Poidevin and Australian Securities and Investments Commission

[2020] AATA 782

Poidevin and Australian Securities and Investments Commission [2020] AATA 782 (9 April 2020)

Division:TAXATION AND COMMERCIAL DIVISION

File Number:          2017/7111

Re:Simon Poidevin

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

File Number:          2017/7531

Re:Damien Rodr

APPLICANT

AndAustralian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal:The Hon. Justice D G Thomas, President
Deputy President J Redfern

Date:9 April 2020

Place:Sydney

The Tribunal ORDERS:

1.pursuant to section 41(3) of the AAT Act, that the stay order made in matter 2017/7111 on 7 February 2018 is revoked forthwith;

2.pursuant to section 35 of the AAT Act, that the non-publication order in paragraph (1) of the Tribunal’s order made on 20 December 2019 in matters 2017/7111 and 2017/7531 is revoked;

3.in the event that the applicants seek judicial review of this decision, Order 2 is stayed pending order of the Federal Court of Australia; and

4.subject to Order 3, Order 2 is stayed until the earlier of:

a.    the 28th day after the date of this decision; or

b.    the day upon which the applicants notify the Tribunal that they do not intend to seek judicial review of this decision.

.............................[SGD]..............................................................

The Hon. Justice D G Thomas, President

CATCHWORDS

PRACTICE AND PROCEDURE – withdrawal of applications – where effect of withdrawal is that the applications for review are deemed to have been dismissed – operative effect of s 42A(1A) and (1B) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether effect of deemed dismissal in s 42A(1B) retrospective or prospective in nature – effect of deemed dismissal prospective in nature.

PRACTICE AND PROCEDURE – Confidentiality orders – ancillary power of the Tribunal to make, vary and revoke confidentiality orders – whether Tribunal has power to revoke confidentiality orders in withdrawn applications – Tribunal has power to revoke – confidentiality order revoked.

LEGISLATION

Acts Interpretation Act 1901 (Cth); s 33(3)

Administrative Appeals Tribunal Act 1975 (Cth); ss 2A(d); 25(4A); 33(1), (1A), (2A); 35; 41(1), (2) and (3); 42A(1A), (1B) and (8); 43(1), (2), (2B) (3), (4) and (5); 66B;

Corporations Act 2001 (Cth); ss 1041A

Legislation Act 2003 (Cth); s 4

CASES

ACT Department of Justice and Community Services and Comcare and Anor [2009] AATA 579
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185
Confidential and Commissioner of Taxation [2014] AATA 952
Lower v Comcare [2002] FCA 1394
Poidevin and Australian Securities and Investment Commission [2018] AATA 124
Re Le and Secretary, Department of Education, Science and Trading [2006] AATA 208
Re Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 260
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Uniden Australia v Customs (1997) 74 FCR 190

Secondary Materials

Administrative Appeals Tribunal, Publication of Decisions Policy

REASONS FOR DECISION

The Hon. Justice D G Thomas, President
Deputy President J Redfern

9 April 2020

INTRODUCTION

1. The issue before the Administrative Appeals Tribunal (‘the Tribunal’) is a question of law arising under the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).

   
   

   It concerns consideration of the operation and effect of ss 42A(1A) and (1B) of the AAT Act. The question that has been posed is whether the Tribunal has power to make or revoke ancillary orders (such as a confidentiality order) after an application is withdrawn.

2. We have decided that the Tribunal has power to revoke the confidentiality order made on 20 December 2019 and that the order should be revoked. We also revoke the stay order made by the Tribunal on 7 February 2018 with immediate effect.

   BACKGROUND

3. These proceedings concern two applications for review. On 29 November 2017,

   
   

   a delegate for Australian Securities and Investments Commission (‘ASIC’) found Mr Rodr and Mr Poidevin had contravened a financial services law and banned them from providing financial services for a period of four and five years respectively. In the case of Mr Rodr, the delegate also found he was likely to contravene a financial services law in the future. On 30 November 2017, Mr Poidevin applied to the Tribunal for review of that decision and sought a stay and confidentiality order pending the outcome of the substantive review application. The Tribunal declined to make a confidentiality order under s 35 of the AAT Act but granted a conditional stay of the banning order.[1] Mr Rodr also applied to the Tribunal for review of the delegate’s decision. He did not seek a stay or confidentiality orders.

   [1] Poidevin and Australian Securities and Investment Commission [2018] AATA 124.

4. An issue for determination in both reviews was whether the power to ban the applicants was enlivened. This turned on the question of whether the applicants had contravened a financial services law. This was a critical threshold issue that required determination in the conduct of the reviews. If the contraventions alleged were not established and, in the case of Mr Rodr, if the Tribunal was not satisfied that he was likely to contravene a financial services law, there would be no power to make a banning order. The reviews would have been determined in the applicants’ favour. If contraventions were established and the Tribunal was satisfied there was power to ban the applicants from providing financial services, the Tribunal would then proceed to consider whether a banning order should be made and, if so, for how long. These were the issues that fell to be determined by the Tribunal on the question of whether it would affirm, set aside and substitute a decision or vary the decision under review.

5. The contraventions alleged by ASIC were the market manipulation of shares listed on the Australian Securities Exchange by the applicants over a nine day period in July 2015.[2] Because this threshold issue involved common factual and legal issues, the Tribunal made directions that the question of whether there had been contraventions of a financial services law by the applicants should be heard concurrently and should be listed for hearing as a separate issue. Directions were made about the filing and service of evidence and submissions on the threshold issue and the hearing proceeded in June and July 2018. Subject to the outcome of the threshold issue, it was contemplated that the Tribunal would then consider the banning order and, in that context, make directions as to the disposition of that aspect.

   [2] Corporations Act 2001 (Cth), s 1041A (‘Corporations Act’).

