disciplinary Committee of Jockey Club; Ex parte Aga Khan [1993] 2 All ER 853; [1993] 1 WLR 909 R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] QB 815 State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 Typing Centre of New South Wales v Toose (unreported, 15 December 1988, SCNSW) Westminster City Council v Great Portland Estates plc [1985] AC 661
PARTIES :	Masu Financial Management Pty Ltd (Plaintiff) Financial Industry Complaints Service Ltd (First Defendant) Julie Wong (Second Defendant)
FILE NUMBER(S):	SC 30107 of 2002
COUNSEL:	N Perram (Plaintiff) J Sexton SC (First Defendant) H Burmester QC (Intervenor Cth A-G) J Higgisson (Intervenor Cth A-G)
SOLICITORS:	McLachlan Chilton (Plaintiff) R Giles (First Defendant) T Griffith (Second Defendant) A Buckland (Intervenor Cth A-G)

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Shaw J

15 September 2004

30107 of 2002



Masu Financial Management Pty Ltd (Plaintiff)

v

Financial Industry Complaints Service Ltd (First Defendant)

and
Julie Wong (Second Defendant)
JUDGMENT (No 2)

1 Shaw J: I have published a separate judgment upholding the constitutional validity in relation to the way in which Financial Industry Complaints Services Ltd (FICS), the first defendant in these proceedings, has been constituted.

2 I now proceed to deal with the administrative law questions which have been agitated by the plaintiff before this court, on the assumption that FICS has validly exercised, in a constitutional sense, its powers with respect to the complaint of Ms Julie Wong in relation to the services provided by the plaintiff, a financial advisor.

3 The first question which arises is as to whether the plaintiff is correct in asserting that FICS is amenable to judicial review or, in the alternative, whether FICS is contractually bound to the plaintiff (Masu) in a way which gives rise to similar duties. Putting it another way, is FICS bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which used to be called natural justice?

4 I accept the submissions of the plaintiff that although FICS is a private body, it is empowered to make decisions of a public character. It follows that such decisions are susceptible to judicial review. I should follow the observations of Spigelman CJ in Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 at [7]:

I have considered this issue elsewhere. (See Spigleman, “Foundations of Administrative Law” (1999) 4 The Judicial Review 69 at 72- 29). In my opinion, the common law basis for the duty to accord procedural fairness is reflected in the cases which extend the duty to the exercise of prerogative powers. (See, eg, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409; State of Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121 at 133-139, 147-149, 154-159.) It is also the basis for the extension of the principles of judicial review to private bodies which make decisions of a public character. (See, Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] QB [815].)
and at [297] per Ipp AJA:
Otherwise I agree with the reasons of Mason P as well as those of Spigelman CJ in regard to the jurisdictional and remaining procedural fairness issues.

5 In my view, the preponderance of Australian authority indicates that the English case of R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] QB 815 is applicable in this country, that is to say that companies administering external complaints schemes concerning participants in the finance industry are judicially reviewable. As Hoffman LJ said in relation to structures analogous with FICS in R v Disciplinary Committee of Jockey Club; Ex parte Aga Khan [1993] 2 All ER 853; [1993] 1 WLR 909 at 931 at 931:

What one has here is a privatisation of the business of government itself.

6 Reasoning by analogy, Australian cases indicate the public character of bodies comparable to FICS; this is so in relation to the Advertising Standards Council: Typing Centre of New South Wales v Toose (unreported, 15 December 1998, SCNSW) per Matthews J; Dorf Industries Pty Ltd & Box Emery & Partners (a firm) v The Honourable P B Toose CBE QC (1994) 54 FCR 350, (1994) 127 ALR 654 at 664-666 per Ryan J; McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 [115]-[117] at 790-791 per Campbell J. Thus, it seems to me clear that the Datafin principle applies in New South Wales, that FICS was exercising powers of a public nature, and this is susceptible to judicial review.

7 A number of indicia prompt me to this view, namely:

· the federal government was responsible for appointing a substantial proportion of the members of the board of FICS

· the federal government was involved in the appointment of two-thirds of any panel appointed by FICS to hear a complaint

· the scheme was constituted in compliance with the policy statement issued by the federal government

· that scheme was established under the umbrella of a regulation made by the Australian executive government under statute

· failure to comply with a decision of FICS could result in the federal government cancelling a licence and exposing the licensee to prosecution if it continued to conduct a business.

8 In a fair submission, the first defendant accepts that the effect of the cases to which I have referred is:

that this court may review a decision of FICS on the basis of jurisdictional error, including, in some circumstances, breach of the principles of procedural fairness but submits that no review is available in this or any other court for non-jurisdictional error.

9 Thus it is accepted by the first defendant that, apart from the identified exceptional category, a reviewable error can be discerned in a breach of the rules of procedural fairness or a failure to issue adequate reasons for a substantive decision. The first defendant emphasises that that grant of relief is discretionary, not limited to quashing the decision, but may be fashioned to suit the circumstances of the case including remittance of the matter to FICS to be determined in accordance with the reasons of this court.

