Re Kowalski and Repatriation Commission - [2009] AATA 807

Callychurn and Australian Securities and Investments Commission [2015] AATA 726 (18 September 2015)

Division

Taxation & Commercial Division

File Number

2015/1419

Re

Meenakshi Callychurn

APPLICANT

And

Australian Securities and Investments Commission

RESPONDENT

File Number

2015/1420

Re

Unique Mortgage Services Pty Ltd

APPLICANT

And

Australian Securities and Investments Commission

RESPONDENT

DECISION

Tribunal
Prof R Deutsch, Deputy President

Date 18 September 2015

Place Sydney
The application to have Deputy President Deutsch recuse himself is refused.

...........................[sgd].............................................
Prof R Deutsch, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – Application for recusal on grounds of apprehended bias – stay and substantive applications heard consecutively on same day – consideration of prospects of success in oral decision refusing stay – common law principles of natural justice applied – whether failure to accord procedural fairness – whether pre-determination of substantive issues – application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 19D, 21A (repealed)
CASES
Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 121 ALD 242

Re Kowalski and Repatriation Commission [2009] AATA 807
Re Mellor and Australian Postal Corporation [2010] AATA 288
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Palmer Tube Mills (Aust) Pty Ltd v Semi Semi [1998] 4 VR 439 at 452

Leon Holdings Pty Ltd v O’Donnell (2009) 25 VR 569
REASONS FOR DECISION
Prof R Deutsch, Deputy President
18 September 2015
BACKGROUND TO THIS APPLICATION

Under sections 80 and 81 of the National Consumer Credit Protection Act 2009 (Cth) (“the Act”) the Respondent made a banning order prohibiting Mrs Meenakshi Callychurn from engaging in credit activities for a period of five years.
Under section 55 of the Act, the Respondent cancelled the Australian credit licence held by a related company, Unique Mortgage Services Pty Ltd (“UMS”).
The Applicants sought review of these decisions with this Tribunal. Mrs Callychurn and UMS also applied under section 41(2) of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”) for a stay of these decisions.
On 2 June 2015 I presided over both an interlocutory hearing of the stay applications and a substantive hearing of the reviewable decisions outlined above.
I heard these two proceedings together on the same day. This procedure, which was perhaps somewhat unusual, was adopted with the consent of both parties.
Mrs Callychurn advised at the beginning of the hearing that the Applicants no longer had legal representation but that the solicitor previously acting, Ms Willis, was available and would, if permitted by the Tribunal to do so, provide some assistance to the Applicants.
The Tribunal enquired of the Respondent’s counsel whether he had any issues with Ms Willis being involved in this way and he indicated that he did not.
Ms Willis remained at Ms Callychurn’s side throughout the hearing and appeared to provide input into the running of the case. The exact nature and extent of Ms Willis’ input is not known to the Tribunal.
Being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Kowalski and Repatriation Commission

Details

AGLC: Re Kowalski and Repatriation Commission [2015] AATA 726
Case: [2009] AATA 807
Decision Date: 18 September 2015

CaseChat Overview and Summary

The case of Re Kowalski and Repatriation Commission involved the applicant seeking the recusal of Deputy President Deutsch on the grounds of apprehended bias. The dispute pertained to the handling of a substantive application, which was heard consecutively with the stay application on the same day. The matter was brought before the Administrative Appeals Tribunal. The primary legal issue the court had to address was whether the failure to accord procedural fairness in the recusal application constituted a breach of natural justice and whether the decision-making process on the substantive application had been predetermined.

The court considered the common law principles of natural justice and examined whether the failure to provide the applicant with an opportunity to address the merits of the substantive application before deciding the stay application constituted a denial of procedural fairness. The court also assessed if the decision on the substantive application had been predetermined before the stay application was heard. After thorough deliberation, the court determined that there was no failure to accord procedural fairness and no pre-determination of the substantive issues. The prospects of success in the oral decision refusing the stay were found to be insufficient to establish apprehended bias.

Consequently, the application for Deputy President Deutsch to recuse himself was refused. The court found that the decision-making process had adhered to the principles of natural justice and that the concerns regarding bias were not substantiated. The tribunal could proceed with making a conclusive decision on the substantive application. The court's ruling provided clarity on the handling of consecutive applications and reinforced the importance of procedural fairness in administrative law proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied that the parties have been fully heard and the Tribunal can move forward towards making a conclusive decision on the substantive application.CONCLUSION The application to have Deputy President Deutsch recuse himself is refused.

Ratio Decidendi

Legal Principle Established

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Division	Taxation & Commercial Division
File Number	2015/1419
Re	Meenakshi Callychurn
APPLICANT
And	Australian Securities and Investments Commission
RESPONDENT
File Number	2015/1420
Re	Unique Mortgage Services Pty Ltd
APPLICANT
And	Australian Securities and Investments Commission
RESPONDENT

Tribunal	Prof R Deutsch, Deputy President
Date	18 September 2015
Place	Sydney