FEDERAL COURT OF AUSTRALIA
Migration Agents Registration Authority v Frugtniet [2018] FCAFC 5
Appeal from: Frugtniet v Migration Agents Registration Authority [2017] FCA 537 File number: VID 704 of 2017 Judges: SIOPIS, ROBERTSON AND BROMWICH JJ Date of judgment: 30 January 2018 Catchwords: ADMINISTRATIVE LAW – appeal against orders made by primary judge setting aside Administrative Appeals Tribunal (AAT) decision which affirmed appellant’s cancellation of respondent’s registration as a migration agent – whether penalty privilege was available to respondent in his AAT proceedings
Held: if penalty privilege is to apply in a non-curial setting, it must have a basis in the language of the relevant statute – penalty privilege was not available to the respondent in his AAT proceedings – appeal allowed and orders of the primary judge set aside – leave refused to the respondent to rely on his further amended notice of contention
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33(1)(a), 37, 61(2), 62(4)
Bankruptcy Act 1966 (Cth) s 81
Competition and Consumer Act 2010 (Cth) s 155, (1), (7)
Migration Act 1958 (Cth) Part 3, ss 308, 309, 310
Royal Commissions Act 1902 (Cth) s 14(2)
Trade Practices Act 1974 (Cth) s 155, (1), (2), (7)
Commissions of Inquiry Act of 1950 (Qld)
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 105
Cases cited: Australian Securities and Investments Commission v Mining Projects Group Ltd [2007] FCA 1620; 164 FCR 32
Australian Securities and Investments Commission v Plymin [2002] VSC 56; 4 VR 168
Bropho v Western Australia [1990] HCA 24; 171 CLR 1
CSR Limited v Eddy [2005] HCA 64; 226 CLR 1
Coco v The Queen [1994] HCA 15; 179 CLR 427
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; 256 CLR 375
Cornwell v The Queen [2007] HCA 12; 231 CLR 260
Coshott v Burke [2017] FCAFC 230
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209
MH6 v Mental Health Review Board [2009] VSCA 184; 25 VR 382
Police Service Board v Morris [1985] HCA 9; 156 CLR 397
Potter v Minahan [1908] HCA 63; 7 CLR 277
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328
Re Bolton; Ex parte Beane [1987] HCA 12; 162 CLR 514
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129
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- Case
- [2018] FCAFC 5
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the penalty privilege could apply in a non-curial setting such as the AAT proceedings. The court needed to determine if the statutory language supported the application of penalty privilege outside of a court. The court also had to consider if the interests of justice required granting the respondent leave to rely on his further amended notice of contention.
In its judgment, the court held that the penalty privilege must have a basis in the language of the relevant statute to apply in a non-curial setting. The court found that the penalty privilege was not available to the respondent in his AAT proceedings, as there was no statutory basis for its application in that context. The court further determined that the respondent should not be granted leave to rely on his further amended notice of contention, as the points raised required a trial-like analysis and could have been raised before the AAT or the primary judge. Consequently, the appeal was allowed, the orders of the primary judge were set aside, and the respondent's appeal from the AAT's decision was dismissed with costs.
The final orders of the court included the refusal of leave to the appellant to rely on the proposed ground 3 of its notice of appeal, the refusal of leave to the respondent to rely on his further amended notice of contention, the allowance of the appeal with costs, the setting aside of the primary judge's orders, and the dismissal of the respondent's appeal from the AAT's decision with costs. These orders reflect the court's conclusion that the penalty privilege was not applicable in the AAT proceedings and that the interests of justice did not require the respondent to be granted leave to rely on his further amended notice of contention.
Orders
Orders of the court
1. Leave be refused to the appellant to rely on proposed ground 3 of its notice of appeal.
2. Leave be refused to the respondent to rely on his further amended notice of contention.
3. The appeal be allowed with costs.
4. The orders of the primary judge be set aside.
5. The respondent’s appeal from the decision of the Administrative Appeals Tribunal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The later decisions of the High Court of Daniels and Rich, which are discussed below, go further in casting doubt on the correctness of the implicit assumption in Morris that penalty privilege is akin to the privilege against self-incrimination, and is capable of applying to a non-curial proceeding unless statutory construction leads to a different conclusion. While the view taken in Pyneboard has been accepted to the extent that penalty privilege, like the privilege against self-incrimination, was considered to be a common law right, both Daniels and Rich contain clear indications, albeit obiter, that the scope for the application of the two privileges, and their essential nature, is not the same. Daniels Corporation International Pty Ltd v ACCC Almost 18 years after Morris, and almost 20 years after Pyneboard and Sorby, the High Court in Daniels revisited the operation of s 155 of the TPA, but in relation to the operation of legal professional privilege to excuse compliance with a notice issued under that provision. Critical to that decision was the status of the privilege as a fundamental common law right, subject to the principle that statutory provisions were not to be construed as abrogating such a right in the absence of clear words or necessary implication to that effect: see Daniels at [9]-[11]. What is required is a strong or clear implication of abrogation if clear words are absent. The joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Daniels considered the conclusions reached in Pyneboard, ultimately finding that the approach previously taken should not be applied to questions of legal professional privilege claimed in respect of a notice under s 155 of the TPA (now the CCA). That is the ratio decidendi of the decision. However, in reaching that conclusion, their Honours said at [15] that the double negative statement in Pyneboard – “not prepared to hold that the privilege is inherently incapable of application in non-judicial proceedings” – did not amount to a holding that penalty privilege is available in non-judicial proceedings. The conclusion that their Honours reached is independently available from a plain reading of the words used in Pyneboard in their context. That interpretation supports the conclusion reached below in our reasons that the application of penalty privilege to non-curial proceedings must be arrived at by a process of statutory construction that results in the privilege applying in a particular context, not a process of statutory exclusion or abrogation of a privilege that is otherwise present. The lack of soundness in the approach taken in Pyneboard, as opposed to the conclusion reached, is reinforced by consideration of the basis upon which the reasoning in Pyneboard was rejected in Daniels. The joint judgment in Daniels makes it clear that fundamental common law rights are not to be excluded by mere implication, which gives effect to the rule in Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304 that “[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness”. Their Honours considered that Brennan J in Pyneboard had failed to give effect to that rule by allowing penalty privilege to be excluded by mere implication: see Daniels at [11], [16] and [25].