6. On 20 December 2019, the Tribunal published to the parties its findings about whether there had been contraventions of the market manipulation provisions and its reasons for those findings. The decision on the threshold issue was referred to as the

   
   

   “preliminary decision”. An order was made that the findings and reasons were to be confidential until further order. The Tribunal also notified the parties of its intention to list both matters for a joint directions hearing to allow the parties to make any submissions about confidentiality and the further conduct of the reviews. It was clear from the notification and the terms of the confidentiality order that it was an interim confidentiality order pending the parties’ consideration of the Tribunal’s findings and reasons.

7. The listing of the proceedings for directions was affected by the fact that both applicants initially changed their legal representation. At Mr Poidevin’s request, the listing of the joint directions hearing was delayed to 13 February 2020. The applicants sought a further delay and on the parties’ request, the Tribunal rescheduled the joint directions hearing to 19 February 2020.

8. In the Tribunal’s correspondence of 22 and 29 January 2020, the Tribunal requested that the parties provide any submissions about confidentiality and the publication of the Tribunal’s preliminary decision by close of business on 6 February 2020. In its correspondence of 4 February 2020, the Tribunal referred to its letter of 22 January 2020, which stated as follows:

   ...if any party intends to seek an order about confidentiality the party must inform the Tribunal and the other parties, and provide submissions, to the Tribunal and other parties, by close of business 6 February 2020. If no submissions are received by the Tribunal, the Tribunal will publish the preliminary findings and reasons in the usual course.

9. As no indication was received by any party that a confidentiality order would be sought, and no submissions about the confidentiality order were received from any party by the close of business on 6 February 2020, the Tribunal notified the parties, by letter

   
   

   dated 13 February 2020 that the preliminary decision would be published in the usual course and the confidentiality order would be revoked. The parties were also advised of the Tribunal’s intention to publish the preliminary decision at the scheduled directions hearing.

10. On 17 February 2020 at 4:17pm and 4:22pm, both Mr Poidevin and Mr Rodr’s legal representatives notified the Tribunal in writing that the applicants in these proceedings were withdrawing their applications for review. The applicants requested that the preliminary decision not be made publicly available.

11. The Tribunal gave the parties the opportunity to provide written submissions and to make oral submissions at the directions hearing held on 19 February 2020. Because of the short notice of the applicants’ notification of withdrawal and the abridged time for service of submissions, ASIC requested further time after the directions hearing to provide any further case authorities and written submissions. By letter dated 24 February 2020, ASIC advised it did not wish to rely on any further authorities but took the opportunity to repeat its request that the Tribunal revoke the conditional stay order made on 7 February 2018.

    THE LEGAL FRAMEWORK

12. The power of the Tribunal to review decisions is contained in s 25 of the AAT Act. In brief, the Tribunal has jurisdiction to review certain decisions where provided for by an enactment. The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers[3] and has broad discretion to determine the procedure for the review.[4] The President or an authorised member may hold a directions hearing in relation to a proceeding and may give directions as to the procedure to be followed at or in connection with the hearing.[5]

    [3] AAT Act, s 25(4A).

    [4] Ibid, s 33(1)(a).

    [5] Ibid, ss 33(1A) and (2A).

13. The making of an application to the Tribunal for review of a decision does not affect the operation of the decision but the Tribunal may, on request being made by a party, make an order staying or otherwise affecting the operation or implementation of the decision as the Tribunal considers appropriate.[6] Section 41(6) of the AAT Act provides that a stay order has effect until:

    (i)  where a period for the operation of the order is specified in the order--the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or

    (ii) if no period is so specified--the decision of the Tribunal on the application for review comes into operation.

    [6] Ibid, ss 41(1) and (2).

14. Section 35(1) of the AAT Act provides that, subject to other provisions of the section, the hearing of a proceeding before the Tribunal must be in public. The Tribunal may direct that a hearing or part of a hearing take place in private or may give directions in relation to the persons who may be present.[7] The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of a party or witness or any person related to or otherwise associated with a party or a witness.[8] Relevant to this application, ss 35(4) and (5) provide as follows:

    [7] Ibid, s 35(2).

    [8] Ibid, s 35(3).

    (4)   The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

    (a)  relates to a proceeding; and

    (b)  is any of the following:

    (i)    information that comprises evidence or information about evidence;

    (ii)  information lodged with or otherwise given to the Tribunal.

    (5)   In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

    (a)  that hearings of proceedings before the Tribunal should be held in public; and

    (b)  that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

    (c)  that the contents of documents lodged with the Tribunal should be made available to all the parties.

    However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

15. Sections 35 and 41 of the AAT Act give the Tribunal power to make orders and directions but do not refer to the power to vary or revoke such orders and directions.

    
    

    Subsection 33(3) of the Acts Interpretation Act 1901 (Cth) (‘the Acts Interpretation Act’) provides as follows:

    (3)Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

16. The term “instrument” is not defined in the Acts Interpretation Act but is defined in s 4 of the Legislation Act 2003 (Cth) to mean “any writing or other document and includes an instrument in electronic form”.

17. An order or direction given under ss 35 or 41 of the AAT Act is an instrument of an administrative character. As such, the powers under these provisions are construed to give the Tribunal power to vary or revoke any orders made.

18. Section 43(1) of the AAT Act provides that the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing affirming, varying or setting aside the decision under review. If the Tribunal sets aside the decision under review it must make a decision in substitution for the decision set aside or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. The Tribunal must give reasons for its decision which must include “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based” and a copy of the reasons must be given to the parties.[9]

    [9] AAT Act, ss 43(2), (2B) and (3).

19. Section 42A of the AAT Act contains provisions dealing with the discontinuance, dismissal and reinstatement of applications for review before the Tribunal. Applications may be dismissed if the parties consent; if the applicant fails to appear; if the decision is not reviewable; and if the applicant fails to proceed or fails to comply with the Tribunal’s directions.[10] If an applicant discontinues or withdraws an application there will be a “deemed dismissal” of the application. Relevantly, ss 42A(1A) and (1B) of the AAT Act provides that:

    Deemed dismissal—applicant discontinues or withdraws application

    (1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

    …

    (1B)If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.

    [10] Ibid, sub-ss (1), (2), (4) and (5)

20. Section 66B of the AAT Act provides that:

    Publication of Tribunal decisions

    (1)   The Tribunal may, by any means it considers appropriate, publish its decisions and the reasons for them.