10 In addition, I am of the view that there is substance in, the submissions of the plaintiff, and I accept that it was entitled to procedural fairness as a matter of contract between Masu and FICS. The contractual effect arises from the rules, to which I have referred. One of the objects of FICS is:

to create or modify procedures for resolving complaints concerning members to be known as rules, which shall be a contract between a member and a company.

11 The contractual arrangement involves at least the obligation to grant procedural fairness. These contractual rights are enforceable in this court: McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759 [81]-[102] at 779-786 per Campbell J. Lest I be wrong about the capacity of the court to judicially review decisions of FICS, I think that the cautious approach is to couch any remedies which this court might grant in the contractual context of the enforcement of the constitution and rules of FICS. However, I adhere to my view that either approach is correct and leaves appropriate remedies available.

12 I now turn to the substantive grounds upon which the relevant decision of FICS is challenged by the plaintiff.

13 The plaintiff has usefully sought to distil the background to the decisions of FICS in relation to this controversy which I would briefly summarise as follows:

· Masu advised Ms Wong on financial matters in a report of 8 July 1999, which included consideration of a negatively geared investment property, an equities portfolio, the establishment of insurances practices and superannuation.

· The report did not identify any particular property which it would recommend the purchase of.

· The property in question was introduced to Ms Wong by the plaintiff at Unit 6, 8 Louise Street Melbourne, and the transaction was settled on 28 September 1999.

· Ms Wong paid a purchase price for the property somewhat less than the written valuation which had been obtained by the plaintiff, that is about $10,000 less.

· Difficulties were encountered in obtaining an alternative tenant at the point when the rent guaranteed period expired, that is as at April 2000.

· However, a decision to sell the property was abandoned after it was found that the sale would result in a capital loss of approximately $50,000.

14 FICS determined:

There is no doubt that the complaint must be upheld and the member directed to pay to the complainant the $9,863 which it received as a consultancy fee and the amount by which she was out of pocket because of the need for her to travel to Melbourne to find an estate agent to let her apartment for her (which the Panel estimates as $500), plus interest on those amounts. However, because residential property prices in Melbourne have risen appreciably since 1999, it is not certain that she suffered any other loss. That can be ascertained only if the loss or gain is crystallised by the sale of the apartment; that sale must, of course, be on the open market and at arm’s length.

The complaint is upheld. The member is directed to pay to the complainant forthwith:
(a) $10,363; and
(b) interest at the rate of 5% per annum on $9,863 from 1 September 1999 to the date of payment; and
(c) interest in the rate of 5% per annum on $500 from 20 September 2000 to the date of payment.
If the complainant sells the apartment before 31 December 2002 and satisfies he Panel that:
(a) the sale was on the open market and at arm’s length; and
(b) she has made a loss after taking into account interest payments and income from and expenditure on or in connection with the apartment.
the panel will give a further direction to the member to compensate her for that loss. Otherwise, it will not direct the member to pay her any more compensation than is provided for in this decision.

15 I turn then to the substantive errors said to have been made by FICS which are susceptible to judicial review. In my view, there are procedural errors which vitiate the decision of FICS in the present case. First, there was no adequate notice that the FICS panel was concerned to consider the question of disclosure of commission. Ms Wong’s submission did not deal with it. FICS wrote to Masu seeking a written response to Ms Wong’s submission and said:

Generally, the panel makes its determination based on the above written submissions. However, the Chairman of the panel may decide that parties to the complaint should be interviewed by the panel. If this is the case in this complaint or if the panel needs more information from you, I will contact you.

16 Thus there was a legitimate expectation, in my view, on the part of Masu that the panel would only deal with the matters specified in Ms Wong’s complaint and that an opportunity should have been given to Masu to deal with matters not in the complainant’s submissions: see Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629. It is a reasonable submission for the plaintiff to make that Masu was then thereafter faced with a determination on the basis of a case that it did not know it was required to meet. Whether the decision was void or voidable is an interesting academic question but does not need to be decided here.

17 Secondly, there was an express obligation on the panel to provide reasons for the decision (see rule 33 of the FICS rules), although the common law would not have required the exposure of reasons save in the event of some right of appeal: Public Service Board (NSW) v Osmond (1985) 159 CLR 656; compare Pettitt v Dunkley [1971] 1 NSWLR 376. Certainly, once there is an explicit requirement to provide reasons then they must be proper, adequate and intelligible: Westminster City Council v Great Portland Estates plc [1985] AC 661 at 673; Bromley v South Australia (1990) 55 SASR 309 at 311. However, as the plaintiff submits, there was a deficiency in the reasons given by FICS in that there was a lack of an explanation as to why a failure to provide the written disclosure gave a right to compensation; there was an absence of any explanation as to why the measure of loss in such a claim was the difference between the price paid and the final disposal price; and there are some difficulties in understanding whatever reasoning process was exposed in the determination.