    (2)   Subsection (1) does not authorise the Tribunal to publish information the disclosure of which is prohibited or restricted by or under this Act or any other enactment conferring jurisdiction on the Tribunal.

    THE CONTENTIONS OF THE PARTIES

21. Written and oral submissions were provided by the parties. The following is a summary of those contentions and submissions.

22. Mr Poidevin contends that once a valid withdrawal notification has been lodged with the Tribunal, the Tribunal is taken to have dismissed the application by operation of law. It is therefore functus officio and cannot take any further steps in the review. This includes revoking the confidentiality order made on 20 December 2019 and, as a consequence, making its findings and reasons published to the parties on that date publicly available.

    
    

    It is submitted that the proper construction of s 42A(1B) is that it is a deeming provision that has retrospective operation. It creates a statutory fiction and the application is taken to be dismissed “as if it had never been made”. The fiction is that whilst the matter was heard and a decision handed down, it is taken to be dismissed as if it was never made – or in the terms of s 42A(1B), “taken to have dismissed the application without proceeding to review the decision.” It is submitted that after a proceeding has been dismissed, the Tribunal can only make ancillary orders if they are not inconsistent with that deeming operation of s 42A(1B).

23. For instance, the Tribunal can make costs orders in favour of a respondent employee where the applicant employer withdraws the application for review to restore the injured employee to the position he or she would have been in if the employer had not proceeded to seek a review. Another example relevant to this case is the stay made by the Tribunal in 2018 in respect of the banning orders, which Mr Poidevin accepts must now be lifted as a consequence of his withdrawal. It is submitted that this is an ancillary order, which is consistent with the deeming effect of s 42A(1B). In contrast, an ancillary order revoking a confidentiality order previously made is said to be inconsistent with s 42A(1B) because the Tribunal must, after the withdrawal, proceed on the fictional basis that the Tribunal had not proceeded to review the decision. According to Mr Poidevin, this must also mean that the Tribunal cannot take a further step in publishing a decision “which is deemed not to have been made in the first place”.[11]

    [11] Transcript P-6, lines 16-20.

24. It is further submitted by Mr Poidevin that the decision of the Tribunal dated

    
    

    20 December 2019 was preliminary and it was just a step along the way in proceeding to review the decision as a whole, which resulted in the banning orders. As such, no final decision was made. Mr Poidevin accepts that the Tribunal has made findings of contravention and that the decision and reasons for the decision were published to the parties prior to the withdrawal of the applications for review. It is also accepted that, even though the decision is not final, the Tribunal has power to publish its reasons under s 66B of the AAT Act.[12] However, it is contended that the Tribunal cannot make its decision publicly available in the ordinary course because to do so would be to take a further positive step in a review, which is deemed never to have been proceeded with. Nor can it revoke its confidentiality order because this would be inconsistent with the notion that the Tribunal has not proceeded to review the decision. As such, it is submitted that the Tribunal has no power to revoke the confidentiality order and so make the preliminary decision publicly available. It is submitted that if the confidentiality order cannot be revoked by the Tribunal, the preliminary decision must remain confidential. Accordingly, neither the Tribunal nor ASIC can make this information publicly available.

    [12] In his written submissions, Mr Poidevin contended that the power to publish a decision had not been enlivened under s 66B of the AAT Act, because the decision was a preliminary decision. At the hearing of this matter it was conceded that Tribunal had the power to publish the preliminary decision, but it did not now have jurisdiction to do so. (Transcript P-6 lines 16-29, P-24 lines 34-45 and P-25 lines 1-2).

1. It is further submitted that even if the Tribunal had the power to revoke its confidentiality order to make the decision publicly available, there is no public interest for it to do so.

   
   

   This would be in line with the “invariable” practice of courts that reserved reasons are not published where a claim is settled or discontinued while judgment is reserved. It is contended that the publication of reasons in the context of an ongoing application for review is materially different from the present circumstances.

2. Mr Rodr submits that a party may withdraw from a proceeding at any stage up to the delivery of a decision. It is submitted that there was no final decision and Mr Rodr was therefore entitled to withdraw his application for review. There is no public interest in the reasons for the preliminary decision to be made public and they should remain confidential. Mr Rodr otherwise adopts the submissions made by Mr Poidevin.[13]

   [13] Transcript, P-9, lines 43-47 and P-10, lines 1-13.

3. ASIC contends that the preliminary decision should be published immediately and that both the confidentiality and stay orders should be lifted. It is submitted that s 42A(1B) of the AAT Act is prospective and can only have effect from the date of notification of the withdrawal. The dismissal does not operate to “undo or expunge or eliminate those steps which had been taken up to the point of abandonment” of the proceedings and does not “rewrite the record in respect of the decision and the reasons for the decision”.[14]

   
   

   ASIC accepts that the reviews cannot proceed in the circumstances in which the applicants have withdrawn but says that all incidental and ancillary powers remain.[15] Those matters relate to the question of confidentiality, the continuing stay and the publication of the preliminary decision.[16]

   [14] Transcript, P-13, lines 39-42.

   [15]

   [16] Transcript, P-14, lines 1-6.

4. ASIC relies on the following observations of Tamberlin J in Lower v Comcare [2002] FCA 1394 at [20] (‘Lower v Comcare’) as support for its submission that s 42A(1B) is prospective in effect:

   The amendments to the Act which became operative in 1993 and in particular s 42A(1A) and (1B), in my view, have no bearing on the determination of the present appeal. They are not relevantly inconsistent with the law as it stood prior to that date. Rather, the amendments in s 42A(1A) and (1B) go further by providing that, upon notification of withdrawal, the proceeding is to be treated as if it were a dismissal of the proceedings with the ensuing consequences which are set out in subss (6), (8), (9) and (10). That is to say s 42A proceeds on the basis that thereafter what is not in fact a dismissal shall be deemed to be a dismissal. The provision is not expressed to have a retrospective effect.[17]

   [Emphasis in the original]

   [17] Lower v Comcare at [20].

5. Mr Poidevin submits that Lower v Comcare is not authority for this proposition as it is clear Tamberlin J was opining on the question of whether the amendment had retrospective effect, not whether the effect of the provision was to deem the dismissal to be retrospective. For the reasons we later outline, we did not find this case to be instructive as to the issues at the heart of the dispute.

6. ASIC further submits that, as a matter of fact, the Tribunal had already exercised its jurisdiction in removing the confidentiality order of 20 December 2019 through correspondence sent to the parties on 13 February 2020, which relevantly states:

   Further to the Tribunal’s correspondence of 4 February 2020, the Tribunal will proceed to publish the preliminary decision in the usual course and the confidentiality order will be revoked. The preliminary decision will be listed for publication at the same time as the scheduled Directions Hearing on 19 February 2020.

7. ASIC submits that the preliminary decision should be published in the usual course because it is a decision that has been made by the Tribunal and it is in the public interest for the Tribunal to make its decisions publicly available. It is submitted that this would be consistent with the Tribunal’s objective of providing a mechanism for review that is accessible and promotes public trust and confidence in the decision-making of the Tribunal. ASIC contends that non-publication would be contrary to those objectives and relies on the previous interlocutory decision made by the Tribunal in Poidevin and Australian Securities and Investment Commission [2018] AATA 124. It is submitted that the media interest in the case had been significant and the need for public scrutiny and transparency of Tribunal proceedings outweighed any reputational harm and damage that would be suffered by Mr Poidevin by reason of his high public profile. ASIC also relies on the observations made by the Full Court of the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 (‘ASIC v AAT’), which noted that the norm established by the AAT Act is that proceedings should take place in public. ASIC also submits that in ASIC v AAT, Downes and Jagot JJ emphasised the importance of a market that is fully informed.

8. These considerations are said to be all the more important in the current case because there had been a conditional stay of the decision under review in respect of Mr Poidevin, which means that Mr Poidevin has been able to provide financial services over the past two years, albeit with some restriction. The market is already aware of the allegations made against both applicants but the market would be “misinformed” if the Tribunal’s preliminary decision was not published as soon as possible given that the contraventions found to have been engaged in by the Tribunal are serious.

   ISSUES FOR DETERMINATION

9. It is common ground that:

   ·the withdrawals lodged with the Tribunal on 17 February 2020 by the applicants were validly made;

   ·the findings of contravention were published to the parties on 20 December 2019;

   ·given the applicants have withdrawn their applications for review effective from the afternoon of 17 February 2020, there is no need for the Tribunal to further proceed with the reviews; and

   ·that the stay order made on 7 February 2018 should be revoked.

10. However, the contentious issues relate to the legal effect and operation of the withdrawal provisions. In particular, these applications raise the question of whether the Tribunal retains any power to make ancillary orders after the withdrawal of the applications and, if so, the nature and extent of such powers. Having regard to the submissions of the parties, the issues for consideration are:

    (1)the operation and effect of ss 42A(1A) and (1B) of the AAT Act and whether the Tribunal has the power to revoke the confidentiality order that it made on 20 December 2019;

    (2)whether the Tribunal exercised the power to revoke the confidentiality order by reason of its letter of 13 February 2020 − if this is the case, the issue of whether the Tribunal has power to revoke the order made on 20 December 2019 is otiose;  and

    (3)whether the confidentiality order should be revoked to allow the preliminary decision to be published in circumstances where the applications for review have been withdrawn, namely, is there a public interest in publication?

    CONSIDERATION

    The operative effect of sections 42A(1A) and (1B) of the AAT Act

11. Section 42A(1A) of the AAT Act provides that an applicant may discontinue or withdraw an application for review at any time by written notification to the Tribunal. The parties agree that this means at any time up to the delivery of a final decision.[18] The parties also agree that the Tribunal was functus officio after the notifications of withdrawal were received by the Tribunal on the afternoon of 17 February 2020. The question that falls for determination is what powers the Tribunal can exercise after the notifications are received. Specifically, can the Tribunal vary or revoke ancillary orders made before the notifications? This question turns on the operation and effect of ss 42A(1A) and (1B) of the AAT Act, which ultimately turns on the proper construction of sub-s (1B).

    [18] ACT Department of Justice and Community Services and Comcare and Anor

12. It is well-established that the statutory interpretation of a provision starts with the statutory text. As observed by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 (Hayne, Heydon, Crennan and Kiefel JJ) at [47]:

    This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

    [Citations omitted]

13. In our view, the meaning of ss 42A(1A) and (1B) is clear. The combined effect of

    
    

    ss 42A(1A) and (1B) is that an applicant may withdraw or discontinue a proceeding at any time in the review process and once this occurs, the Tribunal “is taken to have dismissed without proceeding to review the decision”. The natural and ordinary meaning of this provision is that the dismissal is taken to have occurred, by operation of law, at the time of the withdrawal or discontinuance, which is effected through notification to the Tribunal. There is nothing in the wording of sub-s (1B) to suggest it has retrospective effect.

    
    

    The phrase “is taken to have dismissed” is couched in terms of present, not past tense. The point in time at which the Tribunal is taken to have dismissed the application is plainly the time of notification.

14. This is reinforced by the words “without proceeding to review the decision”. The words “proceeding to” or to “proceed” mean to move forward from that point in time. This phrase contemplates a prospective, not retrospective, operation of the provisions. The words do not suggest that the section operates “as if the application had not been made”. If such a statutory fiction was intended, clear words would have been used to this effect. No such words were included. In our view, the plain reading of s 42A(1B) is that the provision is to take effect as a deemed dismissal at the time written notification is received of discontinuance or withdrawal by the applicant without the need for the Tribunal to proceed further to review the decision. If Parliament wished to displace this plain meaning of

    
    

    sub-s (1B) it would have included express reference to this in the provision. For instance, sub-s (1B) could have simply stated: “…if notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision as if the application had never been made.”