18 Whilst I think the submission of the plaintiff in characterising some of the reasons as “incoherent” and the allegation of “grave prejudice” are hyperbolic, nonetheless I think there is substance in the plaintiff’s submission when it says that it does not know “what legal wrong it has committed.” Thus, it can be fairly concluded that the reasons provided are inadequate to meet the express provisions of the rule. Accordingly, the first decision should be set aside.

19 In relation to the second decision of 3 October 2002, the panel was apparently refusing to receive any submission apart from a submission that the requirement of a written disclosure had been complied with and declined to entertain submissions as to which particular rule was applicable by reason of the proposal to purchase the property in question, having been oral in its nature. Thus, the panel did not deal or did not sufficiently deal with the argument as to the applicability of rule 107, and no reasons were given for that failure.

20 In my view, the same deficiencies are apparent if the two decisions should be properly be regarded as compendious, because of the failure to take into account relevant considerations and the taking into account of an irrelevant consideration. Thus, for example, there is a failure to refer to the fact (as asserted) that an oral disclosure had been given and a failure to refer to a relevant legal principle to the effect that, at least prima facie, the measure of loss is the difference between the value paid for an asset and its value at the time of allotment or disposition: Potts v Miller (1940) 64 CLR 282. It would be excessive and pedantic to require an administrative tribunal of this kind to refer expressly to a particular case in the High Court decided in 1940, but nonetheless it is reasonable to require that the general concept should be adverted to as at least relevant to the adjudication of the matter.

21 It is unnecessary to decide, because of the findings I have already made, but I do not think there is great strength in the plaintiff’s argument that the decisions of FICS were so unreasonable as to not have been available or open to the tribunal, in the character of being in a Wednesbury unreasonable: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, compare Nardell Colliery Pty Ltd v New South Wales Coal Compensation Review Tribunal [2003] NSWSC 462 at [119]-[120] per Sperling J. Nor do I think there is much substance in the criticism that the tribunal was prohibited by rule 12 from proceeding to deal with the matter at all unless and until it had determined the monetary value of the claim so as to ensure that the claim was within the relevant limitation.

22 In these circumstances, I think the plaintiff has a sufficient number of valid criticisms of the tribunal’s decision and its reasoning process to warrant a declaration that both decisions are of no force or effect. In Jonsson v Arkway Pty Ltd (2003) 58 NSWLR 451 at [16], I attempted to encapsulate the Australian law as to the dichotomy between jurisdictional error and error of law within jurisdiction. I adhere to these views.

23 I note the submission of the first defendant that to the extent that there are infelicities or errors that have been made by FICS they are of a relatively modest nature and do not go to the heart of the determination of the controversy. However, I take a contrary view. I think that the matters that I have upheld in the submissions of the plaintiff constitute matters of substance and not merely of form, and that thus a declaration to the effect that the two decisions should be set aside is appropriate.

24 Then a question arises, and one that has been hotly debated, as to what the form of the remedy ought to be. The plaintiff rightly concedes that in the ordinary course of events, if it were successful it would be appropriate to remit the matter to FICS for a determination in according to law. However, it is said that the active role played in this court by FICS in defending its decisions generates a reasonable apprehension of bias. It is furthermore said that: “any costs order creates a pecuniary conflict.” And so it is submitted that in the circumstances, the appropriate order is to quash the decisions without any order for redetermination.

25 On the other hand the first defendant says, assuming contrary to its primary submissions, that there has been a breach of the rules of procedural fairness or a failure to give adequate reasons, a discretionary decision should be given which would be other than an order quashing a decision in proceedings simpliciter. Putting aside the constitutional question which I have decided, the first defendant says that a finding of reviewable error should lead to remittance to a panel for determination in accordance with the reasons of the court. Insofar as the plaintiff is successful on the basis of inadequacy of reasons, it seems to me a formidable point that the matter should simply be remitted so that procedural fairness could be accorded and that further and more detailed reasons could be provided.

26 I do not apprehend that any actual bias is alleged against FICS or the panel which determined this matter. Rather, what is said is that there could be a reasonable apprehension of bias.

27 In my view, that latter argument can be accommodated by an order directing that the matter be remitted to a differently constituted panel which can then apply an independent collective mind to the complaints that Ms Wong has made. It would be an unusual course to finally determine the matter when defects of an administrative law character have been identified, particularly those going to a deficiency in the reasoning process.

28 Accordingly, I propose that an order should be framed in terms which would remit the matter to a differently constituted panel in accordance with the law set out in this judgment.

29 Subject to any further argument, having regard to the non-active role played by the second defendant and the nature of the first defendant, I propose that no order for costs be made in relation to these proceedings, including the argument as to the constitutionality of FICS.

30 The plaintiff must provide short minutes of order within seven days. In the absence of disagreement as to the form of such orders, they can be entered without the need for any further proceedings in court.

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Last Modified: 09/29/2004