15. Both ASIC and Mr Poidevin made submissions about Lower v Comcare. Accordingly, we set out our views on the authority of the case for completeness. In our view,

    
    Lower v Comcare

    does not advance either party’s contentions, particularly given the passage extracted may be interpreted either way. On balance, we are inclined to the view that Mr Poidevin’s submissions are correct but, even if this is the case, any observations made by Tamberlin J are obiter and do not concern the circumstances of this case. In our view, it is more useful to consider the text of the provisions and their statutory context. It is based on these considerations, and well-established principles of statutory interpretation, that we have formed the view that sub-s (1B) is prospective, not retrospective in effect.

16. In summary, we do not accept that s 42A(1B) has retrospective effect such that the withdrawal of an application for review has the effect of the application being dismissed “as if it had never been made”. There is nothing in the wording of ss 42A(1A) or (1B) that would indicate such a construction, nor is there any purpose that can be gleaned from

    
    

    s 42A or elsewhere in the AAT Act as to why this should be so. The deeming of the dismissal on notification is simply a convenient self-executing provision for withdrawal and discontinuance.

17. It therefore follows that we reject the proposition that the Tribunal only has power to make, vary or revoke ancillary orders after notification of a withdrawal or discontinuance if it would restore the applicants to the position that they were in if the applications for review had not been made. In our view, s 42A(1B) does not compel such a conclusion.

    Did the Tribunal make a decision to revoke the confidentiality order made on 20 December 2019?

18. ASIC contends that the Tribunal had already made a decision to lift the interim confidentiality order by letter dated 13 February 2020 and that this decision is not affected by the purported withdrawals. It is further submitted that the Tribunal has therefore already made its decision to revoke the interim confidentiality order and to publish the reasons. Given s 42A(1B) does not have a retrospective effect, the notification of withdrawal cannot impact the Tribunal’s “publication decision” which ASIC contends was made on

    
    

    13 February 2020, preceding the notifications of withdrawal sent on 17 February 2020.

19. The applicants submit that a decision by the Tribunal that it would publish the preliminary decision and revoke the interim confidentiality order is merely an expression of intent about what it proposed to do, which does not have the effect of publication or revocation. We accept this submission, which is self-evidently correct. The question remains whether the Tribunal, firstly has the power to vary or revoke the confidentiality order it made on 20 December 2019 and, if so, whether it should do so in the public interest.

    Can the Tribunal vary or revoke the confidentiality order made on 20 December 2019?

20. It may be that no issue was raised by the applicants as to whether the Tribunal can exercise ancillary powers after the withdrawal of the application for review when it is otherwise functus officio. Mr Poidevin concedes that the Tribunal has the power to revoke the stay order it made on 7 February 2018. It is said that this is because the revocation would be consistent with the operation of s 42A(1B) and would put the parties in the position that they would have been in if the review had never been made. The contention appears to be that there is power to make, vary or revoke an ancillary order after the dismissal of a proceeding but only if the ancillary order would have the effect of restoring the status quo, absent any application for review. We have, of course, found against the applicants as to the effect of s 42A(1B).

21. For completeness, we deal with the issue of whether the Tribunal has the power to make, vary or revoke a confidentiality order after the dismissal of proceedings.

22. The question of the Tribunal’s power to make an order under s 35 of the AAT Act after it has determined an application was considered by Deputy President Forgie in Re Le and Secretary, Department of Education, Science and Trading [2006] AATA 208 (‘Le’).

    
    

    Deputy President Forgie concluded that the Tribunal had the jurisdiction to exercise its powers under s 35 as follows:

    12. Once a Tribunal has decided an application and exercised its powers under

    
    

    s 43, it is generally said that it is functus officio. It has used up all of its powers because it has been given the task of reviewing a decision and, having done that, it has completed its task. Whether it has used up all of its powers is a slightly different question. Occasionally, it will have decided an application but there will be some ancillary questions that need to be answered. One might relate to whether the decision-maker should pay the costs of an applicant who successfully applies for review of a decision in the Tribunal’s compensation jurisdiction. The Tribunal has the power to decide such a question for it has not completed every aspect of its task. Expressed in a different way, s 35 is a separate head of power from that to review the decision and it persists after the decision has been reviewed.

    13. The power given to the Tribunal by s 35 is generally exercised at or before its hearing the application or some time before the matter is finalised. At times, an order may be made after the Tribunal has given its decision. The reasons may disclose matters of such a nature that an order is appropriate. Normally, however, the Tribunal will try to write its reasons to avoid the need to refer to such material. If there is a need, every attempt will be made to limit the scope of the order to the confidential material so that the remainder of the reasons are available.

    14. On the face of the section, there is no reason why the Tribunal cannot exercise its powers under s 35 after it has given its decision and exhausted its powers in that regard. A confidentiality order is a different matter.

    
    

    The evidence supporting the findings of fact on which the Tribunal has made an order may change and no longer support the order. So, for example, the information protected by the order may become public in another context or the information may be relevant in another context in another tribunal or in a court. In its terms, the power given by s 35 is broad enough to support a variation of an order made before the decision was handed down. Exercising the power at that time does not interfere with the Tribunal’s decision and in relation to which its powers are exhausted. It simply ensures that the Tribunal’s orders protect that which should be protected and does not protect that which need no longer be protected either in part or in its entirety.

    15. The same reasoning leads me to conclude that new orders for confidentiality may also be made after the hearing and the decision has been handed down and the parties have had an opportunity to read and consider it. That is the time at which the parties are focused on the material and fully across the material and its implications. After that, parties may no longer be available or focused on the issues in the same way. That is not to say that the power cannot be used after the application has been heard and decided. Section 35 is not limited in its terms to the time at which an order may be made.

23. In Re Stewart and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 260 (‘Stewart’) Kerr J (in his capacity as President of this Tribunal) agreed with Deputy President Forgie’s interpretation of s 35 of the AAT Act but noted at [17]:

    Specifically I agree with Deputy President Forgie’s conclusion at [12] that s 35 is a separate head of power from that to review the decision and that it persists after the decision has been reviewed. Where I express a qualification is that I doubt that that conclusion is self-evident from the case cited in support at footnote 15 (Telescourt v Commonwealth of Australia [1991] FCA 205; (1991) 29 FCR 227 at 237) although I accept that an argument by analogy is open to be made. For my part I prefer to place my conclusion on the plain terms of s 35(2). There is nothing to suggest that the language of that provision confines the power to circumstances where directions are made by the tribunal in the course of the hearing itself.

    
    

    The power is frequently and conveniently exercised before a hearing. In my opinion it is equally available to be exercised, in appropriate instances after a hearing and after the decision has been reviewed and reasons provided.

    
    

    The language is broad and, in my opinion, unambiguously apt to extend in respect of the unpredictable multitude of future, present and past circumstances which may arise when the exercise of the power may be desirable ‘by reason of the confidential nature of any evidence or matter or for any other reason’.

1. In our view, the question of whether the Tribunal can still exercise ancillary powers after an application for review has been determined through a final decision under s 43 of the AAT Act is no different, in principle, from the question of whether the Tribunal is able to exercise those powers after an application has been determined through a dismissal under s 42A. This is because the question is the same, namely, whether the Tribunal can exercise certain ancillary powers once it is functus officio. As such, the reasoning of Deputy President Forgie and his Honour, Justice Kerr is apposite. This Tribunal is not bound by the conclusions reached by other members of the Tribunal on the interpretation of legislation, including provisions of the AAT Act, but we agree with the principles and reasoning set out in Le and Stewart.

2. As already noted, the Tribunal has certain powers under the AAT Act to assist in the conduct of applications for merits review. Relevantly, the Tribunal may make directions about the conduct of the proceedings under s 33, it may make orders about the operation and effect of the decision under review under s 41 and it may make orders about confidentiality and disclosure as provided for under s 35 of the AAT Act. These powers are separate from and ancillary to the substantive powers of the Tribunal to undertake merits review. The substantive powers that govern the Tribunal’s functions of merits review are contained in, for instance, ss 25 and 43 of the AAT Act. There is no dispute that these powers were exhausted after 17 February 2020, when both applicants notified the Tribunal of the withdrawal of their applications for review. However, the same cannot be said for the Tribunal’s ancillary powers.

3. A

   ncillary powers to make, vary or revoke stay and confidentiality orders cannot be characterised as an intrinsic step in the review process and may be exercised before, during and after the hearing and, in our view, after the review process has been completed. For example, a party might make a request for confidentiality orders to be made after a final decision has been published at the conclusion of the review.

   
   

   Even though the decision has been published, it may be that the written reasons include details about a party that should have been kept confidential and were published in error, such as personal information that may allow a third party to commit identity fraud and information about minors or mentally ill persons that cannot be disclosed under state or federal legislation.

4. Mr Poidevin submits that the Tribunal decisions of Le and Stewart cannot be correct because those decisions proceed on the basis that the Tribunal can take a fresh step, which depends on the Tribunal proceeding to review the decision. The present case is said to be stronger than either of these cases because this case “deals with the very preliminary decision of the Tribunal which can only come into existence if one assumes the Tribunal was proceeding to review the decision”.[19] The previous Tribunal decisions of Le and Stewart are said to be distinguishable because there were final decisions on the merits and there is no such final decision in this case. It is submitted that the Tribunal cannot make a further order to disturb the confidentiality because it could only do this if the Tribunal has the power to continue proceeding to review the decision, which it does not. As we have outlined earlier, these powers are separate from and ancillary to the substantive powers of the Tribunal to undertake merits review and do not depend on the Tribunal continuing the proceedings.

   [19] Transcript P-7, lines 8-12.

5. According to Mr Poidevin, the independence of the power is not at the heart of the issue. The critical issue is to identify what steps are consistent with sub-s (1B) and what steps are inconsistent. It is submitted that this can only be done by construing sub-s (1B) to give the provision its proper intended operation, which is that the deemed dismissal is retrospective as if the review did not ever happen. The Tribunal can only exercise those ancillary powers that would restore the applicant to their position if the application had not been made.

6. This submission depends on the conclusion that the operation of s 42A(1B) of the AAT Act is retrospective so that, as Mr Poidevin put it – “the application had never been made”.

   
   

   We have not accepted this submission. The argument therefore falls away.

7. As the Tribunal retains the power to make confidentiality orders under s 35 of the AAT Act after a review has been concluded, by analogy, it retains the power to vary or revoke orders previously made.

   Whether the interim confidentiality order should be revoked – public interest?

8. The Tribunal conducted a lengthy merits review process with six days of evidence, a day for oral submissions and the consideration of lengthy written submissions, witness statements and expert evidence and 37 volumes of documentary evidence. There was understandable media interest in these proceedings and several requests were made for access to documents filed with the Tribunal. Access to this information was provided by the Tribunal before and after the hearings in accordance with its published policies and procedures. The documents released included the parties’ statements of facts, issues and contentions and the evidence that was filed and served by the parties. The documents included details of the allegations of contraventions made by ASIC and the applicants’ response to those claims, being a comprehensive denial of those allegations. All hearings, including directions hearings, were public. On 25 January 2018, the Tribunal delivered a decision in relation to the interlocutory application made by Mr Poidevin for confidentiality orders and a stay of the decision under review.[20] That decision included a background of the allegations made by ASIC in relation to contraventions of s 1041A of the Corporations Act and was published. As already noted, the Tribunal granted Mr Poidevin a conditional stay but refused his request for confidentiality.

   [20] Poidevin and Australian Securities and Investment Commission [2018] AATA 124.

9. The proceedings were rigorously prosecuted by all parties and they raised matters of public interest. The claims made by ASIC concerned serious allegations of market manipulation of shares in a listed company over a nine-day period by the applicants who were employed by a significant and well-known stockbroking agency, Bell Potter Securities Pty Ltd (‘Bell Potter’). The applicants raised a number of contentious legal arguments about the operation of s 1041A of the Corporations Act. During the course of the hearing, there was criticism of expert evidence by all parties and criticism of ASIC’s investigation, the findings of the delegate and the use of certain technology to detect market manipulation.

10. After lengthy deliberations on these matters, the Tribunal published to the parties its findings, and reasons for those findings, in relation to the contraventions alleged by ASIC. The findings and reasons were set out in what the Tribunal referred to as the “preliminary decision”, being a reference to the findings of contravention which all parties accepted were critical as a threshold to determine whether there was power to make banning orders. This decision was published to the parties on 20 December 2019 but it is clear from the correspondence with the parties that the Tribunal made a confidentiality order which was to be interim, pending the parties’ further review of the findings and reasons for decision. The preliminary decision finally concluded an important aspect of the reviews, setting out Tribunal’s relevant findings (with detailed reasons) as to whether there were contraventions.

11. The sequence of events as set out in the background is not in dispute.

12. The parties accept that the stay orders can be revoked, and ASIC has requested that this order be made immediately.

13. The stay order made on 7 February 2018 relevantly provided:

    Subject to the following conditions, the banning order made against the Applicant by notice dated 29 November 2017 (Banning Order) be stayed until the decision of the Tribunal on the application for review comes into operation or until further order of the Tribunal:

    ….

14. In this case the stay order is expressed to operate until the decision of the Tribunal comes into operation or until further order. The stay remains in place. There is no dispute that the Tribunal is empowered to revoke the order made on 7 February 2018.[21] We therefore revoke the stay with immediate effect.

    [21] AAT Act. s 43(3).

15. For the reasons previously outlined, we are of the view that we have the power to vary or revoke the confidentiality order made on 20 December 2019. There is further dispute between the parties on this matter, as to whether the power should be exercised.

16. ASIC contends that there is public interest in the Tribunal revoking the order and in making its preliminary decision publicly available. The applicants contend there is no such public interest as the proceedings have been withdrawn and was thereby concluded.

17. The public interest in the transparency of merits review processes and decision-making by the Tribunal was outlined by the Full Court in ASIC v AAT and has been referred to in the previous Tribunal decision in these proceedings.[22]

    [22] Poidevin and Australian Securities and Investment Commission [2018] AATA 124 [16].

18. The question is whether there is a public interest in the Tribunal revoking the confidentiality order made in respect of the preliminary decision when this decision is not a final decision, as contemplated in s 43(2) of the AAT Act, and the applications were withdrawn prior to the publication of a final decision.

19. ASIC contends that the order should be revoked because the public would otherwise be “misinformed” about the true position of the applicants. In our view, this contention goes too far but there is some force in the submission that there is a public interest in the Tribunal’s reasoning being made publicly available in the circumstances of this case. The nature of the contraventions alleged are a matter of public record as are the denials made by the applicants. The Tribunal made findings and published its reasons to the parties about these matters. That is a fact and was part of the review process, as determined by the Tribunal at the outset of the proceedings. The Tribunal decided as a matter of convenience and efficiency that the review process would be undertaken in two stages and that the question of whether it was satisfied there were contraventions would be decided as a threshold issue. This was with the consent of the parties and for their benefit. The fact is that the preliminary decision and its publication to the parties occurred on

    
    

    20 December 2019 and this cannot be expunged by the withdrawal of the proceedings.

    
    

    As we have already observed, s 42A(1B) is not retrospective in effect.

20. This is not a case that is analogous to the non-publication of a reserved judgment where proceedings are settled or discontinued prior to the judgment being delivered. Nor is this analogous to the non-publication of a reserved decision by the Tribunal in similar circumstances. This is not a case where proceedings were withdrawn or settled before the publication of the preliminary decision to the parties.

21. It is contended by Mr Poidevin that the preliminary decision cannot be of public interest other than as a “mere curiosity”. We disagree.

22. To dismiss the preliminary decision as “mere curiosity” would be to underestimate the likely interest in the Tribunal’s findings about contraventions and its reasons for those findings. This is particularly so given the arguments advanced by the parties during the public hearings, including in oral and written submissions, and the level of media interest and reporting at this time and following the hearings.

23. There is a public interest in the preliminary decision being made public so that consumers of financial services, clients and former clients of Bell Potter and the applicants, participants in the financial services industry, academics or financial services commentators and members of the broader community can be fully informed about the issues in dispute, both factual and legal, and how these issues were resolved by the Tribunal. As noted, there were a number of contentious legal questions raised and ASIC’s case and experts were criticised by the applicants and their expert witnesses. ASIC made extensive allegations of contravention against the applicants, not all of which were found to be warranted. How the Tribunal resolved these disputes is set out in detail in the decision handed down on 20 December 2019.

24. If this decision is not published, there will be a level of undue secrecy that may undermine  transparency, public trust and confidence in the Tribunal’s role. For instance, one of the issues that arises is that the confidentiality order, which was intended to be interim, would preclude members of the public becoming aware that, and why, the Tribunal had made findings of contravention. Third parties may draw the conclusion of such findings because the applicants decided to withdraw their applications for review and thereby concede to ASIC’s original claims. However, this is by no means a foregone conclusion because it could be speculated that the applicants simply decided not to proceed any further with the second phase of the review, with Mr Rodr having served a significant period of banning and Mr Poidevin possibly not needing to be licensed given the nature of his role at Bell Potter. If this were to be the case, there would be a potential for uncertainty in the market that should, but would not be able to be clarified.

25. The importance of the publication of reasons was accurately explained by Deputy President Forgie in Le at [27] as follows:

    The principles of the rule of law are also inherent in the requirement in s 43(2) of the AAT Act that the Tribunal give reasons. If they are given in a spoken form at a hearing held in public, they will be available not only to the parties but also to so many members of the public who may be present. If they are given in writing after a public hearing was held, it is consistent with the rule of law that those written reasons be made available to the public. Members of the public present at the hearing could observe the proceedings. They could form a view whether the proceedings were conducted appropriately and fairly. They should equally be able to scrutinise the outcome and the reasons for it to ensure, and be reassured, that the Tribunal has acted appropriately on the evidence and the law. After all, the rule of law is directed both to process and to outcome.

26. Relevantly, Deputy President Forgie, in citing McHugh JA (as he then was) in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, also observed at [29] as follows:

    McHugh J's explanation of the rationale for giving reasons is an equally appropriate explanation for the publication of those reasons beyond the parties concerned in the case before either a court or the Tribunal. I have already referred to the aspect of accountability inherent in the rule of law. The precept of the rule of law that similar cases be treated similarly cannot be met unless the public is able to have access to the Tribunal's decisions and able to compare one case with another. Even though the reasons for decision of one of the Tribunal's members are not binding on another member, the Tribunal does strive for consistent outcomes if they are possible. If they are not, and the later tribunal is aware of the earlier case, it is usual to give reasons for any inconsistent conclusion. Therefore, if the parties to an application in the Tribunal are to have their best opportunity to know and understand the legislation that underpins the decision that is under review, they need to have access to any of the Tribunal's previous decisions interpreting and applying that legislation. Parties cannot have that opportunity, or any opportunity, if the Tribunal's decisions are not made available to the public.

27. While Deputy President Forgie was discussing the importance of the publication of a final decision made under s 43(2) of the AAT Act, the reasoning applies equally to a preliminary decision which finally concludes essential aspects of a review, on which the final decision would be based. Notably, this procedure for review is not an uncommon practice in the Tribunal and is generally put in place to save the parties time and inconvenience, where findings about contraventions must be made before the Tribunal can proceed to determine the review. In a case where there are similar allegations made against two parties, it is even more efficacious to proceed in this way so that common issues about contravention can be heard and determined together and the rest of the matter, in particular, whether banning orders should be made, can then proceed separately.

28. Having regard to the above matters, we have concluded that it is in the public interest to revoke the confidentiality order.

29. Another question is whether the Tribunal, in taking its own steps to publish the decision on the public platform of the Australasian Legal Information Institute would be a further step in “proceeding with the review of the decision” and therefore inconsistent with s 42A(1B) of the AAT Act. In our view, it would not.

30. The notion of taking a further step in the review must mean undertaking a substantive step, not simply publishing a decision which has already been made and published to the parties, regardless of whether it is a preliminary and not final decision for the purpose of

    
    

    s 43(2) of the AAT Act. The publication of decisions by the Tribunal is undertaken as part of its role in promoting “public trust and confidence” in its decision-making under s 2A(d) of the AAT Act. The publication of decisions is authorised by s 66B of the AAT Act. Relevantly, the Tribunal’s Publication of Decisions Policy on its website provides that, subject to confidentiality orders and any legislation that prohibits the publication of a decision, the Tribunal generally publishes all written decisions in the General and other Divisions, including the Taxation and Commercial Division.[23] The platform for publication used by the Tribunal is which is freely available to the public and to users of the Tribunal. It is easily accessible and can be searched through catchwords. In our view, there is no reason why the preliminary decision should not be published in accordance with this usual practice.

    [23]

    CONCLUSION

31. We have found that the Tribunal has power to revoke the confidentiality order dated

    
    

    20 December 2019 and it is in the public interest that such order be revoked to allow the preliminary decision to be published in the usual course. We have also found that the stay order made on 7 February 2018 in Mr Poidevin’s matter should be revoked forthwith.

32. At the directions hearing, the applicants submitted that if the Tribunal decided it had the power to revoke the confidentiality order dated 20 December 2019, then any order to revoke should be stayed for 28 days to allow them to consider and to potentially make an application for judicial review. ASIC contended that a stay should not be granted in circumstances where the publication of the preliminary decision has been delayed for months since it was handed down. ASIC further contended that it would not be in the public interest to further delay the publication of the preliminary decision.

33. In circumstances where the applicants have indicated that they would like to consider, and possibly apply for, judicial review of any order made to revoke the confidentiality order dated 20 December 2019, we think that it would be in the interests of justice and the parties in these applications that such revocation order be stayed for 28 days. To not do so would render any application for judicial review nugatory and would deny the applicants of their review rights.

1. To avoid any further delay in the publication of the preliminary decision, if the applicants decide within the period of 28 days not to seek judicial review, they must notify the Tribunal accordingly. The order to revoke the confidentiality order dated
   20 December 2019 will come into effect forthwith upon receipt of such correspondence or on the 28^th day after the date of this decision, whichever is sooner.

   ORDERS

2. The Tribunal ORDERS:

   1.pursuant to section 41(3) of the AAT Act, that the stay order made in matter 2017/7111 on 7 February 2018 is revoked forthwith;

   2.pursuant to section 35 of the AAT Act, that the non-publication order in paragraph (1) of the Tribunal’s order made on 20 December 2019 in matters 2017/7111 and 2017/7531 is revoked;

   3.in the event that the applicants seek judicial review of this decision, Order 2 is stayed pending order of the Federal Court of Australia; and

   4.subject to Order 3, Order 2 is stayed until the earlier of:

   a.    the 28th day after the date of this decision; or

   b.    the day upon which the applicants notify the Tribunal that they do not intend to seek judicial review of this decision.

83.     I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Justice D G Thomas, President and Deputy President J Redfern

.....................[SGD]..............................................

Associate

Dated: 9 April 2020

Date of hearing:	19 February 2020
Counsel for the Mr Poidevin:		Mr I Jackman SC
Ms K Madgwick
Solicitors for the Mr Poidevin:		Clayton Utz
Solicitors for Mr Rodr:		Mr N Lucas
Maddocks
Counsel for the Respondent:		Mr N O’Bryan SC
Dr P Bender
Solicitor for the Respondent:		Australian Securities and Investments Commission

In its written submissions, ASIC submitted that as the Tribunal had determined the contravention issue,

it had thereby completed its merits review function in respect of that part of the dispute on 20 December 2019 and should proceed with the reviews or, at least, was obliged to publish the preliminary decision.

This contention was not advanced at the hearing of the application.

[2009] AATA 579;

Uniden Australia v Customs

(1997) 74 FCR 190; and Confidential and Commissioner of Taxation [2014] AATA 952.